1-1  By:  Clemons (Senate Sponsor - Lucio)                  H.B. No. 364
    1-2        (In the Senate - Received from the House April 26, 1993;
    1-3  April 27, 1993, read first time and referred to Committee on
    1-4  Economic Development; May 24, 1993, reported favorably by the
    1-5  following vote:  Yeas 8, Nays 0; May 24, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Parker             x                               
    1-9        Lucio              x                               
   1-10        Ellis              x                               
   1-11        Haley                                          x   
   1-12        Harris of Dallas                               x   
   1-13        Harris of Tarrant  x                               
   1-14        Leedom             x                               
   1-15        Madla              x                               
   1-16        Rosson             x                               
   1-17        Shapiro            x                               
   1-18        Wentworth                                     x    
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the regulation of telephone solicitation; providing
   1-22  civil and criminal penalties.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Subtitle 3, Title 79, Revised Statutes (Article
   1-25  5069-9.01 et seq., Vernon's Texas Civil Statutes), is amended by
   1-26  adding Chapter 18 to read as follows:
   1-27                           CHAPTER EIGHTEEN
   1-28                   SUBCHAPTER A.  GENERAL PROVISIONS
   1-29        Art. 1.  DEFINITIONS.  In this chapter:
   1-30              (1)  "Item" means property or a good or service and
   1-31  includes:
   1-32                    (A)  a coupon book that is to be used with a
   1-33  business or company; and
   1-34                    (B)  an interest in real property.
   1-35              (2)  "Owner" means a person who owns, controls, or
   1-36  otherwise has claim to 10 percent or more of the net income of a
   1-37  seller.
   1-38              (3)  "Person" includes an individual, sole
   1-39  proprietorship, firm, association, corporation, partnership, joint
   1-40  venture, or any other business entity.
   1-41              (4)  "Principal" means an owner, an executive officer
   1-42  of a corporation, a general partner of a partnership, a sole
   1-43  proprietor, a trustee of a trust, or another individual with
   1-44  similar supervisory functions with respect to any person.
   1-45              (5)  "Purchaser" means a person who is:
   1-46                    (A)  solicited to become or becomes obligated for
   1-47  the purchase or rental of an item; or
   1-48                    (B)  offered the opportunity to claim or receive
   1-49  an item.
   1-50              (6)  "Registration statement" means a registration
   1-51  statement required under this chapter.
   1-52              (7)  "Salesperson" means a person employed or
   1-53  authorized by a seller to cause, or to attempt to cause, a
   1-54  telephone solicitation.
   1-55              (8)  "Seller" means a person who, on the person's own
   1-56  behalf, causes or attempts to cause a telephone solicitation.
   1-57              (9)  "Supervised financial institution" means a bank,
   1-58  trust company, savings and loan association, credit union,
   1-59  industrial loan company, personal property broker, consumer finance
   1-60  lender, commercial finance lender, insurer, or other financial
   1-61  institution that is subject to supervision by an official or agency
   1-62  of this state or the United States.
   1-63              (10)  "Telephone solicitation" means a telephone call
   1-64  to or from a person, initiated by a seller, salesperson, automatic
   1-65  dialing machine, or recorded message device for the purpose of
   1-66  inducing the person to purchase, rent, claim, or receive an item
   1-67  and includes a call made by a purchaser  in response to a
   1-68  solicitation sent by mail or made by any other means.
    2-1        Art. 2.  EXEMPTIONS.  (a)  This chapter does not apply to:
    2-2              (1)  a person offering or selling a security that has
    2-3  been qualified for sale under Section 7, The Securities Act
    2-4  (Article 581-7, Vernon's Texas Civil Statutes), and its subsequent
    2-5  amendments, or that is subject to an exemption under Section 5 or 6
    2-6  of that Act;
    2-7              (2)  a publicly traded corporation registered with the
    2-8  Securities and Exchange Commission or the State Securities Board,
    2-9  or a subsidiary or agent of the corporation;
   2-10              (3)  a person licensed under the Insurance Code, if the
   2-11  solicited transaction is governed by the Insurance Code;
   2-12              (4)  a person soliciting the sale of a subscription to:
   2-13                    (A)  a daily or weekly newspaper of general
   2-14  circulation;
   2-15                    (B)  a magazine or other periodical of general
   2-16  circulation; or
   2-17                    (C)  a cable television service;
   2-18              (5)  a supervised financial institution or parent,
   2-19  subsidiary, or affiliate of a supervised financial institution;
   2-20              (6)  a person or affiliate of a person whose business
   2-21  is regulated by the Public Utility Commission of Texas;
   2-22              (7)  an educational institution or organization or a
   2-23  nonprofit organization exempt from taxation under Section 501(c)(3)
   2-24  of the Internal Revenue Code of 1986;
   2-25              (8)  a sale in which the purchaser is a business that
   2-26  intends to:
   2-27                    (A)  resell the item purchased; or
   2-28                    (B)  use the item purchased in a recycling,
   2-29  reuse, remanufacturing, or manufacturing process;
   2-30              (9)  a person soliciting the sale of food;
   2-31              (10)  a person who periodically issues and delivers
   2-32  catalogs to potential purchasers if the catalog:
   2-33                    (A)  includes a written description or
   2-34  illustration and the sales price of each item offered for sale;
   2-35                    (B)  includes at least 24 full pages of written
   2-36  material or illustrations;
   2-37                    (C)  is distributed in more than one state; and
   2-38                    (D)  has an annual circulation of not less than
   2-39  250,000 customers;
   2-40              (11)  the solicitation of contracts for the maintenance
   2-41  or repair of items previously purchased from the person making the
   2-42  solicitation or on whose behalf the solicitation is made;
   2-43              (12)  a person soliciting:
   2-44                    (A)  without intent to complete or obtain
   2-45  provisional acceptance of a sale during the telephone solicitation;
   2-46                    (B)  who does not make the major sales
   2-47  presentation during the telephone solicitation but arranges for the
   2-48  major sales presentation to be made at a later face-to-face meeting
   2-49  between the salesperson and the purchaser; and
   2-50                    (C)  who does not cause an individual to go to
   2-51  the prospective purchaser to collect payment for the purchase or to
   2-52  deliver any item purchased directly following the telephone
   2-53  solicitation;
   2-54              (13)  a person subject to the control or licensing
   2-55  regulations of the Federal Communications Commission;
   2-56              (14)  a person selling:
   2-57                    (A)  a contractual plan regulated by the Federal
   2-58  Trade Commission trade regulation on use of negative option plans
   2-59  by sellers in commerce under Title 16, Code of Federal Regulations,
   2-60  Part 425; or
   2-61                    (B)  merchandise under an arrangement in which
   2-62  the seller periodically ships the merchandise to a consumer who has
   2-63  consented in advance to receive the merchandise on a periodic
   2-64  basis;
   2-65              (15)  a person:
   2-66                    (A)  who provides telephone solicitation services
   2-67  under contract to sellers;
   2-68                    (B)  who has been operating continuously for at
   2-69  least three years under the same business name; and
   2-70                    (C)  for whom at least 75 percent of the person's
    3-1  contracts are performed on behalf of other persons exempt under
    3-2  this section;
    3-3              (16)  a person soliciting business from a former or
    3-4  current customer if the person has operated under the exact same
    3-5  business name for at least two years;
    3-6              (17)  a person engaging in a commercial telephone
    3-7  solicitation that is an isolated transaction and not done in the
    3-8  course of a pattern of repeated transactions of a like nature;
    3-9              (18)  a person who for at least two years has been
   3-10  operating under the same name as that used in connection with its
   3-11  telemarketing operations a retail establishment where consumer
   3-12  goods are displayed and offered for sale on a continuing basis if a
   3-13  majority of the person's business involves the buyers obtaining
   3-14  services or products at the person's retail establishment;
   3-15              (19)  a person subject to the filing requirements of
   3-16  Chapter 1054, Acts of the 70th Legislature, Regular Session, 1987
   3-17  (Article 9023a, Vernon's Texas Civil Statutes), or any successor to
   3-18  this statute; or
   3-19              (20)  a person soliciting a transaction regulated by
   3-20  the Commodity Futures Trading Commission if the person is
   3-21  registered or temporarily licensed for that activity with the
   3-22  Commodity Futures Trading Commission under the Commodity Exchange
   3-23  Act (7 U.S.C. Section 1 et seq.) and the registration or license
   3-24  has not expired or been suspended or revoked.
   3-25        (b)  In a civil proceeding alleging a violation of this
   3-26  chapter, the burden of proving an exemption is on the person
   3-27  claiming the exemption, and in a criminal proceeding alleging a
   3-28  violation of this chapter, the burden of producing evidence to
   3-29  support a defense based on an exemption is on the person claiming
   3-30  the exemption.
   3-31        (c)  The exemptions provided in this section apply only to a
   3-32  seller engaging in a telephone solicitation on its own behalf,
   3-33  except that the exemption provided in Subsection (a)(15) applies to
   3-34  a person providing telephone solicitation services to sellers.
   3-35        Art. 3.  CONSTRUCTION AND APPLICATION.  This chapter shall be
   3-36  liberally construed and applied to promote its underlying purpose
   3-37  to protect persons against false, misleading, or deceptive
   3-38  practices in the telephone solicitation business.
   3-39           SUBCHAPTER B.  REGISTRATION OF TELEPHONE SELLERS
   3-40        Art. 4.  REGISTRATION REQUIRED.  (a)  A seller may not engage
   3-41  in telephone solicitation from a location in this state or to a
   3-42  purchaser located in this state without a certificate of
   3-43  registration for the business location from which the solicitation
   3-44  is made.
   3-45        (b)  A separate certificate is required for each business
   3-46  location from which a solicitation is made.
   3-47        Art. 5.  CONTENTS OF REGISTRATION STATEMENT; VERIFICATION;
   3-48  PUBLIC INFORMATION.  (a)  To obtain a certificate of registration,
   3-49  a seller must file a registration statement with the secretary of
   3-50  state.
   3-51        (b)  A registration statement must be in the form prescribed
   3-52  by the secretary of state and contain the information required by
   3-53  Subchapter C of this chapter.
   3-54        (c)  A registration statement must be verified by each
   3-55  principal of the seller and must specify the date and location of
   3-56  verification.
   3-57        (d)  All information included in or attached to a
   3-58  registration statement is public information.
   3-59        Art. 6.  FILING FEE.  The filing fee for a registration
   3-60  statement is $200.
   3-61        Art. 7.  ISSUANCE OF CERTIFICATE OF REGISTRATION.  (a)  On
   3-62  receipt of a completed registration statement, the filing fee
   3-63  required by Article 6 of this chapter, the security required by
   3-64  Article 10 of this chapter, and the consent regarding service of
   3-65  process required by Article 11 of this chapter, the secretary of
   3-66  state shall issue a certificate of registration and mail the
   3-67  certificate to the seller.
   3-68        (b)  If the seller uses one registration statement to
   3-69  register more than one business location, the secretary of state
   3-70  shall issue a certificate for each business location and mail all
    4-1  the certificates to the principal business location shown on the
    4-2  registration statement.
    4-3        Art. 8.  EFFECTIVE DATE; RENEWAL.  The effective date of a
    4-4  registration statement is the date on which the secretary of state
    4-5  issues the certificate.  A registration statement is effective for
    4-6  one year after its effective date and may be renewed annually by
    4-7  filing a renewal registration statement with the information
    4-8  required by Subchapter C of this chapter and paying the filing fee.
    4-9        Art. 9.  UPDATE ADDENDUM REQUIRED.  (a)  A seller shall file
   4-10  with the secretary of state an update addendum at quarterly
   4-11  intervals, computed from the effective date of registration,
   4-12  providing all required registration information for all
   4-13  salespersons who are currently soliciting or have solicited on
   4-14  behalf of the seller at any time during the period between the
   4-15  filing of the registration statement or the last addendum and the
   4-16  current addendum.  For the purposes of compliance with this
   4-17  section, the seller may provide a copy of the "Employer's Quarterly
   4-18  Report" for employee wages it files with the Texas Employment
   4-19  Commission.
   4-20        (b)  In addition to the quarterly updates, if a material
   4-21  change in information submitted in a registration statement, other
   4-22  than the information described by Subsection (a) of this article,
   4-23  occurs before the date for renewal, a seller shall submit that
   4-24  information to the secretary of state by filing an update addendum.
   4-25        Art. 10.  SECURITY.  (a)  A registration statement filed
   4-26  under this chapter must be accompanied by:
   4-27              (1)  a bond executed by a corporate surety approved by
   4-28  the secretary of state and licensed to do business in this state;
   4-29              (2)  an irrevocable letter of credit issued for the
   4-30  benefit of the registrant by a supervised financial institution
   4-31  whose deposits are insured by an agency of the federal government;
   4-32  or
   4-33              (3)  a certificate of deposit in a supervised financial
   4-34  institution whose deposits are insured by an agency of the federal
   4-35  government, the principal of which may be withdrawn only on the
   4-36  order of the secretary of state.
   4-37        (b)  The amount of the bond, letter of credit, or certificate
   4-38  of deposit must be $10,000, and the bond, letter of credit, or
   4-39  certificate of deposit must be conditioned on compliance by the
   4-40  seller with this chapter.
   4-41        Art. 11.  SECRETARY OF STATE AS SELLER'S AGENT TO RECEIVE
   4-42  SERVICE.  (a)  A seller shall file with the secretary of state, in
   4-43  the form prescribed by the secretary of state, an irrevocable
   4-44  consent appointing the secretary of state to act as the seller's
   4-45  agent to receive service of any lawful process in any noncriminal
   4-46  suit, action, or proceeding against the seller or the seller's
   4-47  successor, executor, or administrator that may arise under this
   4-48  chapter, when:
   4-49              (1)  an agent has not been designated under Subdivision
   4-50  15, Article 12, of this chapter;
   4-51              (2)  the agent has resigned or died and a replacement
   4-52  has not been designated under Article 9 of this chapter; or
   4-53              (3)  the agent cannot with reasonable diligence be
   4-54  found at the designated address.
   4-55        (b)  Service on the secretary of state under this article has
   4-56  the same force and validity as service on the seller.  Service on
   4-57  the secretary of state may be made by:
   4-58              (1)  leaving a copy of the process in the office of the
   4-59  secretary of state;
   4-60              (2)  promptly sending by first-class mail a notice of
   4-61  the service and a copy of the process to the seller's principal
   4-62  business location at the last address on file with the secretary of
   4-63  state; and
   4-64              (3)  filing the plaintiff's affidavit of compliance
   4-65  with this article in the case on or before the return date of the
   4-66  process, if any, or within an additional period that the court
   4-67  allows.
   4-68           SUBCHAPTER C.  CONTENTS OF REGISTRATION STATEMENT
   4-69        Art. 12.  DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND
   4-70  ORGANIZATIONAL INFORMATION.  A registration statement must contain
    5-1  the following information:
    5-2              (1)  the seller's name and the name under which the
    5-3  seller is doing or intends to do business, if different from the
    5-4  seller's name;
    5-5              (2)  the name of each parent and affiliated
    5-6  organization of the seller that:
    5-7                    (A)  will engage in business transactions with
    5-8  purchasers relating to sales solicited by the seller; or
    5-9                    (B)  accepts responsibility for statements made
   5-10  by, or acts of, the seller relating to sales solicited by the
   5-11  seller;
   5-12              (3)  the seller's business form and place of
   5-13  organization;
   5-14              (4)  if the seller is a corporation, a copy of its
   5-15  articles of incorporation and bylaws;
   5-16              (5)  if the seller is a partnership, a copy of the
   5-17  partnership agreement;
   5-18              (6)  if the seller is operating under an assumed
   5-19  business name, the location where the assumed name has been
   5-20  registered;
   5-21              (7)  for any parent or affiliated organization
   5-22  disclosed under Subdivision (2) of this article, the applicable
   5-23  information that is required of a seller under Subdivisions (3)-(6)
   5-24  of this article;
   5-25              (8)  the complete street address of each location of
   5-26  the seller, designating the principal location from which the
   5-27  seller will be conducting business;
   5-28              (9)  if the principal business location of the seller
   5-29  is not in this state, a designation of its main location in the
   5-30  state;
   5-31              (10)  a listing of each telephone number to be used by
   5-32  the seller and the address where each telephone using the number is
   5-33  located;
   5-34              (11)  the name and title of each of the seller's
   5-35  officers, directors, trustees, general and limited partners, sole
   5-36  proprietor, and owners, as applicable, and the name of each of
   5-37  those persons who have management responsibilities in connection
   5-38  with the seller's business activities;
   5-39              (12)  the complete address of the principal residence,
   5-40  the date of birth, and the number and state of issuance of the
   5-41  driver's license of each person whose name is disclosed under
   5-42  Subdivision (11) of this article;
   5-43              (13)  the name and principal residence address of each
   5-44  person the seller leaves in charge at each location from which the
   5-45  seller does business in this state, and the business location at
   5-46  which each of these persons is or will be in charge;
   5-47              (14)  the name and principal residence address of each
   5-48  salesperson who solicits on behalf of the seller or a copy of the
   5-49  "Employer's Quarterly Report" for employee wages the seller files
   5-50  with the Texas Employment Commission and the name the salesperson
   5-51  uses while soliciting;
   5-52              (15)  the name and address of the seller's agent in
   5-53  this state, other than the secretary of state, authorized to
   5-54  receive service of process; and
   5-55              (16)  the name and address of each financial
   5-56  institution with which banking or similar monetary transactions are
   5-57  made by the seller and the identification number of each of the
   5-58  seller's accounts in each institution.
   5-59        Art. 13.  DISCLOSURE OF CERTAIN CONVICTIONS, JUDGMENTS,
   5-60  ORDERS, AND BANKRUPTCIES.  (a)  With respect to the seller and each
   5-61  person identified under Subdivision (11) or (13), Article 12, of
   5-62  this chapter, a registration statement must state the identity of
   5-63  each person:
   5-64              (1)  who has been convicted of or pleaded nolo
   5-65  contendere to a felony or misdemeanor involving an alleged
   5-66  violation of this chapter, or fraud, theft, embezzlement,
   5-67  fraudulent conversion, or misappropriation of property;
   5-68              (2)  against whom has been entered a final judgment or
   5-69  order in a civil or administrative action, including a stipulated
   5-70  judgment or order, in which the complaint or petition alleged acts
    6-1  constituting a violation of this chapter, fraud, theft,
    6-2  embezzlement, fraudulent conversion, or misappropriation of
    6-3  property, the use of untrue or misleading representations in an
    6-4  attempt to sell or dispose of real or personal property, or the use
    6-5  of unfair, unlawful, or deceptive business practices;
    6-6              (3)  who is subject to an injunction or restrictive
    6-7  court order relating to business activity as the result of an
    6-8  action brought by a federal, state, or local public agency,
    6-9  including an action affecting any vocational license; or
   6-10              (4)  who has, during the previous seven tax years,
   6-11  filed in bankruptcy, been adjudged a bankrupt, been reorganized due
   6-12  to insolvency, or has been a principal, director, officer, trustee,
   6-13  general or limited partner, or had management responsibilities of a
   6-14  corporation, partnership, joint venture, or other business entity
   6-15  that has filed in bankruptcy, been adjudged a bankrupt, or been
   6-16  reorganized due to insolvency while the person held that position
   6-17  or within one year after the date on which the person last held
   6-18  that position.
   6-19        (b)  Under Subsections (a)(1), (2), and (3) of this article,
   6-20  the statement must identify the court or administrative agency
   6-21  rendering the conviction, judgment, or order, the docket number of
   6-22  the matter, the date of conviction, judgment, or order, and the
   6-23  name of the governmental agency, if any, that brought the action
   6-24  resulting in the conviction, judgment, or order.  Under Subsection
   6-25  (a)(4) of this article, the statement must include the name and
   6-26  location of the person filing in bankruptcy, adjudged a bankrupt,
   6-27  or reorganized due to insolvency, and must include the date of the
   6-28  filing, judgment, or reorganization order, the court having
   6-29  jurisdiction, and the docket number of the matter.
   6-30        Art. 14.  DISCLOSURE OF CERTAIN SALES INFORMATION.  The
   6-31  registration statement must be accompanied by the following
   6-32  information:
   6-33              (1)  a description of the items the seller is offering
   6-34  for sale;
   6-35              (2)  a copy of all sales information and literature,
   6-36  including scripts, outlines, instructions, and information
   6-37  regarding the conduct of telephone solicitations, sample
   6-38  introductions, sample closings, product information, and contest or
   6-39  premium-award information, provided by the seller to salespersons
   6-40  or about which the seller informs salespersons, and a copy of all
   6-41  written material the seller sends to any purchaser;
   6-42              (3)  if the seller represents or implies, or directs
   6-43  salespersons to represent or imply, to purchasers that the
   6-44  purchaser will receive a specific item, including a certificate
   6-45  that the purchaser must redeem to obtain the item described in the
   6-46  certificate, or one or more items from among designated items,
   6-47  whether the items are denominated as gifts, premiums, bonuses,
   6-48  prizes, or otherwise:
   6-49                    (A)  a list of the items described;
   6-50                    (B)  the value of each item and the basis for the
   6-51  valuation;
   6-52                    (C)  the price paid by the seller to its supplier
   6-53  for each item and the name, address, and telephone number of each
   6-54  item's supplier;
   6-55                    (D)  if the purchaser is to receive fewer than
   6-56  all of the items described by the seller:
   6-57                          (i)  the manner in which the  seller
   6-58  decides which item a particular purchaser is to receive;
   6-59                          (ii)  for each item, the odds of a single
   6-60  purchaser's receiving the item; and
   6-61                          (iii)  the name and address of each
   6-62  recipient who has received, during the preceding 12 months, or if
   6-63  the seller has not been in business that long, during the period
   6-64  the seller has been in business, the item having the greatest value
   6-65  and the item with the smallest odds of being received; and
   6-66                    (E)  all rules, regulations, terms, and
   6-67  conditions a purchaser must meet in order to receive the item;
   6-68              (4)  if the seller is offering an item that the seller
   6-69  neither manufactures nor supplies:
   6-70                    (A)  the name, address, and telephone number of
    7-1  each of the seller's suppliers and a description of each item
    7-2  provided by the supplier;
    7-3                    (B)  if the possession of the item is to be
    7-4  retained by the seller or will not be transferred to the purchaser
    7-5  until the purchaser has paid in full:
    7-6                          (i)  the address of each location where the
    7-7  item will be kept;
    7-8                          (ii)  if not kept on premises owned by the
    7-9  seller or at an address registered under Subdivision (8) or (9),
   7-10  Article 12, of this chapter, the name of the owner of the business
   7-11  at which the item will be kept; and
   7-12                          (iii)  a copy of any contract or other
   7-13  document that evidences the seller's right to store the item at the
   7-14  address designated under Subparagraph (ii) of this paragraph;
   7-15                    (C)  if the seller is not selling the item from
   7-16  its own inventory but purchases the item to fill an order already
   7-17  taken from a purchaser, copies of all contracts or other documents
   7-18  evidencing the seller's ability to call on suppliers to fill the
   7-19  seller's orders;
   7-20                    (D)  if the seller represents to purchasers that
   7-21  the seller has insurance or a surety bond of any type relating to a
   7-22  purchaser's purchase of any item, a complete copy of each insurance
   7-23  policy and bond; and
   7-24                    (E)  if the seller makes any representation as to
   7-25  the post-purchase earning or profit potential of an item, data to
   7-26  substantiate the claims made, and if the representation relates to
   7-27  previous sales made by the seller or a related entity,
   7-28  substantiating data based on the experiences of at least 50 percent
   7-29  of the persons who purchased that particular type of item from the
   7-30  seller or related entity during the preceding six months, or if the
   7-31  seller or related entity has not been in business that long, during
   7-32  the period the seller or related entity has been in business,
   7-33  including:
   7-34                          (i)  the length of time the seller or
   7-35  related entity has been selling the particular type of item being
   7-36  offered;
   7-37                          (ii)  the number of purchasers of the item
   7-38  from the seller or related entity known to the seller or related
   7-39  entity to have made at least the same earnings or profit as those
   7-40  represented; and
   7-41                          (iii)  the percentage that the number
   7-42  disclosed under Subparagraph (ii) of this paragraph represents of
   7-43  the total number of purchasers from the seller or related entity of
   7-44  the particular type of item offered; and
   7-45              (5)  if the seller is offering to sell an interest in
   7-46  oil, gas, or a mineral field, well, or exploration site:
   7-47                    (A)  the seller's ownership interest, if any, in
   7-48  each field, well, or site being offered for sale;
   7-49                    (B)  the total number of interests to be sold in
   7-50  each field, well, or site being offered for sale; and
   7-51                    (C)  if, in selling an interest in any particular
   7-52  field, well, or site, reference is made to an investigation of the
   7-53  field, well, or site by the seller or anyone else:
   7-54                          (i)  the name, business address, telephone
   7-55  number, and professional credentials of the person who made the
   7-56  investigation; and
   7-57                          (ii)  a copy of the report and other
   7-58  documents relating to the investigation prepared by the person.
   7-59           SUBCHAPTER D.  ADDITIONAL INFORMATION FROM SELLER
   7-60        Art. 15.  INFORMATION POSTED OR AVAILABLE AT SELLER'S
   7-61  BUSINESS LOCATION.  (a)  A seller shall post the certificate of
   7-62  registration in a conspicuous place at the location for which it is
   7-63  issued.
   7-64        (b)  A seller shall make available at each of the seller's
   7-65  business locations a copy of the entire registration statement and
   7-66  update addenda, if any, for inspection by any purchaser or
   7-67  representative of any governmental agency.
   7-68        (c)  A seller shall post in close proximity to the
   7-69  certificate of registration the name of each individual in charge
   7-70  of the location.
    8-1        Art. 16.  DISCLOSURES TO PROSPECTIVE PURCHASERS.  A seller
    8-2  shall, when the solicitation is made and before consummation of any
    8-3  sales transaction, provide to each purchaser:
    8-4              (1)  the complete street address of the location from
    8-5  which the salesperson is calling the purchaser and, if different,
    8-6  the complete street address of the seller's principal location;
    8-7              (2)  if the seller represents or implies that a
    8-8  purchaser will receive without charge a specified item or one item
    8-9  from among designated items, whether the items are denominated as
   8-10  gifts, premiums, bonuses, prizes, or otherwise:
   8-11                    (A)  the information required to be filed by
   8-12  Subdivisions (3)(D)(i) and (ii) and (3)(E), Article 14, of this
   8-13  chapter, as appropriate; and
   8-14                    (B)  the total number of individuals who have
   8-15  actually received from the seller during the preceding 12 months,
   8-16  or if the seller has not been in the business that long, during the
   8-17  period the seller has been in business, the item having the
   8-18  greatest value and the item with the smallest odds of being
   8-19  received;
   8-20              (3)  if the seller is offering to sell an interest in
   8-21  oil, gas, or mineral field, well, or exploration site, the
   8-22  information required by Subdivision (5), Article 14, of this
   8-23  chapter; and
   8-24              (4)  if the seller represents that an item is being
   8-25  offered at a price below that usually charged for the item, the
   8-26  name of the manufacturer of the item.
   8-27        Art. 17.  NO REFERENCE TO COMPLIANCE WITH STATUTE.  A seller
   8-28  may not make or authorize the making of a reference to its
   8-29  compliance with this chapter to a purchaser.
   8-30                        SUBCHAPTER E.  OFFENSES
   8-31        Art. 18.  VIOLATION OF CHAPTER.  (a)  A person commits an
   8-32  offense if the person knowingly or intentionally violates Article
   8-33  4, 9, 15, 16, or 17 of this chapter.  Each violation constitutes a
   8-34  separate offense.
   8-35        (b)  An offense under this article is a Class A misdemeanor.
   8-36        Art. 19.  SALESPERSON FOR UNREGISTERED SELLER.  (a)  A person
   8-37  commits an offense if the person knowingly or intentionally acts as
   8-38  a salesperson on behalf of a seller who violates the registration
   8-39  requirements of this chapter.  Each violation constitutes a
   8-40  separate offense.
   8-41        (b)  An offense under this article is a Class A misdemeanor.
   8-42        Art. 19A.  CHARGE TO A CREDIT CARD ACCOUNT OR DEBIT OF A
   8-43  CHECKING ACCOUNT AFTER OFFER OF FREE ITEM.  (a)  A seller commits
   8-44  an offense if the seller knowingly:
   8-45              (1)  represents or implies that a purchaser will
   8-46  receive without charge an item or service, regardless of whether
   8-47  denominated as a gift, premium, bonus, prize, or otherwise; and
   8-48              (2)  requests a credit card account number or checking
   8-49  account number from the purchaser for the purpose of charging to
   8-50  the credit card account or debiting from the checking account an
   8-51  amount as a condition precedent to the purchaser's receipt of an
   8-52  item.
   8-53        (b)  An offense under this article is a Class A misdemeanor.
   8-54                      SUBCHAPTER F.  ENFORCEMENT
   8-55        Art. 20.  INJUNCTION.  The attorney general may sue in a
   8-56  court of competent jurisdiction to enjoin a person from violating
   8-57  this chapter.  The attorney general shall notify the defendant of
   8-58  the alleged prohibited conduct not later than the seventh day
   8-59  before the date the suit is filed, unless the attorney general
   8-60  intends to request that the court issue a temporary restraining
   8-61  order, in which event notice is not required.  The party bringing
   8-62  the suit shall recover all reasonable costs of prosecuting these
   8-63  cases including, but not limited to, costs of investigation,
   8-64  depositions, witness fees, attorney's fees, and other costs of
   8-65  court.
   8-66        Art. 21.  CIVIL PENALTIES.  A person is subject to a civil
   8-67  penalty of not more than $5,000 for a single violation.  A person
   8-68  who violates an injunction issued under Article 20 of this chapter
   8-69  is liable to the state for a civil penalty of not more than $25,000
   8-70  for a single violation and not more than $50,000 for all violations
    9-1  of the injunction.  The attorney general may bring suit to recover
    9-2  the civil penalty in the court that issued the original injunction.
    9-3  The party bringing the suit shall also recover all reasonable costs
    9-4  of prosecuting these cases including, but not limited to, costs of
    9-5  investigation, depositions, witness fees, attorney's fees, and
    9-6  other costs of court.
    9-7        Art. 22.  DECEPTIVE TRADE PRACTICES.  A violation of this
    9-8  chapter is a false, misleading, or deceptive act or practice under
    9-9  Subchapter E, Chapter 17, Business & Commerce Code, and its
   9-10  subsequent amendments, and any public or private right or remedy
   9-11  prescribed by that subchapter may be used to enforce this chapter.
   9-12        Art. 23.  ACTION TO RECOVER AGAINST SECURITY.  (a)  A person
   9-13  who is injured by the bankruptcy of a seller or the seller's breach
   9-14  of an agreement entered into during a telephone solicitation may
   9-15  bring and maintain an action to recover against the bond, letter of
   9-16  credit, or certificate of deposit required under Article 10 of this
   9-17  chapter.
   9-18        (b)  The liability of the surety on a bond provided pursuant
   9-19  to Article 10 of this chapter does not exceed the amount of the
   9-20  bond, regardless of the number of claims filed or the aggregate
   9-21  amount claimed.  If the amount claimed exceeds the amount of the
   9-22  bond, the surety shall deposit the amount of the bond with the
   9-23  secretary of state for distribution to claimants entitled to
   9-24  recovery, and the surety is then relieved of all liability under
   9-25  the bond.
   9-26        Art. 24.  NO WAIVER.  An attempted waiver of a provision of
   9-27  this chapter is void.
   9-28        Art. 25.  CUMULATIVE REMEDIES.  The remedies provided by this
   9-29  chapter are in addition to any other procedures or remedies
   9-30  provided for by other law.
   9-31        SECTION 2.  (a)  This Act takes effect September 1, 1993.
   9-32        (b)  The change in law made by this Act applies only to an
   9-33  offense committed on or after the effective date of this Act.  For
   9-34  purposes of this section, an offense is committed before the
   9-35  effective date of this Act if any element of the offense occurs
   9-36  before that date.
   9-37        SECTION 3.  The importance of this legislation and the
   9-38  crowded condition of the calendars in both houses create an
   9-39  emergency and an imperative public necessity that the
   9-40  constitutional rule requiring bills to be read on three several
   9-41  days in each house be suspended, and this rule is hereby suspended.
   9-42                               * * * * *
   9-43                                                         Austin,
   9-44  Texas
   9-45                                                         May 24, 1993
   9-46  Hon. Bob Bullock
   9-47  President of the Senate
   9-48  Sir:
   9-49  We, your Committee on Economic Development to which was referred
   9-50  H.B. No. 364, have had the same under consideration, and I am
   9-51  instructed to report it back to the Senate with the recommendation
   9-52  that it do pass and be printed.
   9-53                                                         Parker,
   9-54  Chairman
   9-55                               * * * * *
   9-56                               WITNESSES
   9-57                                                  FOR   AGAINST  ON
   9-58  ___________________________________________________________________
   9-59  Name:  Teri Flack                                              x
   9-60  Representing:  Office of the Attorney General
   9-61  City:  Austin
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