Untitled Texas Attorney General Opinion

The Honorable Joe Christie Opinion No. H-848
Chairman
State Board of Insurance Re: Whether persons who
1110 San Jacinto Blvd. were not subject to a
Austin, Texas 78786 disciplinary order of the
Commissioner of Insurance
may appeal that order to
the State Board of Insur-
ance.

Dear Chairman Christie:

You have requested our opinion regarding whether persons
not subject to a disciplinary order of the Commissioner of
Insurance may appeal from an order to the State Board of
Insurance.

On October 16, 1975, the Commissioner of Insurance
issued a consent order by which two business entities agreed
to

take such actions as may be necessary . . .
to make it clear that [corporation] is not
engaged as an agent in the insurance bus-
iness, that [companyj is an agent engaged
in the insurance business, and to delineate
the role or functions of each entity in any
integrated or joint program of insurance and
securities solicitations and sales! so as to
avoid the possibility of [corporation] doing
business as an insurance agent or the public
believing that [corporation], rather than
tcompanyl, is engaged in such insurance
business.

p. 3577
The Honorable Joe Christie - page 2 (H-848)

Apparently, the Commissioner's order grew out of charges of
"unfair methods of competition and unfair and deceptive acts
or practices in the business of insurance," as defined in
and prohibited by article 21.21 of the Texas Insurance Code.
Sections 3 & 4. Likewise, the Commissioner's consent order
was issued under the authority of section 22 of article
21.21, which permits the Board

[iln the administration of this Article
. . . [to] accept assurance of voluntary
compliance with respect to any act or prac-
tice which violates this Article . . . .

Article 1.04(d) of the Insurance Code provides, in
pertinent part:

Any person or organization, private or
public, which is affected by any ruling
or action of the Commissioner of Insur-
ance shall have the right to have such a
ruling or action reviewed by the State
Board of Insurance by making an application
to the Board.

Other portions of the Insurance Code provide for appeal in
specific instances, such as section 13 of article 21.07-1,
which authorizes an "applicant or accused" to appeal the
suspension, revocation, or denial of a license. Although
it is arguable that some of these special appeal provisions
were repealed by the enactment of article 1.04(d), the court
in State Board of Insurance v. Adams, 316 S.W.Zd 773 (Tex.
Civ. App. -- Houston 1958, nrwm held that they were
repealed only to the extent they are "repugnant to or incon-
sistent with the terms of the later statute." Id. at 776,
779. In any event, article 21.21 contains no special appeal
section except for the inclusion by reference in section 13
of article 21.44 with respect to cease and desist orders.
AS to orders acknowledging voluntary compliance under section
22 of article 21.21, we believe that the general appeal statute,
article 1.04(d), is clearly applicable.

p. 3578
The Honorable Joe Christie - page 3 (H-848)

Article 1.04(d) permits "any person or organization" to
appeal to the State Board of Insurance "any ruling or action
of the Commissioner," provided the appellant is "affected"
by such ruling or action. Whether an appellant is a person
"affected" requires a factual determination which is properly
within the discretionary authority of the Board. In Empire
Gas
mm- h Fuel Co. v. Railroad Commission of Texas, 94 S.W.Zd
1240 (Tex. G.?ipp. -- Austin 1936, wzt ref'd), the court
found it impracticable for the Legislature to define precisely
who were "interested parties affected" and held that whether a
party was "affected" was

generally a fact question dependent upon
the facts and circumstances of the partic-
ular case . . . . -Id, at 1244.

Thus, it is our opinion that any person "affected" by the
order of the Commissioner may appeal that decision to the
State Board of Insurance pursuant to article 1.04(d) of the
Insurance Code. It is for the Board reasonably to determine
whether an appellant is "affected" by the Commissioner's
order.

SUMMARY

Any person "affected" by an order of the
Commissioner of Insurance pursuant to
article 21.21, Texas Insurance Code, may
appeal that decision to the State Board
of Insurance under article 1.04(d).
Whether the appellant is a person "affected"
is a question of fact to be determined by
the Board.

p. 3579
The Honorable Joe Christie - page 4 (H-848)

APPROVED:

Opinion Committee

jwb

p. 3580