74R7474 DWS-F
          By King                                               H.B. No. 1766
          Substitute the following for H.B. No. 1766:
          By Crabb                                          C.S.H.B. No. 1766
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to persons subject to regulation as telephone solicitors.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Article 2(a), Chapter 18, Title 79, Revised
    1-5  Statutes (Article 5069-18.02, Vernon's Texas Civil Statutes), is
    1-6  amended to read as follows:
    1-7        (a)  This chapter does not apply to:
    1-8              (1)  a person offering or selling a security that has
    1-9  been qualified for sale under Section 7, The Securities Act
   1-10  (Article 581-7, Vernon's Texas Civil Statutes), and its subsequent
   1-11  amendments, or that is subject to an exemption under Section 5 or 6
   1-12  of that Act;
   1-13              (2)  a publicly traded corporation registered with the
   1-14  Securities and Exchange Commission or the State Securities Board,
   1-15  or a subsidiary or agent of the corporation;
   1-16              (3)  a person licensed under the Insurance Code, if the
   1-17  solicited transaction is governed by the Insurance Code;
   1-18              (4)  a person soliciting the sale of a subscription to:
   1-19                    (A)  a daily or weekly newspaper of general
   1-20  circulation;
   1-21                    (B)  a magazine or other periodical of general
   1-22  circulation; or
   1-23                    (C)  a cable television service;
    2-1              (5)  a supervised financial institution or parent,
    2-2  subsidiary, or affiliate of a supervised financial institution;
    2-3              (6)  a person or affiliate of a person whose business
    2-4  is regulated by the Public Utility Commission of Texas, except that
    2-5  this chapter applies to a person or affiliate of a person who is
    2-6  regulated by the Public Utility Commission of Texas only with
    2-7  respect to one or more automated dial announcing devices;
    2-8              (7)  an educational institution or organization or a
    2-9  nonprofit organization exempt from taxation under Section 501(c)(3)
   2-10  of the Internal Revenue Code of 1986;
   2-11              (8)  a sale in which the purchaser is a business that
   2-12  intends to:
   2-13                    (A)  resell the item purchased; or
   2-14                    (B)  use the item purchased in a recycling,
   2-15  reuse, remanufacturing, or manufacturing process;
   2-16              (9)  a person soliciting the sale of food;
   2-17              (10)  a person who periodically issues and delivers
   2-18  catalogs to potential purchasers if the catalog:
   2-19                    (A)  includes a written description or
   2-20  illustration and the sales price of each item offered for sale;
   2-21                    (B)  includes at least 24 full pages of written
   2-22  material or illustrations;
   2-23                    (C)  is distributed in more than one state; and
   2-24                    (D)  has an annual circulation of not less than
   2-25  250,000 customers;
    3-1              (11)  the solicitation of contracts for the maintenance
    3-2  or repair of items previously purchased from the person making the
    3-3  solicitation or on whose behalf the solicitation is made;
    3-4              (12)  a person soliciting:
    3-5                    (A)  without intent to complete or obtain
    3-6  provisional acceptance of a sale during the telephone solicitation;
    3-7                    (B)  who does not make the major sales
    3-8  presentation during the telephone solicitation but arranges for the
    3-9  major sales presentation to be made at a later face-to-face meeting
   3-10  between the salesperson and the purchaser; and
   3-11                    (C)  who does not cause an individual to go to
   3-12  the prospective purchaser to collect payment for the purchase or to
   3-13  deliver any item purchased directly following the telephone
   3-14  solicitation;
   3-15              (13)  a person subject to the control or licensing
   3-16  regulations of the Federal Communications Commission;
   3-17              (14)  a person selling:
   3-18                    (A)  a contractual plan regulated by the Federal
   3-19  Trade Commission trade regulation on use of negative option plans
   3-20  by sellers in commerce under Title 16, Code of Federal Regulations,
   3-21  Part 425; or
   3-22                    (B)  merchandise under an arrangement in which
   3-23  the seller periodically ships the merchandise to a consumer who has
   3-24  consented in advance to receive the merchandise on a periodic
   3-25  basis;
    4-1              (15)  a person:
    4-2                    (A)  who provides telephone solicitation services
    4-3  under contract to sellers;
    4-4                    (B)  who has been operating continuously for at
    4-5  least three years under the same business name; and
    4-6                    (C)  for whom at least 75 percent of the person's
    4-7  contracts are performed on behalf of other persons exempt under
    4-8  this section;
    4-9              (16)  a person soliciting business from a former or
   4-10  current customer if the person has operated under the exact same
   4-11  business name for at least two years;
   4-12              (17)  a person engaging in a commercial telephone
   4-13  solicitation that is an isolated transaction and not done in the
   4-14  course of a pattern of repeated transactions of a like nature;
   4-15              (18)  a person who for at least two years has been
   4-16  operating under the same name as that used in connection with its
   4-17  telemarketing operations a retail establishment where consumer
   4-18  goods are displayed and offered for sale on a continuing basis if a
   4-19  majority of the person's business involves the buyers obtaining
   4-20  services or products at the person's retail establishment;
   4-21              (19)  a person subject to the filing requirements of
   4-22  Chapter 1054, Acts of the 70th Legislature, Regular Session, 1987
   4-23  (Article 9023a, Vernon's Texas Civil Statutes), or any successor to
   4-24  this statute; or
   4-25              (20)  a person soliciting a transaction regulated by
    5-1  the Commodity Futures Trading Commission if the person is
    5-2  registered or temporarily licensed for that activity with the
    5-3  Commodity Futures Trading Commission under the Commodity Exchange
    5-4  Act (7 U.S.C. Section 1 et seq.) and the registration or license
    5-5  has not expired or been suspended or revoked.
    5-6        SECTION 2.  (a)  The change in law made by this Act applies
    5-7  only to an offense committed on or after the effective date of this
    5-8  Act.  For purposes of this section, an offense is committed before
    5-9  the effective date of this Act if any element of the offense occurs
   5-10  before that date.
   5-11        (b)  An offense committed before the effective date of this
   5-12  Act is covered by the law in effect when the offense was committed,
   5-13  and the former law is continued in effect for that purpose.
   5-14        SECTION 3.  This Act takes effect September 1, 1995.
   5-15        SECTION 4.  The importance of this legislation and the
   5-16  crowded condition of the calendars in both houses create an
   5-17  emergency and an imperative public necessity that the
   5-18  constitutional rule requiring bills to be read on three several
   5-19  days in each house be suspended, and this rule is hereby suspended.