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.