Category: Recent News
House Bill 2102: Tips to Remain Compliant
Texas House Bill 2102, which goes into effect on September 1, 2019, is sending waves throughout the roofing and insurance restoration industry in Texas. The following are a few tips to assist you with compliance:
- You must add the following to your contract in bold, 12-pt (or greater) font and preferably on page 1:
“Texas law requires a person insured under a property insurance policy to pay any deductible applicable to a claim made under the policy. It is a violation of Texas law for a seller of goods or services who reasonably expects to be paid wholly or partly from the proceeds of a property insurance claim to knowingly allow the insured person to fail to pay, or assist the insured person’s failure to pay, the applicable insurance deductible.”
- We recommend that you post a copy of the law in your main office or other area where you post other legal notices, i.e. wage law notices (see HB 2102 below).
- We also recommend that you add the following to your agreements with your independent contractor sales people/project managers:
“Contractor represents and warrants that he or she has reviewed, understands, and will fully comply with Texas House Bill 2102, effective September 1, 2019, which provides that it is unlawful to (i) pay, waive, absorb, or otherwise decline to charge or collect the amount of an insured’s deductible; (ii) provide a rebate or credit in connection with the sale of the good or service that will offset all or part of the amount paid by the insured as a deductible; or (iii) in any other manner assist the insured in avoiding monetary payment of the required insurance deductible.”
If you have any questions or would like to discuss, please feel free to call us at (972) 239-6200 or e-mail Chris@psmclaw.com.
Below is exact wording of H.B. 2102:
H.B. No. 2102
AN ACT relating to the payment of insurance deductibles related to
property insurance policies; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 5, Insurance Code, is amended
by adding Chapter 707 to read as follows:
CHAPTER 707. PAYMENT OF INSURANCE DEDUCTIBLE
Sec. 707.001. DEFINITIONS. In this chapter:
(1) "Person" means an individual, corporation,
association, partnership, limited liability company, or other
legal entity.
(2) "Property insurance policy" means an insurance
policy issued by an insurer, including a county mutual insurance
company, farm mutual insurance company, Lloyd's plan, or reciprocal
or interinsurance exchange, that provides first-party coverage for
loss of or damage to real property.
Sec. 707.002. PAYMENT OF DEDUCTIBLE REQUIRED. A person
insured under a property insurance policy shall pay any deductible
applicable to a first-party claim made under the policy.
Sec. 707.003. CONSUMER EDUCATION. The department, in
coordination with other state agencies and stakeholders as
necessary, shall develop and implement an education program related
to the payment of property insurance policy deductibles. The
program must:
(1) provide reasonable methods to educate insurance
consumers and providers of goods or services that are regularly
paid for from proceeds of property insurance claims; and
(2) include information regarding:
(A) the requirements of this chapter and Section
27.02, Business & Commerce Code; and
(B) the conduct prohibited by Section 27.02,
Business & Commerce Code.
Sec. 707.004. REASONABLE PROOF OF PAYMENT. An insurer that
issues a property insurance policy with replacement cost coverage
may refuse to pay a claim for withheld recoverable depreciation or a
replacement cost holdback under the policy until the insurer
receives reasonable proof of payment by the policyholder of any
deductible applicable to the claim. Reasonable proof of payment
includes a canceled check, money order receipt, credit card
statement, or copy of an executed installment plan contract or
other financing arrangement that requires full payment of the
deductible over time.
Sec. 707.005. RULEMAKING. The commissioner may adopt rules
as necessary to implement this chapter. Section 2001.0045,
Government Code, does not apply to rules adopted under this
SECTION 2.
Section 27.02, Business & Commerce Code, is
amended to read as follows:
Sec. 27.02. GOODS OR SERVICES PAID FOR BY INSURANCE
PROCEEDS: PAYMENT OF DEDUCTIBLE REQUIRED
(a) In this section, "property insurance
policy" has the meaning assigned by Section 707.001, Insurance
Code.
(b) A contract to provide a good or service that is
reasonably expected to be paid wholly or partly from the proceeds of
a claim under a property insurance policy and that has a contract
price of $1,000 or more must contain the following notice in at
least 12-point boldfaced type: "Texas law requires a person
insured under a property insurance policy to pay any deductible
applicable to a claim made under the policy. It is a violation of
Texas law for a seller of goods or services who reasonably expects
to be paid wholly or partly from the proceeds of a property
insurance claim to knowingly allow the insured person to fail to
pay, or assist the insured person's failure to pay, the applicable
insurance deductible."
(c) A person who sells goods or services commits an offense
if the person:
(1) advertises or promises to provide a good or
service to an insured under a property insurance policy in a
transaction in which:
(A) the good or service will be paid for by the
insured from the proceeds of a property insurance claim; and
(B) the person selling the good or service will,
without the insurer's consent:
(i) pay, waive, absorb, or otherwise
decline to charge or collect the amount of the insured's
deductible;
(ii) provide a rebate or credit in
connection with the sale of the good or service that will offset all
or part of the amount paid by the insured as a deductible; or
(iii) in any other manner assist the
insured in avoiding monetary payment of the required insurance
deductible; or
(2) provides a good or service to an insured under a
property insurance policy knowing that the insured will pay for the
good or service with the proceeds of a claim under the policy and,
without the insurer's consent:
(A) pays, waives, absorbs, or otherwise declines
to charge or collect the amount of the insured's deductible;
(B) provides a rebate or credit in connection
with the sale of the good or service that offsets all or part of the
amount paid by the insured as a deductible; or
(C) in any other manner assists the insured in
avoiding monetary payment of the required insurance deductible.
(d) An offense under this section is a Class B [A]
misdemeanor.
SECTION 3. The changes in law made by this Act to Section
27.02, Business & Commerce Code, apply only to an offense committed
on or after the effective date of this Act. An offense committed
before the effective date of this Act is governed by the law in
effect on the date the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this section,
an offense was committed before the effective date of this Act if
any element of the offense occurred before that date.
SECTION 4. Section 27.02(b), Business & Commerce Code, as
amended by this Act, applies only to a contract entered into on or
after the effective date of this Act.
SECTION 5. This Act takes effect September 1, 2019.
Texas Legislature Finally Allows Sealing of Records for First-Time DWI Convictions
Most people understand that a criminal record can, and almost certainly will, impact potential career, housing and travel opportunities. Any time a background check is required, a person with a criminal record is likely to be moved to the bottom of the pile or worse, flat out rejected and deemed unworthy of further consideration. Until recently, Texas residents could not avoid the stigma associated with a past conviction for DWI. That all changed, however, when the Legislature amended the law in 2017 with House Bill 3016, which expands the ability of certain persons convicted of non-violent misdemeanors to petition the court to have their records sealed. This includes the ability to seal records of first time DWI convictions, so long as certain conditions are met.
Prior to HB 3016, the Texas Government Code instructed courts to seal the record of a person charged with certain non-violent misdemeanors when their case was dismissed because they successfully completed Deferred Adjudication Community Supervision. However, the law DID NOT allow records for DWI to be sealed – ever. Now, HB 3016 finally changes that rule but many people still do not realize they can seal their DWI records.
Requirements for Sealing DWI Records
Under the new law, a person convicted of a first-offense DWI with a blood-alcohol concentration (BAC) below 0.15 can petition the court to have the records related to that offense sealed through an Order of Non-Disclosure. In order to qualify under the new law, certain criteria must be met:
A person may have their DWI sealed only if:
- The person has never been convicted or placed on deferred adjudication probation for any other offense, not including traffic tickets. Traffic tickets will not disqualify you, if they are punishable by a fine only;
- The person successfully completed any imposed community supervision and any term of confinement as ordered by the court;
- The person paid all costs, fines and restitution as ordered by the court;
- The DWI offense did not result in a motor vehicle accident involving another person (including any passengers); and
- The person completed the relevant waiting period:
- Two years if the person completed at least six months of driving with an ignition interlock device installed on their vehicle as part of the sentence; or
- Five years if the person did not have an ignition interlock required as part of the sentence.
Required Waiting Periods
The new law requires a person to wait a certain amount of time before petitioning the court to seal their DWI record.
- If a person was restricted to operation of a motor vehicle equipped with an ignition interlock device as part of their sentence, and the person complied with all conditions of the sentence for a period of not less than 6 months, then they must wait two years from the date they completed probation before they are eligible to have their record sealed.
- If a person was not required to have an ignition interlock device installed in their vehicle, then they must wait five years from the date they completed probation before they are eligible to have their record sealed.
Who is NOT eligible to have a DWI record sealed?
A person is NOT eligible to have their DWI record sealed if:
- The DWI involved an accident with another person (passengers included);
- The DWI was a 2nd or 3rd offense;
- The DWI involved a finding that the BAC was 0.15 or above; or
- The DWI happened in the last two years (if ignition interlock device was ordered) or five years (if no ignition interlock was ordered).
To find out if you qualify to have your DW record sealed, contact our criminal defense attorneys today at 972-239-6200.
New Texas Law Allows for Beneficiary Designation on Your Vehicle
Here at Prevost, Shaff, Mason & Carns, P.L.L.C., one of our most important duties is to stay current on the latest legislative developments and share those updates with our clients, friends and families.
With that in mind, we wanted to share that the Texas Legislature has recently added new provisions to the Texas Estates Code and Transportation Code allowing for the designation of a beneficiary on your vehicle to take title upon your passing without the need for probate or otherwise.
We know organizing an estate after a family member’s passing can be difficult and designating a beneficiary of your vehicle is another great way to help simplify estate matters and make sure your wishes are followed.
The following are the highlights of the new laws:
- To create a transfer on death designation, the owner must submit an Application for Title that is available online or at your local Department of Motor Vehicles (“DMV”), which contains a designation of beneficiary effective upon the owner’s death;
- Importantly, the owner retains full rights in the vehicle, meaning, he or she can still sell the vehicle, remove the beneficiary, or change the beneficiary designation by submitting a new Application to the DMV at any time before the owner’s passing;
- The beneficiary’s rights to the vehicle do not arise until after the owner passes away; and
- Within 180 days of the owner passing away, the beneficiary must submit the old title, a new Application for Title, and proof of the owner’s death (generally, the death certificate) to the DMV.
If you would like to discuss this or other smart estate planning steps further, please give us a call at (972) 239-6200 or e-mail me at Chris@psmclaw.com.
A Registered Trademark Could be the Key to Growing a Successful Business
One of our main practice areas here at Prevost, Shaff, Mason & Carns, PLLC is business development and strategy, and our passion is to help our clients plan for the future and protect their accomplishments in every aspect of their lives.
When developing a successful business, one important facet is to create a strong, recognizable brand to further enhance the value of the company today and in the future if and when it sells. As such, we wanted to provide you with the ten best reasons to apply for a registered trademark:
- Discourages others from using confusingly similar marks in the first place by making the mark easy to find in a trademark availability search.
- Protects against registration of confusingly similar marks.
- Treats the mark as if used nationwide as of the application date, which is vital in a system in which first use wins.
- Provides nationwide notice of ownership of the mark as of the registration date.
- Serves as evidence of the validity and exclusive ownership of the mark for the goods and services listed in the registration.
- Grants the right to use the ® symbol when the mark is used for the goods and services listed in the registration.
- Grants the right to sue in federal court and, in certain cases, obtain treble damages and attorney fees.
- Entitles you to certain statutory damages in the case of counterfeiting.
- Provides a basis for foreign registrations, facilitating protection of your marks worldwide as business expands.
- Empowers US Customs and Border Protection to block imports that infringe the mark or are counterfeits.
Should you wish to discuss applying for a registered trademark, please give our office a call at (972) 239-6200 or e-mail me at olivia@psmclaw.com.