1-1 By: Haywood S.B. No. 1029
1-2 (In the Senate - Filed March 8, 1995; March 9, 1995, read
1-3 first time and referred to Committee on Economic Development;
1-4 April 26, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; April 26, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1029 By: Haywood
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to persons subject to regulation as telephone solicitors.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subsection (a), Article 2, Chapter 18, Title 79,
1-13 Revised Statutes (Article 5069-18.02, Vernon's Texas Civil
1-14 Statutes), is amended to read as follows:
1-15 (a) This chapter does not apply to:
1-16 (1) a person offering or selling a security that has
1-17 been qualified for sale under Section 7, The Securities Act
1-18 (Article 581-7, Vernon's Texas Civil Statutes), and its subsequent
1-19 amendments, or that is subject to an exemption under Section 5 or 6
1-20 of that Act;
1-21 (2) a publicly traded corporation registered with the
1-22 Securities and Exchange Commission or the State Securities Board,
1-23 or a subsidiary or agent of the corporation;
1-24 (3) a person licensed under the Insurance Code, if the
1-25 solicited transaction is governed by the Insurance Code;
1-26 (4) a person soliciting the sale of a subscription to:
1-27 (A) a daily or weekly newspaper of general
1-28 circulation;
1-29 (B) a magazine or other periodical of general
1-30 circulation; or
1-31 (C) a cable television service;
1-32 (5) a supervised financial institution or parent,
1-33 subsidiary, or affiliate of a supervised financial institution;
1-34 (6) a person or affiliate of a person whose business
1-35 is regulated by the Public Utility Commission of Texas, except that
1-36 this chapter applies to a person or affiliate of a person who is
1-37 regulated by the Public Utility Commission of Texas only with
1-38 respect to one or more automated dial announcing devices;
1-39 (7) an educational institution or organization or a
1-40 nonprofit organization exempt from taxation under Section 501(c)(3)
1-41 of the Internal Revenue Code of 1986;
1-42 (8) a sale in which the purchaser is a business that
1-43 intends to:
1-44 (A) resell the item purchased; or
1-45 (B) use the item purchased in a recycling,
1-46 reuse, remanufacturing, or manufacturing process;
1-47 (9) a person soliciting the sale of food;
1-48 (10) a person who periodically issues and delivers
1-49 catalogs to potential purchasers if the catalog:
1-50 (A) includes a written description or
1-51 illustration and the sales price of each item offered for sale;
1-52 (B) includes at least 24 full pages of written
1-53 material or illustrations;
1-54 (C) is distributed in more than one state; and
1-55 (D) has an annual circulation of not less than
1-56 250,000 customers;
1-57 (11) the solicitation of contracts for the maintenance
1-58 or repair of items previously purchased from the person making the
1-59 solicitation or on whose behalf the solicitation is made;
1-60 (12) a person soliciting:
1-61 (A) without intent to complete or obtain
1-62 provisional acceptance of a sale during the telephone solicitation;
1-63 (B) who does not make the major sales
1-64 presentation during the telephone solicitation but arranges for the
1-65 major sales presentation to be made at a later face-to-face meeting
1-66 between the salesperson and the purchaser; and
1-67 (C) who does not cause an individual to go to
1-68 the prospective purchaser to collect payment for the purchase or to
2-1 deliver any item purchased directly following the telephone
2-2 solicitation;
2-3 (13) a person subject to the control or licensing
2-4 regulations of the Federal Communications Commission;
2-5 (14) a person selling:
2-6 (A) a contractual plan regulated by the Federal
2-7 Trade Commission trade regulation on use of negative option plans
2-8 by sellers in commerce under Title 16, Code of Federal Regulations,
2-9 Part 425; or
2-10 (B) merchandise under an arrangement in which
2-11 the seller periodically ships the merchandise to a consumer who has
2-12 consented in advance to receive the merchandise on a periodic
2-13 basis;
2-14 (15) a person:
2-15 (A) who provides telephone solicitation services
2-16 under contract to sellers;
2-17 (B) who has been operating continuously for at
2-18 least three years under the same business name; and
2-19 (C) for whom at least 75 percent of the person's
2-20 contracts are performed on behalf of other persons exempt under
2-21 this section;
2-22 (16) a person soliciting business from a former or
2-23 current customer if the person has operated under the exact same
2-24 business name for at least two years;
2-25 (17) a person engaging in a commercial telephone
2-26 solicitation that is an isolated transaction and not done in the
2-27 course of a pattern of repeated transactions of a like nature;
2-28 (18) a person who for at least two years has been
2-29 operating under the same name as that used in connection with its
2-30 telemarketing operations a retail establishment where consumer
2-31 goods are displayed and offered for sale on a continuing basis if a
2-32 majority of the person's business involves the buyers obtaining
2-33 services or products at the person's retail establishment;
2-34 (19) a person subject to the filing requirements of
2-35 Chapter 1054, Acts of the 70th Legislature, Regular Session, 1987
2-36 (Article 9023a, Vernon's Texas Civil Statutes), or any successor to
2-37 this statute; or
2-38 (20) a person soliciting a transaction regulated by
2-39 the Commodity Futures Trading Commission if the person is
2-40 registered or temporarily licensed for that activity with the
2-41 Commodity Futures Trading Commission under the Commodity Exchange
2-42 Act (7 U.S.C. Section 1 et seq.) and the registration or license
2-43 has not expired or been suspended or revoked.
2-44 SECTION 2. (a) The change in law made by this Act applies
2-45 only to an offense committed on or after the effective date of this
2-46 Act. For purposes of this section, an offense is committed before
2-47 the effective date of this Act if any element of the offense occurs
2-48 before that date.
2-49 (b) An offense committed before the effective date of this
2-50 Act is covered by the law in effect when the offense was committed,
2-51 and the former law is continued in effect for that purpose.
2-52 SECTION 3. This Act takes effect September 1, 1995.
2-53 SECTION 4. The importance of this legislation and the
2-54 crowded condition of the calendars in both houses create an
2-55 emergency and an imperative public necessity that the
2-56 constitutional rule requiring bills to be read on three several
2-57 days in each house be suspended, and this rule is hereby suspended.
2-58 * * * * *