(concurring).
I adopt as a part of this opinion the following portion of an opinion prepared for the present Attorney General of Texas by Assistant Attorney General Dudley D. Mc-Calla October 25, 1963:
“On October 22, 1955, the then Attorney General issued Opinion No. S-179, summarized as follows:
‘The Board of Insurance Commissioners of the State of Texas does not have the authority to regulate the rate of interest charged on deferred premiums.’
Opinion No. S-179 is based upon those portions of Articles 5.25 and 5.42, Texas Insurance Code, quoted as follows:
‘Art. 5.25. Board Shall Fix Rates
The Board of Insurance Commissioners shall have the sole and execlu-sive power and authority and it shall be its duty to prescribe, fix, determine and promulgate the rates of premiums to be charged and collected by fire insurance companies transacting business in this State. Said Board shall also have authority to alter or amend any and all such rates of premiums so fixed and determined and adopted by it, and to raise or lower the same, or any part thereof, as herein provided.
‘Art. 5.42. Not Retroactive
The provisions of this subchapter shall not deal with the collection of premiums, but each company shall be permitted to make such rules and regulations as it may deem just between the company, its agents, and its policyholders ; and no bona fide extension of credit shall be construed as a discrimination, or in violation of the provisions of this subchapter.’
This opinion concludes by holding that the Board ‘does not have the authority to regulate the rate of interest charged by companies on deferred premiums, as the amount of interest charged is not a part of the policy premium determined by the Board, but constitutes a charge separate and apart from the policy premium. ‡ ‡ ‡ 9
We are not directed to any statute purporting to give the State Board of Insurance Authority to regulate the rate of interest to be charged on deferred premiums on fire insurance. On the contrary, Articles 5.25 and 5.26, Texas Insurance Code, give the Board authority to regulate premium rates, while Article 5.42 constitutes express legislative permission for the deferment of premium payments and the adoption of regulations by each insurance company concerning the collection of such premiums.
In the case of Commercial Standard Insurance Company v. Board of Insurance Commissioners, 34 S.W.2d 343 (Civ.App. 1930, error ref.), the issue before the *136Court was whether or not the Board had authority to promulgate an order fixing the amount of commissions which fire insurance companies might pay to their local agents. The Court noted the statutes controlling the regulation of fire insurance (now subchapter C of Chapter 5 of the Insurance Code) and stated that:
‘The statutes vest in said Board very extensive and exclusive powers over premium rates and provide for securing information on which to fix, alter, amend, or modify same.’
This is still true of these statutes. In the course of its opinion denying the Board’s authority to fix the amount of commission, the Court went on to hold as follows:
‘In all instances, however, such powers relate to fixing maximum premium rates; and nowhere is any express authority given by law to regulate or control any of the items, elements, or charges, entering into or going to make up the aggregate premium rate. * * these statutes, having undertaken in considerable detail to prescribe the powers and duties of the Board relative to such maximum rate only, without giving authority to them to fix or regulate the different elements of expense entering into that rate, must be construed as a legislative denial of such power.’
The Court further held:
‘The Board can exercise only the authority conferred upon it by law “in clear and unmistakable terms, and will not be deemed to be given by implication, nor can it be extended by inference, but must be strictly construed.” 51 C.J. 56; State v. Robinson (Tex. Sup.), [119 Tex. 302] 30 S.W.2d 297.’
Had the Legislature desired to confer authority upon the Board to regulate or specify interest rates charged upon deferred premiums, it easily could have been done so. Instead, Article 5.42 has not been amended since the release of Opinion No. S-179, some eight years ago.
In view of the foregoing authorities and in the absence of any language of the Insurance Code purporting to give the Board authority to regulate rates of interest upon deferred premiums, we affirm the holding of Opinion No. S-179 and respectfully advise you that the State Board of Insurance does not have the authority to promulgate the order set out in your opinion request.”
The Board in its brief herein makes this argument:
“A ‘bona fide extension of credit’ is not discrimination under Article 5.42. The overwhelming weight of the evidence before the Trial Court shows that the credit rating or standing of the insured was not a factor considered by companies or agents in reducing interest rates on deferred premiums. Time after time witnesses presented by the Board testified that the only factors considered were the competition for the business, the size of the premium or risk, and the value of the agency making the request for a reduced interest rate. With one exception, the credit standing of the insured was never mentioned as a factor which was considered in determining whether to reduce the rate of interest charged on deferred premiums except with regard to open accounts which are not covered by the questioned rules. There can be no ‘bona fide extension of credit’ when the credit standing of the person receiving such credit is not considered by any of the parties to the contract.”
The fallacy in this argument, as I see it, is that conceding the Board has authority to pass regulations requiring appraisement of the credit standing of the policyholder to give assurance that the extension of credit is bona fide, the rule of the Board, in question here, does not contain any such regulation or requirement. All that this rule does is to provide that the rate of interest on premium loans must be as much *137as 6% per annum. I am at a loss to understand how this provision can be said to regulate the bona fides of the loan. For the life of me, I cannot think of any reason for holding that all premium loans bearing 6% interest or more are bona fide extensions of credit and all premium loans bearing interest at the rate of less than 6% are mala fide extensions of credit.
Art. 5.42 of the Texas Insurance Code, copied above, is specifically applicable only to fire and allied lines of insurance and is not so applicable to automobile and casualty lines of insurance. For this reason, the Board contends that the rule in question, in any event, is applicable to the latter class of insurance.
Although our holding that the rule is invalid as to all classes of insurance is not so well fortified without the help of Art. 5.42, I find lack of statutory authority of the Board to enact this rule without consideration of Art. 5.42.
I concur in the opinion of the majority.