Untitled Texas Attorney General Opinion ( 1946 )

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