By Marchant                                            H.B. No. 813
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of certain consumer credit transactions;
    1-3  providing civil penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subsection (f), Article 7.01, Title 79, Revised
    1-6  Statutes (Article 5069-7.01, Vernon's Texas Civil Statutes), is
    1-7  amended to read as follows:
    1-8        (f)  "Cash Price" means the price at which a creditor, in the
    1-9  ordinary course of business, offers to sell for cash the property
   1-10  or service that is the subject of the transaction.  At the
   1-11  creditor's option, the term may include the price of accessories,
   1-12  services related to the sale, service contracts and taxes and fees
   1-13  for license, title, and registration.  The term does not include
   1-14  any finance charge <stated in a retail installment contract for
   1-15  which the seller would have sold to the buyer and the buyer would
   1-16  have bought from the seller, the motor vehicle and other goods and
   1-17  services which are the subject matter of such contract if such sale
   1-18  had been a sale for cash.  The cash price may include any taxes and
   1-19  charges for delivering, servicing, repairing, altering or improving
   1-20  the motor vehicle, or for installation of the motor vehicle or of
   1-21  goods to the motor vehicle, and charges for accessories and goods
   1-22  related to or used with the motor vehicle, if such charges are made
   1-23  to both cash and credit buyers alike and may include any of the
    2-1  charges described in Subsections (ii) and (iii) of Section (g) of
    2-2  this Article if they are not separately itemized on the contract>.
    2-3        SECTION 2.  Subsection (h-1), Article 7.01, Title 79, Revised
    2-4  Statutes (Article 5069-7.01, Vernon's Texas Civil Statutes), is
    2-5  amended to read as follows:
    2-6        (h-1)  In addition to the provisions of Section (h) of this
    2-7  article, "principal balance" includes a motor vehicle inspection
    2-8  fee and a documentary fee for services actually rendered to, for or
    2-9  on behalf of the retail buyer in preparing, handling, and
   2-10  processing documents relating to the motor vehicle and the closing
   2-11  of the transaction evidenced by the retail installment contract.
   2-12  If a documentary fee is charged:
   2-13              (i)  it must be charged to both cash and credit buyers;
   2-14              (ii)  it may not exceed $50 <25>;
   2-15              (iii)  it shall be disclosed on the retail installment
   2-16  contract as a separate itemized charge; and
   2-17              (iv)  the buyer's order and the retail installment
   2-18  contract shall include in reasonable proximity to the point in the
   2-19  buyer's order and retail installment contract where the documentary
   2-20  fee is disclosed the amount of the documentary fee to be charged
   2-21  and the following notice in type that is boldfaced, capitalized,
   2-22  underlined, or otherwise set out from surrounding written material
   2-23  so as to be conspicuous:
   2-24        "A DOCUMENTARY FEE IS NOT AN OFFICIAL FEE.  A
   2-25        DOCUMENTARY FEE IS NOT REQUIRED BY LAW, BUT MAY BE
    3-1        CHARGED TO BUYERS FOR HANDLING DOCUMENTS AND PERFORMING
    3-2        SERVICES RELATING TO THE CLOSING OF A SALE.  BUYERS MAY
    3-3        AVOID PAYMENT OF THE FEE TO THE SELLER BY HANDLING THE
    3-4        DOCUMENTS AND PERFORMING THE SERVICES RELATING TO THE
    3-5        CLOSING OF THE SALE.  A DOCUMENTARY FEE MAY NOT EXCEED
    3-6        $50 <25>.  THIS NOTICE IS REQUIRED BY LAW."
    3-7              (v)  If the language primarily used in the oral sales
    3-8  presentation is not the same as that in which the retail
    3-9  installment contract is written, the seller shall furnish to the
   3-10  buyer a written statement containing the notice set out in
   3-11  Subsection (iv) in the language primarily used in the oral sales
   3-12  presentation.
   3-13        SECTION 3.  Section (9), Article 7.06, Title 79, Revised
   3-14  Statutes (Article 5069-7.06, Vernon's Texas Civil Statutes), is
   3-15  amended to read as follows:
   3-16        (9)  A buyer and seller may agree to include motor vehicle
   3-17  property damage or bodily injury liability insurance, mechanical
   3-18  breakdown insurance, motor vehicle theft protection plans,
   3-19  insurance to reimburse the buyer the difference, if any, between
   3-20  the proceeds of the buyer's basic collision policy on the vehicle
   3-21  and the amount owed on the vehicle, in the event that the vehicle
   3-22  has been rendered a total loss, or a warranty or service contract
   3-23  relating to the motor vehicle as a separate charge in a contract
   3-24  for the sale of a motor vehicle.  If a charge is added to a
   3-25  contract as provided by this section, the contract shall clearly
    4-1  and conspicuously disclose that fact.
    4-2        SECTION 4.  Article 7.09, Title 79, Revised Statutes (Article
    4-3  5069-7.09, Vernon's Texas Civil Statutes), is amended to read as
    4-4  follows:
    4-5        Art. 7.09.  Application.  None of the provisions of this
    4-6  Chapter shall affect or apply to any loans or to the business of
    4-7  making loans under or in accordance with the laws of this State,
    4-8  nor shall any of the provisions of the loan or interest statutes of
    4-9  this State affect or apply to any retail installment transaction.
   4-10  Nor shall any seller pay, promise to pay, or otherwise tender cash
   4-11  to any buyer as a part of any transaction made pursuant to this
   4-12  Chapter unless otherwise specifically authorized by this Chapter.
   4-13  A seller may pay, promise to pay, or tender cash or other thing of
   4-14  value to the manufacturer, distributor or buyer of the product if
   4-15  the payment, promise, or tender is made in order to participate in
   4-16  a financial incentive program offered by the manufacturer or
   4-17  distributor of the product to the retail purchaser.  Nothing in
   4-18  this Chapter shall be construed to impair or in any way affect any
   4-19  rule of law applicable to, or governing retail installment sales
   4-20  not otherwise subject hereto.  This Chapter shall apply exclusively
   4-21  to all retail installment transactions as defined in  Article 7.01.
   4-22        The provisions of this Chapter defining specific rates and
   4-23  amounts of charges requiring certain credit disclosures to be made
   4-24  shall be deemed to control over any contrary Texas law respecting
   4-25  those subjects.  Except as displaced by the particular provisions
    5-1  of this Chapter, the Uniform Commercial Code as adopted in Texas,
    5-2  other applicable statutes, and the principles of the common law
    5-3  shall remain applicable to transactions hereunder to the extent
    5-4  they are applicable.
    5-5        SECTION 5.  Article 7.11, Title 79, Revised Statutes (Article
    5-6  5069-7.11, Vernon's Texas Civil Statutes), is amended to read as
    5-7  follows:
    5-8        Art. 7.11.  Registration.  (1)  Each holder governed by this
    5-9  chapter who is not a credit union or an authorized lender under
   5-10  Chapter 3 of this title shall register with the Office of Consumer
   5-11  Credit Commissioner.  Each holder shall pay an annual fee of $25
   5-12  <$10> for each location at which credit transactions subject to
   5-13  this chapter are originated, serviced, or collected.  The
   5-14  commissioner by rule may establish procedures to facilitate the
   5-15  registration and collection of fees, including rules staggering the
   5-16  due dates of the fees throughout the year.  If a holder or seller
   5-17  fails to renew the holder's or seller's registration, the
   5-18  commissioner shall, not later than 30 days after the expiration of
   5-19  the registration, notify the holder or seller of the expiration,
   5-20  and of the procedures applicable to renewal.  A registration
   5-21  renewal is timely if filed with the commissioner, together with the
   5-22  annual registration fee, not later than 30 days after receipt of
   5-23  notice of expiration.  A holder or seller who fails to renew timely
   5-24  as required by this section is subject to the penalties set forth
   5-25  in Section (2) of this Article.
    6-1        (2)  The commissioner may impose a penalty not to exceed $50
    6-2  for failure to register as required by this Article.  The
    6-3  commissioner may impose a penalty not to exceed $250 for failure of
    6-4  the holder to renew the holder's existing registration and submit
    6-5  the appropriate fee as required by this Article.  The penalties
    6-6  provided by this section are the sole and exclusive penalties for a
    6-7  violation of this Article.  The fact that a holder or seller was
    6-8  not registered as required by this Article at the time of execution
    6-9  of a contract does not render invalid or unenforceable a contract
   6-10  otherwise valid and enforceable and does not subject an
   6-11  unregistered holder to liability to the state or to any person
   6-12  under Article 8.01 of this Subtitle or any other provision of this
   6-13  Subtitle or other law or at common law, other than that liability
   6-14  established by this subsection.
   6-15        SECTION 6.  Section (b), Article 8.01, Title 79, Revised
   6-16  Statutes (Article 5069-8.01, Vernon's Texas Civil Statutes), is
   6-17  amended to read as follows:
   6-18        (b)  Except as otherwise provided by a provision of this
   6-19  Subtitle, a <Any> person who violates this Subtitle <or Chapter 14
   6-20  of this Title> by (i) failing to perform any duty or requirement
   6-21  specifically imposed on him by any provision of this Subtitle <or
   6-22  Chapter 14 of this Title>, or by (ii) committing any act or
   6-23  practice prohibited by this Subtitle <or Chapter 14 of this Title>,
   6-24  shall be liable to the obligor for a penalty in an amount not to
   6-25  exceed three times the actual economic loss suffered by the obligor
    7-1  as a result of the violation, and, on a showing that the violation
    7-2  was committed knowingly and wilfully, a penalty of not more than
    7-3  $1,000, together with <equal to twice the time price differential
    7-4  or interest contracted for, charged, or received but not to exceed
    7-5  $2,000 in a transaction in which the amount financed is $5,000 or
    7-6  less, and not to exceed $4,000 in a transaction in which the amount
    7-7  financed is in excess of $5,000 and> reasonable attorneys' fees
    7-8  fixed by the court.
    7-9        SECTION 7.  Subsection (3), Section (c), Article 8.01, Title
   7-10  79, Revised Statutes (Article 5069-8.01, Vernon's Texas Civil
   7-11  Statutes), is amended to read as follows:
   7-12        (3)  If, subsequent to the times specified in Article
   7-13  8.01(c)(1) and (2) of this Act but prior to the obligor having
   7-14  given written notice of or having filed an action alleging a
   7-15  violation for which a penalty is provided in Article 8.01(b) of
   7-16  this Act, such violation is corrected as to such obligor by
   7-17  performing the required duty or act and written notice of such
   7-18  violation is given to such obligor, then the liability of any
   7-19  person to such obligor shall be limited in each transaction to a
   7-20  penalty in an amount equal to the actual economic loss suffered by
   7-21  the obligor as a result of the violation <time price differential
   7-22  or interest contracted for, charged, or received but not to exceed
   7-23  $2,000> and reasonable attorneys' fees fixed by the court.
   7-24        SECTION 8.  The amendments to Articles 7.11 and 8.01, Title
   7-25  79, Revised Statutes (Article 5069-7.11 and Article 5069-8.01,
    8-1  Vernon's Texas Civil Statutes), made by this Act apply only to
    8-2  claims made after the effective date of this Act.  The fee increase
    8-3  provided by Section 5 of this bill is effective September 1, 1993.
    8-4  The remainder of the bill is effective as provided by Section 9 of
    8-5  the bill.
    8-6        SECTION 9.  The importance of this legislation and the
    8-7  crowded condition of the calendars in both houses create an
    8-8  emergency and an imperative public necessity that the
    8-9  constitutional rule requiring bills to be read on three several
   8-10  days in each house be suspended, and this rule is hereby suspended,
   8-11  and that this Act take effect and be in force from and after its
   8-12  passage, and it is so enacted.