Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL OFTEXAS Honorable George B. Butler, Chairman Board of Insurance Commissioners Austin, Texas Dear Sir: Opinion No. O-7004 Re: Interpretation of Set, 2, of Art, 5068-3, Vernon's Annotated Civil Statutes. We have received your requests for our opinion on the hereinabove captioned.matter, and we quote from your first request as follows: "Under the provisions of Article 5068-3, Section 2, after the mortuary funds of the assessment association have become the property of the corporation reinsuring the membershfp of such association, may such funds be lawfully dis- bursed by the reinsuring corporation for all of the following purposes: "1 0 for payment of valid claims outstanding and arising thereafter from policies Issued by the legal reserve company to the members of the assessment associatfon, "2 o to set up the legal reaerve on new policies issued by the legal reserve cornGangto the members of the assessment association, "3 D and to pay their actuarial portion of such mortuary fund to members of such association who refuse to accept the new policies offered them, and who make request therefor wlthin sixty (60) days from the date of reinaurance? "If your answer to the preceding inquiry is in the affirmative, may the Board of Insurance Commis- sioners lawfully refuse ,toapprove a proposed plan and agreement on the sole ground that such proposed, plan and agreement provides that the mortuary funds belonging to the association may be disbursed for ail of the three purposes specified In the preceding Hon. George B, Butler, page 2 O-7004 inquiry and compel said association and reinsuring corporation to agree that the mortuary funds shall be alsbursea for only one or two and not all of such speciffed purposes or for some other or dlfferent purpose before the Board will give its approval as pro- vided In said Statute." Set, 2, Art, 5068-3, V,A.C.S., reads as follows: "The sums of any mortuary funds belonging to such association shall thereafter be effectually the property of such organized and converted cor- poration or corporation refnsuring the membership of such asaociatlon, but may be disbursed for payment of valla claims outstanding and arlslng thereafter from policies issued by the legal reserve company to the members of the assessment associatbn under the approved agreement; to set up the legal reserve on new policies issued by the legal reserve company to the members of the assessment association under said agreement; and to pay their acturial portion of such mortuary fund ,tomembers of such association who refuse to accept the new policies offered them, and who make request therefor within sixty (601,days from the date of conversion or reinsurance. It wFl1 be observed that the provlsions of Section 2 are plafn and unambiguous and where a statute, civil or criml- nal, is expressed in plain and unambiguous language and its meaning la clear and obvious, there Is no room for construction, Gaddy vs. First National Bank, Beaumont, 28'3- S.W. 472; Sparks vs, State, 174 S.W. 3510 We therefore answer your first question in the afflrm- ative. In connection with your second question, we call your attention to the case of the BoaPa of Insurance Commiasionera of Texas vs, Guardian Life I&. Co. of Texas, et al, 180 S.W. (2d) 906, wherein the Supreme Court of Texas said: "Articles 4688 and 4744 are the only ones pertinent to the queatfon in Issue and unless they confer upon the board the authority to issue the above order it must be conceded that no such au- thority exists. The board can exercise only such authority as is conferred upon it by law in clear and unmistakable terms and the same will not be construed as being conferred by implication. -_ - Hon. George B. Butler, page 3 O-7004 Humble 011 & Ref-LningCo. v. Rallroad Commission of Texas, Tex, Sup., 128 S.W. 2d 9; Commercial Standard Ins. Co. v. Board of Insur. Comm'rs of Texas, Tex. Civ. App,, 34 S.W. 2a 343, writ refused." We may apply the above statement of the court to the instant case in the following manner: Section 2 oftArt, 5068-3 Is the only one pertinent to the question in issue and unless it confers upon the board the authority to issue the above order it must be conceded that no such authority exists. Your re- quest plainly states that the "proposed plan and agreement provides that the mortuary funds belonging to the association may be disbursed for all of the three purposes", as provided in Set, 2, supra, and you are desirous of knowing whether the Board of Insurance Commissioners can lawfully refuse~'toapprove the proposed plan because said board is Insisting that the re- insurance corporation agree that the mortuary funds will only, be disbursed for one or two of the above enumerated purposes, OP for some other or different purpose. The law Is well settled that the Board of Insurance Commissioners I'canexercise only such authority as is conferred upon it by law in clear and un- mistakable terms and the aame will not be construed as being conferred by implication." We can find no authority for the Insurance Board to compel the reinsuring corporation to agree that the mortuary funds belonging to the association will only be disbursed for one or two of the purposes enumerated in Sec. 2, or for some other or different purpose, and in view of the foregoing authoritfea your second question fs answered In the negatfve, In view of our answers to your Inquiries in the first opfnion request, we do not deem it necessary to answer your second request. Yours very truly, ATTORNEYGENERAL OF TEXAS By s/J.C. Davis, Jr. J.C. Davis, Jr, Assistant JCD:LJ:wc APPROVED DEC, 20, 1945 s/Grover Sellers Approved Oprnion Committee By s/%/B Chairman