text:
Philip K. Maxwell
Joe K. Longley
Longley & Maxwell, LLP
I. General Considerations
A. Importance of History
Justice Cardozo said, "History, in illuminating the past,
illuminates the present, and in illuminating the present,
illuminates the future."[1]
In a practice manual, however, the point is best made in
practical terms. History is important because it can decide the
outcome of a case.[2]
Under accepted rules of statutory construction, the meaning of a
statute, if not apparent from its words, can only be determined
by carefully evaluating the circumstances of its passage. Thus,
a working knowledge of the origins of Article 21.21, what it
sought to achieve, and why it was invested with a private remedy
in 1973 – when an almost identical provision became law that
year as part of the Deceptive Trade Practices Act – ought to
inform consideration of any question to arise under these two
related statutes. Unfortunately, often this has not been the
case. Courts – and the advocates who appear before them – have
been quick to say that the legislature "intended" this or "did
not intend" that, but rarely have these conclusions been backed
with citation to the legislative record. Historical analysis is
also missing from law commentary on these two statutes. Much of
what has been written or said about 21.21 and the DTPA has
centered on the latest headline-grabbing case or legislative
amendment, ignoring the reasons why these statutes were passed
in the first place. What follows is an effort to fill this gap
in scholarship. It is an account of how Article 21.21 and the
DTPA, among the strongest consumer protection measures in the
nation when they passed, became law. It is a light cast on the
past of these important enactments in order that their present
and future might be better illuminated.
Regulation of Deceptive and Unfair Trade Practices Before 1973
A. History of Article 21.21 of
the Insurance Code
Statutory remedies are so much a part of Texas insurance law
today that it is difficult to imagine a time when they were
not. But before 1973, except for a provision allowing the
holder of a life, health or accident policy to recover a twelve
percent penalty and attorneys' fees from a company failing to
pay a life, health or accident policy claim within thirty days
of demand,[3]
persons injured by abusive insurance practices were left to
common law actions for fraud and breach of contract. No
statutory relief was afforded persons denied prompt payment
under their homeowners, automobile or business interruption
policies or those persons damaged by the unfair and deceptive
practices prohibited by Article 21.21, the Insurance Code's most
important consumer protection provision. Similarly, no remedy
was extended to persons injured by statutorily prohibited unfair
or deceptive practices in the purchase, lease or use of goods
and services generally, so they too were limited to whatever
remedies the common law allowed.
Though 1973 was the year that private citizens were handed the
tools to protect themselves from sharp and unfair market
practices in Texas, the tools themselves were forged years
earlier. Both Article 21.21 and the Deceptive Trade Practices
Act are related to the Federal Trade Commission Act, but they
came to Texas over different paths, nurtured by different
political considerations. For Article 21.21, the road starts in
the 1940's with a United States Supreme Court decision that
reversed a hundred years of federal deference to state
regulation, a ruling that forced the states to better protect
their own citizens.
In 1944, the United States Supreme Court held in United
States v. South-Eastern Underwriters Ass'n[4]
that insurance companies operating across state lines were in
interstate commerce and thus subject to the federal antitrust
laws. The decision sent shock waves through the insurance
community. To state insurance officials the decision made
comprehensive federal taxation and trade regulation of insurance
inevitable, draining state coffers of revenue and terminating
the need for their services.[5]
The ruling unnerved the insurance industry as well. Though
seventy-five years earlier it had urged the Commerce Clause as a
basis for the Supreme Court to strip the states of power to
regulate insurance,[6]
"[i]ronically, by 1944, the insurance industry preferred the
generally lax regulation of the state authorities."[7]
The specter of federal antitrust actions aimed at its
cooperative rate setting and policy-writing activities caused
the insurance industry to rally around legislation proposed by
the National Association of Insurance Commissioners.[8]
The legislation, known as the McCarran-Ferguson Act, passed in
The McCarran-Ferguson Act, while forbidding any construction of
federal law that would invalidate, supersede or impair state
insurance regulations, expressly subjected the business of
insurance to the Sherman and Clayton antitrust acts and the
Federal Trade Commission Act "to the extent that such business
is not regulated by State law."[10]
Thus the act created a "reverse preemption," displacing federal
law only if the state in which the conduct occurred regulated
anti-competitive, unfair and deceptive trade practices in the
insurance business.
To be sure, the states were regulating insurance, but none had a
regulatory arsenal aimed at anti-competitive, unfair and
deceptive conduct anywhere approaching the strength and scope of
the Sherman, Clayton, and Federal Trade Commission acts. To
give the states time to fill the regulatory gap, Congress
exempted the business of insurance from these federal statutes
for three years.[11]
During the floor debate, Senator McCarran made plain what the
states had to do in this period in order to avoid federal
MURCOCK. As I understand the conference report which is now
before the Senate, it provides for a 3-year moratorium, which is
fixed as ending January 1, 1948, against the invoking of the
Sherman Act and the Clayton Act, and it provides that they shall
again be in force after that period without any affirmative
action on the part of the Congress, except as regulatory matters
have been enacted by the States relating to the subjects covered
by those acts—
McCARRAN. During the moratorium. Regulatory acts must be
enacted by the several States in each of the several States.
Otherwise the antitrust acts become effective after January 1,
MURDOCK. But is it not the purpose of this bill and does not
the bill accomplish this—
McCARRAN. It accomplishes a moratorium for 3 years against the
operation of the acts mentioned, namely, the Sherman Antitrust
Act, the Clayton Act, the Federal Trade Commission Act, as
amended, and the Robinson-Patman Antidiscrimination Act.
MURDOCK. So that during the moratorium it is intended, is it
not, that the states shall affirmatively step into the
regulation of the insurance business?
McCARRAN. That is correct.
MURDOCK. And it is intended that on the expiration of the
moratorium the Sherman Act, the Clayton Act, and the other acts
mentioned will again be come effective except—
McCARRAN. Except as the States themselves have provided
* * *
BARKLEY. I should like to ask, in this connection, whether,
where States attempt to occupy the field – but do it
inadequately – by going through the form of legislation so as to
deprive the Clayton Act, the Sherman Act, and the other acts of
their jurisdiction, it is the Senator's interpretation of the
conference report that in a case of that kind, where the
legislature fails adequately even to deal with the field it
attempts to cover, these acts still would apply?
McCARRAN. That is my interpretation.[13]
Realizing, as did Congress, that state regulatory schemes were
deficient, the National Association of Insurance Commissioners
began work almost immediately on a model unfair competition and
deceptive practices act for adoption by the states. This effort
culminated in 1947 with the NAIC's adoption of "An Act Relating
to Unfair Methods of Competition and Unfair and Deceptive Acts
and Practices in the Business of Insurance."[14]
Lifting language directly from section 5 of the Federal Trade
Commission Act, the NAIC model law prohibited any "unfair method
of competition" and any "unfair or deceptive act or practice" in
the business of insurance.[15]
The model law listed certain activities that it "hereby defined"
to be such methods, acts or practices[16]
and provided for regulatory oversight by the state insurance
Texas, however, did not adopt the model act for ten years. Why
is unclear, though it seems safe to conclude that the insurance
industry did not particularly like the model act's broad
condemnation of unfair and deceptive practices and the
strengthened hand it gave state regulators. And despite
Congressional opinion that existing state laws were inadequate
and that the three-year moratorium was to be used to beef them
the insurance industry and state officials were apparently
unconvinced that incorporating the model act into Texas law was
needed to avoid federal regulation. Had it been otherwise,
there is little doubt the model act would have been passed as
handily in 1947 as it did ten years later. Who would have
opposed it? Whatever fledgling consumer interests there were in
Texas in 1947 certainly would not have challenged legislation to
rid the insurance industry of unfair or deceptive practices.
Instead of passing the NAIC model law, Texas reacted to the
McCarran-Ferguson Act by codifying its existing insurance
statutes. From the emergency clause of the 1951 bill that
created the Insurance Code, it is clear that Texas was not ready
to admit that its insurance laws needed shoring up or that
failing to do so risked federal regulation of the insurance
industry in the state.
uncertainties arising from the United States Supreme Courts' [sic]
decision holding that the business of insurance transacted
across state lines is interstate commerce within the meaning of
the Federal Constitution, ma[ke] it practicable and necessary
that [the present laws relating to insurance] shall be made
clear, concise, adequate and consistent for the protection of
the insuring public as well as for the protection of those
engaged in the business of insurance . . . .[19]
In reality, there were no "jurisdictional uncertainties" in
1951. The United States Supreme Court had clearly held that the
business of insurance was subject to federal jurisdiction and
Congress had accepted this premise in passing the
McCarran-Ferguson Act to provide the states a way out.[20]
The only "uncertainty" was whether Texas' insurance laws would
pass muster under McCarran-Ferguson. The insurance industry and
the Department of Insurance apparently felt that if all these
laws were nicely bound together in a code, at least there would
be the appearance if not reality of comprehensive insurance
regulation and that alone might be enough.
Essentially, all that codification involved was taking the
insurance statutes that were already on the books, organizing
them according to the topic they addressed, and then assigning
them an "article" number. Thus there was an "Article 21.21"
included in the Insurance Code enacted in 1951, but it bore
little resemblance to today's text. Then modestly entitled
"Discrimination," Article 21.21 simply duplicated the provisions
of a 1909 statute[21]
that prohibited five, narrowly described practices dealing with
rebating and discrimination.[22]
Any company, officer or agent violating these provisions was
guilty of a misdemeanor and subject to a maximum fine of five
hundred dollars. In addition, the offending company could
forfeit its certificate of authority to do business and the
violating agent could lose his license for a year.[23]
What finally moved Texas to pass the NAIC model law in 1957 was
an extensive Federal Trade Commission investigation of the
advertising practices of the health and accident insurance
industry in 1953 and 1954 culminating in two major enforcement
actions decided in 1956.[24]
In April of that year, the Commission issued a cease and desist
order against The American Hospital and Life Insurance Company[25]
located in San Antonio and a month later issued another against
a Michigan insurer, National Casualty Company.[26]
In each case, the Commission found that brochures the companies
had mailed to out-of-state agents for delivery to prospective
policyholders were false, misleading and deceptive in violation
of section 5 of the Federal Trade Commission Act.[27]
More importantly, the Commission ruled in both cases that the
McCarran-Ferguson Act did not bar federal action, even in those
states with statutes regulating the insurance industry.[28]
Suddenly, federal regulation of Texas insurance trade practices
had gone from theoretical threat to cold, hard fact. Though the
Commission would later be reversed by the Fifth[29]
and Sixth[30]
Circuits in 1957, cases in which Texas appeared in support of
the insurance companies, by that time the legislature, prodded
by an insurance industry and state insurance department
desperate to ward off federal regulation, had passed the model
At first, it seemed that the insurance industry and state
regulators might fare well before the Commission. The hearing
examiners in both American Hospital and National
Casualty ruled that, under the McCarran-Ferguson Act, the
Commission had no jurisdiction in those states that regulated
insurance by statute. Ironically, though American Hospital
involved a Texas insurer, the adequacy of Texas' regulatory
scheme was not at issue in that case because the jurisdiction of
the Commission, in its words, "has not been asserted over
respondent's business transacted wholly within that State."[31]
Texas law, as well as that of every other state, was at issue in
National Casualty, however, because the Michigan
insurer in that case was licensed to do business everywhere in
the country. The hearing examiner found that the Commission's
jurisdiction over National Casualty Company was limited to
Mississippi, Rhode Island, Missouri, Montana and the District of
Columbia, which had no state statute, and that "each of the
states other than those named fully regulates the business of
insurance by legislative enactment, with the result that as to
transactions within such states the Commission's jurisdiction is
As it pertained to Texas, the hearing examiner's ruling in
National Casualty is hard to justify. Texas had not yet
adopted the NAIC model act and the only law that even arguably
applied was Article 21.20,[33]
but it prohibited, as it does today, only life insurance
companies from misrepresenting the terms of their policies and
National Casualty was a not a life insurance company.[34]
Whether the National Casualty hearing examiner analyzed
the laws of the other states as inadequately as he did those of
Texas is not known. Examiners' decisions are unpublished and in
neither its National Casualty nor American Hospital
opinions did the Commission pay any attention to the
adequacy of the state statutes themselves or to the criteria the
hearing examiners had used in reviewing them. Instead, the
Commission concluded that it had jurisdiction regardless of
state regulation because, in its view, the McCarran-Ferguson Act
preserved the Commission's power where there were "interstate
aspects" of the insurance business at issue such as the
distribution of deceptive sales materials across state lines.[35]
Because the Commission took the same position on appeal,[36]
the opinions of the Fifth and Sixth Circuits likewise shed no
light on the hearing examiners' conclusions regarding state law.
Although the hearing examiner in National Casualty was
wrong about Texas law, the state's subsequent adoption of the
NAIC model act made the error harmless. By the time the Supreme
Court granted review of National Casualty and American
Hospital on November 12, 1957,[37]
the model act had been on Texas law books in the form of a new
and improved Article 21.21 for over six months. And by the time
the Court handed down its decision on June 30, 1958 affirming
the Fifth and Sixth Circuits,[38]
the model act had been Texas law for over a year.[39]
Thus, the Supreme Court could say accurately in 1958 what the
hearing examiner three years earlier should not have: Texas ". .
. has enacted prohibitory legislation which proscribes unfair
insurance advertising and authorizes enforcement through a
scheme of administrative supervision."[40]
Though the Federal Trade Commission had lost a legal battle over
its jurisdiction, it had won a political war of greater
consequence. By flexing its national muscle, the Commission had
forced the insurance industry and state lawmakers to give
citizens strong state laws against unfair and deceptive
insurance practices, protection they likely would have never
received otherwise.
That avoiding federal regulation was a prime reason for Texas'
1957 adoption of the model act is made plain by the emergency
clause of the legislation that enacted it.
The . . . enactment of
this Act will strengthen state regulation of the business of
insurance. . . substantially the same Act has previously been
enacted in thirty-nine states, and . . . it is designed to
prevent federal regulation and taxation of the business of
insurance . . . .
Mirroring the model act, Article 21.21 was divided into
sections, the format it retains today. Section 1 set forth the
purpose of the statute to regulate insurance trade practices in
accordance with the intent of Congress as expressed in the
McCarran-Ferguson Act by providing for the determination and
prohibition of all "unfair methods of competition or unfair or
deceptive acts or practices."[42]
Section 2 supplied two definitions, one for "person," a term
that would assume added importance when the legislature gave a
private treble damage remedy to "any person" in 1973,[43]
and one for "Board," defined to mean the Board of Insurance
Section 3 declared that "no person shall engage" in unfair trade
practices defined by, or determined under, the statute,[45]
while section 4 "hereby defined" eight such practices,[46]
including broadly worded provisions prohibiting
misrepresentation of policies[47]
and dissemination of false information respecting the insurance
In the remaining sections, the Board of Insurance Commissioners
was given the power to investigate and determine whether
prohibited practices had occurred,[49]
to issue cease and desist orders,[50]
and to sue for a civil penalty of fifty dollars if a cease and
desist order was violated.[51]
Following the model act which itself lacked such provisions, the
1957 amendments to Article 21.21 did not give the Board the
power to issue regulations further defining unfair practices or
to sue for an injunction, nor did it accord private persons
injured by violations a statutory remedy.
In 1969, Article 21.21 was amended to give the Board power to
issue rules and regulations.[52]
Two years later, in 1971, the Board handed down the broadest
regulation outlawing unfair and deceptive insurance practices it
has ever issued, Board Order 18663.[53]
The Board made clear in the order that it "appl[ied] to all
types of insurance[,]"[54]
that its provisions governed "insurers and insurance agents and
other persons in their conduct of the business of insurance or
in connection therewith," whether done "directly or indirectly"
and "irrespective" of the "capacity" in which the person was
and that the words used in the order were "not limited to the
common law meaning" but rather were "to be interpreted to
accomplish the purpose" of the order.[56]
If Board Order 18663 was inclusive as to whom it regulated, it
was universal as to what it prohibited. The order did not
simply repeat the broad condemnation of unfair practices in
section 3 of Article 21.21, though it did that too. It went
further to outlaw, not only unfair practices "as defined by the
provisions of the Insurance Code of Texas or as defined by these
and other Rules and Regulations of the State Board of Insurance
authorized by the Code[,]"[57]
but also any "improper trade practice" that, though not defined
as unfair in any of the rules and regulations, had been
determined to be so "pursuant by law."[58]
Thus was swept into Board Order 18663 all unfair practices in
the business of insurance, whether found in any of the
provisions of the Insurance Code, any of the Board's
regulations, or in the common law.
The breadth of Board Order 18663, like that of Article 21.21's
definition of "person," would take on added significance when,
during the 1973 legislative session, the legislature amended
Article 21.21 to make a violation of the Board's regulations the
grounds for a damage claim by "any person" while also enacting,
almost simultaneously, a new Article 21.21-2 prohibiting "unfair
claim settlement practices."[59]
B. History of the Deceptive
Trade Practices Act
Just like the pre-1973 version of Article 21.21, the pre-1973
deceptive trade practice statute, Article 5069-10, also lacked a
private remedy. Passed in 1967 as chapter 10 of the Consumer
Credit Code,[60]
the statute outlawed thirteen "deceptive practices" and
authorized the Consumer Credit Commissioner to request the
attorney general to seek an injunction against a violator.[61]
If the defendant violated the injunction, the attorney general
could "petition for recovery" of civil penalties of "not more
than" one thousand dollars per violation of the injunction.[62]
Since no civil penalties could be assessed for the initial
violation of the statute, however, Article 5069-10 permitted
violators to take at least one bite of the consumer's apple
without risking a dime. To its weak enforcement mechanisms
Article 5069-10 added a broad exemption provision immunizing any
"actions or transactions permitted under laws administered by a
public official acting under statutory authority of this State
or the United States."[63]
And despite the fact that other provisions of the Consumer
Credit Code gave consumers the right to sue individually for
statutory penalties if they were charged more than the maximum
allowable rates of interest,[64]
it gave them no remedy if they were harmed by unlawful deceptive
Article 5069-10 was strengthened in 1969, but still had no
private remedy.[65]
A general prohibition of all "[f]alse, misleading, or deceptive
acts or practices in the conduct of any trade and commerce" was
added to the thirteen specifically prohibited practices, and
Texas courts were directed to Federal Trade Commission and
federal court interpretations of section 5 (a)(1) of the Federal
Trade Commission Act for guidance in construing the general
In addition, the Consumer Credit Commissioner was given
pre-litigation investigative powers and the authority to accept
an "assurance of voluntary compliance" without filing suit, and
penalties were increased from one to ten thousand dollars for
each violation of an injunction.[67]
What seemed like a step toward stronger enforcement was more
than offset, however, by the addition of three more exemptions
to the already broad exclusion provided in 1967. Now immunized
from prosecution were the insurance industry; advertising media,
absent a showing that the intent or purpose of the advertiser
was known by the advertising medium's owner or personnel; and
any conduct that was subject to and compliant with the
regulations and statutes administered by the FTC.[68]
And not only did the 1969 legislation fail to extend a private
remedy to those victimized by deceptive practices, it expressly
provided that "[n]othing in this Chapter either enlarges or
diminishes the rights of parties in private litigation[,]"[69]
thus cutting off any argument for an implied right of action.
C. Passage of H.B. 417 in 1973
1. Overview of H.B. 417
On May 21, 1973, the legal landscape changed dramatically when
the Governor signed into law H.B. 417,
perhaps the most sweeping, state consumer protection measure
ever enacted. The bill repealed Article 5069-10, creating in
its stead the Texas Deceptive Trade Practices-Consumer
Protection Act ("the DTPA") as new chapter 17 of the Business &
Commerce Code,[71]
and it amended Article 21.21 of the Texas Insurance Code.[72]
H.B. 417 kept the substantive prohibitions of Article 5069-10,
added to them, vastly strengthened the mechanisms by which they
would be enforced, and sharply reduced the persons and conduct
that were exempt. To the broad prohibition against false,
misleading or deceptive acts or practices and the "laundry list"
of thirteen specific deceptive trade practices that were in
Article 5069-10, the bill added seven new items of prohibited
The broad statutory exemption that had immunized the insurance
industry among others was replaced with a much narrower
provision that essentially made all businesses except the media
subject to suit.[74]
To the Texas Attorney General, the chief law enforcement officer
of the state, the statute gave the power to seek civil penalties
and restitution for persons injured by deceptive trade practices
without awaiting – with one notable exception discussed below –
a request from another state official or agency.[75]
To supplement public enforcement by the Attorney General's
office, H.B. 417 granted to those adversely affected by
deceptive trade practices, breaches of warranty, unconscionable
conduct and violations of Article 21.21 of the Insurance Code
and its regulations the right to sue the wrongdoer directly for
treble damages and attorneys' fees.[76]
2. Factors Favoring Passage
From the mid-1960s through much of the 1970s, there was
considerable public support for strengthening laws to protect
consumers. Just why this was so has thus far escaped the
serious attention of historians and is beyond the scope of this
Whatever may have been the root causes of the consumer movement
in the 1960s and 1970s, Congress clearly felt its pressure.
Among Congress' consumer initiatives during this period were
creation of the Consumer Product Safety Commission[78]
to protect the public from dangerous consumer products; passage
of the Magnuson-Moss Warranty Act[79]
to limit manufacturers disclaimers of warranties on consumer
goods; and enactment of the Truth in Lending Act[80]
to require lenders to inform consumers of the cost of debt they
were assuming in increasing amounts. Summing up the activity at
the federal level in her appearance before the Federal Trade
Commission's National Consumer Protection Hearings in 1968,
Betty Furness, Special Assistant to the President for Consumer
Affairs, stated that:
has a Congress introduced – and passed – so many consumer
bills. Never have the departments and agencies of the Federal
Government been more consumer conscious in their programs.
has there been such interest in increased consumer
representation and protection at State and local government
levels. And never has there been such real progress in
effective consumer education. And never have there been so many
important studies by the Congress and by the executive brand
which have brought consumer problems into clear focus.[81]
So popular had consumer protection become by the 1970's that a
Republican president, Richard Nixon, was motivated to establish
by executive order the Office of Consumer Affairs in the
Executive Office of the President[82]
to be run by his special assistant for consumer affairs,
Virginia Knauer, a respected consumer advocate.[83]
Action at the federal level was matched, if not surpassed, by
the states. By 1972, thirty-six states, including Texas, had
passed a "little FTC act" prohibiting unfair or deceptive trade
practices, though only twelve (Texas not included) expressly
allowed a private remedy.[84]
By 1981, every state, the District of Columbia, Guam, Puerto
Rico and the U.S. Virgin Islands had such statutes and all but
eight of these fifty-four jurisdictions provided a private
Consumer protection's national popularity in 1973, however, is
insufficient to explain why the Texas legislature passed the
Deceptive Trade Practices Act and amended Article 21.21 to allow
private suits for treble damages.[86]
This required loosening the business lobby's grip on state
lawmakers, and that, in turn, took the "Sharpstown scandal" and
the political housecleaning in Austin that followed.[87]
The scandal erupted over claims that a developer-banker
attempted to purchase legislation that would have, via a
loophole in federal law, exempted his bank from federal
oversight. That moneyed interests may have greased public palms
for private gain enraged Texas voters, causing them to elect a
new governor, lieutenant governor, attorney general and a new
majority in the senate and house (which in turn elected a new
speaker), all of whom championed "open government" free of the
secret influence of special interests and the lobbyists who
serve them.
The Democratic nominee for attorney general, John Hill, then a
respected plaintiff's lawyer and former Texas Secretary of State
whose campaign promised improvement of the state's consumer
protection laws, beat the business lobby supported incumbent in
the spring primary. Unopposed in the fall general election,
Hill was able to campaign for House and Senate candidates in
contested races, which helped seal their support for his
legislative program. Thus, by the time the legislature convened
in 1973, it was clear that a bill increasing the consumer
protection powers of the attorney general and giving consumers
the right to sue was going to pass.
Because it knew that a bill was going to pass anyway and because
it wanted to "catch the late train" with the new attorney
general whose consumer protection division would soon be
monitoring its members' advertising and sales practices, the
Texas Retailers Association supported Hill's legislation. Other
business interests, unable to kill the legislation altogether,
were forced to limit their opposition to features of the bill
they deemed most objectionable while publicly applauding the
goal of protecting consumers. This was the position in which
the insurance industry found itself as the gavel rang in the
opening of the 1973 legislative session.
Without political upheaval caused by scandal, without a
consequently weakened and divided business lobby, there is no
assurance that Hill's legislation would have ever seen the light
of day. Even with these political fortunes in its favor, H.B.
417 (and its companion bill in the Senate, S.B. 75) consumed
over twenty hours of committee hearings during the 1973
legislative session, a record surpassed only by the
appropriations bill. In these hearings and on the floor of both
houses, H.B. 417 received intense scrutiny and lively debate.
What emerged from this legislative crucible was arguably the
strongest, and certainly one of the most thoroughly considered,
consumer protection laws in the nation.
3. Insurance Industry
Compromise on H.B. 417
H.B. 417 passed with two private remedy provisions for
violations of Article 21.21 of the Insurance Code. One became
the fourth cause of action in section 17.50(a) of the Business
and Commerce Code available to any "consumer" (a term defined in
the bill). The other was inserted into Article 21.21 as a new
section 16, giving a cause of action to any "person" (a term
already defined in Article 21.21). But H.B. 417 (and the Senate
version, S.B. 75) did not start with any cause of action for
Article 21.21 violations, let alone two.[88]
Indeed, H.B. 417 as originally filed did not mention the word
insurance. The fourth cause of action in section 17.50 in the
original version of H.B. 417 was for violations of the Consumer
Credit Code, not Article 21.21 of the Insurance Code.[89]
The Article 21.21 cause of action in section 17.50 and the
separate cause of action in Article 21.21 itself resulted from a
legislative compromise between the insurance lobby, which
opposed H.B. 417, and the newly elected Texas Attorney General,
John Hill, who was pushing for its passage.
The insurance industry objected to H.B. 417 in its original form
mainly because it gave the Attorney General the power to issue
deceptive trade practice regulations,[90]
a power already vested in the insurance department, without
providing an exemption for the insurance industry as did Article
5069-10, the deceptive trade practice law that H.B. 417 was
repealing. Establishing what it called "dual regulation" was
unwise, the insurance lobby contended, because the industry
would be required to serve two masters having two, potentially
conflicting, sets of regulations.[91]
The insurance lobby argued further that existing insurance law
was ample to protect the public from unfair and deceptive
but, if the legislature felt new remedies were needed, they
should be put in the insurance department, not the office of
attorney general. As one insurance lobbyist put it:
. . . if there is a
weakness in the current law, and a need for new remedies, well
then change the law, but put the regulatory authority in the
hands of the people who have the expertise and who have the
staff and who are exercis[ing] the jurisdiction today, and not
in a new agency . . . .[93]
While criticizing the bill publicly, the insurance lobby
privately sought compromise. The insurance lobbyists proposed
that, if the attorney general's office would drop the provision
granting it rulemaking power and agree to a requirement that
suit by the attorney general against a licensed insurer or agent
be instituted only at the request of the State Board of
Insurance, the insurance industry would draft and support
passage of extensive amendments to Article 21.21 that would
strengthen the board's enforcement powers and create a private
remedy in Article 21.21.
The attorney general's representatives thought improving Article
21.21 was a good idea, but were concerned that "putting
everything over in the Insurance Code," as the industry's
legislative strategy came to be called, would not fully protect
consumers. The concern of the attorney general's office was
based, in part, on the insurance lobbyists' proposal to use the
term "person" to describe who could sue under Article 21.21.
To the insurance industry, however, "person" seemed the obvious
choice among the alternative models available. The term was
already used and defined in Article 21.21, having been part of
the NAIC model act adopted in 1957.[94]
Adding to Article 21.21 a private remedy for "any person who has
been injured,"[95]
words that tracked the federal antitrust private remedy for "any
person who shall be injured,"[96]
would bolster Article 21.21's claim to McCarran-Ferguson's
"reverse preemption" should the FTC again attempt to regulate
Indeed, giving to persons injured by unfair and deceptive
practices a remedy unavailable to them under the Federal Trade
Commission Act would allow Texas the legitimate claim that its
law regulated insurance more comprehensively than federal law.
The other model offered by the Insurance Code seemed less
desirable than simply using "person." Section 4(1) of Article
21.21, one of the specifically prohibited practices, condemned
then, as it does now, misrepresentations to any "policyholder."[98]
Similarly, Article 3.62 gave recovery of the delay penalty and
attorneys' fees to the "holder" of the policy.[99]
But restricting suits to policyholders would preclude private
enforcement of other subdivisions of section 4 having nothing to
do with the relationship between insurer and insured.[100]
Many of section 4's subdivisions dealt then, as they do now,
with competitor torts and antitrust concerns.[101]
To make all subdivisions of section 4 equally actionable
required the use of a more expansive term. Indeed, even to make
all of section 4(1) actionable required a broader term than
"policyholder" since it prohibited false and misleading
statements generally, not just misrepresentations to
The term "person," whose NAIC-sanctioned definition the
legislature had already adopted, raised none of these problems.
Less desirable still to the insurance industry lobbyists was the
model offered by the H.B. 417's DTPA provisions, which used
"consumer" for whom could sue and "person" for whom could be
sued. The term "consumer" was foreign to the Insurance Code,
and its definition required that the plaintiff seek "goods" or
"services," terms whose definitions did not expressly include
insurance. Furthermore, wholesale adoption of the provisions of
the DTPA would have been inconsistent with the insurance
industry's legislative argument that the business of insurance
was unique and deserved its own, separate statutory treatment.
The attorney general's representatives, however, were concerned
over the way "person" was defined in Article 21.21. They feared
that the reference to "any other entity engaged in the business
of insurance" in the definition of "person" might be held to
limit the term to only those in the insurance business. Though
the insurance industry insisted that the term was not so
limited, the attorney general's representatives wanted to avoid
the risk of a crabbed construction that would deny the new
Article 21.21 cause of action to policyholders and
Therefore, they told the insurance lobby that violations of
Article 21.21 and its regulations would also have to be
actionable by a "consumer" under section 17.50 of the DTPA.
Having already agreed to the principle of a private cause of
action for insurance abuses, the insurance industry was in no
position to argue against the attorney general's request and
agreed to the change to section 17.50. The resulting amendments
were added to H.B. 417 in the House Business and Industry
Committee in the form of a committee substitute that was then
adopted by the full House on April 10, 1973.[104]
With the insurance lobby's support now assured, H.B. 417 became
law in just over a month.
Thus was born section 16 of Article 21.21 and section
17.50(a)(4) of the DTPA, each giving a private treble damage
remedy for abusive insurance practices, but to two, differently
defined classes of plaintiffs.
III. Developments Since 1973
A. Article 21.21 and Deceptive
Trade Practices Act Compared
The basic structure of section 16 of Article 21.21 has remained
unchanged. Suits by "any person" against "another" that were
authorized in 1973 are authorized today in virtually identical
Likewise, the legislature has never altered Article 21.21's
forty-one year old definition of "person" in section 2(a), and
thus it reads today as it did when it was enacted in 1957.
What the legislature has done since 1973, however, is to expand
the use of "person." In 1985, as part of legislation imposing
tougher proof requirements to recover treble damages, the
legislature replaced "company or companies" in section 16 with
"person or persons,"[106]
thus making clear that the class of defendants against whom such
recoveries may be had includes, not only insurance companies,
but also their employees and agents.[107]
Significantly, the 1985 legislation, while replacing "company"
with "person" to refer to who may be sued under section 16,
reenacted that section unchanged in all other respects. And it
also reenacted unchanged the definition of "person" in section
2(a). This is important to interpreting the meaning of the
statute because of the rule that, when the legislature reenacts
a statute materially unchanged, it is presumed to know and adopt
the construction that the courts have given the statute.[108]
By the time the 1985 legislation was considered and passed, the
supreme court had issued two opinions rejecting efforts to
restrict the kind of "person" able to sue under Article 21.21 to
members of the insurance industry[109]
and to "consumers" as defined in the DTPA.[110]
Just as significant to interpreting Article 21.21 is its mandate
of liberal construction added by the same 1985 legislation.[111]
The liberal construction mandate had always been part of the
DTPA and had been the basis, four years earlier, of a supreme
court decision rejecting an attempt to narrow the class of those
who could sue and be sued under that statute, the court holding
that ". . . we must give the Act, under the rule of liberal
construction, its most comprehensive application possible
without doing any violence to its terms."[112]
The legislature's adoption from the DTPA a provision that so
recently had caused the supreme court to reject such a narrowing
of that statute draws into question any judicial construction of
Article 21.21 that narrows the class of persons able to sue, or
be sued, over its violation.[113]
The legislature's unwillingness to alter the definition of
"person" under Article 21.21, or to narrow the statute's
coverage in any other way, contrasts with its record over the
last twenty-five years of amending the DTPA to restrict that
statute's application. With the exception of the first two
sessions following enactment of the DTPA in 1973, when the
legislature broadened the definition of "consumer" to include
partnerships, corporations and governmental entities,[114]
every amendment thereafter has either narrowed the class of
persons who could sue or be sued, or limited the kind of conduct
over which suit can be brought. For example, "business
consumers" having assets of $25 million or more[115]
have been excluded from the DTPA's protections, and new
exemptions bar even those still qualifying as consumers from
seeking relief if their transaction is too large or they were
damaged by "professional services."[116]
That the legislature did not act in a similar fashion to
restrict the scope of Article 21.21 would likewise run counter
to a judicial construction that would accomplish a similar
Benjamin N.
Cardozo, Nature of the Judicial Process at 53
(1921). Holmes makes the same point, though with less
flair. See
Oliver Wendell Holmes, The Common Law at 37 (1881)
("The history of what
the law has been is necessary to the knowledge of what
the law is.").
See, e.g., Great Am. Ins. Co. v. North Austin Mun.
Dist. No. 1, 908 S.W.2d 415, 421-24 (Tex. 1995) (history
of McCarran-Ferguson Act, creation of the Insurance
Code, passage of Articles 1.14-1 and 21.21, and of
suretyship invoked in support of conclusion that
suretyship is not within "business of insurance" under
Article 21.21). See also,
Tex. Gov't Code Ann. § 311.023 (in construing even an
unambiguous statute court may consider, inter alia, the
"object sought to be obtained; circumstances under which
the statute was enacted; legislative history; [and the]
common law or former statutory provisions, including
laws on the same or similar subjects").
Tex. Ins. Code
Ann. art. 3.62 (applicable to life, health and
accident companies), repealed by Act of June 6, 1991,
72nd Leg. R.S. ch. 242, § 12.01(2), 1991
Tex. Gen. Laws
939, 1133. See also,
Tex. Ins. Code Ann. art. 3.62-1 (applicable to other
companies writing life, health or accident policies),
repealed by Act of June 6, 1991, 72nd Leg. ch. 242, §
1201(3), 1991 Tex.
Gen. Laws 939, 1133. These two statutes, both
applicable only to life, health and accident policies,
were replaced in 1991 with
Tex. Ins. Code
art. 21.55 requiring the prompt payment of claims under
virtually all policies of insurance.
Appleman Insurance
Law and Practice § 8886 (1981).
By the 1860s, the
insurance industry, nettled by the various licensing
requirements imposed by the states, sought relief in
both Congress and the courts. To test the
constitutionality of these state laws, several New York
insurers arranged for their Virginia agent, Paul, to
apply for a state license there, refuse to post the
required bond and then sell a policy to a Virginia
resident. In upholding Paul's conviction for violating
the licensing statute, the Supreme Court rejected his
argument that the Commerce Clause vested the federal
government with the exclusive power to regulate
insurance, holding instead that "issuing a policy of
insurance is not a transaction of commerce." Paul v.
Virginia, 75 U.S. (8 Wall.) 168, 183 (1869);
Robert H. Jerry,
Understanding Insurance Law § 21[a] at 55 (1996)
(hereinafter cited as "Jerry"). see also,
H. Roger Grant, Insurance Reform – Consumer Action in the
Progressive Era at 157 (1979).
Jerry, supra
note, § 21[a] at 57.
Jerry, supra
note, § 21[a] at 57. The National Association of
Insurance Commissioners is composed of the chief
insurance regulators from the fifty states, the District
of Columbia, and the territories. Organized in 1871
following the Supreme Court's decision in Paul v.
Virginia, 75 U.S. (8 Wall.) 168, 183 (1869) making
regulation of insurance the exclusive preserve of the
states, the NAIC provides model statutes and regulations
for consideration by the states and studies problems in
insurance regulation.
supra note, § 23[b] at 99.
1012. For a discussion of the political context in
which the McCarran-Ferguson Act was passed and a profile
of its authors see Steven Brostoff, The Surprising
History of McCarran-Ferguson, National Underwriter: Life
& Health/Financial Services 62 (March 5, 1990).
15 U.S.C.A. § 1013(a).
91 Cong. Rec.1442, Feb. 26, 1945 (floor debate on S.
91 Cong. Rec. 1444, Feb. 26, 1945 (floor debate on S.
Proceedings of the Seventh-Eighth
Annual Session of the National Association of Insurance
Commissioners, Adjourned Meeting, New York, N.Y., Dec.
8-11, 1946, Annual Meeting, Atlantic, City, N.J., June
1-5, 1947, at 392-400 (hereinafter cited as the "NAIC
1947 Model Unfair Practices Act"). The model act has
been revised over the years and the current version,
called the "Unfair Trade Practices Act", is found in
NAIC Model Laws, Regulations and Guidelines at 880-1 (Rev'd
ed. 1994). To see what any NAIC model law or regulation
provided on a given date in history, however, requires
use of the NAIC Proceedings, copies of which are
maintained at the library of the Texas Department of
Insurance in Austin, Texas.
Compare NAIC 1947 Model Unfair Practices Act § 3,
note supra, at 393 ("No person shall engage in
this state in any trade practice which is defined in
this act as, or determined pursuant to this Act to be,
an unfair method of competition or an unfair or
deceptive act or practice in the business of
insurance.") with 15 U.S.C.A. § 45(1) ("Unfair methods
of competition in or affecting commerce, and unfair or
deceptive acts or practices in or affecting commerce,
are hereby declared unlawful.").
NAIC 1947 Model Unfair Practices Act § 4, note supra,
at 393.
NAIC 1947 Model Unfair Practices Act §
4, note supra, at 393.
See supra text accompanying notes 12 and 13.
Act of June 28, 1951, 52nd Leg., R.S.,
ch. 491 § 5, 1951 Tex. Gen. Laws 868, 1096.
This was certainly Senator McCarran's understanding, one
which he conveyed to his colleagues during Senate
consideration of the McCarran-Ferguson Act:
. . . . The Senator
will recall the Southeastern Underwriters case. The
decision was startling. It created consternation in the
insurance business because by previous decisions
rendered during the past 50 years or more we were
entitled to believe that the business of insurance was
not to be classified as interstate commerce. The
Supreme Court of the United States specifically,
directly, and emphatically put it into the category of
interstate commerce. It put it squarely under the
Sherman Act, the Clayton Act, and other Acts. The
pending bill is for the purpose of creating a moratorium
for 3 years in order that the business of insurance
shall not be interfered with by any Federal power under
either the Clayton Act or the Sherman Act. So during
the period of moratorium the various states themselves
may take steps to regulate the business of insurance.
91 Cong. Rec. 1443, Feb.
26, 1945 (floor debate on S. 340) (emphasis added).
Act of March 22, 1909, 31st Leg., R.S.,
ch. 108, § 19, 1909 Tex. Gen. Laws 192, 198-99, amended
by, Act of May 17, 1929, 41st Leg., 1st C.S., ch. 3,
§1, 1929 Tex. Gen. Laws 5 (enacting Tex. Rev. Civ. Stat.
Ann. art. 5053), repealed by Act of June 28, 1951, 52nd
Leg., R.S., ch. 491 §4, 1951 Tex. Gen. Laws 868, 1095.
No insurance company could make or permit any
distinction or discrimination between persons of like
class and life expectancy in premiums or rates for, or
amount of, life insurance or endowments; no company or
agent thereof could make contract or agreement of
insurance not contained in the policy; no company or
officer, agent, solicitor or representative thereof
could give a rebate or anything of value not specified
in the policy; no company or officer, agent, solicitor
or representative thereof could give, sell or offer to
sell any stock, bond, dividend or profit in the company
issuing the policy; and no company could issue a policy
allowing it to share in any tax or charge against the
premium on any other policy. Act of June 28, 1951, 52nd
Leg., R.S., ch. 491, § 1, 1951
Tex. Gen. Laws
868, 1075-6. The only provision of the new Insurance
Code that prohibited insurer misrepresentation, Article
21.20, applied only to life insurance companies just as
it does today. Id. at 1075;
Tex. Ins. Code
Ann. art. 21.20. Article 21.20 was based on the
same 1909 statute that enacted the predecessor to
Article 21.21. Act of March 22, 1909, 31st Leg., R.S.,
ch. 108, § 67, 1909
Tex. Gen. Laws
192, 214.
Act of June 28, 1951, 52nd Leg., R.S. ch. 491, §1, 1951
Tex. Gen. Laws
868, 1075-6.
Under its resolution of December 15,
1953, the Commission launched an investigation into the
advertising practices of 1,400 companies issuing
accident and health policies and reviewed hundreds of
policyholder complaints. Formal complaints were issued
against 41 companies alleging false and misleading
advertising, the majority of which were contested on
McCarran-Ferguson grounds. See Annual Rep't of the
Federal Trade Commission for the Fiscal Year Ended June
30, 1954 at 26; Annual Rep't of the Federal Trade
Commission for the Fiscal Year Ended June 30, 1955 at
40; Annual Rep't of the Federal Trade Commission for the
Fiscal Year Ended June 30, 1956 at 40.
In re American Hosp. & Life Ins. Co., 52 F.T.C. 1100
In re National Cas. Co., 52 F.T.C. 1385 (1956).
American Hosp., 52 F.T.C. at 1118-22; National
Cas., 52 F.T.C. at 1397-1401.
The Commission's analysis of the
McCarran-Ferguson Act is contained in American Hosp.,
52 F.T.C. at 1107-22, and was simply adopted by
reference without further comment in National Cas.,
52 F.T.C. at 1397.
American Hosp. & Life Ins. Co. v.
Federal Trade Comm'n, 243 F.2d 719 (5th Cir. 1957),
aff'd, 357 U.S. 560 (1958).
National Cas. Co. v. Federal Trade Comm'n, 245 F.2d 883
(6th Cir. 1957), aff'd, 357 U.S. 560 (1958).
American Hosp., 52 F.T.C. at 1108. The Texas
insurer was licensed in to do business in Arizona,
Arkansas, Colorado, New Mexico, Oklahoma, Tennessee, and
Texas. American Hosp., 52 F.T.C. at 1101, 1107.
With regard to the states other than Texas, the hearing
examiner ruled that all but Mississippi "fully regulates
the business of insurance by legislative enactment and
that to the extent such regulation exists our
jurisdiction has been withdrawn by the McCarran-Ferguson
Act." American Hosp., 52 F.T.C. at 1108.
National Cas., 52 F.T.C. at 1397.
Tex. Ins. Code art. 21.20.
National Cas., 52 F.T.C. at 1386.
American Hosp., 52 F.T.C. at
1108 - 1117.
Thus in National Casualty the Sixth
Circuit noted that:
The Commission does not
challenge the validity of any state statute regulating
the business of insurance, nor the validity of the
McCarran-Ferguson Act. It points out that state laws
have no extra-territorial effect and cannot regulate the
business of insurance beyond the borders of the
particular state; . . . [that the McCarran-Ferguson Act
granted the Commission authorization] to regulate
insurance . . . [by] regulating the use of the
interstate channels of commerce; and that the Federal
and state laws in the field of insurance supplement and
reinforce one another in order to provide full
protection to the public.
National Cas. Co. v.
Federal Trade Comm'n, 245 F.2d 883, 886 (6th Cir. 1957).
Similarly, in American Hospital the Commission did not
attack the adequacy of the state laws themselves, but
rather the power of the states to regulate the
advertising of out of state companies.
The Commission urges
that a state does not have and never did have the power
adequately to control the advertising practices of
out-of-state insurance companies doing business within
its boundaries.
American Hosp. & Life
Ins. Co. v. Federal Trade Comm'n, 243 F.2d 719, 724 (5th
Cir. 1957).
Federal Trade Comm'n v. National Cas. Co., 355 U.S. 867
(1957); Federal Trade Comm'n v. American Hosp. & Life
Ins. Co., 355 U.S. 867 (1957).
Federal Trade Comm'n v. National Cas. Co. consolidated
with Federal Trade Comm'n v. American Hosp. & Life Ins.
Co., 357 U.S. 560 (1958).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, 1957
Tex. Gen. Laws
Federal Trade Comm'n v. National Cas. Co. consolidated
with Federal Trade Comm'n v. American Hosp. & Life
Insurance Co., 357 U.S. at 564. The court's
description, which applied not just to Texas but to
"[e]ach State in question," was accompanied by a
footnote stating that "[a]t the time the complaints were
filed thirty-six states had enacted the 'Model Unfair
Trade Practices Bill for Insurance[]' [and] [e]ight
others had statutes essentially the same in effect as
the 'Model Bill.'" Id., n. 6. No reference was
given for this statement. The complaint in American
Hospital was filed on October 14, 1954 (52 F.T.C. 1100)
and the one in National Casualty on March 11, 1955 (52
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 2, 1957
Tex. Gen. Laws
401, 406.
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401 (current version at
Tex. Ins. Code
Ann. art. 21.21, § 1). The reference to the
McCarran-Ferguson Act was eliminated in 1993. Act of
June 17, 1993, 73rd Leg., R.S. ch. 685, § 20.16, 1993
Tex. Gen. Laws
2559, 2704.
For a discussion of the use of "person" in referring to
whom may sue and be sued under Article 21.21, § 16,
see infra § 2:8-2:10.
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401-02 (current version at
Tex. Ins. Code
Ann. art. 21.21, § 2).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 3, 1957
Tex. Gen. Laws
at 402 (current version at
Tex. Ins. Code
Ann. art. 21.21, § 3).
With the exception of a later amendment to the unfair
discrimination provision,
Tex. Ins. Code
art. 21.21, § 4(7), the text of the eight prohibited
practices enacted in 1957 has remained unchanged.
Compare Act of May 8, 1957, 55th Leg., R.S. ch. 198, §
1, 1957 Tex. Gen.
Laws 401, 402-403 with
Tex. Ins. Code
Ann. art. 21.21, § 4.
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401, 402 (current version at
Tex. Ins. Code
Ann. art. 21.21, § 4(1).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401, 402-03 (current version at
Tex. Ins. Code art. 21.21, § 4(2).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401, 404 (current version at
Tex. Ins. Code
art. 21.21 § 5).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
401, 404-05 (current version at
Tex. Ins. Code art. 21.21, § 6).
Act of May 8, 1957, 55th Leg., R.S. ch. 198, § 1, 1957
Tex. Gen. Laws
at 401, 405 (current version at
Tex. Ins. Code art. 21.21, § 10).
Act of June 12, 1969, 61st Leg., R.S. ch. 706 1969
Tex. Gen. Laws
2051 (current version at
Tex. Ins. Code
art. 21.21, § 13).
Rules and Regulations of The State Board of Insurance
of Texas On Unfair Competition and Unfair Practices of
Insurers and On Misrepresentation Of Policies, and
Including Regulation of Insurance Trade Practices In
Respect of Advertising and Solicitations, Board Order
18663, December 3, 1971 (hereinafter cited as "Board
Order 18663") (current version at 28
Tex. Admin. Code
§§ 21.1-21.5). Copies of Board Order 18663 and all
other original Board Orders may be obtained from the
Chief Clerk, Texas Department of Insurance, Austin,
Board Order 18663, supra note
(general remarks and description of action taken).
Board Order 18663, supra note,
§ 1.
Board Order 18663, supra note, § 3.
Board Order 18663, supra note,
§ 4(a).
Board Order 18663, supra note,
§ 4(b).
Act of June 13, 1973, 63rd Leg., R.S.
ch. 319, §1, 1
Tex. Gen. Laws 735, 736. (current version at
Tex. Ins. Code
Ann. art. 21.21-2).
Act of May 23, 1967, 60th Leg., R.S., ch. 274, §2, 1967
Tex. Gen. Laws
608, 658.
Act of May 23, 1967, 60th Leg., R.S., ch. 274, §2, 1967
Tex. Gen. Laws
608, 658-9
Act of May 23, 1967, 60th Leg., R.S., ch. 274, §2, 1967
Tex. Gen. Laws
608, 659.
Act of May 23, 1967, 60th Leg., R.S., ch. 274, §2, 1967
Tex. Gen. Laws
608, 658.
Act of May 23, 1967, 60th Leg., R.S.,
ch. 274, §2, 1967
Tex. Gen. Laws 608, 610, 656 (current version at
Tex. Rev. Civ. Stat. Ann. arts. 5069-1F.001 et seq.).
Act of June 10, 1969, 61st Leg., R. S., ch. 452, §1,
1969 Tex. Gen.
Laws 1504.
Act of June 10, 1969, 61st Leg., R. S., ch. 452, §1,
1969 Tex. Gen.
Laws 1504, 1505.
Act of June 10, 1969, 61st Leg., R. S., ch. 452, §1,
1969 Tex. Gen.
Laws 1504, 1506-08.
Act of June 10, 1969, 61st Leg., R. S., ch. 452, §1,
1969 Tex. Gen.
Laws 1504, 1505.
Act of June 10, 1969, 61st Leg., R. S., ch. 452, §1,
1969 Tex. Gen.
Laws 1504, 1505.
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 1, 1973
Tex. Gen. Laws
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 1, 1973
Tex. Gen. Laws
322, 322-42. H.B. 417 also repealed article 5069-10,
the previous deceptive trade practice statute. Act of
May 21, 1973, 63rd Leg., R.S. ch. 143, § 3, 1973
Tex. Gen. Laws 322, 342.
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 2, 1973
Tex. Gen. Laws
322, 335-42.
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 1, 1973
Tex. Gen. Laws
322, 323-24 (current version at
Tex. Bus. & Comm. Code Ann. § 17.46).
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 3, 1973
Tex. Gen. Laws
at 342 (repealing
Tex. Rev. Civ. Stat. art. 5069-10). H.B. 417 did
contain an exemption section, but much narrower than
that in the prior statute.
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 1, 1973
Tex. Gen. Laws
322, 324-26 (current version at
Tex. Bus. & Comm. Code Ann. § 17.47).
Act of May 21, 1973, 63rd Leg., R.S. ch. 143, § 1, 1973
Tex. Gen. Laws
at 326-27 (current version at
Tex. Bus. & Comm.
Code Ann. § 17.50), 338 (current version at
Tex. Ins. Code
Ann. art. 21.21, § 16).
Though not examining their historical causes, one law
commentator points to three consumer movements in United
States history: the first associated with Upton
Sinclair's The Jungle and leading to the Federal Food
and Drug Acts in 1906; the second in the mid-1930's
resulting in the Wheeler-Lea amendments to the Federal
Trade Commission Act giving the FTC authority over
"unfair or deceptive acts or practices," thus
eliminating the need for proof of an adverse effect on
competition in order to act against conduct harmful to
consumers; and the third in the 1960s and 1970s,
distinguished from the others by passage of state
consumer protection statutes. William A. Lovett,
State Deceptive Trade Practice Legislation, 46
Tulane L. Rev.
724, 728-30 (1972) (hereinafter cited as "Lovett").
P.L. 92-573, Oct. 27, 1972, 86 Stat. 1207, 5 U.S.C.A. §§
5314-15; §§ 2051-2084.
P.L. 93-637, Jan. 4, 1975, 88 Stat. 2183, 15 U.S.C.A. §§
45-46, 49-50, 52, 56, 57a-57c, 2301-2312.
P.L. 90-321, Title I, May 29, 1968, 82 Stat. 146, 15
U.S.C.A. §§ 1601-1613, 1631-1646, 1661-1665, 1665a,
1666. 1666a-1666j, 1667, 1667a-1667e, 1671-1677.
Federal Trade Commission, National Consumer Protection
Hearings at 4 (Nov. 1968).
Executive Order 11583 of Feb. 24, 1971, 36 Fed. Reg.
3509 reprinted in Codification of Presidential
Proclamations and Executive Orders, January 20, 1961 –
January 20, 1977 at 685 (1979). The order set forth the
case for consumer protection in a free market economy.
Consumer protection fosters a market place in which our
competitive economic system flourishes best. It is good
for businessmen because it gives the consumer greater
confidence in the goods and services provided by
business. It is good for consumers because it
reinforces the concept of buyer's rights:
- the right to make an intelligent choice among
products and services;
- the right to accurate information on which to make a
free choice;
- the right to expect that the health and safety of
the buyer is taken into account by those who seek his
- the right to register dissatisfaction, and have a
complaint heard and weighed, when a buyer's interests
are badly served.
President Nixon's support of Mrs. Knauer buckled,
however, when business interests recoiled at her
proposal for legislation authorizing consumer class
actions based on violations of the Federal Trade
Commission Act. The administration retreated to
supporting only individual suits that could only be
brought for a violation of a FTC cease and desist
order. Consumer advocates rejected this proposal as
worthless, but could never muster the support to pass
their own. Lovett, supra note, at 279-80. For a
discussion of the consumer class action measures then
pending before Congress as well as a statement of the
reasons for, and a critical look at the arguments
against, class actions as a means of redressing
widespread consumer fraud that results in claims too
small to bring as individual actions see Herbert R.
Newberg, Federal Consumer Class Action Legislation:
Making the System Work, 9
Harv. J. Leg.
217 (1972).
The thirty-six states (the twelve with
private remedies appearing in boldface) were Alaska,
Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, Florida, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Missouri, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North
Dakota, Oregon, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Texas, Vermont, Virginia, and
Washington. The private remedies varied widely, from
providing only for injunctive relief with no attorneys'
fees unless the deception was willful (New Mexico) to
treble damages, court costs and attorneys' fees
(Hawaii). Lovett, supra note at 724, 746-47.
Comment, Consumer Protection: The Practical
Effectiveness of State Deceptive Trade Practices
Legislation, 59
Tulane L. Rev.
427, 465-71 (1984). In Arizona and Delaware the private
remedy had been implied by the courts. Id. at
471, n.1. The jurisdictions lacking a private remedy
were Arkansas, Guam, Iowa, Nevada, North Dakota,
Oklahoma, Puerto Rico, and the Virgin Islands. Id.
at 467-70.
The Attorney General Hill's legislative representatives
during the 1973 session and two of H.B. 417's principal
drafters were Joe Longley, then Chief of the Antitrust
and Consumer Protection Division, and Liz Levatino (now
Liz Lacy), then Assistant Chief of the Division and now
Associate Justice of the Supreme Court of Virginia. Mr.
Longley and Philip Maxwell, who followed Mr. Longley as
consumer chief in 1975, also worked on Hill's 1972
campaign for attorney general and helped develop his
consumer and environmental protection programs. The
account of the 1972 campaign and the 1973 legislative
session that followed is based on the personal
recollections and notes of the authors and has been
confirmed by consultation with Justice Lacy.
For a discussion of the Sharpstown scandal, the 1972
election and the governmental reform measures considered
during the 1973 legislative session see
Charles Deaton,
The Year They Threw the Rascals Out (Shoal Creek
Publishers, Austin 1973); see also
Harvey Katz,
Shadow on the Alamo (Doubleday 1972) (discussing
scandal and correctly predicting political repercussions
but published before 1972 election).
Copies of H.B. 417 and S.B. 75 as originally introduced,
as well as amendments added during the session, are
available from the Texas Legislative Reference Library,
State Capitol Building, Austin, Texas.
As originally introduced, H.B. 417 and S.B. 75 would
have provided, in § 17.50(a)(4), a cause of action for:
a failure by any person
to comply with the provisions of Chapter 2, 3, 4, 5, or
7 [of the Texas Credit Code], or the rules or
regulations promulgated under these chapters.
As originally introduced, H.B. 417 and S.B. 75 would
have enacted a § 17.47 of the Business & Commerce Code
empowering the attorney general's "consumer protection
division [to] issue, after hearing, regulations
declaring other acts or practices to be false,
misleading, or deceptive acts or practices."
Hearing on H.B. 417 Before the House Committee on
Business and Industry, Feb. 27, 1973, reprinted in
Report of the Joint Committee on Deceptive Trade
Practices, 71st Leg. (Dec. 20, 1988) at 102 (remarks of
Will Davis, representing American National Insurance Co.
and Texas Legal Reserve Officials Association) ("H.B.
417 superimposed on top of the Texas Insurance Code
creates dual regulation, conflicting regulation and will
cause us to be answering two masters.") (hereinafter
cited as "1973 House Business and Industry Committee
Hearing"); Hearing on S.B. 75 Before the Senate
Committee on Human Resources, Feb. 14, 1973, reprinted
in Report of the Joint Committee on Deceptive Trade
Practices, 71st Leg. (Dec. 20, 1988) at 311-47 (remarks
of Robert Sneed, representing Texas Association of Life
Insurance Officials), 349-63 (remarks of Will Davis)
(hereinafter cited as "1973 Senate Human Resources
Committee Hearing"). The industry's concern over the
potential for regulatory conflict was echoed by the
Insurance Commissioner, Clay Cotton. 1973 House
Business and Industry Committee Hearing at 529-30.
1973 Senate Human Resources Committee Hearing, supra,
note, at 350 (remarks of Will Davis):
* * * That to the
extent that the United States Congress has allowed and
required the insurance industry in this state and the
State of Texas to regulate advertising and deceptive
trade practices and consistent with the times they have
changed their attitude in any way about advertising and
deceptive trade practices and as they have changed their
mind from time to time, the legislature of this state
and the insurance industry of this state have come to
the legislature and passed laws changing the advertising
and deceptive practices acts relating to insurance to
conform with the requirement of the Federal Trade
Commission or the United States Congress. Suffice to
say, that the Texas insurance industry has consistently,
consistently been in step with advertising and deceptive
trade practices, regulatory authorities to this very
day. * * * I simply say that reform didn't start
until 1973 in the insurance industry. It started in
1955 and '57, and has been a consistent, evolving
process largely with the support of the insurance
industry in this state.
1973 House Business and Industry Committee Hearing,
supra note, at 488-89 (remarks of Will Davis);
see also, Id.
at 525 (remarks of Sam Winters representing the Texas
Life Convention) ("We abhor dual regulation. We think
it is best to regulate it in the Insurance Department,
and we think they are doing a good job. If you want to
give them some more remedies, I hope you will consider
that."); see also, 1973 Senate Human Resources
Committee Hearing, supra note, at 364 (remarks of
Sam Winters) ("We think that the expertise of the
Insurance Department should be used. We think they are
the ones that have it and that's where it should be and
I think they ought to have the power you want to give
them."), 341-42 (remarks of Robert Sneed) ("We ought to
either be under the State Board of Insurance or the
Attorney General. And all we ask, and all we urge you,
put us one place or the other. Either give us to the
State Board of Insurance. If it needs to assess
additional fines of $2,000 to $10,000 instead of $50 to
$500 as Article 21.21 provides, then raise the limit.
If the attorney's fee provision as Senator Mauzy is
pointing out needs to be expanded, then expand it. Just
put us one place or the other. This is all we are
asking."), 363 (remarks of Will Davis) ("no evidence to
support the validity of an argument that with the powers
in this bill the Insurance Department could not and
would not do a better job in the field of insurance
consumer protection that the Attorney General because
they won't be deluged with automobile dealers and retail
firms. They will be doing only insurance consumer
protection and not having to worry about everybody else
who the Attorney General is with regulatory authority in
this bill."), 377-8 (Insurance Commissioner Clay Cotton
agreeing with Senate committee members Meier and
Schwartz that a workable alternative to H.B. 417 would
be to amend the Insurance Code to incorporate the DTPA's
regulatory, enforcement, and private remedy provisions).
The definition of "person" came from the NAIC model act
and was enacted in Texas in 1957 when the model law was
adopted as revised Article 21.21. The definition is the
same today as it was when adopted in 1957.
Sec. 2. When
used in this Act:
(a) "Person" shall mean
any individual, corporation, association, partnership,
reciprocal exchange, inter-insurer, Lloyds insurer,
fraternal benefit society, and any other legal entity
engaged in the business of insurance, including agents,
brokers, adjusters and life insurance counselors.
Tex. Ins. Code
art. 21.21, § 2(a).
As passed, H.B. 417 provided a cause of action in
section 16(a) of Article 21.21 for "[a]ny person who has
been injured . . . . "Act of May 21, 1973, 63rd Leg.,
R.S. ch. 143, § 2, 1973
Tex. Gen. Laws
322, 338. Now the cause of action is for "[a]ny person
who has sustained actual damages . . . ." Tex. Ins.
Code Ann. art. 21.21, § 16(a).
15 U.S.C.A. § 15(a).
By 1973, one federal district court
had ruled that a private remedy under state law was not
required for the McCarran-Ferguson Act to apply.
Transnational Ins. Co. v. Rosenlund, 261 F.
Supp. 12, 26 (D. Ore.
1966). This ruling certainly did not foreclose an
attack on the Texas' regulatory scheme on this ground,
however, and adding a private remedy to Article 21.21
most certainly would.
Tex. Ins. Code Ann. art. 21.21, §4(1).
Tex. Ins. Code
Ann. art. 3.62 (repealed) (now
Tex. Ins. Code
art. 21.55).
Indeed, a violation may actually benefit a policyholder,
such as when he receives an unlawful premium rebate.
See Tex. Ins.
Code Ann. art. 21.21, § 4(8). A policyholder
getting a cut in his premium can hardly be expected to
lay self-interest aside, assume the role of a vigilant
private attorney general and hail the wrongdoer into
court. A competing insurance company or agent whose
business is stolen away by such practices, by contrast,
is clearly damaged by such conduct and has the incentive
to bring suit.
Tex. Ins. Code
Ann. art. 21.21, § 4(3) (false, maliciously
critical, or derogatory statements "calculated to injure
any person engaged in the business of insurance"); §4(4)
(boycotts or intimidation resulting in "unreasonable
restraint of, or monopoly in, the business of
insurance"). That Article 21.21 extends beyond
policyholder concerns is not only reflected in the text
of its prohibitions, but also in its title ("Unfair
Competition and Unfair Practices") and its purpose (to
define and prohibit "all . . . unfair methods of
competition or unfair or deceptive acts or practices . .
. ."). Tex. Ins.
Code Ann. art. 21.21 (Title) (emphasis added);
§ 1(a) (purpose) (emphasis added).
Section 4(1) prohibits, in addition to
misrepresentations to policyholders, "[m]aking, issuing,
circulating, or causing to be made, issued or
circulated, any estimate, illustration, circular or
statement misrepresenting the terms of any policy issued
or to be issued or the benefits or advantages promised
thereby or the dividends or share of the surplus to be
received thereon . . . ."
Tex. Ins. Code
Ann. art. 21.21, § 4(1).
Five years after the passage of H.B. 417, the Texas
Supreme Court ruled that "person" was not so limited.
Ceshker v. Bankers Commercial Life Ins. Co., 568 S.W.2d
128, 129 (Tex. 1978) (per curiam) ("We disapprove the
holding which construed the Code to limit the term
'person' to one who is engaged in the business of
insurance."). That an insurance company urged a narrow
construction of "person" excluding consumers, however,
shows that the concern of the attorney general's office
in 1973 was well founded. In later cases, insurers
argued to the supreme court that the use of "person" in
the Article 21.21 private remedy embraced only
consumers. This, too, was rejected. See Hi-Line
Elec. Co v. Travelers Ins. Co., 593 S.W.2d 953 (Tex.
1980) (per curiam) (refusal of application for writ of
error "should not be interpreted as approving the
conclusion of the court of civil appeals that a private
action under article 21.21 of the Insurance Code must be
based on the Deceptive Trade Practices Act nor as
approving the court's holding that, 'A person as used in
article 21.21(16)(a) must be a consumer as defined in
section 17.50 of the DTPA.'"); Marshall v. Aetna Cas. &
Sur. Co., 724 S.W.2d 770, 772 (Tex. 1980) ("Article
21.21 does not incorporate the entire Deceptive Trade
Practices Act which would require proof that Marshall
was a consumer of goods or services. Instead, article
21.21 provides a cause of action to a person who has
been injured by an insurance carrier who engages in an
act proscribed by section 17.46.").
H.J. of Tex., 63rd Leg., R.S. 2091, 2104-13.
Over the years there have been changes to the language
describing the harm to the person who is bringing suit.
As originally passed in 1973, Article 21.21, § 16(a)
provided a cause of action for "[a]ny person who has
been injured by another's" violations. Act of May 21,
1973, 63rd Leg., R.S., ch.143, § 2,
1973 Tex. Gen.
Laws 322, 338. In 1985, the words "been injured
by" were supplanted by "sustained actual damages as a
result of" so that the cause of action was accorded to
"[a]ny person who has sustained actual damages as a
result of another's" violations. Act of April 4, 1983,
69th Leg., R.S., ch. 22, § 3,
1985 Tex. Gen.
Laws 395. In 1995, "as a result" was deleted in
favor "caused by" thus yielding the current version
which describes the remedy as one for "[a]ny person who
has sustained actual damages caused by another's"
violations. Act of June 8, 1995, 74th Leg. R.S., ch.
414, § 13,
1995 Tex. Gen.
Laws 2988, 3800. (current version at
Tex. Ins. Code
art. 21.21, § 16(a)). But none of these changes
narrowed the class of those able to bring suit.
Act of April 4, 1985, 69th Leg., R.S., ch 22, §3, 1985
Tex. Gen. Laws
Liberty Mut. Ins. Co. v. Garrison Contractors Co, Inc.,
966 S.W.2d 482 (Tex. 1998). Further evidence that the
legislature knew and approved of the broad definition of
"person" in Article 21.21 is drawn from another bill
passed in 1985, this one amending § 14 to replace
"insurer" with "person" in referring to those against
whom an administrative class action may be brought. Act
of May 24, 1985, 69th Leg., R.S., ch. 160, 1985
Tex. Gen. Laws
714. According to the bill analysis, the term insurer
is "much narrower than the word 'person' . . . " and
hence substituting the latter for the former "will
broaden the application of the section . . . ." House
Comm. on Insurance, Bill Analysis, Tex. S.B. 1127, 69th
Leg., R.S. (1985). Copies of the bill analysis are
available from the Texas Legislative Reference Library,
State Capitol Building, Austin, Texas.
Coastal Indus. Water Auth. v. Trinity Portland Cement
Div., 563 S.W.2d 916, 918 (Tex.1978) ("The rule is well
settled that when a statute is re-enacted without
material change, it is presumed that the legislature
knew and adopted the interpretation placed on the
original act and intended the new enactment to receive
the same construction.").
Ceshker v. Bankers Commercial Life Ins. Co., 568 S.W.2d
128 (Tex. 1978).
Hi-Line Elec. Co. v. Travelers Ins. Co., 593 S.W.2d 953
(Tex. 1980).
Act of April 4, 1985, 69th Leg., R.S., ch. 22, § 1, 1985
Tex. Gen. Laws
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541
(Tex. 1981).
See State Farm Life Ins. Co. v. Beaston, 907
S.W.2d 430, 435-36 (Tex. 1995)
(that DTPA and Article
21.21 are "interrelated" and were passed in 1973 "as
part of reform package of consumer legislation" makes it
"logical" to hold that recovery of mental anguish
requires the same proof under both statutes).
Act of May 23, 1977, 65th Leg., R.S., ch.
216, § 1,
1977 Tex. Gen.
Laws 600.
Act of June 1995, 1983, 68th Leg., R.S.,
ch. 883, § 2,
1983 Tex. Gen.
Laws 4943, 4944.
Act of June 8, 1995, 74th Leg., R.S., ch.
414, § 4,
1985 Tex. Gen.
Laws 2988, 2991.
C.f. Riverside Nat'l Bank v.
Lewis, 603 S.W.2d 169, 175 (Tex. 1980) (emphasis in
The presence of the
words "money or credit" within the definition of
"consumer" in the Home Solicitations Act, and their
corresponding absence from the analagous provision in
the DTPA, indicates that the seeking of an "extension of
credit" is not the seeking of a "service" as defined in
the DTPA. Obviously, the Legislature knew how to
include the extension of credit and borrowing of money
within the scope of coverage of protective legislation,
when it intended to cover such transactions. The simple
addition of the words "money or credit" within the
definition of "consumer" in the DTPA would have
accomplished such a purpose in the DTPA. The
Legislature's exclusion of these terms from the DTPA, in
light of its contemporaneous inclusion of the same terms
in the Home Solicitations Transactions Act, evidences a
clear legislative intent that the extension of credit
was not to be covered under the DTPA.
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text:
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So we took a last minute trip to Brooklyn on Saturday, and I have to say I'm glad I decided to go for so many reasons.
First, I was able to spend what will likely be my last trip to the city with Carrie, who will soon be off off and away thanks to her house selling in a mere week! I have to say I'm not really happy they're all leaving but I am happy for her that everything is working itself out...
I was also able to meet the other half of this splendid couple, aren't they adorable?
Then there was plenty of girl time and of course all the amazing food. There's nothing like eating some great Italian food under the Brooklyn Bridge.
Another very important reason is that I had the opportunity to mark something off my nyc bucket list. When I lived in Brooklyn I always wanted to go to their botanical gardens for the cherry blossom festival and though there was no time to do it while I lived there, I was able to mark it off this past weekend.
If anyone's ever interested in going it is well worth it. They do a beautiful job with all their gardens, there's some great japanese food to try, and the costumes {both traditional and not so much} are fun to see. The girls loved all the cartoon get-ups and seeing all the crazy dresses {and wigs} the women were wearing.
All in all it was a great trip even though i'm still recovering from all that walking!
Wednesday, May 04, 2011
brooklyn cherry blossom festival
So we took a last minute trip to Brooklyn on Saturday, and I have to say I'm glad I decided to go for so many reasons.


text:
2517 Sierra Madre $2,575,000
Listing provided courtesy of: Martha Turner Sotheby's
2517 Sierra Madre Friendswood, TX 77546
- 5 Beds
- 7 Baths
- 6,550 sq.ft.
- Single-Family
MLS# 22849052 | Active
Days On Market: 827 37 Views
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Tuesday 28 May
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Property Details
Come experience pure Texas in this extraordinary Hill Country home on near 5 acres in the city of Friendswood. Its iron entry gate opens to spacious grounds for great living and just about anything Texas. The front courtyard welcomes guests to a fabulous lifestyle in this sprawling one story. Enjoy tall ceilings with stained-wood beams, quarried-stone accent walls and Saltillo tile flooring inside paired with the pool, stucco cabanas and a Spindletop-style, vintage oil derrick in the back yard.
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- Restrictions Deed Restrictions, Horses Allowed, Restricted
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Property Features
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- School District 20 - Friendswood
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|New Value: $2,575,000
|New Value: $2,700,000
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Dental Partners UK
Weymouth, United Kingdom
Ref#: 130651
Date published: 13-Sep-2018
Dental Partners do dentistry differently! We are looking to attract the brightest dental talent, resulting in the highest quality treatment and choice for our NHS and private patients. Providing our dentists with guaranteed clinical freedom you can have your say over choice of equipment, materials and laboratories whilst our robust clinical support network keeps you 'safe', ethical and compliant. From developing a specialist practice to embarking on further training or charity work, Dental Partners offers dental professional's opportunities they won't find elsewhere.
Our diverse and family-friendly culture supports flexible working across the spectrum of dentistry and we can offer full time (5000 UDA) or part time hours to cover this available post.
Part of the Dental Partners group our Weymouth practice, commutable from Dorchester, has 3 surgeries with a 4th due to open before the end of 2019 is a mix of NHS and Private with a well maintained and loyal patient base.
With 5 Outreach practices and 18 Foundation practices, Dental Partners are committed to providing an environment that supports and develops our clinical teams. Whichever practice you join you can rely on being surrounded by a strong team of dedicated dental professionals qualified support colleagues including Clinical Directors, allowing you the time to concentrate on your patients, your dentistry and your own personal development.
Dental Partners can offer:
We can be flexible around your preferences in terms of full/part time however successful candidates will need to:
This is a unique opportunity to be part of the Dental Partners group who are committed to be the "best place to work"; prioritising a family friendly culture and diversity whilst supporting self and career development. Wherever you work, and wherever you are in your career, you can expect to be supported.
Click "Apply" or if you prefer to discuss our opportunities with a member of the Resourcing Team call us on 01952 281929.


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Jets Leagues Club is a complete friendly entertainment and gaming venue, housing a restaurant which offers high quality dining in Ipswich. Aligned with the Ipswich Jets Rugby League Football Club, Jets occupies the gracious historic building formerly known as the Hotel Cecil (built in 1887).
Their restaurant serves up tempting a-la-carte meals and weekly specials. There are pasta, burgers, seafood, salads and meat lovers are spoilt with the char grilled New York steak or the 400 gram Royal Rump.
They can accommodate group bookings in the restaurant and special function packages are available, contact the club for more details. The club is fully wheelchair friendly throughout the venue.
The Kids' menu offers youngsters' favorites like chicken tenders or battered fish and they can work off some extra energy in the Jets cadets play centre - an unsupervised play room.
The Coffee Shop is open to 4am and offers lighter meals as well as sweet treats. There are two bars - the sports bar, with TAB, KENO and sports television and the bank bar in the gaming lounge.
Jets is also a popular place for private functions with three function rooms available for parties, corporate breakfasts, meetings and small weddings.
Note: Information on listed products and services are provided by the operator and were correct at the time of publishing. Rates are indicative based on the minimum and maximum available prices of products and services. Please visit the operator's website for further information. All prices quoted are in Australian dollars (AUD).


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Create large-scale, highly realistic dynamic and kinematic simulations with the enhanced open-source Bullet plug-in delivered in conjunction with AMD. Simulate both soft and rigid bodies in a single system. Take advantage of continuous 3D collision detection. Create compound collision shapes from multiple meshes, and produce better collisions with concave shapes. Integrates with Maya Forces, and supports rigid sets for increased scalability.