IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 05-0016

════════λ= 2;═══

Mid-Century = Insurance=20 Company of Texas

and Texas Farmers = Insurance=20 Company,

Petitioners,

Shefqet = Ademaj,

Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Twelfth = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued October 17,=20 2006

&nbs= p;=20 Justice Green delivered the opinion of the = Court, in=20 which Chief Justice Jefferson, = Justice=20 Wainwright, Justice Brister, Justice Johnson, and Justice Willett joined.

&nbs= p;=20 Justice O=92Neill filed = a concurring=20 opinion, in which Justice=20 Medina = joined.

&nbs= p;=20 Justice Hecht did not = participate=20 in the decision.

&nbs= p;=20 This case concerns the convergence of three provisions enacted by the = Texas=20 Legislature during the 1991 legislative session: (1) article 4413(37), = section 2=20 of the Revised Civil Statutes, creating the Texas Automobile Theft = Prevention=20 Authority (the Authority) as a division of the Texas Department of=20 Transportation; (2) article 21.35B(a) of the Insurance Code, detailing = the types=20 of payments insurers generally may solicit or collect;[1] and (3) article 5.101 of the = Insurance=20 Code, outlining a flexible rating program and rate-filing process to be = used by=20 all automobile insurers in Texas.[2]

&nbs= p;=20 Shefqet Ademaj and others (Ademaj, collectively) brought a class action = suit=20 against Mid-Century Insurance Company of Texas and Texas Farmers Insurance = Company=20 (Mid-Century, collectively), and sought a declaratory judgment on the = manner in=20 which Mid-Century could lawfully recoup the legislatively imposed = Authority fee=20 from insureds. The trial court ruled in Ademaj=92s favor, and the court = of appeals=20 affirmed. We reverse the court of appeals=92 judgment and render a = take-nothing=20 judgment in favor of Mid-Century.

= =20 Article 4413(37) funds the Authority=92s automobile theft prevention = programs by=20 requiring each automobile insurer to pay a fee of $1 per policy year for = every=20 automobile insured. Tex. Rev. = Civ.=20 Stat. art. 4413(37), =A7 10(b). The commissioner of the Texas = Department of=20 Insurance authorized automobile carriers to recoup the fee from insureds = so long=20 as the carriers provided insureds notice that, as part of the policy, = they were=20 being charged the fee =93in addition to the premium due under this = policy.=94 28=20 Tex. Admin. Code =A7 = 5.205 (b)(1),=20 (b)(2) (1992). Article 21.35B applies to all insurers and outlines = payments=20 insurers may solicit or collect from policyholders. The statute = provides, in=20 pertinent part:

(a) No payment may be solicited or collected = by an=20 insurer, its agent, or sponsoring organization in connection with an = application=20 for insurance or the issuance of a policy other than:

(1) premiums;

(2) taxes;

(3) finance charges;

(4) policy fees;

(5) agent fees;

(6) service fees, including charges for = costs=20 described under Article 21.35A of this code;

(7) inspection fees; or

(8) membership dues in a sponsoring=20 organization.

Art. 21.35B(a). Article 5.101 of the Texas = Insurance=20 Code, entitled =93Flexible Rating Program for Certain Insurance = Lines,=94 applies to=20 automobile insurers and authorizes the commissioner to set a benchmark = rate for=20 each line of personal automobile insurance sold in Texas. Article 5.101, = =A7=A7=20 1(a), 3(b). Under Article 5.101, once the commissioner establishes = =93flexibility=20 band[s]=94=97acceptable rate ranges for each line of = insurance=97insurers must file=20 detailed information on proposed rates which, if within the flexibility = bands,=20 are presumed valid. Id. =A7 3(e)=96(f).

&nbs= p;=20 Ademaj alleged in a motion for summary judgment that Mid-Century = illegally=20 collected the Authority fee because the fee was not included in = Mid-Century=92s=20 Article 5.101 rate-filing. Mid-Century countered with their own motion = for=20 summary judgment, alleging that Article 21.35B(a) authorized them to = charge the=20 Authority fee as an expense, and that they were therefore not required = to=20 include the fee in their Article 5.101 rate-filing. Mid-Century and = Ademaj=20 ultimately filed a joint motion to sever Ademaj=92s claims from the = remaining=20 plaintiffs=92 claims or, alternatively, for a written order for = interlocutory=20 appeal of the summary declaratory judgment. The parties stipulated the=20 following:

&nbs= p;=20 1. Ademaj paid a total of $1 in Authority fees to Mid-Century Insurance=20 Company.

&nbs= p;=20 2. Ademaj paid a total of $3 in Authority fees to Texas Farmers = Insurance=20 Company.

&nbs= p;=20 3. All payments Ademaj made for private passenger automobile insurance = coverage,=20 other than the Authority fees, were legally authorized.

&nbs= p;=20 4. Neither Mid-Century nor Texas Farmers charged Ademaj the Authority = fee as=20 part of the premium for private passenger automobile insurance = coverage.

&nbs= p;=20 5. Neither Mid-Century nor Texas Farmers has included the Authority fee = in their=20 rates or in their rate-filings made with the commissioner under Article=20 5.101.

&nbs= p;=20 The trial court issued a partial summary judgment in favor of Ademaj. = The court=20 of appeals affirmed the trial court=92s ruling, holding insurers are = required to=20 include the Authority fee in their Article 5.101 rate-filings with the=20 commissioner. 202 S.W.3d 176, 184=9685 (Tex. App.=97Tyler 2004). = Mid-Century timely=20 filed this appeal.

&nbs= p;=20 We review a trial court=92s grant of summary judgment de novo. = Provident Life=20 & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). = When, as=20 here, both parties moved for summary judgment and the trial court = granted one=20 and denied the other, we =93determine all questions presented and render = the=20 judgment the trial court should have rendered.=94 Argonaut Ins. Co. = v.=20 Baker, 87 S.W.3d 526, 529 (Tex. 2002). Our objective in construing a = statute=20 is to give effect to the Legislature=92s intent. Tex. Gov=92t Code =A7 = 312.005; Am. Home=20 Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). Our = interpretation of=20 these statutes begins with their plain meaning, Fitzgerald v. = Advanced Spine=20 Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999), which we = derive =93from=20 the entire act and not just from isolated portions.=94 State v. = Gonzalez,=20 82 S.W.3d 322, 327 (Tex. 2002). Thus, we =93read the statute as a whole = and=20 interpret it to give effect to every part.=94 Id. (quoting = Jones v.=20 Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).

&nbs= p;=20 The parties agree that the Insurance Code authorizes insurers to recoup = the=20 Authority fee amount from insureds, and disagree only over which = specific=20 articles and conditions govern the payments. The principal issue is = whether, as=20 Ademaj argues, insurance carriers must include the Authority fee within = the=20 rates filed under Article 5.101, or whether, as Mid-Century argues, = carriers may=20 recoup the fee independently under Article 21.35B. We must determine = whether the=20 rate arising from the Article 5.101 rate-filing process is: (1) merely = the=20 premium to which an insurer may add the charges enumerated in Article = 21.35B; or=20 (2) the sum of all permissible charges, including any Article 21.35B = charges the=20 insurer requires the policyholder to pay. The court of appeals construed = Article=20 5.101 to require the latter. 202 S.W.3d at 184. We disagree.

&nbs= p;=20 First, we construe Article 21.35B as an affirmative source of an = insurer=92s=20 authority to solicit and collect payments. Article 21.35B(a) provides = that =93[n]o=20 payment may be solicited or collected . . . other than=94 the = eight=20 enumerated categories of payments, creating a prohibition with respect = to=20 nonenumerated payments and an authorization with respect to the=20 enumerated elements. Article 21.35B(a) (emphasis added). Construing = Article=20 21.35B(a) as a mere outline of the Article 5.101 rate-making = considerations=20 renders it meaningless to automobile insurers and ignores the = statute=92s=20 application to other types of insurers.[3] Instead, Article 21.35B = authorizes the=20 solicitation and collection of premiums, taxes, and the other enumerated = payments unless some intervening statute provides otherwise.[4]

&nbs= p;=20 Second, we construe the Article 5.101 =93rates=94 to constitute = =93premiums=94 as=20 contemplated by Article 21.35B(a). Despite extensive briefing on the = issue, we=20 are not convinced that technical etymologies of Article 21.35B=92s = =93premium=94 and=20 Article 5.101=92s =93rate=94 control our construction.[5] Because Article 21.35B = addresses all=20 insurers, it cannot speak in the exact terms of the various statutes = addressing=20 subclasses of insurers, including Article 5.101. Instead, we utilize the = plain=20 meanings that produce the most coherent overall scheme. =93The = foundation of=20 insurance is . . . risk distribution, and premiums are a function of = calculated=20 risk.=94 In re Tex. Ass=92n of Sch. Bds., 169 S.W.3d 653, = 658=9659 (Tex. 2005)=20 (=93The payment of the premium by the insured and the assumption of a = specified=20 risk by the insurer are the essential elements of the contract of=20 insurance.=94); accord Rosenstock v. Wheeler, 310 S.W.2d = 350, 353=20 (Tex. Civ. App.=97Houston 1958, writ ref=92d) (=93A premium is the = consideration paid=20 by a person for insurance protection or coverage.=94). In addition to = =93premiums,=94=20 Article 21.35B recognizes that insureds incur, as part of insurance = policies,=20 various other payment obligations not closely related to risk and cost=20 distributions. Article 21.35B(a). Albeit with different terms, Article = 5.101=20 focuses on the fundamental considerations of risk distribution. Article = 5.101=20 produces =93rates=94 for each =93line of insurance=94 by balancing = =93risks=94 against=20 various economic variables, such as =93loss experience,=94 =93peculiar = hazards,=94=20 =93profits,=94 and =93expenses of operation,=94 among others. Art. = 5.101, =A7 3(a), (c).=20 Thus, the Article 5.101 rate process produces the premiums that Article = 21.35B=20 authorizes insurers to solicit and collect.

&nbs= p;=20 Ademaj argues that Article 5.101 requires the commissioner=92s inclusion = of all=20 costs and expenses of operation, including all taxes, in the Article = 5.101 rate.=20 See id. = =A7 3(b)(4),=20 3(q). Ademaj further asserts that the only expenses that could be = excluded from=20 the rate were those listed in section 3(o). Because taxes and fees = generally,=20 and the Authority fee specifically, are not listed in section 3(o), = Ademaj=20 argues that Article 5.101 governs the Authority fee exclusively. We=20 disagree.

&nbs= p;=20 Although Article 5.101=92s rate-setting scheme may account for = the=20 Authority fee, it need not always do so to the exclusion of the Article = 21.35B=20 payment authorization. Article 5.101 simply does not employ mandatory = language:=20 =93[T]he commissioner may give due consideration to=94 the = expenses=20 enumerated in section 3(c); nothing in Article 5.101 requires the = commissioner to use the Authority fee when calculating the benchmark = rate.=20 Id. =A7 3(c) (emphasis added). As a result, even if the = commissioner=20 could have used the Authority fee in the benchmark rate = calculation under=20 section 3(c)(4) as an =93expense=94 or under section 3(c)(13) as an = =93appropriate=94=20 factor, Article 5.101=92s permissive terms did not compel him to do = so.[6]

&nbs= p;=20 Having determined that payments may fall under either Article 5.101 or = Article=20 21.35B, we need not determine where the Authority fee most appropriately = falls=20 because the commissioner has already done so. =93Construction of a = statute by the=20 administrative agency charged with its enforcement is entitled to = serious=20 consideration, so long as the construction is reasonable and does not = contradict=20 the plain language of the statute.=94 Tarrant = App. Dist. v.=20 Moore, 845 S.W.2d 820, 822 = (Tex. = 1993).[7] The Insurance Code charges = the=20 commissioner with enforcing the Article 5.101 rate system in several = ways. Under=20 Article 5.101, the commissioner must =93adopt a rating manual,=94 and = the manual=20 must =93be used by all insurers=94 unless they receive permission from = the=20 commissioner to use their own. Article 5.101, =A7 3(k). Article 5.101 = also directs=20 the commissioner to =93promulgate by rule a benchmark rate=94 for each = line of=20 insurance. Id. =A7 3(b). Finally, section 3(c) gives the = commissioner the=20 power to decide what =93consideration=94 each potential rate factor is = =93due.=94=20 Id. =A7 3(c). Even if the commissioner has no explicit power to = enforce=20 Article 21.35B, the various Article 5.101 enforcement responsibilities = empower=20 him to make the threshold determination of whether or not a payment = should be=20 governed by Article 5.101 at all.

&nbs= p;=20 To that end, the commissioner promulgated Rule 15, which does not = require=20 insurers to include the Authority fee in their Article 5.101 flex = filings.=20 Instead, Rule 15 directs insurers to collect the Authority fee from=20 policyholders and simply notify them that the fee was being collected = =93in=20 addition to the premium due=94 under the policy. 28 Tex. Admin. Code =A7 = 5.205(b). The=20 commissioner=92s interpretation deserves deference because it accords = with the=20 terms of the statute. First, the commissioner could reasonably have = determined=20 that the Authority fee falls within Article 21.35B(2)=92s authorization = for the=20 solicitation and collection of =93taxes=94 because the Legislature = imposed the fee=20 to finance the Authority. See Tex. Rev. Civ. Stat. art. = 4413(37), =A7=20 10 (=93The fee imposed by this section is in addition to any other fee = or tax=20 imposed by law on an insurer.=94); Conlen Grain & Mercantile, = Inc. v. Tex.=20 Grain Sorghum Producers Bd., 519 S.W.2d 620, 623 (Tex. 1975) (=93A = tax is a=20 burden or charge imposed by the legislative power of the state upon = persons or=20 property to raise money for public purposes.=94). Moreover, we see no = place for=20 the commissioner to include the Authority fee in the benchmark rate = because it=20 is imposed as a flat fee. Whereas taxes and fees charged as a percentage = of=20 premium spread nicely throughout the entire menu of lines of available=20 insurance, a flat fee such as the Authority fee cannot be so easily = distributed.=20 Because insurers=92 variable flex filings range from 30% below to 30% = above the=20 benchmark, including the Authority fee in the Article 5.101 calculation = will=20 distort the $1 recoupment in a substantial set of cases. Thus, we defer = to the=20 commissioner=92s conclusion that insurers wishing to recoup the = Authority fee need=20 not include it in their Article 5.101 filings.[8]

&nbs= p;=20 Ademaj asserts three final objections to this construction, none of = which we=20 find persuasive. Ademaj points to American Alliance Insurance Co. v. = Board of=20 Insurance Commissioners, 126 S.W.2d 741, 744 (Tex. 1939), and = Article=20 5.101=92s requirement that rates be =93just, reasonable, [and] = adequate=94 for the=20 proposition that the Article 5.101 rates must include all taxes. = See=20 Article 5.101, =A7 3(b)(2); Public Util. Comm=92n v. Houston Lighting = & Power=20 Co., 748 S.W.2d 439, 439=9640 (Tex. 1987). Even if those cases apply = to the=20 statute here,[9] they do not require what = Ademaj=20 asserts. At most, they require only that taxes be =93considered,=94 = Houston=20 Lighting & Power, 748 S.W.2d at 441, and =93taken into = account,=94 Am.=20 Alliance, 126 S.W.2d at 742. They do not require that a fee=20 necessarily be included in the final charge calculation. The = commissioner met=20 this standard by considering =93expenses of operation=94 and other = =93appropriate=94=20 factors during the rate setting process, and by promulgating Rule 15, = which=20 represents the commissioner=92s explicit consideration of the tax as it = affects=20 insurance rates. See Article 5.101, =A7 3(c)(4), (12); 28 Tex. Admin. Code =A7 = 5.205(a). As a=20 result, the commissioner met the statutory requirement of producing = section=20 3(b)(2)=92s =93just, reasonable, [and] adequate=94 rates, even without = including the=20 Authority fee.

&nbs= p;=20 Ademaj also asserts the filed rate doctrine to argue that interpreting = Article=20 5.101 as applying only to premium charges will allow insurers to = wrongfully=20 impose charges on policyholders that were never filed with the = commissioner.=20 Such an interpretation, Ademaj asserts, would violate the filed rate = doctrine=20 because the filed rate of rate-regulated automobile insurers would not = reflect=20 the actual charge for automobile insurance. Ademaj cites AT&T v. = Central=20 Office Telephone, Inc. presumably for the proposition that the rate = an=20 insurer duly files is the only lawful charge it may pass on to = policyholders.=20 See 524 U.S. 214, 222 (1998). But, while Ademaj is correct that = the filed=20 rate doctrine applies in Texas, see Sw. Elec. Power Co. v. Grant, = 73=20 S.W.3d 211, 216=9617 (Tex. 2002), he miscites the United States Supreme = Court=92s=20 holding in AT&T and is wrong about how the filed rate = doctrine=20 applies in Texas. AT&T described the filed rate doctrine only = as it=20 applied within the confines of the Interstate Commerce Act. See = 524 U.S.=20 at 222 (=93Under the Interstate Commerce Act, the rate of the carrier = duly filed=20 is the only lawful charge.=94). We held in Southwestern Electric = Power Co.=20 that =93[t]he doctrine holds that a tariff filed with and approved by an = administrative agency under a statutory scheme is presumed reasonable = unless a=20 litigant proves otherwise.=94 73 S.W.3d at 216. Nowhere in that decision = did we=20 hold that the doctrine prohibits an insurer from recouping a fee from = insureds=20 outside the rate when the appropriate regulatory agency has promulgated = a valid=20 rule permitting the insurer to do so. The application of the filed rate = doctrine=20 in this case is necessarily circumscribed by the legislative grant of = authority=20 to the commissioner to regulate premiums and cannot be applied to = overrule the=20 commissioner=92s exercise of discretion not to include the Authority fee = in the=20 premium regulated under Article 5.101.

&nbs= p;=20 Finally, Ademaj warns that reversing the court of appeals=92 decision = will result=20 in double charging of the Authority fee by insurers and deregulation of = the=20 automobile insurance industry. These fears are unfounded. This case = stems from=20 the commissioner=92s regulation of rates rather than any trend toward=20 deregulation. The commissioner authorized insurers to recoup only the $1 = Authority fee from policyholders. Any insurer choosing to charge the fee = to=20 policyholders both within and outside of the Article 5.101 rate would be = charging double that which the commissioner permits and, as is the case = for any=20 type of impermissible double charging, would be subject to = administrative=20 penalties. See Tex. = Ins. Code =A7=20 84.021.[10]

&nbs= p;=20 Service Life & Casualty Insurance Co. v. Montemayor = demonstrates the=20 commissioner=92s willingness to confront these feared acts of double = charging.=20 See 150 S.W.3d 649 (Tex. App.=97Austin 2004, pet. denied). In=20 Montemayor, the insurer attempted to gain the commissioner=92s = approval to=20 charge a $50 policy fee in addition to its premium rate. Id. at = 650. The=20 commissioner refused to approve the fee, and an administrative law judge = found=20 the insurer had no legal authority to charge it. Id. The = commissioner=20 then signed an order agreeing with the administrative law judge, and the = district court affirmed the commissioner=92s order. Id. The = insurer=20 appealed, arguing it had authority under Article 21.35B to charge = premiums and=20 policy fees as separate items under the =93Act for the Regulation of = Credit Life=20 Insurance and Credit Accident and Health Insurance.=94 Id.=20 at 651.[11] The court of appeals, = concluding the=20 insurer implemented the fee solely to increase its revenue and profits, = agreed=20 with the commissioner and rejected the insurer=92s attempt to recoup the = fee.=20 Id. at 653. Thus, the result in Montemayor signals that = the=20 commissioner is well positioned to protect insureds from abusive and = unregulated=20 charges under his construct of Article 5.101.[12]

III

= Article 21.35B authorizes all insurers to solicit and collect both = premiums and=20 taxes. The Article 5.101 rate-making process produces auto insurance = premiums,=20 and in the process gives the commissioner the discretion to determine = whether=20 payments should be considered as part of the Article 5.101 rate (and, = thus,=20 Article 21.35B premium) or instead should be considered as another = Article=20 21.35B payment. Because the commissioner made a reasonable determination = that=20 the Authority fee should be charged directly and not as part of the = Article=20 5.101 premium, we hold that Mid-Century properly recouped the fee from = Ademaj.=20 Accordingly, we reverse the court of appeals=92 judgment and render a = take-nothing=20 judgment in favor of Mid-Century Insurance Company of Texas and Texas = Farmers=20 Insurance Company.

=20 _____________________________

=20 PAUL W. GREEN

=20 JUSTICE

OPINION DELIVERED: November 30, 2007

^[1]=20 Act of May 27, 1991, 72d Leg., R.S., ch. 242, =A7 11.17, 1991 Tex. Gen. = Laws 1063,=20 amended by Act of May 30, 1993, 73d Leg., R.S., ch. 685, =A7 = 12.49, 1993=20 Tex. Gen. Laws 2666, amended by Act of May 18, 1995, 74th Leg., = R.S., ch.=20 380, =A7 2, 1995 Tex. Gen. Laws 2928 [hereinafter Article 21.35B]. = Though Article=20 21.35B has been recodified, the parties refer to the law as it stood = when the=20 suit was filed, and for the purposes of this opinion we do the same. Act = of May=20 20, 2003, 78th Leg., R.S., ch. 1274, =A7 26, 2003 Tex. Gen. Laws 4138 = (current=20 version at Tex. Ins. = Code =A7=20 550.001).

^[2]=20 Act of May 27, 1991, 72d Leg., R.S., ch. 242, =A7 2.01, 1991 Tex. Gen. = Laws 952,=20 amended by Act of May 30, 1993, 73d Leg., R.S., ch. 685, =A7 = 6.04, 1993=20 Tex. Gen. Laws 2603, amended by Act of May 25, 1995, 74th Leg., = R.S., ch.=20 984, =A7 1, 1995 Tex. Gen. Laws 4936, amended by Act of May 25, = 1997, 75th=20 Leg., R.S., ch. 942, =A7=A7 1=962, 1997 Tex. Gen. Laws 2950, amended = by Act of=20 May 27, 1997, 75th Leg., R.S., ch. 1330, =A7 18, 1997 Tex. Gen. Laws = 5030,=20 amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1071, =A7 1, = 2001 Tex.=20 Gen. Laws 2359 [hereinafter Article 5.101]. The lawsuit, filed in 2002, = is=20 governed by the statute as it read after the 2001 amendments, and though = we note=20 that our reasoning applies to all versions of the statute, we cite the = 2001 text=20 for the remainder of this opinion. We further note that effective = December 1,=20 2004, the Legislature replaced Article 5.101 with Article 5.13-2. Act of = June 2,=20 2003, 78th Leg., R.S., ch. 206, =A7 6, 2003 Tex. Gen. Laws 925. In 2005, = the=20 Legislature repealed Article 5.13-2, effective April 1, 2007. Act of May = 24,=20 2005, 79th Leg. R.S., ch. 727, =A7 18(d), 2005 Tex. Gen. Laws = 2187.

^[3]=20 The concurrence argues that construing Article 21.35B(a) as an affirmative source of authority = renders=20 21.35B(c), which uses similar authorizing language, meaningless. ___ = S.W.3d at=20 ___. But because 21.35B(a) covers only =93application=94 and = =93issuance,=94 while=20 21.35B(c) covers =93issuance=94 and =93renewal,=94 21.35B(c) is = meaningful no matter how=20 21.35B(a) is read. See Article 21.35B(a), (c).

^[4]=20 The concurrence agrees with our conclusion that Mid-Century can recoup = the=20 Authority fee without including the fee in its Article 5.101 filing, but = rejects=20 our interpretation of Article 21.35B as an affirmative source of = authorization,=20 arguing that 21.35B cannot authorize payments. ___ S.W.3d at ___. But = under the=20 concurrence=92s interpretation, neither can Article 5.101, for all = parties=20 stipulated that the Authority fee was not charged as part of a premium = and was=20 not included in Mid-Century=92s Article 5.101 rates. Instead, the = parties agree=20 that Mid-Century charged Ademaj the fee directly. As a result, = the=20 concurrence attempts to sustain the fee recoupment with an affirmative=20 authorization from neither Article 5.101 nor Article 21.35B. To impose = this fee=20 by executive fiat violates Article 21.35B=92s =93no payment may be = solicited . . .=20 other than=94 language (even under the concurrence=92s restrictive = interpretation),=20 as well as settled Texas administrative law. See = Cont=92l Cas.=20 Co. v. Downs, 81 S.W.3d 803, 807 (Tex. 2002) (=93Construction of a = statute by=20 the agency charged with its enforcement is entitled to serious = consideration=20 only if that construction is reasonable and does not contradict the = statute's=20 plain language.=94 (emphasis added)).

^[5]=20 Article 5.101=92s applicability provisions provide the best textual = evidence and=20 support our holding today. After setting out the Article=92s general = scope in=20 section 1(a), Article 5.101 provides that =93[n]otwithstanding = Subsection(a) of=20 this section, this article does not apply to premium rates=94 for = certain=20 other insurance. Article 5.101, =A72(c) (emphasis added).

^[6]=20 The concurrence also argues that Article 5.101 requires the commissioner = to=20 consider the Authority fee, emphasizing the =93excluding only=94 = language in section=20 3(c)(4). ___ S.W.3d at ___. We agree that the = =93excluding only=94 language absolutely prohibits the commissioner=92s = consideration=20 of the section 3(o) elements. But no matter how strongly section 3(c)(4) = excludes consideration of the section 3(o) elements, whatever remains is = still=20 subject to section 3(c)'s overriding permissive term =93may.=94 Article = 5.101, =A7=20 3(c), (o). At most, the commissioner need only give =93due = consideration=94 to the=20 elements not excluded by section 3(o), a mandate that emphasizes the=20 commissioner's continuing discretion to consider some expenses but not = others.=20 Id. =A7=20 3(c).

^[7]=20 See also State v. Public Util. = Comm=92n of=20 Tex., 883 S.W.2d = 190, 196=20 (Tex. 1994) (=93[T]he contemporaneous construction of a statute by the=20 administrative agency charged with its enforcement is entitled to great=20 weight.=94); Tex. Employer=92s Ass=92n v. Holmes, 196 S.W.2d 390, = 395 (Tex.=20 1946) (=93[T]he practical interpretation of the Act by the agency = charged with the=20 duty of administering it is entitled to the highest respect from the = courts.=94);=20 Stanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944) (=93The = contemporaneous=20 construction of an act by those who are charged with the duty of its = enforcement=20 . . . is worthy of serious consideration as an aid to interpretation,=20 particularly where such construction has been sanctioned by long=20 acquiescence.=94) (quoting 39 Tex.=20 Jur. Statutes =A7 125 (1936)).

^[8]=20 Our holding here is limited, of course, to these specific circumstances: = an=20 insurer=92s charge both authorized by Article 21.35B and approved in = advance by a=20 commissioner=92s rule. While we might hold differently with respect to a = charge=20 unauthorized by Article 21.35B and/or unauthorized by the commissioner, = we need=20 not address those questions here.

^[9]=20 While we did say in American = Alliance=20 that =93the basic principles of rate-making in fire insurance=94 are not = substantively different =93from those in =91the ordinary system of = utility=20 rate-making,=92=94 the very next sentence is pertinent as well. = See 126=20 S.W.2d at 744. =93Some elements affecting the subject that = are=20 lacking in the former may be present in the latter; and vice versa.=94 = Id.=20 Houston Lighting & = Power is inapplicable to this case insofar as it = deals with=20 electric utility rate-making as opposed to automobile insurance=20 regulation. That holding was based on administrative rules = governing=20 utilities, one of which required all incurred taxes to be included in = utilities=92=20 reasonable and prudent operating expenses. See Houston Lighting & = Power, 748 S.W.2d at 441 (citing 16 Tex. Admin. Code =A7 = 23.21(b)(1)(D)).=20 There is no such rule governing automobile insurers in Texas.

^[10]=20 Again, the commissioner=92s ability to consider without = necessarily=20 including or excluding the Authority fee in all Article 5.101 rates is = critical.=20 In this case, Mid-Century did not include the Authority fee in its = Article 5.101=20 filings. Accordingly, the commissioner accounted for that payment in his = review=20 under Article 21.35B(a)(2). But if, as Ademaj and the concurrence fear, = an=20 insurer were to attempt to double charge, the commissioner=92s = flexibility would=20 allow him to adjust the Article 5.101 fees accordingly. See = Article=20 5.101, =A7 3(c)=96(h). Article 5.101 also empowers the Commissioner to = disapprove=20 such surreptitious rate-filings. Id. =A7 3(f)=96(h). We are = confident that,=20 contrary to the concurrence=92s suggestion, ___ S.W.3d at ___, courts = will=20 interpret terms like =93policy fee=94 to prevent the wrongful imposition = of the=20 section 3(o) expenses. See Article 21.35B(a); Article 5.101 =A7=20 3(o).

^[11]=20 The Act is similar to Article 5.101 in that it allows the commissioner = to set a=20 presumptive premium rate for credit life, credit accident, and health = insurance=20 and then permits credit insurers to charge premiums up to 30% above or = below the=20 presumptive premium rate. Tex. = Ins. Code=20 =A7=A7 1153.103(a), 1153.105.

^[12]=20 Although we do not adopt the Montemayor court=92s interpretation = of Article=20 21.35B, the case=92s significance as an example of the commissioner = reining in an=20 insurer=92s attempt to double charge = remains.