By Clemons                                             H.B. No. 362
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to reports of timeshare expenses charged and collected by
    1-3  managing entities of timeshare properties; providing a civil
    1-4  penalty.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 221.002, Property Code, is amended by
    1-7  amending Subdivision (23) and adding Subdivisions (32), (33), and
    1-8  (34) to read as follows:
    1-9              (23)  "Timeshare expenses" means expenditures, <fees,>
   1-10  charges, or liabilities for the operation of a timeshare property
   1-11  or timeshare system, including any allocations to maintain reserves
   1-12  but excluding any purchase money payable for timeshare interests:
   1-13                    (A)  incurred in connection with a timeshare
   1-14  interest by or on behalf of the owner of all timeshare interests in
   1-15  a timeshare property; and
   1-16                    (B)  imposed on timeshare interests by the
   1-17  managing entity.
   1-18              (32)  "Timeshare fees" means an amount assessed against
   1-19  or collected from an owner by a managing entity in a fiscal year,
   1-20  without regard to the frequency with which the amount is assessed
   1-21  or collected.
   1-22              (33)  "Owner" means a person who holds a legal or
   1-23  equitable interest in a timeshare interest in timeshare property
   1-24  subject to the requirements of this Act.
    2-1              (34)  "Timeshare system" means two or more timeshare
    2-2  properties located in separate geographic areas that are:
    2-3                    (A)  managed by the same managing entity; and
    2-4                    (B)  subject to a written arrangement or
    2-5  agreement whereby an owner of a timeshare interest in any one of
    2-6  the timeshare properties may use a timeshare unit and the amenities
    2-7  of any of the other timeshare properties as provided in the project
    2-8  instruments.
    2-9        SECTION 2.  Section 221.011(b), Property Code, is amended to
   2-10  read as follows:
   2-11        (b)  The declaration made under this section must include:
   2-12              (1)  a legal description of the timeshare property,
   2-13  including a ground plan indicating the location of each existing or
   2-14  proposed building to be constructed on the timeshare property;
   2-15              (2)  a description of each existing or proposed
   2-16  timeshare unit, including the location and square footage of each
   2-17  unit and an interior floor plan of each existing or proposed
   2-18  building;
   2-19              (3)  a description of the amenities furnished or to be
   2-20  furnished to the purchaser;
   2-21              (4)  a statement of the fractional or percentage part
   2-22  that each timeshare interest bears to the entire timeshare regime;
   2-23  <and>
   2-24              (5)  if applicable, a statement that the timeshare
   2-25  property is part of a timeshare system; and
   2-26              (6)  any additional provisions that are consistent with
   2-27  this section.
    3-1        SECTION 3.  Section 221.032(b), Property Code, is amended to
    3-2  read as follows:
    3-3        (b)  The timeshare disclosure statement must include:
    3-4              (1)  the name and address of the developer and the name
    3-5  and specific location of the timeshare property;
    3-6              (2)  a description of the accommodations, amenities,
    3-7  timeshare property, and any project or development within which the
    3-8  timeshare property is located or of which it is a part; the total
    3-9  number of timeshare units in the timeshare property and whether and
   3-10  under what circumstances that number may be increased or decreased;
   3-11  and, if a timeshare interest includes amenities not yet in
   3-12  existence, the commencement and completion schedule of the proposed
   3-13  amenities;
   3-14              (3)  a description of the timeshare interests currently
   3-15  available for disposition and, if applicable, the types and number
   3-16  of units available;
   3-17              (4)  a statement that a council of purchasers exists or
   3-18  is expected to be created or that such a council does not exist and
   3-19  is not expected to be created and, if such a council exists or is
   3-20  reasonably contemplated, a description of its powers and
   3-21  responsibilities;
   3-22              (5)  the name and principal address of the managing
   3-23  entity and a description of the procedures, if any, for altering
   3-24  the powers and responsibilities of the managing entity and for
   3-25  removing or replacing it;
   3-26              (6)  a complete budget for the operation of the
   3-27  timeshare property for a period of one year after the first
    4-1  disposition of a timeshare interest in the property, and
    4-2  thereafter, the current operating budget, which operating budget
    4-3  must include:
    4-4                    (A)  the total amount included as a reserve for
    4-5  the maintenance of the timeshare property and for the repair or
    4-6  replacement of personal property or fixtures;
    4-7                    (B)  the total amount of any other reserve and
    4-8  the purpose of the reserve;
    4-9                    (C)  the projected timeshare liability expressed
   4-10  by categories of expenditure for all timeshare interests;
   4-11                    (D)  the timeshare liability projected by
   4-12  categories of expenditures for each timeshare interest;
   4-13                    (E)  the name and address of the person who
   4-14  prepared the operating budget; and
   4-15                    (F)  the assumptions on which the operating
   4-16  budget is based;
   4-17              (7)  a description of the nature and estimated amount
   4-18  of any timeshare liability that may in the future be assessed and
   4-19  the method and formula for assessing the timeshare liability;
   4-20              (8)  a description of any service that the developer or
   4-21  person acting on his behalf provides or expense that is paid that
   4-22  reasonably may be expected to become a timeshare liability, and the
   4-23  projected timeshare liability attributable to that service or
   4-24  expense;
   4-25              (9)  a description of the existing or proposed
   4-26  amenities of the timeshare property and, if the amenities are
   4-27  proposed or not yet complete or fully functional, a schedule for
    5-1  the projected commencement, completion, and availability of those
    5-2  amenities;
    5-3              (10)  a description and amount of any current or
    5-4  expected dues, assessments, fees, or charges to be paid by
    5-5  purchasers for the use of accommodations or amenities or for any
    5-6  other purpose;
    5-7              (11)  a description of any unsatisfied final judgment
    5-8  against the developer, seller, managing entity, or exchange company
    5-9  with which the developer is under contract, but not including any
   5-10  individual sales agent or representative who offers a timeshare
   5-11  interest;
   5-12              (12)  a description and status of any pending lawsuit
   5-13  or administrative action of which the developer has actual
   5-14  knowledge that may materially affect a timeshare interest;
   5-15              (13)  a description and amount of insurance coverage
   5-16  provided for the protection of the purchaser;
   5-17              (14)  the extent to which a timeshare interest may
   5-18  become subject to a tax lien or other lien arising out of claims
   5-19  against purchasers of different timeshare interests;
   5-20              (15)  a description of those matters required by
   5-21  Section 201.041;
   5-22              (16)  a statement disclosing any right of first refusal
   5-23  or other restraint on the transfer of all or any portion of a
   5-24  timeshare interest;
   5-25              (17)  a statement disclosing that any deposit made in
   5-26  connection with the purchase of a timeshare interest will be held
   5-27  in an escrow account until expiration of any right to cancel the
    6-1  contract or any later time specified in the contract and will be
    6-2  returned to the purchaser if he elects to exercise his right of
    6-3  cancellation; <and>
    6-4              (18)  if applicable, a statement that the timeshare
    6-5  property is part of a timeshare system and that timeshare fees
    6-6  collected from the owners may be placed in a common account with
    6-7  the timeshare fees collected from the owners of other timeshare
    6-8  properties participating in the timeshare system; and
    6-9              (19)  any other material circumstances concerning a
   6-10  timeshare interest.
   6-11        SECTION 4.  Section 221.041, Property Code, is amended to
   6-12  reads as follows:
   6-13        Sec. 221.041.  Purchaser's Right to Cancel.  (a)  A purchaser
   6-14  may cancel a contract to purchase a timeshare interest before the
   6-15  sixth day after the date the contract is signed.
   6-16        (b)  If a purchaser does not receive a copy of the contract
   6-17  at the time the contract is signed, the purchaser may cancel the
   6-18  contract to purchase the timeshare interest before the sixth day
   6-19  after the date the contract is received by the purchaser.
   6-20        (c)  A purchaser may not waive his right of cancellation
   6-21  under this section.  A contract containing a waiver is voidable by
   6-22  the purchaser.
   6-23        SECTION 5.  Section 221.043, Property Code, is amended to
   6-24  read as follows:
   6-25        Sec. 221.043.  Contract Requirements.  (a)  Attached to each
   6-26  contract shall be a separate page identified as Exhibit A.  Exhibit
   6-27  A <The following statement> shall be provided to each purchaser at
    7-1  the time the contract is signed and<.  The statement shall be on a
    7-2  separate page and attached to the contract as Exhibit A.  The
    7-3  statement> shall contain the following information.  Subdivisions
    7-4  (1) and (3) shall be provided in the exact language set forth in
    7-5  this section <language> with the seller's name and address, the
    7-6  date of the last day of the fiscal year, and the address of the
    7-7  managing entity inserted where indicated:
    7-8              (1)  "PURCHASER'S RIGHT TO CANCEL.
    7-9                    "(A)  BY SIGNING THIS CONTRACT YOU ARE INCURRING
   7-10  AN OBLIGATION TO PURCHASE A TIMESHARE INTEREST.  YOU MAY, HOWEVER,
   7-11  CANCEL THIS CONTRACT WITHOUT PENALTY OR OBLIGATION BEFORE THE SIXTH
   7-12  DAY AFTER THE DATE YOU SIGN THE CONTRACT.  IF YOU DO NOT RECEIVE A
   7-13  COPY OF THE CONTRACT AT THE TIME THE CONTRACT IS SIGNED, YOU MAY
   7-14  CANCEL THIS CONTRACT WITHOUT PENALTY OR OBLIGATION BEFORE THE SIXTH
   7-15  DAY AFTER THE DATE YOU RECEIVE A COPY OF THE CONTRACT.
   7-16                    "(B)  IF YOU DECIDE TO CANCEL THIS CONTRACT, YOU
   7-17  MAY DO SO BY EITHER HAND-DELIVERING NOTICE OF CANCELLATION TO THE
   7-18  SELLER OR BY MAILING NOTICE BY PREPAID UNITED STATES MAIL TO THE
   7-19  SELLER OR THE SELLER'S AGENT FOR SERVICE OF PROCESS.  YOUR NOTICE
   7-20  OF CANCELLATION IS EFFECTIVE ON THE DATE SENT OR DELIVERED TO
   7-21  (INSERT NAME OF SELLER) AT (INSERT ADDRESS OF SELLER).  FOR YOUR
   7-22  PROTECTION, SHOULD YOU DECIDE TO CANCEL YOU SHOULD EITHER SEND YOUR
   7-23  NOTICE OF CANCELLATION BY CERTIFIED MAIL WITH A RETURN RECEIPT
   7-24  REQUESTED OR OBTAIN A SIGNED AND DATED RECEIPT IF DELIVERING IT IN
   7-25  PERSON.
   7-26                    "(C)  A PURCHASER SHOULD NOT RELY ON STATEMENTS
   7-27  OTHER THAN THOSE INCLUDED IN THIS CONTRACT AND THE DISCLOSURE
    8-1  STATEMENT."
    8-2              (2)  A statement disclosing the amount of the timeshare
    8-3  fees, on a monthly or annual basis, which are being assessed
    8-4  currently against or collected from the owners of a timeshare
    8-5  interest.  Immediately following the timeshare fee disclosure
    8-6  statement shall be a statement that the timeshare fees collected by
    8-7  the managing entity may be used to pay for the administrative and
    8-8  operating expenses of the property; and
    8-9              (3)  "As a timeshare owner you have a right to request
   8-10  a written annual timeshare fee and expense statement.  This
   8-11  statement is prepared annually by the managing entity and will be
   8-12  available no later than the 90th day following (insert the date of
   8-13  the last day of the fiscal year).  You may request the statement by
   8-14  writing to (insert address of the managing entity)."
   8-15        (b)  Immediately following the required statements
   8-16  <statement> on Exhibit A shall be a space reserved for the
   8-17  signature of the purchaser.  The seller shall obtain the
   8-18  purchaser's signature on Exhibit A at the time the contract is
   8-19  signed.
   8-20        (c)  The contract must also include the following:
   8-21              (1)  the name and address of the seller and the address
   8-22  of the timeshare unit;
   8-23              (2)  whether the purchaser visited the location of the
   8-24  timeshare unit before signing the contract;
   8-25              (3)  an agreement by the seller that if the purchaser
   8-26  timely exercises the right of cancellation under the contract, all
   8-27  payments made by the purchaser to the seller in connection with the
    9-1  contract shall be returned to such purchaser before the 21st day
    9-2  after the seller receives notice of cancellation;
    9-3              (4)  the name of the person or persons actively
    9-4  involved in the sales presentation on behalf of the seller;
    9-5              (5)  a warranty that the timeshare common properties
    9-6  are not mortgaged, unless the mortgage contains a nondisturbance
    9-7  clause which protects the timeshare owner in the event of
    9-8  foreclosure; and
    9-9              (6)  in the event such timeshare interests are sold
   9-10  under a lease, right to use, or membership agreement where free and
   9-11  clear title to the timeshare unit is not passed to the buyer, then
   9-12  the contract must contain a warranty that the timeshare is free and
   9-13  clear; or if subject to a mortgage, the mortgage must contain a
   9-14  nondisturbance clause which protects the timeshare owner in the
   9-15  event of foreclosure.
   9-16        SECTION 6.  Section 221.071(a), Property Code, is amended to
   9-17  read as follows:
   9-18        (a)  A seller or other person commits a false, misleading, or
   9-19  deceptive act or practice within the meaning of Subsections (a) and
   9-20  (b) of Section 17.46 of the Texas Deceptive Trade
   9-21  Practices-Consumer Protection Act (Article 17.46 et seq., Business
   9-22  & Commerce Code), by engaging in any of the following acts:
   9-23              (1)  failing to disclose information concerning a
   9-24  timeshare interest required by Subchapter D;
   9-25              (2)  making false or misleading statements of fact
   9-26  concerning the characteristics of accommodations or amenities
   9-27  available to a consumer;
   10-1              (3)  predicting specific or immediate increases in the
   10-2  value of a timeshare interest without a reasonable basis for such
   10-3  predictions;
   10-4              (4)  making false or misleading statements of fact
   10-5  concerning the duration that accommodations or amenities will be
   10-6  available to a consumer;
   10-7              (5)  making false or misleading statements of fact
   10-8  concerning the conditions under which a purchaser of a timeshare
   10-9  interest may exchange the right to occupy a unit for the right to
  10-10  occupy a unit in the same or another timeshare property; <or>
  10-11              (6)  representing that a prize, gift, or other benefit
  10-12  will be awarded in connection with a promotion with the intent not
  10-13  to award that prize, gift, or benefit in the manner represented;
  10-14              (7)  failing to provide a copy of the contract to the
  10-15  purchaser at the time the contract is signed by the purchaser,
  10-16  unless the purchaser requests in writing that the contract be
  10-17  mailed, and the contract is mailed to the purchaser before the end
  10-18  of the next business day;
  10-19              (8)  failing to provide the annual timeshare fee and
  10-20  expense statement as required by Section 221.074; or
  10-21              (9)  furnishing false information in the annual
  10-22  timeshare fee and  expense statement as required by
  10-23  Section 221.074.
  10-24        SECTION 7.  Subchapter H, Chapter 221, Property Code, is
  10-25  amended by adding Sections 221.074 and 221.075 to read as follows:
  10-26        Sec. 221.074.  ANNUAL TIMESHARE FEE AND EXPENSE STATEMENT.
  10-27  (a)  Notwithstanding a provision of the promotional disclosure
   11-1  statement, project instrument, timeshare instrument, or bylaws
   11-2  adopted pursuant to a timeshare instrument, not later than the 60th
   11-3  day after the last day of each fiscal year the managing entity
   11-4  shall make available to each owner a written annual accounting of
   11-5  the operation of the timeshare property or timeshare system.  The
   11-6  statement shall include:
   11-7              (1)  a balance sheet;
   11-8              (2)  an income and expense statement which complies
   11-9  with generally accepted accounting principles and reflects the
  11-10  collection and expenditure of timeshare fees;
  11-11              (3)  the current operating budget for the timeshare
  11-12  property or timeshare system required by Section 221.032(b)(6);
  11-13              (4)  an accounting identifying any unfunded reserves
  11-14  for capital improvements and maintenance and upkeep of the
  11-15  timeshare property; and
  11-16              (5)  the name and address of each member of the board
  11-17  of directors of the council of purchasers or the owners'
  11-18  association, if one exists, and the name, address, and telephone
  11-19  number of a designated representative of the managing entity.
  11-20        (b)  The managing entity shall make the fee statement
  11-21  available to owners of record of a timeshare interest as of the
  11-22  last day of the fiscal year as reflected in the managing entity's
  11-23  records.
  11-24        (c)  The statement shall be delivered in person or by mail to
  11-25  each person on the board of directors of the council of purchasers
  11-26  or the owners' association, if one exists.
  11-27        (d)  The managing entity shall post prominently in the
   12-1  registration area of each timeshare property the following notice,
   12-2  with the date of the last day of the current fiscal year and the
   12-3  address of the managing entity inserted where indicated:
   12-4              "As a timeshare owner you have a right to request a
   12-5  written annual timeshare fee and expense statement.  This statement
   12-6  is prepared annually by the managing entity and will be available
   12-7  no later than the 90th day following (insert the date of the last
   12-8  day of the current fiscal year).  You may request the statement, by
   12-9  writing to (insert address of the managing entity)."
  12-10        (e)  If a request for the statement is received by the
  12-11  managing entity prior to the date by which the statement is
  12-12  available, the statement shall be provided no later than one week
  12-13  after the date the statement becomes available.  If a request for
  12-14  the statement is received by the managing entity after the date the
  12-15  statement becomes available, the statement shall be provided no
  12-16  later than two weeks after the date the request is received by the
  12-17  managing entity.  For the purposes of this section, the statement
  12-18  shall be deemed provided if it is deposited in the mail, properly
  12-19  addressed, with postage prepaid.
  12-20        (f)  A managing entity shall provide a separate annual
  12-21  timeshare fee and expense statement for each timeshare property
  12-22  unless the property is part of a timeshare system.  A managing
  12-23  entity may provide a consolidated statement for all timeshare
  12-24  properties comprising a timeshare system.
  12-25        Sec. 221.075.  CIVIL PENALTY FOR LATE STATEMENT; INJUNCTION.
  12-26  (a)  On a written request filed with the commission by a managing
  12-27  entity before the date on which the statement required by
   13-1  Section 221.074 must be made available, the commission for good
   13-2  cause shown may grant the managing entity an extension of no more
   13-3  than 30 days in which to provide the statement.
   13-4        (b)  If the statement required by Section 221.074 is late and
   13-5  an extension has not been granted under Subsection (a), the
   13-6  managing entity required to provide the statement is liable to the
   13-7  state for a civil penalty not to exceed:
   13-8              (1)  $500 per day for each of the first 10 days that
   13-9  the statement is late; and
  13-10              (2)  $1,000 per day for each day after the 10th day,
  13-11  until the managing entity has complied with Section 221.074.
  13-12        (c)  In no event shall the civil penalties exceed $25,000 for
  13-13  any one statement period.
  13-14        (d)  A managing entity may not assess against or collect from
  13-15  the owners of a timeshare property the amount of a penalty incurred
  13-16  under this section.
  13-17        (e)  If it appears that a managing entity has violated
  13-18  Section 221.074, the attorney general may institute an action for
  13-19  injunctive relief, a civil penalty, or both.
  13-20        SECTION 8.  Subchapter H, Chapter 221, Property Code, is
  13-21  amended by adding Sections 221.076 and 221.077 to read as follows:
  13-22        Sec. 221.076.  MANAGING ENTITIES THAT MANAGE MORE THAN ONE
  13-23  TIMESHARE SYSTEM OR PROPERTY.  (a)  A managing entity that manages
  13-24  two or more timeshare properties which are not participants of the
  13-25  same timeshare system may not commingle the timeshare fees
  13-26  collected from owners of one timeshare property with the timeshare
  13-27  fees collected from owners of any other timeshare property.
   14-1        (b)  A managing entity that manages two or more timeshare
   14-2  systems may not commingle the timeshare fees collected from owners
   14-3  participating in one timeshare system with the timeshare fees
   14-4  collected from owners participating in any other timeshare system.
   14-5        (c)  A managing entity which manages a timeshare system may
   14-6  deposit timeshare fees collected from owners of one timeshare
   14-7  property into a common account with timeshare fees collected from
   14-8  owners of other timeshare properties participating in the same
   14-9  timeshare system only if the practice is disclosed in the timeshare
  14-10  disclosure statement for each timeshare property in the timeshare
  14-11  system and the appropriate statement is included in the declaration
  14-12  for each timeshare regime as required by Subchapter B.  Nothing in
  14-13  this section shall be construed to allow a managing entity to
  14-14  commingle the timeshare fees of:
  14-15              (1)  separate timeshare systems;
  14-16              (2)  separate timeshare properties which are not part
  14-17  of a timeshare system; or
  14-18              (3)  a timeshare system with the timeshare fees of a
  14-19  separate timeshare property which is not a participant in the
  14-20  timeshare system.
  14-21        Sec. 221.077.  AVAILABILITY OF BOOKS AND RECORDS.  A managing
  14-22  entity, on written request of an owner, shall make available for
  14-23  examination at its registered office or principal place of business
  14-24  and at any reasonable time or times the relevant books and records
  14-25  relating to the collection and expenditure of timeshare fees.
  14-26        SECTION 9.  This Act takes effect September 1, 1993, except
  14-27  that Section 7 takes effect January 1, 1995.
   15-1        SECTION 10.  The importance of this legislation and the
   15-2  crowded condition of the calendars in both houses create an
   15-3  emergency and an imperative public necessity that the
   15-4  constitutional rule requiring bills to be read on three several
   15-5  days in each house be suspended, and this rule is hereby suspended.