,




    Ron. Walter C. Woodward, Chairman
    Board of Insurance ComMasloners
    Austin, Texas
    Dear Sir:
                  Opinion No. O-1471
                  Re: The provisions of Senate Bill No. 397,
                       Acts of the Regular Session of the 46th
                       Legislature, and of the special rider
                       attached to the General Appropriation
                       Bill of the section dealing with the
                       Examining Division of the Insurance De-
                       partment governs the rate of pay and
                       expense allowance of Examiners conduct-
                       ing an out of state examination.
           Your letter of September 21, 1939 in which you submit
    for an opinion of this department the question of the proper
    rate of payment of salary and expenses for a Texas examiner
    while engaged in examining an out of state insurance company
    at the home office of such company has been received.
           We deem it advisable to herein set out the pertinent
    parts of your Inquiry as followa:
           "Senate Bill 397, passed by the Forty-sixth
        Leglalature, Regular Session 1939, amended Section
        3 of Chapter 152 of the Regular Session of the
        Forty-second Legislature (Article 4690a) pertain-
        ing to the examination of insurance companies by the
        Chairman of the Board of Insurance Commissioners
        of Texas. In providing for the examination of out-
        of-state insurance companies and the rate of pay
        of Texas Examiners engaged In such work, Senate
        Bill 397 contained the following provision:
              'I Examiners' remuneration and ex-
          penses shall be the same as that which
          would be paid by the home state of a
          company under examination to persona
          conducting the examination of a Texas
          company admitted to do business In that
          State. If there be no recognized charge
Hon. Walter C. Woodward, page 2        o-1471


       for such services, the Chairman shall
       fix the reumneration and expense allow-
       ance of the examiners at such reaaon-
       able figure as he may determine.'
       "This Bill contained the emergency clause
    and was passed in the Senate by a vote of thirty
    for and one against, and in the House by a vote
    of one hundred and twelve for and none against;
    clearly indicating the Intention of the Legiala-
    ture.
       "Innnediatelyafter this Bill became effec-
   tlve (May 15, 1939), we began operating under
   its provisions. In all cases where one of our
   Examiners was assigned to the examination of an
   out-of-state insurance company, we ascertained
   from the Insurance Commissioner of the particular
   state, the rate of pay and expense allowance for
   his Examiners when assigned to a Texas company,
   and we have been paying our Examiners such re-
   taliatory rate. This rate has varied greatly
   depending upon the rate of pay of the particular
   state and has been applied without regard to the
   rate of pay in effect when our Examiners are as-
   signed to Texas companies, which latter rate was
   flxed by the General Appropriation Bill of the
   Forty-fifth Leglslatire. For Instance, in your
   opinion No. 3075 you held that in the case of
   Examiner Homer Sanderford assigned to an insurance
   company domiciled in New York State, after having
   determined the applicable New York rate in the
   examination of Texas companies, we were entitled
   to pay Mr. Sanderford that same rate and give
   him the same expense allowance. This per diem
   rate and expense allowance was In excess  of Mr.
   Sanderford's rate when examining a Texas company
   in Texas, the applicable New York rate being
   higher than the Texas rate.
       ,,
        ..... ..
      "The question propounded to you is: Do the
   provisions of Senate Bill 397, quoted, and the
   provisions of the special rider to the Examining
   Division appropriation, also quoted, govern
   the rate of pay and expense allowance to our
   Examiners in out-of-state examinations, or is
   that rate fixed according to the positions
   listed in detail by the General Appropriation
Hon. Walter C. Woodward, page 3         o-1471


    Bill and the expense allowance limited to a
    maximum of $4.00 per day by the general rider
    to the Appropriation bill? This question has
    been raised by the State Comptroller . . . ."
       We held in our Conference Opinion No. 3075, dated
August 3, 1939, referred to by you, that a Texas insurance
examiner conducting an examination In a foreign state of a
company Incorporated therein and having a permit to trana-
act business in Texas is entitled to compensation and ex-
penses equal to the compensation paid by that particular
state to an examiner conducting an examination of a Texas
company in Texas, and having a permit to transact business
in such forelgn state. We further held in such opinion that
the Commissioner of Ltfe Insurance of Texas was given a dia-
cretlon to determine into which classlflcatlon of examiners
established by a foreFgn state, a Texas examiner should be
placed in the event the classifications of Texas and such
foreign state are not Identical or, In event there Is no re-
cognlzed charge for such service.
       Senate Bill No. 397~;Acts of the Regular Session of the
46th Leglalature by which Articles 46gOa and 4690b, Revised
Civil Statutes of Texas, were amended, and upon-which our above
conference opinion was baaed contained an emergency clause and
became effective May 13, 1939. The question submitted resolves
itself Into the proposition of determinlng whether salaries
and expenses of examiners conducting examLnation8 outside of
Texas are to be set by the terms and provisions of Senate Bill
No. 397, aupra, or, are to be limited to the salar figure set
                                                  t
out in the General Appropriation Bill ana to the $..OO per day
limitation upon traveling expenses, thereby avoiding the plain
Fntent of the Legislature as expressed in such Senate Bill No.
397.
       Paragraph 5 of Article 469Oa taken from Senate Bill No.
397, reads as follows:
      "In case of an examination of a company
   not organized under the laws of Texas, whether
   such examination is made by the Texas authori-
   ties alone, or jointly wlth the insurance super-
   visory authorities of another state or states,
   the expenses of such examination due to Texas'
   particlpatlon therein, shall be borne by the com-
   pany under examination. Payment of such coat
   shall be made by the company upon presentation
   of itemized written statement by the Chairman,
   and shall consist of the examiners' remuneration
   and expenses, and the other expenses of the
Hon. Walter C. Wocdward, page 4         o-1471


    Department of Insurance properly allocable to the
    examination. Payment shall be made directly to the
    Chairman, and all money collected by assessment
    on foreign companies for the cost of examination
    shall be deposited in the State Treasury by the
    Chairman to the credit of the Insurance Examina-
    tion Fund out of which shall be paid, by warrant
    of the State Comptroller of Public Accounts on
    voucher of the Chairman of the Board of Insurance
    Commissioners, the examiners' remuneration and
    expenses in the amounts determined by the method here-
    inafter provided, when verified by their affidavit
    and approved by the Chairman; and said money is
    hereby appropriated for that purpose, the balance,
    If any, to remain in the Insurance Examination Fund
    in the State Treasury subject to be expended for
    the purposes as are other funds placed therein.
    Examiners' remneratlon and expenses shall be
    the same as that which would be paid by the home
    state of a company under examination to persona
    conducting the examination of a Texas company
    admitted to do business in that State. If there
    be no recognized charge for such service, the
    Chairman shall fix the remunerationand expense
    allowance of the examiners at such reasonable
    figure as he may determine. Acts 1931, 42nd Leg.,
    p. 252, ch. 152, Para. 3, as amended Acts 1939,
    46th Leg., S.B. No. 397, Para. 1."
       We observe a definite, full and complete appropriation
by the Legislature of all funds collected by virtue of such
act for carrying out the purposes therein mentioned. There
seems to be no question as to its sufficiency from the effec-
tive date of such act to September 1, 1939, and you advise
that the Comptroller now raises the question of whether the
same is effective for the fiscal years, beginnlng September
1, 1939 and September 1, 1940.
       Looking to the terms and provisions of Senate Bill 427,
which 1s the General Appropriation Bill of the 46th Legislature,
for the two year period beginning September .l, 1939 and ending
August 31, 1941, we find the following pertinent language In
the section dealing with the examining division of the Insurance
Department:
       "For the purposes of paying the fore-
    going examination expense and such expense
    as is necessary incident to the examination
    work and the payment of the salaries of any
    additional examiners, stenographers, clerks
Hon. Walter C. Woodward, page 5          o-1471


    and such help as is necessary in the adminis-
    tration of the examining division (provided
    any additional employees performing similar
    work to the posltlons designated hereinabove
    shall not receive a greater sum of compensa-
    tion than that herein provided), and for
    defraying all other expenses necessary for the
    administration of the provisions of Chapter
    152 of the General Laws of the Regular Session
    of the Forty-second Legislature and Chapter
    264 of the Forty-fourth Legislature, and m
    and all amendments thereto, and as amaed
    --                                         &
    Senate Bill x,   Acts Regular Session of the
    semature,         m,    there is hereby aporo-
    priated all fees and assessments &ollected
    under authority of said Examining &,   together
    with any balances at the end of a preceding
    fiscal year, for each of the fiscal years end-
    ing August 31, 1940, and Auguat31, 1941. The
    head of the department shall make application
    to the Board of Control and recetve its approv-
    al in writing before employees, other than
    those Itemized in the appropriation bill, are
    employed. Said application shall set out the
    reasons, and necessity for the employment of
    the additional employees." (Underscoring ours)
       Thus, it clearly appears that there is a definite and
clear appropriation of all fees and assesaments collected
under authority of the Examining Law for the purpose of carry-
out the terms of Senate Bill 397, supra, as well as the other
pertinent statutes.
       It is therefore, the opinion of this department and
you are so advised that the prov1aions of Senate Bill 397,
aupra, and the hereinabove quoted special rider to the Ex-
amlning Dlvislon of the Insurance Department contained in the
General Appropriation Bill governs the rate of pay and expense
allowance of examiners conducting an out-of-state examination
and is to be arrived at in accordance with our conference
opinion No. 3075, and that the same shall be effective until
August 31, 1941.
                                                        -   .   _




Hon.   Walter C. Woodward, page 6        O-1471


                               Yours very truly
                            ATTORNEY GENERAL OF TEXAS

                               By a/Lloyd Armstrong
                                    LLoyd Armstrong
                                    Assistant
LA:AW:wc
APPROVED OCT 14, 1939
a/Robert E. Kepke
(Acting) ATTORNEY GENERAL OF TEXAS

APPROVED Opinion Committee By s/BP   Chairman
