Carlyle T. Poindexter Poindexter & Associates, Inc. And Surety One, Inc. v. Insurance Commissioner Cassie Brown and the Texas Department of Insurance ( 2023 )

Affirmed and Opinion filed March 28, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00298-CV
CARLYLE T. POINDEXTER; POINDEXTER & ASSOCIATES, INC.; AND
SURETY ONE, INC., Appellants
V.
INSURANCE COMMISSIONER CASSIE BROWN AND THE TEXAS
DEPARTMENT OF INSURANCE, Appellees
On Appeal from the 126th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-20-007713
OPINION
This appeal involves an administrative order revoking the insurance licenses
of appellants Carlyle Poindexter, Poindexter & Associates, and Surety One, Inc.
Appellants obtained a performance bond for the Maverick County Solid Waste
Authority (“MCSWA”) pursuant to Texas Commission on Environmental Quality
(“TCEQ”) requirements for operation of a landfill. The Texas Department of
Insurance (the “Department”) alleged that appellants overcharged MCSWA in bond
premiums by several hundred thousand dollars over the course of six years. The
case comes to us following a contested case hearing before an administrative law
judge (“ALJ”) from the State Office of Administrative Hearings, who recommended
that appellants’ insurance licenses be revoked. The Department’s Commissioner
adopted the ALJ’s findings and conclusions. On judicial review in district court, a
Travis County district judge affirmed the Commissioner’s order, denied appellants’
administrative appeal, and dismissed their claims with prejudice.
Appellants assert eight issues challenging the Commissioner’s order. After a
thorough review of the contested case hearing record, we conclude that substantial
evidence supports the order, that the order does not improperly analyze and apply
the Insurance Code, and that the order is not arbitrary or capricious. We thus
overrule the dispositive issues in this appeal, and we affirm the trial court’s
judgment.
Introduction
In 2012, MCSWA sought a surety bond to meet the financial assurance
requirements of its TCEQ permit to ultimately close and maintain closure of a solid
waste landfill. MCSWA engaged a local insurance company, LaVernia Insurance
Agency, and its independent insurance agent, Jose Jaime Rodriguez,1 to assist in
obtaining the bond. Rodriguez contacted appellants to help locate a company willing
to issue the bond. After rejections from numerous insurers, appellants placed the
bond with Lexon Insurance Company. The bond limit of liability was $2.856
million. Appellants and MCSWA’s board president signed the performance bond
1
Rodriguez is a licensed insurance agent located in Eagle Pass, Maverick County, where
the MCSWA board sits. He was the agent who assisted Maverick County with its property, life
and health, worker’s compensation, and liability insurance policies.
2
on May 1, 2012. From June 2012 to May 2018, the bond limit increased from $2.856
million to $3.8 million as additional sections of the landfill were opened. The annual
bond premiums billed by Lexon increased as the bond limits increased.
Lexon came to believe that appellants were charging MCSWA more in
premiums than they were remitting to Lexon. In 2017, Lexon filed a “Uniform
Suspected Insurance Fraud” report with the Department. The following table
illustrates the payments at issue among Lexon, appellants, and MCSWA:
Bond Lexon’s Appellants’ Appellants’ Appellants’ “Overage”
2
Term Premium Payment to Commission Invoice to Collected
Billed to Lexon from Lexon MCSWA by
Appellants Appellants
6/1/2012 $57,130.30 $45,704.24 $11,426.06 $99,979.00 $42,848.70
to
6/1/2013
6/1/2013 $58,920.00 $47,136.00 $11,784.00 $93,302.00 $34,382.00
to
6/1/2014
5/1/2014 $72,777.00 $58,221.60 $14,555.40 $127,360.00 $54,583.00
to
5/1/2015
5/1/2015 $73,796.00 $58,221.60 $14,759.20 $129,145.00 $55,349.00
to
5/1/2016
5/1/2016 $74,534.00 $59,627.20 $14,906.80 $130,434.00 $55,900.00
to
5/1/2017
5/1/2017 $75,303.00 $60,402.40 $15,100.60 $132,130.00 $56,627.00
to
5/1/2018
2
Amount includes a commission payable to appellants.
3
As shown, for the initial bond year, Lexon billed appellants $57,130.30, which
included a commission of $11,426.06 for appellants. Appellants invoiced MCSWA
for $99,979.00, and MCSWA remitted this amount to appellants. Appellants
remitted $45,704.24 to Lexon. Thus, during the initial year, appellants collected
from MCSWA $42,848.70 in excess of their commission. Over the six-year period
at issue, appellants collected $712,350.00 from MCSWA, but remitted to Lexon only
$329,313.04 in bond premiums and retained commissions of $82,532.06. Thus, for
the six years at issue, they collected from MCSWA $299,689.70 more than they
remitted to Lexon in premium payments. These figures are not disputed.
Based on Lexon’s report and the Department’s investigation, the Department
notified appellants that it was seeking disciplinary action, which could include
revocation of their insurance licenses. A contested case hearing was held before an
ALJ, who recommended that the Department revoke appellants’ insurance licenses
in a Proposal for Decision (“PFD”). The Department adopted the ALJ’s findings
and conclusions. The following information is taken from the hearing record and
the ALJ’s PFD.
Additional Record Evidence
In September 2011, Lexon and appellants entered into an agency agreement
that appointed Surety One as a general agent of Lexon to produce surety bonds.
According to the agreement, appellants were entitled to receive from Lexon a ten
percent commission on the type of bond that MCSWA required (closure/post-closure
performance bond to ensure that MCSWA complied with TCEQ rules when closing
and maintaining the closed landfill). Despite this general agreement, Lexon
authorized appellants to retain a twenty percent commission on the annual MCSWA
bond premium.
4
None of the invoices appellants provided to MCSWA disclosed any fees.
There is no invoice for the original bond, but a copy of the “Performance Bond,”
effective May 1, 2012, is included in the record. On the final page of the bond, it
states, “Bond premium: $99,979.” The bond does not disclose any fees or
commissions or the base premium amount Lexon billed to appellants.
The first invoice, dated May 1, 2013 on Surety One’s letterhead, simply states,
“Bond – MCSWA landfill renewal.” The invoice additionally provides, “Terms,
rates and fees quoted to principal upon execution of the original or renewal bond and
broker disclosure continue with full force and effect with this continuation, and
principal specifically consents to same.” Each subsequent invoice—all of which are
on Surety One’s letterhead—contains this same language.
The record also contains several signed copies of a “Broker Commission
Agreement and Compensations Definition” (the “Commission Agreements”) printed
on Surety One’s letterhead and signed by the “bond applicant.” These agreements
were signed in June 2012, May 2013, and May 2017. The agreements generally
provide that a producer, such as Surety One, may receive one or more of certain
commissions or fees, depending on the producer’s relationship with the surety. The
agreements provide in consistent language the following regarding the types of
commissions a producer, such as Surety One, might receive:3
Base Commission. Producers are generally paid a Base Commission
for the sale and service of policies. Base Commission is a fixed
percentage of the policy premium or a fixed amount per policy set prior
to the sale (effective date) of the policy to which it applies. The
percentage or amount may vary depending on certain factors, such as
the type of product, the risk classification, whether the policy is new or
a renewal, whether another policy is written for the same insured, and
3
This excerpt is from the agreement signed in May 2012, but all three agreements contain
substantially similar language.
5
the services provided to the policyholder. In some cases, the percentage
or amount may be negotiated on a transaction by transaction basis, and
may vary by Producer based, at least in part, on the Producer’s past
performance and the expected value of the Producer’s business going
forward.
Supplemental Commission. Certain Producers may be eligible for
Supplemental Commission in addition to Base Commission. Like Base
Commission, Supplemental Commission is a fixed percent of premium
or a fixed amount per policy, which is set prior to the sale of the policy
to which it applies. Eligibility for, and the amount of, Supplemental
Commission paid on current business is based on a Producer’s ability
to meet certain past production, growth, profitability or other historical
performance objectives established by the surety(ies). Supplemental
Commission is generally paid separately from Base Commission on an
annual or other periodic basis.
Contingent Commission. Certain Producers may be eligible for
Contingent Commission, which is generally offered in lieu of
Supplemental Commission. Contingent Commission is generally a
particular percent of the premium written during a preceding
performance period or a particular sum that is based upon a Producer’s
ability to meet certain production, growth, profitability or other
performance objectives established for us that preceding period. As
such, eligibility for, and the amount of Contingent Commission cannot
be determined until after the sale of bonds that occur over a given period
of time. Contingent Commission is generally paid separately from
Base Commission on an annual or other periodic basis. Contingent
Commission is not offered for all products and lines of business. By
executing this document you specially acknowledge your
understanding that we enter into such contingency arrangements.
The agreements also described a “Producer Administrative Fee,” which may
be charged by producers to their customers “related to services they provide to their
customers.” These administrative fees would not be part of the surety’s premium,
would not be charged on the surety’s behalf, and could be in addition to any
compensation the producer receives from the surety. Finally, all three agreements
provide, above the signature line, “I understand that ALL premiums, commissions,
6
and fees have been combined into my quote and I do consent to that/those fees as
quoted.” No “quotes” are contained in the record.
Three witnesses testified at the contested case hearing. The first was Andrew
Smith, who is responsible for fraud investigations and reporting at Lexon.4
According to Smith, Lexon revoked appellants’ authority to produce new business
in October 2014; Lexon continued to service existing bonds and policies, but
appellants could not work on new Lexon business. Lexon terminated its relationship
with appellants in 2017 after it discovered the “overbillings” charged to MCSWA.
Lexon filed a fraud report on January 27, 2017.
Smith explained that Lexon discovered that appellants were charging
MCSWA more than Lexon billed for the bond premium when Lexon’s operations
department had difficulty collecting Lexon’s premium from appellants for the 2016-
2017 bond renewal year. According to Smith, appellants did not respond to Lexon’s
communications, so Lexon contacted MCSWA directly to determine whether it had
been billed for the bond renewal. MCSWA informed Lexon that it paid the premium
to appellants a few months earlier, and Lexon requested invoices and proof of
payment. Smith testified that, after receiving the invoices, Lexon discovered that
appellants were charging MCSWA an amount significantly above Lexon’s bond
premium, which led Smith to investigate further. He confirmed that similar
“overbilling” had occurred each policy term since the bond’s inception.
Smith sent a letter to appellants demanding that they refund to MCSWA the
“overbilled” amounts within seven calendar days of receipt of the letter. Poindexter
responded via email, stating he had legal counsel that would address the concerns
4
Appellants repeatedly refer to Lexon as a “competitor,” but do not direct us to any
supporting evidence in our record for this assertion. At all relevant times, appellants were acting
as Lexon’s general agent to produce surety bonds.
7
and would keep Lexon apprised of the process. Poindexter also stated in the email
that he had “strict written approval from Maverick to bill and collect every dollar
that has ever been invoiced to them.” Poindexter, however, did not follow up with
Lexon regarding the demand or the “overbillings,” did not provide Lexon with any
explanation for the charges, and did not provide Lexon with copies of written
consent from MCSWA authorizing the charges.
On cross-examination, Smith acknowledged that MCSWA never demanded
that Lexon refund any amounts. He testified that he thought Lexon should refund
the “overages” to MCSWA,5 but Lexon did not do so because Lexon determined
there could have been some other contractual relationship between appellants and
MCSWA authorizing the premium differentials. According to Smith, the “fraud” in
this case is that appellants referred to amounts they collected from MCSWA as
“premiums,” when the premiums were actually the lesser amounts for which Lexon
invoiced appellants and appellants paid to Lexon. Smith testified that MCSWA did
not appear to be aware that appellants were charging it more than the bond
premiums, although he acknowledged that he did not speak with anyone at MCSWA
to confirm what Rodriguez or appellants disclosed to the MCSWA board.
Rodriguez and Poindexter testified for appellants. According to Rodriguez,
he was the agent responsible for this bond, and he had no knowledge that appellants
communicated directly with MCSWA at any time. He explained that several
insurers denied his request for a surety bond because members of the county
commissioner’s court (not the MCSWA board) had been indicted recently for
embezzlement and kick-back schemes. Despite concerns with ongoing
investigations into Maverick County, however, appellants, at Rodriguez’s request,
5
It is undisputed that appellants, not Lexon, collected the “overages.”
8
were able to secure a bond through Lexon in 2012. Rodriguez testified that MCSWA
was aware of the charges in excess of the Lexon premiums because Poindexter had
informed Rodriguez of this arrangement, and Rodriguez informed the MCSWA
landfill manager. Rodriguez explained that the Commission Agreement was
executed by the MCSWA board before the bond was issued in June 2012. He
testified that he described the fees that appellants would charge MCSWA to
MCSWA’s manager and the board based on this document. According to
Rodriguez, at board meetings at which he was present, the MCSWA board declined
to solicit other insurers to take over the bond after 2016 because appellants were
“there for them” when no one else would provide bond coverage. He stated that he
specifically disclosed “the fees” each year to MCSWA, but he acknowledged that he
did not have a separate document or invoice detailing the amounts of any additional
fees or commissions above the Lexon premium that appellants would be charging
MCSWA. Rodriguez believed that the Commission Agreement was a disclosure of
fees that might be charged. To Rodriguez’s knowledge, MCSWA had not filed a
complaint with the Department regarding appellants’ fees, nor had MCSWA sought
a refund for any “overbillings.” Rodriguez testified that he received a $20,000
annual commission from appellants related to this bond each year. He also billed
MCSWA $5,000 per year for his services related to the bond.
Poindexter testified that he is a licensed insurance agent in all fifty of the
United States, Canada, Puerto Rico, and the U.S. Virgin Islands. According to
Poindexter, he assisted Rodriguez in obtaining the surety bond. He conceded that
the amounts Smith and the Department provided were accurate, but he insisted that
the “overage” was a “fee” to MCSWA in addition to Lexon’s premium. Thus, for
example, he agreed that his 2012 “fee” over and above his commission was
$42,878.70, as reflected in the final column in the table above. Poindexter testified
9
that he earned this fee because of the services he provided and the difficulty in
placing the bond due to Maverick County’s poor financial condition and the recent
criminal indictments and investigations. These factors made placement of the bond
“more risky” from an insurer’s perspective. According to Poindexter, it took him
about four months, working a couple hours a day, to initially place the MCSWA
surety bond. He also explained that renewing the bond annually entailed significant
work, including background research and due diligence, as well as dealing with any
changes at MCSWA or requested by TCEQ. Poindexter worked closely with
Rodriguez, who, as appellants’ liaison, attended hearings and board meetings and
reported to Poindexter regarding any issues or questions. According to Poindexter,
Rodriguez disclosed the specific items within the annual invoice to MCSWA during
Rodriguez’s meetings with MCSWA and the Maverick County Commissioner’s
Court.
Poindexter addressed the Commission Agreements in some detail. He stated
that he provided MCSWA a copy of the agreement every year the bond was renewed,
and MCSWA was “fully aware” of the fees appellants charged in addition to Lexon’s
premium. In Poindexter’s view, this document disclosed that he was being
reimbursed by an insurance company as required by the Insurance Code. He
conceded, however, that the invoices he sent to MCSWA did not separately detail
the fees or premiums, and instead reflected a single, aggregate amount due, which
included the premium. He also stated that Surety One no longer has a complete set
of files due to incidents like Hurricane Maria, which “wiped out” his offices in
Puerto Rico.6 He acknowledged that there were no more specific invoices detailing
6
According to its letterhead and invoices, Surety One’s address is in North Carolina, not
Puerto Rico.
10
the fees charged to MCSWA. He also testified that the Department had not asked
him to return the “overbillings” to MCSWA.
After the contested case hearing, the ALJ submitted his PFD, recommending
that the Department revoke appellants’ insurance agent licenses. The Commissioner
adopted the following findings of fact and conclusions of law and incorporated them
into the order revoking appellants’ general lines agent and agency licenses:
III. FINDINGS OF FACT
1. Carlyle T. Poindexter (Poindexter) holds a general lines agent
license with a property and casualty qualification originally issued
by the Texas Department of Insurance (Department) on July 10,
2003.
2. Surety One, Inc. (Surety One) holds a general lines agent license
with a property and casualty qualification originally issued by the
Department on November 9, 2012. Poindexter is the officer/director
of Surety One.
3. Poindexter and Associates, Inc. (Poindexter and Associates) holds a
general lines agent license with a property and casualty qualification
originally issued by the Department on March 30, 2004. Poindexter
is the officer/director of Poindexter and Associates.
4. Poindexter, Surety One, and Poindexter and Associates are,
collectively, the Respondents in this case.
5. Poindexter was individually appointed as an agent by Lexon
Insurance Company (Lexon) from October 2011 through July 2017.
Lexon revoked Poindexter’s ability to write new surety bonds on
July 2, 2014, but continued to renew the existing business he had
previously placed until Lexon terminated their relationship in July
of 2017.
6. In 2012, the Maverick County Solid Waste Authority (MCSWA)
sought a surety bond (bond) to meet the financial assurance
requirements of its permit to operate and ultimately close a solid
waste landfill issued by the Texas Commission on Environmental
Quality (TCEQ).
11
7. MCSWA engaged a local insurance agency, LaVernia Insurance
Agency (LaVernia) and its independent insurance agent, Jose Jaime
Rodriguez, to assist in obtaining the bond. Mr. Rodriguez contacted
Respondents to locate an insurance agency that would be willing to
issue the bond.[7]
8. After rejections from a number of insurance agencies, Respondents
placed the bond with Lexon initially in the amount of $2,856,515.
9. The amount listed as the “bond premium” on the initial Performance
Bond contract entered into between Respondents and MCSWA was
$99,979.00, which was paid to Respondents on April 23, 2012, prior
to the execution of the surety bond contract.
10.Respondents and the MCSWA Board President executed the bond
contract on May 1, 2012, effective May 1, 2012.
11.During the six-year period at issue in this case—June 2012 through
May 2018—the bond limit increased from $2.9 million to $3.8
million as additional sections of the landfill were opened.
12.On June 1, 2012, Respondents and Lexon executed an Agency
Execution Report that memorialized the amount for the MCSWA
bond as $45,704.24, plus an agent commission of $11,426.06 for a
total of $57,1309.30.
13.The bond premium billed by Lexon to Respondents increased as the
bond limit increased.
14.Lexon authorized Respondents to retain a 20% commission on the
annual MCSWA bond premium.
15.Between 2012 and 2018, Respondents billed MCSWA at rates in
excess of the premiums Respondents paid to Lexon as follows:
a. For the 2012-2013 bond term, the premium due to Lexon was
$57,130.30. Respondents billed MCSWA $99,979.00,
meaning Respondents collected $42,848.70 more than
Respondents paid to Lexon for this annual premium (not
accounting for the commission retained by Respondents).
7
The ALJ made a “non-substantive” revision to this finding pursuant to appellants’ Brief
on Exceptions to the PFD, changing the phrase “local insurance company” to “local insurance
agency.”
12
b. For the 2013-2014 bond term, the premium due to Lexon was
$58,920.00. Respondents billed MCSWA $93,302, meaning
Respondents collected $34,382.00 more than Respondents
paid to Lexon for this annual premium (not accounting for the
commission retained by Respondents).
c. For the 2014-2015 bond term, the premium due to Lexon was
$72,777.00. Respondents billed MCSWA $127,360.00,
meaning Respondents collected $54,583.00 more than
Respondents paid to Lexon for this annual premium (not
accounting for the commission retained by Respondents).
d. For the 2015-2016 bond term, the premium due to Lexon was
$73,796.00. Respondents billed MCSWA $129,145,
meaning Respondents collected $55,349.00 more than
Respondents paid to Lexon for the annual premium (not
accounting for the commission retained by Respondents).
e. For the 2016-2017 bond term, the premium due to Lexon was
$74,534.00. Respondents billed MCSWA $130,434.00,
meaning Respondents collected $55,900.00 more than
Respondents paid to Lexon for this annual premium (not
accounting for the commission retained by Respondents).[8]
f. For the 2017-2018 bond term, the premium due to Lexon was
$75,503.00. Respondents billed MCSWA $132,130.00,
meaning Respondents collected $56,627.00 more than
Respondents paid to Lexon for this annual premium (not
accounting for the commission retained by Respondents.
16.Lexon filed a complaint with the Department in 2017 when it
discovered that Respondents were charging MCSWA more than the
bond premiums that Respondents were remitting to Lexon for the
same bond.
17.No line items that described the services provided by Respondents
in addition to a single amount due, referred to as a “Bond Premium”
or a “Bond-MCSWA landfill renewal,” were included on
Respondents’ annual invoices to MCSWA for this bond.
8
The Department revised this finding of fact to correct the premium amount due to Lexon.
13
18.Respondents did not obtain a signed consent from MCSWA to
charge fees in excess of the annual premiums Respondents paid to
Lexon for the bond.
19.Respondents were not charging “fees” to MCSWA for costs
incurred to obtain a motor vehicle record or a photograph of
property.
20.The annual invoices through which Respondents requested payment
for the amount they were charging to MCSWA were sent on
Respondents’ letterhead directly to the accounting department at
MCSWA.
21.MCSWA remitted its payment for the bond directly to Respondents.
22.Respondents’ sole contact with MCSWA prior to and during the
time the bond was in effect was through Jose Jaime Rodriguez, an
insurance agent not associated with Lexon who was retained by
MCSWA to locate an insurer to place the bond.
23.Lexon was not aware that Respondents were paying a $20,000 per
year commission to Mr. Rodriguez.
24.Mr. Rodriguez was also being paid a $5,000 per year commission
from the MCSWA for this bond.
25.Respondents’ commissions retained from Lexon were less than
$20,000 in each year that the bond was in effect.
26.The Broker Commission Agreement (Commission Agreement) that
Respondents provided to MCSWA lists various types of
commissions or fees that Respondents “may” charge to MCSWA.
27.The Commission Agreement does not state that commissions or fees
were being charged to MCSWA or list the amounts of any such
commissions or fees.
28.The amounts that Respondents collected from MCSWA in excess of
the premium amounts that Respondents remitted to Lexon were not
fees.
29.The Commission Agreement was signed by a representative of
MCSWA on at least one occasion.
30.The Commission Agreement does not reference Mr. Rodriguez.
14
31.MCSWA was not aware that Respondents were charging them an
amount that was from 58% to 75% in excess of the premium stated
on the bond filed with the Department.
32.Respondents were not acting as intermediaries between Lexon and
Mr. Rodriguez.
33.Respondents were not acting as an intermediary between MCSWA
and Mr. Rodriguez.
34.On November 27, 2019, [Department] Staff filed its First Amended
Notice of Hearing against Respondents.
35.The First Amended Notice of Hearing stated a time, date, and
location for the commencement of a mearing on the merits in this
docket.
36.In addition to the time, date, and location, the First Amended Notice
of Hearing contained a statement of the nature of the hearing; a
statement of the legal authority and jurisdiction under which the
hearing was to be held; a reference to the particular sections of the
statutes and rules involved; and a short, plain statement of the factual
matters asserted or an attachment that incorporated by reference the
factual matters asserted in the complaint or petition filed by the state
agency. . . .
IV. CONCLUSIONS OF LAW
1. The Department has jurisdiction over this matter. Tex. Ins. Code
§§ 4001.002, .105, 4005.101, .102.
2. SOAH has authority to hear this matter and issue a proposal for
decision with findings of fact and conclusions of law. Tex. Gov’t
Code ch. 2003; Tex. Ins. Code § 4005.104.
3. Respondents received timely and sufficient notice of the hearing.
Tex. Gov’t Code ch. 2001; Tex. Ins. Code § 4005.104(b).
4. An insurance license may be revoked if a licensee willfully violates
a law of this state. Tex. Ins. Code § 4005.101(b)(1).
5. An insurance license may be revoked if a licensee misappropriates
or converts to his own use money that belongs to an insured such as
MCSWA. Tex. Ins. Code § 4005.101(b)(4)(C).
15
6. An insurance license may be revoked if a licensee engages in
fraudulent or dishonest acts or practices. Tex. Ins. Code
§ 4005.101(b)(5).
7. Respondents violated Texas Insurance Code § 4005.101(b)(1),
(4)(C), and (5) by collecting premiums from the policy holder—
MCSWA—far in excess of the premiums Respondents remitted to
Lexon for the same bond.
8. Respondents were not charging fees to MCSWA as the term fees is
used in Texas Insurance Code §§ 4005.003 or 550.001(a).
9. Respondents received compensation from MCSWA but failed to
obtain documented acknowledgement and disclosure from
MCSWA showing that Respondents were also being compensated
by Lexon. Tex. Ins. Code § 4005.004(b), (c).
10.An insurance agent who receives a commission for services as an
agent may not receive an additional fee for those services provided
to the same client unless the agent has made disclosures as required
under Texas Insurance Code §§ 4005.003 or 4005.004. Tex. Ins.
Code § 4005.054.
11.The Department should revoke Respondents’ insurance agent
licenses.
Appellants appealed the Commissioner’s order to a Travis County district
court. After briefing and a hearing by submission, the district court signed a final
judgment affirming the order, denying appellants’ administrative appeal, and
dismissing with prejudice their claims. Appellant timely appealed to the Austin
Court of Appeals, which transferred the case to this court.9
Standards of Review
The substantial-evidence standard of the Texas Administrative Procedure Act
(“APA”) governs our review of the Commissioner’s order. See Tex. Gov’t Code
§ 2001.174; Tex. Ins. Code § 36.201, .203. The APA authorizes reversal or remand
9
See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court of
Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
16
of an agency’s decision that prejudices the appellant’s substantial rights because the
administrative findings, inferences, conclusions, or decisions (1) violate a
constitutional or statutory provision, (2) exceed the agency’s statutory authority,
(3) were made through unlawful procedure, (4) are affected by other error of law, or
(5) are arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. Tex. Gov’t Code § 2001.174(2)(A)-(D), (F).
Otherwise, we may affirm the administrative decision if we are satisfied that
“substantial evidence” exists to support it. Id. § 2001.174(1), (2)(E).
Substantial evidence “does not mean a large or considerable amount of
evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion of fact.” Slay v. Texas Comm’n on Env’t Quality,
351 S.W.3d 532, 549 (Tex. App.—Austin 2011, pet. denied). We consider the
reliable and probative evidence in the record as a whole when testing an agency’s
findings, inferences, conclusions, and decisions to determine whether they are
reasonably supported by substantial evidence. Graff Chevrolet Co. v. Tex. Motor
Vehicle Bd., 60 S.W.3d 154, 159 (Tex. App.—Austin 2001, pet. denied); see Tex.
Gov’t Code § 2001.174(2)(E).
Under this deferential standard, we presume that the Commissioner’s order is
supported by substantial evidence, and appellants bear the burden of proving
otherwise. See Dyer v. Tex. Comm’n on Env’t Quality, 646 S.W.3d 498, 514 (Tex.
2022) (quoting Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665
S.W.2d 446, 453 (Tex. 1984)). The burden is a heavy one—even a showing that the
evidence preponderates against the agency’s decision will not be enough to
overcome it, if there is some reasonable basis in the record for the action taken by
the agency. Charter Med.-Dallas, 665 S.W.2d at 452. We must uphold the agency’s
ultimate decision if the evidence “is such that reasonable minds could have reached
17
the conclusion that the agency must have reached in order to justify its action.” Dyer,
646 S.W.3d at 514 (internal quotation omitted). Our ultimate concern is the
reasonableness of the agency’s order, not its correctness. See Tex. Comm’n on Env’t
Quality v. Maverick County, 642 S.W.3d 537, 544 (Tex. 2022). Even improper,
superfluous findings will not support reversal when “an agency’s decision is based
on sufficient underlying findings that are supported by substantial evidence.” Dyer,
646 S.W.3d at 514. An “improper, but superfluous, finding does not prejudice the
substantial rights of the appellant.” Id.
Although we apply substantial-evidence review to an agency’s fact findings,
we review an agency’s legal conclusions de novo. Scally v. Tex. State Bd. of Med.
Exam’rs, 351 S.W.3d 434, 441 (Tex. App.—Austin 2011, pet. denied). We also
review questions of statutory construction de novo. R.R. Comm’n of Tex. v. Tex.
Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Our
primary objective when construing a statute is to determine and effectuate the
legislature’s intent, and the “surest guide to what lawmakers intended is what they
enacted.” Tex. Dep’t of Ins. v. Am. Nat’l Ins. Co., 410 S.W.3d 843, 853 (Tex. 2012).
When a statute is clear and unambiguous, we apply its words according to their
common meaning to give effect to every word, clause, and sentence. Id. But if a
statute’s meaning is vague or ambiguous, we may defer to the agency’s statutory
interpretation unless it is plainly wrong or inconsistent with the statute’s language.
Id. Thus, when a statutory scheme is subject to multiple interpretations, we must
uphold an enforcing agency’s construction if it is reasonable and in harmony with
the statute. Tex. Citizens, 336 S.W.3d at 629 (observing that “governmental agencies
have a unique understanding of the statutes they administer” (internal quotations and
citations omitted)).
18
Discussion
The Department may discipline a license holder if it determines that the
license holder (individually or through an officer, director, or shareholder) has:
(1) willfully violated a Texas insurance law; (2) misappropriated or converted to his
or her use money belonging to an insured; or (3) engaged in fraudulent or dishonest
acts or practices. See Tex. Ins. Code § 4005.101(b)(1), (4)(A), (5). The
Commissioner revoked appellants’ licenses after finding that they engaged in
conduct proscribed by each of these three sections.
Among appellants’ issues, they challenge the evidence supporting the
Commissioner’s order and the ALJ’s interpretation of various Insurance Code
provisions and contend that the order is arbitrary and capricious. To overturn the
order, appellants must show that it prejudices their substantial rights. See Tex. Gov’t
Code § 2001.174(2). We conclude appellants have failed in their burden because
substantial evidence supports the Commissioner’s findings and conclusions that
appellants willfully violated Insurance Code section 550.001(a), which the
Commissioner correctly applied. See Tex. Ins. Code § 4005.101(b)(1). We also
reject appellants’ contention that the order is arbitrary and capricious. Because we
conclude the order is supportable under section 4005.101(b)(1), it is unnecessary to
address whether the Department also proved that appellants misappropriated or
converted to their use money belonging to an insured (section 4005.101(b)(4)(C)) or
engaged in fraudulent or dishonest acts or practices (section 4005.101(b)(5)). Tex.
R. App. P. 47.1.
19
A. Substantial Evidence Supports the Commissioner’s Order
1. Substantial evidence supports the findings that appellants violated
section 550.001(a) by collecting payments not permitted by that statute.
In connection with an application for insurance or the issuance of a policy, an
insurer or an insurer’s agent may collect only a premium and other specifically
enumerated payments, including an agent fee. See Tex. Ins. Code § 550.001(a)(1),
(5). The Commissioner found that appellants willfully violated section 550.001(a)
by charging MCSWA well in excess of the premium set by Lexon. The “excess
charges,” the Commissioner found, “are not covered” under section 550.001(a) and
were not “fees.”
In their first and second issues, appellants say these findings are “contrary to
the evidence” and are based on a legally erroneous reading of the code.
Their argument in support of issue one consists of recasting the relative weight
of their evidence against the Department’s. Essentially, appellants complain that the
Commissioner afforded too much weight to the Department’s evidence and too little
to theirs. For example, they argue that: (1) Rodriguez’s and Poindexter’s testimony
“was given little to no weight by the Order”; (2) their testimony was “credible”;
(3) MCSWA’s “satisfaction” with appellants’ services warranted consideration; and
(4) there was no substantial evidence showing that appellants engaged in “wrongful”
or “dishonest” practices because their evidence was stronger than the Department’s
evidence.
“In a contested case hearing, the ALJ is the sole judge of witness credibility
and is free to accept or reject testimony of any witness or even accept ‘part of the
testimony of one witness and disregard the remainder.’” Granek v. Tex. State Bd. of
Med. Exam’rs, 172 S.W.3d 761, 778-79 (Tex. App.—Austin 2005, no pet.) (quoting
S. Union Gas Co. v. R.R. Comm’n, 692 S.W.2d 137, 141-42 (Tex. App.—Austin
20
1985, writ ref’d n.r.e.)). In conducting a substantial-evidence review, we “may not
substitute [our] judgment for the judgment of the state agency on the weight of the
evidence on questions committed to agency discretion.” Tex. Gov’t Code
§ 2001.174(1); Dyer, 646 S.W.3d at 515. Appellants ask this court to do something
it cannot: reweigh the evidence and reassess credibility determinations.
The second prong of their attack asserts that the Commissioner erroneously
applied the Insurance Code. According to appellants, the Commissioner’s findings
constitute errors of law because the Commissioner considered only whether the
“overbillings” were “service fees”—appellants agree they were not—but failed to
consider the availability of “agent fees” under section 550.001(a). Appellants insist
that the amounts they collected from MCSWA and did not remit to Lexon for
premiums constituted “agent fees.”
We disagree with appellants’ reading of the PFD and the Commissioner’s
order. The ALJ expressly found that the “overbillings” did not qualify as any of the
“policy support fees” permitted by section 550.001(a). In particular, the ALJ
expressly stated that the excess premiums collected by appellants were not “agent
fees.” Similarly, the other specific findings of fact and conclusions of law did not
distinguish between “service” or “agent” fees, but rather stated more broadly that
appellants’ excess collections over and above the Lexon premiums were not “fees”
of any kind. Appellants are incorrect that the ALJ failed to consider whether the
overbillings constituted “agent fees.” The ALJ specifically considered that
argument and rejected it.
Further, we believe that the ALJ’s findings and conclusions adopted by the
Commissioner are supported by substantial evidence. Appellants’ documents, for
example, notably characterize the full payment only as a “premium” and not as any
type of “fee.” While there was no invoice for the initial bond in 2012, a copy of the
21
performance bond itself, signed by MCSWA and Poindexter for Lexon, describes
the bond amount—$99,979.00—only as “Bond Premium.” The amount Lexon
charged appellants for the premium, however, was $57,130.30. The bond neither
discloses the lesser amount charged by Lexon as premium nor identifies any portion
of the payment as fees. The bond renewal invoices likewise do not characterize any
of the billed amounts as fees. They merely describe the lump sum as “Bond –
MCSWA landfill renewal.” They do not disclose that any fees are included in the
billed amount.
Although section 550.001(a)(5) allows an agent to collect an “agent fee,” that
term is not defined in the code. Appellants say they charged an additional agent fee
on top of the premium because MCSWA’s applications required an inordinate
amount of work due to its poor financial situation and credit. But the ALJ found
more persuasive appellants’ lack of documentation characterizing any part of the
payments as fees or describing even nominally the nature of the agent services
performed justifying the fees.
The Commissioner found and concluded that the amount billed by appellants
in 2012 included amounts far in excess of the premiums appellants remitted to Lexon
for the same bond and that the excess amounts appellants charged were not “fees”
as that term is used in sections 4005.003 and 550.001(a). These findings and
conclusions are supported by a reasonable factual and legal basis in the record. We
hold there is a rational basis to conclude that appellants violated Insurance Code
section 550.001(a) because the amounts appellants collected from MCSWA but did
not remit to Lexon were overages that did not qualify as premiums, fees, or any other
type of payment sanctioned in section 550.001(a). Appellants have not met their
burden to overcome the presumption that the challenged fact findings regarding
22
section 550.001(a) are supported by substantial evidence. See Dyer, 646 S.W.3d at
514.
2. Substantial evidence supports the Commissioner’s finding that
appellants’ violation was willful.
We have concluded that the Commissioner’s findings that appellants violated
section 550.001(a) are supported by substantial evidence and not based on an
erroneous reading of the Insurance Code. Appellants also challenge the
Commissioner’s findings that the violation was willful.
The Insurance Code does not define the word “willful.” In other insurance-
related contexts, however, the supreme court has construed the term to denote
intentional conduct. See Greer v. Franklin Life Ins. Co., 221 S.W.2d 857, 860 (Tex.
1949). In Greer, the court considered former article 21.23 of the Insurance Code,
which called for forfeiture of a life insurance beneficiary’s interest when the
beneficiary is the “principal or an accomplice in willfully bringing about the death
of the insured.” Id.10 In that context, the court thought it “entirely reasonable to
interpret ‘willfully’ in the statute to mean the same as the common law test.”11
Similarly, Black’s defines “willful” to mean voluntary and intentional, but not
necessarily malicious. “Willful,” Black’s Law Dictionary (11th ed. 2019).
“Intentional” means “[d]one with the aim of carrying out the act.” “Intentional,”
Black’s Law Dictionary (11th ed. 2019). These definitions are consistent with
Greer’s construction of the term as used in the Insurance Code, albeit in a different
context. Further, courts addressing whether a party willfully violated a statute have
10
This provision is now codified at Insurance Code section 1103.151. See Tex. Ins. Code
§ 1103.151 (“A beneficiary of a life insurance policy or contract forfeits the beneficiary’s interest
in the policy or contract if the beneficiary is a principal or an accomplice in wilfully bringing about
the death of the insured.”).
11
The court explained that the “common law” test was based on “intent and illegality as
distinguished from malice.” See id. at 859-60.
23
said that willful means that the party knows of the statute’s prohibitions but violates
the statute anyway. See Mfrs. Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139
S.W.3d 342, 346 (Tex. App.—Fort Worth 2004, pet. denied).
Intent is generally a fact question and may be shown by circumstantial
evidence. Churchill v. Mayo, 224 S.W.3d 340, 345 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). “As a general rule, the intention with which an act is done can
only be ascertained by circumstantial evidence. The inward objects and purposes of
the mind, when in violation of moral or legal duty, are more frequently and truly
indicated by circumstances, than by open and unequivocal acts or declarations.”
Besch v. Besch, 27 Tex. 390, 392 (Tex. 1864).
As explained by the ALJ, the preponderance of the evidence shows that
MCSWA was not aware that appellants were remitting to Lexon only a fraction of
the amounts they billed and collected from MCSWA as premiums and that
appellants’ actions appeared intended to ensure that MCSWA remained blind to this
fact:
In all but one year, this mark-up, not counting [appellants’] 20%
retention from Lexon, was 75%. The record is starkly void of any
documentation showing that either [appellants] or Mr. Rodriguez
informed MCSWA that the annual invoices included a 75% markup.
While Mr. Rodriguez may have told the MCSWA, or its landfill
manager, or the Maverick County Commissioners Court, that this
[performance] bond was hard to place and there may be extra “fees”
that could be charged based on the Commission Agreement, the
Commission Agreement is itself a generic document that does not list
any specific fees, and repeatedly uses the term “may” to describe what
could be assessed.
These considerations indicate that [appellants] took actions to
ensure that MCSWA was not aware of the premium that [appellants]
paid to Lexon: there was no oral communication between [appellants]
and MCSWA; Mr. Rodriguez was the sole contact with MCSWA;
[appellants’] invoices do not provide any breakout of the additional
24
“fees” charged above Lexon[’s] bond premium [that] flowed through
to MCSWA; and there is no documentary evidence showing that
MCSWA was made aware of the degree or existence of the additional
charges.
Additionally, the difference between the amounts collected from MCSWA
and those paid to Lexon as premiums is significant, and yet appellants never
documented or explained to the customer that the disparity existed or why it was
necessary or justified to bill MCSWA “premiums” well above the premiums charged
by Lexon. Appellants continued this pattern of concealment for six years. Citing
the Commission Agreements, appellants suggest that any statutory violation was not
willful because those agreements disclosed potential fees in addition to premiums
and because appellants “knew Mr. Rodriguez was explaining these fees to the
MCSWA.” Yet neither the Commission Agreements nor any invoice to MCSWA
actually represented or disclosed any amount billed as “fees.” And the ALJ was at
liberty to reject appellants’ assertion that Rodriguez informed MCSWA that
appellants were in fact billing MCSWA a purported agent fee, given the lack of
documentary support and the fact that no witness from MCSWA testified in support
of the assertion. These circumstances support a finding that appellants knew they
were not charging fees at all but instead were billing MCSWA for premiums far in
excess of the amounts due Lexon, all of which provides further circumstantial
support for the ALJ’s findings that appellants’ violation was willful. We agree with
the ALJ that these facts “indicate that this lack of transparency was intentional and
willful,” and appellants have not met their burden to demonstrate otherwise.
The Commissioner’s conclusion that appellants willfully violated the
Insurance Code is supported by a reasonable basis and proper statutory construction
of the relevant code provisions; thus, we conclude that appellants’ substantial rights
have not been prejudiced. See Tex. Gov’t Code § 2001.174(2).
25
We overrule appellants’ first and second issues. Our resolution of these issues
renders it unnecessary to address appellants third, fourth, fifth, sixth, or seventh
issues in which they challenge the order on other grounds. See Tex. R. App. P. 47.1;
Tex. Ins. Code §§ 4005.101, .102; Dyer, 646 S.W.3d at 514 (as long as agency’s
decision is based on findings that are supported by substantial evidence, unnecessary
findings, even if improper, cannot render the decision reversible).
B. The Order Is Not Arbitrary or Capricious
In issue eight, appellants contend the order is “arbitrary or capricious,
characterized by an abuse of discretion, and demonstrates a clearly unwarranted
exercise of discretion.” We disagree.
Instances may arise in which the agency’s action is supported by substantial
evidence, but is nonetheless arbitrary and capricious. See Charter Med.-Dallas, 665
S.W.2d at 454. An agency acts arbitrarily if it makes a decision without regard for
the facts, if it relies on fact findings that are not supported by any evidence, or if
there does not appear to be a rational connection between the facts and the decision.
See City of Waco v. Tex. Comm’n on Env’t Quality, 346 S.W.3d 781, 819-20 (Tex.
App.—Austin 2011, pet. denied). In other words, we must remand for arbitrariness
if we conclude that the agency has not “genuinely engaged in reasoned decision-
making.” Id. (internal quotations omitted). However, an agency’s order is not
arbitrary and capricious simply because the decision maker did not accept evidence
favorable to a particular party. See Gulf States Utils. Co. v. Pub. Util. Comm’n of
Tex., 841 S.W.2d 459, 475 (Tex. App.—Austin 1992, writ denied). To be arbitrary
and capricious an order based on substantial evidence “‘must be based on a violation
of due process or some other unfair or unreasonable conduct that shocks the
conscience.’” Tex. Comm’n on Env’t Quality v. Friends of Dry Comal Creek, No.
03-21-00204-CV, —S.W.3d—, 2022 WL 4540955, at *6 (Tex. App.—Austin Sept.
26
29, 2022, no pet. h.) (quoting Santulli v. Tex. Bd. of L. Exam’rs, No. 03-06-00392-
CV, 2009 WL 961568, at *4 n.5 (Tex. App.—Austin Apr. 10, 2009, pet. denied)
(mem. op.)).
Appellants’ eighth issue again asks this court to impermissibly reweigh the
evidence. That the Commissioner did not accept evidence favorable to appellants
simply does not make the order arbitrary or capricious. See Gulf States Utils., 841
S.W.2d at 475.
The only new argument raised by appellants in this section of their brief is
that the Commissioner erroneously adopted a “reasonable person standard” when it
analyzed whether the Insurance Code’s disclosure provisions were satisfied.
However, neither the order nor the PFD analyzed the Insurance Code using a
reasonable person standard, nor are any legal conclusions based on this standard.
Appellants’ argument does not show that the order is based on a violation of due
process or involves unfair or unreasonable conduct that shocks the conscience. E.g.,
Friends of Dry Comal Creek, 2022 WL 4540955, at *6.
Appellants have not established that the Commissioner’s decision to revoke
their licenses relied on fact findings that are not supported by any evidence, or that
there is no rational connection between the facts and the decision, see City of Waco,
346 S.W.3d at 819-20, or that the order is based on unfair or unreasonable conduct
that shocks the conscience. See Friends of Dry Comal Creek, 2022 WL 4540955, at
*6. For those reasons, we overrule appellants’ eighth issue.
27
Conclusion
We have overruled the dispositive issues in this appeal. Accordingly, we
affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
28