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Click here for the full text of this decision FACTS:Texas Revised Civil Statutes Art. 4413(37), �2, funds the Texas Automobile Theft Prevention Authority’s automobile theft prevention programs by requiring each automobile insurer to pay a fee of $1 per policy year for every automobile insured. The commissioner of the Texas Department of Insurance authorized automobile carriers to recoup the fee from insureds so long as the carriers provided insureds notice that, as part of the policy, they were being charged the fee “in addition to the premium due under this policy.” Texas Insurance Code Art. 21.35B applies to all insurers and outlines payments insurers may solicit or collect from policyholders. The statute provides, in pertinent part: “(a) No payment may be solicited or collected by an insurer, its agent, or sponsoring organization in connection with an application for insurance or the issuance of a policy other than: (1) premiums; (2) taxes; (3) finance charges; (4) policy fees; (5) agent fees; (6) service fees, including charges for costs described under Article 21.35A of this code; (7) inspection fees; or (8) membership dues in a sponsoring organization.” Texas Insurance Code Art. 5.101, entitled Flexible Rating Program for Certain Insurance Lines, applies to automobile insurers and authorizes the commissioner to set a benchmark rate for each line of personal automobile insurance sold in Texas. Under Art. 5.101, once the commissioner establishes “flexibility band[s]” acceptable rate ranges for each line of insurance insurers must file detailed information on proposed rates which, if within the flexibility bands, are presumed valid. Shefqet Ademaj and others (Ademaj) alleged in a motion for summary judgment that Mid-Century and Texas Farmers Insurance Companies (Mid-Century) illegally collected the authority fee, because the fee was not included in Mid-Century’s Art. 5.101 rate-filing. Mid-Century countered with a motion for summary judgment, alleging that Art. 21.35B(a) authorized charging the authority fee as an expense and that no requirement existed to include the fee in the Art. 5.101 rate-filing. Mid-Century and Ademaj ultimately filed a joint motion to sever Ademaj’s claims from the remaining plaintiffs’ claims or, alternatively, for a written order for interlocutory appeal of the summary declaratory judgment. The parties stipulated the following: “1. Ademaj paid a total of $1 in Authority fees to Mid-Century Insurance Company. “2. Ademaj paid a total of $3 in Authority fees to Texas Farmers Insurance Company. “3. All payments Ademaj made for private passenger automobile insurance coverage, other than the Authority fees, were legally authorized. “4. Neither Mid-Century nor Texas Farmers charged Ademaj the Authority fee as part of the premium for private passenger automobile insurance coverage. “5. Neither Mid-Century nor Texas Farmers has included the Authority fee in their rates or in their rate-filings made with the commissioner under Article 5.101.” The trial court issued a partial summary judgment in favor of Ademaj. The 12th Court of Appeals affirmed the trial court’s ruling, holding insurers are required to include the authority fee in their Art. 5.101 rate-filings with the commissioner. Mid-Century timely filed an appeal. HOLDING:Reversed and rendered. The principal issue, the court stated, is whether insurance carriers must include the authority fee within the rates filed under Art. 5.101 or whether carriers may recoup the fee independently under Art. 21.35B. First, the court construed Art. 21.35B as an affirmative source of an insurer’s authority to solicit and collect payments. Article 21.35B(a) provides that “[n]o payment may be solicited or collected . . . other than” the eight enumerated categories of payments, creating a prohibition with respect to non-enumerated payments and an authorization with respect to the enumerated elements. Construing Art. 21.35B(a), the court stated, as a mere outline of the Art. 5.101 rate-making considerations renders it meaningless to automobile insurers and ignores the statute’s application to other types of insurers. Instead, Art. 21.35B authorizes the solicitation and collection of premiums, taxes and the other enumerated payments unless some intervening statute provides otherwise. Second, the court construed the Art. 5.101 “rates” to constitute “premiums” as contemplated by Art. 21.35B(a). Ademaj, the court stated, argued that Art. 5.101 requires the commissioner’s inclusion of all costs and expenses of operation, including all taxes, in the Art. 5.101 rate. Because taxes and fees generally, and the authority fee specifically, are not listed in �3(o), Ademaj argued that Art. 5.101 governed the authority fee exclusively. The court disagreed. Having determined that payments may fall under either Art. 5.101 or Art. 21.35B, the court stated that it did not need to settle the issue, because the commissioner already did s “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.” To that end, the court noted that the commissioner promulgated Rule 15, which does not require insurers to include the authority fee in their Art. 5.101 flex filings. Instead, Rule 15 directs insurers to collect the authority fee from policyholders and simply notify them that the fee was being collected “in addition to the premium due” under the policy. The commissioner’s interpretation deserves deference, the court stated, because it accords with the terms of the statute. In conclusion, the court found that Art. 21.35B authorizes all insurers to solicit and collect both premiums and taxes. The Article 5.101 rate-making process produces auto insurance premiums and, in the process, gives the commissioner the discretion to determine whether payments should be considered as part of the Art. 5.101 rate (and, thus, Art. 21.35B premium) or instead should be considered as another Art. 21.35B payment. Because the commissioner made a reasonable determination that the authority fee should be charged directly and not as part of the Art. 5.101 premium, the court held that Mid-Century properly recouped the fee from Ademaj. OPINION:Green, J., delivered the opinion of the court, in which Jefferson, C.J., and Wainwright, Brister, Johnson and Willett, JJ., joined. Hecht, J., did not participate in the decision. CONCURRENCE:O’Neill, J., filed a concurring opinion, in which Medina, J., joined. “I agree with the Court that Mid-Century and Texas Farmers Insurance Companies . . . lawfully recouped the Automobile Theft Prevention Authority (ATPA) fee from their policyholders. But the Court rests that conclusion on a construction of Insurance Code article 21.35B that could permit rate-regulated insurers to collect the items enumerated therein in addition to their filed rates in a manner that threatens to undermine the Legislature’s efforts to create a fair and competitive rate system. Accordingly, I concur in the Court’s judgment, but cannot join its opinion.”

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