SECTION 15.14. Determination of Insurable Status of Structures on the Public Beach and Notification to Texas Windstorm Insurance Association

(a) Determination that a Structure is not Insurable Property.

(1) The Commissioner of the General Land Office (commissioner) may determine that a structure, improvement, obstruction, barrier, or hazard located on the public beach is not insurable property as defined in Texas Insurance Code, §2210.004, for purposes of obtaining windstorm insurance through the Texas Windstorm Insurance Program. The term "structure" as used in this section has the meaning assigned in §15.2(67) of this title (relating to Definitions) and includes any improvement, obstruction, barrier, or hazard on the public beach. The commissioner will conduct an evaluation to determine the insurable status of the property for purposes of Texas Insurance Code, §2210.004. The evaluation will include:

(A) Coordination with the Texas Windstorm Insurance Association to determine if the structure is currently listed as insurable property.

(B) A determination that the structure is wholly or partially on the public beach in accordance with §15.3(b) of this title (relating to Boundary of the Public Beach).

(C) If the structure is determined to be located on the public beach, the evaluation will include:

(i) a determination as to whether the structure constitutes an imminent hazard to safety, health, or public welfare as provided in §15.15 of this title (relating to Criteria for Determining Health and Safety Hazards Associated with Structures on the Public Beach), or

(ii) a determination as to whether the structure substantially interferes with the free and unrestricted right of the public to enter or leave the beach or traverse any part of the public beach as provided in §15.16 of this title (relating to Criteria for Determining Substantial Interference with Access to and Use of the Public Beach by Structures on the Beach).

(2) In accordance with Texas Natural Resources Code, §61.0184(b), the commissioner must serve written notice to a person who constructs, maintains, controls, owns, or possesses a structure on the public beach of the intent of the commissioner to notify the Texas Windstorm Insurance Association of the determination that the property is not insurable property for purposes of Texas Insurance Code, §2210.004, because of the factors listed in Subsection (h) of that section, effective upon the expiration of the current policy of windstorm insurance for the property that is the subject of the notice. The notice must include an opportunity for a hearing for the property owner under procedures outlined in subsection (b) of this subsection.

(3) A person who does not request a hearing within 30 days after the date on which the notice is served waives all rights to judicial review of the commissioner's findings or orders.

(b) Notice, Orders, and Hearings.

(1) When the commissioner has determined that a structure is not insurable property for purposes of Texas Insurance Code, §2210.004,, the commissioner must give written notice regarding the status of the property to a person who constructs, maintains, controls, owns, or possesses the structure located on the beach. The notice will consist of the following:

(A) The commissioner finds that a specific structure is located on the public beach, and

(i) constitutes an imminent hazard to safety, health, or public welfare; and/or

(ii) substantially interferes with the free and unrestricted right of the public to enter or leave the public beach or traverse any part of the public beach.

(B) A statement that the commissioner intends to notify the Texas Windstorm Insurance Association of a determination that the structure is not insurable property for purposes of Texas Insurance Code, §2210.004, effective upon the expiration of the current policy of windstorm insurance for the property that is the subject of the notice; and

(C) The person who constructs, maintains, controls, owns, or possesses the structure, improvement, obstruction, barrier, or hazard located on the public beach may submit, not later than the 30th day after the date on which the notice is served, written request for a hearing to contest the determination.

(2) The notice required in paragraph (1) of this subsection must be given:

(A) by service in person, by registered or certified mail, return receipt requested, or by priority mail; or

(B) if personal service cannot be obtained or the address of the person responsible is unknown, by posting a copy of the notice on the structure, improvement, obstruction, barrier, or hazard and by publishing notice in a newspaper with general circulation in the county in which the property is located at least two times in ten consecutive days.

(3) If the property owner requests a hearing, the commissioner must grant the hearing before an administrative law judge employed by the State Office of Administrative Hearings in accordance with the procedures outlined in the Open Beaches Act, §61.0184(g).

(c) If the property owner fails to request a hearing to contest the commissioner's determination or the commissioner makes an affirmative decision after notice and hearing, the commissioner shall notify the Texas Windstorm Insurance Association that the property is not insurable property for purposes of Texas Insurance Code, §2210.004, because of the factors listed in Subsection (h) of that section. The notice to the Texas Windstorm Insurance Association may provide that the determination is effective upon the expiration of the current policy of windstorm insurance for the property that is the subject of the notice.

Source Note: The provisions of this §15.14 adopted to be effective January 31, 2010, 35 TexReg 489