80C74(2) PEP

 

SECTION ___.  CONFORMING AMENDMENT.  Chapter 85, Insurance Code, is amended by adding Section 85.002 to read as follows:

Sec. 85.002.  FALSE STATEMENT IN WRITTEN INSTRUMENT; PENALTY.  (a)  A person commits an offense if the person knowingly makes, files, or uses a written instrument that:

(1)  is required by this code or by commissioner rule to be made to or filed with the department or an association, corporation, or person created by this code; and

(2)  contains any false or fraudulent statement or entry with regard to a material fact.

(b)  An offense under this section is a felony of the third degree.  (V.T.I.C. Art. 21.47.)

Source Law

Art. 21.47.  (a)  A person commits an offense if the person knowingly or intentionally makes, files or uses any instrument in writing required to be made to or filed with the State Board of Insurance or the Insurance Commissioner, either by the Insurance Code or by rule or regulation of the State Board of Insurance, when the instrument in writing contains any false, fictitious, or fraudulent statement or entry with regard to any material fact.

(b)  For purposes of this article, "Texas Department of Insurance" includes but is not limited to the executive director of the Texas Department of Insurance, the State Board of Insurance, or any association, corporation, or person created by the Insurance Code.

(c)  An offense under this article is a felony of the third degree.

Revisor's Note

(1)  Section (a), V.T.I.C. Article 21.47, refers to a person who "knowingly or intentionally" engages in certain conduct.  Under Section 6.02, Penal Code, applicable to the revised law through Section 1.03, Penal Code, culpable mental states are classified according to relative degree of culpability from highest to lowest, and proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.  Because an intentional mental state is classified as a more culpable mental state than a knowing mental state, the revised law omits "intentionally" as unnecessary.

(2)  Section (a), V.T.I.C. Article 21.47, refers to the State Board of Insurance.  Chapter 685, Acts of the 73rd Legislature, Regular Session, 1993, abolished the board and transferred its functions to the commissioner of insurance and the Texas Department of Insurance.  In the revised law, references to the State Board of Insurance have been changed appropriately.

(3)  Section (a), V.T.I.C. Article 21.47, refers to the "Insurance Commissioner."  The revised law uses "commissioner" rather than "Insurance Commissioner" because Section 31.001 of this code defines "commissioner" to mean the commissioner of insurance.

(4)  Section (a), V.T.I.C. Article 21.47, refers to an administrative "rule or regulation."  The revised law omits the reference to "regulation" because under Section 311.005(5), Government Code (Code Construction Act), a rule is defined to include a regulation.  That definition applies to the revised law.

(5)  Section (a), V.T.I.C. Article 21.47, refers to a "false, fictitious, or fraudulent statement or entry."  The revised law omits the reference to "fictitious" because that term is included within the meaning of "false."

(6)  Section (b), V.T.I.C. Article 21.47, defines "Texas Department of Insurance" to include the executive director of the Texas Department of Insurance, the State Board of Insurance, or any association, corporation, or person created by the Insurance Code.  For the reasons stated in Revisor's Note (2) and because Section 31.001 of this code defines "department" to mean the Texas Department of Insurance, the revised law substitutes "department" for "State Board of Insurance."  Under Section 31.021(a) of this code, the commissioner of insurance is the chief executive and administrative officer of the Texas Department of Insurance.  Section 31.001 of this code defines "commissioner" to mean the commissioner of insurance, and under Section 31.003 of this code the department includes the commissioner.  It is therefore unnecessary for the revised law to include a separate reference to the commissioner along with the reference to the department, and the revised law is drafted accordingly.