73R7113 LJD-F
By Clemons H.B. No. 364
Substitute the following for H.B. No. 364:
By Clemons C.S.H.B. No. 364
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of telephone solicitation; providing
1-3 civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle 3, Title 79, Revised Statutes (Article
1-6 5069-9.01 et seq., Vernon's Texas Civil Statutes), is amended by
1-7 adding Chapter 18 to read as follows:
1-8 CHAPTER EIGHTEEN
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Art. 1. DEFINITIONS. In this chapter:
1-11 (1) "Item" means property or a good or service and
1-12 includes:
1-13 (A) a coupon book that is to be used with a
1-14 business or company; and
1-15 (B) an interest in real property.
1-16 (2) "Owner" means a person who owns, controls, or
1-17 otherwise has claim to 10 percent or more of the net income of a
1-18 seller.
1-19 (3) "Person" includes an individual, sole
1-20 proprietorship, firm, association, corporation, partnership, joint
1-21 venture, or any other business entity.
1-22 (4) "Principal" means an owner, an executive officer
1-23 of a corporation, a general partner of a partnership, a sole
1-24 proprietor, a trustee of a trust, or another individual with
2-1 similar supervisory functions with respect to any person.
2-2 (5) "Purchaser" means a person who is:
2-3 (A) solicited to become or becomes obligated for
2-4 the purchase or rental of an item; or
2-5 (B) offered the opportunity to claim or receive
2-6 an item.
2-7 (6) "Registration statement" means a registration
2-8 statement required under this chapter.
2-9 (7) "Salesperson" means a person employed or
2-10 authorized by a seller to cause, or to attempt to cause, a
2-11 telephone solicitation.
2-12 (8) "Seller" means a person who, on the person's own
2-13 behalf, causes or attempts to cause a telephone solicitation.
2-14 (9) "Supervised financial institution" means a bank,
2-15 trust company, savings and loan association, credit union,
2-16 industrial loan company, personal property broker, consumer finance
2-17 lender, commercial finance lender, insurer, or other financial
2-18 institution that is subject to supervision by an official or agency
2-19 of this state or the United States.
2-20 (10) "Telephone solicitation" means a telephone call
2-21 to or from a person, initiated by a seller, salesperson, automatic
2-22 dialing machine, or recorded message device for the purpose of
2-23 inducing the person to purchase, rent, claim, or receive an item
2-24 and includes a call made by a purchaser in response to a
2-25 solicitation sent by mail or made by any other means.
2-26 Art. 2. EXEMPTIONS. (a) This chapter does not apply to:
2-27 (1) a person offering or selling a security that has
3-1 been qualified for sale under Section 7, The Securities Act
3-2 (Article 581-7, Vernon's Texas Civil Statutes), and its subsequent
3-3 amendments, or that is subject to an exemption under Section 5 or 6
3-4 of that Act;
3-5 (2) a publicly traded corporation registered with the
3-6 Securities and Exchange Commission or the State Securities Board,
3-7 or a subsidiary or agent of the corporation;
3-8 (3) a person licensed under the Insurance Code, if the
3-9 solicited transaction is governed by the Insurance Code;
3-10 (4) a person soliciting the sale of a subscription to:
3-11 (A) a daily or weekly newspaper of general
3-12 circulation;
3-13 (B) a magazine or other periodical of general
3-14 circulation; or
3-15 (C) a cable television service;
3-16 (5) a supervised financial institution or parent,
3-17 subsidiary, or affiliate of a supervised financial institution;
3-18 (6) a person or affiliate of a person whose business
3-19 is regulated by the Public Utility Commission of Texas;
3-20 (7) an educational institution or organization or a
3-21 nonprofit organization exempt from taxation under Section 501(c)(3)
3-22 of the Internal Revenue Code of 1986;
3-23 (8) a sale in which the purchaser is a business that
3-24 intends to:
3-25 (A) resell the item purchased; or
3-26 (B) use the item purchased in a recycling,
3-27 reuse, remanufacturing, or manufacturing process;
4-1 (9) a person soliciting the sale of food;
4-2 (10) a person who periodically issues and delivers
4-3 catalogs to potential purchasers if the catalog:
4-4 (A) includes a written description or
4-5 illustration and the sales price of each item offered for sale;
4-6 (B) includes at least 24 full pages of written
4-7 material or illustrations;
4-8 (C) is distributed in more than one state; and
4-9 (D) has an annual circulation of not less than
4-10 250,000 customers;
4-11 (11) the solicitation of contracts for the maintenance
4-12 or repair of items previously purchased from the person making the
4-13 solicitation or on whose behalf the solicitation is made;
4-14 (12) a person soliciting:
4-15 (A) without intent to complete or obtain
4-16 provisional acceptance of a sale during the telephone solicitation;
4-17 (B) who does not make the major sales
4-18 presentation during the telephone solicitation but arranges for the
4-19 major sales presentation to be made at a later face-to-face meeting
4-20 between the salesperson and the purchaser; and
4-21 (C) who does not cause an individual to go to
4-22 the prospective purchaser to collect payment for the purchase or to
4-23 deliver any item purchased directly following the telephone
4-24 solicitation;
4-25 (13) a person subject to the control or licensing
4-26 regulations of the Federal Communications Commission;
4-27 (14) a person selling:
5-1 (A) a contractual plan regulated by the Federal
5-2 Trade Commission trade regulation on use of negative option plans
5-3 by sellers in commerce under Title 16, Code of Federal Regulations,
5-4 Part 425; or
5-5 (B) merchandise under an arrangement in which
5-6 the seller periodically ships the merchandise to a consumer who has
5-7 consented in advance to receive the merchandise on a periodic
5-8 basis;
5-9 (15) a person:
5-10 (A) who provides telephone solicitation services
5-11 under contract to sellers;
5-12 (B) who has been operating continuously for at
5-13 least five years under the same business name; and
5-14 (C) for whom at least 75 percent of the person's
5-15 contracts are performed on behalf of other persons exempt under
5-16 this section;
5-17 (16) a person soliciting business from a former or
5-18 current customer if the person has operated under the exact same
5-19 business name for at least two years;
5-20 (17) a person engaging in a commercial telephone
5-21 solicitation that is an isolated transaction and not done in the
5-22 course of a pattern of repeated transactions of a like nature;
5-23 (18) a person who for at least two years has been
5-24 operating under the same name as that used in connection with its
5-25 telemarketing operations a retail establishment where consumer
5-26 goods are displayed and offered for sale on a continuing basis if a
5-27 majority of the person's business involves the buyers obtaining
6-1 services or products at the person's retail establishment;
6-2 (19) a person subject to the filing requirements of
6-3 Chapter 1054, Acts of the 70th Legislature, Regular Session, 1987
6-4 (Article 9023a, Vernon's Texas Civil Statutes); or
6-5 (20) a person soliciting a transaction regulated by
6-6 the Commodity Futures Trading Commission if the person is
6-7 registered or temporarily licensed for that activity with the
6-8 Commodity Futures Trading Commission under the Commodity Exchange
6-9 Act (7 U.S.C. Section 1 et seq.) and the registration or license
6-10 has not expired or been suspended or revoked.
6-11 (b) In a civil proceeding alleging a violation of this
6-12 chapter, the burden of proving an exemption is on the person
6-13 claiming the exemption, and in a criminal proceeding alleging a
6-14 violation of this chapter, the burden of producing evidence to
6-15 support a defense based on an exemption is on the person claiming
6-16 the exemption.
6-17 Art. 3. CONSTRUCTION AND APPLICATION. This chapter shall be
6-18 liberally construed and applied to promote its underlying purpose
6-19 to protect persons against false, misleading, or deceptive
6-20 practices in the telephone solicitation business.
6-21 SUBCHAPTER B. REGISTRATION OF TELEPHONE SELLERS
6-22 Art. 4. REGISTRATION REQUIRED. (a) A seller may not engage
6-23 in telephone solicitation from a location in this state or to a
6-24 purchaser located in this state without a certificate of
6-25 registration for the business location from which the solicitation
6-26 is made.
6-27 (b) A separate certificate is required for each business
7-1 location from which a solicitation is made.
7-2 Art. 5. CONTENTS OF REGISTRATION STATEMENT; VERIFICATION;
7-3 PUBLIC INFORMATION. (a) To obtain a certificate of registration,
7-4 a seller must file a registration statement with the secretary of
7-5 state.
7-6 (b) A registration statement must be in the form prescribed
7-7 by the secretary of state and contain the information required by
7-8 Subchapter C of this chapter.
7-9 (c) A registration statement must be verified by each
7-10 principal of the seller and must specify the date and location of
7-11 verification.
7-12 (d) All information included in or attached to a
7-13 registration statement is public information.
7-14 Art. 6. FILING FEE. The filing fee for a registration
7-15 statement is $200.
7-16 Art. 7. ISSUANCE OF CERTIFICATE OF REGISTRATION. (a) On
7-17 receipt of a completed registration statement, the filing fee
7-18 required by Article 6 of this chapter, the security required by
7-19 Article 10 of this chapter, and the consent regarding service of
7-20 process required by Article 11 of this chapter, the secretary of
7-21 state shall issue a certificate of registration and mail the
7-22 certificate to the seller.
7-23 (b) If the seller uses one registration statement to
7-24 register more than one business location, the secretary of state
7-25 shall issue a certificate for each business location and mail all
7-26 the certificates to the principal business location shown on the
7-27 registration statement.
8-1 Art. 8. EFFECTIVE DATE; RENEWAL. The effective date of a
8-2 registration statement is the date on which the secretary of state
8-3 issues the certificate. A registration statement is effective for
8-4 one year after its effective date and may be renewed annually by
8-5 filing a renewal registration statement with the information
8-6 required by Subchapter C of this chapter and paying the filing fee.
8-7 Art. 9. UPDATE ADDENDUM REQUIRED. (a) A seller shall file
8-8 with the secretary of state an update addendum at quarterly
8-9 intervals, computed from the effective date of registration,
8-10 providing all required registration information for all
8-11 salespersons who are currently soliciting or have solicited on
8-12 behalf of the seller at any time during the period between the
8-13 filing of the registration statement or the last addendum and the
8-14 current addendum.
8-15 (b) In addition to the quarterly updates, if a material
8-16 change in information submitted in a registration statement, other
8-17 than the information described by Subsection (a) of this article,
8-18 occurs before the date for renewal, a seller shall submit that
8-19 information to the secretary of state by filing an update addendum.
8-20 Art. 10. SECURITY. (a) A registration statement filed
8-21 under this chapter must be accompanied by:
8-22 (1) a bond executed by a corporate surety approved by
8-23 the secretary of state and licensed to do business in this state;
8-24 (2) an irrevocable letter of credit issued for the
8-25 benefit of the registrant by a supervised financial institution
8-26 whose deposits are insured by an agency of the federal government;
8-27 or
9-1 (3) a certificate of deposit in a supervised financial
9-2 institution whose deposits are insured by an agency of the federal
9-3 government, the principal of which may be withdrawn only on the
9-4 order of the secretary of state.
9-5 (b) The amount of the bond, letter of credit, or certificate
9-6 of deposit must be $10,000, and the bond, letter of credit, or
9-7 certificate of deposit must be conditioned on compliance by the
9-8 seller with this chapter.
9-9 Art. 11. SECRETARY OF STATE AS SELLER'S AGENT TO RECEIVE
9-10 SERVICE. (a) A seller shall file with the secretary of state, in
9-11 the form prescribed by the secretary of state, an irrevocable
9-12 consent appointing the secretary of state to act as the seller's
9-13 agent to receive service of any lawful process in any noncriminal
9-14 suit, action, or proceeding against the seller or the seller's
9-15 successor, executor, or administrator that may arise under this
9-16 chapter, when:
9-17 (1) an agent has not been designated under Subdivision
9-18 15, Article 12, of this chapter;
9-19 (2) the agent has resigned or died and a replacement
9-20 has not been designated under Article 9 of this chapter; or
9-21 (3) the agent cannot with reasonable diligence be
9-22 found at the designated address.
9-23 (b) Service on the secretary of state under this article has
9-24 the same force and validity as service on the seller. Service on
9-25 the secretary of state may be made by:
9-26 (1) leaving a copy of the process in the office of the
9-27 secretary of state;
10-1 (2) promptly sending by first-class mail a notice of
10-2 the service and a copy of the process to the seller's principal
10-3 business location at the last address on file with the secretary of
10-4 state; and
10-5 (3) filing the plaintiff's affidavit of compliance
10-6 with this article in the case on or before the return date of the
10-7 process, if any, or within an additional period that the court
10-8 allows.
10-9 SUBCHAPTER C. CONTENTS OF REGISTRATION STATEMENT
10-10 Art. 12. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND
10-11 ORGANIZATIONAL INFORMATION. A registration statement must contain
10-12 the following information:
10-13 (1) the seller's name and the name under which the
10-14 seller is doing or intends to do business, if different from the
10-15 seller's name;
10-16 (2) the name of each parent and affiliated
10-17 organization of the seller that:
10-18 (A) will engage in business transactions with
10-19 purchasers relating to sales solicited by the seller; or
10-20 (B) accepts responsibility for statements made
10-21 by, or acts of, the seller relating to sales solicited by the
10-22 seller;
10-23 (3) the seller's business form and place of
10-24 organization;
10-25 (4) if the seller is a corporation, a copy of its
10-26 articles of incorporation and bylaws;
10-27 (5) if the seller is a partnership, a copy of the
11-1 partnership agreement;
11-2 (6) if the seller is operating under an assumed
11-3 business name, the location where the assumed name has been
11-4 registered;
11-5 (7) for any parent or affiliated organization
11-6 disclosed under Subdivision (2) of this article, the applicable
11-7 information that is required of a seller under Subdivisions (3)-(6)
11-8 of this article;
11-9 (8) the complete street address of each location of
11-10 the seller, designating the principal location from which the
11-11 seller will be conducting business;
11-12 (9) if the principal business location of the seller
11-13 is not in this state, a designation of its main location in the
11-14 state;
11-15 (10) a listing of each telephone number to be used by
11-16 the seller and the address where each telephone using the number is
11-17 located;
11-18 (11) the name and title of each of the seller's
11-19 officers, directors, trustees, general and limited partners, sole
11-20 proprietor, and owners, as applicable, and the name of each of
11-21 those persons who have management responsibilities in connection
11-22 with the seller's business activities;
11-23 (12) the complete address of the principal residence,
11-24 the date of birth, and the number and state of issuance of the
11-25 driver's license of each person whose name is disclosed under
11-26 Subdivision (11) of this article;
11-27 (13) the name and principal residence address of each
12-1 person the seller leaves in charge at each location from which the
12-2 seller does business in this state, and the business location at
12-3 which each of these persons is or will be in charge;
12-4 (14) the name and principal residence address of each
12-5 salesperson who solicits on behalf of the seller and the name the
12-6 salesperson uses while soliciting;
12-7 (15) the name and address of the seller's agent in
12-8 this state, other than the secretary of state, authorized to
12-9 receive service of process; and
12-10 (16) the name and address of each financial
12-11 institution with which banking or similar monetary transactions are
12-12 made by the seller and the identification number of each of the
12-13 seller's accounts in each institution.
12-14 Art. 13. DISCLOSURE OF CERTAIN CONVICTIONS, JUDGMENTS,
12-15 ORDERS, AND BANKRUPTCIES. (a) With respect to the seller and each
12-16 person identified under Subdivision (11) or (13), Article 12, of
12-17 this chapter, a registration statement must state the identity of
12-18 each person:
12-19 (1) who has been convicted of or pleaded nolo
12-20 contendere to a felony or misdemeanor involving an alleged
12-21 violation of this chapter, or fraud, theft, embezzlement,
12-22 fraudulent conversion, or misappropriation of property;
12-23 (2) against whom has been entered a final judgment or
12-24 order in a civil or administrative action, including a stipulated
12-25 judgment or order, in which the complaint or petition alleged acts
12-26 constituting a violation of this chapter, fraud, theft,
12-27 embezzlement, fraudulent conversion, or misappropriation of
13-1 property, the use of untrue or misleading representations in an
13-2 attempt to sell or dispose of real or personal property, or the use
13-3 of unfair, unlawful, or deceptive business practices;
13-4 (3) who is subject to an injunction or restrictive
13-5 court order relating to business activity as the result of an
13-6 action brought by a federal, state, or local public agency,
13-7 including an action affecting any vocational license; or
13-8 (4) who has, during the previous seven tax years,
13-9 filed in bankruptcy, been adjudged a bankrupt, been reorganized due
13-10 to insolvency, or has been a principal, director, officer, trustee,
13-11 general or limited partner, or had management responsibilities of a
13-12 corporation, partnership, joint venture, or other business entity
13-13 that has filed in bankruptcy, been adjudged a bankrupt, or been
13-14 reorganized due to insolvency while the person held that position
13-15 or within one year after the date on which the person last held
13-16 that position.
13-17 (b) Under Subsections (a)(1), (2), and (3) of this article,
13-18 the statement must identify the court or administrative agency
13-19 rendering the conviction, judgment, or order, the docket number of
13-20 the matter, the date of conviction, judgment, or order, and the
13-21 name of the governmental agency, if any, that brought the action
13-22 resulting in the conviction, judgment, or order. Under Subsection
13-23 (a)(4) of this article, the statement must include the name and
13-24 location of the person filing in bankruptcy, adjudged a bankrupt,
13-25 or reorganized due to insolvency, and must include the date of the
13-26 filing, judgment, or reorganization order, the court having
13-27 jurisdiction, and the docket number of the matter.
14-1 Art. 14. DISCLOSURE OF CERTAIN SALES INFORMATION. The
14-2 registration statement must be accompanied by the following
14-3 information:
14-4 (1) a description of the items the seller is offering
14-5 for sale and a copy of all sales scripts the seller requires
14-6 salespersons to use, recommends that salespersons use, or provides
14-7 to salespersons to use when soliciting purchasers, or if no sales
14-8 script is required, recommended, or provided, a statement of that
14-9 fact;
14-10 (2) a copy of all sales information and literature,
14-11 including scripts, outlines, instructions, and information
14-12 regarding the conduct of telephone solicitations, sample
14-13 introductions, sample closings, product information, and contest or
14-14 premium-award information, provided by the seller to salespersons
14-15 or about which the seller informs salespersons, and a copy of all
14-16 written material the seller sends to any purchaser;
14-17 (3) if the seller represents or implies, or directs
14-18 salespersons to represent or imply, to purchasers that the
14-19 purchaser will receive a specific item, including a certificate
14-20 that the purchaser must redeem to obtain the item described in the
14-21 certificate, or one or more items from among designated items,
14-22 whether the items are denominated as gifts, premiums, bonuses,
14-23 prizes, or otherwise:
14-24 (A) a list of the items described;
14-25 (B) the value of each item and the basis for the
14-26 valuation;
14-27 (C) the price paid by the seller to its supplier
15-1 for each item and the name, address, and telephone number of each
15-2 item's supplier;
15-3 (D) if the purchaser is to receive fewer than
15-4 all of the items described by the seller:
15-5 (i) the manner in which the seller
15-6 decides which item a particular purchaser is to receive;
15-7 (ii) for each item, the odds of a single
15-8 purchaser's receiving the item; and
15-9 (iii) the name and address of each
15-10 recipient who has received, during the preceding 12 months, or if
15-11 the seller has not been in business that long, during the period
15-12 the seller has been in business, the item having the greatest value
15-13 and the item with the smallest odds of being received; and
15-14 (E) all rules, regulations, terms, and
15-15 conditions a purchaser must meet in order to receive the item;
15-16 (4) if the seller is offering an item that the seller
15-17 neither manufactures nor supplies:
15-18 (A) the name, address, and telephone number of
15-19 each of the seller's suppliers and a description of each item
15-20 provided by the supplier;
15-21 (B) if the possession of the item is to be
15-22 retained by the seller or will not be transferred to the purchaser
15-23 until the purchaser has paid in full:
15-24 (i) the address of each location where the
15-25 item will be kept;
15-26 (ii) if not kept on premises owned by the
15-27 seller or at an address registered under Subdivision (8) or (9),
16-1 Article 12, of this chapter, the name of the owner of the business
16-2 at which the item will be kept; and
16-3 (iii) a copy of any contract or other
16-4 document that evidences the seller's right to store the item at the
16-5 address designated under Subparagraph (ii) of this paragraph;
16-6 (C) if the seller is not selling the item from
16-7 its own inventory but purchases the item to fill an order already
16-8 taken from a purchaser, copies of all contracts or other documents
16-9 evidencing the seller's ability to call on suppliers to fill the
16-10 seller's orders;
16-11 (D) if the seller represents to purchasers that
16-12 the seller has insurance or a surety bond of any type relating to a
16-13 purchaser's purchase of any item, a complete copy of each insurance
16-14 policy and bond; and
16-15 (E) if the seller makes any representation as to
16-16 the post-purchase earning or profit potential of an item, data to
16-17 substantiate the claims made, and if the representation relates to
16-18 previous sales made by the seller or a related entity,
16-19 substantiating data based on the experiences of at least 50 percent
16-20 of the persons who purchased that particular type of item from the
16-21 seller or related entity during the preceding six months, or if the
16-22 seller or related entity has not been in business that long, during
16-23 the period the seller or related entity has been in business,
16-24 including:
16-25 (i) the length of time the seller or
16-26 related entity has been selling the particular type of item being
16-27 offered;
17-1 (ii) the number of purchasers of the item
17-2 from the seller or related entity known to the seller or related
17-3 entity to have made at least the same earnings or profit as those
17-4 represented; and
17-5 (iii) the percentage that the number
17-6 disclosed under Subparagraph (ii) of this paragraph represents of
17-7 the total number of purchasers from the seller or related entity of
17-8 the particular type of item offered; and
17-9 (5) if the seller is offering to sell an interest in
17-10 oil, gas, or a mineral field, well, or exploration site:
17-11 (A) the seller's ownership interest, if any, in
17-12 each field, well, or site being offered for sale;
17-13 (B) the total number of interests to be sold in
17-14 each field, well, or site being offered for sale; and
17-15 (C) if, in selling an interest in any particular
17-16 field, well, or site, reference is made to an investigation of the
17-17 field, well, or site by the seller or anyone else:
17-18 (i) the name, business address, telephone
17-19 number, and professional credentials of the person who made the
17-20 investigation; and
17-21 (ii) a copy of the report and other
17-22 documents relating to the investigation prepared by the person.
17-23 SUBCHAPTER D. ADDITIONAL INFORMATION FROM SELLER
17-24 Art. 15. INFORMATION POSTED OR AVAILABLE AT SELLER'S
17-25 BUSINESS LOCATION. (a) A seller shall post the certificate of
17-26 registration in a conspicuous place at the location for which it is
17-27 issued.
18-1 (b) A seller shall make available at each of the seller's
18-2 business locations a copy of the entire registration statement and
18-3 update addenda, if any, for inspection by any purchaser or
18-4 representative of any governmental agency.
18-5 (c) A seller shall post in close proximity to the
18-6 certificate of registration the name of each individual in charge
18-7 of the location.
18-8 Art. 16. DISCLOSURES TO PROSPECTIVE PURCHASERS. A seller
18-9 shall, when the solicitation is made and before consummation of any
18-10 sales transaction, provide to each purchaser:
18-11 (1) the complete street address of the location from
18-12 which the salesperson is calling the purchaser and, if different,
18-13 the complete street address of the seller's principal location;
18-14 (2) if the seller represents or implies that a
18-15 purchaser will receive without charge a specified item or one item
18-16 from among designated items, whether the items are denominated as
18-17 gifts, premiums, bonuses, prizes, or otherwise:
18-18 (A) the information required to be filed by
18-19 Subdivisions (3)(D)(i) and (ii) and (3)(E), Article 14, of this
18-20 chapter, as appropriate; and
18-21 (B) the total number of individuals who have
18-22 actually received from the seller during the preceding 12 months,
18-23 or if the seller has not been in the business that long, during the
18-24 period the seller has been in business, the item having the
18-25 greatest value and the item with the smallest odds of being
18-26 received;
18-27 (3) if the seller is offering to sell an interest in
19-1 oil, gas, or mineral field, well, or exploration site, the
19-2 information required by Subdivision (5), Article 14, of this
19-3 chapter; and
19-4 (4) if the seller represents that an item is being
19-5 offered at a price below that usually charged for the item, the
19-6 name of the manufacturer of the item.
19-7 Art. 17. NO REFERENCE TO COMPLIANCE WITH STATUTE. A seller
19-8 may not make or authorize the making of a reference to its
19-9 compliance with this chapter to a purchaser.
19-10 SUBCHAPTER E. OFFENSES
19-11 Art. 18. VIOLATION OF CHAPTER. (a) A person commits an
19-12 offense if the person knowingly or intentionally violates Article
19-13 4, 9, 15, 16, or 17 of this chapter. Each violation constitutes a
19-14 separate offense.
19-15 (b) An offense under this article is a Class A misdemeanor.
19-16 Art. 19. SALESPERSON FOR UNREGISTERED SELLER. (a) A person
19-17 commits an offense if the person knowingly or intentionally acts as
19-18 a salesperson on behalf of a seller who violates the registration
19-19 requirements of this chapter. Each violation constitutes a
19-20 separate offense.
19-21 (b) An offense under this article is a Class A misdemeanor.
19-22 SUBCHAPTER F. ENFORCEMENT
19-23 Art. 20. INJUNCTION. The attorney general may sue in a
19-24 court of competent jurisdiction to enjoin a person from violating
19-25 this chapter. The attorney general shall notify the defendant of
19-26 the alleged prohibited conduct not later than the seventh day
19-27 before the date the suit is filed, unless the attorney general
20-1 intends to request that the court issue a temporary restraining
20-2 order, in which event notice is not required.
20-3 Art. 21. CIVIL PENALTIES. A person who violates an
20-4 injunction issued under Article 20 of this chapter is liable to the
20-5 state for a civil penalty of not more than $25,000 for a single
20-6 violation and not more than $50,000 for all violations of the
20-7 injunction. The attorney general may bring suit to recover the
20-8 civil penalty in the court that issued the original injunction.
20-9 Art. 22. DECEPTIVE TRADE PRACTICES. A violation of this
20-10 chapter is a false, misleading, or deceptive act or practice under
20-11 Subchapter E, Chapter 17, Business & Commerce Code, and its
20-12 subsequent amendments, and any public or private right or remedy
20-13 prescribed by that subchapter may be used to enforce this chapter.
20-14 Art. 23. ACTION TO RECOVER AGAINST SECURITY. (a) A person
20-15 who is injured by the bankruptcy of a seller or the seller's breach
20-16 of an agreement entered into during a telephone solicitation may
20-17 bring and maintain an action to recover against the bond, letter of
20-18 credit, or certificate of deposit required under Article 10 of this
20-19 chapter.
20-20 (b) The liability of the surety on a bond provided pursuant
20-21 to Article 10 of this chapter does not exceed the amount of the
20-22 bond, regardless of the number of claims filed or the aggregate
20-23 amount claimed. If the amount claimed exceeds the amount of the
20-24 bond, the surety shall deposit the amount of the bond with the
20-25 secretary of state for distribution to claimants entitled to
20-26 recovery, and the surety is then relieved of all liability under
20-27 the bond.
21-1 Art. 24. NO WAIVER. An attempted waiver of a provision of
21-2 this chapter is void.
21-3 Art. 25. CUMULATIVE REMEDIES. The remedies provided by this
21-4 chapter are in addition to any other procedures or remedies
21-5 provided for by other law.
21-6 SECTION 2. (a) This Act takes effect September 1, 1993.
21-7 (b) The change in law made by this Act applies only to an
21-8 offense committed on or after the effective date of this Act. For
21-9 purposes of this section, an offense is committed before the
21-10 effective date of this Act if any element of the offense occurs
21-11 before that date.
21-12 SECTION 3. The importance of this legislation and the
21-13 crowded condition of the calendars in both houses create an
21-14 emergency and an imperative public necessity that the
21-15 constitutional rule requiring bills to be read on three several
21-16 days in each house be suspended, and this rule is hereby suspended.