                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                 December 22,2006



Mr. Mike Geeslin                                             Opinion No. GA-0495
Commissioner of Insurance
Texas Department of Insurance                                Re: Whether the Texas Department of Insurance
Post Office Box 149104                                       is prohibited %om disclosing the identities of
Austin, Texas 78714-9104                                     companies writing commercial property insurance
                                                             along the Texas coast (RQ-0502-GA)

Dear Commissioner         Geeslin:

        You ask whether section 38.003(d) of the Insurance Code prohibits the Texas Department
of Insurance (the “Department”) from disclosing the identities of companies writing commercial
property insurance along the Texas coast.’

         In May of 2006, the Department addressed a written “inquiry to twenty-five groups of Tier
1 and Tier 2 commercial property insurers.” Request Letter, supra note 1, at 1 ? The Department
asked the insurers to provide responses to a number of questions, including whether the insurers
were writing new policies and renewals in Tier 1 and Tier 2; what deductibles were available in
those areas; whether insurers were providing wind coverage in Tier 1; and whether the insurers
applied special restrictions on coverage. Id. The Department also requested that the insurers specify
“all answers that were changes in underwriting guidelines since September 1,2005 _” Id. You state
that in response to the Department’s request that an insurer designate and label any information it
deemed to be confidential, “several of the insurers identified their responses as proprietary and
confidential.” Id. at 2.

         You question whether the Department may release a list of companies writing commercial
insurance policies along the Texas coast. You particularly note that “tilt is not the goal or intent to
release specific underwriting criteria or formulas.” Id. at 3. You have assured us that you propose
to release only the identities of those companies that are writing policies?



           ‘Letter from Commissioner Mike Geeslin, Texas Department of Insurance, to Honorable Greg Abbott, Attorney
General of Texas (Aug. 23, 2006) (on tile with the Opinion Committee, also available at http:ll~,oag.state.tx.us)
[hereinafter Request Letter].

          ‘“Tier 1” refers to a county that is adjacent to the Texas coast, and “Tier 2” refers to a county that is adjacent
to a “Tier 1” county. SeeT~x. INS. CODE ANN., art. 21.49, 3 3(&(m) (Vernon Supp. 2006).

         ‘Telephone   Conversation   with Gene C. Jannon, General Counsel, Texas Dep’t of Insurance        (Sept. 22,2006).
Mr. Mike Geeslin - Page 2                      (GA-0495)




        Chapter 38 of the Insurance Code relates to “data collection and reports” by the Department.
Section 38.001 provides, in relevant part:

               (b) The department       may address     a reasonable   inquiry   to any
               insurance company         relating to:

                       (1) the person’s business condition; or

                      (2) any matter connected with the person’s transactions that
               the department considers necessary for the public good or for the
               proper discharge of the department’s duties.




               (d) A response made under this section that is otherwise privileged
               or confidential by law remains privileged or confidential until
               introduced into evidence at an administrative hearing or in a court.

TEX. INS. CODE ANN. 5 38.001(b), (d) (Vernon Supp. 2006).

         Section 38.002 relates to “underwriting guidelines for personal automobile and residential
property insurance,” while section 38.003 relates to “underwriting guidelines for other lines,”
including commercial property insurance. Section 38.003 provides that underwriting guidelines are
confidential and will not be made available to the public by the Department. Id. 5 38.003(d). The
term “underwriting guideline” is not defined in section 38.003, but it is defined in section 38.002.
In that section, “underwriting guideline” means:

                a rule, standard, guideline, or practice, whether written, oral, or
                electronic, that is used by an insurer or its agent to decide whether to
                accept or reject an application for coverage under a personal
                automobile insurance policy or residential property insurance policy
                or to determine how to classify those risks that are accepted for the
                purpose of determining a rate.

Id. 5 38,002(a)(4). Section 38.003 was amended in 2003 as part of the same bill that added the
present version of section 38.002. See Act of June 2, 2003,7Sth Leg., R.S., ch. 206, $ 8.01,20~03
Tex. Gen. Laws 907,932-33. When “construing a statutory word or phrase, the court may take into
consideration the meaning of the same or similar language used elsewhere in the act or in another
act of similar nature.” L & M-Sttrco Mfg., Inc. v. Winn Title Co., 580 S.W.2d 920,926 (Tex. Civ.
App.-Tyler     1979, writ dism’d). “This rule applies with particular force where the meaning of a
word as used in one act is clear.  and the same word is subsequently used in another act pertaining
to the same subject.” Id.; accord Guthery v. Taylor, 112 S.W.3d 715,721 (Tex. App.-Houston
 [14th Dist.] 2003, no pet.). We may with confidence import the definition of “underwriting
Mr. Mike Gee&n      - Page 3                   (GA-0495)




guideline” from section 38.002 into section 38.003, substituting “commercial property insurance
policy” for “personal automobile insurance policy or residential property insurance policy.”

         A question remains,‘however, about whether the term “underwriting guideline” embraces a
list of companies that write policies along the Texas coast. The mere fact that a company writes
policies for a particular area does not, in our view, constitute an “underwriting guideline.” That fact
is neither a “rule,” a “standard,” a “guideline,” nor a “practice” whereby “an insurer or its agent
[decides] whether,to accept or reject an application for coverage . or to determine how to classify
those risks that are accepted for the purpose of determining a rate.” See TEX. INS. CODE ANN. 3
3 8.002(a)(4) (Vernon Supp. 2006). If the legislature had intended to include a mere statement of fact
in the definition of “underwriting guideline.” it could have easily done so. We believe a court would
conclude that whether a company writes policies in a particular area is simply a statement of fact.
The Department’s release of such information may not fairly be said to constitute an act prohibited
by section 38.003(d) of the Insurance Code.

        We conclude that section 38.003(d) of the Insurance Code does not prohibit the Department
from disclosing the identities of companies writing commercial property insurance along the Texas
coast.
Mr. Mike Geeslin   - Page 4                   (GA-0495)




                                       SUMMARY

                       The Texas Department of Insurance is not prohibited by
               section 3 8.003 (d) ofthe Insurance Code from disclosing the identities
               of companies writing commercial property insurance along the Texas
               coast.




                                              Attor&+&eneral     of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
