State Codes and Statutes

Statutes > Texas > Insurance-code > Title-4-regulation-of-solvency > Chapter-443-insurer-receivership-act

INSURANCE CODE

TITLE 4. REGULATION OF SOLVENCY

SUBTITLE C. DELINQUENT INSURERS

CHAPTER 443. INSURER RECEIVERSHIP ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 443.001. CONSTRUCTION AND PURPOSE. (a) This chapter may

be cited as the Insurer Receivership Act.

(b) This chapter may not be interpreted to limit the powers

granted the commissioner under other provisions of law.

(c) This chapter shall be liberally construed to support the

purpose stated in Subsection (e).

(d) All powers and authority of a receiver under this chapter

are cumulative and are in addition to all powers and authority

that are available to a receiver under law other than this

chapter.

(e) The purpose of this chapter is to protect the interests of

insureds, claimants, creditors, and the public generally,

through:

(1) early detection of any potentially hazardous condition in an

insurer and prompt application of appropriate corrective

measures;

(2) improved methods for conserving and rehabilitating insurers;

(3) enhanced efficiency and economy of liquidation, through

clarification of the law, to minimize legal uncertainty and

litigation;

(4) apportionment of any unavoidable loss in accordance with the

statutory priorities set out in this chapter;

(5) lessening the problems of interstate receivership by:

(A) facilitating cooperation between states in delinquency

proceedings; and

(B) extending the scope of personal jurisdiction over debtors of

the insurer located outside this state;

(6) regulation of the business of insurance by the impact of the

law relating to delinquency procedures and related substantive

rules; and

(7) providing for a comprehensive scheme for the receivership of

insurers and those subject to this chapter as part of the

regulation of the business of insurance in this state because

proceedings in cases of insurer insolvency and delinquency are

deemed an integral aspect of the business of insurance and are of

vital public interest and concern.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.002. CONFLICTS OF LAW. This chapter and the state law

governing insurance guaranty associations constitute this state's

insurer receivership laws and shall be construed together in a

manner that is consistent. In the event of a conflict between the

insurer receivership laws and the provisions of any other law,

the insurer receivership laws prevail.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.003. COVERED PERSONS. The provisions of this chapter

apply to all:

(1) insurers who are doing or have done an insurance business in

this state and against whom claims arising from that business may

exist now or in the future and to all persons subject to

examination by the commissioner;

(2) insurers who purport to do an insurance business in this

state;

(3) insurers who have insureds resident in this state;

(4) other persons organized or doing insurance business, or in

the process of organizing with the intent to do insurance

business in this state;

(5) nonprofit health corporations and all fraternal benefit

societies subject to Chapters 844 and 885, respectively;

(6) title insurance companies subject to Title 11;

(7) health maintenance organizations subject to Chapter 843; and

(8) surety and trust companies subject to Chapter 7, general

casualty companies subject to Chapter 861, statewide mutual

assessment companies subject to Chapter 881, mutual insurance

companies subject to Chapter 882 or 883, local mutual aid

associations subject to Chapter 886, burial associations subject

to Chapter 888, farm mutual insurance companies subject to

Chapter 911, county mutual insurance companies subject to Chapter

912, Lloyd's plans subject to Chapter 941, reciprocal or

interinsurance exchanges subject to Chapter 942, and fidelity,

guaranty, and surety companies.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.004. DEFINITIONS. (a) For the purposes of this

chapter:

(1) "Affiliate," "control," and "subsidiary" have the meanings

assigned by Chapter 823.

(2) "Alien insurer" means an insurer incorporated or organized

under the laws of a jurisdiction that is not a state.

(3) "Creditor" or "claimant" means a person having any claim

against an insurer, whether the claim is matured or not,

liquidated or unliquidated, secured or unsecured, absolute,

fixed, or contingent.

(4) "Delinquency proceeding" means any proceeding instituted

against an insurer for the purpose of liquidating,

rehabilitating, or conserving the insurer, and any proceeding

under Section 443.051.

(5) "Doing business," including "doing insurance business" and

the "business of insurance," includes any of the following acts,

whether effected by mail, electronic means, or otherwise:

(A) the issuance or delivery of contracts of insurance, either

to persons resident or covering a risk located in this state;

(B) the solicitation of applications for contracts described by

Paragraph (A) or other negotiations preliminary to the execution

of the contracts;

(C) the collection of premiums, membership fees, assessments, or

other consideration for contracts described by Paragraph (A);

(D) the transaction of matters subsequent to the execution of

contracts described by Paragraph (A) and arising out of those

contracts; or

(E) operating as an insurer under a certificate of authority

issued by the department.

(6) "Domiciliary state" means the state in which an insurer is

incorporated or organized or, in the case of an alien insurer,

its state of entry.

(7) "Foreign insurer" means an insurer domiciled in another

state.

(8) "Formal delinquency proceeding" means any rehabilitation or

liquidation proceeding.

(9) "General assets" includes:

(A) all property of the estate that is not:

(i) subject to a secured claim or a valid and existing express

trust for the security or benefit of specified persons or classes

of persons; or

(ii) required by the insurance laws of this state or any other

state to be held for the benefit of specified persons or classes

of persons; and

(B) all property of the estate and the proceeds of that property

in excess of the amount necessary to discharge any secured claims

described by Paragraph (A).

(10) "Good faith" means honesty in fact and intention, and for

the purposes of Subchapter F also requires the absence of:

(A) information that would lead a reasonable person in the same

position to know that the insurer is financially impaired or

insolvent; and

(B) knowledge regarding the imminence or pendency of any

delinquency proceeding against the insurer.

(11) "Guaranty association" means any mechanism mandated by

Chapter 462, 463, or 2602 or other laws of this state or a

similar mechanism in another state that is created for the

payment of claims or continuation of policy obligations of

financially impaired or insolvent insurers.

(12) "Impaired" means that an insurer does not have admitted

assets at least equal to all its liabilities together with the

minimum surplus required to be maintained under this code.

(13) "Insolvency" or "insolvent" means an insurer:

(A) is unable to pay its obligations when they are due;

(B) does not have admitted assets at least equal to all its

liabilities; or

(C) has a total adjusted capital that is less than that required

under:

(i) Chapter 822, 841, or 843, as applicable; or

(ii) applicable rules or guidelines adopted by the commissioner

under Section 822.210, 841.205, or 843.404.

(14) "Insurer" means any person that has done, purports to do,

is doing, or is authorized to do the business of insurance in

this state, and is or has been subject to the authority of or to

liquidation, rehabilitation, reorganization, supervision, or

conservation by any insurance commissioner. For purposes of this

chapter, any other persons included under Section 443.003 are

insurers.

(15) "Netting agreement" means a contract or agreement,

including terms and conditions incorporated by reference in a

contract or agreement, and a master agreement (which master

agreement, together with all schedules, confirmations,

definitions, and addenda to the agreement and transactions under

the agreement, schedules, confirmations, definitions, or addenda,

are to be treated as one netting agreement) that documents one or

more transactions between the parties to the contract or

agreement for or involving one or more qualified financial

contracts and that, among the parties to the netting agreement,

provides for the netting or liquidation of qualified financial

contracts, present or future payment obligations, or payment

entitlements under the contract or agreement, including

liquidation or close-out values relating to the obligations or

entitlements.

(16) "New value" means money, money's worth in goods, services,

or new credit, or release by a transferee of property previously

transferred to the transferee in a transaction that is neither

void nor voidable by the insurer or the receiver under any

applicable law, including proceeds of the property. The term

does not include an obligation substituted for an existing

obligation.

(17) "Party in interest" means the commissioner, a 10 percent or

greater equity security holder in the insolvent insurer, any

affected guaranty association, any nondomiciliary commissioner

for a jurisdiction in which the insurer has outstanding claims

liabilities, and any of the following parties that have filed a

request for inclusion on the service list under Section 443.007:

(A) an insurer that ceded to or assumed business from the

insolvent insurer; and

(B) an equity shareholder, policyholder, third-party claimant,

creditor, and any other person, including any indenture trustee,

with a financial or regulatory interest in the receivership

proceeding.

(18) "Person" means individual, aggregation of individuals,

partnership, corporation, or other entity.

(19) "Policy" means a written contract of insurance, written

agreement for or effecting insurance, or the certificate for or

effecting insurance, by whatever name. The term includes all

clauses, riders, endorsements, and papers that are a part of the

contract, agreement, or certificate. The term does not include a

contract of reinsurance.

(20) "Property of the insurer" or "property of the estate"

includes:

(A) all right, title, and interest of the insurer in property,

whether legal or equitable, tangible or intangible, choate or

inchoate, and includes choses in action, contract rights, and any

other interest recognized under the laws of this state;

(B) entitlements that:

(i) existed prior to the entry of an order of rehabilitation or

liquidation; and

(ii) may arise by operation of the provisions of this chapter or

other provisions of law allowing the receiver to avoid prior

transfers or assert other rights; and

(C) all records and data that are otherwise the property of the

insurer, in whatever form maintained, within the possession,

custody, or control of a managing general agent, third-party

administrator, management company, data processing company,

accountant, attorney, affiliate, or other person, including:

(i) claims and claim files;

(ii) policyholder lists;

(iii) application files;

(iv) litigation files;

(v) premium records;

(vi) rate books and underwriting manuals;

(vii) personnel records; and

(viii) financial records or similar records.

(21) "Qualified financial contract" means a commodity contract,

forward contract, repurchase agreement, securities contract, swap

agreement, and any similar agreement that the commissioner

determines by rule to be a qualified financial contract for the

purposes of this chapter.

(22) "Receiver" means liquidator, rehabilitator, or ancillary

conservator, as the context requires.

(23) "Receivership" means any liquidation, rehabilitation, or

ancillary conservation, as the context requires.

(24) "Receivership court" refers to the court in which a

delinquency proceeding is pending, unless the context requires

otherwise.

(25) "Reinsurance" means transactions or contracts by which an

assuming insurer agrees to indemnify a ceding insurer against

all, or a part, of any loss that the ceding insurer might sustain

under the policy or policies that it has issued or will issue.

(26) "Secured claim" means any claim secured by an asset that is

not a general asset. The term includes the right to set off as

provided in Section 443.209. The term does not include a claim

arising from a constructive or resulting trust, a special deposit

claim, or a claim based on mere possession.

(27) "Special deposit" means a deposit established pursuant to

statute for the security or benefit of a limited class or limited

classes of persons.

(28) "Special deposit claim" means any claim secured by a

special deposit. The term does not include any claim secured by

the general assets of the insurer.

(29) "State" means any state, district, or territory of the

United States.

(30) "Transfer" includes the sale and every other and different

mode, direct or indirect, of disposing of or of parting with

property or with an interest in property, including a setoff, or

with the possession of property or of fixing a lien upon property

or upon an interest in property, absolutely or conditionally,

voluntarily or involuntarily, by or without judicial proceedings.

The retention of a security title in property delivered to an

insurer is deemed a transfer suffered by the insurer.

(31) "Unauthorized insurer" means an insurer doing the business

of insurance in this state that has not received from this state

a certificate of authority or some other type of authority that

allows for doing the business of insurance in this state.

(b) For purposes of this chapter, "admitted assets" and

"liabilities" have the meanings assigned by the department in

rules relating to risk-based capital.

(c) For purposes of Subsection (a)(21):

(1) "Commodity contract" means:

(A) a contract for the purchase or sale of a commodity for

future delivery on or subject to the rules of a board of trade

designated as a contract market by the Commodity Futures Trading

Commission under the Commodity Exchange Act (7 U.S.C. Section 1

et seq.) or a board of trade outside the United States;

(B) an agreement that is subject to regulation under Section 19,

Commodity Exchange Act (7 U.S.C. Section 23), and that is

commonly known to the commodities trade as a margin account,

margin contract, leverage account, or leverage contract; or

(C) an agreement or transaction that is subject to regulation

under Section 4c(b), Commodity Exchange Act (7 U.S.C. Section

6c(b)), and that is commonly known to the commodities trade as a

commodity option.

(2) "Forward contract" means a contract, other than a commodity

contract, with a maturity date more than two days after the date

the contract is entered into, that is for the purchase, sale, or

transfer of a commodity, as defined by Section 1a, Commodity

Exchange Act (7 U.S.C. Section 1a), or any similar good, article,

service, right, or interest that is presently or in the future

becomes the subject of dealing in the forward contract trade or

product or byproduct of the contract. The term includes a

repurchase transaction, reverse repurchase transaction,

consignment, lease, swap, hedge transaction, deposit, loan,

option, allocated transaction, unallocated transaction, or a

combination of these or option on any of them.

(3) "Repurchase agreement" includes a reverse repurchase

agreement and means an agreement, including related terms, that

provides for the transfer of certificates of deposit, eligible

bankers' acceptances, or securities that are direct obligations

of or that are fully guaranteed as to principal and interest by

the United States against the transfer of funds by the transferee

of the certificates of deposit, eligible bankers' acceptances, or

securities with a simultaneous agreement by the transferee to

transfer to the transferor certificates of deposit, eligible

bankers' acceptances, or securities as described in this

subdivision, on demand or at a date certain not later than one

year after the transfers, against the transfer of funds. For the

purposes of this subdivision, the items that may be subject to a

repurchase agreement:

(A) include mortgage-related securities and a mortgage loan and

an interest in a mortgage loan; and

(B) do not include any participation in a commercial mortgage

loan unless the commissioner determines by rule to include the

participation within the meaning of the term.

(4) "Securities contract" means a contract for the purchase,

sale, or loan of a security, including an option for the

repurchase or sale of a security, certificate of deposit, or

group or index of securities or an interest in the group or index

or based on the value of the group or index, an option entered

into on a national securities exchange relating to foreign

currencies, or the guarantee of a settlement of cash or

securities by or to a securities clearing agency. For the

purposes of this subdivision, the term "security" includes a

mortgage loan, a mortgage-related security, and an interest in

any mortgage loan or mortgage-related security.

(5) "Swap agreement" means an agreement, including the terms and

conditions incorporated by reference in an agreement, that is a

rate swap agreement, basis swap, commodity swap, forward rate

agreement, interest rate future, interest rate option, forward

foreign exchange agreement, spot foreign exchange agreement, rate

cap agreement, rate floor agreement, rate collar agreement,

currency swap agreement, cross-currency rate swap agreement,

currency future, or currency option or any other similar

agreement. The term includes any combination agreements

described by this subdivision and an option to enter into any

agreement described by this subdivision.

(d) The definitions under this section apply only to this

chapter unless the context of another law requires otherwise.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(b), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(b), eff. September 1, 2007.

Sec. 443.005. JURISDICTION AND VENUE. (a) A delinquency

proceeding may not be commenced under this chapter by a person

other than the commissioner, and a court does not have

jurisdiction to entertain, hear, or determine any delinquency

proceeding commenced by any other person.

(b) A court of this state does not have jurisdiction, other than

in accordance with this chapter, to entertain, hear, or determine

any complaint praying for:

(1) the liquidation, rehabilitation, seizure, sequestration,

conservation, or receivership of any insurer; or

(2) a stay, injunction, restraining order, or other relief

preliminary, incidental, or relating to proceedings described by

Subdivision (1).

(c) The receivership court, as of the commencement of a

delinquency proceeding under this chapter, has exclusive

jurisdiction of all property of the insurer, wherever located,

including property located outside the territorial limits of the

state. The receivership court has original but not exclusive

jurisdiction of all civil proceedings arising:

(1) under this chapter; or

(2) in or related to delinquency proceedings under this chapter.

(d) In addition to other grounds for jurisdiction provided by

the law of this state, a court having jurisdiction of the subject

matter has jurisdiction over a person served pursuant to Rules 21

and 21a, Texas Rules of Civil Procedure, or other applicable

provisions of law in an action brought by the receiver if the

person served:

(1) is or has been an agent, or other person who, at any time,

has written policies of insurance for or has acted in any manner

on behalf of an insurer against which a delinquency proceeding

has been instituted, in any action resulting from or incident to

such a relationship with the insurer;

(2) is or has been an insurer or reinsurer who, at any time, has

entered into a contract of reinsurance with an insurer against

which a delinquency proceeding has been instituted, or who is an

agent of or for the reinsurer, in any action on or incident to

the reinsurance contract;

(3) is or has been an officer, director, manager, trustee,

organizer, promoter, or other person in a position of comparable

authority or influence over an insurer against which a

delinquency proceeding has been instituted, in any action

resulting from or incident to such a relationship with the

insurer;

(4) at the time of the institution of the delinquency proceeding

against the insurer, is or was holding assets in which the

receiver claims an interest on behalf of the insurer in any

action concerning the assets; or

(5) is obligated to the insurer in any way, in any action on or

incident to the obligation.

(e) If, on motion of any party, the receivership court finds

that any action, as a matter of substantial justice, should be

tried in a forum outside this state, the receivership court may

enter an appropriate order to stay further proceedings on the

action in this state. Except as to claims against the estate,

nothing in this chapter deprives a party of any contractual right

to pursue arbitration. A party in arbitration may bring a claim

or counterclaim against the estate, but the claim or counterclaim

is subject to Section 443.209.

(f) Service must be made upon the person named in the petition

in accordance with Rules 21 and 21a, Texas Rules of Civil

Procedure. In lieu of such service, upon application to the

receivership court, service may be made in any manner the

receivership court directs if it is satisfactorily shown by

affidavit:

(1) in the case of a corporation, that the officers of the

corporation cannot be served because they have departed from the

state or otherwise concealed themselves with intent to avoid

service;

(2) in the case of a Lloyd's plan or reciprocal or

interinsurance exchange, that the individual attorney in fact or

the officers of the corporate attorney in fact cannot be served

because of departure or concealment; or

(3) in the case of an individual, that the person cannot be

served because of the individual's departure or concealment.

(g) An action authorized by this section must be brought in a

district court in Travis County.

(h) At any time after an order is entered pursuant to Section

443.051, 443.101, or 443.151, the commissioner or receiver may

transfer the case to the county of the principal office of the

person proceeded against. In the event of transfer, the court in

which the proceeding was commenced, upon application of the

commissioner or receiver, shall direct its clerk to transmit the

court's file to the clerk of the court to which the case is to be

transferred. The proceeding, after transfer, shall be conducted

in the same manner as if it had been commenced in the court to

which the matter is transferred.

(i) A person may not intervene in any delinquency proceeding in

this state for the purpose of seeking or obtaining payment of any

judgment, lien, or other claim of any kind. The claims procedure

set forth in this chapter constitutes the exclusive means for

obtaining payment of claims from the receivership estate. This

provision is not intended to affect the rights conferred on the

guaranty associations by Section 443.008(l).

(j) The foregoing provisions of this section notwithstanding,

the provisions of this chapter do not confer jurisdiction on the

receivership court to resolve coverage disputes between guaranty

associations and those asserting claims against them resulting

from the initiation of a delinquency proceeding under this

chapter. The determination of any dispute with respect to the

statutory coverage obligations of any guaranty association by a

court or administrative agency or body with jurisdiction in the

guaranty association's state of domicile is binding and

conclusive as to the parties in a delinquency proceeding

initiated in the receivership court, including the policyholders

of the insurer. With respect to a guaranty association's

obligations under a rehabilitation plan, the receivership court

has jurisdiction only if the guaranty association expressly

consents to the jurisdiction of the court.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(c), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(c), eff. September 1, 2007.

Sec. 443.006. EXEMPTION FROM FEES. The receiver may not be

required to pay any filing, recording, transcript, or

authenticating fee to any public officer in this state.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.007. NOTICE, HEARING, AND APPEAL ON MATTERS SUBMITTED

BY RECEIVER FOR RECEIVERSHIP COURT APPROVAL. (a) Upon written

request to the receiver, a person must be placed on the service

list to receive notice of matters filed by the receiver. It is

the responsibility of the person requesting notice to inform the

receiver in writing of any changes in the person's address or to

request that the person's name be deleted from the service list.

The receiver may require that the persons on the service list

provide confirmation that they wish to remain on the service

list. Any person who fails to confirm the person's intent to

remain on the service list may be purged from the service list.

Inclusion on the service list does not confer standing in the

delinquency proceeding to raise, appear, or be heard on any

issue.

(b) Except as otherwise provided by this chapter, notice and

hearing of any matter submitted by the receiver to the

receivership court for approval under this chapter must be

conducted in accordance with Subsections (c)-(g).

(c) The receiver shall file an application explaining the

proposed action and the basis of the proposed action. The

receiver may include any evidence in support of the application.

If the receiver determines that any documents supporting the

application are confidential, the receiver may submit them to the

receivership court under seal for in camera inspection.

(d) The receiver shall provide notice of the application to all

persons on the service list and any other parties as determined

by the receiver. Notice may be provided by first class mail

postage paid, electronic mail, or facsimile transmission, at the

receiver's discretion. For purposes of this section, notice is

deemed to be given on the date that it is deposited with the U.S.

Postmaster or transmitted, as applicable, to the last known

address as shown on the service list.

(e) Any party in interest objecting to the application must file

an objection specifying the grounds for the objection not later

than the 20th day after the date of the notice of the filing of

the application or within another period as the receivership

court may set, and must serve copies on the receiver and any

other persons served with the application within the same period.

An objecting party has the burden of showing why the

receivership court should not authorize the proposed action.

(f) If no objection to the application is timely filed, the

receivership court may enter an order approving the application

without a hearing, or hold a hearing to determine if the

receiver's application should be approved. The receiver may

request that the receivership court enter an order or hold a

hearing on an expedited basis.

(g) If an objection is timely filed, the receivership court may

hold a hearing. If the receivership court approves the

application and, upon a motion by the receiver, determines that

the objection was frivolous or filed merely for delay or for

another improper purpose, the receivership court shall order the

objecting party to pay the receiver's reasonable costs and fees

of defending the action.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.008. INJUNCTIONS AND ORDERS. (a) The receivership

court may issue any order, process, or judgment, including stays,

injunctions, or other orders, as necessary or appropriate to

carry out the provisions of this chapter or an approved

rehabilitation plan.

(b) This chapter may not be construed to limit the ability of

the receiver to apply to a court other than the receivership

court in any jurisdiction to carry out any provision of this

chapter or for the purpose of pursuing claims against any person.

(c) Except as provided by Subsection (e) or as otherwise

provided by this chapter and subject to Subsection (g), the

commencement of a delinquency proceeding under this chapter

operates as a stay, applicable to all persons, of:

(1) the commencement or continuation, including the issuance or

employment of process, of a judicial, administrative, or other

action or proceeding against the insurer, including an

arbitration proceeding, that was or could have been commenced

before the commencement of the delinquency proceeding under this

chapter, or to recover a claim against the insurer that arose

before the commencement of the delinquency proceeding under this

chapter;

(2) the enforcement against the insurer or against property of

the insurer of a judgment obtained before the commencement of the

delinquency proceeding under this chapter;

(3) any act to obtain or retain possession of property of the

insurer or of property from the insurer or to exercise control

over property or records of the insurer;

(4) any act to create, perfect, or enforce any lien against

property of the insurer;

(5) any act to collect, assess, or recover a claim against the

insurer that arose before the commencement of a delinquency

proceeding under this chapter;

(6) the commencement or continuation of an action or proceeding

against a reinsurer of the insurer, by the holder of a claim

against the insurer, seeking reinsurance recoveries that are

contractually due to the insurer; and

(7) except as provided by Subsection (e)(1), the commencement or

continuation of an action or proceeding by a governmental unit to

terminate or revoke an insurance license.

(d) Except as provided in Subsection (e) or as otherwise

provided by this chapter, the commencement of a delinquency

proceeding under this chapter operates as a stay, applicable to

all persons, of any judicial, administrative, or other action or

proceeding, including the enforcement of any judgment, against

any insured that was or could have been commenced before the

commencement of the delinquency proceeding under this chapter, or

to recover a claim against the insured that arose before or after

the commencement of the delinquency proceeding under this chapter

and for which the insurer is or may be liable under a policy of

insurance or is obligated to defend a party. The stay provided

by this subsection terminates 90 days after the date of

appointment of the receiver, unless, for good cause shown, the

stay is extended by order of the receivership court after notice

to any affected parties and any hearing the receivership court

determines is appropriate.

(e) Notwithstanding Subsection (c), the commencement of a

delinquency proceeding under this chapter does not operate as a

stay of:

(1) regulatory actions not described by Subsection (c)(7) that

are taken by the commissioners of nondomiciliary states,

including the suspension of licenses;

(2) criminal proceedings;

(3) any act to perfect or to maintain or continue the perfection

of an interest in property to the extent that the act is

accomplished within any relation back period under applicable

law;

(4) set off as permitted by Section 443.209;

(5) pursuit and enforcement of nonmonetary governmental claims,

judgments, and proceedings;

(6) presentment of a negotiable instrument and the giving of

notice and protesting dishonor of the instrument;

(7) enforcement of rights against single beneficiary trusts

established pursuant to and in compliance with laws relating to

credit for reinsurance;

(8) termination, liquidation, and netting of obligations under

qualified financial contracts as provided for in Section 443.261;

(9) discharge by a guaranty association of statutory

responsibilities under any law governing guaranty associations;

or

(10) any of the following actions:

(A) an audit by a governmental unit to determine tax liability;

(B) the issuance to the insurer by a governmental unit of a

notice of tax deficiency;

(C) a demand for tax returns; or

(D) the making of an assessment for any tax and issuance of a

notice and demand for payment of the assessment.

(f) Except as provided by Subsection (h):

(1) the stay of an act against property of the insurer under

Subsection (c) continues until the property is no longer property

of the receivership estate; and

(2) the stay of any other act under Subsection (c) continues

until the earlier of the time the delinquency proceeding is

closed or dismissed.

(g) Notwithstanding the provisions of Subsection (c), claims

against the insurer that arose before the commencement of the

delinquency proceeding under this chapter may be asserted as a

counterclaim in any judicial, administrative, or other action or

proceeding initiated by or on behalf of the receiver against the

holder of the claims.

(h) On request of a party in interest and after notice and any

hearing the receivership court determines is appropriate, the

receivership court may grant relief from the stay of Subsection

(c) or (d), such as by terminating, annulling, modifying, or

conditioning the stay:

(1) for cause as described by Subsection (i); or

(2) with respect to a stay of an act against property under

Subsection (c) if:

(A) the insurer does not have equity in the property; and

(B) the property is not necessary to an effective rehabilitation

plan.

(i) For purposes of Subsection (h), "cause" includes the

receiver canceling a policy, surety bond, or surety undertaking

if the creditor is entitled, by contract or by law, to require

the insured or the principal to have a policy, surety bond, or

surety undertaking and the insured or the principal fails to

obtain a replacement policy, surety bond, or surety undertaking

not later than the later of:

(1) the 30th day after the date the receiver cancels the policy,

surety bond, or surety undertaking; or

(2) the time permitted by contract or law.

(j) In any hearing under Subsection (h), the party seeking

relief from the stay has the burden of proof on each issue, which

must be established by clear and convincing evidence.

(k) The estate of an insurer that is injured by any wilful

violation of a stay provided by this section is entitled to

actual damages, including costs and attorney's fees. In

appropriate circumstances, the receivership court may impose

additional sanctions.

(l) Any guaranty association or its designated representative

may intervene as a party as a matter of right or otherwise appear

and participate in any court proceeding concerning a delinquency

proceeding if the association is or may become liable to act as a

result of the rehabilitation or liquidation of the insurer.

Exercise by any guaranty association or its designated

representative of the right to intervene conferred under this

subsection does not constitute grounds to establish general

personal jurisdiction by the courts of this state. The

intervening guaranty association or its designated representative

are subject to the receivership court's jurisdiction for the

limited purpose for which it intervenes.

(m) Notwithstanding any other provision of law, bond may not be

required of the commissioner or receiver in relation to any stay

or injunction under this section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(d), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(d), eff. September 1, 2007.

Sec. 443.009. STATUTES OF LIMITATIONS. (a) If applicable law,

an order, or an agreement fixes a period within which the insurer

may commence an action, and this period has not expired before

the date of the filing of the initial petition in a delinquency

proceeding, the receiver may commence an action only before the

later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in a delinquency proceeding; or

(2) four years after the later of the date of entry of an order

for either rehabilitation or liquidation.

(b) Except as provided by Subsection (a), if applicable law, an

order, or an agreement fixes a period within which the insurer

may file any pleading, demand, notice, or proof of claim or loss,

cure a default in a case or proceeding, or perform any other

similar act, and the period has not expired before the date of

the filing of the petition initiating formal delinquency

proceedings, the receiver may file, cure, or perform, as the case

may be, only before the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 60 days after the later of the date of entry of an order for

either rehabilitation or liquidation.

(c) If applicable law, an order, or an agreement fixes a period

for commencing or continuing a civil action in a court other than

the receivership court on a claim against the insurer, and the

period has not expired before the date of the initial filing of

the petition in a delinquency proceeding, then the period does

not expire until the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 30 days after termination or expiration of the stay under

Section 443.008 with respect to the claim.

(d) If the otherwise applicable limitations period has not

expired prior to the initial filing of the petition commencing a

delinquency proceeding, any other action or proceeding filed by a

receiver may be commenced at any time within four years after the

date upon which the cause of action accrues or four years after

the date on which the receiver is appointed, whichever is later.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(e), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(e), eff. September 1, 2007.

Sec. 443.010. COOPERATION OF OFFICERS, OWNERS, AND EMPLOYEES.

(a) Any present or former officer, manager, director, trustee,

owner, employee, or agent of any insurer, or any other persons

with authority over or in charge of any segment of the insurer's

affairs, shall cooperate with the commissioner or receiver in any

proceeding under this chapter or any investigation preliminary to

the proceeding. For purposes of this section:

(1) "person" includes any person who exercises control directly

or indirectly over activities of the insurer through any holding

company or other affiliate of the insurer; and

(2) "cooperate" includes:

(A) replying promptly in writing to any inquiry from the

commissioner or receiver requesting the reply; and

(B) promptly making available to the commissioner or receiver

any books, accounts, documents, or other records or information

or property of or pertaining to the insurer and in the person's

possession, custody, or control.

(b) A person may not obstruct or interfere with the commissioner

or receiver in the conduct of any delinquency proceeding or any

preliminary or incidental investigation.

(c) This section may not be construed to abridge otherwise

existing legal rights, including the right to resist a petition

for liquidation or other delinquency proceedings, or other

orders.

(d) Any person described by Subsection (a) who fails to

cooperate with the commissioner or receiver, or any person who

obstructs or interferes with the commissioner or receiver in the

conduct of any delinquency proceeding or any preliminary or

incidental investigation, or who violates any order validly

issued under this chapter:

(1) commits an offense; and

(2) is subject to the imposition by the commissioner of an

administrative penalty not to exceed $10,000 and subject to the

revocation or suspension of any licenses issued by the

commissioner in accordance with Chapters 82 and 84.

(e) An offense under Subsection (d) is punishable by a fine not

exceeding $10,000 or imprisonment for not more than one year, or

both fine and imprisonment.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.011. ACTIONS BY AND AGAINST RECEIVER. (a) An

allegation by the receiver of improper or fraudulent conduct

against any person may not be the basis of a defense to the

enforcement of a contractual obligation owed to the insurer by a

third party, unless the conduct is found to have been materially

and substantially related to the contractual obligation for which

enforcement is sought.

(b) A prior wrongful or negligent action of any present or

former officer, manager, director, trustee, owner, employee, or

agent of the insurer may not be asserted as a defense to a claim

by the receiver under a theory of estoppel, comparative fault,

intervening cause, proximate cause, reliance, mitigation of

damages, or otherwise, except that the affirmative defense of

fraud in the inducement may be asserted against the receiver in a

claim based on a contract, and a principal under a surety bond or

a surety undertaking is entitled to credit against any

reimbursement obligation to the receiver for the value of any

property pledged to secure the reimbursement obligation to the

extent that the receiver has possession or control of the

property or that the insurer or its agents commingled or

otherwise misappropriated the property. Evidence of fraud in the

inducement is admissible only if the evidence is contained in the

records of the insurer.

(c) An action or inaction by the department or the insurance

regulatory authorities in any state may not be asserted as a

defense to a claim by the receiver.

(d) Except as provided by Subsection (e), a judgment or order

entered against an insured or the insurer in contravention of any

stay or injunction under this chapter, or at any time by default

or collusion, may not be considered as evidence of liability or

of the amount of damages in adjudicating claims filed in the

estate arising out of the subject matter of the judgment or

order.

(e) Subsection (d) does not apply to guaranty associations'

claims for amounts paid on settlements and judgments in pursuit

of their statutory obligations.

(f) The receiver may not be deemed a governmental entity for the

purposes of any state law awarding fees to a litigant who

prevails against a governmental entity.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.012. UNRECORDED OBLIGATIONS AND DEFENSES OF AFFILIATES.

(a) In any proceeding or claim by the receiver, an affiliate,

controlled or controlling person, or present or former officer,

manager, director, trustee, or shareholder of the insurer may not

assert any defense, unless evidence of the defense was recorded

in the books and records of the insurer at or about the time the

events giving rise to the defense occurred and, if required by

statutory accounting practices and procedures, was timely

reported on the insurer's official financial statements filed

with the department.

(b) An affiliate, controlled or controlling person, or present

or former officer, manager, director, trustee, or shareholder of

the insurer may not assert any claim, unless the obligations were

recorded in the books and records of the insurer at or about the

time the obligations were incurred and, if required by statutory

accounting practices and procedures, were timely reported on the

insurer's official financial statements filed with the

department.

(c) Claims by the receiver against any affiliate, controlled or

controlling person, or present or former officer, manager,

director, trustee, or shareholder of the insurer based on

unrecorded or unreported transactions are not barred by this

section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.013. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. (a)

The receiver may assume or reject any executory contract or

unexpired lease of the insurer.

(b) Neither the filing of a petition commencing delinquency

proceedings under this chapter nor the entry of an order for a

delinquency proceeding constitutes a breach or anticipatory

breach of any contract or lease of the insurer.

(c) If there has been a default in an executory contract or

unexpired lease of the insurer, the receiver may not assume the

contract or lease unless, at the time of the assumption of the

contract or lease, the receiver:

(1) cures or provides adequate assurance that the receiver will

promptly cure the default; and

(2) provides adequate assurance of future performance under the

contract or lease.

(d) Subsection (c) does not apply to a default that is a breach

of a provision relating to:

(1) the insolvency or financial condition of the insurer at any

time before the closing of the delinquency proceeding;

(2) the appointment of or taking possession by a receiver in a

case under this chapter or a custodian before the commencement of

the delinquency proceeding; or

(3) the satisfaction of any penalty rate or provision relating

to a default arising from any failure of the insurer to perform

nonmonetary obligations under the executory contract or unexpired

lease.

(e) A claim arising from the rejection, under this section or a

plan of rehabilitation, of an executory contract or unexpired

lease of the insurer that has not been assumed shall be

determined, treated, and classified as if the claim had arisen

before the date of the filing of a successful petition commencing

the delinquency proceeding.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.0135. CONTRACTS FOR SPECIAL DEPUTIES. (a) The

receiver shall use a competitive bidding process in the selection

of any special deputies appointed under Section 443.102 or

443.154. The process must include procedures to promote the

participation of historically underutilized businesses that have

been certified by the comptroller under Section 2161.061,

Government Code.

(b) A proposal submitted in connection with a bid solicitation

under Subsection (a) must describe the efforts that have been

made to include historically underutilized businesses as

subcontractors and the plan for using the historically

underutilized businesses in the administration of the

receivership estate. A special deputy appointed under Section

443.102 or 443.154 shall make a good faith effort to implement

the plan and shall report to the receiver the special deputy's

efforts to identify and subcontract with historically

underutilized businesses.

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

995, Sec. 1, eff. September 1, 2005.

Amended by:

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

730, Sec. 3B.004(f), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.0135

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(f), eff. September 1, 2007.

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

937, Sec. 1.98, eff. September 1, 2007.

Sec. 443.014. IMMUNITY AND INDEMNIFICATION OF RECEIVER AND

ASSISTANTS. (a) For the purposes of this section, the persons

entitled to immunity and indemnification and those entitled to

immunity only, as applicable, are:

(1) all present and former receivers responsible for the conduct

of a delinquency proceeding under this chapter;

(2) all of the receiver's present and former assistants,

including:

(A) all present and former special deputies and assistant

special deputies engaged by contract or otherwise;

(B) all persons whom the receiver, special deputies, or

assistant special deputies have employed to assist in a

delinquency proceeding under this chapter; and

(C) any state employees acting with respect to a delinquency

proceeding under this chapter; and

(3) all of the receiver's present and former contractors,

including all persons with whom the receiver, special deputies,

or assistant special deputies have contracted to assist in a

delinquency proceeding under this chapter, including attorneys,

accountants, auditors, actuaries, investment bankers, financial

advisors, and any other professionals or firms who are retained

or contracted with by the receiver as independent contractors and

all employees of the contractors.

(b) The receiver, the receiver's assistants, and the receiver's

contractors have immunity under this chapter, as described by

Subsections (c) and (d).

(c) The receiver, the receiver's assistants, and the receiver's

contractors are immune from suit and liability, both personally

and in their representative capacities, for any claim for damage

to or loss of property or personal injury or other civil

liability caused by or resulting from any alleged act, error, or

omission of the receiver or any assistant or contractor that

arises out of or by reason of their duties or employment or is

taken at the direction of the receivership court, providing that

the alleged act, error, or omission is performed in good faith.

(d) Any immunity granted by this section is in addition to any

immunity granted by other law.

(e) The receiver and the receiver's assistants are entitled to

indemnification under this chapter, as described by Subsections

(f)-(l).

(f) If any legal action is commenced against the receiver or any

assistant, whether against the receiver or assistant personally

or in their official capacity, alleging property damage, property

loss, personal injury, or other civil liability caused by or

resulting from any alleged act, error, or omission of the

receiver or any assistant arising out of or by reason of their

duties or employment, the receiver and any assistant are

indemnified from the assets of the insurer for all expenses,

attorney's fees, judgments, settlements, decrees, or amounts due

and owing or paid in satisfaction of or incurred in the defense

of the legal action, unless it is determined upon a final

adjudication on the merits that the alleged act, error, or

omission of the receiver or assistant giving rise to the claim:

(1) did not arise out of or by reason of their duties or

employment; or

(2) was caused by intentional or wilful and wanton misconduct.

(g) Attorney's fees and any and all related expenses incurred in

defending a legal action for which immunity or indemnity is

available under this section must be paid from the assets of the

insurer, as the fees and expenses are incurred, and in advance of

the final disposition of the legal action upon receipt of an

agreement by or on behalf of the receiver or assistant to repay

the attorney's fees and expenses, if it is ultimately determined

upon a final adjudication on the merits that the receiver or

assistant is not entitled to immunity or indemnity under this

section.

(h) Any indemnification for expense payments, judgments,

settlements, decrees, attorney's fees, surety bond premiums, or

other amounts paid or to be paid from the insurer's assets

pursuant to this section are an administrative expense of the

insurer.

(i) In the event of any actual or threatened litigation against

a receiver or any assistant for whom immunity or indemnity may be

available under this section, a reasonable amount of funds, which

in the judgment of the receiver may be needed to provide immunity

or indemnity, must be segregated and reserved from the assets of

the insurer as security for the payment of indemnity until:

(1) all applicable statutes of limitation have run;

(2) all actual or threatened actions against the receiver or any

assistant have been completely and finally resolved; and

(3) all obligations under this section have been satisfied.

(j) Instead of segregating and reserving funds under Subsection

(i), the receiver may, in the receiver's discretion, obtain a

surety bond or make other arrangements that will enable the

receiver to secure fully the payment of all obligations under

this section.

(k) If any legal action against an assistant for whom indemnity

may be available under this section is settled prior to final

adjudication on the merits, the receiver must pay the settlement

amount on behalf of the assistant, or indemnify the assistant for

the settlement amount, unless the receiver determines that the

claim:

(1) did not arise out of or by reason of the assistant's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the assistant.

(l) In any legal action in which a claim is asserted against the

receiver, that portion of any settlement relating to the alleged

act, error, or omission of the receiver is subject to the

approval of the receivership court. The receivership court may

not approve that portion of the settlement if it determines that

the claim:

(1) did not arise out of or by reason of the receiver's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the receiver.

(m) Nothing contained or implied in this section may operate or

be construed or applied to deprive the receiver, the receiver's

assistants, or receiver's contractors of any immunity, indemnity,

benefits of law, rights, or defense otherwise available.

(n) The immunity and indemnification provided to the receiver's

assistants and the immunity provided to the receiver's

contractors under this section do not apply to any action by the

receiver against that person.

(o) Subsection (b) applies to any suit based in whole or in part

on any alleged act, error, or omission that takes place on or

after September 1, 2005.

(p) Subsections (e)-(l) apply to any suit that is pending on or

filed after September 1, 2005, without regard to when the alleged

act, error, or omission took place.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.015. APPROVAL AND PAYMENT OF EXPENSES. (a) The

receiver may pay any expenses under contracts, leases, employment

agreements, or other arrangements entered into by the insurer

prior to receivership, as the receiver deems necessary for the

purposes of this chapter. The receiver is not required to pay

any expenses that the receiver determines are not necessary, and

may reject any contract pursuant to Section 443.013.

State Codes and Statutes

Statutes > Texas > Insurance-code > Title-4-regulation-of-solvency > Chapter-443-insurer-receivership-act

INSURANCE CODE

TITLE 4. REGULATION OF SOLVENCY

SUBTITLE C. DELINQUENT INSURERS

CHAPTER 443. INSURER RECEIVERSHIP ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 443.001. CONSTRUCTION AND PURPOSE. (a) This chapter may

be cited as the Insurer Receivership Act.

(b) This chapter may not be interpreted to limit the powers

granted the commissioner under other provisions of law.

(c) This chapter shall be liberally construed to support the

purpose stated in Subsection (e).

(d) All powers and authority of a receiver under this chapter

are cumulative and are in addition to all powers and authority

that are available to a receiver under law other than this

chapter.

(e) The purpose of this chapter is to protect the interests of

insureds, claimants, creditors, and the public generally,

through:

(1) early detection of any potentially hazardous condition in an

insurer and prompt application of appropriate corrective

measures;

(2) improved methods for conserving and rehabilitating insurers;

(3) enhanced efficiency and economy of liquidation, through

clarification of the law, to minimize legal uncertainty and

litigation;

(4) apportionment of any unavoidable loss in accordance with the

statutory priorities set out in this chapter;

(5) lessening the problems of interstate receivership by:

(A) facilitating cooperation between states in delinquency

proceedings; and

(B) extending the scope of personal jurisdiction over debtors of

the insurer located outside this state;

(6) regulation of the business of insurance by the impact of the

law relating to delinquency procedures and related substantive

rules; and

(7) providing for a comprehensive scheme for the receivership of

insurers and those subject to this chapter as part of the

regulation of the business of insurance in this state because

proceedings in cases of insurer insolvency and delinquency are

deemed an integral aspect of the business of insurance and are of

vital public interest and concern.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.002. CONFLICTS OF LAW. This chapter and the state law

governing insurance guaranty associations constitute this state's

insurer receivership laws and shall be construed together in a

manner that is consistent. In the event of a conflict between the

insurer receivership laws and the provisions of any other law,

the insurer receivership laws prevail.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.003. COVERED PERSONS. The provisions of this chapter

apply to all:

(1) insurers who are doing or have done an insurance business in

this state and against whom claims arising from that business may

exist now or in the future and to all persons subject to

examination by the commissioner;

(2) insurers who purport to do an insurance business in this

state;

(3) insurers who have insureds resident in this state;

(4) other persons organized or doing insurance business, or in

the process of organizing with the intent to do insurance

business in this state;

(5) nonprofit health corporations and all fraternal benefit

societies subject to Chapters 844 and 885, respectively;

(6) title insurance companies subject to Title 11;

(7) health maintenance organizations subject to Chapter 843; and

(8) surety and trust companies subject to Chapter 7, general

casualty companies subject to Chapter 861, statewide mutual

assessment companies subject to Chapter 881, mutual insurance

companies subject to Chapter 882 or 883, local mutual aid

associations subject to Chapter 886, burial associations subject

to Chapter 888, farm mutual insurance companies subject to

Chapter 911, county mutual insurance companies subject to Chapter

912, Lloyd's plans subject to Chapter 941, reciprocal or

interinsurance exchanges subject to Chapter 942, and fidelity,

guaranty, and surety companies.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.004. DEFINITIONS. (a) For the purposes of this

chapter:

(1) "Affiliate," "control," and "subsidiary" have the meanings

assigned by Chapter 823.

(2) "Alien insurer" means an insurer incorporated or organized

under the laws of a jurisdiction that is not a state.

(3) "Creditor" or "claimant" means a person having any claim

against an insurer, whether the claim is matured or not,

liquidated or unliquidated, secured or unsecured, absolute,

fixed, or contingent.

(4) "Delinquency proceeding" means any proceeding instituted

against an insurer for the purpose of liquidating,

rehabilitating, or conserving the insurer, and any proceeding

under Section 443.051.

(5) "Doing business," including "doing insurance business" and

the "business of insurance," includes any of the following acts,

whether effected by mail, electronic means, or otherwise:

(A) the issuance or delivery of contracts of insurance, either

to persons resident or covering a risk located in this state;

(B) the solicitation of applications for contracts described by

Paragraph (A) or other negotiations preliminary to the execution

of the contracts;

(C) the collection of premiums, membership fees, assessments, or

other consideration for contracts described by Paragraph (A);

(D) the transaction of matters subsequent to the execution of

contracts described by Paragraph (A) and arising out of those

contracts; or

(E) operating as an insurer under a certificate of authority

issued by the department.

(6) "Domiciliary state" means the state in which an insurer is

incorporated or organized or, in the case of an alien insurer,

its state of entry.

(7) "Foreign insurer" means an insurer domiciled in another

state.

(8) "Formal delinquency proceeding" means any rehabilitation or

liquidation proceeding.

(9) "General assets" includes:

(A) all property of the estate that is not:

(i) subject to a secured claim or a valid and existing express

trust for the security or benefit of specified persons or classes

of persons; or

(ii) required by the insurance laws of this state or any other

state to be held for the benefit of specified persons or classes

of persons; and

(B) all property of the estate and the proceeds of that property

in excess of the amount necessary to discharge any secured claims

described by Paragraph (A).

(10) "Good faith" means honesty in fact and intention, and for

the purposes of Subchapter F also requires the absence of:

(A) information that would lead a reasonable person in the same

position to know that the insurer is financially impaired or

insolvent; and

(B) knowledge regarding the imminence or pendency of any

delinquency proceeding against the insurer.

(11) "Guaranty association" means any mechanism mandated by

Chapter 462, 463, or 2602 or other laws of this state or a

similar mechanism in another state that is created for the

payment of claims or continuation of policy obligations of

financially impaired or insolvent insurers.

(12) "Impaired" means that an insurer does not have admitted

assets at least equal to all its liabilities together with the

minimum surplus required to be maintained under this code.

(13) "Insolvency" or "insolvent" means an insurer:

(A) is unable to pay its obligations when they are due;

(B) does not have admitted assets at least equal to all its

liabilities; or

(C) has a total adjusted capital that is less than that required

under:

(i) Chapter 822, 841, or 843, as applicable; or

(ii) applicable rules or guidelines adopted by the commissioner

under Section 822.210, 841.205, or 843.404.

(14) "Insurer" means any person that has done, purports to do,

is doing, or is authorized to do the business of insurance in

this state, and is or has been subject to the authority of or to

liquidation, rehabilitation, reorganization, supervision, or

conservation by any insurance commissioner. For purposes of this

chapter, any other persons included under Section 443.003 are

insurers.

(15) "Netting agreement" means a contract or agreement,

including terms and conditions incorporated by reference in a

contract or agreement, and a master agreement (which master

agreement, together with all schedules, confirmations,

definitions, and addenda to the agreement and transactions under

the agreement, schedules, confirmations, definitions, or addenda,

are to be treated as one netting agreement) that documents one or

more transactions between the parties to the contract or

agreement for or involving one or more qualified financial

contracts and that, among the parties to the netting agreement,

provides for the netting or liquidation of qualified financial

contracts, present or future payment obligations, or payment

entitlements under the contract or agreement, including

liquidation or close-out values relating to the obligations or

entitlements.

(16) "New value" means money, money's worth in goods, services,

or new credit, or release by a transferee of property previously

transferred to the transferee in a transaction that is neither

void nor voidable by the insurer or the receiver under any

applicable law, including proceeds of the property. The term

does not include an obligation substituted for an existing

obligation.

(17) "Party in interest" means the commissioner, a 10 percent or

greater equity security holder in the insolvent insurer, any

affected guaranty association, any nondomiciliary commissioner

for a jurisdiction in which the insurer has outstanding claims

liabilities, and any of the following parties that have filed a

request for inclusion on the service list under Section 443.007:

(A) an insurer that ceded to or assumed business from the

insolvent insurer; and

(B) an equity shareholder, policyholder, third-party claimant,

creditor, and any other person, including any indenture trustee,

with a financial or regulatory interest in the receivership

proceeding.

(18) "Person" means individual, aggregation of individuals,

partnership, corporation, or other entity.

(19) "Policy" means a written contract of insurance, written

agreement for or effecting insurance, or the certificate for or

effecting insurance, by whatever name. The term includes all

clauses, riders, endorsements, and papers that are a part of the

contract, agreement, or certificate. The term does not include a

contract of reinsurance.

(20) "Property of the insurer" or "property of the estate"

includes:

(A) all right, title, and interest of the insurer in property,

whether legal or equitable, tangible or intangible, choate or

inchoate, and includes choses in action, contract rights, and any

other interest recognized under the laws of this state;

(B) entitlements that:

(i) existed prior to the entry of an order of rehabilitation or

liquidation; and

(ii) may arise by operation of the provisions of this chapter or

other provisions of law allowing the receiver to avoid prior

transfers or assert other rights; and

(C) all records and data that are otherwise the property of the

insurer, in whatever form maintained, within the possession,

custody, or control of a managing general agent, third-party

administrator, management company, data processing company,

accountant, attorney, affiliate, or other person, including:

(i) claims and claim files;

(ii) policyholder lists;

(iii) application files;

(iv) litigation files;

(v) premium records;

(vi) rate books and underwriting manuals;

(vii) personnel records; and

(viii) financial records or similar records.

(21) "Qualified financial contract" means a commodity contract,

forward contract, repurchase agreement, securities contract, swap

agreement, and any similar agreement that the commissioner

determines by rule to be a qualified financial contract for the

purposes of this chapter.

(22) "Receiver" means liquidator, rehabilitator, or ancillary

conservator, as the context requires.

(23) "Receivership" means any liquidation, rehabilitation, or

ancillary conservation, as the context requires.

(24) "Receivership court" refers to the court in which a

delinquency proceeding is pending, unless the context requires

otherwise.

(25) "Reinsurance" means transactions or contracts by which an

assuming insurer agrees to indemnify a ceding insurer against

all, or a part, of any loss that the ceding insurer might sustain

under the policy or policies that it has issued or will issue.

(26) "Secured claim" means any claim secured by an asset that is

not a general asset. The term includes the right to set off as

provided in Section 443.209. The term does not include a claim

arising from a constructive or resulting trust, a special deposit

claim, or a claim based on mere possession.

(27) "Special deposit" means a deposit established pursuant to

statute for the security or benefit of a limited class or limited

classes of persons.

(28) "Special deposit claim" means any claim secured by a

special deposit. The term does not include any claim secured by

the general assets of the insurer.

(29) "State" means any state, district, or territory of the

United States.

(30) "Transfer" includes the sale and every other and different

mode, direct or indirect, of disposing of or of parting with

property or with an interest in property, including a setoff, or

with the possession of property or of fixing a lien upon property

or upon an interest in property, absolutely or conditionally,

voluntarily or involuntarily, by or without judicial proceedings.

The retention of a security title in property delivered to an

insurer is deemed a transfer suffered by the insurer.

(31) "Unauthorized insurer" means an insurer doing the business

of insurance in this state that has not received from this state

a certificate of authority or some other type of authority that

allows for doing the business of insurance in this state.

(b) For purposes of this chapter, "admitted assets" and

"liabilities" have the meanings assigned by the department in

rules relating to risk-based capital.

(c) For purposes of Subsection (a)(21):

(1) "Commodity contract" means:

(A) a contract for the purchase or sale of a commodity for

future delivery on or subject to the rules of a board of trade

designated as a contract market by the Commodity Futures Trading

Commission under the Commodity Exchange Act (7 U.S.C. Section 1

et seq.) or a board of trade outside the United States;

(B) an agreement that is subject to regulation under Section 19,

Commodity Exchange Act (7 U.S.C. Section 23), and that is

commonly known to the commodities trade as a margin account,

margin contract, leverage account, or leverage contract; or

(C) an agreement or transaction that is subject to regulation

under Section 4c(b), Commodity Exchange Act (7 U.S.C. Section

6c(b)), and that is commonly known to the commodities trade as a

commodity option.

(2) "Forward contract" means a contract, other than a commodity

contract, with a maturity date more than two days after the date

the contract is entered into, that is for the purchase, sale, or

transfer of a commodity, as defined by Section 1a, Commodity

Exchange Act (7 U.S.C. Section 1a), or any similar good, article,

service, right, or interest that is presently or in the future

becomes the subject of dealing in the forward contract trade or

product or byproduct of the contract. The term includes a

repurchase transaction, reverse repurchase transaction,

consignment, lease, swap, hedge transaction, deposit, loan,

option, allocated transaction, unallocated transaction, or a

combination of these or option on any of them.

(3) "Repurchase agreement" includes a reverse repurchase

agreement and means an agreement, including related terms, that

provides for the transfer of certificates of deposit, eligible

bankers' acceptances, or securities that are direct obligations

of or that are fully guaranteed as to principal and interest by

the United States against the transfer of funds by the transferee

of the certificates of deposit, eligible bankers' acceptances, or

securities with a simultaneous agreement by the transferee to

transfer to the transferor certificates of deposit, eligible

bankers' acceptances, or securities as described in this

subdivision, on demand or at a date certain not later than one

year after the transfers, against the transfer of funds. For the

purposes of this subdivision, the items that may be subject to a

repurchase agreement:

(A) include mortgage-related securities and a mortgage loan and

an interest in a mortgage loan; and

(B) do not include any participation in a commercial mortgage

loan unless the commissioner determines by rule to include the

participation within the meaning of the term.

(4) "Securities contract" means a contract for the purchase,

sale, or loan of a security, including an option for the

repurchase or sale of a security, certificate of deposit, or

group or index of securities or an interest in the group or index

or based on the value of the group or index, an option entered

into on a national securities exchange relating to foreign

currencies, or the guarantee of a settlement of cash or

securities by or to a securities clearing agency. For the

purposes of this subdivision, the term "security" includes a

mortgage loan, a mortgage-related security, and an interest in

any mortgage loan or mortgage-related security.

(5) "Swap agreement" means an agreement, including the terms and

conditions incorporated by reference in an agreement, that is a

rate swap agreement, basis swap, commodity swap, forward rate

agreement, interest rate future, interest rate option, forward

foreign exchange agreement, spot foreign exchange agreement, rate

cap agreement, rate floor agreement, rate collar agreement,

currency swap agreement, cross-currency rate swap agreement,

currency future, or currency option or any other similar

agreement. The term includes any combination agreements

described by this subdivision and an option to enter into any

agreement described by this subdivision.

(d) The definitions under this section apply only to this

chapter unless the context of another law requires otherwise.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(b), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(b), eff. September 1, 2007.

Sec. 443.005. JURISDICTION AND VENUE. (a) A delinquency

proceeding may not be commenced under this chapter by a person

other than the commissioner, and a court does not have

jurisdiction to entertain, hear, or determine any delinquency

proceeding commenced by any other person.

(b) A court of this state does not have jurisdiction, other than

in accordance with this chapter, to entertain, hear, or determine

any complaint praying for:

(1) the liquidation, rehabilitation, seizure, sequestration,

conservation, or receivership of any insurer; or

(2) a stay, injunction, restraining order, or other relief

preliminary, incidental, or relating to proceedings described by

Subdivision (1).

(c) The receivership court, as of the commencement of a

delinquency proceeding under this chapter, has exclusive

jurisdiction of all property of the insurer, wherever located,

including property located outside the territorial limits of the

state. The receivership court has original but not exclusive

jurisdiction of all civil proceedings arising:

(1) under this chapter; or

(2) in or related to delinquency proceedings under this chapter.

(d) In addition to other grounds for jurisdiction provided by

the law of this state, a court having jurisdiction of the subject

matter has jurisdiction over a person served pursuant to Rules 21

and 21a, Texas Rules of Civil Procedure, or other applicable

provisions of law in an action brought by the receiver if the

person served:

(1) is or has been an agent, or other person who, at any time,

has written policies of insurance for or has acted in any manner

on behalf of an insurer against which a delinquency proceeding

has been instituted, in any action resulting from or incident to

such a relationship with the insurer;

(2) is or has been an insurer or reinsurer who, at any time, has

entered into a contract of reinsurance with an insurer against

which a delinquency proceeding has been instituted, or who is an

agent of or for the reinsurer, in any action on or incident to

the reinsurance contract;

(3) is or has been an officer, director, manager, trustee,

organizer, promoter, or other person in a position of comparable

authority or influence over an insurer against which a

delinquency proceeding has been instituted, in any action

resulting from or incident to such a relationship with the

insurer;

(4) at the time of the institution of the delinquency proceeding

against the insurer, is or was holding assets in which the

receiver claims an interest on behalf of the insurer in any

action concerning the assets; or

(5) is obligated to the insurer in any way, in any action on or

incident to the obligation.

(e) If, on motion of any party, the receivership court finds

that any action, as a matter of substantial justice, should be

tried in a forum outside this state, the receivership court may

enter an appropriate order to stay further proceedings on the

action in this state. Except as to claims against the estate,

nothing in this chapter deprives a party of any contractual right

to pursue arbitration. A party in arbitration may bring a claim

or counterclaim against the estate, but the claim or counterclaim

is subject to Section 443.209.

(f) Service must be made upon the person named in the petition

in accordance with Rules 21 and 21a, Texas Rules of Civil

Procedure. In lieu of such service, upon application to the

receivership court, service may be made in any manner the

receivership court directs if it is satisfactorily shown by

affidavit:

(1) in the case of a corporation, that the officers of the

corporation cannot be served because they have departed from the

state or otherwise concealed themselves with intent to avoid

service;

(2) in the case of a Lloyd's plan or reciprocal or

interinsurance exchange, that the individual attorney in fact or

the officers of the corporate attorney in fact cannot be served

because of departure or concealment; or

(3) in the case of an individual, that the person cannot be

served because of the individual's departure or concealment.

(g) An action authorized by this section must be brought in a

district court in Travis County.

(h) At any time after an order is entered pursuant to Section

443.051, 443.101, or 443.151, the commissioner or receiver may

transfer the case to the county of the principal office of the

person proceeded against. In the event of transfer, the court in

which the proceeding was commenced, upon application of the

commissioner or receiver, shall direct its clerk to transmit the

court's file to the clerk of the court to which the case is to be

transferred. The proceeding, after transfer, shall be conducted

in the same manner as if it had been commenced in the court to

which the matter is transferred.

(i) A person may not intervene in any delinquency proceeding in

this state for the purpose of seeking or obtaining payment of any

judgment, lien, or other claim of any kind. The claims procedure

set forth in this chapter constitutes the exclusive means for

obtaining payment of claims from the receivership estate. This

provision is not intended to affect the rights conferred on the

guaranty associations by Section 443.008(l).

(j) The foregoing provisions of this section notwithstanding,

the provisions of this chapter do not confer jurisdiction on the

receivership court to resolve coverage disputes between guaranty

associations and those asserting claims against them resulting

from the initiation of a delinquency proceeding under this

chapter. The determination of any dispute with respect to the

statutory coverage obligations of any guaranty association by a

court or administrative agency or body with jurisdiction in the

guaranty association's state of domicile is binding and

conclusive as to the parties in a delinquency proceeding

initiated in the receivership court, including the policyholders

of the insurer. With respect to a guaranty association's

obligations under a rehabilitation plan, the receivership court

has jurisdiction only if the guaranty association expressly

consents to the jurisdiction of the court.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(c), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(c), eff. September 1, 2007.

Sec. 443.006. EXEMPTION FROM FEES. The receiver may not be

required to pay any filing, recording, transcript, or

authenticating fee to any public officer in this state.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.007. NOTICE, HEARING, AND APPEAL ON MATTERS SUBMITTED

BY RECEIVER FOR RECEIVERSHIP COURT APPROVAL. (a) Upon written

request to the receiver, a person must be placed on the service

list to receive notice of matters filed by the receiver. It is

the responsibility of the person requesting notice to inform the

receiver in writing of any changes in the person's address or to

request that the person's name be deleted from the service list.

The receiver may require that the persons on the service list

provide confirmation that they wish to remain on the service

list. Any person who fails to confirm the person's intent to

remain on the service list may be purged from the service list.

Inclusion on the service list does not confer standing in the

delinquency proceeding to raise, appear, or be heard on any

issue.

(b) Except as otherwise provided by this chapter, notice and

hearing of any matter submitted by the receiver to the

receivership court for approval under this chapter must be

conducted in accordance with Subsections (c)-(g).

(c) The receiver shall file an application explaining the

proposed action and the basis of the proposed action. The

receiver may include any evidence in support of the application.

If the receiver determines that any documents supporting the

application are confidential, the receiver may submit them to the

receivership court under seal for in camera inspection.

(d) The receiver shall provide notice of the application to all

persons on the service list and any other parties as determined

by the receiver. Notice may be provided by first class mail

postage paid, electronic mail, or facsimile transmission, at the

receiver's discretion. For purposes of this section, notice is

deemed to be given on the date that it is deposited with the U.S.

Postmaster or transmitted, as applicable, to the last known

address as shown on the service list.

(e) Any party in interest objecting to the application must file

an objection specifying the grounds for the objection not later

than the 20th day after the date of the notice of the filing of

the application or within another period as the receivership

court may set, and must serve copies on the receiver and any

other persons served with the application within the same period.

An objecting party has the burden of showing why the

receivership court should not authorize the proposed action.

(f) If no objection to the application is timely filed, the

receivership court may enter an order approving the application

without a hearing, or hold a hearing to determine if the

receiver's application should be approved. The receiver may

request that the receivership court enter an order or hold a

hearing on an expedited basis.

(g) If an objection is timely filed, the receivership court may

hold a hearing. If the receivership court approves the

application and, upon a motion by the receiver, determines that

the objection was frivolous or filed merely for delay or for

another improper purpose, the receivership court shall order the

objecting party to pay the receiver's reasonable costs and fees

of defending the action.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.008. INJUNCTIONS AND ORDERS. (a) The receivership

court may issue any order, process, or judgment, including stays,

injunctions, or other orders, as necessary or appropriate to

carry out the provisions of this chapter or an approved

rehabilitation plan.

(b) This chapter may not be construed to limit the ability of

the receiver to apply to a court other than the receivership

court in any jurisdiction to carry out any provision of this

chapter or for the purpose of pursuing claims against any person.

(c) Except as provided by Subsection (e) or as otherwise

provided by this chapter and subject to Subsection (g), the

commencement of a delinquency proceeding under this chapter

operates as a stay, applicable to all persons, of:

(1) the commencement or continuation, including the issuance or

employment of process, of a judicial, administrative, or other

action or proceeding against the insurer, including an

arbitration proceeding, that was or could have been commenced

before the commencement of the delinquency proceeding under this

chapter, or to recover a claim against the insurer that arose

before the commencement of the delinquency proceeding under this

chapter;

(2) the enforcement against the insurer or against property of

the insurer of a judgment obtained before the commencement of the

delinquency proceeding under this chapter;

(3) any act to obtain or retain possession of property of the

insurer or of property from the insurer or to exercise control

over property or records of the insurer;

(4) any act to create, perfect, or enforce any lien against

property of the insurer;

(5) any act to collect, assess, or recover a claim against the

insurer that arose before the commencement of a delinquency

proceeding under this chapter;

(6) the commencement or continuation of an action or proceeding

against a reinsurer of the insurer, by the holder of a claim

against the insurer, seeking reinsurance recoveries that are

contractually due to the insurer; and

(7) except as provided by Subsection (e)(1), the commencement or

continuation of an action or proceeding by a governmental unit to

terminate or revoke an insurance license.

(d) Except as provided in Subsection (e) or as otherwise

provided by this chapter, the commencement of a delinquency

proceeding under this chapter operates as a stay, applicable to

all persons, of any judicial, administrative, or other action or

proceeding, including the enforcement of any judgment, against

any insured that was or could have been commenced before the

commencement of the delinquency proceeding under this chapter, or

to recover a claim against the insured that arose before or after

the commencement of the delinquency proceeding under this chapter

and for which the insurer is or may be liable under a policy of

insurance or is obligated to defend a party. The stay provided

by this subsection terminates 90 days after the date of

appointment of the receiver, unless, for good cause shown, the

stay is extended by order of the receivership court after notice

to any affected parties and any hearing the receivership court

determines is appropriate.

(e) Notwithstanding Subsection (c), the commencement of a

delinquency proceeding under this chapter does not operate as a

stay of:

(1) regulatory actions not described by Subsection (c)(7) that

are taken by the commissioners of nondomiciliary states,

including the suspension of licenses;

(2) criminal proceedings;

(3) any act to perfect or to maintain or continue the perfection

of an interest in property to the extent that the act is

accomplished within any relation back period under applicable

law;

(4) set off as permitted by Section 443.209;

(5) pursuit and enforcement of nonmonetary governmental claims,

judgments, and proceedings;

(6) presentment of a negotiable instrument and the giving of

notice and protesting dishonor of the instrument;

(7) enforcement of rights against single beneficiary trusts

established pursuant to and in compliance with laws relating to

credit for reinsurance;

(8) termination, liquidation, and netting of obligations under

qualified financial contracts as provided for in Section 443.261;

(9) discharge by a guaranty association of statutory

responsibilities under any law governing guaranty associations;

or

(10) any of the following actions:

(A) an audit by a governmental unit to determine tax liability;

(B) the issuance to the insurer by a governmental unit of a

notice of tax deficiency;

(C) a demand for tax returns; or

(D) the making of an assessment for any tax and issuance of a

notice and demand for payment of the assessment.

(f) Except as provided by Subsection (h):

(1) the stay of an act against property of the insurer under

Subsection (c) continues until the property is no longer property

of the receivership estate; and

(2) the stay of any other act under Subsection (c) continues

until the earlier of the time the delinquency proceeding is

closed or dismissed.

(g) Notwithstanding the provisions of Subsection (c), claims

against the insurer that arose before the commencement of the

delinquency proceeding under this chapter may be asserted as a

counterclaim in any judicial, administrative, or other action or

proceeding initiated by or on behalf of the receiver against the

holder of the claims.

(h) On request of a party in interest and after notice and any

hearing the receivership court determines is appropriate, the

receivership court may grant relief from the stay of Subsection

(c) or (d), such as by terminating, annulling, modifying, or

conditioning the stay:

(1) for cause as described by Subsection (i); or

(2) with respect to a stay of an act against property under

Subsection (c) if:

(A) the insurer does not have equity in the property; and

(B) the property is not necessary to an effective rehabilitation

plan.

(i) For purposes of Subsection (h), "cause" includes the

receiver canceling a policy, surety bond, or surety undertaking

if the creditor is entitled, by contract or by law, to require

the insured or the principal to have a policy, surety bond, or

surety undertaking and the insured or the principal fails to

obtain a replacement policy, surety bond, or surety undertaking

not later than the later of:

(1) the 30th day after the date the receiver cancels the policy,

surety bond, or surety undertaking; or

(2) the time permitted by contract or law.

(j) In any hearing under Subsection (h), the party seeking

relief from the stay has the burden of proof on each issue, which

must be established by clear and convincing evidence.

(k) The estate of an insurer that is injured by any wilful

violation of a stay provided by this section is entitled to

actual damages, including costs and attorney's fees. In

appropriate circumstances, the receivership court may impose

additional sanctions.

(l) Any guaranty association or its designated representative

may intervene as a party as a matter of right or otherwise appear

and participate in any court proceeding concerning a delinquency

proceeding if the association is or may become liable to act as a

result of the rehabilitation or liquidation of the insurer.

Exercise by any guaranty association or its designated

representative of the right to intervene conferred under this

subsection does not constitute grounds to establish general

personal jurisdiction by the courts of this state. The

intervening guaranty association or its designated representative

are subject to the receivership court's jurisdiction for the

limited purpose for which it intervenes.

(m) Notwithstanding any other provision of law, bond may not be

required of the commissioner or receiver in relation to any stay

or injunction under this section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(d), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(d), eff. September 1, 2007.

Sec. 443.009. STATUTES OF LIMITATIONS. (a) If applicable law,

an order, or an agreement fixes a period within which the insurer

may commence an action, and this period has not expired before

the date of the filing of the initial petition in a delinquency

proceeding, the receiver may commence an action only before the

later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in a delinquency proceeding; or

(2) four years after the later of the date of entry of an order

for either rehabilitation or liquidation.

(b) Except as provided by Subsection (a), if applicable law, an

order, or an agreement fixes a period within which the insurer

may file any pleading, demand, notice, or proof of claim or loss,

cure a default in a case or proceeding, or perform any other

similar act, and the period has not expired before the date of

the filing of the petition initiating formal delinquency

proceedings, the receiver may file, cure, or perform, as the case

may be, only before the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 60 days after the later of the date of entry of an order for

either rehabilitation or liquidation.

(c) If applicable law, an order, or an agreement fixes a period

for commencing or continuing a civil action in a court other than

the receivership court on a claim against the insurer, and the

period has not expired before the date of the initial filing of

the petition in a delinquency proceeding, then the period does

not expire until the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 30 days after termination or expiration of the stay under

Section 443.008 with respect to the claim.

(d) If the otherwise applicable limitations period has not

expired prior to the initial filing of the petition commencing a

delinquency proceeding, any other action or proceeding filed by a

receiver may be commenced at any time within four years after the

date upon which the cause of action accrues or four years after

the date on which the receiver is appointed, whichever is later.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(e), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(e), eff. September 1, 2007.

Sec. 443.010. COOPERATION OF OFFICERS, OWNERS, AND EMPLOYEES.

(a) Any present or former officer, manager, director, trustee,

owner, employee, or agent of any insurer, or any other persons

with authority over or in charge of any segment of the insurer's

affairs, shall cooperate with the commissioner or receiver in any

proceeding under this chapter or any investigation preliminary to

the proceeding. For purposes of this section:

(1) "person" includes any person who exercises control directly

or indirectly over activities of the insurer through any holding

company or other affiliate of the insurer; and

(2) "cooperate" includes:

(A) replying promptly in writing to any inquiry from the

commissioner or receiver requesting the reply; and

(B) promptly making available to the commissioner or receiver

any books, accounts, documents, or other records or information

or property of or pertaining to the insurer and in the person's

possession, custody, or control.

(b) A person may not obstruct or interfere with the commissioner

or receiver in the conduct of any delinquency proceeding or any

preliminary or incidental investigation.

(c) This section may not be construed to abridge otherwise

existing legal rights, including the right to resist a petition

for liquidation or other delinquency proceedings, or other

orders.

(d) Any person described by Subsection (a) who fails to

cooperate with the commissioner or receiver, or any person who

obstructs or interferes with the commissioner or receiver in the

conduct of any delinquency proceeding or any preliminary or

incidental investigation, or who violates any order validly

issued under this chapter:

(1) commits an offense; and

(2) is subject to the imposition by the commissioner of an

administrative penalty not to exceed $10,000 and subject to the

revocation or suspension of any licenses issued by the

commissioner in accordance with Chapters 82 and 84.

(e) An offense under Subsection (d) is punishable by a fine not

exceeding $10,000 or imprisonment for not more than one year, or

both fine and imprisonment.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.011. ACTIONS BY AND AGAINST RECEIVER. (a) An

allegation by the receiver of improper or fraudulent conduct

against any person may not be the basis of a defense to the

enforcement of a contractual obligation owed to the insurer by a

third party, unless the conduct is found to have been materially

and substantially related to the contractual obligation for which

enforcement is sought.

(b) A prior wrongful or negligent action of any present or

former officer, manager, director, trustee, owner, employee, or

agent of the insurer may not be asserted as a defense to a claim

by the receiver under a theory of estoppel, comparative fault,

intervening cause, proximate cause, reliance, mitigation of

damages, or otherwise, except that the affirmative defense of

fraud in the inducement may be asserted against the receiver in a

claim based on a contract, and a principal under a surety bond or

a surety undertaking is entitled to credit against any

reimbursement obligation to the receiver for the value of any

property pledged to secure the reimbursement obligation to the

extent that the receiver has possession or control of the

property or that the insurer or its agents commingled or

otherwise misappropriated the property. Evidence of fraud in the

inducement is admissible only if the evidence is contained in the

records of the insurer.

(c) An action or inaction by the department or the insurance

regulatory authorities in any state may not be asserted as a

defense to a claim by the receiver.

(d) Except as provided by Subsection (e), a judgment or order

entered against an insured or the insurer in contravention of any

stay or injunction under this chapter, or at any time by default

or collusion, may not be considered as evidence of liability or

of the amount of damages in adjudicating claims filed in the

estate arising out of the subject matter of the judgment or

order.

(e) Subsection (d) does not apply to guaranty associations'

claims for amounts paid on settlements and judgments in pursuit

of their statutory obligations.

(f) The receiver may not be deemed a governmental entity for the

purposes of any state law awarding fees to a litigant who

prevails against a governmental entity.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.012. UNRECORDED OBLIGATIONS AND DEFENSES OF AFFILIATES.

(a) In any proceeding or claim by the receiver, an affiliate,

controlled or controlling person, or present or former officer,

manager, director, trustee, or shareholder of the insurer may not

assert any defense, unless evidence of the defense was recorded

in the books and records of the insurer at or about the time the

events giving rise to the defense occurred and, if required by

statutory accounting practices and procedures, was timely

reported on the insurer's official financial statements filed

with the department.

(b) An affiliate, controlled or controlling person, or present

or former officer, manager, director, trustee, or shareholder of

the insurer may not assert any claim, unless the obligations were

recorded in the books and records of the insurer at or about the

time the obligations were incurred and, if required by statutory

accounting practices and procedures, were timely reported on the

insurer's official financial statements filed with the

department.

(c) Claims by the receiver against any affiliate, controlled or

controlling person, or present or former officer, manager,

director, trustee, or shareholder of the insurer based on

unrecorded or unreported transactions are not barred by this

section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.013. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. (a)

The receiver may assume or reject any executory contract or

unexpired lease of the insurer.

(b) Neither the filing of a petition commencing delinquency

proceedings under this chapter nor the entry of an order for a

delinquency proceeding constitutes a breach or anticipatory

breach of any contract or lease of the insurer.

(c) If there has been a default in an executory contract or

unexpired lease of the insurer, the receiver may not assume the

contract or lease unless, at the time of the assumption of the

contract or lease, the receiver:

(1) cures or provides adequate assurance that the receiver will

promptly cure the default; and

(2) provides adequate assurance of future performance under the

contract or lease.

(d) Subsection (c) does not apply to a default that is a breach

of a provision relating to:

(1) the insolvency or financial condition of the insurer at any

time before the closing of the delinquency proceeding;

(2) the appointment of or taking possession by a receiver in a

case under this chapter or a custodian before the commencement of

the delinquency proceeding; or

(3) the satisfaction of any penalty rate or provision relating

to a default arising from any failure of the insurer to perform

nonmonetary obligations under the executory contract or unexpired

lease.

(e) A claim arising from the rejection, under this section or a

plan of rehabilitation, of an executory contract or unexpired

lease of the insurer that has not been assumed shall be

determined, treated, and classified as if the claim had arisen

before the date of the filing of a successful petition commencing

the delinquency proceeding.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.0135. CONTRACTS FOR SPECIAL DEPUTIES. (a) The

receiver shall use a competitive bidding process in the selection

of any special deputies appointed under Section 443.102 or

443.154. The process must include procedures to promote the

participation of historically underutilized businesses that have

been certified by the comptroller under Section 2161.061,

Government Code.

(b) A proposal submitted in connection with a bid solicitation

under Subsection (a) must describe the efforts that have been

made to include historically underutilized businesses as

subcontractors and the plan for using the historically

underutilized businesses in the administration of the

receivership estate. A special deputy appointed under Section

443.102 or 443.154 shall make a good faith effort to implement

the plan and shall report to the receiver the special deputy's

efforts to identify and subcontract with historically

underutilized businesses.

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

995, Sec. 1, eff. September 1, 2005.

Amended by:

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

730, Sec. 3B.004(f), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.0135

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(f), eff. September 1, 2007.

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

937, Sec. 1.98, eff. September 1, 2007.

Sec. 443.014. IMMUNITY AND INDEMNIFICATION OF RECEIVER AND

ASSISTANTS. (a) For the purposes of this section, the persons

entitled to immunity and indemnification and those entitled to

immunity only, as applicable, are:

(1) all present and former receivers responsible for the conduct

of a delinquency proceeding under this chapter;

(2) all of the receiver's present and former assistants,

including:

(A) all present and former special deputies and assistant

special deputies engaged by contract or otherwise;

(B) all persons whom the receiver, special deputies, or

assistant special deputies have employed to assist in a

delinquency proceeding under this chapter; and

(C) any state employees acting with respect to a delinquency

proceeding under this chapter; and

(3) all of the receiver's present and former contractors,

including all persons with whom the receiver, special deputies,

or assistant special deputies have contracted to assist in a

delinquency proceeding under this chapter, including attorneys,

accountants, auditors, actuaries, investment bankers, financial

advisors, and any other professionals or firms who are retained

or contracted with by the receiver as independent contractors and

all employees of the contractors.

(b) The receiver, the receiver's assistants, and the receiver's

contractors have immunity under this chapter, as described by

Subsections (c) and (d).

(c) The receiver, the receiver's assistants, and the receiver's

contractors are immune from suit and liability, both personally

and in their representative capacities, for any claim for damage

to or loss of property or personal injury or other civil

liability caused by or resulting from any alleged act, error, or

omission of the receiver or any assistant or contractor that

arises out of or by reason of their duties or employment or is

taken at the direction of the receivership court, providing that

the alleged act, error, or omission is performed in good faith.

(d) Any immunity granted by this section is in addition to any

immunity granted by other law.

(e) The receiver and the receiver's assistants are entitled to

indemnification under this chapter, as described by Subsections

(f)-(l).

(f) If any legal action is commenced against the receiver or any

assistant, whether against the receiver or assistant personally

or in their official capacity, alleging property damage, property

loss, personal injury, or other civil liability caused by or

resulting from any alleged act, error, or omission of the

receiver or any assistant arising out of or by reason of their

duties or employment, the receiver and any assistant are

indemnified from the assets of the insurer for all expenses,

attorney's fees, judgments, settlements, decrees, or amounts due

and owing or paid in satisfaction of or incurred in the defense

of the legal action, unless it is determined upon a final

adjudication on the merits that the alleged act, error, or

omission of the receiver or assistant giving rise to the claim:

(1) did not arise out of or by reason of their duties or

employment; or

(2) was caused by intentional or wilful and wanton misconduct.

(g) Attorney's fees and any and all related expenses incurred in

defending a legal action for which immunity or indemnity is

available under this section must be paid from the assets of the

insurer, as the fees and expenses are incurred, and in advance of

the final disposition of the legal action upon receipt of an

agreement by or on behalf of the receiver or assistant to repay

the attorney's fees and expenses, if it is ultimately determined

upon a final adjudication on the merits that the receiver or

assistant is not entitled to immunity or indemnity under this

section.

(h) Any indemnification for expense payments, judgments,

settlements, decrees, attorney's fees, surety bond premiums, or

other amounts paid or to be paid from the insurer's assets

pursuant to this section are an administrative expense of the

insurer.

(i) In the event of any actual or threatened litigation against

a receiver or any assistant for whom immunity or indemnity may be

available under this section, a reasonable amount of funds, which

in the judgment of the receiver may be needed to provide immunity

or indemnity, must be segregated and reserved from the assets of

the insurer as security for the payment of indemnity until:

(1) all applicable statutes of limitation have run;

(2) all actual or threatened actions against the receiver or any

assistant have been completely and finally resolved; and

(3) all obligations under this section have been satisfied.

(j) Instead of segregating and reserving funds under Subsection

(i), the receiver may, in the receiver's discretion, obtain a

surety bond or make other arrangements that will enable the

receiver to secure fully the payment of all obligations under

this section.

(k) If any legal action against an assistant for whom indemnity

may be available under this section is settled prior to final

adjudication on the merits, the receiver must pay the settlement

amount on behalf of the assistant, or indemnify the assistant for

the settlement amount, unless the receiver determines that the

claim:

(1) did not arise out of or by reason of the assistant's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the assistant.

(l) In any legal action in which a claim is asserted against the

receiver, that portion of any settlement relating to the alleged

act, error, or omission of the receiver is subject to the

approval of the receivership court. The receivership court may

not approve that portion of the settlement if it determines that

the claim:

(1) did not arise out of or by reason of the receiver's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the receiver.

(m) Nothing contained or implied in this section may operate or

be construed or applied to deprive the receiver, the receiver's

assistants, or receiver's contractors of any immunity, indemnity,

benefits of law, rights, or defense otherwise available.

(n) The immunity and indemnification provided to the receiver's

assistants and the immunity provided to the receiver's

contractors under this section do not apply to any action by the

receiver against that person.

(o) Subsection (b) applies to any suit based in whole or in part

on any alleged act, error, or omission that takes place on or

after September 1, 2005.

(p) Subsections (e)-(l) apply to any suit that is pending on or

filed after September 1, 2005, without regard to when the alleged

act, error, or omission took place.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.015. APPROVAL AND PAYMENT OF EXPENSES. (a) The

receiver may pay any expenses under contracts, leases, employment

agreements, or other arrangements entered into by the insurer

prior to receivership, as the receiver deems necessary for the

purposes of this chapter. The receiver is not required to pay

any expenses that the receiver determines are not necessary, and

may reject any contract pursuant to Section 443.013.{"@context":"https://schema.org","@graph":[{"@type":"WebPage","@id":"https://statutes.laws.com/test/","url":"https://statutes.laws.com/test/","name":"State Codes and Statutes - Statutes","isPartOf":{"@id":"https://statutes.laws.com/#website"},"datePublished":"2015-03-10T03:31:37+00:00","dateModified":"2019-12-27T23:25:16+00:00","breadcrumb":{"@id":"https://statutes.laws.com/test/#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https://statutes.laws.com/test/"]}]},{"@type":"BreadcrumbList","@id":"https://statutes.laws.com/test/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https://statutes.laws.com/"},{"@type":"ListItem","position":2,"name":"State Codes and Statutes"}]},{"@type":"WebSite","@id":"https://statutes.laws.com/#website","url":"https://statutes.laws.com/","name":"Statutes","description":"","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https://statutes.laws.com/?s={search_term_string}"},"query-input":"required name=search_term_string"}],"inLanguage":"en-US"}]}


State Codes and Statutes

State Codes and Statutes

Statutes > Texas > Insurance-code > Title-4-regulation-of-solvency > Chapter-443-insurer-receivership-act

INSURANCE CODE

TITLE 4. REGULATION OF SOLVENCY

SUBTITLE C. DELINQUENT INSURERS

CHAPTER 443. INSURER RECEIVERSHIP ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 443.001. CONSTRUCTION AND PURPOSE. (a) This chapter may

be cited as the Insurer Receivership Act.

(b) This chapter may not be interpreted to limit the powers

granted the commissioner under other provisions of law.

(c) This chapter shall be liberally construed to support the

purpose stated in Subsection (e).

(d) All powers and authority of a receiver under this chapter

are cumulative and are in addition to all powers and authority

that are available to a receiver under law other than this

chapter.

(e) The purpose of this chapter is to protect the interests of

insureds, claimants, creditors, and the public generally,

through:

(1) early detection of any potentially hazardous condition in an

insurer and prompt application of appropriate corrective

measures;

(2) improved methods for conserving and rehabilitating insurers;

(3) enhanced efficiency and economy of liquidation, through

clarification of the law, to minimize legal uncertainty and

litigation;

(4) apportionment of any unavoidable loss in accordance with the

statutory priorities set out in this chapter;

(5) lessening the problems of interstate receivership by:

(A) facilitating cooperation between states in delinquency

proceedings; and

(B) extending the scope of personal jurisdiction over debtors of

the insurer located outside this state;

(6) regulation of the business of insurance by the impact of the

law relating to delinquency procedures and related substantive

rules; and

(7) providing for a comprehensive scheme for the receivership of

insurers and those subject to this chapter as part of the

regulation of the business of insurance in this state because

proceedings in cases of insurer insolvency and delinquency are

deemed an integral aspect of the business of insurance and are of

vital public interest and concern.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.001

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.002. CONFLICTS OF LAW. This chapter and the state law

governing insurance guaranty associations constitute this state's

insurer receivership laws and shall be construed together in a

manner that is consistent. In the event of a conflict between the

insurer receivership laws and the provisions of any other law,

the insurer receivership laws prevail.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.002

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.003. COVERED PERSONS. The provisions of this chapter

apply to all:

(1) insurers who are doing or have done an insurance business in

this state and against whom claims arising from that business may

exist now or in the future and to all persons subject to

examination by the commissioner;

(2) insurers who purport to do an insurance business in this

state;

(3) insurers who have insureds resident in this state;

(4) other persons organized or doing insurance business, or in

the process of organizing with the intent to do insurance

business in this state;

(5) nonprofit health corporations and all fraternal benefit

societies subject to Chapters 844 and 885, respectively;

(6) title insurance companies subject to Title 11;

(7) health maintenance organizations subject to Chapter 843; and

(8) surety and trust companies subject to Chapter 7, general

casualty companies subject to Chapter 861, statewide mutual

assessment companies subject to Chapter 881, mutual insurance

companies subject to Chapter 882 or 883, local mutual aid

associations subject to Chapter 886, burial associations subject

to Chapter 888, farm mutual insurance companies subject to

Chapter 911, county mutual insurance companies subject to Chapter

912, Lloyd's plans subject to Chapter 941, reciprocal or

interinsurance exchanges subject to Chapter 942, and fidelity,

guaranty, and surety companies.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.003

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.004. DEFINITIONS. (a) For the purposes of this

chapter:

(1) "Affiliate," "control," and "subsidiary" have the meanings

assigned by Chapter 823.

(2) "Alien insurer" means an insurer incorporated or organized

under the laws of a jurisdiction that is not a state.

(3) "Creditor" or "claimant" means a person having any claim

against an insurer, whether the claim is matured or not,

liquidated or unliquidated, secured or unsecured, absolute,

fixed, or contingent.

(4) "Delinquency proceeding" means any proceeding instituted

against an insurer for the purpose of liquidating,

rehabilitating, or conserving the insurer, and any proceeding

under Section 443.051.

(5) "Doing business," including "doing insurance business" and

the "business of insurance," includes any of the following acts,

whether effected by mail, electronic means, or otherwise:

(A) the issuance or delivery of contracts of insurance, either

to persons resident or covering a risk located in this state;

(B) the solicitation of applications for contracts described by

Paragraph (A) or other negotiations preliminary to the execution

of the contracts;

(C) the collection of premiums, membership fees, assessments, or

other consideration for contracts described by Paragraph (A);

(D) the transaction of matters subsequent to the execution of

contracts described by Paragraph (A) and arising out of those

contracts; or

(E) operating as an insurer under a certificate of authority

issued by the department.

(6) "Domiciliary state" means the state in which an insurer is

incorporated or organized or, in the case of an alien insurer,

its state of entry.

(7) "Foreign insurer" means an insurer domiciled in another

state.

(8) "Formal delinquency proceeding" means any rehabilitation or

liquidation proceeding.

(9) "General assets" includes:

(A) all property of the estate that is not:

(i) subject to a secured claim or a valid and existing express

trust for the security or benefit of specified persons or classes

of persons; or

(ii) required by the insurance laws of this state or any other

state to be held for the benefit of specified persons or classes

of persons; and

(B) all property of the estate and the proceeds of that property

in excess of the amount necessary to discharge any secured claims

described by Paragraph (A).

(10) "Good faith" means honesty in fact and intention, and for

the purposes of Subchapter F also requires the absence of:

(A) information that would lead a reasonable person in the same

position to know that the insurer is financially impaired or

insolvent; and

(B) knowledge regarding the imminence or pendency of any

delinquency proceeding against the insurer.

(11) "Guaranty association" means any mechanism mandated by

Chapter 462, 463, or 2602 or other laws of this state or a

similar mechanism in another state that is created for the

payment of claims or continuation of policy obligations of

financially impaired or insolvent insurers.

(12) "Impaired" means that an insurer does not have admitted

assets at least equal to all its liabilities together with the

minimum surplus required to be maintained under this code.

(13) "Insolvency" or "insolvent" means an insurer:

(A) is unable to pay its obligations when they are due;

(B) does not have admitted assets at least equal to all its

liabilities; or

(C) has a total adjusted capital that is less than that required

under:

(i) Chapter 822, 841, or 843, as applicable; or

(ii) applicable rules or guidelines adopted by the commissioner

under Section 822.210, 841.205, or 843.404.

(14) "Insurer" means any person that has done, purports to do,

is doing, or is authorized to do the business of insurance in

this state, and is or has been subject to the authority of or to

liquidation, rehabilitation, reorganization, supervision, or

conservation by any insurance commissioner. For purposes of this

chapter, any other persons included under Section 443.003 are

insurers.

(15) "Netting agreement" means a contract or agreement,

including terms and conditions incorporated by reference in a

contract or agreement, and a master agreement (which master

agreement, together with all schedules, confirmations,

definitions, and addenda to the agreement and transactions under

the agreement, schedules, confirmations, definitions, or addenda,

are to be treated as one netting agreement) that documents one or

more transactions between the parties to the contract or

agreement for or involving one or more qualified financial

contracts and that, among the parties to the netting agreement,

provides for the netting or liquidation of qualified financial

contracts, present or future payment obligations, or payment

entitlements under the contract or agreement, including

liquidation or close-out values relating to the obligations or

entitlements.

(16) "New value" means money, money's worth in goods, services,

or new credit, or release by a transferee of property previously

transferred to the transferee in a transaction that is neither

void nor voidable by the insurer or the receiver under any

applicable law, including proceeds of the property. The term

does not include an obligation substituted for an existing

obligation.

(17) "Party in interest" means the commissioner, a 10 percent or

greater equity security holder in the insolvent insurer, any

affected guaranty association, any nondomiciliary commissioner

for a jurisdiction in which the insurer has outstanding claims

liabilities, and any of the following parties that have filed a

request for inclusion on the service list under Section 443.007:

(A) an insurer that ceded to or assumed business from the

insolvent insurer; and

(B) an equity shareholder, policyholder, third-party claimant,

creditor, and any other person, including any indenture trustee,

with a financial or regulatory interest in the receivership

proceeding.

(18) "Person" means individual, aggregation of individuals,

partnership, corporation, or other entity.

(19) "Policy" means a written contract of insurance, written

agreement for or effecting insurance, or the certificate for or

effecting insurance, by whatever name. The term includes all

clauses, riders, endorsements, and papers that are a part of the

contract, agreement, or certificate. The term does not include a

contract of reinsurance.

(20) "Property of the insurer" or "property of the estate"

includes:

(A) all right, title, and interest of the insurer in property,

whether legal or equitable, tangible or intangible, choate or

inchoate, and includes choses in action, contract rights, and any

other interest recognized under the laws of this state;

(B) entitlements that:

(i) existed prior to the entry of an order of rehabilitation or

liquidation; and

(ii) may arise by operation of the provisions of this chapter or

other provisions of law allowing the receiver to avoid prior

transfers or assert other rights; and

(C) all records and data that are otherwise the property of the

insurer, in whatever form maintained, within the possession,

custody, or control of a managing general agent, third-party

administrator, management company, data processing company,

accountant, attorney, affiliate, or other person, including:

(i) claims and claim files;

(ii) policyholder lists;

(iii) application files;

(iv) litigation files;

(v) premium records;

(vi) rate books and underwriting manuals;

(vii) personnel records; and

(viii) financial records or similar records.

(21) "Qualified financial contract" means a commodity contract,

forward contract, repurchase agreement, securities contract, swap

agreement, and any similar agreement that the commissioner

determines by rule to be a qualified financial contract for the

purposes of this chapter.

(22) "Receiver" means liquidator, rehabilitator, or ancillary

conservator, as the context requires.

(23) "Receivership" means any liquidation, rehabilitation, or

ancillary conservation, as the context requires.

(24) "Receivership court" refers to the court in which a

delinquency proceeding is pending, unless the context requires

otherwise.

(25) "Reinsurance" means transactions or contracts by which an

assuming insurer agrees to indemnify a ceding insurer against

all, or a part, of any loss that the ceding insurer might sustain

under the policy or policies that it has issued or will issue.

(26) "Secured claim" means any claim secured by an asset that is

not a general asset. The term includes the right to set off as

provided in Section 443.209. The term does not include a claim

arising from a constructive or resulting trust, a special deposit

claim, or a claim based on mere possession.

(27) "Special deposit" means a deposit established pursuant to

statute for the security or benefit of a limited class or limited

classes of persons.

(28) "Special deposit claim" means any claim secured by a

special deposit. The term does not include any claim secured by

the general assets of the insurer.

(29) "State" means any state, district, or territory of the

United States.

(30) "Transfer" includes the sale and every other and different

mode, direct or indirect, of disposing of or of parting with

property or with an interest in property, including a setoff, or

with the possession of property or of fixing a lien upon property

or upon an interest in property, absolutely or conditionally,

voluntarily or involuntarily, by or without judicial proceedings.

The retention of a security title in property delivered to an

insurer is deemed a transfer suffered by the insurer.

(31) "Unauthorized insurer" means an insurer doing the business

of insurance in this state that has not received from this state

a certificate of authority or some other type of authority that

allows for doing the business of insurance in this state.

(b) For purposes of this chapter, "admitted assets" and

"liabilities" have the meanings assigned by the department in

rules relating to risk-based capital.

(c) For purposes of Subsection (a)(21):

(1) "Commodity contract" means:

(A) a contract for the purchase or sale of a commodity for

future delivery on or subject to the rules of a board of trade

designated as a contract market by the Commodity Futures Trading

Commission under the Commodity Exchange Act (7 U.S.C. Section 1

et seq.) or a board of trade outside the United States;

(B) an agreement that is subject to regulation under Section 19,

Commodity Exchange Act (7 U.S.C. Section 23), and that is

commonly known to the commodities trade as a margin account,

margin contract, leverage account, or leverage contract; or

(C) an agreement or transaction that is subject to regulation

under Section 4c(b), Commodity Exchange Act (7 U.S.C. Section

6c(b)), and that is commonly known to the commodities trade as a

commodity option.

(2) "Forward contract" means a contract, other than a commodity

contract, with a maturity date more than two days after the date

the contract is entered into, that is for the purchase, sale, or

transfer of a commodity, as defined by Section 1a, Commodity

Exchange Act (7 U.S.C. Section 1a), or any similar good, article,

service, right, or interest that is presently or in the future

becomes the subject of dealing in the forward contract trade or

product or byproduct of the contract. The term includes a

repurchase transaction, reverse repurchase transaction,

consignment, lease, swap, hedge transaction, deposit, loan,

option, allocated transaction, unallocated transaction, or a

combination of these or option on any of them.

(3) "Repurchase agreement" includes a reverse repurchase

agreement and means an agreement, including related terms, that

provides for the transfer of certificates of deposit, eligible

bankers' acceptances, or securities that are direct obligations

of or that are fully guaranteed as to principal and interest by

the United States against the transfer of funds by the transferee

of the certificates of deposit, eligible bankers' acceptances, or

securities with a simultaneous agreement by the transferee to

transfer to the transferor certificates of deposit, eligible

bankers' acceptances, or securities as described in this

subdivision, on demand or at a date certain not later than one

year after the transfers, against the transfer of funds. For the

purposes of this subdivision, the items that may be subject to a

repurchase agreement:

(A) include mortgage-related securities and a mortgage loan and

an interest in a mortgage loan; and

(B) do not include any participation in a commercial mortgage

loan unless the commissioner determines by rule to include the

participation within the meaning of the term.

(4) "Securities contract" means a contract for the purchase,

sale, or loan of a security, including an option for the

repurchase or sale of a security, certificate of deposit, or

group or index of securities or an interest in the group or index

or based on the value of the group or index, an option entered

into on a national securities exchange relating to foreign

currencies, or the guarantee of a settlement of cash or

securities by or to a securities clearing agency. For the

purposes of this subdivision, the term "security" includes a

mortgage loan, a mortgage-related security, and an interest in

any mortgage loan or mortgage-related security.

(5) "Swap agreement" means an agreement, including the terms and

conditions incorporated by reference in an agreement, that is a

rate swap agreement, basis swap, commodity swap, forward rate

agreement, interest rate future, interest rate option, forward

foreign exchange agreement, spot foreign exchange agreement, rate

cap agreement, rate floor agreement, rate collar agreement,

currency swap agreement, cross-currency rate swap agreement,

currency future, or currency option or any other similar

agreement. The term includes any combination agreements

described by this subdivision and an option to enter into any

agreement described by this subdivision.

(d) The definitions under this section apply only to this

chapter unless the context of another law requires otherwise.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(b), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.004

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(b), eff. September 1, 2007.

Sec. 443.005. JURISDICTION AND VENUE. (a) A delinquency

proceeding may not be commenced under this chapter by a person

other than the commissioner, and a court does not have

jurisdiction to entertain, hear, or determine any delinquency

proceeding commenced by any other person.

(b) A court of this state does not have jurisdiction, other than

in accordance with this chapter, to entertain, hear, or determine

any complaint praying for:

(1) the liquidation, rehabilitation, seizure, sequestration,

conservation, or receivership of any insurer; or

(2) a stay, injunction, restraining order, or other relief

preliminary, incidental, or relating to proceedings described by

Subdivision (1).

(c) The receivership court, as of the commencement of a

delinquency proceeding under this chapter, has exclusive

jurisdiction of all property of the insurer, wherever located,

including property located outside the territorial limits of the

state. The receivership court has original but not exclusive

jurisdiction of all civil proceedings arising:

(1) under this chapter; or

(2) in or related to delinquency proceedings under this chapter.

(d) In addition to other grounds for jurisdiction provided by

the law of this state, a court having jurisdiction of the subject

matter has jurisdiction over a person served pursuant to Rules 21

and 21a, Texas Rules of Civil Procedure, or other applicable

provisions of law in an action brought by the receiver if the

person served:

(1) is or has been an agent, or other person who, at any time,

has written policies of insurance for or has acted in any manner

on behalf of an insurer against which a delinquency proceeding

has been instituted, in any action resulting from or incident to

such a relationship with the insurer;

(2) is or has been an insurer or reinsurer who, at any time, has

entered into a contract of reinsurance with an insurer against

which a delinquency proceeding has been instituted, or who is an

agent of or for the reinsurer, in any action on or incident to

the reinsurance contract;

(3) is or has been an officer, director, manager, trustee,

organizer, promoter, or other person in a position of comparable

authority or influence over an insurer against which a

delinquency proceeding has been instituted, in any action

resulting from or incident to such a relationship with the

insurer;

(4) at the time of the institution of the delinquency proceeding

against the insurer, is or was holding assets in which the

receiver claims an interest on behalf of the insurer in any

action concerning the assets; or

(5) is obligated to the insurer in any way, in any action on or

incident to the obligation.

(e) If, on motion of any party, the receivership court finds

that any action, as a matter of substantial justice, should be

tried in a forum outside this state, the receivership court may

enter an appropriate order to stay further proceedings on the

action in this state. Except as to claims against the estate,

nothing in this chapter deprives a party of any contractual right

to pursue arbitration. A party in arbitration may bring a claim

or counterclaim against the estate, but the claim or counterclaim

is subject to Section 443.209.

(f) Service must be made upon the person named in the petition

in accordance with Rules 21 and 21a, Texas Rules of Civil

Procedure. In lieu of such service, upon application to the

receivership court, service may be made in any manner the

receivership court directs if it is satisfactorily shown by

affidavit:

(1) in the case of a corporation, that the officers of the

corporation cannot be served because they have departed from the

state or otherwise concealed themselves with intent to avoid

service;

(2) in the case of a Lloyd's plan or reciprocal or

interinsurance exchange, that the individual attorney in fact or

the officers of the corporate attorney in fact cannot be served

because of departure or concealment; or

(3) in the case of an individual, that the person cannot be

served because of the individual's departure or concealment.

(g) An action authorized by this section must be brought in a

district court in Travis County.

(h) At any time after an order is entered pursuant to Section

443.051, 443.101, or 443.151, the commissioner or receiver may

transfer the case to the county of the principal office of the

person proceeded against. In the event of transfer, the court in

which the proceeding was commenced, upon application of the

commissioner or receiver, shall direct its clerk to transmit the

court's file to the clerk of the court to which the case is to be

transferred. The proceeding, after transfer, shall be conducted

in the same manner as if it had been commenced in the court to

which the matter is transferred.

(i) A person may not intervene in any delinquency proceeding in

this state for the purpose of seeking or obtaining payment of any

judgment, lien, or other claim of any kind. The claims procedure

set forth in this chapter constitutes the exclusive means for

obtaining payment of claims from the receivership estate. This

provision is not intended to affect the rights conferred on the

guaranty associations by Section 443.008(l).

(j) The foregoing provisions of this section notwithstanding,

the provisions of this chapter do not confer jurisdiction on the

receivership court to resolve coverage disputes between guaranty

associations and those asserting claims against them resulting

from the initiation of a delinquency proceeding under this

chapter. The determination of any dispute with respect to the

statutory coverage obligations of any guaranty association by a

court or administrative agency or body with jurisdiction in the

guaranty association's state of domicile is binding and

conclusive as to the parties in a delinquency proceeding

initiated in the receivership court, including the policyholders

of the insurer. With respect to a guaranty association's

obligations under a rehabilitation plan, the receivership court

has jurisdiction only if the guaranty association expressly

consents to the jurisdiction of the court.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(c), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.005

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(c), eff. September 1, 2007.

Sec. 443.006. EXEMPTION FROM FEES. The receiver may not be

required to pay any filing, recording, transcript, or

authenticating fee to any public officer in this state.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.006

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.007. NOTICE, HEARING, AND APPEAL ON MATTERS SUBMITTED

BY RECEIVER FOR RECEIVERSHIP COURT APPROVAL. (a) Upon written

request to the receiver, a person must be placed on the service

list to receive notice of matters filed by the receiver. It is

the responsibility of the person requesting notice to inform the

receiver in writing of any changes in the person's address or to

request that the person's name be deleted from the service list.

The receiver may require that the persons on the service list

provide confirmation that they wish to remain on the service

list. Any person who fails to confirm the person's intent to

remain on the service list may be purged from the service list.

Inclusion on the service list does not confer standing in the

delinquency proceeding to raise, appear, or be heard on any

issue.

(b) Except as otherwise provided by this chapter, notice and

hearing of any matter submitted by the receiver to the

receivership court for approval under this chapter must be

conducted in accordance with Subsections (c)-(g).

(c) The receiver shall file an application explaining the

proposed action and the basis of the proposed action. The

receiver may include any evidence in support of the application.

If the receiver determines that any documents supporting the

application are confidential, the receiver may submit them to the

receivership court under seal for in camera inspection.

(d) The receiver shall provide notice of the application to all

persons on the service list and any other parties as determined

by the receiver. Notice may be provided by first class mail

postage paid, electronic mail, or facsimile transmission, at the

receiver's discretion. For purposes of this section, notice is

deemed to be given on the date that it is deposited with the U.S.

Postmaster or transmitted, as applicable, to the last known

address as shown on the service list.

(e) Any party in interest objecting to the application must file

an objection specifying the grounds for the objection not later

than the 20th day after the date of the notice of the filing of

the application or within another period as the receivership

court may set, and must serve copies on the receiver and any

other persons served with the application within the same period.

An objecting party has the burden of showing why the

receivership court should not authorize the proposed action.

(f) If no objection to the application is timely filed, the

receivership court may enter an order approving the application

without a hearing, or hold a hearing to determine if the

receiver's application should be approved. The receiver may

request that the receivership court enter an order or hold a

hearing on an expedited basis.

(g) If an objection is timely filed, the receivership court may

hold a hearing. If the receivership court approves the

application and, upon a motion by the receiver, determines that

the objection was frivolous or filed merely for delay or for

another improper purpose, the receivership court shall order the

objecting party to pay the receiver's reasonable costs and fees

of defending the action.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.007

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.008. INJUNCTIONS AND ORDERS. (a) The receivership

court may issue any order, process, or judgment, including stays,

injunctions, or other orders, as necessary or appropriate to

carry out the provisions of this chapter or an approved

rehabilitation plan.

(b) This chapter may not be construed to limit the ability of

the receiver to apply to a court other than the receivership

court in any jurisdiction to carry out any provision of this

chapter or for the purpose of pursuing claims against any person.

(c) Except as provided by Subsection (e) or as otherwise

provided by this chapter and subject to Subsection (g), the

commencement of a delinquency proceeding under this chapter

operates as a stay, applicable to all persons, of:

(1) the commencement or continuation, including the issuance or

employment of process, of a judicial, administrative, or other

action or proceeding against the insurer, including an

arbitration proceeding, that was or could have been commenced

before the commencement of the delinquency proceeding under this

chapter, or to recover a claim against the insurer that arose

before the commencement of the delinquency proceeding under this

chapter;

(2) the enforcement against the insurer or against property of

the insurer of a judgment obtained before the commencement of the

delinquency proceeding under this chapter;

(3) any act to obtain or retain possession of property of the

insurer or of property from the insurer or to exercise control

over property or records of the insurer;

(4) any act to create, perfect, or enforce any lien against

property of the insurer;

(5) any act to collect, assess, or recover a claim against the

insurer that arose before the commencement of a delinquency

proceeding under this chapter;

(6) the commencement or continuation of an action or proceeding

against a reinsurer of the insurer, by the holder of a claim

against the insurer, seeking reinsurance recoveries that are

contractually due to the insurer; and

(7) except as provided by Subsection (e)(1), the commencement or

continuation of an action or proceeding by a governmental unit to

terminate or revoke an insurance license.

(d) Except as provided in Subsection (e) or as otherwise

provided by this chapter, the commencement of a delinquency

proceeding under this chapter operates as a stay, applicable to

all persons, of any judicial, administrative, or other action or

proceeding, including the enforcement of any judgment, against

any insured that was or could have been commenced before the

commencement of the delinquency proceeding under this chapter, or

to recover a claim against the insured that arose before or after

the commencement of the delinquency proceeding under this chapter

and for which the insurer is or may be liable under a policy of

insurance or is obligated to defend a party. The stay provided

by this subsection terminates 90 days after the date of

appointment of the receiver, unless, for good cause shown, the

stay is extended by order of the receivership court after notice

to any affected parties and any hearing the receivership court

determines is appropriate.

(e) Notwithstanding Subsection (c), the commencement of a

delinquency proceeding under this chapter does not operate as a

stay of:

(1) regulatory actions not described by Subsection (c)(7) that

are taken by the commissioners of nondomiciliary states,

including the suspension of licenses;

(2) criminal proceedings;

(3) any act to perfect or to maintain or continue the perfection

of an interest in property to the extent that the act is

accomplished within any relation back period under applicable

law;

(4) set off as permitted by Section 443.209;

(5) pursuit and enforcement of nonmonetary governmental claims,

judgments, and proceedings;

(6) presentment of a negotiable instrument and the giving of

notice and protesting dishonor of the instrument;

(7) enforcement of rights against single beneficiary trusts

established pursuant to and in compliance with laws relating to

credit for reinsurance;

(8) termination, liquidation, and netting of obligations under

qualified financial contracts as provided for in Section 443.261;

(9) discharge by a guaranty association of statutory

responsibilities under any law governing guaranty associations;

or

(10) any of the following actions:

(A) an audit by a governmental unit to determine tax liability;

(B) the issuance to the insurer by a governmental unit of a

notice of tax deficiency;

(C) a demand for tax returns; or

(D) the making of an assessment for any tax and issuance of a

notice and demand for payment of the assessment.

(f) Except as provided by Subsection (h):

(1) the stay of an act against property of the insurer under

Subsection (c) continues until the property is no longer property

of the receivership estate; and

(2) the stay of any other act under Subsection (c) continues

until the earlier of the time the delinquency proceeding is

closed or dismissed.

(g) Notwithstanding the provisions of Subsection (c), claims

against the insurer that arose before the commencement of the

delinquency proceeding under this chapter may be asserted as a

counterclaim in any judicial, administrative, or other action or

proceeding initiated by or on behalf of the receiver against the

holder of the claims.

(h) On request of a party in interest and after notice and any

hearing the receivership court determines is appropriate, the

receivership court may grant relief from the stay of Subsection

(c) or (d), such as by terminating, annulling, modifying, or

conditioning the stay:

(1) for cause as described by Subsection (i); or

(2) with respect to a stay of an act against property under

Subsection (c) if:

(A) the insurer does not have equity in the property; and

(B) the property is not necessary to an effective rehabilitation

plan.

(i) For purposes of Subsection (h), "cause" includes the

receiver canceling a policy, surety bond, or surety undertaking

if the creditor is entitled, by contract or by law, to require

the insured or the principal to have a policy, surety bond, or

surety undertaking and the insured or the principal fails to

obtain a replacement policy, surety bond, or surety undertaking

not later than the later of:

(1) the 30th day after the date the receiver cancels the policy,

surety bond, or surety undertaking; or

(2) the time permitted by contract or law.

(j) In any hearing under Subsection (h), the party seeking

relief from the stay has the burden of proof on each issue, which

must be established by clear and convincing evidence.

(k) The estate of an insurer that is injured by any wilful

violation of a stay provided by this section is entitled to

actual damages, including costs and attorney's fees. In

appropriate circumstances, the receivership court may impose

additional sanctions.

(l) Any guaranty association or its designated representative

may intervene as a party as a matter of right or otherwise appear

and participate in any court proceeding concerning a delinquency

proceeding if the association is or may become liable to act as a

result of the rehabilitation or liquidation of the insurer.

Exercise by any guaranty association or its designated

representative of the right to intervene conferred under this

subsection does not constitute grounds to establish general

personal jurisdiction by the courts of this state. The

intervening guaranty association or its designated representative

are subject to the receivership court's jurisdiction for the

limited purpose for which it intervenes.

(m) Notwithstanding any other provision of law, bond may not be

required of the commissioner or receiver in relation to any stay

or injunction under this section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(d), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.008

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(d), eff. September 1, 2007.

Sec. 443.009. STATUTES OF LIMITATIONS. (a) If applicable law,

an order, or an agreement fixes a period within which the insurer

may commence an action, and this period has not expired before

the date of the filing of the initial petition in a delinquency

proceeding, the receiver may commence an action only before the

later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in a delinquency proceeding; or

(2) four years after the later of the date of entry of an order

for either rehabilitation or liquidation.

(b) Except as provided by Subsection (a), if applicable law, an

order, or an agreement fixes a period within which the insurer

may file any pleading, demand, notice, or proof of claim or loss,

cure a default in a case or proceeding, or perform any other

similar act, and the period has not expired before the date of

the filing of the petition initiating formal delinquency

proceedings, the receiver may file, cure, or perform, as the case

may be, only before the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 60 days after the later of the date of entry of an order for

either rehabilitation or liquidation.

(c) If applicable law, an order, or an agreement fixes a period

for commencing or continuing a civil action in a court other than

the receivership court on a claim against the insurer, and the

period has not expired before the date of the initial filing of

the petition in a delinquency proceeding, then the period does

not expire until the later of:

(1) the end of the period, including any suspension of the

period occurring on or after the filing of the initial petition

in the delinquency proceeding; or

(2) 30 days after termination or expiration of the stay under

Section 443.008 with respect to the claim.

(d) If the otherwise applicable limitations period has not

expired prior to the initial filing of the petition commencing a

delinquency proceeding, any other action or proceeding filed by a

receiver may be commenced at any time within four years after the

date upon which the cause of action accrues or four years after

the date on which the receiver is appointed, whichever is later.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Amended by:

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

730, Sec. 3B.004(e), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.009

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(e), eff. September 1, 2007.

Sec. 443.010. COOPERATION OF OFFICERS, OWNERS, AND EMPLOYEES.

(a) Any present or former officer, manager, director, trustee,

owner, employee, or agent of any insurer, or any other persons

with authority over or in charge of any segment of the insurer's

affairs, shall cooperate with the commissioner or receiver in any

proceeding under this chapter or any investigation preliminary to

the proceeding. For purposes of this section:

(1) "person" includes any person who exercises control directly

or indirectly over activities of the insurer through any holding

company or other affiliate of the insurer; and

(2) "cooperate" includes:

(A) replying promptly in writing to any inquiry from the

commissioner or receiver requesting the reply; and

(B) promptly making available to the commissioner or receiver

any books, accounts, documents, or other records or information

or property of or pertaining to the insurer and in the person's

possession, custody, or control.

(b) A person may not obstruct or interfere with the commissioner

or receiver in the conduct of any delinquency proceeding or any

preliminary or incidental investigation.

(c) This section may not be construed to abridge otherwise

existing legal rights, including the right to resist a petition

for liquidation or other delinquency proceedings, or other

orders.

(d) Any person described by Subsection (a) who fails to

cooperate with the commissioner or receiver, or any person who

obstructs or interferes with the commissioner or receiver in the

conduct of any delinquency proceeding or any preliminary or

incidental investigation, or who violates any order validly

issued under this chapter:

(1) commits an offense; and

(2) is subject to the imposition by the commissioner of an

administrative penalty not to exceed $10,000 and subject to the

revocation or suspension of any licenses issued by the

commissioner in accordance with Chapters 82 and 84.

(e) An offense under Subsection (d) is punishable by a fine not

exceeding $10,000 or imprisonment for not more than one year, or

both fine and imprisonment.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.010

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.011. ACTIONS BY AND AGAINST RECEIVER. (a) An

allegation by the receiver of improper or fraudulent conduct

against any person may not be the basis of a defense to the

enforcement of a contractual obligation owed to the insurer by a

third party, unless the conduct is found to have been materially

and substantially related to the contractual obligation for which

enforcement is sought.

(b) A prior wrongful or negligent action of any present or

former officer, manager, director, trustee, owner, employee, or

agent of the insurer may not be asserted as a defense to a claim

by the receiver under a theory of estoppel, comparative fault,

intervening cause, proximate cause, reliance, mitigation of

damages, or otherwise, except that the affirmative defense of

fraud in the inducement may be asserted against the receiver in a

claim based on a contract, and a principal under a surety bond or

a surety undertaking is entitled to credit against any

reimbursement obligation to the receiver for the value of any

property pledged to secure the reimbursement obligation to the

extent that the receiver has possession or control of the

property or that the insurer or its agents commingled or

otherwise misappropriated the property. Evidence of fraud in the

inducement is admissible only if the evidence is contained in the

records of the insurer.

(c) An action or inaction by the department or the insurance

regulatory authorities in any state may not be asserted as a

defense to a claim by the receiver.

(d) Except as provided by Subsection (e), a judgment or order

entered against an insured or the insurer in contravention of any

stay or injunction under this chapter, or at any time by default

or collusion, may not be considered as evidence of liability or

of the amount of damages in adjudicating claims filed in the

estate arising out of the subject matter of the judgment or

order.

(e) Subsection (d) does not apply to guaranty associations'

claims for amounts paid on settlements and judgments in pursuit

of their statutory obligations.

(f) The receiver may not be deemed a governmental entity for the

purposes of any state law awarding fees to a litigant who

prevails against a governmental entity.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.011

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.012. UNRECORDED OBLIGATIONS AND DEFENSES OF AFFILIATES.

(a) In any proceeding or claim by the receiver, an affiliate,

controlled or controlling person, or present or former officer,

manager, director, trustee, or shareholder of the insurer may not

assert any defense, unless evidence of the defense was recorded

in the books and records of the insurer at or about the time the

events giving rise to the defense occurred and, if required by

statutory accounting practices and procedures, was timely

reported on the insurer's official financial statements filed

with the department.

(b) An affiliate, controlled or controlling person, or present

or former officer, manager, director, trustee, or shareholder of

the insurer may not assert any claim, unless the obligations were

recorded in the books and records of the insurer at or about the

time the obligations were incurred and, if required by statutory

accounting practices and procedures, were timely reported on the

insurer's official financial statements filed with the

department.

(c) Claims by the receiver against any affiliate, controlled or

controlling person, or present or former officer, manager,

director, trustee, or shareholder of the insurer based on

unrecorded or unreported transactions are not barred by this

section.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.012

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.013. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. (a)

The receiver may assume or reject any executory contract or

unexpired lease of the insurer.

(b) Neither the filing of a petition commencing delinquency

proceedings under this chapter nor the entry of an order for a

delinquency proceeding constitutes a breach or anticipatory

breach of any contract or lease of the insurer.

(c) If there has been a default in an executory contract or

unexpired lease of the insurer, the receiver may not assume the

contract or lease unless, at the time of the assumption of the

contract or lease, the receiver:

(1) cures or provides adequate assurance that the receiver will

promptly cure the default; and

(2) provides adequate assurance of future performance under the

contract or lease.

(d) Subsection (c) does not apply to a default that is a breach

of a provision relating to:

(1) the insolvency or financial condition of the insurer at any

time before the closing of the delinquency proceeding;

(2) the appointment of or taking possession by a receiver in a

case under this chapter or a custodian before the commencement of

the delinquency proceeding; or

(3) the satisfaction of any penalty rate or provision relating

to a default arising from any failure of the insurer to perform

nonmonetary obligations under the executory contract or unexpired

lease.

(e) A claim arising from the rejection, under this section or a

plan of rehabilitation, of an executory contract or unexpired

lease of the insurer that has not been assumed shall be

determined, treated, and classified as if the claim had arisen

before the date of the filing of a successful petition commencing

the delinquency proceeding.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.013

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.0135. CONTRACTS FOR SPECIAL DEPUTIES. (a) The

receiver shall use a competitive bidding process in the selection

of any special deputies appointed under Section 443.102 or

443.154. The process must include procedures to promote the

participation of historically underutilized businesses that have

been certified by the comptroller under Section 2161.061,

Government Code.

(b) A proposal submitted in connection with a bid solicitation

under Subsection (a) must describe the efforts that have been

made to include historically underutilized businesses as

subcontractors and the plan for using the historically

underutilized businesses in the administration of the

receivership estate. A special deputy appointed under Section

443.102 or 443.154 shall make a good faith effort to implement

the plan and shall report to the receiver the special deputy's

efforts to identify and subcontract with historically

underutilized businesses.

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

995, Sec. 1, eff. September 1, 2005.

Amended by:

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

730, Sec. 3B.004(f), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.0135

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Amended by:

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

921, Sec. 9.004(f), eff. September 1, 2007.

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

937, Sec. 1.98, eff. September 1, 2007.

Sec. 443.014. IMMUNITY AND INDEMNIFICATION OF RECEIVER AND

ASSISTANTS. (a) For the purposes of this section, the persons

entitled to immunity and indemnification and those entitled to

immunity only, as applicable, are:

(1) all present and former receivers responsible for the conduct

of a delinquency proceeding under this chapter;

(2) all of the receiver's present and former assistants,

including:

(A) all present and former special deputies and assistant

special deputies engaged by contract or otherwise;

(B) all persons whom the receiver, special deputies, or

assistant special deputies have employed to assist in a

delinquency proceeding under this chapter; and

(C) any state employees acting with respect to a delinquency

proceeding under this chapter; and

(3) all of the receiver's present and former contractors,

including all persons with whom the receiver, special deputies,

or assistant special deputies have contracted to assist in a

delinquency proceeding under this chapter, including attorneys,

accountants, auditors, actuaries, investment bankers, financial

advisors, and any other professionals or firms who are retained

or contracted with by the receiver as independent contractors and

all employees of the contractors.

(b) The receiver, the receiver's assistants, and the receiver's

contractors have immunity under this chapter, as described by

Subsections (c) and (d).

(c) The receiver, the receiver's assistants, and the receiver's

contractors are immune from suit and liability, both personally

and in their representative capacities, for any claim for damage

to or loss of property or personal injury or other civil

liability caused by or resulting from any alleged act, error, or

omission of the receiver or any assistant or contractor that

arises out of or by reason of their duties or employment or is

taken at the direction of the receivership court, providing that

the alleged act, error, or omission is performed in good faith.

(d) Any immunity granted by this section is in addition to any

immunity granted by other law.

(e) The receiver and the receiver's assistants are entitled to

indemnification under this chapter, as described by Subsections

(f)-(l).

(f) If any legal action is commenced against the receiver or any

assistant, whether against the receiver or assistant personally

or in their official capacity, alleging property damage, property

loss, personal injury, or other civil liability caused by or

resulting from any alleged act, error, or omission of the

receiver or any assistant arising out of or by reason of their

duties or employment, the receiver and any assistant are

indemnified from the assets of the insurer for all expenses,

attorney's fees, judgments, settlements, decrees, or amounts due

and owing or paid in satisfaction of or incurred in the defense

of the legal action, unless it is determined upon a final

adjudication on the merits that the alleged act, error, or

omission of the receiver or assistant giving rise to the claim:

(1) did not arise out of or by reason of their duties or

employment; or

(2) was caused by intentional or wilful and wanton misconduct.

(g) Attorney's fees and any and all related expenses incurred in

defending a legal action for which immunity or indemnity is

available under this section must be paid from the assets of the

insurer, as the fees and expenses are incurred, and in advance of

the final disposition of the legal action upon receipt of an

agreement by or on behalf of the receiver or assistant to repay

the attorney's fees and expenses, if it is ultimately determined

upon a final adjudication on the merits that the receiver or

assistant is not entitled to immunity or indemnity under this

section.

(h) Any indemnification for expense payments, judgments,

settlements, decrees, attorney's fees, surety bond premiums, or

other amounts paid or to be paid from the insurer's assets

pursuant to this section are an administrative expense of the

insurer.

(i) In the event of any actual or threatened litigation against

a receiver or any assistant for whom immunity or indemnity may be

available under this section, a reasonable amount of funds, which

in the judgment of the receiver may be needed to provide immunity

or indemnity, must be segregated and reserved from the assets of

the insurer as security for the payment of indemnity until:

(1) all applicable statutes of limitation have run;

(2) all actual or threatened actions against the receiver or any

assistant have been completely and finally resolved; and

(3) all obligations under this section have been satisfied.

(j) Instead of segregating and reserving funds under Subsection

(i), the receiver may, in the receiver's discretion, obtain a

surety bond or make other arrangements that will enable the

receiver to secure fully the payment of all obligations under

this section.

(k) If any legal action against an assistant for whom indemnity

may be available under this section is settled prior to final

adjudication on the merits, the receiver must pay the settlement

amount on behalf of the assistant, or indemnify the assistant for

the settlement amount, unless the receiver determines that the

claim:

(1) did not arise out of or by reason of the assistant's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the assistant.

(l) In any legal action in which a claim is asserted against the

receiver, that portion of any settlement relating to the alleged

act, error, or omission of the receiver is subject to the

approval of the receivership court. The receivership court may

not approve that portion of the settlement if it determines that

the claim:

(1) did not arise out of or by reason of the receiver's duties

or employment; or

(2) was caused by the intentional or wilful and wanton

misconduct of the receiver.

(m) Nothing contained or implied in this section may operate or

be construed or applied to deprive the receiver, the receiver's

assistants, or receiver's contractors of any immunity, indemnity,

benefits of law, rights, or defense otherwise available.

(n) The immunity and indemnification provided to the receiver's

assistants and the immunity provided to the receiver's

contractors under this section do not apply to any action by the

receiver against that person.

(o) Subsection (b) applies to any suit based in whole or in part

on any alleged act, error, or omission that takes place on or

after September 1, 2005.

(p) Subsections (e)-(l) apply to any suit that is pending on or

filed after September 1, 2005, without regard to when the alleged

act, error, or omission took place.

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

995, Sec. 1, eff. September 1, 2005.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

730, Sec. 3B.004(a)(1), eff. September 1, 2007.

Redesignated from Insurance Code - Not Codified, Art/Sec 21A.014

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

921, Sec. 9.004(a)(1), eff. September 1, 2007.

Sec. 443.015. APPROVAL AND PAYMENT OF EXPENSES. (a) The

receiver may pay any expenses under contracts, leases, employment

agreements, or other arrangements entered into by the insurer

prior to receivership, as the receiver deems necessary for the

purposes of this chapter. The receiver is not required to pay

any expenses that the receiver determines are not necessary, and

may reject any contract pursuant to Section 443.013.