1-1  By:  Armbrister                                        S.B. No. 489
    1-2        (In the Senate - Filed February 7, 1995; February 8, 1995,
    1-3  read first time and referred to Committee on State Affairs;
    1-4  February 27, 1995, reported favorably, as amended, by the following
    1-5  vote:  Yeas 11, Nays 0; February 27, 1995, sent to printer.)
    1-6  COMMITTEE AMENDMENT NO. 1                           By:  Armbrister
    1-7  Amend S.B. No. 489 in SECTION 1, Section 15C, Subsection (m)
    1-8  (Introduced version page 8, line 10, Committee printing page 4,
    1-9  line 26) by adding a new Subdivision (4), to read as follows:
   1-10              (4)  "Subagent" means a licensee who represents a
   1-11  principal through cooperation with and consent of a broker
   1-12  representing the principal and who is not sponsored by or
   1-13  associated with the principal's broker.
   1-14  COMMITTEE AMENDMENT NO. 2                           By:  Armbrister
   1-15  Amend S.B. No. 489 as follows:
   1-16        (1)  Insert in SECTION 1, Subsection (d), in the paragraph
   1-17  beginning IF THE BROKER ACTS AS AN INTERMEDIARY, after the sentence
   1-18  "The written consent must state who will pay the broker" and before
   1-19  the "." the following:
   1-20        and, in conspicuous bold or underlined print, state that the
   1-21  broker does not represent either party and set forth the broker's
   1-22  obligations as an intermediary
   1-23        (2)  Insert in SECTION 1, Subsection (i), after the words "in
   1-24  conspicuous bold or underlined print," the following:
   1-25        that the broker does not represent either party in the
   1-26  transaction and sets forth.
   1-27  COMMITTEE AMENDMENT NO. 3                           By:  Armbrister
   1-28  Amend S.B. No. 489, in SECTION 1, Subsection (j), by deleting
   1-29  Subdivision (4), and inserting the following to read as follows:
   1-30              (4)  shall treat all parties to the transaction
   1-31  honestly and impartially so as not to favor one party or work to
   1-32  the disadvantage of any party; and
   1-33                         A BILL TO BE ENTITLED
   1-34                                AN ACT
   1-35  relating to the disclosure of certain information by a person
   1-36  licensed to sell real estate.
   1-37        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-38        SECTION 1.  Section 15C, The Real Estate License Act (Article
   1-39  6573a, Vernon's Texas Civil Statutes), is amended to read as
   1-40  follows:
   1-41        Sec. 15C.  (a)  A licensee under this Act who represents a
   1-42  party in a proposed real estate transaction shall disclose that
   1-43  representation at the time of the licensee's first contact with:
   1-44              (1)  another party to the transaction; or
   1-45              (2)  another licensee who represents another party to
   1-46  the transaction.
   1-47        (b)  The disclosure required under Subsection (a) of this
   1-48  section may be made orally or in writing.
   1-49        (c)  A licensee who represents a party in a real estate
   1-50  transaction acts as that party's agent.
   1-51        (d)  Except as provided by Subsection (e) of this section, a
   1-52  licensee  shall furnish to a party in a real estate transaction at
   1-53  the time of the first face-to-face meeting with the party the
   1-54  following written statement:
   1-55        "Before working with a real estate broker, you should
   1-56        know that the duties of a broker depend on whom the
   1-57        broker represents.  If you are a prospective seller or
   1-58        landlord (owner) or a prospective buyer or tenant
   1-59        (buyer), you should know that the broker who lists the
   1-60        property for sale or lease is the owner's agent.  A
   1-61        broker who acts as a subagent represents the owner in
   1-62        cooperation with the listing broker.  A broker who acts
   1-63        as a buyer's agent represents the buyer.  A broker may
   1-64        not represent both an owner and a buyer in the same
   1-65        transaction but may act as an intermediary between the
   1-66        parties if the parties consent in writing.  A broker
   1-67        can assist you in locating a property, preparing a
   1-68        contract or lease, or obtaining financing without
    2-1        representing you.  A  broker is obligated by law to
    2-2        treat you honestly.
    2-3        "IF THE BROKER REPRESENTS THE OWNER:   The broker
    2-4        becomes the owner's agent by entering into an agreement
    2-5        with  the owner, usually through a written listing
    2-6        agreement, or by agreeing to act as a subagent by
    2-7        accepting an offer of subagency from the listing
    2-8        broker.  A subagent may work in a different real estate
    2-9        office.  A listing broker or subagent can  assist the
   2-10        buyer but does not represent the buyer and must place
   2-11        the interests of the owner first.  The buyer should not
   2-12        tell the owner's agent anything the buyer would not
   2-13        want the owner to know because an owner's agent must
   2-14        disclose to the owner any material information known to
   2-15        the agent.
   2-16        "IF THE BROKER REPRESENTS THE BUYER:  The broker
   2-17        becomes the buyer's agent by entering into an agreement
   2-18        to represent the buyer, usually through a written buyer
   2-19        representation agreement.  A buyer's agent can assist
   2-20        the owner but does not represent the owner and must
   2-21        place the interests of the buyer first.  The owner
   2-22        should not tell a buyer's agent anything the owner
   2-23        would not want the buyer to know because a buyer's
   2-24        agent must disclose to the buyer any material
   2-25        information known to the agent.
   2-26        "IF THE BROKER ACTS AS AN INTERMEDIARY:  A broker may
   2-27        not act as an agent for more than one party to a
   2-28        transaction but may act as an intermediary between the
   2-29        parties if the broker complies with The Texas Real
   2-30        Estate License Act.  The broker must obtain the written
   2-31        consent of each party to the transaction to act as an
   2-32        intermediary.  The written consent must state who will
   2-33        pay the broker.  The broker is required to treat each
   2-34        party honestly and to comply with The Texas Real Estate
   2-35        License Act.  A broker who acts an an intermediary in a
   2-36        transaction:  (1) shall treat all parties honestly; (2)
   2-37        may not disclose that the owner will accept a price
   2-38        less than the asking price unless authorized in writing
   2-39        to do so by the owner; (3) may not disclose that the
   2-40        buyer will pay a price greater than the price submitted
   2-41        in a written offer unless authorized in writing to do
   2-42        so by the buyer; and (4) may not disclose any
   2-43        confidential information or any information that a
   2-44        party specifically instructs the broker in writing not
   2-45        to disclose unless authorized in writing to disclose
   2-46        the information or required to do so by The Texas Real
   2-47        Estate License Act or a court order.  With  the
   2-48        parties' consent, a broker acting as an intermediary
   2-49        between the parties may appoint a person who is
   2-50        licensed under The Texas Real Estate License Act and
   2-51        associated with the broker to communicate with and
   2-52        carry out instructions for one party and another person
   2-53        who is licensed under that Act and associated with the
   2-54        broker to communicate with and carry out instructions
   2-55        for the other party.
   2-56        "If you choose to have a broker represent you, you
   2-57        should enter into a written agreement with the broker
   2-58        that clearly establishes the broker's obligations and
   2-59        your obligations.  The agreement should state how and
   2-60        by whom the broker will be paid.  You have the right to
   2-61        choose the type of representation, if any, you wish to
   2-62        receive.  Your payment of a fee to a broker does not
   2-63        necessarily establish that the broker represents you.
   2-64        If you have  any questions regarding the duties and
   2-65        responsibilities of the broker, you should resolve
   2-66        those questions before proceeding."
   2-67        (e)  A licensee is not required to provide the written
   2-68  information under Subsection (d) of this section if:
   2-69              (1)  the proposed transaction is for a residential
   2-70  lease for not more than one year and no sale is being considered;
    3-1  or
    3-2              (2)  the licensee meets with a party who is represented
    3-3  by another licensee.
    3-4        (f)  In the written information required to be provided under
    3-5  Subsection (d) of this section, the licensee may substitute the
    3-6  word "buyer" with "tenant" as appropriate.
    3-7        (g)  The written information required to be provided under
    3-8  Subsection (d) of this section may be printed in any format that
    3-9  uses at least 10-point type.
   3-10        (h)  A real estate broker may not act as an agent for more
   3-11  than one party to a transaction but may act as an intermediary
   3-12  between the parties if <unless>:
   3-13              (1)  <the real estate broker, prior to entering into
   3-14  any written agreements to represent more than one party to the
   3-15  transaction, in accordance with the rules of the commission,
   3-16  provides the parties with the applicable agency disclosure form
   3-17  promulgated by the commission which defines common  agency
   3-18  relationships, duties of the broker, and potential conflicts that
   3-19  may develop;>
   3-20              <(2)>  the real estate broker obtains <enters into>
   3-21  written consent from each party <agreements in which all parties>
   3-22  to the transaction  for <consent to and authorize> the real estate
   3-23  broker to act as an intermediary in <represent more than one party
   3-24  to> the transaction; and
   3-25              (2) <(3)>  the written  consent of the parties under
   3-26  Subdivision (1) of this  subsection states <agreements set forth>
   3-27  the source of  any expected compensation to the real estate broker.
   3-28        (i) <(b)>  A written listing agreement to represent a seller
   3-29  or landlord or a written agreement to represent a buyer or tenant
   3-30  which also authorizes a real  estate broker to act as an
   3-31  intermediary in <agent for more than one party to> a transaction is
   3-32  sufficient to establish written consent of the party to the
   3-33  <agreement for the real estate broker to represent more than one
   3-34  party to the> transaction <under this section> if the written
   3-35  agreement sets forth, in conspicuous bold or underlined print, the
   3-36  real estate broker's obligations under Subsection (j) <(c)> of this
   3-37  section.
   3-38        (j) <(c)>  A real estate broker who acts as an intermediary
   3-39  between parties in <agent for more than one party to> a transaction
   3-40  <shall>:
   3-41              (1)  may not disclose to the buyer or tenant that the
   3-42  seller or landlord will accept a price less than the asking price
   3-43  unless otherwise instructed in a separate writing by the seller or
   3-44  landlord;
   3-45              (2)  may not disclose  to the seller or landlord that
   3-46  the buyer or tenant will pay a price greater than the price
   3-47  submitted in a written offer to the seller or landlord unless
   3-48  otherwise instructed in a separate writing by the buyer or tenant;
   3-49              (3)  may not disclose  any confidential information or
   3-50  any information a party specifically instructs the real estate
   3-51  broker in writing not to disclose unless otherwise instructed in a
   3-52  separate writing by the respective party or required to disclose
   3-53  such information by this Act or a court order <law>; <and>
   3-54              (4)  shall treat all parties to the transaction
   3-55  honestly <and impartially so as not to favor one party or work to
   3-56  the disadvantage of any party>; and
   3-57              (5)  shall comply with this Act.
   3-58        (k)  If a real estate broker obtains the consent of the
   3-59  parties to act as an intermediary in a transaction in compliance
   3-60  with this section, the real estate broker may appoint, by providing
   3-61  written notice  to the parties, one or more licensees associated
   3-62  with the broker to communicate with and carry out instructions for
   3-63  one party and one or more other licensees associated  with the
   3-64  broker to communicate with and carry out instructions for the other
   3-65  party or parties.  A real estate broker may appoint a licensee to
   3-66  communicate with and carry out instructions for a party under this
   3-67  subsection only if the written consent of the parties under
   3-68  Subsection (h) or (i) of this section authorizes the broker to make
   3-69  the appointment.  The real estate broker  and the appointed
   3-70  licensees shall  comply with  Subsection (j) of this section.
    4-1  However, during negotiations, an appointed licensee may provide
    4-2  opinions and advice to the party for whom the licensee is
    4-3  appointed.
    4-4        (l)  The duties and obligations of a licensee or party as
    4-5  provided by this section supersede and are in lieu of duties and
    4-6  obligations under common law or any other law.
    4-7        (m)  In this section:
    4-8              (1)  "Face-to-face meeting" means a meeting at which a
    4-9  substantive discussion occurs with respect to specific real
   4-10  property.  The term does not include a meeting that occurs at a
   4-11  property being held open for prospective purchasers or tenants or a
   4-12  meeting that occurs after the parties to the transaction have
   4-13  signed a contract to sell, buy, rent, or lease the real property
   4-14  concerned.
   4-15              (2)  "Licensee" means a real estate broker or real
   4-16  estate salesman and includes a licensed associate of a licensee.
   4-17              (3)  "Party" means a prospective buyer, seller,
   4-18  landlord, or tenant or an authorized representative of a party,
   4-19  including a trustee, guardian, executor, administrator, receiver,
   4-20  or attorney-in-fact.  The term does not include a licensee who
   4-21  represents a party. <(d)  The real estate broker shall use due
   4-22  diligence to assist the parties in understanding the consents,
   4-23  agreements, or instructions under this section in which the real
   4-24  estate broker is permitted to represent more than one party to a
   4-25  transaction.>
   4-26        SECTION 2.  The Real Estate License Act (Article 6573a,
   4-27  Vernon's Texas Civil Statutes) is amended by adding Section 15F to
   4-28  read as follows:
   4-29        Sec. 15F.  (a)  A party is not liable for a misrepresentation
   4-30  or a concealment of a material fact made by a licensee in a real
   4-31  estate transaction unless the party knew of the falsity of the
   4-32  misrepresentation or concealment and failed to disclose the party's
   4-33  knowledge of the falsity of the misrepresentation or concealment.
   4-34        (b)  A licensee is not liable for a misrepresentation or a
   4-35  concealment of a material fact made by a party in a real estate
   4-36  transaction unless the licensee knew of the falsity of the
   4-37  misrepresentation or concealment and failed to disclose the
   4-38  licensee's knowledge of the falsity of the misrepresentation or
   4-39  concealment.
   4-40        (c)  A party or a licensee is not liable for a
   4-41  misrepresentation or a concealment of a material fact made by a
   4-42  subagent in a real estate transaction unless the party or licensee
   4-43  knew of the falsity of the misrepresentation or concealment and
   4-44  failed to disclose the party's or licensee's knowledge of the
   4-45  falsity of the misrepresentation or concealment.
   4-46        (d)  The duties and obligations of a licensee or party as
   4-47  provided by this section supersede and are in lieu of duties and
   4-48  obligations under common law or any other law.
   4-49        (e)  In this section, "licensee" and "party" have the meaning
   4-50  assigned to those terms by Section 15C of this Act.
   4-51        SECTION 3.  This Act takes effect January 1, 1996.
   4-52        SECTION 4.  The importance of this legislation and the
   4-53  crowded condition of the calendars in both houses create an
   4-54  emergency and an imperative public necessity that the
   4-55  constitutional rule requiring bills to be read on three several
   4-56  days in each house be suspended, and this rule is hereby suspended.
   4-57                               * * * * *