TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
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`NO. 03-19-00864-CV
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`Appellants, Glenn Hegar, Comptroller of Public Accounts of the State of Texas, and
`Ken Paxton, Attorney General of the State of Texas //
`Cross-Appellant, Health Care Service Corporation, A Mutual Legal Reserve Company,
`d/b/a Blue Cross and Blue Shield of Texas
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`v.
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`Appellee, Health Care Service Corporation, A Mutual Legal Reserve Company,
`d/b/a Blue Cross and Blue Shield of Texas //
`Cross-Appellees, Glenn Hegar, Comptroller of Public Accounts of the State of Texas, and
`Ken Paxton, Attorney General of the State of Texas
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`FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY
`NO. D-1-GN-18-003105, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
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`M E M O R A N D U M O P I N I O N
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`Appellee and cross-appellant Health Care Service Corporation, A Mutual Legal
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`Reserve Company, d/b/a Blue Cross and Blue Shield of Texas (BCBS), sells “stop-loss” policies
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`to businesses that self-insure, meaning the businesses provide their employees with health
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`insurance by directly funding the employees’ healthcare benefits. The stop-loss policies in
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`question here limit the self-insured employer’s liability by providing coverage for employee-
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`health-benefit costs that exceed a certain amount. In other words, a stop-loss policy caps the
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`employer’s healthcare costs at a set level, insuring the employer against any unusually high
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`healthcare costs in a particular year. Appellant and cross-appellee Glenn Hegar, Comptroller of
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`Public Accounts of the State of Texas, conducted an audit and determined that BCBS owed
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`$3,005,270.13 in premium taxes and $68,691.89 in maintenance taxes on the stop-loss policies it
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`had sold to self-insured employers in 2012. See Tex. Ins. Code §§ 222.002, 257.003.
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`BCBS paid the taxes under protest and then filed the underlying taxpayer suit
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`against the Comptroller and Ken Paxton, Attorney General of the State of Texas (collectively,
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`the Comptroller). The Comptroller filed a counterclaim arguing that if the stop-loss policies are
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`not health or accident insurance, BCBS was not authorized to write the policies and was thus
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`liable for damages. The parties filed competing motions for summary judgment, the trial court
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`granted BCBS’s motion and denied the Comptroller’s, and the Comptroller then nonsuited his
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`counterclaim. The question we must decide in this appeal is whether the premiums BCBS
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`collected on its stop-loss policies were from a contract or policy covering risks on individuals or
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`groups and arising from the business of health insurance so as to be subject to premium taxes,
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`see id. § 222.002, or from writing health insurance so as to be subject to maintenance taxes, see
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`id. § 257.003. Alternatively, the Comptroller argues that if BCBS would otherwise be entitled to
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`a refund, it submitted insufficient evidence to support its asserted refund calculations. In its
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`cross-appeal, BCBS argues that in granting summary judgment, the trial court also granted
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`summary judgment on BCBS’s sought amount of refund. We affirm the trial court’s order
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`granting BCBS’s motion for summary judgment and need not address BCBS’s cross-appeal.
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`STANDARD OF REVIEW
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`When, as here, both parties move for summary judgment and the court grants one
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`motion and denies the other, we conduct a de novo review, considering the evidence presented,
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`determining all questions presented, and, if we determine that the trial court erred, rendering the
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`judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d
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`656, 661 (Tex. 2005). The construction of a statute is an issue we review de novo. Railroad
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`Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011).
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`Our primary objective when construing a statute is to determine and give effect to the
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`Legislature’s intent. Texas Dep’t of Ins. v. American Nat’l Ins. Co., 410 S.W.3d 843, 853 (Tex.
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`2012). We begin with the words chosen by the Legislature and, if the statute is clear and
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`unambiguous, apply the common meaning of the statutory language unless a different meaning is
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`apparent from context or the plain meaning leads to absurd results. See id. (quoting First Am.
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`Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)); Marks v. St. Luke’s Episcopal Hosp.,
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`319 S.W.3d 658, 663 (Tex. 2010). If a statute is ambiguous, we consider the construction
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`applied by the administrative agency charged with its enforcement, giving that construction
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`serious consideration, as long as that construction is reasonable and does not contradict the plain
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`statutory language. American Nat’l Ins., 410 S.W.3d at 853 (quoting Tarrant Appraisal Dist. v.
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`Moore, 845 S.W.2d 820, 823 (Tex. 1993)).
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`However, “agency deference does not displace strict construction” when we are
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`asked whether a tax statute applies. TracFone Wireless, Inc. v. Commission on State Emergency
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`Commc’ns, 397 S.W.3d 173, 182-83 (Tex. 2013). Instead, we apply “an ancient pro-taxpayer
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`presumption: The reach of an ambiguous tax statute must be construed ‘strictly against the taxing
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`authority and liberally for the taxpayer.’” Id. at 182 (quoting Morris v. Houston Indep. Sch.
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`Dist., 388 S.W.3d 310, 313 (Tex. 2012) (per curiam)). “In other words, a tax must apply
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`unequivocally.” Id. Ambiguous or imprecise tax statutes “must be interpreted ‘most strongly
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`against the government, and in favor of the citizen,’” and “we will not extend the reach of an
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`ambiguous tax by implication, nor permit tax collectors to stretch the scope of taxation beyond
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`its clear bounds.” Id. at 183 (quoting Gould v. Gould, 245 U.S. 151, 153 (1917)).
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`DISCUSSION
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`Section 222.002 provides in relevant part that an annual tax is imposed on “each
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`insurer that receives gross premiums subject to taxation under this section,” and that in
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`determining its taxable gross premiums, the insurer shall include all premiums received from
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`“any kind of . . . insurance policy or contract covering risks on individuals or groups located in
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`this state and arising from . . . the business of” health insurance. Tex. Ins. Code § 222.002(a),
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`(b). Section 257.003 imposes maintenance taxes on, as relevant to this case, “gross premiums
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`collected from writing life, health, and accident insurance in this state.” Id. § 257.003(a). The
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`Comptroller insists that the premiums BCBS collected on its stop-loss policies are subject to
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`premium or maintenance taxes.
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`BCBS has a certificate of authority, issued by the Texas Department of Insurance
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`(TDI), allowing it to transact “the business of Accident; Health; Reinsurance on all lines
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`authorized to be written on a direct basis; and the authority to transact business as a Health
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`Maintenance Organization offering Basic Health Care Service Plans.” The Comptroller argues
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`that the fact that the certificate does not list stop-loss as a separate category, along with BCBS’s
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`assertions in its summary judgment evidence that TDI does not offer separate certificates of
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`authority for stop-loss insurance and instead allows for the issuance of such policies “under the
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`category of health insurance,” must mean that BCBS’s issuance of stop-loss policies falls within
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`“the business of health insurance.” The Comptroller further notes that BCBS lists stop-loss
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`insurance and premiums on its Annual Statements under “Health Business” and sought an
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`exemption from certain insurance-form requirements that apply only to “group and individual
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`accident and/or health policies,” arguing that those facts show that BCBS itself considers stop-
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`loss policies to be group policies arising from the business of health insurance. Finally, the
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`Comptroller contends that we “should interpret the premium tax statutes in the Insurance Code to
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`avoid gaps in coverage.”
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`DOES THE PREMIUM TAX APPLY?
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`We begin by asking whether the premium tax, which is assessed against
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`premiums received from insurance that covers “risks on individuals or groups” and that arise
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`from the business of health insurance, applies to the stop-loss policies in question. Id.
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`§ 222.002(b).1 The Comptroller argues that the stop-loss policies (1) should be viewed and
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`treated as health-insurance policies that cover risks on groups, consistent with TDI’s treatment of
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`such policies,2 and (2) arise from the business of health insurance.
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`Chapter 1701 of the insurance code, titled “Policy Forms,” governs the forms that
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`insurers may use in transacting their business, explaining how the forms are approved or
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`disapproved and providing remedies against insurers who use misleading or noncomplying
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`1 Stop-loss policies are mentioned in section 222.002 only in a provision explaining that
`an insurer need not include in its taxable gross premiums amounts it receives for stop-loss
`policies issued to health maintenance organizations. Tex. Ins. Code § 222.002(d). Such policies
`are to be “considered reinsurance,” and reinsurance premiums are excluded from taxable gross
`premiums. Id. § 222.002(c)(3), (d).
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`2 The Comptroller does not argue that “individuals” should be read to encompass
`companies or corporate entities, and we note that the word “individual” generally refers to a
`human being, as opposed to “person,” which in legal usage often includes corporations or other
`such entities. See, e.g., Colorado County v. Staff, 510 S.W.3d 435, 449 n.59 (Tex. 2017); First
`Cash, Ltd. v. JQ-Parkdale, LLC, 538 S.W.3d 189, 196 (Tex. App.—Corpus Christi–Edinburg
`Jan. 11 2018, no pet.); Global Evangelism Educ. Ministries, Inc. v. Caddell, No. 04-08-00686-
`CV, 2009 WL 398255, at *1 (Tex. App.—San Antonio Feb. 18, 2009, no pet.) (mem. op.); City
`of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360, 370 (Tex. App.—Fort Worth 2009, no pet.).
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`forms. See generally id. §§ 1701.001-.151. A form that is subject to chapter 1701 must be filed
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`with and approved by TDI, id. § 1701.051, and TDI is authorized to exempt certain documents
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`from the chapter’s requirements, id. § 1701.005(b). Section 1701.002, “Applicability of Chapter
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`to Forms of Certain Documents,” provides that chapter 1701 applies to certain enumerated
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`documents, including “a policy, contract, or certificate” of “accident or health insurance,
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`including group accident or health insurance.” Id. § 1701.002(1)(A).
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`Acting under its chapter 1701 authority, TDI promulgated a rule requiring “[a]ll
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`life and accident and sickness policy forms and annuity contract forms intended for use in this
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`state, including application forms, rider or endorsement forms not specifically exempted by these
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`sections,” to be approved before use. 28 Tex. Admin. Code § 3.4002 (2020) (Tex. Dep’t of Ins.,
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`All Forms To Be Filed For Review Unless Specifically Exempted). Another rule exempts from
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`review and approval “group and individual accident and/or health policies, contracts, certificates,
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`applications, enrollment forms, riders, amendments, endorsements, and related forms (including
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`but not limited to outlines of coverage, notices, rates, and conditional receipts) applicable
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`thereto,” that provide certain coverages, including “group stop loss/excess loss policies
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`containing an attachment point of $5,000 or more.”3 Id. § 3.4004(e)(2)(J) (Tex. Dep’t of Ins.,
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`Exempt Forms).
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`The Comptroller asserts that those agency rules establish that TDI “plainly
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`considers stop-loss policies to be ‘group and individual accident and/or health policies.’”
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`Additionally, the Comptroller notes, BCBS sought and obtained for its stop-loss policy forms an
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`3 An “attachment point” is the threshold to which a self-insured employer’s healthcare
`costs must rise before the stop-loss policy will reimburse the employer for further costs.
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`exemption from further review that “applies only to ‘group and individual accident and/or health
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`policies,’” thus confirming that the policies arose from the business of health insurance.
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`The Comptroller also points to the Texas Supreme Court’s decision in American
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`National for support in categorizing stop-loss as health insurance subject to the premium tax.
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`However, American National was not deciding what stop-loss insurance was; it was considering
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`whether TDI could regulate stop-loss insurance at all, more specifically, whether stop-loss
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`insurance sold to self-insured employers was “direct health insurance”—and thus subject to
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`regulation by TDI and the imposition of an assessment paid to the now-abolished Texas Health
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`Insurance Risk Pool—or was instead “reinsurance,” which is not regulated by the state and was
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`not subject to an assessment. 410 S.W.3d at 845. The court discussed the difference between
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`reinsurance and direct insurance, noting that self-insured employers “are clearly not insurance
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`companies,” although they “perform a similar service.” Id. at 848. The court further observed
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`that TDI had for years categorized stop-loss coverage as direct insurance subject to assessment
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`for the risk pool under former article 3.77, which defined an “insurer” subject to an assessment
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`as “[a]ny entity that provides health insurance in this state, including stop-loss or excess loss
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`insurance.” Id. at 850 (quoting former Tex. Ins. Code art. 3.77, § 13(a), repealed by Act of June
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`21, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 3611, 4138). The court
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`explained that TDI, as the agency charged with enforcement of the insurance code, had
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`“concluded that stop-loss insurance purchased by a plan does not involve two insurers and is
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`therefore not reinsurance. It is instead direct insurance in the nature of health insurance because
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`the stop-loss policies are purchased by the plans ultimately to cover claims associated with their
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`health-care expenses.” Id. at 855. Because the agency’s interpretation was reasonable, formally
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`promulgated, and not expressly contradicted by the insurance code, the court deferred to TDI’s
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`construction and held that stop-loss insurance was direct insurance subject to TDI regulation. Id.
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`First, we note that article 3.77, which defined “insurer” to include an insurer that
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`issued stop-loss insurance, has been repealed.4 Further, American National asked whether stop-
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`loss policies were subject to state regulation, an inquiry that could appropriately consider and
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`defer to the agency’s interpretation, rather than whether premiums on such policies could be
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`subject to tax, a question that must be strictly construed in favor of the taxpayer. Compare id. at
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`845, with TracFone Wireless, 397 S.W.3d at 182. Indeed, all of the Comptroller’s arguments as
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`to whether stop-loss policies cover risks on groups require that we defer to TDI’s or the
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`Comptroller’s interpretation or infer a conclusion based on TDI’s administrative rules or on
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`filings BCBS made with TDI to comply with such rules. In a tax case, however, we cannot rely
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`on such information and instead must look at the plain statutory language and construe it strictly
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`in favor of BCBS, finding in favor of taxation only if the tax applies “unequivocally.” See
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`TracFone Wireless, 397 S.W.3d at 182.
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`4 Article 3.77 and the Texas Health Insurance Risk Pool itself have been abolished. See
`Act of June 21, 2003, 78th Leg., R.S., ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 3611, 4138;
`Act of May 21, 2013, 83d Leg., R.S., ch. 615, 2013 Tex. Gen. Laws 1640, 1640-42. The
`insurance code currently mentions stop-loss insurance a total of sixteen times, such as in
`allowing the administrator of the Healthy Texas Small Employer Premium Stabilization Fund to
`“purchase stop-loss insurance or reinsurance” as deemed necessary, Tex. Ins. Code § 1508.261;
`providing certain stop-loss requirements for multiple employer welfare arrangements, id.
`§§ 846.053(h), .153, .156; or allowing TDI’s commissioner to obtain stop-loss coverage for risks
`incurred by the Temporary Health Insurance Risk Pool, id. § 1510.005(b). In the context of
`health-insurance contracts with municipalities, the insurance code defines an “insurer” as “an
`insurance company, including a company providing stop-loss or excess loss insurance,” and bars
`an insurer that “provides stop-loss or other insurance coverage for health benefits” to
`municipalities from excluding certain individuals. Id. §§ 1550.051, .053. On the other hand, in
`the portions of the code governing managed care, multiple employer welfare arrangements,
`healthcare quality insurance, and the Health Insurance Portability and Availability Act, stop-loss
` Id.
`insurance is specifically excluded from the definition of “health benefit plan.”
`§§ 846.001(3)(M), 847.003(2)(J), 1274.001(2)(O), 1501.002(5)(M).
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`Black’s defines a “group policy” as an “insurance policy that covers multiple
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`insureds under a group-insurance plan.” Group Policy, Black’s Law Dictionary (11th ed. 2019).
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`The insurance code bears that out. For instance, in the chapter pertaining to “Group and Blanket
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`Health Insurance,” “group accident and health insurance” is defined as “accident, health, or
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`accident and health insurance covering a group” of individuals, Tex. Ins. Code § 1251.001(2),
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`such as a policy obtained by an employer for its employees or an association for its members, id.
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`§§ 1251.051-.056.5 And section 1252.003 states that “health benefit plan coverage is provided
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`on a group-type basis” if the plan provides coverage under an insurance policy to a class of
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`employees or members of an association, determined by the individuals’ employment or
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`membership; coverage is not available to the general public and can only be obtained through the
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`covered individual’s employment or membership status; the plan is sponsored by the employer
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`or association; and premiums are paid to the insurer on an aggregate or bulk-payment basis. Id.
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`§ 1252.003(a). Thus, the insurance code, when it discusses “group” coverage or policies in the
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`relevant context, refers to health insurance provided to individual members of a group, whether
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`through their employment or membership in various kinds of associations.
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`Noting that BCBS’s forms use language like “employer group name,” the
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`Comptroller asserts that stop-loss insurance is insuring risk on groups. We disagree. Stop-loss
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`insurance touches on and involves a group policy but does not cover risks to the individual
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`members of the group—in this case, the self-insured employer’s employees—and is not an
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`individual accident and health insurance policy. Instead, it covers the employer’s risk, providing
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`5 Chapter 1201, titled “Accident and Health Insurance,” on the other hand, concerns
`individual policies and defines an “accident and health insurance policy” as “any policy or
`contract that provides insurance against loss resulting from” sickness or accidental bodily injury
`or death, specifying that the chapter applies “only to an individual accident and health insurance
`policy.” Id. §§ 1201.001(1), .003(a), (b).
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`a cap for the employer’s costs in paying for its employees’ medical care. In other words, stop-
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`loss insurance insures the employer against the excess risk the employer assumes when it takes
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`responsibility for its group members’ medical costs—it does not insure the group of members
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`against individual medical costs or losses. Indeed, the Comptroller has taken this very position
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`in administrative proceedings, asserting that a “stop loss policy’s coverage is primarily for the
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`employer/trust that is seeking to limit its own financial risk and not to obtain health insurance,
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`which is provided under a separate policy.” Tex. Comptroller of Pub. Accts., Comptroller
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`Docket Nos. 109,354-355, 2016 WL 3469269, at *6 (Mar. 8, 2016). The Comptroller’s staff
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`noted that a stop-loss policy protects the employer from economic loss—the contract is between
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`the insurer and the employer, not the employee group members; plan participants rely on their
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`employer, not the insurer, for benefit payments; and the insurer has no direct contractual
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`obligation to the participants. Id. (quoting White Paper: “Stop Loss Insurance, Self Funding &
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`the Affordable Care Act,” National Association of Insurance Commissioners (2015): 14-38,
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`http://www.naic.org/documents/PRC-ZS-15-02_Vol2.pdf). The Comptroller agreed that “stop-
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`loss policies should not be considered health insurance,” pointing to case law that supported
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`distinguishing between stop-loss insurance and the underlying group health policies to which
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`they are anchored and noting that in American National, the Texas Supreme Court held that the
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`stop-loss policies were direct insurance “in the nature of direct health insurance” but not that the
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`policies were health insurance policies. Id. at *7-8 (quoting 410 S.W.3d at 854-55).
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`The Comptroller also urges us to interpret the statute to “avoid gaps in coverage,”
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`noting that throughout much of the insurance code, the legislature used expansive language in
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`imposing premium taxes. See, e.g., Tex. Ins. Code §§ 221.002(b), (c) (property and casualty
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`insurance premium tax assessed against premiums received “from any kind of insurance written
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`by the insurer on each kind of property or risk located in this state,” except for certain
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`enumerated premiums, including those received “from the business of . . . health and accident
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`insurance”), 226.003(b), (g) (unauthorized insurance premium tax assessed against “any
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`premium for insurance on a subject resident, located, or to be performed in this state,” except for
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`“premiums on a contract of insurance written by an insurer that holds a certificate of authority in
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`this state and that is authorized to write the contract”). However, as the supreme court has
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`explained, “Tax policy gap-filling—specifically, deciding who is taxed—is best left to
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`legislators, not courts or agencies.” TracFone Wireless, 397 S.W.3d at 176. And we cannot
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`ignore the language used in this particular statute, which rather than simply providing in broad
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`terms that the tax should be assessed against any premiums from policies arising from the
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`business of health insurance, adds a narrowing provision limiting the tax to premiums from
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`insurance policies that “cover[] risks on individuals or groups.” Tex. Ins. Code § 222.002(b).
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`After applying common meanings of the statutory language within the context of
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`the insurance code, we strictly construe the language of section 222.002(b) against taxation to
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`conclude that a stop-loss policy issued to a self-insured employer is not an “insurance policy or
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`contract covering risks on individuals or groups.” See id. § 222.002(b). Because we so hold, we
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`need not consider whether the stop-loss policies arise from the business of health insurance—the
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`other requirement for a policy to be subject to the premium tax. We overrule the Comptroller’s
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`first issue on appeal.
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`DOES THE MAINTENANCE TAX APPLY?
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`As for the maintenance tax, section 257.003 imposes the tax on “gross premiums
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`collected from writing life, health, and accident insurance in this state,” except for exceptions not
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`applicable here. Id. § 257.003(a)(1). The Comptroller argues that the stop-loss premiums should
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`be considered to be “from writing health insurance” and that such an interpretation promotes the
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`purpose of the maintenance tax—”to pay the expenses during the succeeding year of regulating
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`life, health, and accident insurers.” Id. § 257.003(b). He notes that every other type of insurance
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`is taxed to pay for these costs and that it would be unfair for stop-loss policies to go without
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`paying their fair share of maintenance taxes. However, as explained earlier, we cannot apply a
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`“gap-filling” interpretation that is not supported by the plain language of the statute, which we
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`strictly construe in favor of the taxpayer. TracFone Wireless, 397 S.W.3d at 176, 183.
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`The Comptroller also cites the chapter 1201 definition of “accident and health
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`insurance policy” as “any policy or contract that provides insurance against loss resulting from”
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`sickness or accidental bodily injury or death. Id. § 1201.001(1). Because stop-loss policies
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`insure self-insured employers against loss resulting from abnormally high healthcare costs, the
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`Comptroller insists, those policies should be considered health insurance under the chapter 1201
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`definition. However, chapter 1201, which is intended to standardize and simplify “terms and
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`coverages
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`in
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`individual accident and health
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`insurance policies” and promote public
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`understanding of insurance coverages, id. § 1201.002, applies to “an accident and health
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`insurance policy” and, more specifically, “only to an individual accident and health insurance
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`policy,” id. § 1201.003(a), (b).6 Stop-loss policies do not provide health insurance to individual
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`insureds as contemplated by chapter 1201 and, thus, the chapter 1201 definition of “accident and
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`health insurance policy” cannot be read as applying to the stop-loss policies at issue in this case.
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`6 To that end, chapter 1201 imposes various requirements on what health insurance
`policies must cover, what such policies must state, and who may be covered. See generally id.
`§§ 1201.001-.702.
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`Similarly, stop-loss policies do not fit within the definition of group health policies discussed
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`earlier and found in chapter 1251. See generally id. §§ 1251.001-.451.
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`It is true that BCBS is a health-insurance company and, therefore, many of the
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`policies it sells will be subject to the maintenance tax. However, not every policy it sells is
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`necessarily subject to the tax—only policies that fit within section 257.003. It would strain the
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`plain statutory language of section 257.003 to conclude that stop-loss premiums, which are
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`collected in exchange for insuring an employer’s risk arising out of its employees’ healthcare
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`costs, are “collected from writing” health insurance. Indeed, the stop-loss policies in question
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`protect an employer from risk incurred from deciding to pay its employees’ healthcare costs
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`rather than obtain health insurance. In other words, BCBS sells the policies to employers who do
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`not ask an insurer to write health insurance. The stop-loss premiums thus are not subject to the
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`section 257.003 maintenance tax. We overrule the Comptroller’s second issue on appeal.
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`ISSUES RELATED TO THE REFUND AMOUNT
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`The Comptroller’s third issue and BCBS’s cross-appeal concern the amount of the
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`refund and the sufficiency of the evidence produced by BCBS to establish that amount. The
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`Comptroller argues that even if BCBS is entitled to a refund, it did not submit sufficient evidence
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`to support its asserted refund amount. BCBS explains that it filed its notice of appeal “to provide
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`the initial clarification to this Court, in that ‘all parties and claims have been disposed of,’” and
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`that it “seeks clarification that the summary judgment addresses the refund amount proven in” its
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`motion for summary judgment. It further argues that it produced sufficient evidence to support
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`its requested refund and that in ordering that BCBS’s “Motion for Summary Judgment is
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`GRANTED and [the Comptroller’s] Motion for Summary Judgment is DENIED,” the trial court
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`effectively ordered that BCBS was entitled to a refund totaling $3,072,232.17, as requested in
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`BCBS’s motion for summary judgment and accompanying evidence.
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`A judgment is final “if it disposes of all pending parties and claims in the record.”
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`Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final order need not have a
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`particular form or language, and instead we determine whether an order is final from its language
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`and, if necessary, the record in the case. Id.; see Bella Palma, LLC v. Young, 601 S.W.3d 799,
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`801 (Tex. 2020) (“a clear and unequivocal statement of finality must be ‘given effect’ even if
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`review of the record would undermine finality”). If the judgment or order is vague, the appellate
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`record may be considered in determining finality. See M.O. Dental Lab v. Rape, 139 S.W.3d
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`671, 674-75 (Tex. 2004) (citing Lehmann, 39 S.W.3d at 206). Thus, there must be some “clear
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`indication that the trial court intended the order to completely dispose of the entire case.”
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`Lehmann, 39 S.W.3d at 205. The certainty of a final judgment “is not dissipated” if a trial-court
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`clerk must take some additional step determinable by ministerial act before a writ of execution
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`may be produced. International Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).
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`In its motion for summary judgment, BCBS concluded, “This court should grant
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`BCBS’s motion for summary judgment and rule that the premiums received from the sale of
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`stop-loss insurance are exempt from premium and maintenance taxes, and grant BCBS a refund
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`of the taxes at issue.” BCBS stated that the “[a]mount of tax paid on stop-loss premiums is
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`$3,072,232.17” and referenced an affidavit by Alfred Trotter, BCBS’s Director of Corporate
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`Tax, who averred that BCBS sought a total refund of $3,072,232.17, explaining his calculations
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`in relevant part as follows:
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`On December 30, 2016, BCBS filed with the [Comptroller] an amended Texas
`Annual Insurance Premium Tax Report, the Computation of Non-Taxable
`Premiums form, The Texas Annual Maintenance, Assessment and Retaliatory
`Report, the Retaliatory Worksheet, and a reconciliation of the change from the
`original filed returns for tax year 2012.
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`The amended returns reflect a request for refund of overpaid taxes based on the
`inclusion, for tax purposes, of BCBS’s contributions for its employee benefits
`plan, as well as premiums on stop-loss insurance insuring legal entities.
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`The amendments to the 2012 returns resulted in refund requests of $3,005,270.13
`in premium taxes and $68,691.89 in maintenance taxes for a combined refund of
`$3,073,962.02.
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`The Comptroller allowed an adjustment based on the contributions for the
`employee benefit plan but disallowed the adjustment for the stop-loss premiums.
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`The disallowed refunds total $3,072,232.17.
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`BCBS’s Texas stop-loss premiums for calendar year 2012 totaled $171,633,082.
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`BCBS’s Corporate Tax Department calculated the tax refund due.
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`The starting point for the reporting of 2012 tax year premiums for tax purposes
`began with the premium reported in the Annual Statement filed with the National
`Association of Insurance Commissioners (“NAIC”).
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`Premiums received from group policies and individuals are allocated to Texas
`based on the residence of each subscriber. . . . The stop-loss premiums were
`allocated to Texas on this same basis although the insured on such policies were
`not the subscribers but instead the employee benefit plan sponsors, with a situs at
`the headquarters of each employer.
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`After the filing and payment of taxes, it was determined that the Texas insurance
`tax statutes no longer include stop-loss related premiums in the tax base. To
`amend the tax returns and request a refund of overpaid taxes, the premiums used
`on the original filing had to be adjusted.
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`To determine the situs for each insured entity for each stop-loss policy, the
`address of the plan sponsor was identified, and the stop-loss ledger account was
`adjusted to reflect a premium amount for stop-loss premiums for Texas tax
`purposes. Premiums received under stop-loss contracts and originally included as
`Texas accident & health premiums for tax purposes were the basis for the 2012
`refund request.
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`In his motion for summary judgment, arguing that the premium and maintenance
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`taxes apply, the Comptroller stated that if the court held that the taxes did not apply, “the parties
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`will litigate the refund amount.” The trial court held a hearing on the motions for summary
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`judgment in January 2019 and in March signed an order stating, “IT IS THEREFORE
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`ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Motion for Summary Judgment is
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`GRANTED and Defendants’ Motion for Summary Judgment is DENIED. This is not a final
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`judgment, because Defendants’ counterclaim remains pending.”
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`BCBS next filed a motion to dismiss the Comptroller’s counterclaim for lack of
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`jurisdiction, the parties filed several