1-1  By:  Wolens, Saunders (Senate Sponsor - Cain)         H.B. No. 2771
    1-2        (In the Senate - Received from the House May 11, 1995;
    1-3  May 12, 1995, read first time and referred to Committee on Economic
    1-4  Development; May 16, 1995, reported favorably by the following
    1-5  vote:  Yeas 9, Nays 0; May 16, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to pyramid promotional schemes; providing penalties.
    1-9        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-10        SECTION 1.  Section 17.46(b), Business & Commerce Code, is
   1-11  amended to read as follows:
   1-12        (b)  Except as provided in Subsection (d) of this section,
   1-13  the term "false, misleading, or deceptive acts or practices"
   1-14  includes, but is not limited to, the following acts:
   1-15              (1)  passing off goods or services as those of another;
   1-16              (2)  causing confusion or misunderstanding as to the
   1-17  source, sponsorship, approval, or certification of goods or
   1-18  services;
   1-19              (3)  causing confusion or misunderstanding as to
   1-20  affiliation, connection, or association with, or certification by,
   1-21  another;
   1-22              (4)  using deceptive representations or designations of
   1-23  geographic origin in connection with goods or services;
   1-24              (5)  representing that goods or services have
   1-25  sponsorship, approval, characteristics, ingredients, uses,
   1-26  benefits, or quantities which they do not have or that a person has
   1-27  a sponsorship, approval, status, affiliation, or connection which
   1-28  he does not;
   1-29              (6)  representing that goods are original or new if
   1-30  they are deteriorated, reconditioned, reclaimed, used, or
   1-31  secondhand;
   1-32              (7)  representing that goods or services are of a
   1-33  particular standard, quality, or grade, or that goods are of a
   1-34  particular style or model, if they are of another;
   1-35              (8)  disparaging the goods, services, or business of
   1-36  another by false or misleading representation of facts;
   1-37              (9)  advertising goods or services with intent not to
   1-38  sell them as advertised;
   1-39              (10)  advertising goods or services with intent not to
   1-40  supply a reasonable expectable public demand, unless the
   1-41  advertisements disclosed a limitation of quantity;
   1-42              (11)  making false or misleading statements of fact
   1-43  concerning the reasons for, existence of, or amount of price
   1-44  reductions;
   1-45              (12)  representing that an agreement confers or
   1-46  involves rights, remedies, or obligations which it does not have or
   1-47  involve, or which are prohibited by law;
   1-48              (13)  knowingly making false or misleading statements
   1-49  of fact concerning the need for parts, replacement, or repair
   1-50  service;
   1-51              (14)  misrepresenting the authority of a salesman,
   1-52  representative or agent to negotiate the final terms of a consumer
   1-53  transaction;
   1-54              (15)  basing a charge for the repair of any item in
   1-55  whole or in part on a guaranty or warranty instead of on the value
   1-56  of the actual repairs made or work to be performed on the item
   1-57  without stating separately the charges for the work and the charge
   1-58  for the warranty or guaranty, if any;
   1-59              (16)  disconnecting, turning back, or resetting the
   1-60  odometer of any motor vehicle so as to reduce the number of miles
   1-61  indicated on the odometer gauge;
   1-62              (17)  advertising of any sale by fraudulently
   1-63  representing that a person is going out of business;
   1-64              (18)  using or employing a chain referral sales plan in
   1-65  connection with the sale or offer to sell of goods, merchandise, or
   1-66  anything of value, which uses the sales technique, plan,
   1-67  arrangement, or agreement in which the buyer or prospective buyer
   1-68  is offered the opportunity to purchase merchandise or goods and in
    2-1  connection with the purchase receives the seller's promise or
    2-2  representation that the buyer shall have the right to receive
    2-3  compensation or consideration in any form for furnishing to the
    2-4  seller the names of other prospective buyers if receipt of the
    2-5  compensation or consideration is contingent upon the occurrence of
    2-6  an event subsequent to the time the buyer purchases the merchandise
    2-7  or goods;
    2-8              (19)  representing that a guarantee or warranty confers
    2-9  or involves rights or remedies which it does not have or involve,
   2-10  provided, however, that nothing in this subchapter shall be
   2-11  construed to expand the implied warranty of merchantability as
   2-12  defined in Sections 2.314 through 2.318 and Sections 2A.212 through
   2-13  2A.216 of the Business & Commerce Code to involve obligations in
   2-14  excess of those which are appropriate to the goods;
   2-15              (20)  promoting a pyramid promotional scheme, as
   2-16  defined by Section 17.461 <selling or offering to sell, either
   2-17  directly or associated with the sale of goods or services, a right
   2-18  of participation in a multi-level distributorship.  As used herein,
   2-19  "multi-level distributorship" means a sales plan for the
   2-20  distribution of goods or services in which promises of rebate or
   2-21  payment are made to individuals, conditioned upon those individuals
   2-22  recommending or securing additional individuals to assume positions
   2-23  in the sales operation, and where the rebate or payment is not
   2-24  exclusively conditioned on or in relation to proceeds from the
   2-25  retail sales of goods>;
   2-26              (21)  representing that work or services have been
   2-27  performed on, or parts replaced in, goods when the work or services
   2-28  were not performed or the parts replaced;
   2-29              (22)  filing suit founded upon a written contractual
   2-30  obligation of and signed by the defendant to pay money arising out
   2-31  of or based on a consumer transaction for goods, services, loans,
   2-32  or extensions of credit intended primarily for personal, family,
   2-33  household, or agricultural use in any county other than in the
   2-34  county in which the defendant resides at the time of the
   2-35  commencement of the action or in the county in which the defendant
   2-36  in fact signed the contract; provided, however, that a violation of
   2-37  this subsection shall not occur where it is shown by the person
   2-38  filing such suit he neither knew or had reason to know that the
   2-39  county in which such suit was filed was neither the county in which
   2-40  the defendant resides at the commencement of the suit nor the
   2-41  county in which the defendant in fact signed the contract;
   2-42              (23)  the failure to disclose information concerning
   2-43  goods or services which was known at the time of the transaction if
   2-44  such failure to disclose such information was intended to induce
   2-45  the consumer into a transaction into which the consumer would not
   2-46  have entered had the information been disclosed; or
   2-47              (24)  using the term "corporation," "incorporated," or
   2-48  an abbreviation of either of those terms in the name of a business
   2-49  entity that is not incorporated under the laws of this state or
   2-50  another jurisdiction.
   2-51        SECTION 2.  Subchapter E, Chapter 17, Business & Commerce
   2-52  Code, is amended by adding Section 17.461 to read as follows:
   2-53        Sec. 17.461.  PYRAMID PROMOTIONAL SCHEME.  (a)  In this
   2-54  section:
   2-55              (1)  "Compensation" means payment of money, a financial
   2-56  benefit, or another thing of value.  The term does not include
   2-57  payment based on sale of a product to a person, including a
   2-58  participant, who purchases the product for actual use or
   2-59  consumption.
   2-60              (2)  "Consideration" means the payment of cash or the
   2-61  purchase of a product.  The term does not include:
   2-62                    (A)  a purchase of a product furnished at cost to
   2-63  be used in making a sale and not for resale;
   2-64                    (B)  a purchase of a product subject to a
   2-65  repurchase agreement that complies with Subsection (b); or
   2-66                    (C)  time and effort spent in pursuit of a sale
   2-67  or in a recruiting activity.
   2-68              (3)  "Participate" means to contribute money into a
   2-69  pyramid promotional scheme without promoting, organizing, or
   2-70  operating the scheme.
    3-1              (4)  "Product" means a good, a service, or intangible
    3-2  property of any kind.
    3-3              (5)  "Promoting a pyramid promotional scheme" means:
    3-4                    (A)  inducing or attempting to induce one or more
    3-5  other persons to participate in a pyramid promotional scheme; or
    3-6                    (B)  assisting another person in inducing or
    3-7  attempting to induce one or more other persons to participate in a
    3-8  pyramid promotional scheme, including by providing references.
    3-9              (6)  "Pyramid promotional scheme" means a plan or
   3-10  operation by which a person gives consideration for the opportunity
   3-11  to receive compensation that is derived primarily from a person's
   3-12  introduction of other persons to participate in the plan or
   3-13  operation rather than from the sale of a product by a person
   3-14  introduced into the plan or operation.
   3-15        (b)  To qualify as a repurchase agreement for the purposes of
   3-16  Subsection (a)(2)(B), an agreement must be an enforceable agreement
   3-17  by the seller to repurchase, on written request of the purchaser
   3-18  and not later than the first anniversary of the purchaser's date of
   3-19  purchase, all unencumbered products that are in an unused,
   3-20  commercially resalable condition at a price not less than 90
   3-21  percent of the amount actually paid by the purchaser for the
   3-22  products being returned, less any consideration received by the
   3-23  purchaser for purchase of the products being returned. A product
   3-24  that is no longer marketed by the seller is considered resalable if
   3-25  the product is otherwise in an unused, commercially resalable
   3-26  condition and is returned to the seller not later than the first
   3-27  anniversary of the purchaser's date of purchase, except that the
   3-28  product is not considered resalable if before the purchaser
   3-29  purchased the product it was clearly disclosed to the purchaser
   3-30  that the product was sold as a nonreturnable, discontinued,
   3-31  seasonal, or special promotion item.
   3-32        (c)  A person commits an offense if the person contrives,
   3-33  prepares, establishes, operates, advertises, sells, or promotes a
   3-34  pyramid promotional scheme.  An offense under this subsection is a
   3-35  state jail felony.
   3-36        (d)  It is not a defense to prosecution for an offense under
   3-37  this section that the pyramid promotional scheme involved both a
   3-38  franchise to sell a product and the authority to sell additional
   3-39  franchises if the emphasis of the scheme is on the sale of
   3-40  additional franchises.
   3-41        SECTION 3.  Section 32.48, Penal Code, is repealed.
   3-42        SECTION 4.  This Act takes effect September 1, 1995.
   3-43        SECTION 5.  The importance of this legislation and the
   3-44  crowded condition of the calendars in both houses create an
   3-45  emergency and an imperative public necessity that the
   3-46  constitutional rule requiring bills to be read on three several
   3-47  days in each house be suspended, and this rule is hereby suspended.
   3-48                               * * * * *