Documents obtained pursuant to a public records request from David Crump, a private citizen with a longstanding interest in Texas insurance finance, show the Texas Department of Insurance and the Texas Public Finance Agency have both been aware since September of 2011 of potentially fatal problems with the laws that are supposed to permit the Texas Windstorm Insurance Association to borrow money following a significant hurricane strike along the Texas coast and pay claims. The Texas legislature, instead of fixing problems with the statute during its 2013 session, however, so that its language conformed with its purported intent, chose to leave the statute as it was. As a result, the ability of TWIA to pay claims following a significant strike will apparently depend this summer on a highly creative interpretation of the law at odds with the words actually used in the statute. It is an interpretation almost certain to breed serious court challenges. The documents uncovered by Mr. Crump show the origins of this legal theory and efforts by the Texas Public Finance Authority to convince the former Texas Insurance Commissioner Eleanor Kitzman to change proposed regulations that might, the TPFA believed, revealed its own uncertainty as to the legitimacy of the legal theory they had developed.
The uncovered documents, which are in an archive available here, further suggest the desperate situation of the Texas Windstorm Insurance Association going into this hurricane season and the problems policyholders will face following a significant hurricane strike. They show that both TDI and TPFA are fully aware of a serious problem with the law under which TWIA operates but have apparently persuaded themselves that they have a fix. An examination of actual Texas law in lights of the documents just uncovered show, however, that the fix, although not as strange as might initially be thought, is still highly questionable. Continued reliance on an untested fix jeopardizes both on TWIA policyholders and the Texas economy. Continued sale of policies by TWIA without more forceful disclosure of a fundamental issue in its funding scheme is, frankly, irresponsible.
TWIA, the largest windstorm insurer on the Texas coast, does not have enough money to pay claims following a major storm. It will have to borrow. But documents have now come to light showing that Texas agency heads have been aware for years that there is a serious bug in that statute that may prevent the borrowing from being successful. The legislature has not fixed the problem. Instead, the agencies have cobbled together a very dubious legal theory that would permit TWIA to borrow. Their efforts are likely to fail. First, the legal theory asks courts to completely ignore the language of the statute and instead rely on what some legislators may say they actually intended. Courts don’t usually go along with that. Second, even if ultimately the agencies’ interpretation of the statute would prevail, the matter is likely to be tied up for a long time in litigation; TWIA policyholders will likely go unpaid in the interim. Documents uncovered by a public records request show Texas officials were aware of the problem, and, without adequate evidence, persuaded themselves to think they had solved it. They also tried to prevent evidence of their internal doubts about the problem from getting before the public or lenders. This failure to disclose and this failure to consider the serious problems with their “fix” is not responsible.
The issue revolves around an obscure provision in the Texas Insurance Code, section 2210.6136, enacted in 2011 in H.B. 3 that was supposed to fix a bug in the 2009 version of the statute. That bug involved the absence of any provision in the statute for how post-event bonding would work and how TWIA would thus pay claims if Class 1 Bonds, the first layer of borrowings, were unmarketable because creditors didn’t trust the repayment source: heightened obligations on TWIA policyholders already bruised by a storm. The higher layers of bonds couldn’t be tapped under the 2009 law unless all the Class 1 bonds had sold. The idea of H.B. 3 was to provide a Plan B. Unfortunately, as I think everyone could agree, section 2210.6136 (shown below) was drafted in, at best, an extremely confusing way.
Section 2210.6136 of the Texas Insurance Code
The documents show recognition by the key Texas agencies that section 2210.6136 had not provided a clear fix for a problem that was becoming ever more apparent. There was a significant likelihood that the triggering event — the credit market not accepting the Class 1 Bonds — would occur.
The documents thus show a September 13, 2011 meeting (six weeks after Governor Perry signed the law and two weeks before the new law would take effect) between the TPFA, which would be the agency issuing the bonds required for TWIA to pay claims, and staff from the heavy hitters on the House and Senate committees that had addressed the bill. The matter in question was new section 2210.6136 of the Texas Insurance Code, which had been intended to give TWIA a new “Plan B” in case, as it was being told was likely, the Class 1 Bonds that were supposed to form the first layer of protection were partly or entirely unmarketable. In a letter summarizing the meeting and sent to both its participants and leaders at the Texas Department of Insurance and TWIA, TPFA admits that its “staff and advisors have struggled with the mechanics of financing under that section.” It then sets forth, however, an imaginative theory of how section 2210.6136 could be interpreted in a fashion that would make Class 2 Bonds marketable.
The documents likewise show concern by the TPFA on May 22, 2012 that the Texas Insurance Commissioner, Eleanor Kitzman, was drafting rules for TWIA that exposed the fragility of the interpretation in which TPFA apparently acquiesced following the September 2011 meeting. Commissioner Kitzman had done this — responsibly — by offering two alternative ways of implementing post-event bonding in the proposed regulations. The first method implemented the theory of 2210.6136 that TPFA had acquiesced to (or possibly embraced) following the September 2011 meeting with legislative staff. That theory was contained in what was section 5.4126 of the proposed regulations. The second method was contained in section 5.4131 of the proposed regulations and provided a “Plan C” for what would happen if the Texas Attorney General determined the Plan B bonds could not be issued under 5.4126 or if there was litigation challenging issuance of securities under 5.4126.
On seeing that Commissioner Kitzman had revealed possible problems with TPFA’s construction of the statute, TPFA Executive Director Robert Coalter wrote a letter to Kitzman questioning her actions.
Also, offering two alternative interpretations in proposed rules introduces the notion that there is legal uncertainty surrounding the issuance of debt pursuant to Section 2210.6136 and this type of uncertainty generally is undesirable to potential investors. Accordingly, for these reasons as further supported below, TPFA requests that the Department eliminate the alternative offered under Section 5.413 I when publishing the rules for comment.
If the Rules support more than one construction for the authority to drop down to the issuance of Class 2 public securities, the alternatives may cause the OAG [Office of the Attorney General] to question the construction of the law and request a court interpretation before it can issue an opinion approving the public securities thereby delaying the issuance for a significant period.
Finally, the documents show an internal “informal draft” of the regulations file stamped May 22, 2012, that delete the alternative financing mechanism that might expose the fragility of TPFA’s saving interpretation of the statute. It is not clear whether this document was developed by TPFA, TDI or others.
In any event, what is currently being circulated in 2014 by the current Texas Insurance Commissioner, Julia Rathgeber, contains no mention of any alternative or any possibility that the Class 2 Bonds might not be lawfully issued. Instead, in a section now numbered 5.4127, it embraces TPFA’s creative reconstruction of the statute. Not surprisingly, TPFA’s March 10, 2014, comments on the proposal contain no objection to Commissioner Rathgeber’s ideas on how to construe section 2210.6136 of the Insurance Code.
Unfortunately, although the economic lives of hundreds of thousands of Texans rest on this issue, it is not an easy one to explain. I dread being asked to explain it in a 30 second sound bite. But here’s my best try.
The issue is who has to pay back the money TWIA will need to borrow to pay claims following a significant hurricane in which cash on hand and the depleted Catastrophe Reserve Trust Fund (CRTF) are exhausted. If there is one other thing everyone can agree on, it is that TWIA does not have enough cash on hand or money in the CRTF to pay for many Category 2 or higher strikes that would hit a densely populated area of the Texas coast such as Galveston or Corpus Christi. It will need to borrow. If TWIA does not have the ability to borrow, those claims are likely to go unpaid for a lengthy period of time. Indeed they may go unpaid forever. It is crystal clear that the state of Texas has no legal obligation to pay policyholders in the event of TWIA’s insolvency. And if there is legal doubt about who has to pay back loans TWIA would take out, creditors are very unlikely to loan TWIA money in the first place.
The table below taken from internal TWIA documents also produced in response to a public records request by Mr. Crump shows the potential magnitude of TWIA losses. TWIA is projected at best to have $400 million in internal resources (cash on hand plus CRTF money) to pay claims.
TWIA’s internal estimate of losses from Category 2 or 3 hurricanes
The Conflicting Theories about the TWIA statute
There appear now to be two mutually exclusive theories about who has to pay back certain moneys TWIA would need to borrow to pay claims. Both relate to section 2210.6136 of the Texas Insurance Code and the “Class 2 Bonds” that will need to be issued in an amount up to $1 billion if the unpaid claims following a tropical cyclone are greater than the amount that can be raised via “Class 1 Bonds.” These are both scenarios where, in some sense, TWIA policyholders have escaped at least part of their statutory responsibility for the first billion in losses of borrowings engaged in by TWIA after a storm.
There are three concepts which are useful in understanding the statute: I will call them the “Escaped Amount,” the “Capped Escaped Amount” and the “Residual Amount.”
- The Escaped Amount is the amount that the TWIA policyholders escape having to pay over time because TWIA can’t borrow the maximum amount it needs in Class 1 Bonds for which the TWIA policyholders would ordinarily be liable. You can see this concept manifesting itself in section 2210.6136(b)(1)(B) of the statute.The idea here is that TWIA policyholders are supposed to take responsibility for the first $1 billion in losses above the Catastrophe Reserve Fund and that they escape that responsibility if TWIA can’t borrow.
- The “Capped Escaped Amount” is the lesser of $500 million and the Escaped Amount. You can see this concept manifesting itself in section 2210.6136(b)(1) of the statute. The cap is in section 2210.6136(b)(1)(A). So, if TWIA can borrow only $200 million in Class 1 Bonds because creditors won’t loan them any more, the Escaped Amount is $800 million and the Capped Escape Amount is $500 million. If TWIA can borrow $700 million in Class 1 Bonds, the Escaped Amount is $300 million and the Capped Escape Amount is also $300 million.
- The Residual Amount is simply the difference between the amount TWIA borrows from Class 2 creditors and the Capped Escaped Amount. This concept is found in section 2210.6136(b)(2) of the statute. So, if TWIA borrows $900 million in Class 2 Bonds and TWIA borrowed only $300 million in Class 1 bonds to pay for $1.2 billion in losses above the Catastrophe Reserve Trust Fund, then the Escaped Amount is $700 million, the Capped Escaped Amount is $500 million and the Residual Amount is $400 million.
Under one theory, which I will call the “Actual Words of the Statute Theory,” Class 2 creditors are supposed to first be paid back the Capped Escaped Amount by TWIA policyholders. The repayment is accomplished by TWIA raising premiums on its policyholders and using the money to pay off the borrowings. The Residual Amount, if any, is paid off by assessments on insurers doing business in Texas (30%) and premium surcharges on a wide variety of coastal insurance policies (70%). Thus, under the Words of the Statute Theory, the TWIA policyholders don’t really escape responsibility from a failure of the Class 1 bonds to sell fully; they just make the payments for Class 2 Bonds rather than Class 1 Bonds, although the recapture of this Escaped Sum is limited to $500 million. And if the TWIA policyholders simply can’t pay this sum, it becomes the problem of the Class 2 creditors who loaned TWIA the money in the first place. No one else is responsible. The diagram below attempts to illustrate this theory.
Actual Words of the Statute Theory
Under a second theory, which I will call the “Suretyship Theory,” TWIA policyholders owe the Capped Escaped Amount to the Class 2 creditors just as under the “Actual Words of the Statute Theory,” but they have Texas insurers and other coastal policyholders acting as sureties. If the TWIA policyholders can’t pay, the Class 2 creditors are still likely to have their loans repaid. That is because Texas insurers and coastal policyholders pay off the Class 2 creditors on a 30/70 basis. Some of these payments may be as sureties on the Capped Escape Amount obligation of the TWIA policyholders; other payments will be made as part of the Residual Amount. If TWIA policyholders ever have the money, the sureties get repaid by the policyholders via what the law calls “subrogation.” The one catch is that this “subrogation right” of the surety is limited to the Capped Escaped Amount. Under this theory, if the TWIA policyholders can’t pay the Capped Escaped Amount, the Class 2 creditors should still be made whole; it is the member insurers and the coastal insurers who will be paying more than they ordinarily would. This theory, if it had a basis in the statute, would thus make it far more likely that institutions would actually lend TWIA the money it needs to pay claims.
The diagram below attempts to illustrate this more elaborate theory. The subrogation lines are dashed to indicate that these payments may never materialize.
The documents show that TPFA and, apparently, TDI have persuaded themselves that the Suretyship Theory is correct and have now written regulations (5.4127) that would codify it. This has caused a bit of tumult since it means that coastal policyholders are likely to pick up a larger financial share for a serious hurricane — particularly if the TWIA policyholders don’t/can’t pay them back. TPFA, which initially had serious questions about section 2210.6136, obtained statements from staff for key Texas legislators such as Senator John Smithee, Senator John Carona and Representative Larry Taylor that would appear to support the Suretyship Theory. As discussed below, both TDI and TPFA have seized on the word “repayment” instead of “payment” in the statute (2210.6136(b)) to prove that suretyship was contemplated. Both have further reasoned that, because the Actual Words of the Statute Theory will not, in fact, work, the Suretyship Theory, peculiar as it is in light of the words of the statute, must in fact be correct. They have essentially adopted the view of Sherlock Holmes: “when you have eliminated the impossible, whatever remains, however improbable, must be the truth.”
THE SERIOUS PROBLEMS WITH THE SURETYSHIP THEORY
As I will now discuss, however, there are serious problems with the Suretyship Theory. If that is what the legislature intended, the statute makes no sense. Moreover, the idea that creditors will lend money on the basis of the Suretyship Theory — even if it were ultimately proven correct — seems highly fanciful. This, of course, is exactly why Commissioner Kitzman had suggested a Plan C in her draft regulations so that at least there would be no regulatory vacuum in the event courts did not accept the imaginative and non-textual interpretation of 2210.6136 developed by TPFA. And, finally, if indeed everyone meant the Suretyship Theory, surely it would not be difficult to call a very brief Special Session of the Texas Legislature to clarify the statute and avoid difficult litigation following a major storm that gravely delays payments to TWIA policyholders whose homes have been devastated. Failure to reform the statute if everyone agrees there was just a mistake in writing it down is irresponsible where people’s lives and homes are at stake.
The Statute Makes No Sense if Suretyship was intended
If, however, Texas had intended a suretyship, there was a far simpler way to draft it. Here is about what section 2210.6136 would likely have said. It is far simpler than the scheme set forth in the real section 2210.6136.
Sec. 2210.6136. ALTERNATIVE SOURCES OF PAYMENT. (a) Notwithstanding any other provision of this chapter, on a finding by the commissioner that all or any portion of the total principal amount of Class 1 public securities authorized to be issued under Section 2210.072 cannot be issued, the commissioner, by rule or order, may cause the issuance of Class 2 public securities in a principal amount not to exceed the principal amount described by Section 2210.073(b). In such event, the liability of each entity responsible for payment shall be only as a surety to the extent of the Capped Escaped Sum but as under section 2210.613 to the extent of the Residual Sum.
(b) As used in this section,
(1) the term “Escaped Amount” means that portion of the total principal amount of Class 1 public securities authorized to be issued under Section 2210.072 that cannot be issued, plus any costs associated with that portion;
(2) the term “Capped Escaped Amount” means the lesser of the Escaped Amount and $500 million; and
(3) The term “Residual Amount” means an amount equal to the difference between the principal amount of public securities issued under Subsection (a) and the Capped Escaped Amount plus any costs associated with that amount
(c) If Class 2 public securities are issued in the manner authorized by this section, Class 3 public securities may be issued only after Class 2 public securities have been issued in the maximum amount authorized under Section 2210.073.
Instead of this structure, however, the real section 2210.6136 contains no mention of suretyship and no mention of the fact that Texas insurers and coastal insureds are supposed to pay back the entirety of the amount borrowed using Class 2 bonds. The word surety or guarantor never appears. The word “reimburse” likewise never appears. Instead, the statute has a complex two-part structure in which it firsts describes how much is to be paid back pursuant to the mechanism in section 2210.612 of the statute — under which TWIA policyholders are liable — and how much is to be paid back pursuant to the mechanism in section 2210.613 of the statute — under which Texas insurers and coastal insureds are liable. Section 2210.6136(b)(2) makes absolutely no sense as a suretyship arrangement because it would be calling for the surety to pay itself — something that can never happen. In short, it is as almost as plausible to interpret 2210.6136 to contain an unstated desire to have all Texans repay Class 2 Bonds — after all, this too would “solve” the funding problem — as it is to interpret it to contain some sort of suretyship relationship.
So, given all this, how could TPFA and TDI come to the conclusion that 2210.6136 in fact embraces a suretyship theory? Their best argument is the (Sherlock) Holmesian one that the statute cannot possibly mean what it says. I have noted this problem myself. If TWIA policyholders don’t have enough resources to pay off Class 1 bonds, which are on a 14-year repayment schedule, how are they going to have enough resources to pay off Class 2 bonds on a 10-year repayment schedule? Here is what the Robert P. Coalter, Executive Director of the TPFA wrote to then Texas Insurance Commissioner Eleanor Kitzman on May 22, 2012, in a letter just revealed as a result of Mr. Crump’s Public Records request.
“To construe Section 2210.6136(b)(l) such that the Class 2 public securities ordered to be issued under Section 221 0.6136(b) are to be paid by net premium and other revenues would render Section 2210.6136 ineffective. In the construction of a statutory provision, there is a presumption that such provision is effective. It is an impossibility for Class 2 public securities secured by net premium and other revenue to be issued following the inability to issue Class 1 public securities secured by such net premium and other revenue under Section 2210.612. Put another way, if Class 1 public securities cannot be issued under Section 2210.612, how can Class 1 public securities disguised as Class 2 public securities be issued under Section 2210.6136?”
TPFA then bolsters this point by stating that statutes should be interpreted in the public interest and that it would very much not be in the public interest for TWIA to be unable to borrow money following a major storm.
Here’s the difficulty. It is true that section 2210.6136 is a very bad law if it is interpreted as it was written. It is bad for precisely the reasons identified by Mr. Coalter and, actually, by current Texas Insurance Commissioner Julia Rathgeber more recently. But, if Holmes maxim governs, a court could find that it was impossible for a legislator that meant to create a suretyship relationship to have said so using the words contained in section 2210.6136 and therefore that the improbable theory — that the legislature just drafted a dopey law — must be embraced. Moreover, is it really “impossible” that if the Class 1 bonds failed, the Class 2 bonds repaid from the same source would fail as well? Perhaps during the time period after it was learned that the Class 1 bonds would fail, the situation of TWIA policyholders improved so that they could repay Class 2 bonds. Or perhaps Class 2 bonds secured partly by payments from insurers would attract lower interest rates than Class 1 bonds secured only by payments from policyholders. Likely? No. Impossible? I am less sure.
The TPFA mustered two additional arguments for its suretyship theory in that critical letter to Kitzman. The first rested on a distinction between the use of the word “repayment” in describing an obligation under section 2210.6136 and the use of the word “payment” in describing obligations under other provisions calling for repayment of bonds. According to the TPFA, “In giving the ordinary meaning to the use of the words “pay” or “paid” and “repayment,” one could conclude that repayment means the reimbursement of an amount initially paid.” Well, I suppose one could, but the TPFA ignores the fact — indeed cuts it out of its letter — that section 2210.6136 actually uses the term “payment” in section 2210.6136(b)(2) to describe this alleged reimbursement obligation. If repayment meant reimbursement then, in describing the obligation, presumably such a careful legislature would again use the term “repayment” rather than the term “payment.” Moreover, in three other sections of the Chapter addressing Texas Windstorm Insurance (2210.056, 2210.609 and 2210.6165) the legislature uses “repayment” to describe things that are clearly not reimbursement obligations. In short, the legislature appears to have used payment and repayment synonymously. You just can’t conclude much of anything based on a one-time use of the word “repayment” in one part of section 2210.6136.
The final argument TPFA advances is legislative history. Here is what TPFA says in its May 22, 2012 letter to Commissioner Kitzman.
Legislative history may be considered in construing a statute, whether or not the statute is considered ambiguous on its face. TPFA staff met with representatives of Representative Smithee, Representative Larry Taylor, Senator Carona and Senator Jackson who affirmed that the use of the words “pay” and “repay” in Section 2210.6136 was purposeful to provide a manner whereby the Association could access the markets to obtain financing if Class 1 public securities cannot be issued in the amount authorized under Section 2210.072, and still ensure that as much as possible of the first one billion dollars of losses were ultimately paid by premium and other revenue. Thus, the new Section 2210.6136 authorized the Commissioner to order the issuance of Class 2 public securities payable from premium surcharges and member assessments as provided in Section 2210.613; furthermore, requires that the Association repay the policyholders and members for premium surcharges and member assessments assessed to pay the drop down Class 2 public securities in the amounts specified in Section 221 0.6136(b)(1 ).
This analysis is one-sided and shallow. Yes, there is language in some Texas cases indicating that legislative history can be used if the plain language of a statute would lead to absurd results. But it is also true that this is to be done only in the most extreme cases and that different judges have different thresholds of absurdity before they embrace the separation of powers problems inherent in essentially fabricating law. Moreover, before courts decide to ignore the language of the statute, there needs to be”room for construction,” a reasonable alternative, and no way of interpreting the statute consistent with its text. To quote an earlier Texas Supreme Court case, Simmons v. Arnim, 220 S.W. 66, 70 (Texas 1920),
Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.
Or, as the Texas Supreme Court said as recently as 2009, “Enforcing the law as written is a court’s safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers chose ….” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). See also, City of Round Rock v. Rodriguez, 399 S.W.3d 130, 140 (Tex. 2013) (“it would be a usurpation of our powers to add language to a law where the [L]egislature has refrained” and citing numerous cases on the topic); J. Woodfin Jones, The Absurd-Results Principle of Statutory Construction in Texas, 15 Rev. Litig. 81 (Winter 1996).
The “legislative history” offered here to support the TPFA/TDI construction of the statute is not of a traditional sort: statements made by legislators to other legislators before the bill was enacted. Statements of some legislators — even key legislators — after the fact about what they think a bill meant is deeply problematic because their theory was not presented for other legislators to consider. As United States Chief Justice William Rehnquist summarized matters in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989), “We have observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute.” Justice Willett of the Texas Supreme Court has recently written that legislative history, even when permissibly used, “hits rock bottom” when considering post-enactment commentary on a bill. See Ojo v. Farmers Group Ins., 356 S.W.3d 421, 444, note 30 (Tex. 2011)(concurrence).
Moreover, here we don’t even have comments from the legislators themselves. We have only reconstructed hearsay from staffers based on what they think their bosses meant and likely based on leading questions from a TPFA that had already constructed its theory. That is weak legislative history, possibly beneath rock bottom. How much these staffers or the legislators for whom they work would recall anything as a result of litigation in 2014 or 2015 about events in 2009 and how much of that testimony would survive cross examination is very much open to doubt.
My point, anyway, is not to establish that the Suretyship Theory adopted by TPFA and TDI is a sure fire loser. My point is to establish that the public needs to be told about the problem. The original presentation of legal argument as to why it should be accepted was one-sided and shallow. The arguments in favor of the suretyship approach continue to be sufficiently problematic that it is a fantasy to imagine that persons hurt by it — such as coastal businesses and legislators who end up being converted into sureties with doubtful subrogation rights — will not be able tie matters up in litigation for a protracted period of time. TPFA and TDI may have persuaded themselves that they have the best interpretation of the statute, but what creditor is going to be willing to lend $1 billion when the payment (or repayment) source is open to this level of doubt. And, yes, the documents uncovered by Mr. Crump speak periodically about a comfort letter coming from the Office of Attorney General, but I (a) am not aware that such a letter has been issued; (b) have concerns as to whether the AG would issue such a letter; and (c) fear that such a letter, even if it were issued, might not provide adequate comfort to lenders when the final issue, after all, will be determined by the courts.
The real argument in favor of doing nothing, however, and simply accepting the Suretyship Theory now being promulgated by TDI is that it is a pretty good bluff. Even if the theory is nonsensical, is there a court in Texas which, when the alternative is TWIA going insolvent, would have the guts to say that the law should be interpreted as it was written and that, if the legislature was aware of the issue and did nothing, the remedy is throw the rascals out and/or vote for relief after the fact under a new law? Perhaps not. But given the pleas that will be made by individuals and businesses along the Texas coast who will be additionally burdened by the TDI Suretyship interpretation of section 2210.6136 and the attractiveness of the Actual Words of the Statute Theory, that is hardly a certainty. Moreover, given the internal doubts that have surfaced about the interpretation of section 2210.6136 — and the very real basis for those doubts — the responsible thing to do is to warn TWIA insureds about the problem. Yes, warnings about people’s homes and insolvent insurers are scary, but that is better I believe than burying one’s doubts in favor of a dubious and untested interpretation of a critical statute. It is not responsible for TWIA to bury the problem, for insurance agents to fail to disclose, or, frankly, for insurance regulators to be as quiet as they have been. Note to Governor Perry: neither your legacy nor your career will be helped by blue roofs on coastal houses as litigation grinds through the courts regarding 2210.6136 and the legislature deadlocks on now to proceed.
Finally, if indeed everyone indeed agrees on what was intended, would it not be the far more responsible thing, instead of playing poker with the judiciary, to just get a stronger hand by having a very brief special session of the Texas legislature — right now — and conform the law to its supposed intent? I know the Suretyship Theory if enacted into a clear law in a special session of the Texas legislature would not be ideal for many people along the Texas coast. I know many along the coast would like the burden shared more widely across the Texas. But that is a battle those interests will never win before the start of the 2014 hurricane season. If they really believe in coastal solidarity, as it is sometimes termed, they should recognize that the current system is very likely to fail TWIA insureds following a large storm and that a fix after a storm will be very difficult. In the few weeks remaining, they should not let perfection be the enemy of the good.