By Wolens                                             H.B. No. 2771
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  to prohibit pyramid promotional schemes and to provide a penalty
    1-3  for promotion and participation in such schemes.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Sections 17.46(18) and 17.46(20), Business and
    1-6  Commerce Code, are repealed.
    1-7        SECTION 2.  Chapter 17, Business and Commerce Code, is
    1-8  amended by adding section 17.461 to read as follows:
    1-9        Sec. 17.461.  (a)  As used in this section:
   1-10              (1)  "Participant" means a person who contributes money
   1-11  into a pyramid promotional scheme but does not promote, organize or
   1-12  operate the scheme;
   1-13              (2)  "Promoting a pyramid promotional scheme" means
   1-14  inducing or attempting to induce one or more other persons to
   1-15  become participants, or assisting another person in promoting a
   1-16  pyramid promotional scheme by any means including the provision of
   1-17  references.
   1-18              (3)  "Pyramid promotional scheme" means any plan or
   1-19  operation by which a participant gives consideration for the
   1-20  opportunity to receive compensation which is derived primarily from
   1-21  any person's introduction of other persons into participation in
   1-22  the plan or operation rather than from the sale of goods, services
   1-23  or intangible property by the participants or other persons
    2-1  introduced into the plan or operation.
    2-2              (4)  "Compensation" means payment of any money, thing
    2-3  of value, or financial benefit.  Compensation does not include
    2-4  payment based on sales of products by the person or by other
    2-5  participants in the plan to anyone, including a participant in the
    2-6  plan, who is purchasing the products for actual use or consumption.
    2-7              (5)  "Consideration" means the payment of cash or the
    2-8  purchase of products but does not include the purchase of products
    2-9  furnished at cost to be used in making sales and not for resale,
   2-10  the purchase of products where the seller offers to repurchase the
   2-11  products acquired by the participant from the seller at reasonable
   2-12  commercial terms nor does it include time and effort spent in
   2-13  pursuit of sales or recruiting activities.
   2-14              (6)  "Products" means goods, services, or intangible
   2-15  property of any kind.
   2-16              (7)  "Reasonable commercial terms" includes repurchase
   2-17  of all unencumbered products which are in an unused, commercially
   2-18  resalable condition within one year from the participant's date of
   2-19  purchase; such repurchase shall be at a price not less than 90
   2-20  percent of the original net cost to the participant of the products
   2-21  being returned.  For purposes of this paragraph, "original net
   2-22  cost" means the amount actually paid by the participant for the
   2-23  products, less any consideration received by the participant for
   2-24  purchase of the products being returned.  Products which are no
   2-25  longer marketed by a program shall be deemed "resalable" if the
    3-1  products are otherwise in an unused commercially resalable
    3-2  condition and are returned to the seller within one year from the
    3-3  participant's date of purchase; provided, however, that products
    3-4  which are no longer marketed by a program shall not be deemed
    3-5  "resalable" if the products are sold to participants as
    3-6  non-returnable, discontinued, seasonal, or special promotion items
    3-7  and the non-returnable nature of the products was clearly disclosed
    3-8  to the participant prior to purchase.
    3-9        (b)  A person commits a crime if he contrives, prepares,
   3-10  establishes, operates, advertises, sells, promotes or participates
   3-11  in a pyramid promotional scheme.
   3-12        (c)(1)  Any person who violates subsection (b) of this
   3-13  section by contriving, preparing, establishing, operating,
   3-14  advertising or promoting a pyramid promotional scheme is guilty of
   3-15  state jail felony.
   3-16              (2)  Any person who violates subsection (b) of this
   3-17  section by participating in a pyramid promotional scheme is guilty
   3-18  of a Class A misdemeanor except that if the amount of consideration
   3-19  which the person contributed to a pyramid promotional scheme was
   3-20  $100.00 or less, the person is guilty of a Class B misdemeanor.
   3-21        (d)(1)  It shall be no defense to a prosecution for a crime
   3-22  under this section that the scheme or plan involved both a
   3-23  franchise to sell a particular product and the authority to sell
   3-24  additional franchises if the emphasis of the scheme is on the sale
   3-25  of additional franchises.
    4-1              (2)  It shall be no defense to a prosecution for a
    4-2  crime under paragraph (2) of subsection (b) of this section that
    4-3  the person, after signing an agreement to participates, later
    4-4  withdraws from the pyramid promotional scheme.
    4-5        SECTION 2.  This act shall take effect immediately.
    4-6        SECTION 3.  The importance of this legislation and the
    4-7  crowded condition of the calendars in both houses create an
    4-8  emergency and an imperative public necessity that the
    4-9  constitutional rule requiring bills to be read on three several
   4-10  days in each house be suspended, and thes rule is hereby suspended.