                                   The Attorney         General of Texas

 JIM MATTOX                                         Auj:Ist13, 1984
 Attorney General


 Supreme Court Building           Mr. Lyndon L. Olson, Jr.              Opinion   NO.   JM-187
 P. 0. BOX 12548                  Chairman
 Austin. TX. 78711. 2548          State Board of Insurance              Re: Reconsideration of JM-88:
 512l475.2501
                                  1110 San Jacinto Boulevard            Whether   the   Insurance   Code
 Telex 910/874-1387
 Telecopier   512l475.0286
                                  Austin, Texas   78786                 per se prohibits certain finan-
                                                                        cial arrangements between a life
                                                                        insurance company and its sub-
 714 Jackson. Suite 700                                                 sidiary which is compensated on
 Dallas, TX. 752024508
                                                                        a percentage of annual premiums
 2141742.8944
                                                                        written

 4824 Alberta   A”.%, Suite 160   Dear Mr. Olson:
 El Paso, TX. 79905.2793
 915/533-3464                          You have reque!;teda reconsideration of ~~-88 regarding whether
                                  all financing arrangements between a parent life insurance company and
hW       Texas. Suite 700
                                  an affiliate which are based on a fee computed on a percentage of
     .mston, TX. 77002.3111       annual premiums written are per se prohibited by article 3.68, or
 ?13/2234666                      whether they are su>ject to the fair and reasonable test set out in
                                  article 1.29 and article 21.49-1, section 4, of the Texas Insurance
                                  Code. You have no': raised any question about the reasoning of JM-88
 606 Broadway, Suite 312
 Lubbock, TX. 79401-3479
                                  that article 3.68 applies to arrangements between foreign corporations
 8061747-5233                     regarding out of si:ate business, and we reaffirm the conclusion of
                                  JR-88 as to that matter. However, upon reconsideration, we withdraw
                                  those portions of the reasoning and conclusions of JM-88 which hold
 4309 N. Tenth. Suite S
                                  that any arrangement by which a life insurance company pays a fee
 k&Allen, TX. iS501-15S5
 512f682.4547                     based on the number of policies sold, to a subsidiary having the same
                                  president and secretary as the parent company per se violates article
                                  3.68 of the Texas lr,suranceCode.
 200 Main Plaza. Suite 400
 San Antonio,    TX. 782052797
 512,225-4191
                                        The question addressed by JM-88 asked whether a life insurance
                                  company was permitix!dto compensate another corporation with officers
                                  in common for the provision of certain services, when such
 An Equal Opportunity/            compensation was bar,edon a percentage of net premiums received by the
 Affirmative Action Employer      insurance company from non-Texas business. You advised that it was
                                  the long-standing construction of your agency that article 3.68
                                  prohibited certain "officers" of a life insurance company from
                                  receiving any com)+?nsation based on a percentage of the business
                                  produced by their cx~mpapany. Our attention was called to a letter dated
                                  MY 29. 1926, fron an assistant attorney general regarding article
                                  4745.  V.T.C.S., whL:h was later transferred unchanged to article 3.68
                                  of the Insurance Code. See Attorney General Letter Opinion Book 281
                                  (1926). page 106.          -




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Mr. Lyndon L. Olson, Jr. - :?.ige
                                2        (m-187)




     The only other applic;;tionwhich we found of article 3.68, also
in its prior codification 8s article 4745, is contained in Attorney
General Opinion O-5913 (19!,[). Neither of those opinions dealt with
the meaning of the prohibic:orylanguage in the statute as applied to
the situation at issue in y','lr
                               request.

     No legislative history .?rovidesguidance as to the mesning of the
statutory language which wa,3 originally section 7 of a 1909 enactment,
other than the 1909 title, which indicates that the statute was one
"making it unlawful to pay :ertain persons for procuring insurance."
(Emphasis added). Acts 190 3, 31st Leg., 2d C.S., ch. 25, at 448. Nor
does the subject matter of the remainder of that act give any further
indication as to its purpose. Hence, we must ascertain the meaning
and intention of the legislature from the language of article 3.68 as
it has existed unchanged fcr over seven decades. -See 53 Tex. Jur. 2d
Statutes 5130 (1964).

     The language in ques:ion prohibits the payment to certain
"officers" of "any commissi~~:~
                              dr other compensation" if payment is (1)
contingent upon the writing l)rprocuring of s   policy of insurance in
such company; or (2) [ccntingent upon] procuring an application
therefor by x   person whon.eoever;or (3) contingent upon the payment
of x   renewal premium; or (,i)[contingent] upon the assumption of 9
life insurance risk by suC1 company. Excluded from this prohibition
of payment resulting from the listed actions are agents and
solicitors. We think this exclusion is significant and is indicative
of the objective of this seatute. An insurance agent is routinely
compensated by commissions '>,%sed
                                 on his rates. Article 3.68 obviously
prohibits payments to certstn specified non-sales personnel -- i.e.
"president, vice president, secretary, treasurer, actuary, medical
director . . . or . . . any officer of the company" -- for the types
of activities listed above, all of which constitute discrete steps in
the sale of life insurance .?,,licies.

     We think these references to specific steps 1~ the process of
life insurance sales clarify the meaning of the use of the otherwise
ambiguous word "any" in thl:enumeration of each action. See Black's
Law Dictionary 86 (5th ed. 1379). The nature and context ofhis    list
indicate that the prohibition is directed at particular, individual
transactions and was intentiazdto prevent only conflicts of interest
between those persons who I'l'oduceapplications for insurance business
in order to receive commissions therein, and those persons who have
the responsibility to appruJz the applications for insurance on behalf
of such companies and ther&,:rbind them on the policy.

     Indeed, two other Insul:anceCode provisions adopted in 1971 and
otherwise unnecessary or :onflicting support this result.        Both
article 1.29, a broad conflict of interest statute, and article
21.49-1. a comprehensive l,egulatory scheme for insurance holding
company systems test the Ill'oprietyof transactions within insurance
holding company systems by standards of fairness, reasonableness, and


                                    p.   a17
Mr.   Lyndon L. Olson, Jr. - Page 3        (JM-187)




other equitable bases.    For example, section l(c)(S) of article 1.29
allows:

               (A) Any tranciactions within an insurance
            holding company r%:%tem by insurers with their
            holding companies, subsidiaries or affiliates that
            are not prohibitetlby law, that meet the test of
            being fair and pr#,:,er,and that are regulated by
            other statutes; ;nld (B) other transactions or
            arrangements not pxohibited by law that meet the
            test of being fa:.?.and proper as prescribed by
            rules and regulat:ionsadopted by the State Board
            of Insurance.

Likewise, section 4. subsections (a)(l), (a)(2), and (d)(Z)(iii) of
article 21.49-1 establishes that such transactions as "rendering of
services on a regular or systematic basis" are governed by standards
including "fair and equit%,Le" terms    and "reasonable" charges and
fees. Neither statute prohL)its, per se, payments to the subsidiary
service corporation based on the amount of annual net premiums issued,
this being a measure of thr value of work done by the affiliate for
the parent company.

     We see no basis for concluding that article 3.68 ever prohibited
payments such as those at ir;ruehere. Transactions such as those you
have inquired about which are based on the volume of business
transacted are not prohibited by article 3.68.

                               SUMMARY

               A life insurance!company may base its payment
            to a wholly own1~11subsidiary corporation, for
            services rendered by the affiliate corporation, on
            the net premiums received by the parent life
            insurance company rrithoutviolating article 3.68,
            so long as the arrangement is consistent with
            article 1.29 and z,rticle 21.49-1, section 4, of
            the Insurance Code.




                                             JIM     MATTOX
                                             Attorney General of Texas

TOM GREEN
First Assistant Attorney General




                                      p.   ala
Mr. Lyndon L. Olson, Jr. - 'hge 4        ~(JM-187)




DAVID R. RICHARDS
Executive Assistant Attorrq   General

Prepared by Colin J. Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Henry Robinson
Nancy Sutton
Bruce Youngblood




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