OVERSIZE/OVERWEIGHT LOAD PERMITS Motor carriers transporting a vehicle and/or load exceeding Texas legal size and weight limits must obtain an oversize/overweight permit from the TxDMV. Texas legal size limits are 8 feet 6 inches wide, 14 feet high, and 65 feet in length.* Texas legal gross weight is 80,000 pounds and includes specific limits on axle group weights (single axle – 20,000 pounds, tandem – 34,000 pounds, triple – 42,000 pounds, etc.). For additional information on permit requirements, to download forms, or to submit an online permit application, visit www.txdmv.gov (search “Oversize”) or call TxDMV at 1-800-299-1700 (option 1). *Legal lengths: Truck and trailer combination – 65 feet Truck-tractor – unlimited Truck-tractor combination – overall length unlimited but trailer is limited to 59 feet Semi-trailer (single unit) – 59 feet (double trl) – 28 1/2 feet
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas Administrative Code Rule Section 5.11
A certificate of assumption may be attached only to an automobile insurance policy issued for an insurer for which a reinsurance assumption agreement has been approved by a commissioner’s order pursuant to 28 Texas Administrative Code §7.604. For utilization under this section, the Texas Department of Insurance adopts by reference a certificate of assumption form which is published by the Texas Department of Insurance and available from the Automobile Division, P.O. Box 149104, Mail Code 104-1A, Austin, Texas 78714-9104.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(1) “Club” means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.
(2) “Explosive weapon” means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.
(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
(4) “Firearm silencer” means any device designed, made, or adapted to muffle the report of a firearm.
(5) “Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.
(6) “Illegal knife” means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) “Knife” means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.
(8) “Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.
(9) “Machine gun” means any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.
(10) “Short-barrel firearm” means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.
(11) “Switchblade knife” means any knife that has a blade that folds, closes, or retracts into the handle or sheath and that opens automatically by pressure applied to a button or other device located on the handle or opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force. The term does not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.
(12) “Armor-piercing ammunition” means handgun ammunition that is designed primarily for the purpose of penetrating metal or body armor and to be used principally in pistols and revolvers.
(13) “Hoax bomb” means a device that:
(A) reasonably appears to be an explosive or incendiary device; or
(B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.
(14) “Chemical dispensing device” means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.
(15) “Racetrack” has the meaning assigned that term by the Texas Racing Act (Article 179e, Vernon’s Texas Civil Statutes).
(16) “Zip gun” means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person’s control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person’s control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Sec. 46.03. PLACES WEAPONS PROHIBITED.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of an election or while early voting is in progress;
(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
(4) on the premises of a racetrack;
(5) in or into a secured area of an airport; or
(6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:
(A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or
(B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.
(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.
(c) In this section:
(1) “Premises” has the meaning assigned by Section 46.035.
(2) “Secured area” means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.
(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as:
(1) a member of the armed forces or national guard;
(2) a guard employed by a penal institution; or
(3) a security officer commissioned by the Texas Private Security Board if:
(A) the actor is wearing a distinctive uniform; and
(B) the firearm or club is in plain view; or
(4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:
(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s firearm in plain view; or
(B) not wearing the uniform of a security officer and carrying the officer’s firearm in a concealed manner.
(e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
(h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:
(1) the actor is wearing a distinctive uniform; and
(2) the firearm or club is in plain view.
(i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:
(1) while in a vehicle being driven on a public road; or
(2) at the actor’s residence or place of employment.
Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
(d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.
Sec. 46.041. UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON.
(a) In this section, “metal or body armor” means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.
(b) A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor.
(c) An offense under this section is a felony of the third degree.
Sec. 46.05. PROHIBITED WEAPONS.
(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; or
(9) a zip gun.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:
(1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).
(e) An offense under this section is a felony of the third degree unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
(1) provided by the Commission on Law Enforcement Officer Standards and Education; or
(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
Sec. 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS
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(a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
(3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
(4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
(A) the person’s release from confinement following conviction of the felony; or
(B) the person’s release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
(5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
(6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.
(b) In this section:
(1) “Intoxicated” means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.
(2) “Active protective order” means a protective order issued under Title 4, Family Code, that is in effect. The term does not include a temporary protective order issued before the court holds a hearing on the matter.
(c) It is an affirmative defense to prosecution under Subsection (a)(2) that the transfer was to a minor whose parent or the person having legal custody of the minor had given written permission for the sale or, if the transfer was other than a sale, the parent or person having legal custody had given effective consent.
(d) An offense under this section is a Class A misdemeanor, except that an offense under Subsection (a)(2) is a state jail felony if the weapon that is the subject of the offense is a handgun.
Sec. 46.07. INTERSTATE PURCHASE
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A resident of this state may, if not otherwise precluded by law, purchase firearms, ammunition, reloading components, or firearm accessories in another state. This authorization is enacted in conformance with 18 U.S.C. Section 922(b)(3)(A).
Sec. 46.10. DEADLY WEAPON IN PENAL INSTITUTION
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(a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal institution
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(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.
Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE SCHOOL ZONE
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(a) Except as provided by Subsection (b), the punishment prescribed for an offense under this chapter is increased to the punishment prescribed for the next highest category of offense if it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a place that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section 46.03(a)(1).
(c) In this section:
(1) “Institution of higher education” and “premises” have the meanings assigned by Section 481.134, Health and Safety Code.
(2) “School” means a private or public elementary or secondary school.
Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA
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(a) In a prosecution of an offense for which punishment is increased under Section 46.11, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of weapon-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the area is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 46.11; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Sec. 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD
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(a) In this section:
(1) “Child” means a person younger than 17 years of age.
(2) “Readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
(3) “Secure” means to take steps that a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including but not limited to placing a firearm in a locked container or temporarily rendering the firearm inoperable by a trigger lock or other means.
(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.
(c) It is an affirmative defense to prosecution under this section that the child’s access to the firearm:
(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;
(2) consisted of lawful defense by the child of people or property;
(3) was gained by entering property in violation of this code; or
(4) occurred during a time when the actor was engaged in an agricultural enterprise.
(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(e) An offense under this section is a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person.
(f) A peace officer or other person may not arrest the actor before the seventh day after the date on which the offense is committed if:
(1) the actor is a member of the family, as defined by Section 71.003, Family Code, of the child who discharged the firearm; and
(2) the child in discharging the firearm caused the death of or serious injury to the child.
(g) A dealer of firearms shall post in a conspicuous position on the premises where the dealer conducts business a sign that contains the following warning in block letters not less than one inch in height:
“IT IS UNLAWFUL TO STORE, TRANSPORT, OR ABANDON AN UNSECURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE AND CAN OBTAIN ACCESS TO THE FIREARM.”
Sec. 46.14. FIREARM SMUGGLING
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(a) A person commits an offense if the person knowingly engages in the business of transporting or transferring a firearm that the person knows was acquired in violation of the laws of any state or of the United States. For purposes of this subsection, a person is considered to engage in the business of transporting or transferring a firearm if the person engages in that conduct:
(1) on more than one occasion; or
(2) for profit or any other form of remuneration.
(b) An offense under this section is a felony of the third degree, unless it is shown on the trial of the offense that the offense was committed with respect to three or more firearms in a single criminal episode, in which event the offense is a felony of the second degree.
(c) This section does not apply to a peace officer who is engaged in the actual discharge of an official duty.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer’s or investigator’s duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence or motor vehicle, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;
(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, “nonviolent restraint” means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
The RIMS ERM Conference 2015 program is now available. Join us on October 26-27 in Chicago and attend practical ERM presentations led by experienced speakers from DePaul University, Five Guys Enterprises, Harley-Davidson, PwC, The Kraft Heinz Company, Walgreen’s and more.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
EL PASO, Texas — With a history of safety violations dating back 15 years, an El Paso metal stamping plant is no stranger to warnings from the U.S. Department of Labor’s Occupational Safety and Health Administration.
OSHA issued 13 safety and health citations to D&D Manufacturing Inc. today following a recent inspection prompted by a formal complaint. The inspection identified 13 safety and health citations for exposing workers to amputations and other serious injuries from unsafe machinery, including a violation for ignoring the danger of allowing employees to work with a defective 500-ton metal press that the company knew had repeatedly dropped without warning.
Completed under OSHA’s National Emphasis Program on Amputations, the inspection resulted in $321,750 in proposed department fines for D&D. This inspection follows one in December 2014 that resulted in 36 federal citations for serious safety violations.
“D&D is aware of the dangers at its production facility, but has done nothing to correct them. An employee could have been seriously injured,” said Diego Alvarado Jr., OSHA’s area director in El Paso. “There is no reason, or excuse for a company to ignore basic safety requirements.”
OSHA cited the company for four willful, one repeated, six serious and two other violations. In addition to allowing workers to use the defective press, D&D did not ensure that employees on the production floor wore appropriate eye protection, given the risk of flying metal particles blinding them.
Additionally, the company failed to make sure employees used hearing protection in areas where noise levels were above the acceptable limits. The repeated violation was for failing to have all illuminated exit signs lit.
D&D Manufacturing fabricates stamped, metal components for equipment manufacturers. The company has headquarters in Bolingbrook, Illinois, and employs about 37 workers in El Paso. It also has a facility in Mexico. D&D has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s El Paso area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.
To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s El Paso Area Office at 915-534-6251.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
OSHA News Release: [07/13/2015]
Contact Name: Diana Petterson or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709 Email: Petterson.Diana@dol.gov or Rodriguez.Juan@dol.gov
Release Number: 15-1354-DAL
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
United States District Court,
N.D. Texas,
Dallas Division.
CENTEX HOMES, a Nevada
General Partnership, Plaintiff,
v.
LEXINGTON INSURANCE COMPANY, Defendant.
No. 3:13–cv–719–BN. | Signed
March 24, 2014. | Filed March 25, 2014.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
For the most part, in Texas, a child who is beneath the age of five is incapable of negligence as a matter of law. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971). Where the negligence of a child above the age of five is at issue, the child=s negligence is to be judged by a standard of conduct applicable to a child of the same age and not by that standard that is applicable to an adult. Yarborough, supra; Rudes v. Geottschalk, 324 S.W.2d 201, 204 (1959); Dallas Railway and Terminal Company v. Rogers, 218 S.W.2d 456 (1949); Texas and Pacific and Railway Co. v. Krump, 115 S.W. 26 (1909); Texas and Pacific Railway Co. v. Phillips, 42 S.W. 852 (1897); and Missouri Kansas and Texas Railway Co. v. Rogers, 36 S.W. 243 (1896). The pattern jury charge section 2.3, Child’s Degree of Care, defines the standard as follows:
Negligence, when used with respect to the conduct of a child, means failing to do that which an ordinary prudent child of the same age, experience, intelligence, and capacity would have done under the same or similar circumstances or doing that which such a child would not have done under the same or similar circumstances.
Ordinary care, when used with respect to the conduct of a child, means the degree of care that an ordinary prudent child of the same age, experience, intelligence, and capacity would have used under the same or similar circumstances.
The lower end of the age bracket is clearly five in the State of Texas, but there seems to be less clarity as to what the high end of the bracket will be. In Austin v. Hoffman, 379 S.W.2d 103 (Tex. App. – Austin 1964, n.w.h.), the Court stated “it would appear that if a child is under the common law bracket of fourteen, the Texas Courts apply the standard of care applicable to children, on the other hand, if a child is above the age of fourteen, the adult standard of care is applied, unless it be shown that the child is wanting discretion or laboring under the handicap of some mental disability.” Austin v. Huffman, 379 S.W.2d 107.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
OSHA News Release: Trench collapse seriously injures worker, leads to $424K fine for employer [07/22/2015]
Trench collapse seriously injures worker, leads to $424K fine for employer
Hassell Construction cited for egregious safety violations in Richmond, Texas collapse
HOUSTON — One minute he was working in the 8-foot trench below ground. The next, he was being buried in it. His co-workers came to his rescue, digging him out with their bare hands. Moments after they pulled the injured man to safety, the unprotected trench collapsed again. His injuries were serious and led to his hospitalization.
The man’s Houston-area employer, Hassell Construction Co. Inc. knew the Richmond, Texas excavation site was dangerous, but failed to protect its workers.
Today, the U.S. Department of Labor’s Occupational Safety and Health Administration cited Hassell Construction for 16 safety violations, including six egregious willful violations for failing to protect workers inside an excavation from a cave-in. The company faces penalties totaling $423,900.
“For more than 2,500 years, man has known how to prevent deadly trench collapses. It is absolutely unacceptable that employers continue to endanger the lives of workers in trenches,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “An employer is responsible for providing a workplace safe from hazards. Hassell Construction failed to do that in this case.”
In addition to the willful violations, Hassell was cited for nine serious violations, including failing to remove debris from the edge of the excavation. The company also did not provide a safe means to get in and out of the excavation for workers or conduct atmospheric testing inside excavations after a sewer leak.
“Trench cave-ins are preventable,” said John Hermanson, OSHA’s regional administrator in Dallas. “There are long-established, basic precautions. They’re not new, and they’re not secret. Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.”
OSHA has placed the company in its Severe Violator Enforcement Program. The program concentrates resources on inspecting employers who have demonstrated indifference towards creating a safe and healthy workplace by committing willful or repeated violations, and/or failing to abate known hazards. It also mandates follow-up inspections to ensure compliance with the law.
The citations Hassell Construction received are available here.
Hassell Construction employs about 150 employees to help construct water and sewer lines in the Houston area. Its workers compensation insurance carrier is Liberty Mutual. The employer has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.
To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Houston South office at 281-286-0583 or its Houston North office at 281-591-2438.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
OSHA News Release: [07/22/2015]
Contact Name: Diana Petterson or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709 Email: Petterson.Diana@dol.gov or Rodriguez.Juan@dol.gov
Release Number: 15-1429-DAL
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, Appellant,
Irene Romo and Fenn Ratcliffe, Individually and on Behalf of All Other Persons Similarly Situated, Cross-Appellants,
v.
Irene ROMO and Fenn Ratcliffe, Individually and on Behalf of All Other Persons Similarly Situated, Appellees,
Farmers Texas County Mutual Insurance Company and USAA County Mutual Insurance Company, Cross-Appellees.
No. 03-06-00335-CV.
April 15, 2008.
Justices PATTERSON, PEMBERTON and WALDROP.
OPINION
ALAN WALDROP, Justice.
In this declaratory judgment action, Plaintiffs Irene Romo and Fenn Ratcliffe challenge the propriety of installment payment plan fees charged by USAA County Mutual Insurance Company and an affiliate of Farmers Texas County Mutual Insurance Company for providing installment payment plans to auto insurance policyholders. Romo and Ratcliffe claim that the charges to policyholders for electing to pay premiums in installments pursuant to the payment plans are not authorized by the Texas Insurance Code, violate the filed rate doctrine, and breach the parties’ contracts of insurance. They seek recovery of the installment payment plan fees they have paid and also seek to have a class certified consisting of similarly situated policyholders.
The trial court rendered declarations that (1) the installment fees at issue are subject to certain filing requirements under the Texas Insurance Code, but (2) county mutual insurance companies were not subject to these filing requirements until December 1, 2004, when they became rate regulated, and therefore, (3) the charges were not prohibited by the insurance code prior to December 1, 2004. Farmers and the Plaintiffs appeal.FN1Farmers argues that the fees in question have never been and are not now subject to filing requirements under the insurance code provision in question and, alternatively, even if the fees are subject to such filing requirements, the Plaintiffs have no private right of action under the insurance code provisions at issue to recover the fees they paid. The Plaintiffs argue that the fees in question have been subject to filing requirements since the companies began charging the fees, that they are entitled to declarations that the filed rate doctrine applies to the fees prior to December 1, 2004, and that since neither insurer filed these charges with the Department of Insurance, the insurers were not entitled to collect the fees.
FN1. USAA did not appeal because it had not collected any of the type of fees in dispute after December 1, 2004.
We conclude that the installment fees at issue were not subject to the filing requirements alleged by the Plaintiffs under either the current version of the applicable statute or its predecessor. Therefore, we reverse the district court’s declarations to the contrary.
Background
Farmers and USAA are county mutual insurance companies formed under the laws of the State of Texas and each has a certificate of authority from the Commissioner of Insurance to do business in the State of Texas. They both write six-month private passenger auto insurance policies in Texas. In addition, an affiliate of USAA writes twelve-month residential property renters policies in Texas.
From October 1987 to October 2002, Romo (together with her husband who is now deceased) was insured under a series of six-month private passenger auto policies written by Texas Farmers Insurance Company. Texas Farmers Insurance Company withdrew from the private passenger auto insurance market in Texas and, in October 2002, the Romos’ policy was replaced by a private passenger auto policy written by Farmers Texas County Mutual Insurance Company, one of the defendants in this case. This policy has since been renewed every six months to the present. From November 2002 to the present, Ratcliffe has been insured under a series of six-month private passenger auto policies written by USAA County Mutual Insurance Company.
*2 Both Romo and Ratcliffe were offered the option of paying the premiums for their policies in monthly installments rather than in a single lump sum when due, and both elected to do so. The option to pay in monthly installments included an additional service fee for the installment plan that varied depending on the size of the premium payment.FN2The parties stipulate that both options, (1) paying premiums in full upon renewal without incurring a service fee and (2) paying premiums in monthly installments together with a service fee, were disclosed to Romo and Ratcliffe, and that each voluntarily elected to pay premiums in installments along with the service fee.
FN2. The installment fees at issue for the named plaintiffs varied between $3.00 and $6.50 per month.
The installment payment plan offered to Farmers’s insureds has, since 1984, been offered by Farmers Insurance Exchange (“FIE”), an affiliate of Farmers.FN3 Farmers’s insureds, such as Romo, who wish to take advantage of an installment payment plan sign a Monthly Payment Plan Agreement with FIE that includes an agreement to pay the monthly service fee. FIE then collects premium payments on behalf of Farmers as well as the service fee provided for in the Monthly Payment Plan Agreement. FIE forwards the insurance premium on to Farmers and retains the service fee pursuant to a 1984 Administrative Servicing Agreement between it and Farmers.
FN3. It is undisputed that Farmers and FIE are “affiliates” under the Holding Company Systems Regulatory Act. Tex. Ins.Code Ann. § 823.003 (West 2007).
The Administrative Servicing Agreement, filed with the State Board of Insurance in 1991, provides that FIE will perform “premium collection services” on behalf of Farmers for “policyholders of [Farmers] who elect to remit premiums on a monthly payment plan.”The Administrative Servicing Agreement also provides that the service charges for providing the installment payment plan are not premiums for insurance, but are charges for the services of FIE, and are the property of FIE. This arrangement for premium collection services to be performed by FIE for Farmers was deemed approved by the Commissioner of Insurance by operation of law pursuant to the Holding Company Systems Regulatory Act and has never been disapproved or challenged by the Commissioner of Insurance. SeeTex. Ins.Code Ann. § 823.103 (West 2007); Act of May 27, 1991, 72d Leg., R.S., ch. 242, § 8.03, 1991 Tex. Gen. Laws 939, 1016-17, codified at former Tex. Ins.Code art. 21.49-1, § 4(d), recodified by Act of May 22, 2001, 77th Leg., R.S., ch. 1419, § 1, sec. 823.103, 2001 Tex. Gen. Laws 3658, 3700.
USAA offered its insureds three different installment payment plans without using the services of a subsidiary or affiliate company. USAA insureds such as Ratcliffe who elected to pay their premiums in installments forwarded the service fee for the installment plan directly to USAA together with each premium payment. As of May 1, 2004, USAA had stopped assessing a fee for any of its installment payment plans.
Romo and Ratcliffe originally filed this action in August 2003 seeking relief individually as well as class relief for a class of similarly situated policyholders. They claim that section 912.201 of the insurance code and its predecessor-article 17.25, section 6 of the insurance code-required Farmers and USAA to file a schedule of the amounts they or their affiliates charged policyholders for electing to pay their auto insurance premiums in installments over time rather than in a single lump sum when due.FN4They asserted claims for declaratory relief to have these fees declared subject to the filing requirements of section 912.201 and its predecessor as well as subject to the filed rate doctrine. The Plaintiffs claim that, as a consequence of the filing requirements and the filed rate doctrine, the defendants’ collection of the fees was illegal and/or a breach of contract because a schedule of the fees had not been filed with the Department of Insurance. Romo and Ratcliffe also asserted three causes of action for damages: (1) overcharge, (2) breach of contract, and (3) money had and received.
FN4. The claims are not based on an allegation that the service fees were not disclosed or were misrepresented in any way. There is no dispute that the fees were fully and accurately disclosed both to the Plaintiffs and to the Texas Department of Insurance, and that the Plaintiffs voluntarily elected to use the offered installment plans and pay the additional fees. The crux of the Plaintiffs’ claims is that the insurers were required to file the amount of the service fees with the Texas Department of Insurance and, unless the amounts were filed, policyholders could not be charged these fees whether they and the Department of Insurance were aware of the fees or not.
Defendants Farmers and USAA answered and filed counterclaims for declaratory relief seeking declarations that the installment payment plan fees in question are not subject to the filing requirements of section 912.201 or its predecessor, and even if they were, the filed rate doctrine did not operate to bar their collection of the fees. Thus, their collection of the fees was authorized and legal. Since the cross-claims for declaratory relief were questions of law that would govern whether the underlying class claims could go forward, the parties agreed to sever the claims for declaratory relief from the claims for damages and filed cross-motions for summary judgment in the severed declaratory judgment action. The parties stipulated to the material facts relating to their claims for declaratory relief. On appeal, Farmers and USAA also assert that there is no private right of action under section 912.201 and, therefore, the trial court lacked subject matter jurisdiction over the Plaintiffs’ claims for declaratory relief because Romo and Ratcliffe do not have standing to pursue those claims.
Standard of Review
We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). The standards for reviewing a summary judgment are well established: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as here, both parties file motions for summary judgment and the court denies both in part and grants both in part, we must review the summary judgment evidence presented by both sides, decide all questions presented, and render the judgment that the trial court should have rendered. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). The material facts relating to the nature of the installment plan service fees are not in dispute. Consequently, whether the service fees at issue are subject to filing requirements under section 912.201 of the insurance code and its predecessor is a question of law.
Subject Matter Jurisdiction
Subject matter jurisdiction is essential to the authority of a court to decide a case. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Standing is implicit in the concept of subject matter jurisdiction and is a component of subject matter jurisdiction. Id. at 443-45.Thus, a plaintiff must have standing for the court to have subject matter jurisdiction to decide the merits of the claims. Id.;State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). Subject matter jurisdiction is never presumed and is an issue that may be raised for the first time on appeal, and a lack of subject matter jurisdiction on the part of the court cannot be waived by the parties. Texas Ass’n of Bus., 852 S.W.2d at 443-45.
Farmers and USAA argue on appeal that the Plaintiffs do not have a private right of action to enforce or seek a remedy for any potential violations of, or failures to comply with, section 912.201. They assert that the power to enforce section 912.201 rests exclusively with the Department of Insurance and the Commissioner of Insurance, and that the Plaintiffs’ claims for declaratory relief in this case “arise under or are premised on” an alleged violation of section 912.201 and its predecessor. Therefore, Farmers and USAA conclude, the Plaintiffs lack standing to pursue their claims for declaratory relief in this case because those claims necessarily involve an adjudication of whether Farmers and USAA have failed to comply with section 912.201.
Plaintiffs Romo and Ratcliffe counter that they are not seeking to pursue a private cause of action for a violation of section 912.201 and its predecessor. Rather, they argue, they are pursuing claims for breach of contract as well as common law claims for money had and received and overcharge that happen to turn on whether Farmers and USAA filed the amounts they have charged in accordance with section 912.201. They contend that if Farmers and USAA failed to file the amount of the installment payment plan fees in accordance with section 912.201 and its predecessor, such a failure would give rise to a breach of the parties’ contracts of insurance under the theory that the insurers are only allowed by law to contract for amounts that are filed pursuant to section 912.201. Charging any amount not filed in accordance with section 912.201, they argue, is illegal and is a breach of contract because insurers are allowed by law to collect only “lawfully prescribed rates” pursuant to their contracts of insurance. Romo and Ratcliffe’s theory is as follows:
contracts of insurance require insurers to charge only lawfully prescribed amounts;
by virtue of the filed rate doctrine, lawfully prescribed amounts for the policies involved in this case are those amounts filed with the Department of Insurance in accordance with section 912.201 and its predecessor;
Farmers and USAA did not file the installment payment plan fees in accordance with section 912.201;
the installment payment plan fees, therefore, are not lawfully prescribed amounts that may be charged;
by charging and collecting the fees Farmers and USAA breached their contracts of insurance with Romo and Ratcliffe giving rise to claims for breach of contract as well as related claims for money had and received and overcharge; and,
Romo and Ratcliffe have standing to seek declaratory relief as to whether the filed rate doctrine and, as a corollary, section 912.201 apply to the installment payment plan fees at issue not as a private cause of action for a failure to comply with section 912.201, but as a part of their contract dispute.
The jurisdictional issue here is the Plaintiffs’ standing to have their request for declaratory relief adjudicated rather than the merits of the underlying cause of action for breach of contract. In this instance, the standing issue is distinct from the merits. In such cases, a court should not adjudicate the merits of the parties’ claims in deciding the issue of standing. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000); In re Sullivan, 157 S.W.3d 911, 920 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding). Romo and Ratcliffe have sought declaratory relief as to the application of a statute and the application of the filed rate doctrine to certain items potentially addressed by that statute. They have pleaded that they seek this relief in connection with their underlying claim for breach of contract.FN5The connection of section 912.201 to the request for declaratory relief here is that an alleged failure to comply with the filing requirements of section 912.201 coupled with charging an unfiled amount constitutes a breach of the contract of insurance. The Plaintiffs claim the failure to comply with section 912.201 while charging the installment payment plan fees is a breach of contract and they will seek remedies for that breach. This may or may not be a viable claim, but this is the allegation. It does not imply a private right of action to sue for a violation of section 912.201. The underlying dispute relating to the request for declaratory relief is for breach of contract. The alleged noncompliance with the statute is simply one component of the alleged breach of contract. Whether there is any merit to this theory or any merit or viability to the underlying breach of contract claim is an inquiry appropriate for a disposition on the merits of the underlying claim rather than disposition as a matter of standing and jurisdiction with respect to the request for declaratory relief in this case.
FN5. The underlying causes of action for breach of contract, money had and received, and overcharge have been severed into a separate cause number to allow resolution of the claims for declaratory relief in this case. We address standing in this case only with regard to the requested declaratory relief. We express no opinion as to the Plaintiffs’ standing with respect to the underlying causes of action in the severed cause.
Romo and Ratcliffe have standing to seek a judicial resolution of the legal questions of whether the statute at issue and the filed rate doctrine apply in the manner that they claim affects the amounts that the insurers are allowed to charge under their contracts of insurance. As policyholders alleging a breach of the insurance contract they have a justiciable interest in the resolution of the questions. We hold that the trial court had subject matter jurisdiction to address the questions presented by the claims for declaratory relief in this case.
Filing Requirements Under the Statute
The Plaintiffs’ claims are based on the argument that former article 17.25, section 6 of the insurance code and its amended version currently in force, section 912.201, required and continue to require county mutual insurance companies to file with the Department of Insurance a schedule of the amounts they charge insureds for allowing payments to be made in installments. Former article 17.25, section 6 provided:
Sec. 6. Such companies shall file with the Board a schedule of its rates, the amount of policy fee, inspection fee, membership fee, or initial charge by whatever name called, to be charged its policyholders or those applying for policies.
Act of June 7, 1951, 52d Leg., R.S., ch. 491, § 1, art. 17.25, sec. 6, 1951 Tex. Gen. Laws 868, 1043 [hereinafter 1951 Act], repealed by Act of May 22, 2001, 77th Leg., R.S., ch. 1419, § 31(a), 2001 Tex. Gen. Laws 3658, 4208 [hereinafter 2001 Act].Article 17.25, section 6 was recodified and replaced effective June 1, 2003, see 2001 Act, § 33, 2001 Tex. Gen. Laws at 4201, by section 912.201 of the insurance code, which provides:
A county mutual insurance company shall file with the department a schedule of the amounts the company charges a policyholder or an applicant for a policy, regardless of the term the company uses to refer to those charges, including “rate,” “policy fee,” “inspection fee,” “membership fee,” or “initial charge.” A county mutual insurance company shall file premium, expense, and loss experience data with the department in the manner prescribed by the commissioner. An insurer shall file the schedules and data required under this section according to rules promulgated by the commissioner.
Tex. Ins.Code Ann. § 912.201 (West 2007).
The text of article 17.25, section 6 was first enacted in 1947 as article 4860a-20, section 2a(d) of the Texas Revised Civil Statutes. See Act of June 5, 1947, 50th Leg., R.S., ch. 367, § 1, sec. 2a(d), 1947Tex. Gen. Laws 739, 741, repealed by 1951 Act, § 4, 1951 Tex. Gen. Laws at 1094. It was recodified in 1951 without change as article 17.25, section 6 of the insurance code, see 1951 Act, § 1, art. 17.25, sec. 6, 1951Tex. Gen. Laws at 1049 (repealed 2001), and the text remained unchanged by the legislature until the statute was again recodified as section 912.201 effective 2003, see 2001 Act, § 1, sec. 912.201, 2001Tex. Gen. Laws at 3975. The recodification of article 17.25, section 6 was part of the state’s ongoing statutory revision and codification program begun in 1963. The program contemplates a topic-by-topic revision of the state’s general and permanent statute law without substantive change. Tex. Ins.Code Ann. § 30.001(a) (West 2007).
Former article 17.25, section 6 required county mutual insurance companies to file a schedule of two types of charges to “policyholders or those applying for policies”:
(1) the company’s rates; and
(2) the amount of policy fee, inspection fee, membership fee, or initial charge by whatever name called.
See 1951 Act, § 1, art. 17.25, sec. 6, 1951Tex. Gen. Laws at 1043 (repealed 2001). The installment payment plan fees at issue in this case do not fall into either of these categories. They are not a rate nor a component of a rate. Nor are they an initial charge for a policy that might go by a variety of labels such as “policy fee,” “inspection fee,” or “membership fee.” It is undisputed by the parties that the installment payment plan fees at issue are a charge associated with the company’s providing an optional plan for a policyholder to pay his or her premium in installments. The parties have stipulated that a policyholder may avoid these charges altogether and receive the same insurance coverage by paying the premium for the policy in full when due. Therefore, since the fees at issue are not a rate or an initial charge for a policy, former article 17.25, section 6 did not require county mutual insurers to file a schedule of amounts they or their affiliates charged for providing the option to pay premiums in installments. Accordingly, the trial court erred in declaring that the installment fees are charges covered by former article 17.25, section 6.
This interpretation is consistent with the regulatory structure implemented by the Department of Insurance. Since 1992, the Department has required auto insurers other than county mutual insurers to offer an installment payment plan pursuant to Rule 14 of the Texas Automobile Rules and Rating Manual. Rule 14 was made applicable to county mutual insurers in 1997 pursuant to Personal Auto Policy (“PAP”) Special Instruction No. 11, which is part of the policy form that county mutual insurers are required to use in Texas. Rule 14 both requires auto insurers to make an installment payment plan available to policyholders and expressly allows the insurers to charge a regulated fee for making the plan available. It is undisputed that Farmers and USAA were in compliance with Rule 14 during all relevant time frames.
Former article 17.25, section 6 was in force at the time Rule 14 was originally promulgated and at the time that the Department of Insurance made Rule 14 applicable to county mutual insurers. The Department of Insurance has never taken the position that the fees authorized by Rule 14 were required to be filed pursuant to former article 17.25, section 6 or its successor section 912.201. It is undisputed that the Department has been responsible for the enforcement of former article 4860a-20, section 2a(d), former article 17.25, section 6, and current section 912.201 since 1947 and that the Department has never required a county mutual insurer to file the amount of a service charge for an installment payment plan pursuant to these statutes. The Department has a specific regulatory scheme with respect to installment payment plans and the fees insurers are allowed to charge with respect to those plans. The Department does not consider former article 17.25, section 6 and its successor section 912.201 part of that regulatory scheme. “Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.”Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993); see State v. Public Util. Comm’n of Tex., 883 S.W.2d 190, 196 (Tex.1994) ( “[T]he contemporaneous construction of a statute by the administrative agency charged with its enforcement is entitled to great weight.”); Texas Employers’ Ins. Ass’n v. Holmes, 196 S.W.2d 390, 395 (Tex.1946) (“[T]he practical interpretation of the Act by the agency charged with the duty of administering it is entitled to the highest respect from the courts.”); Stanford v. Butler, 181 S.W.2d 269, 273 (Tex.1944) (“The contemporaneous construction of an act by those who are charged with the duty of its enforcement … is worthy of serious consideration as an aid to interpretation, particularly where such construction has been sanctioned by long acquiescence.”(quoting 39 TEX. JUR.Statutes § 125 (1936))). The Department of Insurance’s practical construction of former article 17.25, section 6 and its regulatory scheme for dealing with premium installment payment plans including the charges for those plans are consistent with the language of the statute and entitled to serious consideration. Nothing in the language of former article 17.25, section 6 requires the adoption of an interpretation inconsistent with the interpretation and practice of the Department of Insurance.
The Department of Insurance continued its regulatory scheme relating to premium installment payment plans and did not require schedules of charges for those plans to be filed even after former article 17.25, section 6 was replaced by section 912.201. The Department’s treatment of the statute before and after the 2003 recodification process was the same. This is, of course, consistent with the proposition that the recodification process did not make a substantive change. SeeTex. Ins.Code Ann. § 30.001(a). However, the question of whether the recodification of article 17.25, section 6-now section 912.201-did, in fact, involve a substantive change (even if inadvertent) to now require that the installment payment plan charges at issue are subject to filing requirements raises an additional issue.
Romo and Ratcliffe point to the language of the recodified statute and argue that the recodified version requires county mutual insurers to file a schedule of any amount that the company charges a policyholder or applicant for a policy regardless of what the charge is for. Romo and Ratcliffe rely on the following language in section 912.201:
A county mutual insurance company shall file with the Department a schedule of the amounts the company charges a policyholder or an applicant for a policy, regardless of the term the company uses to refer to those charges….
Id.§ 912.201. This language is, from a grammatical standpoint, a structural change from the language of former article 17.25, section 6. It uses essentially the same words, but moves the clauses around in a way that allows for an argument that, whether deliberate or not, the meaning of the statute was changed in the recodification process. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex.1999) (when specific provisions of a “nonsubstantive” codification are direct, unambiguous, and cannot be reconciled with prior law, the codification rather than the prior, repealed statute must be given effect). The reshuffling of the clauses in the statute certainly alters the clear statement in former article 17.25, section 6 that limited the charges covered to two specific categories-(1) a rate, and (2) an initial charge for a policy (by whatever name called). The structure of the recodified statute provides less clear guidance as to what charges are covered and what charges are not.
On its face, the new language could conceivably be read as requiring county mutual insurers to file a schedule of any amount they charge policyholders (or applicants for policies) for literally anything. However, there are a number of problems with this construction. If read to apply to any charge, the statute would cover any type of charge by an insurance company-whether or not the charge was related to the insurance policy or the insurance relationship-simply because the person charged also happened to be a policyholder or an applicant for a policy. For example, there would be nothing to limit the statute’s application to amounts a company might charge a person for renting a piece of property owned by the company, or for amounts the company might charge for using a company parking garage if the person charged also happened to be a policyholder. Such an extraordinarily broad reading of the statute would be possible, but not reasonable.
The legislature plainly intended the statute to require county mutual insurers to file amounts that they charge “a policyholder” or “an applicant for a policy” that relate to the policy of insurance.FN6This is evidenced by the fact that the list of examples of charges “included” under the statute’s coverage are all charges tied to the purchase of the insurance policy-rate, policy fee, inspection fee, membership fee, or initial charge. “Includes” is a term of enlargement and not of limitation or exclusive enumeration and does not create a presumption that components not expressed are excluded. Tex. Gov’t Code Ann. § 311.005(13) (West 2005). However, the principle of statutory construction known as ejusdem generis limits the breadth of general terms in a statute when the statute gives examples or a list of what is intended to be covered. “[W]hen words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation.”See State v. Fidelity & Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex.2007) (quoting Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex.2003)). In other words, the principle of ejusdem generis directs that the term “charges” as used in section 912.201-since it is used generally without any definition-be interpreted to include only charges of the same kind, class, or nature as the types of charges listed in the statute.Id.
FN6. Farmers and USAA argue that the language of section 912.201 mandates this interpretation because the codified version of the statute should be read in such a way that the words “for a policy” modify the term “charges” rather than the term “applicant.” This grammatical maneuver would make the statute literally apply only to charges “for a policy” made to a policyholder or an “applicant” as opposed to any charge (unconstrained by modifying language) an insurer might make to a policyholder or an “applicant for a policy.” However, the history of the text of section 912.201 does not support this reading. Former article 17.25, section 6 applied to amounts “to be charged policyholders or those applying for policies.”The nonsubstantive revision represented by section 912.201 uses the phrase “amounts the company charges a policyholder or applicant for a policy.”It is apparent that the codifiers were attempting to follow their statutory mandate to restate the law “in modern American English to the greatest extent possible,” and replaced the phrase “those applying for policies” with the phrase “applicants for policies.” SeeTex. Ins.Code Ann. § 30.001(b) (West 2007). Whether the replacement improved or modernized the English in the statute is debatable. However, it is more reasonable-in light of the fact that the 2003 codification of article 17.25, section 6 was intended to be nonsubstantive-to read the phrase “for a policy” to be associated with the term “applicant” rather than the term “charges.”
In addition, reading the statute to include charges that have nothing at all to do with the insurance policy arguably runs afoul of the principle of statutory construction that we consider the consequences of a particular construction and not construe a statute in a manner that will produce absurd results. Tex. Gov’t Code Ann. § 311.023 (West 2005); see Fleming Foods, 6 S.W.3d at 284;see also State v. Hodges, 92 S.W.3d 489, 494 (Tex.2002). To construe the statute to apply to any and all charges an insurer might make to a policyholder regardless of whether those charges relate to the insurance policy-e.g. parking garage fees for visitors to the company’s building who happen to be policyholders or cafeteria charges to employees who use the company’s cafeteria and are also policyholders-would lead to absurd and plainly unintended results. As the Texas Supreme Court noted in State v. Hodges, the construction of the statute advocated by Hodges in that case was linguistically possible, but it was not reasonable nor required by the statute’s language, and the court declined to adopt it. 92 S .W.3d at 495. Similarly, here it is possible to construe the recodified statute as applying to charges made by an insurer regardless of their connection to the policy of insurance, but such a construction is not reasonable in light of the purpose of the statute, the history of the statute, the text read as a whole, the regulatory scheme in place addressing the charges at issue, and the potential consequences of such a broad construction. Thus, given the history and text of section 912.201, we are of the view that it should be interpreted to include only those charges that are of the same kind, class, or nature as a rate, policy fee, inspection fee, membership fee, or initial charge.
Another problem with the construction advocated by Romo and Racliffe is that it runs counter to the stated legislative intention that the 2003 codification be without substantive change. Tex. Ins.Code Ann. § 30.001(a). The Plaintiffs’ construction would necessarily entail a dramatic change in this statute-a change at odds with the Department of Insurance’s regulatory enforcement of the statute. It would involve changing the charges covered from two specific categories that are expressly associated with the policy of insurance to anything an insurer might find itself charging a policyholder, whether the charge relates to the insurance relationship or something else altogether. Such an inadvertent change is certainly possible, as demonstrated by Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex.1999). The court held in that case that if the change occurs in clear, unambiguous language in the recodified version of the statute, we are obligated to enforce the statute as written and give effect to the intention of the legislature as expressed in the unambiguous words of the statute unless there is an obvious error, such as a typographical error, or application of the literal language of the statute would produce an absurd result. Fleming Foods, 6 S.W.3d at 284-85. The change in the statute at issue here, however, is not the same sort of change that the court was faced with in Fleming Foods.Here, the change in the structure of the statute does not dictate a single construction that is so clear, unambiguous, and without absurd result that we are compelled to give it effect. Rather, the recodified statute, while conceivably subject to the construction advocated by the Plaintiffs, can be and is more reasonably construed in a more limited fashion when read as a whole with appropriate principles of statutory construction applied.
Construing section 912.201 to apply to charges that are of the same kind, class, or nature as a rate or an initial charge for a policy has the benefit of reconciling the history of the statute, the Department of Insurance’s regulatory view of the statute, the existence of a specific, separate regulatory structure to deal with the installment payment plan fees at issue, and the fact that the codification of section 912.201 was intended to be done without substantive change. The Plaintiffs’ construction would put these various factors in conflict and create unnecessary problems in the enforcement and application of section 912.201. Consequently, we hold that section 912.201, as currently formulated, applies to charges made by county mutual insurers that are of the same kind, class, or nature as a rate or an initial charge for a policy regardless of what that charge is called. As noted previously, the installment payment plan fees at issue in this case are not such a charge. Accordingly, the trial court erred in declaring that the installment fees are charges covered by section 912.201.
Conclusion
Our conclusion that former article 17.25, section 6 and its successor section 912.201 do not apply to the installment payment plan fees at issue in this case effectively moots any question regarding the application of the filed rate doctrine, and we do not reach that issue. We reverse declarations 1, 2, and 3 in the Final Declaratory Judgment entered by the district court in this cause and hold as follows:
The fees charged by Farmers Texas County Mutual Insurance Company and USAA County Mutual Insurance Company for making an installment payment plan available for the payment of premiums on automobile insurance policies are not charges covered by Texas Insurance Code section 912.201 or its predecessor, former Texas Insurance Code article 17.25, section 6, and are not required to be filed with the Texas Department of Insurance pursuant to those statutes; and
The collection of the service charges from Plaintiffs Irene Romo and Fenn Ratcliffe by Farmers Texas County Mutual Insurance Company and USAA County Mutual Insurance Company, respectively, for providing an installment payment plan for the automobile insurance premiums paid by Plaintiffs Irene Romo and Fenn Ratcliffe is not prohibited by law for failure of Farmers Texas County Mutual Insurance Company and USAA County Mutual Insurance Company to have filed a schedule of such charges with the Department of Insurance pursuant to Texas Insurance Code section 912.201 or its predecessor, former Texas Insurance Code article 17.25, section 6.
Our holding is limited to the legal questions of (1) the construction of section 912.201 and its predecessor as stated and (2) whether the charges at issue are subject to the filing requirements of those statutes. We offer no opinion as to the propriety of the charges in any other context or with respect to any other law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
OSHA News Release: Texas worker injured after being denied safety equipment; employers cited [07/22/2015]
Texas worker injured after being denied safety equipment; employers cited
OSHA fines Cotton Commercial USA and Gardia Construction more than $367K
HOUSTON — Despite his request for a safety harness, a temporary worker without fall protection on a roof later fell 12 feet through the roof. His fall resulted in his hospitalization with fractured arms and severe contusions.
The employer, Cotton Commercial USA Inc. in Katy, Texas, waited three days to report the injury, an investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration found. Federal law requires employers to report such incidents within 24 hours.
OSHA today fined Cotton Commercial $362,500 for seven safety violations, including one willful and four willful egregious. The violations include failing to provide fall protection for four workers, failure to promptly report the hospitalization of an employee resulting from a workplace incident, and not training employees in the use of fall protection and ladders. Cotton Commercial citations are available here.
Gardia Construction, which provided the laborers to Cotton Commercial, received a citation for one serious violation and a fine of $4,900, for failing to conduct frequent and regular inspections of the job site where its laborers worked. The Gardia citations are available here.
“Falls kill workers, but they are preventable,” said Assistant Secretary for Occupational Safety and Health Dr. David Michaels. “Cotton Commercial denied its workers the safety equipment they are required to provide, and the company intentionally waited several days to report the incident and misled OSHA’s inspectors.”
Staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers. This includes ensuring that OSHA’s training, hazard communications and record-keeping requirements are fulfilled. And for construction workers, this responsibility includes ensuring that frequent and regular inspections of worksites are conducted.
“Cotton Commercial was well aware of how to prevent safety hazard and, in fact, on the following day Cotton made sure all workers were provided with the required safety equipment. It shouldn’t have to take a serious injury for a company to comply with the law,” said OSHA Regional Administrator John Hermanson.
Cotton Commercial employs about 227 workers and operates throughout the U.S. The company provides remediation services for commercial and residential structures damaged from disasters. At the time of the accident, Texas Mutual provided company employees with workers compensation insurance. Its current provider is Affordable Insurance of Texas. Gardia Construction, located in Gretna, La., employs about 80 workers and provides labor to Cotton Commercial. Gardia does not carry workers compensation insurance.
Both employers have 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.
To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Houston South office at 281-286-0583 or its Houston North office at 281-591-2438.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
OSHA News Release: [07/22/2015]
Contact Name: Diana Petterson or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709 Email: Petterson.Diana@dol.gov or Rodriguez.Juan@dol.gov
Release Number: 15-1411-DAL
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.