By Junell, Hunter of Nueces, Duncan, et al.            H.B. No. 668
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to civil remedies for deceptive trade practices and
    1-3  certain related consumer claims.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Sections 17.42, 17.43, and 17.44, Business &
    1-6  Commerce Code, are amended to read as follows:
    1-7        Sec. 17.42.  WAIVERS:  PUBLIC POLICY.  (a)  Any waiver by a
    1-8  consumer of the provisions of this subchapter is contrary to public
    1-9  policy and is unenforceable and void; provided, however, that a
   1-10  waiver is valid and enforceable if:
   1-11              (1)  the waiver is in writing and is signed by the
   1-12  consumer;
   1-13              (2)  <a defendant in an action or claim under this
   1-14  subchapter pleads and proves:>
   1-15              <(1)>  the consumer is not in a significantly disparate
   1-16  bargaining position; and
   1-17              (3) <(2)>  the consumer is represented by legal counsel
   1-18  in seeking or acquiring the goods or services<, other than the
   1-19  purchase or lease of a family residence occupied or to be occupied
   1-20  as the consumer's residence, by a purchase or a lease for a
   1-21  consideration paid or to be paid that exceeds $500,000; and>
   1-22              <(3)  the consumer waives all or part of this
   1-23  subchapter, other than Section 17.555, by an express provision in a
   1-24  written contract signed by both the consumer and the consumer's
    2-1  legal counsel; and provided, however, that a business consumer with
    2-2  assets of $5 million or more according to the most recent financial
    2-3  statement of the business consumer prepared in accordance with
    2-4  generally accepted accounting principles that has knowledge and
    2-5  experience in financial and business matters that enable it to
    2-6  evaluate the merits and risks of a transaction and that is not in a
    2-7  significantly disparate bargaining position may by written contract
    2-8  waive the provisions of this subchapter, other than Section
    2-9  17.555>.
   2-10        (b)  A waiver under Subsection (a) is not effective if the
   2-11  consumer's legal counsel was directly or indirectly identified,
   2-12  suggested, or selected by a defendant or an agent of the defendant
   2-13  <The existence or absence of a disparate bargaining position may
   2-14  not be established as a matter of law solely by evidence of the
   2-15  consumer's financial position relative to other parties to the
   2-16  contract or by matters contained in a written contract relating to
   2-17  the relative bargaining position of the parties>.
   2-18        (c)  A waiver under this section must be:
   2-19              (1)  conspicuous and in bold-face type of at least 10
   2-20  points in size;
   2-21              (2)  identified by the heading "Waiver of Consumer
   2-22  Rights," or words of similar meaning; and
   2-23              (3)  in substantially the following form:
   2-24        "I waive my rights under the Deceptive Trade
   2-25        Practices-Consumer Protection Act, Section 17.41 et
   2-26        seq., Business & Commerce Code, a law that gives
   2-27        consumers special rights and protections.  After
    3-1        consultation with an attorney of my own selection, I
    3-2        voluntarily consent to this waiver."
    3-3        (d)  The waiver required by Subsection (c) may be modified to
    3-4  waive only specified rights under this subchapter.
    3-5        (e)  The fact that a consumer has signed a waiver under this
    3-6  section is not a defense to an action brought by the attorney
    3-7  general under Section 17.47.
    3-8        Sec. 17.43.  CUMULATIVE REMEDIES.  The provisions of this
    3-9  subchapter are not exclusive.  The remedies provided in this
   3-10  subchapter are in addition to any other procedures or remedies
   3-11  provided for in any other law; provided, however, that no recovery
   3-12  shall be permitted under both this subchapter and another law of
   3-13  both <actual> damages and penalties for the same act or practice.
   3-14  A violation of a provision of law other than this subchapter is not
   3-15  in and of itself a violation of this subchapter.  An act or
   3-16  practice that is a violation of a provision of law other than this
   3-17  subchapter may be made the basis of an action under this subchapter
   3-18  if the act or practice is proscribed by a provision of this
   3-19  subchapter or is declared by such other law to be actionable under
   3-20  this subchapter.  The provisions of this subchapter do not in any
   3-21  way preclude other political subdivisions of this state from
   3-22  dealing with deceptive trade practices.
   3-23        Sec. 17.44.  Construction and Application.  (a)  This
   3-24  subchapter shall be liberally construed and applied to promote its
   3-25  underlying purposes, which are to protect consumers against false,
   3-26  misleading, and deceptive business practices, unconscionable
   3-27  actions, and breaches of warranty and to provide efficient and
    4-1  economical procedures to secure such protection.
    4-2        (b)  Chapter 27, Property Code, prevails over this subchapter
    4-3  to the extent of any conflict.
    4-4        SECTION 2.  Section 17.45, Business & Commerce Code, is
    4-5  amended by amending Subdivisions (5) and (9) and adding
    4-6  Subdivisions (11) and (12) to read as follows:
    4-7              (5)  "Unconscionable action or course of action" means
    4-8  an act or practice which, to a consumer's <person's> detriment,<:>
    4-9                    <(A)>  takes advantage of the lack of knowledge,
   4-10  ability, experience, or capacity of the consumer <a person> to a
   4-11  grossly unfair degree<; or>
   4-12                    <(B)  results in a gross disparity between the
   4-13  value received and consideration paid, in a transaction involving
   4-14  transfer of consideration>.
   4-15              (9)  "Knowingly" means actual awareness, at the time of
   4-16  the act or practice complained of, of the falsity, deception, or
   4-17  unfairness of the act or practice giving rise to the consumer's
   4-18  claim or, in an action brought under Subdivision (2) of Subsection
   4-19  (a) of Section 17.50, actual awareness of the act, <or> practice,
   4-20  condition, defect, or failure constituting the breach of warranty,
   4-21  but actual awareness may be inferred where objective manifestations
   4-22  indicate that a person acted with actual awareness.
   4-23              (11)  "Economic damages"  means compensatory damages
   4-24  for pecuniary loss, including costs of repair and replacement.  The
   4-25  term does not include exemplary damages or damages for physical
   4-26  pain and mental anguish, loss of consortium, disfigurement,
   4-27  physical impairment, or loss of companionship and society.
    5-1              (12)  "Residence" means a building:
    5-2                    (A)  that is a single-family house, duplex,
    5-3  triplex, or quadruplex or a unit in a multiunit residential
    5-4  structure in which title to the individual units is transferred to
    5-5  the owners under a condominium or cooperative system; and
    5-6                    (B)  that is occupied or to be occupied as the
    5-7  consumer's residence.
    5-8        SECTION 3.  Section 17.46(b), Business & Commerce Code, is
    5-9  amended to read as follows:
   5-10        (b)  Except as provided in Subsection (d) of this section,
   5-11  the term "false, misleading, or deceptive acts or practices"
   5-12  includes, but is not limited to, the following acts:
   5-13              (1)  passing off goods or services as those of another;
   5-14              (2)  causing confusion or misunderstanding as to the
   5-15  source, sponsorship, approval, or certification of goods or
   5-16  services;
   5-17              (3)  causing confusion or misunderstanding as to
   5-18  affiliation, connection, or association with, or certification by,
   5-19  another;
   5-20              (4)  using deceptive representations or designations of
   5-21  geographic origin in connection with goods or services;
   5-22              (5)  representing that goods or services have
   5-23  sponsorship, approval, characteristics, ingredients, uses,
   5-24  benefits, or quantities which they do not have or that a person has
   5-25  a sponsorship, approval, status, affiliation, or connection which
   5-26  he does not;
   5-27              (6)  representing that goods are original or new if
    6-1  they are deteriorated, reconditioned, reclaimed, used, or
    6-2  secondhand;
    6-3              (7)  representing that goods or services are of a
    6-4  particular standard, quality, or grade, or that goods are of a
    6-5  particular style or model, if they are of another;
    6-6              (8)  disparaging the goods, services, or business of
    6-7  another by false or misleading representation of facts;
    6-8              (9)  advertising goods or services with intent not to
    6-9  sell them as advertised;
   6-10              (10)  advertising goods or services with intent not to
   6-11  supply a reasonable expectable public demand, unless the
   6-12  advertisements disclosed a limitation of quantity;
   6-13              (11)  making false or misleading statements of fact
   6-14  concerning the reasons for, existence of, or amount of price
   6-15  reductions;
   6-16              (12)  representing that an agreement confers or
   6-17  involves rights, remedies, or obligations which it does not have or
   6-18  involve, or which are prohibited by law;
   6-19              (13)  knowingly making false or misleading statements
   6-20  of fact concerning the need for parts, replacement, or repair
   6-21  service;
   6-22              (14)  misrepresenting the authority of a salesman,
   6-23  representative or agent to negotiate the final terms of a consumer
   6-24  transaction;
   6-25              (15)  basing a charge for the repair of any item in
   6-26  whole or in part on a guaranty or warranty instead of on the value
   6-27  of the actual repairs made or work to be performed on the item
    7-1  without stating separately the charges for the work and the charge
    7-2  for the warranty or guaranty, if any;
    7-3              (16)  disconnecting, turning back, or resetting the
    7-4  odometer of any motor vehicle so as to reduce the number of miles
    7-5  indicated on the odometer gauge;
    7-6              (17)  advertising of any sale by fraudulently
    7-7  representing that a person is going out of business;
    7-8              (18)  using or employing a chain referral sales plan in
    7-9  connection with the sale or offer to sell of goods, merchandise, or
   7-10  anything of value, which uses the sales technique, plan,
   7-11  arrangement, or agreement in which the buyer or prospective buyer
   7-12  is offered the opportunity to purchase merchandise or goods and in
   7-13  connection with the purchase receives the seller's promise or
   7-14  representation that the buyer shall have the right to receive
   7-15  compensation or consideration in any form for furnishing to the
   7-16  seller the names of other prospective buyers if receipt of the
   7-17  compensation or consideration is contingent upon the occurrence of
   7-18  an event subsequent to the time the buyer purchases the merchandise
   7-19  or goods;
   7-20              (19)  representing that a guarantee or warranty confers
   7-21  or involves rights or remedies which it does not have or involve,
   7-22  provided, however, that nothing in this subchapter shall be
   7-23  construed to expand the implied warranty of merchantability as
   7-24  defined in Sections 2.314 through 2.318 and Sections 2A.212 through
   7-25  2A.216 of the Business & Commerce Code to involve obligations in
   7-26  excess of those which are appropriate to the goods;
   7-27              (20)  selling or offering to sell, either directly or
    8-1  associated with the sale of goods or services, a right of
    8-2  participation in a multi-level distributorship.  As used herein,
    8-3  "multi-level distributorship" means a sales plan for the
    8-4  distribution of goods or services in which promises of rebate or
    8-5  payment are made to individuals, conditioned upon those individuals
    8-6  recommending or securing additional individuals to assume positions
    8-7  in the sales operation, and where the rebate or payment is not
    8-8  exclusively conditioned on or in relation to proceeds from the
    8-9  retail sales of goods;
   8-10              (21)  representing that work or services have been
   8-11  performed on, or parts replaced in, goods when the work or services
   8-12  were not performed or the parts replaced;
   8-13              (22)  filing suit founded upon a written contractual
   8-14  obligation of and signed by the defendant to pay money arising out
   8-15  of or based on a consumer transaction for goods, services, loans,
   8-16  or extensions of credit intended primarily for personal, family,
   8-17  household, or agricultural use in any county other than in the
   8-18  county in which the defendant resides at the time of the
   8-19  commencement of the action or in the county in which the defendant
   8-20  in fact signed the contract; provided, however, that a violation of
   8-21  this subsection shall not occur where it is shown by the person
   8-22  filing such suit he neither knew or had reason to know that the
   8-23  county in which such suit was filed was neither the county in which
   8-24  the defendant resides at the commencement of the suit nor the
   8-25  county in which the defendant in fact signed the contract;
   8-26              (23)  the failure to disclose information concerning
   8-27  goods or services which was known at the time of the transaction if
    9-1  such failure to disclose such information was intended to induce
    9-2  the consumer into a transaction into which the consumer would not
    9-3  have entered had the information been disclosed; <or>
    9-4              (24)  using the term "corporation," "incorporated," or
    9-5  an abbreviation of either of those terms in the name of a business
    9-6  entity that is not incorporated under the laws of this state or
    9-7  another jurisdiction; or
    9-8              (25)  taking advantage of a disaster declared by the
    9-9  governor under Chapter 418, Government Code, by:
   9-10                    (A)  selling or leasing fuel, food, medicine, or
   9-11  another necessity at an exorbitant or excessive price; or
   9-12                    (B)  demanding an exorbitant or excessive price
   9-13  in connection with the sale or lease of fuel, food, medicine, or
   9-14  another necessity.
   9-15        SECTION 4.  Section 17.49, Business & Commerce Code, is
   9-16  amended by adding Subsections (c), (d), (e), (f), and (g) to read
   9-17  as follows:
   9-18        (c)  Nothing in this subchapter shall apply to a claim for
   9-19  damages based on the rendering of a professional service, the
   9-20  essence of which is the providing of advice, judgment, opinion, or
   9-21  similar professional skill.  This exemption does not apply to:
   9-22              (1)  an express misrepresentation of a material fact
   9-23  that cannot be characterized as advice, judgment, or opinion;
   9-24              (2)  a failure to disclose information in violation of
   9-25  Section 17.46(b)(23);
   9-26              (3)  an unconscionable action or course of action that
   9-27  cannot be characterized as advice, judgment, or opinion; or
   10-1              (4)  breach of an express warranty that cannot be
   10-2  characterized as advice, judgment, or opinion.
   10-3        (d)  Subsection (c) applies to a cause of action brought
   10-4  against the person who provided the professional service and a
   10-5  cause of action brought against any entity that could be found to
   10-6  be vicariously liable for the person's conduct.
   10-7        (e)  Except as specifically provided by this subsection and
   10-8  Section 17.50(h), nothing in this subchapter shall apply to a cause
   10-9  of action for bodily injury or death or for the infliction of
  10-10  mental anguish. A consumer may recover damages under this
  10-11  subchapter for mental anguish if the trier of fact finds that the
  10-12  conduct of the defendant was committed knowingly.
  10-13        (f)  Nothing in this subchapter shall apply to a claim
  10-14  arising out of a written contract if:
  10-15              (1)  the consideration paid or to be paid exceeds
  10-16  $100,000;
  10-17              (2)  in seeking or acquiring the goods or services the
  10-18  consumer is represented by legal counsel who is not directly or
  10-19  indirectly identified, suggested, or selected by the defendant or
  10-20  an agent of the defendant; and
  10-21              (3)  the contract does not involve a consumer's
  10-22  residence.
  10-23        (g)  Nothing in this subchapter shall apply to a cause of
  10-24  action arising from a transaction, a project, or a set of
  10-25  transactions relating to the same project, involving total
  10-26  consideration by the consumer of more than $500,000, other than a
  10-27  cause of action involving a consumer's residence.
   11-1        SECTION 5.  Section 17.50, Business & Commerce Code, is
   11-2  amended to read as follows:
   11-3        Sec. 17.50.  RELIEF FOR CONSUMERS.  (a)  A consumer may
   11-4  maintain an action where any of the following constitute a
   11-5  producing cause of economic <actual> damages:
   11-6              (1)  the use or employment by any person of a false,
   11-7  misleading, or deceptive act or practice that is:
   11-8                    (A)  specifically enumerated in a subdivision of
   11-9  Subsection (b) of Section 17.46 of this subchapter; and
  11-10                    (B)  relied on by a consumer to the consumer's
  11-11  detriment;
  11-12              (2)  breach of an express or implied warranty;
  11-13              (3)  any unconscionable action or course of action by
  11-14  any person; or
  11-15              (4)  the use or employment by any person of an act or
  11-16  practice in violation of Article 21.21, <Texas> Insurance Code<, as
  11-17  amended, or rules or regulations issued by the State Board of
  11-18  Insurance under Article 21.21, Texas Insurance Code, as amended>.
  11-19        (b)  In a suit filed under this section, each consumer who
  11-20  prevails may obtain:
  11-21              (1)  the amount of economic <actual> damages found by
  11-22  the trier of fact.  <In addition the court shall award two times
  11-23  that portion of the actual damages that does not exceed $1,000.>
  11-24  If the trier of fact finds that the conduct of the defendant was
  11-25  committed knowingly, the trier of fact may award not more than
  11-26  three times the amount of economic <actual> damages <in excess of
  11-27  $1,000, provided that:>
   12-1                    <(A)  the provisions of Chapters 33 and 41, Civil
   12-2  Practice and Remedies Code, shall govern the determination of the
   12-3  consumer's right under this subchapter to recover actual and other
   12-4  damages, including exemplary damages, and the amount of those
   12-5  damages that may be recovered by the consumer under this
   12-6  subchapter, in an action seeking damages for (i) death;
   12-7  (ii) personal injury other than mental anguish or distress
   12-8  associated with a violation of this subchapter that does not
   12-9  involve death or bodily injury; or (iii) damage to property other
  12-10  than the goods acquired by the purchase or lease that is involved
  12-11  in the consumer's action or claim if that damage arises out of an
  12-12  occurrence that involves death or bodily injury; and>
  12-13                    <(B)  only in an action under this subchapter
  12-14  that is subject to Paragraph (A) of this subdivision, the
  12-15  consumer's right to recover damages shall be subject to any defense
  12-16  or defensive matter that could be considered by the trier of fact
  12-17  in an action subject to Chapter 33, Civil Practice and Remedies
  12-18  Code, in determining the percentage of responsibility attributable
  12-19  to the consumer claimant under that chapter>;
  12-20              (2)  an order enjoining such acts or failure to act;
  12-21              (3)  orders necessary to restore to any party to the
  12-22  suit any money or property, real or personal, which may have been
  12-23  acquired in violation of this subchapter; and
  12-24              (4)  any other relief which the court deems proper,
  12-25  including the appointment of a receiver or the revocation of a
  12-26  license or certificate authorizing a person to engage in business
  12-27  in this state if the judgment has not been satisfied within three
   13-1  months of the date of the final judgment.  The court may not revoke
   13-2  or suspend a license to do business in this state or appoint a
   13-3  receiver to take over the affairs of a person who has failed to
   13-4  satisfy a judgment if the person is a licensee of or regulated by a
   13-5  state agency which has statutory authority to revoke or suspend a
   13-6  license or to appoint a receiver or trustee.  Costs and fees of
   13-7  such receivership or other relief shall be assessed against the
   13-8  defendant.
   13-9        (c)  On a finding by the court that an action under this
  13-10  section was groundless in fact or law or <and> brought in bad
  13-11  faith, or brought for the purpose of harassment, the court shall
  13-12  award to the defendant reasonable and necessary attorneys' fees and
  13-13  court costs.
  13-14        (d)  Each consumer who prevails shall be awarded court costs
  13-15  and reasonable and necessary attorneys' fees.
  13-16        (e)  In computing additional damages under Subsection (b),
  13-17  attorneys' fees, costs, and prejudgment interest may not be
  13-18  considered.
  13-19        (f)  A court may not award prejudgment interest applicable
  13-20  to:
  13-21              (1)  damages for future loss under this subchapter; or
  13-22              (2)  additional damages under Subsection (b).
  13-23        (g)  Chapter 41, Civil Practice and Remedies Code, does not
  13-24  apply to a cause of action brought under this subchapter.
  13-25        (h)  Notwithstanding any other provision of this subchapter,
  13-26  if a claimant is granted the right to bring a cause of action under
  13-27  this subchapter by another law, the claimant is not limited to
   14-1  recovery of economic damages only, but may recover any actual
   14-2  damages incurred by the claimant.  For the purpose of the recovery
   14-3  of damages for a cause of action described by this subsection only,
   14-4  a reference in this subchapter to economic damages means actual
   14-5  damages.
   14-6        SECTION 6.  Section 17.505, Business & Commerce Code, is
   14-7  amended to read as follows:
   14-8        Sec. 17.505.  NOTICE; INSPECTION<:  OFFER OF SETTLEMENT>.
   14-9  (a)  As a prerequisite to filing a suit seeking damages under
  14-10  Subdivision (1) of Subsection (b) of Section 17.50 of this
  14-11  subchapter against any person, a consumer shall give written notice
  14-12  to the person at least 60 days before filing the suit advising the
  14-13  person in reasonable detail of the consumer's specific complaint
  14-14  and the amount of economic <actual> damages and expenses, including
  14-15  attorneys' fees, if any, reasonably incurred by the consumer in
  14-16  asserting the claim against the defendant.  During the 60-day
  14-17  period a written request to inspect, in a reasonable manner and at
  14-18  a reasonable time and place, the goods that are the subject of the
  14-19  consumer's action or claim may be presented to the consumer.  If
  14-20  the consumer <unreasonably> refuses to permit the inspection by the
  14-21  person or the person's designated representative, the court shall
  14-22  not award the two times economic <actual> damages not exceeding
  14-23  $1,000, as provided in Subsection (b) of Section 17.50 of this
  14-24  subchapter.
  14-25        (b)  If the giving of 60 days' written notice is rendered
  14-26  impracticable by reason of the necessity of filing suit in order to
  14-27  prevent the expiration of the statute of limitations or if the
   15-1  consumer's claim is asserted by way of counterclaim, the notice
   15-2  provided for in Subsection (a) of this section is not required, but
   15-3  the tender provided for by <Subsection (c) of this section and by>
   15-4  Subsection (d), Section 17.506 of this subchapter may be made
   15-5  within 60 days after service <the filing> of the suit or
   15-6  counterclaim.
   15-7        (c)  A person against whom a suit is pending who does not
   15-8  receive written notice, as required by Subsection (a), may file a
   15-9  plea in abatement not later than the 30th day after the date the
  15-10  person files an original answer in the court in which the suit is
  15-11  pending.  This subsection does not apply if Subsection (b) applies.
  15-12  <Any person who receives the written notice provided by Subsection
  15-13  (a) of this section may, within 60 days after the receipt of the
  15-14  notice, tender to the consumer a written offer of settlement,
  15-15  including an agreement to reimburse the consumer for the attorneys'
  15-16  fees, if any, reasonably incurred by the consumer in asserting his
  15-17  claim up to the date of the written notice.  A person who does not
  15-18  receive such a written notice due to the consumer's suit or
  15-19  counterclaim being filed as provided for by Subsection (b) of this
  15-20  section may, within 60 days after the filing of such suit or
  15-21  counterclaim, tender to the consumer a written offer of settlement,
  15-22  including an agreement to reimburse the consumer for the attorneys'
  15-23  fees, if any, reasonably incurred by the consumer in asserting his
  15-24  claim up to the date the suit or counterclaim was filed.  Any offer
  15-25  of settlement not accepted within 30 days of receipt by the
  15-26  consumer shall be deemed to have been rejected by the consumer.>
  15-27        (d)  The court shall abate the suit if the court, after a
   16-1  hearing, finds that the person is entitled to an abatement because
   16-2  notice was not provided as required by this section.  A suit is
   16-3  automatically abated without the order of the court beginning on
   16-4  the 11th day after the date a plea in abatement is filed under
   16-5  Subsection (c) if the plea in abatement:
   16-6              (1)  is verified and alleges that the person against
   16-7  whom the suit is pending did not receive the written notice as
   16-8  required by Subsection (a); and
   16-9              (2)  is not controverted by an affidavit filed by the
  16-10  consumer before the 11th day after the date on which the plea in
  16-11  abatement is filed.
  16-12        (e)  An abatement under Subsection (d) continues until the
  16-13  60th day after the date that written notice is served in compliance
  16-14  with Subsection (a).  <A settlement offer made in compliance with
  16-15  Subsection (c) of this section, if rejected by the consumer, may be
  16-16  filed with the court together with an affidavit certifying its
  16-17  rejection.  If the amount tendered in the settlement offer is the
  16-18  same as or more than, or if the court finds that amount to be
  16-19  substantially the same as, the actual damages found by the trier of
  16-20  fact, the consumer may not recover an amount in excess of the
  16-21  amount tendered in the settlement offer or the amount of actual
  16-22  damages found by the trier of fact, whichever is less.  Such
  16-23  settlement offer shall not be admissible as evidence before a jury.>
  16-24        <(e)  The tender of an offer of settlement is not an
  16-25  admission of engaging in an unlawful act or practice or of
  16-26  liability under this Act.  Evidence of a settlement offer may be
  16-27  introduced only to determine the reasonableness of the settlement
   17-1  offer as provided for by Subsection (d) of this section.>
   17-2        SECTION 7.  Subchapter E, Chapter 17, Business & Commerce
   17-3  Code, is amended by adding Sections 17.5051 and 17.5052 to read as
   17-4  follows:
   17-5        Sec. 17.5051.  MEDIATION.  (a)  A party may, not later than
   17-6  the 90th day after the date of service of a pleading in which
   17-7  relief under this subchapter is sought, file a motion to compel
   17-8  mediation of the dispute in the manner provided by this section.
   17-9        (b)  The court shall, not later than the 30th day after the
  17-10  date a motion under this section is filed, sign an order setting
  17-11  the time and place of the  mediation.
  17-12        (c)  If the parties do not agree on a mediator, the court
  17-13  shall appoint the mediator.
  17-14        (d)  Mediation shall be held within 30 days after the date
  17-15  the order is signed, unless the parties agree otherwise or the
  17-16  court determines that additional time, not to exceed an additional
  17-17  30 days, is warranted.
  17-18        (e)  Except as agreed to by all parties who have appeared in
  17-19  the action, each party who has appeared shall participate in the
  17-20  mediation and, except as provided by Subsection (f), shall share
  17-21  the mediation fee.
  17-22        (f)  A party may not compel mediation under this section if
  17-23  the amount of economic damages claimed is less than $15,000, unless
  17-24  the party seeking to compel mediation agrees to pay the costs of
  17-25  the mediation.
  17-26        (g)  Except as provided in this section, Section 154.023,
  17-27  Civil Practice and Remedies Code, and Subchapters C and D, Chapter
   18-1  154, Civil Practice and Remedies Code, apply to the appointment of
   18-2  a mediator and to the mediation process provided by this section.
   18-3        (h)  This section does not apply to an action brought by the
   18-4  attorney general under Section 17.47.
   18-5        Sec. 17.5052.  OFFERS OF SETTLEMENT.  (a)  A person who
   18-6  receives notice under Section 17.505 may tender an offer of
   18-7  settlement at any time during the period beginning on the date the
   18-8  notice is received and ending on the 60th day after that date.
   18-9        (b)  If a mediation under Section 17.5051 is not conducted,
  18-10  the person may tender an offer of settlement at any time during the
  18-11  period beginning on the date an original answer is filed and ending
  18-12  on the 90th day after that date.
  18-13        (c)  If a mediation under Section 17.5051 is conducted, a
  18-14  person against whom a claim under this subchapter is pending may
  18-15  tender an offer of settlement during the period beginning on the
  18-16  day after the date that the mediation ends and ending on the 20th
  18-17  day after that date.
  18-18        (d)  An offer of settlement tendered by a person against whom
  18-19  a claim under this subchapter is pending must include an offer to
  18-20  pay the following amounts of money, separately stated:
  18-21              (1)  an amount of money or other consideration, reduced
  18-22  to its cash value, as settlement of the consumer's claim for
  18-23  damages; and
  18-24              (2)  an amount of money to compensate the consumer for
  18-25  the consumer's reasonable and necessary attorneys' fees incurred as
  18-26  of the date of the offer.
  18-27        (e)  Unless both parts of an offer of settlement required
   19-1  under Subsection (d) are accepted by the consumer not later than
   19-2  the 30th day after the date the offer is made, the offer is
   19-3  rejected.
   19-4        (f)  A settlement offer tendered by a person against whom a
   19-5  claim under this subchapter is pending that complies with this
   19-6  section and that has been rejected by the consumer may be filed
   19-7  with the court with an affidavit certifying its rejection.
   19-8        (g)  If the court finds that the amount tendered in the
   19-9  settlement offer for damages under Subsection (d)(1) is the same
  19-10  as, substantially the same as, or more than the damages found by
  19-11  the trier of fact, the consumer may not recover as damages any
  19-12  amount in excess of the lesser of:
  19-13              (1)  the amount of damages tendered in the settlement
  19-14  offer; or
  19-15              (2)  the amount of damages found by the trier of fact.
  19-16        (h)  If the court makes the finding described by Subsection
  19-17  (g), the court shall determine reasonable and necessary attorneys'
  19-18  fees to compensate the consumer for attorneys' fees incurred before
  19-19  the date and time of the rejected settlement offer.  If the court
  19-20  finds that the amount tendered in the settlement offer to
  19-21  compensate the consumer for attorneys' fees under Subsection (d)(2)
  19-22  is the same as, substantially the same as, or more than the amount
  19-23  of reasonable and necessary attorneys' fees incurred by the
  19-24  consumer as of the date of the offer, the consumer may not recover
  19-25  attorneys' fees greater than the amount of fees tendered in the
  19-26  settlement offer.
  19-27        (i)  If the court finds that the offering party could not
   20-1  perform the offer at the time the offer was made or that the
   20-2  offering party substantially misrepresented the cash value of the
   20-3  offer, Subsections (g) and (h) do not apply.
   20-4        (j)  If Subsection (g) does not apply, the court shall award
   20-5  as economic damages the amount found by the trier of fact, subject
   20-6  to Sections 17.50 and 17.501.  If Subsection (h) does not apply,
   20-7  the court shall award attorneys' fees as provided by Section
   20-8  17.50(d).
   20-9        (k)  An offer of settlement is not an admission of engaging
  20-10  in an unlawful act or practice or liability under this subchapter.
  20-11  Except as otherwise provided by this section, an offer or a
  20-12  rejection of an offer may not be offered in evidence at trial for
  20-13  any purpose.
  20-14        SECTION 8.  Subsection (d), Section 17.506, Business &
  20-15  Commerce Code, is amended to read as follows:
  20-16        (d)  In an action brought under Section 17.50 of this
  20-17  subchapter, it is a defense to a cause of action if the defendant
  20-18  proves that he received notice from the consumer advising the
  20-19  defendant of the nature of the consumer's specific complaint and of
  20-20  the amount of economic <actual> damages and expenses, including
  20-21  attorneys' fees, if any, reasonably incurred by the consumer in
  20-22  asserting the claim against the defendant, and that within 30 days
  20-23  after the day on which the defendant received the notice the
  20-24  defendant tendered to the consumer:
  20-25              (1)  the amount of economic <actual> damages claimed;
  20-26  and
  20-27              (2)  the expenses, including attorneys' fees, if any,
   21-1  reasonably incurred by the consumer in asserting the claim against
   21-2  the defendant.
   21-3        SECTION 9.  Section 17.56, Business & Commerce Code, is
   21-4  amended to read as follows:
   21-5        Sec. 17.56.  VENUE.  An action brought under this subchapter
   21-6  may be brought:
   21-7              (1)  in any county in which venue is proper under
   21-8  Chapter 15, Civil Practice and Remedies Code; or
   21-9              (2)  <which alleges a claim to relief under Section
  21-10  17.50 of this subchapter may be commenced in the county in which
  21-11  the person against whom the suit is brought resides, has his
  21-12  principal place of business, or has a fixed and established place
  21-13  of business at the time the suit is brought or in the county in
  21-14  which the alleged act or practice occurred or> in a county in which
  21-15  the defendant or an authorized agent of the defendant solicited the
  21-16  transaction made the subject of the action at bar.
  21-17        SECTION 10.  Section 27.004, Property Code, is amended by
  21-18  adding new Subsections (d) and (e) and relettering existing
  21-19  Subsections (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) to
  21-20  read as follows:
  21-21        (d)  The court shall abate a suit governed by this section if
  21-22  Subsection (c) does not apply and the court, after a hearing, finds
  21-23  that the contractor is entitled to an abatement because notice was
  21-24  not provided as required by Subsection (a). A suit is automatically
  21-25  abated without the order of the court beginning on the 11th day
  21-26  after the date a plea in abatement is filed if the plea in
  21-27  abatement:
   22-1              (1)  is verified and alleges that the person against
   22-2  whom the suit is pending did not receive the written notice as
   22-3  required by Subsection (a); and
   22-4              (2)  is not controverted by an affidavit filed by the
   22-5  claimant before the 11th day after the date on which the plea in
   22-6  abatement is filed.
   22-7        (e)  An abatement under Subsection (d) continues until the
   22-8  60th day after the date that written notice is served in compliance
   22-9  with Subsection (a).
  22-10        (f) <(d)>  If a claimant unreasonably rejects an offer made
  22-11  as provided by this section or does not permit the contractor or
  22-12  independent contractor a reasonable opportunity to repair the
  22-13  defect pursuant to an accepted offer of settlement, the claimant
  22-14  may not recover an amount in excess of the reasonable cost of the
  22-15  repairs which are necessary to cure the construction defect and
  22-16  which are the responsibility of the contractor and may recover only
  22-17  the amount of reasonable and necessary attorney's fees and costs
  22-18  incurred before the offer was rejected or considered rejected.
  22-19        (g) <(e)>  If a contractor fails to make a reasonable offer
  22-20  under this section, or fails to make a reasonable attempt to
  22-21  complete the repairs specified in an accepted offer made under this
  22-22  section, or fails to complete, in a good and workmanlike manner,
  22-23  the repairs specified in an accepted offer made under this section,
  22-24  the limitations on damages and defenses to liability provided for
  22-25  in this section shall not apply.
  22-26        (h) <(f)>  Except as provided by Subsection (f) <(d)>, in a
  22-27  suit subject to this chapter the claimant may recover only the
   23-1  following damages proximately caused by a construction defect:
   23-2              (1)  the reasonable cost of repairs necessary to cure
   23-3  any construction defect that the contractor failed to cure;
   23-4              (2)  the reasonable expenses of temporary housing
   23-5  reasonably necessary during the repair period;
   23-6              (3)  the reduction in market value, if any, to the
   23-7  extent the reduction is due to structural failure; and
   23-8              (4)  reasonable and necessary attorney's fees.
   23-9        (i) <(g)>  The total damages awarded in a suit subject to
  23-10  this chapter may not exceed the claimant's purchase price for the
  23-11  residence.
  23-12        (j) <(h)>  An offer of settlement made under this section
  23-13  that is not accepted before the 25th day after the date the offer
  23-14  is received by the claimant is considered rejected.
  23-15        (k) <(i)>  An affidavit certifying rejection of a settlement
  23-16  offer under this section may be filed with the court.  The trier of
  23-17  fact shall determine the reasonableness of a rejection of an offer
  23-18  of settlement made under this section.
  23-19        (l) <(j)>  A contractor who makes or provides for repairs
  23-20  under this section is entitled to take reasonable steps to document
  23-21  the repair and to have it inspected.
  23-22        (m) <(k)>  Notwithstanding Subsections (a), (b), and (c), a
  23-23  contractor who receives written notice of a construction defect
  23-24  resulting from work performed by the contractor or an agent,
  23-25  employee, or subcontractor of the contractor and creating an
  23-26  imminent threat to the health or safety of the inhabitants of the
  23-27  residence shall take reasonable steps to cure the defect as soon as
   24-1  practicable.  If the contractor fails to cure the defect in a
   24-2  reasonable time, the owner of the residence may have the defect
   24-3  cured and may recover from the contractor the reasonable cost of
   24-4  the repairs plus attorney's fees and costs in addition to any other
   24-5  damages recoverable under any law not inconsistent with the
   24-6  provisions of this chapter.
   24-7        (n) <(l)>  This section does not preclude a contractor from
   24-8  making a monetary settlement offer.
   24-9        (o) <(m)>  The inspection and repair provisions of this
  24-10  chapter are in addition to any rights of inspection and settlement
  24-11  provided by common law or by another statute, including Section
  24-12  17.505, Business & Commerce Code.
  24-13        SECTION 11.  Section 4, Article 21.21, Insurance Code, is
  24-14  amended to read as follows:
  24-15        Sec. 4.  UNFAIR METHODS OF COMPETITION AND UNFAIR OR
  24-16  DECEPTIVE ACTS OR PRACTICES DEFINED.  The following are hereby
  24-17  defined as unfair methods of competition and unfair and deceptive
  24-18  acts or practices in the business of insurance:
  24-19              (1)  Misrepresentations and False Advertising of Policy
  24-20  Contracts.  Making, issuing, circulating, or causing to be made,
  24-21  issued or circulated, any estimate, illustration, circular or
  24-22  statement misrepresenting the terms of any policy issued or to be
  24-23  issued or the benefits or advantages promised thereby or the
  24-24  dividends or share of the surplus to be received thereon, or making
  24-25  any false or misleading statements as to the dividends or share of
  24-26  surplus previously paid on similar policies, or making any
  24-27  misleading representation or any misrepresentation as to the
   25-1  financial condition of any insurer, or as to the legal reserve
   25-2  system upon which any life insurer operates, or using any name or
   25-3  title of any policy or class of policies misrepresenting the true
   25-4  nature thereof, or making any misrepresentation to any policyholder
   25-5  insured in any company for the purpose of inducing or tending to
   25-6  induce such policyholder to lapse, forfeit, or surrender his
   25-7  insurance;
   25-8              (2)  False Information and Advertising Generally.
   25-9  Making, publishing, disseminating, circulating or placing before
  25-10  the public, or causing, directly or indirectly, to be made,
  25-11  published, disseminated, circulated, or placed before the public,
  25-12  in a newspaper, magazine or other publication, or in the form of a
  25-13  notice, circular, pamphlet, letter or poster, or over any radio or
  25-14  television station, or in any other way, an advertisement,
  25-15  announcement or statement containing any assertion, representation
  25-16  or statement with respect to the business of insurance or with
  25-17  respect to any person in the conduct of his insurance business,
  25-18  which is untrue, deceptive or misleading;
  25-19              (3)  Defamation.  Making, publishing, disseminating, or
  25-20  circulating, directly or indirectly, or aiding, abetting or
  25-21  encouraging the making, publishing, disseminating or circulating of
  25-22  any oral or written statement or any pamphlet, circular, article or
  25-23  literature which is false, or maliciously critical of or derogatory
  25-24  to the financial condition of any insurer, and which is calculated
  25-25  to injure any person engaged in the business of insurance;
  25-26              (4)  Boycott, Coercion and Intimidation.  Entering into
  25-27  any agreement to commit, or by any concerted action committing, any
   26-1  act of boycott, coercion or intimidation resulting in or tending to
   26-2  result in unreasonable restraint of, or monopoly in, the business
   26-3  of insurance;
   26-4              (5)  False Financial Statements.  (a) Filing with any
   26-5  supervisory or other public official, or making, publishing,
   26-6  disseminating, circulating or delivering to any person, or placing
   26-7  before the public, or causing directly or indirectly, to be made,
   26-8  published, disseminated, circulated, delivered to any person, or
   26-9  placed before the public, any false statement of financial
  26-10  condition of an insurer with intent to deceive;
  26-11                    (b)  Making any false entry in any book, report
  26-12  or statement of any insurer with intent to deceive any agent or
  26-13  examiner lawfully appointed to examine into its condition or into
  26-14  any of its affairs, or any public official to whom such insurer is
  26-15  required by law to report, or who has authority by law to examine
  26-16  into its condition or into any of its affairs, or, with like
  26-17  intent, wilfully omitting to make a true entry of any material fact
  26-18  pertaining to the business of such insurer in any book, report or
  26-19  statement of such insurer;
  26-20              (6)  Stock Operations and Advisory Board Contracts.
  26-21  Issuing or delivering or permitting agents, officers or employees
  26-22  to issue or deliver, company stock or other capital stock, or
  26-23  benefit certificates or shares in any corporation, or securities or
  26-24  any special or advisory board contracts or other contracts of any
  26-25  kind promising returns and profits as an inducement to insurance.
  26-26  Provided, however, that nothing in this subsection shall be
  26-27  construed as prohibiting the issuing or delivery of participating
   27-1  insurance policies otherwise authorized by law.
   27-2              (7)  Unfair Discrimination.  (a)  Making or permitting
   27-3  any unfair discrimination between individuals of the same class and
   27-4  equal expectation of life in the rates charged for any contract of
   27-5  life insurance or of life annuity or in the dividends or other
   27-6  benefits payable thereon, or in any other of the terms and
   27-7  conditions of such contract;
   27-8                    (b)  Making or permitting any unfair
   27-9  discrimination between individuals of the same class and of
  27-10  essentially the same hazard in the amount of premium, policy fees,
  27-11  or rates charged for any policy or contract of accident or health
  27-12  insurance or in the benefits payable thereunder, or in any of the
  27-13  terms or conditions of such contract, or in any other manner
  27-14  whatever;
  27-15                    (c)  Making or permitting any unfair
  27-16  discrimination between individuals or risks of the same class and
  27-17  of essentially the same hazards by refusing to renew, cancelling or
  27-18  limiting the amount of coverage on a policy of insurance covered by
  27-19  Subchapter C, Chapter 5, of this code  because of the geographic
  27-20  location of the risk unless:
  27-21                          (1)  the refusal, cancellation or
  27-22  limitation is for a business purpose that is not a mere pretext for
  27-23  unfair discrimination; or
  27-24                          (2)  the refusal, cancellation or
  27-25  limitation is required by law or regulatory mandate.
  27-26              (8)  Rebates.  (a)  Except as otherwise expressly
  27-27  provided by law, knowingly permitting or offering to make or making
   28-1  any contract of life insurance, life annuity or accident and health
   28-2  insurance, or agreement as to such contract other than as plainly
   28-3  expressed in the contract issued thereon, or paying or allowing, or
   28-4  giving or offering to pay, allow, or give, directly or indirectly,
   28-5  as inducement to such insurance, or annuity, any rebate of premiums
   28-6  payable on the contract, or any special favor or advantage in the
   28-7  dividends or other benefits thereon, or any valuable consideration
   28-8  or inducement whatever not specified in the contract; or giving, or
   28-9  selling, or purchasing or offering to give, sell, or purchase as
  28-10  inducement to such insurance or annuity or in connection therewith,
  28-11  any stocks, bonds, or other securities of any insurance company or
  28-12  other corporation, association, or partnership, or any dividends or
  28-13  profits accrued thereon, or anything of value whatsoever not
  28-14  specified in the contract;
  28-15                    (b)  Nothing in clause 7 or paragraph (a) of
  28-16  clause 8 of this subsection shall be construed as including within
  28-17  the definition of discrimination or rebates any of the following
  28-18  practices:
  28-19                          (i)  in the case of any contract of life
  28-20  insurance or life annuity, paying bonuses to policyholders or
  28-21  otherwise abating their premiums in whole or in part out of surplus
  28-22  accumulated from non-participating insurance, provided that any
  28-23  such bonuses or abatement of premiums shall be fair and equitable
  28-24  to policyholders and for the best interests of the company and its
  28-25  policyholders;
  28-26                          (ii)  in the case of life insurance
  28-27  policies issued on the industrial debit plan, making allowance to
   29-1  policyholders who have continuously for a specified period made
   29-2  premium payments directly to an office of the insurer in an amount
   29-3  which fairly represents the saving in collection expenses;
   29-4                          (iii)  readjustment of the rate of premium
   29-5  for a group insurance policy based on the loss or expense
   29-6  experience thereunder, at the end of the first or any subsequent
   29-7  policy year of insurance thereunder, which may be made retroactive
   29-8  only for such policy year.
   29-9              (9)  Deceptive Name, Word, Symbol, Device, or Slogan.
  29-10  Using, displaying, publishing, circulating, distributing, or
  29-11  causing to be used, displayed, published, circulated, or
  29-12  distributed in any letter, pamphlet, circular, contract, policy,
  29-13  evidence of coverage, article, poster, or other document,
  29-14  literature, or public media of:
  29-15                    (a)  a name as the corporate or business name of
  29-16  a person or entity engaged in an insurance or insurance related
  29-17  business in this state that is the same as, or deceptively similar
  29-18  to, the name adopted and used by an insurance entity, health
  29-19  maintenance organization, third party administrator, or group
  29-20  hospital service company authorized to do business under the laws
  29-21  of this state; or
  29-22                    (b)  a word, symbol, device, slogan, or any
  29-23  combination of these items, whether registered or not registered,
  29-24  that is the same as or deceptively similar to one adopted and used
  29-25  by an insurance entity, health maintenance organization, third
  29-26  party administrator, or group hospital service company to
  29-27  distinguish such entities, products, or service from other
   30-1  entities, and includes the title, designation, character names, and
   30-2  distinctive features of broadcast or other advertising.
   30-3        Where two persons or entities are using a name, word, symbol,
   30-4  device, slogan, or any combination of these items that are the same
   30-5  or deceptively similar and are likely to cause confusion or a
   30-6  mistake, the user who can demonstrate the first continuous actual
   30-7  use of such name, word, symbol, device, slogan, or combination of
   30-8  these items shall not have committed an unfair method of
   30-9  competition or deceptive act or practice.
  30-10              (10)  Unfair Settlement Practices.  (a)  Engaging in
  30-11  any of the following unfair settlement practices with respect to a
  30-12  claim by an insured or beneficiary:
  30-13                          (i)  misrepresenting to a claimant a
  30-14  material fact or policy provision relating to coverage at issue;
  30-15                          (ii)  failing to attempt in good faith to
  30-16  effectuate a prompt, fair, and equitable settlement of a claim with
  30-17  respect to which the insurer's liability has become reasonably
  30-18  clear;
  30-19                          (iii)  failing to attempt, in good faith,
  30-20  to effectuate a prompt, fair, and equitable settlement under one
  30-21  portion of a policy of a claim with respect to which the insurer's
  30-22  liability has become reasonably clear in order to influence the
  30-23  claimant to settle an additional claim under another portion of the
  30-24  coverage, provided that this prohibition does not apply if payment
  30-25  under one portion of the coverage constitutes evidence of liability
  30-26  under another portion of the policy;
  30-27                          (iv)  failing to provide promptly to a
   31-1  policyholder a reasonable explanation of the basis in the policy,
   31-2  in relation to the facts or applicable law, for the insurer's
   31-3  denial of a claim or for the offer of a compromise settlement of a
   31-4  claim;
   31-5                          (v)  failing within a reasonable time to:
   31-6                                (A)  affirm or deny coverage of a
   31-7  claim to a policyholder; or
   31-8                                (B)  submit a reservation of rights
   31-9  to a policyholder;
  31-10                          (vi)  refusing, failing, or unreasonably
  31-11  delaying an offer of settlement under applicable first-party
  31-12  coverage on the basis that other coverage may be available or that
  31-13  third parties are responsible for the damages suffered, except as
  31-14  may be specifically provided in the policy;
  31-15                          (vii)  undertaking to enforce a full and
  31-16  final release of a claim from a policyholder when only a partial
  31-17  payment has been made, provided that this prohibition does not
  31-18  apply to a compromise settlement of a doubtful or disputed claim;
  31-19                          (viii)  refusing to pay a claim without
  31-20  conducting a reasonable investigation with respect to the claim;
  31-21                          (ix)  with respect to a Texas personal auto
  31-22  policy, delaying or refusing settlement of a claim solely because
  31-23  there is other insurance of a different type available to satisfy
  31-24  all or any part of the loss forming the basis of that claim; or
  31-25                          (x)  requiring a claimant, as a condition
  31-26  of settling a claim, to produce the claimant's federal income tax
  31-27  returns for examination or investigation by the person unless:
   32-1                                (A)  the claimant is ordered to
   32-2  produce those tax returns by a court;
   32-3                                (B)  the claim involves a fire loss;
   32-4  or
   32-5                                (C)  the claim involves lost profits
   32-6  or income.
   32-7                    (b)  Paragraph (a) of this clause does not
   32-8  provide a cause of action to a third party asserting one or more
   32-9  claims against an insured covered under a liability insurance
  32-10  policy.
  32-11              (11)  Misrepresentation of Insurance Policy.
  32-12  Misrepresenting an insurance policy by:
  32-13                    (a)  making an untrue statement of material fact;
  32-14                    (b)  failing to state a material fact that is
  32-15  necessary to make other statements made not misleading, considering
  32-16  the circumstances under which the statements were made;
  32-17                    (c)  making a statement in such manner as to
  32-18  mislead a reasonably prudent person to a false conclusion of a
  32-19  material fact;
  32-20                    (d)  making a material misstatement of law; or
  32-21                    (e)  failing to disclose any matter required by
  32-22  law to be disclosed, including a failure to make disclosure in
  32-23  accordance with another provision of this code.
  32-24        SECTION 12.  Article 21.21, Insurance Code, is amended by
  32-25  adding Section 11A to read as follows:
  32-26        Sec. 11A.  DOUBLE RECOVERY PROHIBITED.  A person may not
  32-27  recover damages and penalties for the same act or practice under
   33-1  both this Article and under another law.
   33-2        SECTION 13.  Section 16, Article 21.21, Insurance Code, is
   33-3  amended to read as follows:
   33-4        Sec. 16.  RELIEF AVAILABLE TO INJURED PARTIES.  (a)  Any
   33-5  person who has sustained actual damages caused by <as a result of>
   33-6  another's engaging in an act or practice declared in Section 4 of
   33-7  this Article <or in rules or regulations lawfully adopted by the
   33-8  Board under this Article> to be unfair methods of competition or
   33-9  unfair or deceptive acts or practices in the business of insurance
  33-10  or in any practice specifically enumerated in a subdivision of
  33-11  <defined by> Section 17.46(b), <17.46 of the> Business & Commerce
  33-12  Code, <as amended,> as an unlawful deceptive trade practice may
  33-13  maintain an action against the person or persons engaging in such
  33-14  acts or practices.  To maintain an action for a deceptive act or
  33-15  practice enumerated in Section 17.46(b), Business & Commerce Code,
  33-16  a person must show that the person has relied on the act or
  33-17  practice to the person's detriment.
  33-18        (b)  In a suit filed under this section, any plaintiff who
  33-19  prevails may obtain:
  33-20              (1)  the amount of actual damages plus court costs and
  33-21  reasonable and necessary attorneys' fees.   If the trier of fact
  33-22  finds that the defendant knowingly committed the acts complained
  33-23  of, the trier of fact may award not more than three <court shall
  33-24  award, in addition, two> times the amount of actual damages; or
  33-25              (2)  an order enjoining such acts or failure to act; or
  33-26              (3)  any other relief which the court deems proper.
  33-27        (c)  On a finding by the court that an action under this
   34-1  section was groundless and brought in bad faith or brought for the
   34-2  purpose of harassment, the court shall award to the defendant
   34-3  reasonable and necessary attorneys' fees and court costs.
   34-4        (d)  All actions under this Article must be commenced within
   34-5  two years after the date on which the unfair method of competition
   34-6  or unfair or deceptive act or practice occurred or within two years
   34-7  after the person bringing the action discovered or, in the exercise
   34-8  of reasonable diligence, should have discovered the occurrence of
   34-9  the unfair method of competition or unfair or deceptive act or
  34-10  practice.  The period of limitation provided in this section may be
  34-11  extended for a period of 180 days if the person bringing the action
  34-12  proves that the failure to timely commence the action was caused by
  34-13  the defendant's engaging in conduct solely calculated to induce the
  34-14  plaintiff to refrain from or postpone the commencement of the
  34-15  action.
  34-16        (e)  As a prerequisite to filing a suit seeking damages under
  34-17  this section against any person, the person seeking damages shall
  34-18  give written notice to the other person at least 60 <30> days
  34-19  before filing suit.  The notice must advise the person of the
  34-20  specific complaint and the amount of actual damages and expenses,
  34-21  including any attorneys' fees reasonably incurred in asserting the
  34-22  claim against the defendant.
  34-23        (f)  If giving 60 <30> days' written notice is impracticable
  34-24  because the suit must be filed in order to prevent the expiration
  34-25  of the statute of limitations or because the claim is asserted as a
  34-26  counterclaim, the notice provided for in Subsection (e) of this
  34-27  section is not required<, and the tender of a written offer of
   35-1  settlement provided for by Subsection (g) of this section may be
   35-2  made not later than the 30th day after the date of filing of the
   35-3  suit or counterclaim>.
   35-4        (g)  A person against whom a suit is pending who does not
   35-5  receive written notice, as required by Subsection (e) of this
   35-6  section, may file a plea in abatement not later than the 30th day
   35-7  after the date the person files an original answer in the court in
   35-8  which the suit is pending.  This subsection does not apply if
   35-9  Subsection (f) of this section applies <A person who receives the
  35-10  written notice provided by Subsection (e) of this section may
  35-11  tender, not later than the 30th day after the date of receipt of
  35-12  the notice, to the person seeking damages, a written offer of
  35-13  settlement, including an agreement to reimburse the person for any
  35-14  attorneys' fees reasonably incurred in asserting the claim to the
  35-15  date of the written notice.  A person who does not receive a
  35-16  written notice because the suit or counterclaim is filed as
  35-17  provided for by Subsection (f) of this section may tender, not
  35-18  later than the 30th day after the date of filing of the suit or
  35-19  counterclaim, a written offer of settlement, including an agreement
  35-20  to reimburse the person for any attorneys' fees reasonably incurred
  35-21  in asserting the claim to the date the suit or counterclaim was
  35-22  filed.  An offer of settlement is rejected if it is not accepted on
  35-23  or before the 30th day after the date of receipt by the person
  35-24  seeking damages>.
  35-25        (h)  The court shall abate the suit if the court, after a
  35-26  hearing, finds that the person is entitled to an abatement because
  35-27  notice was not provided as required by this section.  A suit is
   36-1  automatically abated without the order of the court beginning on
   36-2  the 11th day after the date a plea in abatement is filed under
   36-3  Subsection (g) if the plea in abatement:
   36-4              (1)  is verified and alleges that the person against
   36-5  whom the suit is pending did not receive the written notice as
   36-6  required by Subsection (e); and
   36-7              (2)  is not controverted by an affidavit filed by the
   36-8  claimant before the 11th day after the date on which the plea in
   36-9  abatement is filed <A rejected settlement offer made in compliance
  36-10  with Subsection (g) of this section may be filed with the court
  36-11  with an affidavit certifying its rejection.  If the court finds
  36-12  that the amount tendered in the settlement offer is the same or
  36-13  substantially the same as the actual damages found by the trier of
  36-14  fact, the plaintiff may not recover an amount that exceeds the
  36-15  lesser of:>
  36-16              <(1)  the amount tendered in the settlement offer; or>
  36-17              <(2)  the amount of actual damages found by the trier
  36-18  of fact>.
  36-19        (i)  An abatement under Subsection (h) continues until the
  36-20  60th day after the date that written notice is served in compliance
  36-21  with Subsection (e) <The tender of an offer of settlement is not an
  36-22  admission of engaging in an unlawful act or practice or of
  36-23  liability under this Article.  Evidence of a settlement offer may
  36-24  be introduced only to determine the reasonableness of the
  36-25  settlement offer as provided for by Subsection (h) of this
  36-26  section>.
  36-27        SECTION 14.  Article 21.21, Insurance Code, is amended by
   37-1  adding Sections 16A and 16B to read as follows:
   37-2        Sec. 16A.  OFFERS OF SETTLEMENT.  (a)  A person who receives
   37-3  notice under Section 16(e) of this article may tender an offer of
   37-4  settlement at any time during the period beginning on the date
   37-5  notice is received and ending on the 60th day after that date.
   37-6        (b)  If a mediation under Section 16B of this article is not
   37-7  conducted, the person may tender an offer of settlement at any time
   37-8  during the period beginning on the date an original answer is filed
   37-9  and ending on the 90th day after that date.
  37-10        (c)  If a mediation under Section 16B of this article is
  37-11  conducted, a person against whom a claim under Section 16 of this
  37-12  article is pending may tender an offer of settlement during the
  37-13  period beginning on the day after the date that the mediation ends
  37-14  and ending on the 20th day after that date.
  37-15        (d)  An offer of settlement tendered by a person against whom
  37-16  a claim under Section 16 of this article is pending must include an
  37-17  offer to pay the following amounts of money, separately stated:
  37-18              (1)  an amount of money or other consideration, reduced
  37-19  to its cash value, as settlement of the claim for damages; and
  37-20              (2)  an amount of money to compensate the claimant for
  37-21  the claimant's reasonable and necessary attorneys' fees incurred as
  37-22  of the date of the offer.
  37-23        (e)  Unless both parts of an offer of settlement required
  37-24  under Subsection (d) of this section are accepted by the claimant
  37-25  not later than the 30th day after the date the offer is made, the
  37-26  offer is rejected.
  37-27        (f)  A settlement offer tendered by a person against whom a
   38-1  claim under Section 16 of this article is pending that complies
   38-2  with this section and that has been rejected by the claimant may be
   38-3  filed with the court with an affidavit certifying its rejection.
   38-4        (g)  If the court finds that the amount tendered in the
   38-5  settlement offer for damages under Subsection (d)(1) of this
   38-6  section is the same as, substantially the same as, or more than the
   38-7  damages found by the trier of fact, the claimant may not recover as
   38-8  damages any amount in excess of the lesser of:
   38-9              (1)  the amount of damages tendered in the settlement
  38-10  offer; or
  38-11              (2)  the amount of damages found by the trier of fact.
  38-12        (h)  If the court makes the finding described by Subsection
  38-13  (g) of this section, the court shall determine reasonable and
  38-14  necessary attorneys' fees to compensate the claimant for attorneys'
  38-15  fees incurred before the date and time of the rejected settlement
  38-16  offer.  If the court finds that the amount tendered in the
  38-17  settlement offer to compensate the claimant for attorneys' fees
  38-18  under Subsection (d)(2) of this section is the same as,
  38-19  substantially the same as, or more than the amount of reasonable
  38-20  and necessary attorneys' fees incurred by the claimant as of the
  38-21  date of the offer, the claimant may not recover attorneys' fees
  38-22  greater than the amount of fees tendered in the settlement offer.
  38-23        (i)  If the court finds that the offering party could not
  38-24  perform the offer at the time the offer was made or that the
  38-25  offering party substantially misrepresented the cash value of the
  38-26  offer, Subsections (g) and (h) of this section do not apply.
  38-27        (j)  If Subsection (g) of this section does not apply, the
   39-1  court shall award damages as required by Section 16(b) of this
   39-2  article.  If Subsection (h) of this section does not apply, the
   39-3  court shall award attorneys' fees as required by Section 16(b) of
   39-4  this article.
   39-5        (k)  An offer of settlement is not an admission of engaging
   39-6  in an act or practice declared in Section 4 of this article to be
   39-7  an unfair method of competition or an unfair or deceptive act or
   39-8  practice in the business of insurance.
   39-9        Sec. 16B.  MEDIATION.  (a)  A party may, not later than the
  39-10  90th day after the date of service of a pleading in which relief
  39-11  under Section 16 of this article is sought, file a motion to compel
  39-12  mediation of the dispute in the manner provided by this section.
  39-13        (b)  The court shall, not later than the 30th day after the
  39-14  date a motion under this section is filed, sign an order setting
  39-15  the time and place of the mediation.
  39-16        (c)  If the parties do not agree on a mediator, the court
  39-17  shall appoint the mediator.
  39-18        (d)  Mediation shall be held within 30 days after the date
  39-19  the order is signed, unless the parties agree otherwise or the
  39-20  court determines that additional time, not to exceed an additional
  39-21  30 days, is warranted.
  39-22        (e)  Except as agreed to by all parties who have appeared in
  39-23  the action, each party who has appeared shall participate in the
  39-24  mediation and, except as provided by Subsection (f), shall share
  39-25  the mediation fee.
  39-26        (f)  A party may not compel mediation under this section if
  39-27  the amount of actual damages claimed is less than $15,000, unless
   40-1  the party seeking to compel mediation agrees to pay the costs of
   40-2  the mediation.
   40-3        (g)  Except as provided in this section, Section 154.023,
   40-4  Civil Practice and Remedies Code, and Subchapters C and D, Chapter
   40-5  154, Civil Practice and Remedies Code, apply to the appointment of
   40-6  a mediator and to the mediation process provided by this section.
   40-7        SECTION 15.  Section 17(a), Article 21.21, Insurance Code, is
   40-8  amended to read as follows:
   40-9        (a)  If a member of the insurance buying public has been
  40-10  damaged by an unlawful method, act, or practice defined in Section
  40-11  4 of this Article <or by the rules and regulations lawfully adopted
  40-12  by the Board under this Article or by any practice defined by
  40-13  Section 17.46 of the Business & Commerce Code, as amended,> as an
  40-14  unlawful deceptive trade practice, the Board may request the
  40-15  Attorney General to bring a class action, or the individual damaged
  40-16  may bring an action on behalf of himself and others similarly
  40-17  situated, to recover damages and relief as provided in this
  40-18  section.
  40-19        SECTION 16.  Section 33.002, Civil Practice and Remedies
  40-20  Code, is amended by amending Subsection (b) and adding Subsection
  40-21  (c) to read as follows:
  40-22        (b)  This chapter does not apply to<:>
  40-23              <(1)>  an action to collect workers' compensation
  40-24  benefits under the workers' compensation laws of this state,
  40-25  Subtitle A, Title 5, Labor Code, <(Article 8306 et seq., Vernon's
  40-26  Texas Civil Statutes)> or actions against an employer for exemplary
  40-27  damages arising out of the death of an employee.
   41-1        (c)  This chapter applies to<;>
   41-2              <(2)>  an action brought under the Deceptive Trade
   41-3  Practices-Consumer Protection Act (Subchapter E, Chapter 17,
   41-4  Business & Commerce Code) <except as specifically provided in
   41-5  Section 17.50 of that Act; or>
   41-6              <(3)  an action brought under Chapter 21, Insurance
   41-7  Code>.
   41-8        SECTION 17.  Article 11.05, Title 79, Revised Statutes
   41-9  (Article 5069-11.05, Vernon's Texas Civil Statutes), is amended to
  41-10  read as follows:
  41-11        Art. 11.05.  Fraudulent, deceptive, or misleading
  41-12  representations.  No debt collector may collect or attempt to
  41-13  collect debts or obtain information concerning a consumer by any
  41-14  fraudulent, deceptive, or misleading representations which employ
  41-15  the following practices:
  41-16              (a)  using any name while engaged in the collection of
  41-17  debts other than the true business or professional name or the true
  41-18  personal or legal name of the debt collector or, if engaged in the
  41-19  collection of a credit card debt, the name appearing on the face of
  41-20  the credit card; or failing to maintain a list of all business or
  41-21  professional names known to be used or formerly used by individual
  41-22  persons collecting debts or attempting to collect debts for the
  41-23  debt collector;
  41-24              (b)  falsely representing that the debt collector has
  41-25  information in his possession or something of value for the
  41-26  consumer in order to solicit or discover information about the
  41-27  consumer;
   42-1              (c)  failing to clearly disclose, in any communication
   42-2  with the debtor, the name of the person to whom the debt has been
   42-3  assigned or is owed at the time of making any demand for money
   42-4  (provided, however, this subsection shall not apply to persons
   42-5  servicing or collecting real estate first lien mortgage loans) or
   42-6  credit card debts;
   42-7              (d)  failing to clearly disclose, in any communication
   42-8  with the debtor, that the debt collector is attempting to collect a
   42-9  debt, unless such communication is for the purpose of discovering
  42-10  the whereabouts of the debtor;
  42-11              (e)  using any written communication which fails to
  42-12  clearly indicate the name of the debt collector and the debt
  42-13  collector's street address or post office box and telephone number,
  42-14  when the written notice refers to an alleged delinquent debt; (the
  42-15  foregoing shall not require disclosure of names and addresses of
  42-16  employees of debt collectors);
  42-17              (f)  using any written communication which demands a
  42-18  response to a place other than the debt collector's or creditor's
  42-19  street address or post office box; (the foregoing shall not require
  42-20  response to the address of an employee of a debt collector);
  42-21              (g)  misrepresenting the character, extent, or amount
  42-22  of a debt against a consumer, or misrepresenting its status in any
  42-23  judicial or governmental proceedings;
  42-24              (h)  falsely representing that any debt collector is
  42-25  vouched for, bonded by, affiliated with, or an instrumentality,
  42-26  agent, or official of this state or any agency of federal, state,
  42-27  or local government;
   43-1              (i)  using, distributing, or selling any written
   43-2  communication which simulates or falsely represents to be a
   43-3  document authorized, issued, or approved by a court, an official, a
   43-4  governmental agency, or any other legally constituted or authorized
   43-5  governmental authority, or which creates a false impression about
   43-6  its source, authorization, or approval; or using any seal or
   43-7  insignia or design which simulates that of any governmental agency;
   43-8              (j)  representing that a debt may be increased by the
   43-9  addition of attorney's fees, investigation fees, service fees, or
  43-10  other charges when there is no written contract or statute
  43-11  authorizing such additional fees or charges;
  43-12              (k)  representing that a debt will definitely be
  43-13  increased by the addition of attorney's fees, investigation fees,
  43-14  service fees, or other charges when the award of such fee or charge
  43-15  is discretionary by a court of law;
  43-16              (l)  falsely representing the status or true nature of
  43-17  the services rendered by the debt collector or his business;
  43-18              (m)  using any written communication which violates or
  43-19  fails to conform to the United States postal laws and regulations;
  43-20              (n)  using any communication which purports to be from
  43-21  any attorney or law firm, when in fact it is not;
  43-22              (o)  representing that a debt is being collected by an
  43-23  attorney when it is not; <or>
  43-24              (p)  representing that a debt is being collected by an
  43-25  independent, bona fide organization engaged in the business of
  43-26  collecting past due accounts when the debt is being collected by a
  43-27  subterfuge organization under the control and direction of the
   44-1  person to whom the debt is owed; however, nothing herein shall
   44-2  prohibit a creditor from owning or operating its own bona fide debt
   44-3  collection agency; or
   44-4              (q)  all changes made to this Act by any act of the
   44-5  74th Legislature shall apply to any civil action pending on or
   44-6  after the effective date of the enactment of these changes.
   44-7        SECTION 18.  Article 11.10, Title 79, Revised Statutes
   44-8  (Article 5069-11.10, Vernon's Texas Civil Statutes), is amended by
   44-9  amending Subsection (c) and adding Subsection (d) to read as
  44-10  follows:
  44-11        (c)  A person who successfully maintains an action under this
  44-12  article for violation of Article 11.02(c) or 11.07A of this Act
  44-13  shall be awarded at least $100 for each violation of this Act.
  44-14        (d)  All changes made to this Act by any act of the 74th
  44-15  Legislature shall apply to any civil action pending on or after the
  44-16  effective date of the enactment of these changes.
  44-17        SECTION 19.  This Act takes effect September 1, 1995, and
  44-18  applies to all causes of action that accrue on or after that date.
  44-19  This Act applies to all causes of action that accrued before the
  44-20  effective date of this Act and upon which suit is filed on or after
  44-21  September 1, 1996.  A cause of action that accrued before the
  44-22  effective date of this Act and upon which suit is filed prior to
  44-23  September 1, 1996, is governed by the law in effect immediately
  44-24  prior to the effective date of this Act, and that law is continued
  44-25  in effect for that purpose.
  44-26        SECTION 20.  The importance of this legislation and the
  44-27  crowded condition of the calendars in both houses create an
   45-1  emergency and an imperative public necessity that the
   45-2  constitutional rule requiring bills to be read on three several
   45-3  days in each house be suspended, and this rule is hereby suspended.