S.B. No. 1029
AN ACT
1-1 relating to persons subject to regulation as telephone solicitors.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (a), Article 2, Chapter 18, Title 79,
1-4 Revised Statutes (Article 5069-18.02, Vernon's Texas Civil
1-5 Statutes), is amended to read as follows:
1-6 (a) This chapter does not apply to:
1-7 (1) a person offering or selling a security that has
1-8 been qualified for sale under Section 7, The Securities Act
1-9 (Article 581-7, Vernon's Texas Civil Statutes), and its subsequent
1-10 amendments, or that is subject to an exemption under Section 5 or 6
1-11 of that Act;
1-12 (2) a publicly traded corporation registered with the
1-13 Securities and Exchange Commission or the State Securities Board,
1-14 or a subsidiary or agent of the corporation;
1-15 (3) a person licensed under the Insurance Code, if the
1-16 solicited transaction is governed by the Insurance Code;
1-17 (4) a person soliciting the sale of a subscription to:
1-18 (A) a daily or weekly newspaper of general
1-19 circulation;
1-20 (B) a magazine or other periodical of general
1-21 circulation; or
1-22 (C) a cable television service;
1-23 (5) a supervised financial institution or parent,
2-1 subsidiary, or affiliate of a supervised financial institution;
2-2 (6) a person or affiliate of a person whose business
2-3 is regulated by the Public Utility Commission of Texas, except that
2-4 this chapter applies to a person or affiliate of a person who is
2-5 regulated by the Public Utility Commission of Texas only with
2-6 respect to one or more automated dial announcing devices;
2-7 (7) an educational institution or organization or a
2-8 nonprofit organization exempt from taxation under Section 501(c)(3)
2-9 of the Internal Revenue Code of 1986;
2-10 (8) a sale in which the purchaser is a business that
2-11 intends to:
2-12 (A) resell the item purchased; or
2-13 (B) use the item purchased in a recycling,
2-14 reuse, remanufacturing, or manufacturing process;
2-15 (9) a person soliciting the sale of food;
2-16 (10) a person who periodically issues and delivers
2-17 catalogs to potential purchasers if the catalog:
2-18 (A) includes a written description or
2-19 illustration and the sales price of each item offered for sale;
2-20 (B) includes at least 24 full pages of written
2-21 material or illustrations;
2-22 (C) is distributed in more than one state; and
2-23 (D) has an annual circulation of not less than
2-24 250,000 customers;
2-25 (11) the solicitation of contracts for the maintenance
3-1 or repair of items previously purchased from the person making the
3-2 solicitation or on whose behalf the solicitation is made;
3-3 (12) a person soliciting:
3-4 (A) without intent to complete or obtain
3-5 provisional acceptance of a sale during the telephone solicitation;
3-6 (B) who does not make the major sales
3-7 presentation during the telephone solicitation but arranges for the
3-8 major sales presentation to be made at a later face-to-face meeting
3-9 between the salesperson and the purchaser; and
3-10 (C) who does not cause an individual to go to
3-11 the prospective purchaser to collect payment for the purchase or to
3-12 deliver any item purchased directly following the telephone
3-13 solicitation;
3-14 (13) a person subject to the control or licensing
3-15 regulations of the Federal Communications Commission;
3-16 (14) a person selling:
3-17 (A) a contractual plan regulated by the Federal
3-18 Trade Commission trade regulation on use of negative option plans
3-19 by sellers in commerce under Title 16, Code of Federal Regulations,
3-20 Part 425; or
3-21 (B) merchandise under an arrangement in which
3-22 the seller periodically ships the merchandise to a consumer who has
3-23 consented in advance to receive the merchandise on a periodic
3-24 basis;
3-25 (15) a person:
4-1 (A) who provides telephone solicitation services
4-2 under contract to sellers;
4-3 (B) who has been operating continuously for at
4-4 least three years under the same business name; and
4-5 (C) for whom at least 75 percent of the person's
4-6 contracts are performed on behalf of other persons exempt under
4-7 this section;
4-8 (16) a person soliciting business from a former or
4-9 current customer if the person has operated under the exact same
4-10 business name for at least two years;
4-11 (17) a person engaging in a commercial telephone
4-12 solicitation that is an isolated transaction and not done in the
4-13 course of a pattern of repeated transactions of a like nature;
4-14 (18) a person who for at least two years has been
4-15 operating under the same name as that used in connection with its
4-16 telemarketing operations a retail establishment where consumer
4-17 goods are displayed and offered for sale on a continuing basis if a
4-18 majority of the person's business involves the buyers obtaining
4-19 services or products at the person's retail establishment;
4-20 (19) a person subject to the filing requirements of
4-21 Chapter 1054, Acts of the 70th Legislature, Regular Session, 1987
4-22 (Article 9023a, Vernon's Texas Civil Statutes), or any successor to
4-23 this statute; or
4-24 (20) a person soliciting a transaction regulated by
4-25 the Commodity Futures Trading Commission if the person is
5-1 registered or temporarily licensed for that activity with the
5-2 Commodity Futures Trading Commission under the Commodity Exchange
5-3 Act (7 U.S.C. Section 1 et seq.) and the registration or license
5-4 has not expired or been suspended or revoked.
5-5 SECTION 2. (a) The change in law made by this Act applies
5-6 only to an offense committed on or after the effective date of this
5-7 Act. For purposes of this section, an offense is committed before
5-8 the effective date of this Act if any element of the offense occurs
5-9 before that date.
5-10 (b) An offense committed before the effective date of this
5-11 Act is covered by the law in effect when the offense was committed,
5-12 and the former law is continued in effect for that purpose.
5-13 SECTION 3. This Act takes effect September 1, 1995.
5-14 SECTION 4. The importance of this legislation and the
5-15 crowded condition of the calendars in both houses create an
5-16 emergency and an imperative public necessity that the
5-17 constitutional rule requiring bills to be read on three several
5-18 days in each house be suspended, and this rule is hereby suspended.