1-1  By:  Giddings (Senate Sponsor - West)                 H.B. No. 2243
    1-2        (In the Senate - Received from the House May 17, 1993;
    1-3  May 18, 1993, read first time and referred to Committee on Economic
    1-4  Development; May 20, 1993, rereferred to Committee on State
    1-5  Affairs; May 22, 1993, reported favorably by the following vote:
    1-6  Yeas 8, Nays 0; May 22, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Harris of Dallas                               x   
   1-10        Rosson             x                               
   1-11        Carriker                                       x   
   1-12        Henderson                                      x   
   1-13        Leedom             x                               
   1-14        Lucio              x                               
   1-15        Luna                                           x   
   1-16        Nelson             x                               
   1-17        Patterson          x                               
   1-18        Shelley                                        x   
   1-19        Sibley             x                               
   1-20        West               x                               
   1-21        Whitmire           x                               
   1-22                         A BILL TO BE ENTITLED
   1-23                                AN ACT
   1-24  relating to the regulation of health spas; providing penalties;
   1-25  making an appropriation.
   1-26        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-27        SECTION 1.  Section 6, Health Spa Act (Article 5221l,
   1-28  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-29        Sec. 6.  DEFINITIONS.  In this Act:
   1-30              (a)  "Closed," "closes," or "closing" means a condition
   1-31  where:
   1-32                    (1)  the facilities of a health spa are no longer
   1-33  available to its members and equivalent facilities within 10 miles
   1-34  of the closed facilities have not been made available to members of
   1-35  the closed facilities; or
   1-36                    (2)  the registrant has sold a registered
   1-37  location and the security required by Section 8 has either been
   1-38  cancelled, withdrawn, or otherwise unavailable for the use of
   1-39  members; or
   1-40                    (3)  the registrant has sold a registered
   1-41  location and the new owner has neither adopted nor honored the
   1-42  contracts of existing members.
   1-43              (b) <(1)>  "Contract" means an agreement by which a
   1-44  person <one> becomes a member of a health spa.
   1-45              (c) <(2)>  "Facilities" means equipment, physical
   1-46  structures, improvements, improvements to leasehold premises, and
   1-47  other tangible property, real, personal, or mixed, used by a health
   1-48  spa at each location to conduct its business, including but not
   1-49  limited to saunas, whirlpool baths, gymnasiums, running tracks,
   1-50  swimming pools, shower areas, racquetball courts, martial arts
   1-51  equipment, and exercise equipment.
   1-52              (d)  "Fully open" or "fully open for business" means
   1-53  the date on which all services of the health spa that were
   1-54  advertised before the opening or promised to be made available are
   1-55  available for use by its members.
   1-56              (e) <(3)>  "Health spa" means a business <primarily>
   1-57  involved in the sale of memberships that provides the members
   1-58  instruction in a program of physical exercise or provides the
   1-59  members use of the facilities of the health spa for a program of
   1-60  physical exercise.  The term does not include an organization that
   1-61  is tax exempt under 26 U.S.C. 501 et seq., a private club owned and
   1-62  operated by its members, an entity exclusively <primarily> operated
   1-63  for the purpose of teaching dance or aerobic exercise, an entity
   1-64  exclusively <primarily> engaged in physical rehabilitation activity
   1-65  related to an individual's injury or disease, an individual or
   1-66  entity engaged in an activity authorized under a valid license
   1-67  issued by this state, or an activity conducted or sanctioned by a
   1-68  school operating under the Education Code.
    2-1              (f)  "Location" means the physical site or place where
    2-2  health spa facilities are located.
    2-3              (g) <(4)>  "Member" means a person entitled to the
    2-4  benefits of membership in a health spa.
    2-5              (h) <(5)>  "Membership" means the status under a
    2-6  contract between an individual and a health spa that entitles the
    2-7  individual to the use of services or facilities of the health spa.
    2-8              (i)  "Obligor" means a person other than a surety who
    2-9  is obligated to perform in the event of a registrant's default.
   2-10              (j) <(6)>  "Person" means an individual, corporation,
   2-11  association, organization, partnership, business trust, trust,
   2-12  estate, and any other legal entity.
   2-13              (k) <(7)>  "Prepayment" means consideration paid to a
   2-14  health spa by a purchaser prior to the time that the health spa is
   2-15  fully open for business <a payment for all services or for the use
   2-16  of facilities made by members of a health spa before the first day
   2-17  the services or facilities are made available to the members>.
   2-18              (l) <(8)>  "Purchaser" means a person who <purchases a
   2-19  health spa membership> seeks or acquires by purchase the use of
   2-20  health spa facilities or services.
   2-21              (m)  "Registrant" means a person who has registered
   2-22  with the secretary and has been issued a health spa operator's
   2-23  certificate of registration.
   2-24              (n)  "Secretary" means the Texas secretary of state.
   2-25              (o) <(9)>  "Seller" means a person who owns or operates
   2-26  a health spa or who offers for sale the right to use the facilities
   2-27  or the services of the health spa.
   2-28              (p) <(10)>  "Services" means programs, plans, guidance,
   2-29  or instruction that a health spa provides for its members,
   2-30  including diet planning, exercise instruction, exercise programs,
   2-31  and instructional classes.
   2-32        SECTION 2.  Section 8, Health Spa Act (Article 5221l,
   2-33  Vernon's Texas Civil Statutes), is amended to read as follows:
   2-34        Sec. 8.  REGISTRATION.  (a)  A person may not operate a
   2-35  health spa or offer for sale or sell memberships in a health spa in
   2-36  this state unless the person possesses a valid health spa
   2-37  operator's certificate of registration.
   2-38        (b)  Each applicant for a health spa operator's certificate
   2-39  of registration shall file with the secretary of state for each
   2-40  location an application for registration containing the following
   2-41  information:
   2-42              (1)  the legal name, address, and telephone number of
   2-43  the applicant;
   2-44              (2)  the trade name by which the applicant does
   2-45  business, and if incorporated, the name registered with the
   2-46  secretary of state, the location of the registered office, and the
   2-47  name and address of any person who directly or indirectly owns or
   2-48  controls 10 percent or more of the outstanding shares of stock in
   2-49  the corporation;
   2-50              (3)  the date on which the applicant became the owner
   2-51  and operator of the business;
   2-52              (4)  the address of the health spa;
   2-53              (5)  the type of available or proposed facilities and
   2-54  services offered at the location;
   2-55              (6)  samples of all contracts used by the seller in
   2-56  connection with the sale of memberships.
   2-57        (c)  Each application for a health spa operator's certificate
   2-58  of registration shall be accompanied by proof of the security
   2-59  required by this Act and payment of the required fee for issuance
   2-60  of the certificate.
   2-61        (d)  All certificates of registration are valid for a period
   2-62  of one year from the date of issuance and are renewable as provided
   2-63  by the secretary.
   2-64        (e)  The registrant shall amend the application for
   2-65  registration not later than the 90th day after the day on which a
   2-66  change in the information provided in the statement occurs.
   2-67        (f)  A health spa operator's certificate of registration is
   2-68  not transferrable.  In the event a registrant sells or otherwise
   2-69  transfers ownership in a registered health spa location, the new
   2-70  owner shall file an application of registration as required by this
    3-1  section no later than the fifth day following the date of sale.
    3-2        (g)  The secretary may charge each applicant for a
    3-3  certificate of registration a reasonable fee not to exceed $100 to
    3-4  cover the cost of application or renewal.
    3-5        (h)  The secretary, after notice and hearing, may refuse to
    3-6  issue or may permanently revoke or suspend for a definite period of
    3-7  time a certificate of registration if the secretary finds that the
    3-8  applicant or registrant:
    3-9              (1)  furnished false information on any application,
   3-10  report, or other document filed with the secretary;
   3-11              (2)  failed to provide the contract disclosure language
   3-12  required by Section 12 of this Act; or
   3-13              (3)  failed to file and maintain the bond or post other
   3-14  security for each location as required by Section 10 of this Act.
   3-15        (i)  A registrant shall prominently post the health spa
   3-16  operator's certificate of registration at each registered location
   3-17  <A health spa shall file a registration statement with the
   3-18  secretary of state before offering for sale or selling memberships
   3-19  in this state.  The health spa shall file a separate registration
   3-20  statement for each location at which the health spa operates.  The
   3-21  registration statement must contain:>
   3-22              <(1)  the name and address of the health spa;>
   3-23              <(2)  the name and address of any person who directly
   3-24  or indirectly owns or controls 10 percent or more of the
   3-25  outstanding shares of stock in the health spa;>
   3-26              <(3)  the type of available or proposed facilities and
   3-27  services offered at that location; and>
   3-28              <(4)  the approximate size of the health spa location
   3-29  measured in square feet.>
   3-30        <(b)  The registration statement must also contain either:>
   3-31              <(1)  a full and complete disclosure of any litigation,
   3-32  or any complaint filed with a governmental authority, relating to
   3-33  the failure to open or the closing of a health spa brought against
   3-34  the owners, officers, or directors of a health spa that was
   3-35  completed within the past two years or is currently pending; or>
   3-36              <(2)  a notarized statement that states that there has
   3-37  been no litigation, or complaint filed with a governmental
   3-38  authority, relating to the opening or closing of the health spa
   3-39  within the past two years.>
   3-40        <(c)  The health spa shall update the statement not later
   3-41  than the 90th day after the day on which a change in the
   3-42  information required in the statement occurs.>
   3-43        <(d)  Each health spa registering under this section shall
   3-44  maintain a copy of the registration statement filed for each
   3-45  location in the records of the health spa.  The health spa shall
   3-46  allow a current member or a prospective purchaser of a membership
   3-47  to inspect a registration statement on request.>
   3-48        <(e)  The secretary of state may charge each health spa that
   3-49  files a registration statement a reasonable fee not to exceed $100
   3-50  to cover the cost of filing.  The secretary of state may not
   3-51  require a health spa to provide information other than that
   3-52  provided in the registration statement>.
   3-53        SECTION 3.  Section 9, Health Spa Act (Article 5221l,
   3-54  Vernon's Texas Civil Statutes), is amended to read as follows:
   3-55        Sec. 9.  ESCROW.  (a)  Except as provided by Subsection (e)
   3-56  of this section, a registrant <health spa> or its assignee or agent
   3-57  that accepts prepayments for its memberships shall deposit all of
   3-58  the funds received as prepayments in an escrow account established
   3-59  with a financial institution whose accounts are insured by the
   3-60  Federal Deposit Insurance Corporation or the Federal Savings and
   3-61  Loan Insurance Corporation, which shall hold the funds as escrow
   3-62  agent for the benefit of the members that prepay.  The registrant
   3-63  <health spa> shall deposit prepayments received at least as often
   3-64  as biweekly and shall make the first deposit not later than the
   3-65  14th day after the day on which the registrant or its agent <spa>
   3-66  accepts the first prepayment.  Not later than the 14th day after
   3-67  the day on which the first prepayment is received, the registrant
   3-68  <spa> shall give the secretary of state a notarized statement that
   3-69  identifies the financial institution in which the prepayments are
   3-70  held in escrow and the name in which the account is held, together
    4-1  with a signed statement on a form approved by the secretary of
    4-2  state which authorizes the secretary to make inquiries of the
    4-3  financial institution regarding the funds in escrow.  The
    4-4  prepayments shall be held in escrow until the 30th day after the
    4-5  date that the health spa fully opens for business.
    4-6        (b)  Except as provided by Subsection (c) of this section, if
    4-7  a health spa does not fully open for business before the 181st day
    4-8  after the date it first sells a membership in the health spa or if
    4-9  the spa does not remain open for 30 days, the members whose fees
   4-10  are held in escrow under this section shall receive a full refund
   4-11  of their membership fees from the escrow agent.
   4-12        (c)  If another health spa operated by the same registrant
   4-13  <seller> is located not more than 10 miles from the proposed
   4-14  location of a new health spa and if the person purchasing the
   4-15  membership is authorized to use these other facilities, a member of
   4-16  the new spa whose fees are held in escrow under this section is
   4-17  entitled to receive a full refund of the membership fees from the
   4-18  escrow agent if the new spa does not fully open for business before
   4-19  the 361st day after the date on which the new spa first sells a
   4-20  membership or if the new spa does not remain open for 30 days.
   4-21        (d)  If the health spa remains open for 30 days after the
   4-22  date the health spa initially fully opens for business, the
   4-23  registrant <health spa> may withdraw the escrowed funds at its
   4-24  discretion if the registrant <health spa> files an affidavit with
   4-25  the secretary of state certifying that all obligations of the
   4-26  health spa for which a lien could be claimed under Chapter 53,
   4-27  Property Code, have been paid and if no person is eligible to claim
   4-28  a lien under that chapter during the period the registrant or its
   4-29  agent <health spa> accepts prepayments.
   4-30        (e)  Subject to the limitations of this subsection, a
   4-31  registrant who is the <an> owner of one or more health spas in
   4-32  operation in this state is not required to escrow prepayments on
   4-33  the opening of an additional health spa in this state if the health
   4-34  spas in operation have operated for at least two years preceding
   4-35  the date the first membership in the additional spa is sold and if
   4-36  none of the members of the spas in operation have initiated
   4-37  litigation against the registrant <owner's spas> relating to the
   4-38  failure to open or the closing of a health spa or filed a complaint
   4-39  relating to the failure to open or the closing of a health spa with
   4-40  any governmental authority in the state against the registrant or
   4-41  any of the owners, officers, or directors of the health spa.  A
   4-42  registrant <An owner of a health spa> is not required to escrow
   4-43  prepayments because of litigation or a complaint based on the
   4-44  closing of a health spa if that closing was caused by a fire,
   4-45  flood, or other natural disaster and if the closing is temporary
   4-46  and does not exceed one month.  A registrant <An owner> is not
   4-47  required to escrow prepayments because of litigation or a complaint
   4-48  based on the closing of a health spa if that closing is due to the
   4-49  relocation of the spa to a site not more than 10 miles from the
   4-50  original location and if the time elapsed between closing the spa
   4-51  at the old location and reopening at the new location does not
   4-52  exceed one month.
   4-53        (f)  The total number of spas opened by the registrant
   4-54  <owner> during any two-year period to which the exception provided
   4-55  by Subsection (e) of this section applies is limited to twice the
   4-56  number of spas in operation on the first day of the two-year
   4-57  period.
   4-58        (g)  For the purposes of this section, the date on which a
   4-59  health spa fully opens is the date on which all services of the spa
   4-60  that were advertised before the opening or promised to be made
   4-61  available, whether or not contained in the contract, are available
   4-62  for use by its members.
   4-63        SECTION 4.  Section 10, Health Spa Act (Article 5221l,
   4-64  Vernon's Texas Civil Statutes), is amended to read as follows:
   4-65        Sec. 10.  SECURITY.  (a)  Except as provided by Section 10B
   4-66  of this Act, the secretary may not issue a certificate of
   4-67  registration, unless the applicant first files a surety bond or
   4-68  posts other security in such form as the secretary may prescribe.
   4-69        (b)  If a surety bond is filed, it shall be continuous and
   4-70  remain in effect until cancelled by the surety company with notice
    5-1  as provided in this section.  If a bond is cancelled, the
    5-2  certificate of registration is suspended on the effective date of
    5-3  cancellation.
    5-4        (c)  The bond shall be a surety bond issued by a company
    5-5  authorized to do business in this state and shall be in conformity
    5-6  with the Insurance Code.
    5-7        (d)  Other security need not be posted annually so long as
    5-8  the applicable amount specified in this section remains posted.  If
    5-9  other security is posted, the interest from the security shall go
   5-10  to the person posting the security.  The other security shall be in
   5-11  such form as the secretary may deem appropriate.
   5-12        (e)  The bond or other security shall be payable in favor of
   5-13  the state and shall be held for the benefit of the state and for
   5-14  the registrant's members who have been administratively adjudicated
   5-15  to have suffered actual financial losses due to the closing of the
   5-16  registrant's health spa.
   5-17        (f)  Actual financial loss shall mean and be limited to those
   5-18  sums which have been paid under a health spa contract to a
   5-19  registrant or a registrant's assignee and which at the time the
   5-20  health spa is closed are unearned.  Actual financial losses shall
   5-21  be calculated by multiplying the gross monthly payment by the total
   5-22  of months remaining on a contract at the time the health spa closes
   5-23  minus any payments not made.  For the purposes of this section:
   5-24              (1)  The gross monthly payment shall be calculated by
   5-25  determining the total of payments, including down payments and
   5-26  initiation fees required by the contract, divided by the total
   5-27  number of months in the term of the contract; and
   5-28              (2)  The date of closing and the date of the contract
   5-29  expiration shall be rounded to the nearest full month.  The total
   5-30  months remaining on the contract shall be calculated by subtracting
   5-31  the date of closing from the expiration date of the contract.  The
   5-32  result shall be expressed in whole months.
   5-33        (g)  The amount of the security required under Subsection (a)
   5-34  of this section is $20,000.
   5-35        (h)  The registrant shall maintain the bond or other security
   5-36  in the amount provided in Subsection (g) of this section in effect
   5-37  for two years after the date on which the health spa closes or
   5-38  until the secretary of state determines that each claim to which
   5-39  the bond or other security deposit is subject has been satisfied or
   5-40  foreclosed by law.
   5-41        (i)  The following provisions shall be applicable to all
   5-42  bonds and other security required by this section:
   5-43              (1)  Regardless of the number of years the bond or
   5-44  other security shall continue in force or the number of premiums
   5-45  payable or paid, the limit of the surety's or obligor's liability
   5-46  stated in the bond or other security shall not be cumulative from
   5-47  year to year or period to period.
   5-48              (2)  The liability of the surety or obligor is
   5-49  exclusively conditioned upon a final administrative order by the
   5-50  secretary, and the bond or other security posted hereunder is
   5-51  subject to no other type of claim.
   5-52        (j)  The surety or obligor must provide written notification
   5-53  to the secretary at least 60 days prior to the cancellation of any
   5-54  bond or other security required by this section.  Any other
   5-55  security on file with the secretary shall remain on file with the
   5-56  secretary for two years after the registrant ceases business or at
   5-57  such later time as the secretary may determine that no claims exist
   5-58  against the security.  <(a)  Not later than the 30th day before the
   5-59  date a health spa opens a location for the use of its members, the
   5-60  health spa shall file with the secretary of state a surety bond
   5-61  issued by a surety company licensed to do business in this state,
   5-62  or, in lieu of and in equal amount to the bond, a security deposit
   5-63  in the form of a certificate of deposit, letter of credit, or other
   5-64  negotiable instrument issued by a financial institution in this
   5-65  state whose deposits are insured by the Federal Deposit Insurance
   5-66  Corporation or the Federal Savings and Loan Insurance Corporation.
   5-67  The bond or other security deposit shall be payable in favor of the
   5-68  state and shall be held for the benefit of any members of the
   5-69  health spa who suffer financial losses due to the insolvency or
   5-70  cessation of operation of the health spa.  "Financial losses" shall
    6-1  mean and be limited to any unused or unearned portion of such
    6-2  member's dues or fees.  Such a member may bring an action based on
    6-3  the bond and recover against the surety regardless of the number of
    6-4  claimants or claims filed against the bond, but the liability of
    6-5  the surety may not exceed the aggregate amount of the bond.  If the
    6-6  claims filed against the bond exceed the amount of the bond, the
    6-7  surety shall pay the amount of the bond to the secretary of state
    6-8  for distribution to the claimants on a pro rata basis.  The surety
    6-9  is relieved of liability under the bond on payment of the amount to
   6-10  the secretary of state.>
   6-11        <(b)  The amount of the security required under Subsection
   6-12  (a) of this section is $20,000.  If a claim is paid from the bond
   6-13  or other security deposit, the health spa must post additional
   6-14  security, not later than the 20th day after the date on which the
   6-15  claim is paid, to restore the amount of the security to $20,000.>
   6-16        <(c)  The health spa shall maintain the bond or other
   6-17  security deposit in the amount provided in Subsection (b) of this
   6-18  section in effect for two years after the date on which the health
   6-19  spa ceases business or until the secretary of state determines that
   6-20  each claim to which the bond or other security deposit is subject
   6-21  has been satisfied or foreclosed by law.>
   6-22        <(d)  The following provisions shall be applicable to all
   6-23  bonds issued hereunder:>
   6-24              <(1)  Regardless of the number of years the bond shall
   6-25  continue in force or the number of premiums payable or paid, the
   6-26  limit of the surety's liability stated in the bond shall not be
   6-27  cumulative from year to year or period to period.>
   6-28              <(2)  The surety shall not be liable through a bond for
   6-29  punitive damages or for civil or criminal penalties assessed
   6-30  against a health spa, its individual owners, or its employees.>
   6-31              <(3)  The bond written by a surety hereunder shall be
   6-32  continuous until cancelled by the surety or terminated by the
   6-33  health spa only upon giving 90 days prior notice to the secretary
   6-34  of state of such cancellation.>
   6-35              <(4)  A surety hereunder shall not be liable for any
   6-36  claim brought or suit filed against a bond if the claim or filing
   6-37  of a suit occurs more than two years from the last effective date
   6-38  of the bond.>
   6-39        SECTION 5.  The Health Spa Act (Article 5221l, Vernon's Texas
   6-40  Civil Statutes) is amended by adding Section 10A to read as
   6-41  follows:
   6-42        Sec. 10A.  ADJUDICATION OF CLAIMS.  (a)  Within 45 days from
   6-43  the date the secretary first discovers that a health spa has
   6-44  closed, the secretary shall publish a display advertisement in a
   6-45  newspaper of general circulation in the county or nearest county in
   6-46  which the health spa is located notifying the public of the fact
   6-47  that the health spa is closed and that a health spa member has 90
   6-48  days from the date of the first notice to perfect a claim under the
   6-49  security posted pursuant to Section 10 of this Act.
   6-50  Contemporaneously with the publication of the notice, the secretary
   6-51  shall notify the surety company or obligor of the pending
   6-52  administrative action.
   6-53        (b)  The notice shall be published for two consecutive
   6-54  Saturdays and Sundays and shall inform those affected of the
   6-55  procedures for perfecting a claim against the security.  The
   6-56  secretary shall have a claim against the security for reasonable
   6-57  expenses incurred in publishing the notice which shall not exceed
   6-58  $3,000.
   6-59        (c)  All claims received by the secretary after 90 days
   6-60  following the date of the first notice are barred and shall not be
   6-61  considered by the secretary.  If the total of claims evidencing
   6-62  actual financial loss exceeds the amount of the security, the
   6-63  secretary shall adjudicate the claims on a pro rata basis by
   6-64  dividing the amount of the security, after first deducting the
   6-65  actual costs for publication of the notice, by the total amount of
   6-66  the claims in order to ascertain a percentage to be applied to each
   6-67  claim.
   6-68        (d)  The secretary shall adopt and publish such rules and
   6-69  regulations as are necessary to determine claims and to insure the
   6-70  prompt and fair distribution of the proceeds from the bond or other
    7-1  security.  Rules adopted by the secretary are subject to the
    7-2  Administrative Procedure and Texas Register Act (Article 6252-13a,
    7-3  Vernon's Texas Civil Statutes).
    7-4        SECTION 6.  The Health Spa Act (Article 5221l, Vernon's Texas
    7-5  Civil Statutes) is amended by adding Section 10B to read as
    7-6  follows:
    7-7        Sec. 10B.  EXEMPTION FROM SECURITY REQUIREMENTS.  (a)  As
    7-8  provided in this section, a health spa registrant may apply for an
    7-9  exemption from the security requirements of Section 10 of this Act.
   7-10  To qualify for an exemption, a registrant must first file an
   7-11  application for an exemption on a form approved by the secretary.
   7-12  The application shall be verified by the person authorized by the
   7-13  secretary to make the application.  Upon approval of the exemption,
   7-14  the secretary shall issue a certificate of exemption.  A registrant
   7-15  who has been granted a certificate of exemption by the secretary
   7-16  shall not be required to post a bond or other security as required
   7-17  by Section 10 of this Act.
   7-18        (b)  A health spa registrant may apply for an exemption from
   7-19  the security requirements of Section 10 if it meets the following
   7-20  criteria:
   7-21              (1)  the registrant does not require a health spa
   7-22  consumer to:
   7-23                    (A)  execute a membership contract for a term
   7-24  exceeding 31 days;
   7-25                    (B)  execute a note or a retail installment
   7-26  contract;
   7-27                    (C)  authorize a draw or other recurring debit on
   7-28  a financial institution to the favor of the registrant or the
   7-29  registrant's assignee;
   7-30                    (D)  pay an initiation fee or other fee except
   7-31  monthly dues; or
   7-32                    (E)  prepay for a term exceeding 31 days; and
   7-33              (2)  the registrant does not solicit or offer any plan
   7-34  or program which contains any of the elements identified in
   7-35  Paragraph (1) of this subsection.
   7-36        (c)  Alternatively, a health spa registrant may apply for an
   7-37  exemption from the security requirements of Section 10 if:
   7-38              (1)  the registrant owns and operates at least one
   7-39  health spa located in this state which has operated continuously at
   7-40  one location for at least five years; and
   7-41              (2)  none of the members of a health spa owned by the
   7-42  registrant has initiated or filed a complaint with any governmental
   7-43  authority in this state relating to the closing of a health spa
   7-44  owned by the registrant or the failure of a health spa owned by the
   7-45  registrant to open.
   7-46        (d)  If a health spa registrant, who has claimed an exemption
   7-47  provided by Subsection (c), closes a health spa or fails to open a
   7-48  health spa and a member of the health spa initiates or files a
   7-49  complaint with any governmental authority in this state relating to
   7-50  the closing of the health spa or the failure of the health spa to
   7-51  open, the registrant may still claim an exemption under Subsection
   7-52  (c) for all health spas operating on the date the health spa closed
   7-53  or failed to open; however, the registrant shall provide the
   7-54  security required by Section 10 for all health spas the registrant
   7-55  opens after the date the spa closed or failed to open.
   7-56        (e)  If a health spa registrant, who has claimed an exemption
   7-57  provided by Subsection (c), has closed or failed to open more than
   7-58  one health spa and a member of one of the affected health spas
   7-59  initiates or files a complaint with any governmental authority in
   7-60  this state relating to the closing of a health spa owned by the
   7-61  registrant or the failure of a health spa owned by the registrant
   7-62  to open, the registrant shall no longer qualify for an exemption
   7-63  under Subsection (c) and shall be subject to the provisions of
   7-64  Subsection (i).
   7-65        (f)  If a health spa registrant, who has claimed an exemption
   7-66  provided by Subsection (c), is forced, due to an act of God or an
   7-67  act of a governmental authority beyond the control of the
   7-68  registrant, to move or temporarily close the location of the health
   7-69  spa which provides the basis for the exemption, the registrant may
   7-70  still claim an exemption under Subsection (c) as long as the spa is
    8-1  not moved more than 10 miles from the original facility.  This
    8-2  subsection shall apply regardless of whether the move is temporary
    8-3  or permanent.
    8-4        (g)  An exemption provided by this section is not
    8-5  transferrable.  If a health spa registrant sells or otherwise
    8-6  transfers ownership in a health spa for which an exemption from the
    8-7  security requirement has been granted, the new owner shall file a
    8-8  new application for an exemption or post the security required by
    8-9  Section 10 of this Act no later than the fifth day following the
   8-10  date of the sale or transfer.
   8-11        (h)  To claim an exemption provided by Subsection (c), a
   8-12  registrant must have continuously owned and operated at least one
   8-13  health spa which is eligible for an exemption under that
   8-14  subsection.  A newly acquired health spa, regardless of its
   8-15  previous eligibility for an exemption, may not provide the basis
   8-16  for an exemption.
   8-17        (i)  The secretary, after notice and hearing, may refuse to
   8-18  issue or may permanently revoke a registrant's certificate of
   8-19  exemption if the secretary finds that the registrant:
   8-20              (1)  furnished false information on the application for
   8-21  exemption; or
   8-22              (2)  no longer qualifies for an exemption.
   8-23        SECTION 7.  Section 11, Health Spa Act (Article 5221l,
   8-24  Vernon's Texas Civil Statutes), is amended to read as follows:
   8-25        Sec. 11.  PREPAYMENTS.  (a)  A registrant <health spa> may
   8-26  offer for sale or sell memberships before the date on which the
   8-27  health spa opens for business.
   8-28        (b)  Except as provided by Subsection (c) of this section, if
   8-29  the health spa does not open before the 181st day after the day on
   8-30  which a membership is prepaid, the person who made the prepayment
   8-31  is entitled to a full refund of the amount prepaid in the manner
   8-32  provided by Subsection (b) of Section 9 of this Act.
   8-33        (c)  If another health spa operated by the same seller is
   8-34  located not more than 10 miles from the proposed location of a new
   8-35  health spa and if the person purchasing the membership is
   8-36  authorized to use these other facilities, each person who made a
   8-37  prepayment for a membership in the new spa is entitled to a full
   8-38  refund of the amount prepaid in the manner provided by Subsection
   8-39  (c) of Section 9 of this Act if the new spa does not open before
   8-40  the 361st day after the date on which the first prepayment of a
   8-41  membership in the new spa is received.
   8-42        SECTION 8.  Section 12, Health Spa Act (Article 5221l,
   8-43  Vernon's Texas Civil Statutes), is amended to read as follows:
   8-44        Sec. 12.  Contract Terms.  (a)  A registrant, unless exempted
   8-45  from the security requirements by Subsection (b) of Section 10B of
   8-46  this Act, shall <The health spa must> deliver a fully completed
   8-47  copy of a contract to a purchaser before the contract is signed.
   8-48  The contract constitutes the entire agreement between the seller
   8-49  and the purchaser.  The contract must be in writing and must be
   8-50  signed by the purchaser.  If the health spa is not open at the time
   8-51  the contract is entered, the contract must clearly state the
   8-52  proposed opening date of the health spa.  At the time of delivery
   8-53  the health spa must give the purchaser a written receipt for any
   8-54  payment made by the purchaser under the contract.
   8-55        (b)  If the contract is financed through a retail installment
   8-56  contract or note, the contract may not require the purchaser to
   8-57  make payments or finance the contract for more than five years
   8-58  after the date on which the contract is made <If a health spa has
   8-59  been in operation in this state for two years or less, the contract
   8-60  may not require the purchaser to make payments or to finance the
   8-61  contract for more than two years after the date on which the
   8-62  contract is made.  If the health spa has been in operation in this
   8-63  state for more than two years, the contract may require the
   8-64  purchaser to make payments or to finance the contract for a period
   8-65  not to exceed five years after the date on which the contract is
   8-66  made.  The term of a contract may not be measured by the life of
   8-67  the purchaser.  If the purchaser is required by the contract to pay
   8-68  a renewal fee of not less than $50, the contract may contain a
   8-69  renewal option for as long as two additional years after the date
   8-70  on which the contract expires>.
    9-1        (c)  If the contract is not financed, the terms of the
    9-2  contract may not exceed three years.
    9-3        (d)  When the terms of two or more contracts between the same
    9-4  parties overlap for any period, the contracts are considered as one
    9-5  contract for the purpose of this Act.
    9-6        (e) <(d)>  A contract may not require or entail the execution
    9-7  of a note or series of notes by the purchaser that when separately
    9-8  negotiated will cut off as to third parties a right of action or
    9-9  defense that the purchaser may have against the seller.
   9-10        (f) <(e)>  Each contract shall state in at least 10-point
   9-11  type that is boldfaced, capitalized, underlined, or otherwise set
   9-12  out from surrounding written material so as to be conspicuous:
   9-13              (1)  "NOTICE TO PURCHASER:  DO NOT SIGN THIS CONTRACT
   9-14  UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES."
   9-15              (2)  "IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER
   9-16  OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE
   9-17  HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU
   9-18  SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS
   9-19  CONTRACT.  THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO
   9-20  THE FOLLOWING ADDRESS:
   9-21              (Address of the health spa home office)."
   9-22              (3)  "IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES
   9-23  NOT PROVIDE FACILITIES WITHIN 10 MILES OF THE FACILITY IN WHICH YOU
   9-24  ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN 10 MILES FROM THE
   9-25  FACILITY IN WHICH YOU ARE ENROLLED, YOU MAY CANCEL THIS CONTRACT BY
   9-26  MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL
   9-27  THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT.
   9-28  THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE
   9-29  FOLLOWING ADDRESS:
   9-30              (Address of the health spa home office)."
   9-31  "YOU MAY ALSO BE ENTITLED TO FILE A CLAIM FOR A REFUND OF YOUR
   9-32  UNUSED MEMBERSHIP FEES AGAINST THE BOND OR OTHER SECURITY POSTED BY
   9-33  THE HEALTH SPA WITH THE TEXAS SECRETARY OF STATE.  TO MAKE A CLAIM
   9-34  AGAINST THE SECURITY SEND A COPY OF YOUR CONTRACT TOGETHER WITH
   9-35  PROOF OF PAYMENTS MADE ON THE CONTRACT TO THE TEXAS SECRETARY OF
   9-36  STATE.  THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE
   9-37  FOLLOWING ADDRESS:
   9-38                   OFFICE OF THE SECRETARY OF STATE
   9-39                      STATUTORY DOCUMENTS SECTION
   9-40                            P.O. BOX 12887
   9-41                      AUSTIN, TEXAS 78711-2887."
   9-42              (4)  "IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY
   9-43  DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR
   9-44  ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND OF
   9-45  YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA
   9-46  STATING YOUR DESIRE TO CANCEL THIS CONTRACT.  THE HEALTH SPA MAY
   9-47  REQUIRE PROOF OF DISABILITY OR DEATH.  THE WRITTEN NOTICE MUST BE
   9-48  MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:
   9-49              (Address of the health spa home office)."
   9-50        (g)  If the registrant offers for sale or sells memberships
   9-51  before the date on which the spa opens for business, each contract
   9-52  shall state in at least 10-point type that is boldfaced,
   9-53  capitalized, underlined, or otherwise set out from surrounding
   9-54  written material so as to be conspicuous:
   9-55  "IF THE HEALTH SPA DOES NOT OPEN BEFORE (insert:  the date on which
   9-56  the 181st day after the date on which the membership is prepaid
   9-57  falls) OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR THIRTY DAYS, YOU
   9-58  ARE ENTITLED TO A FULL REFUND OF THE MONEY YOU PREPAID.  HOWEVER,
   9-59  IF ANOTHER HEALTH SPA, OPERATED BY (insert:  the name of the health
   9-60  spa registrant), IS LOCATED WITHIN 10 MILES OF (insert:  the
   9-61  address of the proposed location of the new spa) AND IF YOU ARE
   9-62  AUTHORIZED TO USE THE OTHER FACILITIES, YOU ARE ENTITLED TO RECEIVE
   9-63  A FULL REFUND OF YOUR MEMBERSHIP FEES ONLY IF THIS LOCATION DOES
   9-64  NOT FULLY OPEN FOR BUSINESS BEFORE (insert:  the date that is the
   9-65  361st day after the day the new spa first sells memberships) OR IF
   9-66  THE NEW SPA DOES NOT REMAIN OPEN FOR 30 DAYS."
   9-67        (h)  Each contract for which a finance charge within the
   9-68  meaning of the Truth-in-Lending Act or Regulation Z is charged or
   9-69  collected shall state in at least 10-point type that is boldfaced,
   9-70  capitalized, underlined, or otherwise set out from surrounding
   10-1  written material so as to be conspicuous:
   10-2  "ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL
   10-3  CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE
   10-4  SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE
   10-5  PROCEEDS HEREOF.  RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED
   10-6  AMOUNTS PAID BY THE DEBTOR HEREUNDER."
   10-7        SECTION 9.  Section 13, Health Spa Act (Article 5221l,
   10-8  Vernon's Texas Civil Statutes), is amended to read as follows:
   10-9        Sec. 13.  Cancellation of Contracts.  (a)  A member may
  10-10  cancel a contract before the fourth business day after the date on
  10-11  which the contract is signed by notifying the health spa registrant
  10-12  of the cancellation in writing.  Written notification is considered
  10-13  given if the notification is mailed by certified mail to the home
  10-14  office of the health spa registrant and postmarked not later than
  10-15  midnight of the third business day.  The health spa registrant
  10-16  shall refund all money paid to the purchaser exercising the right
  10-17  to cancel.
  10-18        (b)  A member may cancel a contract on written notice by
  10-19  certified mail to the home office of the health spa registrant if
  10-20  the health spa registrant goes out of business and fails to provide
  10-21  facilities within 10 miles or moves its facilities more than 10
  10-22  miles from the location in which the member is enrolled.  A member
  10-23  may cancel a contract in the same manner if the health spa
  10-24  registrant fails to provide advertised services.  <If a contract is
  10-25  canceled under this subsection, the member is liable for an amount
  10-26  equal to the value of services received and facilities used under
  10-27  the contract up to the date of the cancellation, and if the member
  10-28  has paid money under the contract in excess of that amount the
  10-29  health spa shall promptly refund to the member the excess.>
  10-30        (c)  A purchaser of a membership may cancel a contract if the
  10-31  member dies or becomes totally and permanently disabled after the
  10-32  date on which the contract takes effect.  <The purchaser remains
  10-33  liable for an amount equal to the value of services received and
  10-34  facilities used by the member under the contract up to the day on
  10-35  which the death occurred or the disability was incurred.  The
  10-36  health spa shall make a pro rata refund of funds paid under the
  10-37  contract in an amount based on the time remaining in the contract
  10-38  term up to a maximum of 50 percent of the total contract amount.>
  10-39  The health spa registrant may require a purchaser or the
  10-40  purchaser's estate to provide reasonable proof of total and
  10-41  permanent disability or death.
  10-42        (d)  If a purchaser or an estate elects to cancel a
  10-43  membership contract pursuant to Subsection (b) or (c) of this
  10-44  section the health spa registrant shall refund to the purchaser or
  10-45  the purchaser's estate any unearned sums paid under the contract.
  10-46  "Unearned sums" shall be calculated by multiplying the gross
  10-47  monthly payment by the total of months remaining on a contract at
  10-48  the time of cancellation minus any payments not made.  For the
  10-49  purposes of this section:
  10-50              (1)  The gross monthly payment shall be calculated by
  10-51  determining the total of payments, including down payments and
  10-52  initiation fees required by the contract, divided by the total
  10-53  number of months in the term of the contract.
  10-54              (2)  The date of cancellation and the date of the
  10-55  contract expiration shall be rounded to the nearest full month.
  10-56  The total months remaining on the contract shall be calculated by
  10-57  subtracting the date of cancellation from the expiration date of
  10-58  the contract.  The result shall be expressed in whole months.
  10-59        (e)  A health spa registrant shall make a refund required
  10-60  under this section before the 31st day after the date the health
  10-61  spa registrant receives the notice of cancellation accompanied by
  10-62  proof of payment.  The receipt given to the purchaser by the health
  10-63  spa at the time the purchaser made a payment under the contract
  10-64  constitutes <adequate> proof of payment.
  10-65        SECTION 10.  Section 15, Health Spa Act (Article 5221l,
  10-66  Vernon's Texas Civil Statutes), is amended to read as follows:
  10-67        Sec. 15.  Unenforceable Contracts.  (a)  A contract or
  10-68  assignment of a contract that does not comply with this Act is void
  10-69  and unenforceable as contrary to public policy.
  10-70        (b)  If a seller does not possess a valid health spa
   11-1  operator's certificate of registration at the time of entering into
   11-2  any contract with the purchaser, the contract between the purchaser
   11-3  and the seller is void and unenforceable as contrary to public
   11-4  policy.
   11-5        (c)  A contract entered into in reliance on willful and
   11-6  false, fraudulent, or misleading information, representation,
   11-7  notice, or advertisement of the health spa owner, <or> operator or
   11-8  seller is void and unenforceable.
   11-9        SECTION 11.  Section 17, Health Spa Act (Article 5221l,
  11-10  Vernon's Texas Civil Statutes), is amended to read as follows:
  11-11        Sec. 17.  Prohibited Activities.  (a)  A seller or registrant
  11-12  <health spa> may not offer a special offer or discount unless the
  11-13  special offer or discount is available to all prospective members.
  11-14  This subsection does not prohibit a health spa from offering
  11-15  special group prices or group discounts.
  11-16        (b)  A seller or registrant <health spa> may not make a
  11-17  material misrepresentation to a current member, prospective member,
  11-18  or purchaser of a membership contract regarding:
  11-19              (1)  the qualifications of the staff;
  11-20              (2)  the availability, quality, or extent of the
  11-21  facilities or services;
  11-22              (3)  the results obtained through exercise, dieting,
  11-23  weight control, or physical fitness conditioning programs;
  11-24              (4)  membership rights; or
  11-25              (5)  the period that a special offer or discount will
  11-26  be available.
  11-27        (c)  A health spa registrant may not fail or refuse to:
  11-28              (1)  file or update the registration statements
  11-29  required by Section 8 of this Act;
  11-30              (2)  establish the escrow account required by Section 9
  11-31  of this Act; or
  11-32              (3)  maintain the security required by Section 10 of
  11-33  this Act in full force and effect.
  11-34        (d)  A health spa registrant may not advertise that it is
  11-35  bonded by the state.
  11-36        (e)  A health spa registrant may not sell a membership plan
  11-37  not included in the list required by Section 16 of this Act.
  11-38        SECTION 12.  Section 18, Health Spa Act (Article 5221l,
  11-39  Vernon's Texas Civil Statutes), is amended to read as follows:
  11-40        Sec. 18.  Injunction.  (a)  If it appears that a person is in
  11-41  violation of, has violated, or is about to violate this Act, the
  11-42  attorney general or a district or county attorney may institute an
  11-43  action for injunctive relief to restrain the person from continuing
  11-44  the violation and for civil penalties authorized by Section 20 <A
  11-45  district attorney, county attorney, or the attorney general may sue
  11-46  in a court of competent jurisdiction to enjoin or restrain a person
  11-47  from engaging in conduct described by Section 17 of this Act>.
  11-48        (b)  A civil action filed under this section shall be filed
  11-49  in a district court in Travis County or in the county in which the
  11-50  defendant resides <Except as prescribed by Subsection (c) of this
  11-51  section, a district attorney, county attorney, or attorney general
  11-52  who intends to sue under this section shall notify the defendant of
  11-53  the alleged prohibited conduct not later than the seventh day
  11-54  before the date the suit is filed.>
  11-55        <(c)  The notice prescribed by Subsection (b) of this section
  11-56  is not required if the district attorney, county attorney, or
  11-57  attorney general intends to request that the court issue a
  11-58  temporary restraining order>.
  11-59        SECTION 13.  Section 20, Health Spa Act (Article 5221l,
  11-60  Vernon's Texas Civil Statutes), is amended to read as follows:
  11-61        Sec. 20.  Civil Penalties.  (a)  A person who violates this
  11-62  Act is subject to a civil penalty of not more than $1,000 for each
  11-63  violation, not to exceed $25,000 in total penalties.
  11-64        (b)  A person who violates the terms of an injunction issued
  11-65  in an action brought under Section 18 of this Act is liable to the
  11-66  state for a civil penalty of not more than $25,000 for a single
  11-67  violation and not more than $50,000 for all violations of the
  11-68  injunction.  A district attorney, county attorney, or the attorney
  11-69  general may bring suit to recover the civil penalty in the court
  11-70  that issued the original injunction.
   12-1        (c)  The attorney general, a district or county attorney, and
   12-2  the secretary may recover reasonable expenses incurred in obtaining
   12-3  injunctive relief, civil penalties, or both, including court costs,
   12-4  reasonable attorney's fees, investigative costs, witness fees, and
   12-5  deposition expenses.
   12-6        (d)  A penalty collected under this section by the attorney
   12-7  general shall be deposited to the credit of the general revenue
   12-8  fund.  A penalty collected under this section by a district or
   12-9  county attorney shall be deposited to the credit of the general
  12-10  fund of the county.
  12-11        SECTION 14.  Section 22(a), Health Spa Act (Article 5221l,
  12-12  Vernon's Texas Civil Statutes), is amended to read as follows:
  12-13        (a)  A person who knowingly or intentionally operates or
  12-14  attempts to operate a health spa in violation of Section 8, 9, <or>
  12-15  10, or 11 of this Act commits an offense.  An offense under this
  12-16  subsection is a Class A misdemeanor.
  12-17        SECTION 15.  Section 25, Health Spa Act (Article 5221l,
  12-18  Vernon's Texas Civil Statutes), is amended to read as follows:
  12-19        Sec. 25.  Applicability.  <(a)>  This <Except as provided by
  12-20  Subsection (b) of this section, this> Act applies to all health
  12-21  spas <a health spa> in operation on or after September 1, 1985.
  12-22        <(b)  Section 9 of this Act does not apply to a health spa
  12-23  that began operation before September 1, 1985.>
  12-24        SECTION 16.  The Health Spa Act (Article 5221l, Vernon's
  12-25  Texas Civil Statutes) is amended by adding Section 26 to read as
  12-26  follows:
  12-27        Sec. 26.  RULE-MAKING AUTHORITY.  The secretary shall adopt
  12-28  rules and regulations, promulgate administrative orders, and take
  12-29  all action necessary to assure compliance with the intent and
  12-30  purpose of this Act.
  12-31        SECTION 17.  Sections 7, 7A, and 14 of the Health Spa Act
  12-32  (Article 5221l, Vernon's Texas Civil Statutes) are repealed.
  12-33        SECTION 18.  Sections 6.09(a) and (b), Chapter 1039, Acts of
  12-34  the 71st Legislature, Regular Session, 1989, are repealed.
  12-35        SECTION 19.  (a)  There is appropriated to the Office of the
  12-36  Attorney General from the general revenue fund for the fiscal
  12-37  biennium ending August 31, 1995, the amounts awarded to the office
  12-38  under Section 20 of the Health Spa Act (Article 5221l, Vernon's
  12-39  Texas Civil Statutes), as amended by this Act, to be used to
  12-40  reimburse the office for the office's expenses related to the
  12-41  litigation for which the expenses were awarded.
  12-42        (b)  There is appropriated to the secretary of state from the
  12-43  general revenue fund for the fiscal biennium ending August 31,
  12-44  1995, the amounts awarded to the office under Section 20 of the
  12-45  Health Spa Act (Article 5221l, Vernon's Texas Civil Statutes), as
  12-46  amended by this Act, to be used to reimburse the secretary for the
  12-47  secretary's expenses related to the litigation for which the
  12-48  expenses were awarded.
  12-49        SECTION 20.  This Act takes effect September 1, 1993.
  12-50        SECTION 21.  The importance of this legislation and the
  12-51  crowded condition of the calendars in both houses create an
  12-52  emergency and an imperative public necessity that the
  12-53  constitutional rule requiring bills to be read on three several
  12-54  days in each house be suspended, and this rule is hereby suspended.
  12-55                               * * * * *
  12-56                                                         Austin,
  12-57  Texas
  12-58                                                         May 22, 1993
  12-59  Hon. Bob Bullock
  12-60  President of the Senate
  12-61  Sir:
  12-62  We, your Committee on State Affairs to which was referred H.B.
  12-63  No. 2243, have had the same under consideration, and I am
  12-64  instructed to report it back to the Senate with the recommendation
  12-65  that it do pass and be printed.
  12-66                                                         Rosson,
  12-67  Vice-Chairman
  12-68                               * * * * *
  12-69                               WITNESSES
  12-70  No witnesses appeared on H.B. No. 2243.