By:  Wentworth                                        S.B. No. 1636
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the regulation of the practice of selling real estate.
    1-2        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-3        SECTION 1.  Subsections (b), (c), (d), and (e), Section 1,
    1-4  The Real Estate License Act (Article 6573a, Vernon's Texas Civil
    1-5  Statutes), are amended to read as follows:
    1-6        (b)  It is unlawful for a person to act in the capacity of,
    1-7  engage in the business of, or advertise or hold that person
    1-8  <himself> out as engaging in or conducting the business of a real
    1-9  estate broker or a real estate salesperson <salesman> within this
   1-10  state without first obtaining a real estate license from the Texas
   1-11  Real Estate Commission.  It is unlawful for a person licensed as a
   1-12  real estate salesperson <salesman> to act or attempt to act as a
   1-13  real estate broker or salesperson <salesman> unless that person
   1-14  <he> is, at such time, associated with a licensed Texas real estate
   1-15  broker and acting for the licensed real estate broker.
   1-16        (c)  Each real estate broker licensed pursuant to this Act is
   1-17  responsible to the commission, members of the public, and the
   1-18  broker's <his> clients for all acts and conduct performed under
   1-19  this Act by the broker <himself> or by a real estate salesperson
   1-20  <salesman> associated with or acting for the broker.
   1-21        (d)  No real estate salesperson <salesman> shall accept
   1-22  compensation for real estate sales and transactions from any person
   1-23  other than the broker under whom the salesperson <he> is at the
   1-24  time licensed or under whom the salesperson <he> was licensed when
    2-1  the salesperson <he> earned the right to compensation.
    2-2        (e)  No real estate salesperson <salesman> shall pay a
    2-3  commission to any person except through the broker under whom the
    2-4  salesperson <he> is at the time licensed.
    2-5        SECTION 2.  Subdivision (4), Section 2, The Real Estate
    2-6  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
    2-7  amended to read as follows:
    2-8              (4)  "Real estate salesperson <salesman>" means a
    2-9  person associated with a Texas licensed real estate broker for the
   2-10  purposes of performing acts or transactions comprehended by the
   2-11  definition of "real estate broker" as defined in this Act.
   2-12        SECTION 3.  Section 3, The Real Estate License Act (Article
   2-13  6573a, Vernon's Texas Civil Statutes), is amended to read as
   2-14  follows:
   2-15        Sec. 3.  The provisions of this Act shall not apply to any of
   2-16  the following persons and transactions, and each and all of the
   2-17  following persons and transactions are hereby exempted from the
   2-18  provisions of this Act:
   2-19              (1)  an attorney at law licensed in this state or in
   2-20  any other state;
   2-21              (2)  an attorney in fact under a duly executed power of
   2-22  attorney authorizing the consummation of a real estate transaction;
   2-23              (3)  a public official in the conduct of that person's
   2-24  <his> official duties;
   2-25              (4)  a person calling the sale of real estate by
   2-26  auction under the authority of a license issued by this state
   2-27  provided the person does not perform any other act of a real estate
    3-1  broker or salesperson <salesman> as defined by this Act;
    3-2              (5)  a person acting under a court order or under the
    3-3  authority of a will or a written trust instrument;
    3-4              (6)  a salesperson employed by an owner in the sale of
    3-5  structures and land on which said structures are situated, provided
    3-6  such structures are erected by the owner in the due course of the
    3-7  owner's <his> business;
    3-8              (7)  an on-site manager of an apartment complex;
    3-9              (8)  transactions involving the sale, lease, or
   3-10  transfer of any mineral or mining interest in real property;
   3-11              (9)  an owner or the owner's <his> employees in renting
   3-12  or leasing the owner's <his> own real estate whether improved or
   3-13  unimproved;
   3-14              (10)  transactions involving the sale, lease, or
   3-15  transfer of cemetery lots; <or>
   3-16              (11)  transactions involving the renting, leasing, or
   3-17  management of hotels or motels;  or
   3-18              (12)  a person performing an appraisal of real estate
   3-19  or providing real estate services, regardless of whether in a
   3-20  federally related transaction, who is registered, licensed, or
   3-21  certified by the Texas Appraiser Licensing and Certification Board.
   3-22        SECTION 4.  Section 4, The Real Estate License Act (Article
   3-23  6573a, Vernon's Texas Civil Statutes), is amended to read as
   3-24  follows:
   3-25        Sec. 4.  A person who, directly or indirectly for another,
   3-26  with the intention or on the promise of receiving any valuable
   3-27  consideration, offers, attempts, or agrees to perform, or performs,
    4-1  a single act defined in Subdivisions 2 and 3, Section 2 of this
    4-2  Act, whether as a part of a transaction, or as an entire
    4-3  transaction, is deemed to be acting as a real estate broker or
    4-4  salesperson <salesman> within the meaning of this Act.  The
    4-5  commission of a single such act by a person required to be licensed
    4-6  under this Act and not so licensed shall constitute a violation of
    4-7  this Act.
    4-8        SECTION 5.  Subsections (a), (f), (g), (i), and (m), Section
    4-9  5, The Real Estate License Act (Article 6573a, Vernon's Texas Civil
   4-10  Statutes), are amended to read as follows:
   4-11        (a)  The administration of the provisions of this Act is
   4-12  vested in a commission, to be known as the "Texas Real Estate
   4-13  Commission," consisting of nine members to be appointed by the
   4-14  governor with the advice and consent of two-thirds of the senate
   4-15  present.  The commissioners hold office for staggered terms of six
   4-16  years with the terms of three members expiring January 31 of each
   4-17  odd-numbered year.  Each member holds office until the member's
   4-18  <his> successor is appointed and has qualified.  Within 15 days
   4-19  after <his> appointment, each member shall qualify by taking the
   4-20  constitutional oath of office and furnishing a bond payable to the
   4-21  Governor of Texas in the penal sum of $10,000, conditional on the
   4-22  faithful performance of the member's <his> duties as prescribed by
   4-23  law.  A vacancy for any cause shall be filled by the governor for
   4-24  the unexpired term.  The governor shall designate as chairperson
   4-25  <chairman> of the commission one member of the commission who is a
   4-26  licensed real estate broker.  The chairperson <chairman> serves in
   4-27  that capacity at the pleasure of the governor.  At a regular
    5-1  meeting in February of each year, the commission shall elect from
    5-2  its own membership a vice chairperson <vice-chairman> and
    5-3  secretary.  A quorum of the commission consists of five members.
    5-4        (f)  If the administrator has knowledge that a potential
    5-5  ground for removal exists, the administrator shall notify the
    5-6  chairperson <chairman> of the commission of the ground.  The
    5-7  chairperson <chairman> shall then notify the governor that a
    5-8  potential ground for removal exists.
    5-9        (g)  Each member of the commission shall receive as
   5-10  compensation for each day actually spent on the member's <his>
   5-11  official duties the sum of $75 and the <his> actual and necessary
   5-12  expenses incurred in the performance of the member's <his> official
   5-13  duties.
   5-14        (i)  The commission is empowered to select and name an
   5-15  administrator and to select and employ such other subordinate
   5-16  officers and employees as are necessary to administer this Act.
   5-17  The salaries of the administrator and the officers and employees
   5-18  shall be fixed by the commission not to exceed such amounts as are
   5-19  fixed by the applicable general appropriations bill.  The
   5-20  commission may designate a subordinate officer as assistant
   5-21  administrator who shall be authorized to act for the administrator
   5-22  in the administrator's <his> absence.  The administrator or the
   5-23  administrator's designee shall develop a system of annual
   5-24  performance evaluations.  All merit pay for commission employees
   5-25  must be based on the system established under this subsection.  The
   5-26  administrator or the administrator's designee shall develop an
   5-27  intraagency career ladder program.  The program shall require
    6-1  intraagency postings of all nonentry level positions concurrently
    6-2  with any public posting.
    6-3        (m)  Fifteen dollars received by the commission for a renewal
    6-4  of a broker license before the expiration of the license or before
    6-5  the first anniversary of the date the license expired and $7.50
    6-6  received by the commission for a renewal of a salesperson
    6-7  <salesman> license before the expiration of the license or before
    6-8  the first anniversary of the date the license expired shall be
    6-9  transmitted annually to Texas A&M University for deposit in a
   6-10  separate banking account.  The money in the separate account shall
   6-11  be expended for the support and maintenance of the Texas Real
   6-12  Estate Research Center and for carrying out the purposes,
   6-13  objectives, and duties of the center.  However, all money expended
   6-14  from the separate account shall be as determined by legislative
   6-15  appropriation.
   6-16        SECTION 6.  Subsections (a) and (b), Section 6, The Real
   6-17  Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
   6-18  are amended to read as follows:
   6-19        (a)  A person desiring to act as a real estate broker in this
   6-20  state shall file an application for a license with the commission
   6-21  on a form prescribed by the commission.  A broker desiring to
   6-22  engage a person to participate in real estate brokerage activity
   6-23  shall join the person in filing an application for a salesperson
   6-24  <salesman> license on a form prescribed by the commission.  A
   6-25  person previously licensed as a broker may apply for inactive
   6-26  status.  A person previously licensed as a salesperson <salesman>
   6-27  may apply for inactive status without the participation of a
    7-1  broker.  The person must apply for inactive status on a form
    7-2  prescribed by the commission not later than the fifth <first>
    7-3  anniversary of the date of the expiration of the broker or
    7-4  salesperson <salesman> license.
    7-5        (b)  To be eligible for a license, an individual must be a
    7-6  citizen of the United States or a lawfully admitted alien, be at
    7-7  least 18 years of age, and be a legal resident of Texas at the time
    7-8  of the filing of an application, and must satisfy the commission as
    7-9  to the individual's <his> honesty, trustworthiness, integrity, and
   7-10  competency.  However, the competency of the individual, for the
   7-11  purpose of qualifying for the granting of a license, shall be
   7-12  judged solely on the basis of the examination referred to in
   7-13  Section 7 of this Act.
   7-14        SECTION 7.  Subsection (a), Section 6A, The Real Estate
   7-15  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
   7-16  amended to read as follows:
   7-17        (a)  If, at any time before a person applies for a license
   7-18  under this Act, the person requests the commission to determine
   7-19  whether the person's <his> moral character complies with the
   7-20  commission's moral character requirements for licensing under this
   7-21  Act and the person pays a fee set by the commission for the moral
   7-22  character determination, the commission shall make its
   7-23  determination of the person's moral character.
   7-24        SECTION 8.  Subsections (a), (c), (d), (e), (f), (g), (h),
   7-25  and (k), Section 7, The Real Estate License Act (Article 6573a,
   7-26  Vernon's Texas Civil Statutes), are amended to read as follows:
   7-27        (a)  Competency as referred to in Section 6 of this Act shall
    8-1  be established by an examination prepared by or contracted for by
    8-2  the commission.  The examination shall be given at such times and
    8-3  at such places within the state as the commission shall prescribe.
    8-4  The examination shall be of scope sufficient in the judgment of the
    8-5  commission to determine that a person is competent to act as a real
    8-6  estate broker or salesperson <salesman> in a manner to protect the
    8-7  interest of the public.  The examination for a salesperson
    8-8  <salesman> license shall be less exacting and less stringent than
    8-9  the examination for a broker license.  The commission shall furnish
   8-10  each applicant with study material and references on which the
   8-11  <his> examination shall be based.  When an applicant for a real
   8-12  estate license fails a qualifying examination, the applicant <he>
   8-13  may apply for reexamination by filing a request therefor together
   8-14  with the proper fee.  The examination requirement must be satisfied
   8-15  not later than six months after the date on which the application
   8-16  for a license is filed.  Courses of study required for a license
   8-17  may include but are not limited to the following, which shall be
   8-18  considered core real estate courses for all purposes of this Act:
   8-19              (1)  Principles of Real Estate (or equivalent) shall
   8-20  include but not be limited to an overview of licensing as a real
   8-21  estate broker and salesperson <salesman>, ethics of practice,
   8-22  titles to and conveyancing of real estate, legal descriptions, law
   8-23  of agency, deeds, encumbrances and liens, distinctions between
   8-24  personal and real property, contracts, appraisal, finance and
   8-25  regulations, closing procedures, real estate mathematics, and at
   8-26  least three classroom hours of instruction on federal, state, and
   8-27  local laws relating to housing discrimination, housing credit
    9-1  discrimination, and community reinvestment.
    9-2              (2)  Real Estate Appraisal (or equivalent) shall
    9-3  include but not be limited to the central purposes and functions of
    9-4  an appraisal, social and economic determinant of value, appraisal
    9-5  case studies, cost, market data and income approaches to value
    9-6  estimates, final correlations, and reporting.
    9-7              (3)  Real Estate Law (or equivalent) shall include but
    9-8  not be limited to legal concepts of real estate, land description,
    9-9  real property rights and estates in land, contracts, conveyances,
   9-10  encumbrances, foreclosures, recording procedures, and evidence of
   9-11  titles.
   9-12              (4)  Real Estate Finance (or equivalent) shall include
   9-13  but not be limited to monetary systems, primary and secondary money
   9-14  markets, sources of mortgage loans, federal government programs,
   9-15  loan applications, processes and procedures, closing costs,
   9-16  alternative financial instruments, equal credit opportunity acts,
   9-17  community reinvestment act, and state housing agency.
   9-18              (5)  Real Estate Marketing (or equivalent) shall
   9-19  include but not be limited to real estate professionalism and
   9-20  ethics, characteristics of successful salespersons <salesmen>, time
   9-21  management, psychology of marketing, listing procedures,
   9-22  advertising, negotiating and closing, financing, and the Deceptive
   9-23  Trade Practices-Consumer Protection Act, as amended, Section 17.01
   9-24  et seq., Business & Commerce Code.
   9-25              (6)  Real Estate Mathematics (or equivalent) shall
   9-26  include but not be limited to basic arithmetic skills and review of
   9-27  mathematical logic, percentages, interest, time-valued money,
   10-1  depreciation, amortization, proration, and estimation of closing
   10-2  statements.
   10-3              (7)  Real Estate Brokerage (or equivalent) shall
   10-4  include but not be limited to law of agency, planning and
   10-5  organization, operational policies and procedures, recruiting,
   10-6  selection and training of personnel, records and control, and real
   10-7  estate firm analysis and expansion criteria.
   10-8              (8)  Property Management (or equivalent) shall include
   10-9  but not be limited to role of property manager, landlord policies,
  10-10  operational guidelines, leases, lease negotiations, tenant
  10-11  relations, maintenance, reports, habitability laws, and the Fair
  10-12  Housing Act.
  10-13              (9)  Real Estate Investments (or equivalent) shall
  10-14  include but not be limited to real estate investment
  10-15  characteristics, techniques of investment analysis, time-valued
  10-16  money, discounted and nondiscounted investment criteria, leverage,
  10-17  tax shelters depreciation, and applications to property tax.
  10-18              (10)  Law of Agency (or equivalent) shall include but
  10-19  not be limited to the principal-agent and master-servant
  10-20  relationships, the authority of an agent, the termination of an
  10-21  agent's authority, the fiduciary and other duties of an agent,
  10-22  employment law, deceptive trade practices, listing or buying
  10-23  representation procedures, and the disclosure of agency.
  10-24        (c)  The commission shall waive the examination of an
  10-25  applicant for a broker license who has, within two years <one year>
  10-26  previous to the filing of the <his> application, been licensed in
  10-27  this state as a broker, and shall waive the examination of an
   11-1  applicant for a salesperson <salesman> license who has, within two
   11-2  years <one year> previous to the filing of the <his> application,
   11-3  been licensed in this state as either a broker or salesperson
   11-4  <salesman>.  If an application is filed after the second
   11-5  anniversary of the expiration date of the applicant's previous
   11-6  license, the applicant must satisfy the examination requirement and
   11-7  any continuing education required under Section 7A(b) of this Act.
   11-8  If an application is filed after the fifth anniversary of the
   11-9  expiration date of the applicant's previous license, the applicant
  11-10  must satisfy the experience, examination, and education
  11-11  requirements for an original license under this Act.
  11-12        (d)  Each applicant for a broker license shall furnish the
  11-13  commission satisfactory evidence that the applicant <he> has had
  11-14  not less than two years active experience in this state as a
  11-15  licensed real estate salesperson <salesman> or broker during the
  11-16  seven-year <36-month> period immediately preceding the filing of
  11-17  the application; and, in addition, shall furnish the commission
  11-18  satisfactory evidence of having completed successfully 60 semester
  11-19  hours, or equivalent classroom hours, of core real estate courses
  11-20  or related postsecondary education courses accepted by the
  11-21  commission.  These qualifications for a broker license may not be
  11-22  required of an applicant who, at the time of making the
  11-23  application, is duly licensed as a real estate broker by any other
  11-24  state in the United States if that state's requirements for
  11-25  licensure are comparable to those of Texas.  As a prerequisite for
  11-26  applying for a broker license, those persons licensed as
  11-27  salespersons <salesmen> subject to the annual education
   12-1  requirements provided by Subsection (e) of this section shall, as
   12-2  part of the hours required by this subsection, furnish the
   12-3  commission satisfactory evidence of having completed all the
   12-4  requirements of Subsection (e) of this section.
   12-5        (e)  Each applicant for a salesperson <salesman> license
   12-6  shall furnish the commission satisfactory evidence of having
   12-7  completed 12 semester hours, or equivalent classroom hours, of
   12-8  postsecondary education, six hours of which must be completed in
   12-9  core real estate courses, of which a minimum of two hours must be
  12-10  completed in Principles of Real Estate as described in Subsection
  12-11  (a)(1) of this section and a minimum of two hours must be completed
  12-12  in Law of Agency as described in Subsection (a)(10) of this
  12-13  section.  The remaining six hours shall be completed in core real
  12-14  estate courses or related courses.  As a condition for the first
  12-15  renewal of a salesperson <salesman> license, the applicant shall
  12-16  furnish the commission satisfactory evidence of having completed a
  12-17  minimum of 14 semester hours, or equivalent classroom hours, eight
  12-18  hours of which must be completed in core real estate courses.  As a
  12-19  condition for the second renewal of a salesperson <salesman>
  12-20  license, the applicant shall furnish the commission satisfactory
  12-21  evidence of having completed a minimum of 16 semester hours, or
  12-22  equivalent classroom hours, 10 hours of which must be completed in
  12-23  core real estate courses.  As a condition for the third renewal of
  12-24  a salesperson <salesman> license, the applicant shall furnish the
  12-25  commission satisfactory evidence of having completed a minimum of
  12-26  18 semester hours, or equivalent classroom hours, 12 hours of which
  12-27  must be completed in core real estate courses.
   13-1        (f)  Insofar as is necessary for the administration of this
   13-2  Act, the commission is authorized to inspect and accredit
   13-3  educational programs or courses of study in real estate and real
   13-4  estate inspection and to establish standards of accreditation for
   13-5  such programs conducted in the State of Texas, other than
   13-6  accredited colleges and universities.  The commission shall
   13-7  determine the acceptability of real estate courses and real estate
   13-8  inspection courses offered to satisfy the requirements of this Act,
   13-9  and by rule may provide reasonable criteria for the approval of
  13-10  those courses.  Schools, other than accredited colleges and
  13-11  universities, which are authorized to offer real estate educational
  13-12  courses pursuant to provisions of this section, shall be required
  13-13  to maintain a corporate surety bond, or other security acceptable
  13-14  to the commission, in the sum of $10,000, payable to the
  13-15  commission, for the benefit of a party who may suffer damages
  13-16  resulting from failure of a commission approved school or course to
  13-17  fulfill obligations attendant to the approval.  The commission by
  13-18  rule may provide for the reapplication by and reaccreditation of a
  13-19  school accredited by the commission before September 1, 1995, and
  13-20  may collect a reasonable filing fee to implement this section.  A
  13-21  fee collected under this subsection may not exceed $400 for an
  13-22  application for the reaccreditation of a school and $100 for an
  13-23  application for the approval of a course of study.
  13-24        (g)  Notwithstanding any other provision of this Act, each
  13-25  applicant for a broker license shall furnish the commission with
  13-26  satisfactory evidence:
  13-27              (1)  that the applicant <he> has satisfied the
   14-1  requirements of Subsection (d) of this section;
   14-2              (2)  that the applicant <he> is a licensed real estate
   14-3  broker in another state, <that he> has had not less than two years'
   14-4  active experience in the other state as a licensed real estate
   14-5  salesperson <salesman> or broker during the seven-year <36-month>
   14-6  period immediately preceding the filing of the application, and
   14-7  <that he> has satisfied the educational requirements for a broker
   14-8  license as provided by Subsection (d) of this section; or
   14-9              (3)  that the applicant <he> has, within five years
  14-10  <one year> previous to the filing of the <his> application, been
  14-11  licensed in this state as a broker.
  14-12        (h)  Notwithstanding any other provision of this Act, the
  14-13  commission shall waive the requirements of Subsection (e) of this
  14-14  section for an applicant for a salesperson <salesman> license who
  14-15  has, within five years <one year> previous to the filing of the
  14-16  <his> application, been licensed in this state as a broker or
  14-17  salesperson <salesman>.  However, with respect to an applicant for
  14-18  a salesperson <salesman> license who was licensed as a salesperson
  14-19  <salesman> within five years <one year> previous to the filing of
  14-20  the application but whose original license was issued under the
  14-21  provisions that the first, second, and third renewal of the license
  14-22  would be conditioned upon furnishing satisfactory evidence of
  14-23  successful completion of additional education, the commission shall
  14-24  require the applicant to furnish satisfactory evidence of
  14-25  successful completion of any additional education that would have
  14-26  been required if the license had been maintained without
  14-27  interruption <during the previous year>.
   15-1        (k)  The commission may accept examinations administered by a
   15-2  testing service as satisfying the examination requirements imposed
   15-3  under this Act.  The commission may negotiate agreements with those
   15-4  testing services relating to examination development, preparation
   15-5  of study materials, collection of filing fees, acceptance and
   15-6  processing of license applications, test scheduling, examination
   15-7  site arrangements, and test administration, grading, reporting, and
   15-8  analysis.  The commission may require a testing service to
   15-9  correspond directly with the license applicants regarding the
  15-10  administration of the examinations and may require that a testing
  15-11  service collect fees for providing an applicant with study
  15-12  materials, filing an application for a license, processing license
  15-13  applications, or administering the examinations directly from the
  15-14  applicants.  The commission also may require a testing service to
  15-15  administer examinations at specific locations and specified
  15-16  frequencies.  The commission shall retain the authority to
  15-17  establish the scope and type of all examinations.  The commission
  15-18  shall adopt rules and standards as necessary to implement this
  15-19  section.  In the absence of an agreement with a testing service,
  15-20  the commission shall administer any required qualifying examination
  15-21  in accordance with this Act.
  15-22        SECTION 9.  Subsections (a), (b), (c), and (d), Section 7A,
  15-23  The Real Estate License Act (Article 6573a, Vernon's Texas Civil
  15-24  Statutes), are amended to read as follows:
  15-25        (a)  To renew an active real estate broker license or an
  15-26  active real estate salesperson <salesman> license that is not
  15-27  subject to the annual education requirements of this Act, the
   16-1  licensee must provide the commission proof of attendance at at
   16-2  least 15 classroom hours of continuing education courses approved
   16-3  by the commission during the term of the current license.  The
   16-4  commission by rule may provide for the substitution of relevant
   16-5  educational experience or correspondence courses approved by the
   16-6  commission instead of classroom attendance.  In addition,
   16-7  supervised video instruction may be approved by the commission as a
   16-8  course counting as classroom hours of mandatory continuing
   16-9  education.  At least six hours of instruction must be devoted to
  16-10  the rules of the commission, fair housing laws, agency laws,
  16-11  antitrust laws, the Deceptive Trade Practices-Consumer Protection
  16-12  Act (Subchapter E, Chapter 17, Business & Commerce Code),
  16-13  disclosures to buyers and sellers, current contract and addendum
  16-14  forms, the unauthorized practice of law, case studies involving
  16-15  violations of laws and regulations, current Federal Housing
  16-16  Administration and Veterans Administration regulations, tax laws,
  16-17  and other legal topics approved by the commission.  The remaining
  16-18  hours may be devoted to other real estate-related topics approved
  16-19  by the commission.  The commission may consider equivalent courses
  16-20  for continuing education credit.  The commission, on the request of
  16-21  a provider of education, shall review a core real estate course
  16-22  authorized under Section 7 of this Act and may approve it as a
  16-23  mandatory continuing education course.  Real estate related courses
  16-24  approved by the State Bar of Texas for minimum continuing legal
  16-25  education participatory credit and core real estate courses under
  16-26  Section 7(a) of this Act shall automatically be approved as
  16-27  mandatory continuing education courses under this Act.  The
   17-1  commission may not require examinations except for correspondence
   17-2  courses.  Daily course segments must be at least three hours long
   17-3  but not more than 10 hours long.  <If the license being renewed
   17-4  under this section was issued for less than two years, the licensee
   17-5  must provide the commission proof of attendance at at least eight
   17-6  classroom hours of continuing education within the term of the
   17-7  current license, three classroom hours of which must have been
   17-8  devoted to the legal topics specified in this section.>
   17-9        (b)  An applicant for an active real estate broker license or
  17-10  an active real estate salesperson <salesman> license who is not
  17-11  subject to the education requirements of Section 7 of this Act must
  17-12  provide the commission with proof of attendance of the number of
  17-13  classroom hours of continuing education that would have been
  17-14  required for a timely renewal as specified in Subsection (a) of
  17-15  this section during the two-year period preceding the filing of the
  17-16  application.
  17-17        (c)  As a condition of returning to active status, an
  17-18  inactive salesperson <salesman> whose license is not subject to the
  17-19  annual education requirements of this Act must provide the
  17-20  commission with proof of attendance at at least 15 hours of
  17-21  continuing education as specified in Subsection (a) of this section
  17-22  during the two-year period preceding the filing of the application.
  17-23        (d)  The commission may adopt rules and set and collect
  17-24  reasonable fees to implement this section, including a fee not to
  17-25  exceed $400 for an application for approval of a provider of
  17-26  continuing education and a fee not to exceed $100 for an
  17-27  application for a course of study to be offered for continuing
   18-1  education.  If the commission determines that an applicant
   18-2  satisfies the requirements of this section and any rules adopted by
   18-3  the commission under this section, the commission may authorize a
   18-4  provider to offer continuing education for a period of four <two>
   18-5  years or authorize the offering of a course of study for a period
   18-6  of two years.
   18-7        SECTION 10.  Section 8, The Real Estate License Act (Article
   18-8  6573a, Vernon's Texas Civil Statutes), is amended by amending
   18-9  Subsections (a), (b), (c), (d), (e), (f), (h), (i), (j), (l), (n),
  18-10  and (q) to read as follows:
  18-11        (a)  The commission shall establish a real estate recovery
  18-12  fund which shall be set apart and maintained by the commission as
  18-13  provided in this section.  The fund shall be used in the manner
  18-14  provided in this section for reimbursing aggrieved persons who
  18-15  suffer actual damages by reason of certain acts committed by a duly
  18-16  licensed real estate broker or salesperson <salesman>, or by an
  18-17  unlicensed employee or agent of a broker or salesperson <salesman>,
  18-18  provided the broker or salesperson <salesman> was licensed by the
  18-19  State of Texas at the time the act was committed and provided
  18-20  recovery is ordered by a court of competent jurisdiction against
  18-21  the broker or salesperson <salesman>.  The use of the fund is
  18-22  limited to an act that constitutes a violation of Section 15(a)(3)
  18-23  or (6) of this Act.
  18-24        (b)  On application for an original license pursuant to this
  18-25  Act, the applicant shall pay, in addition to the <his> original
  18-26  license application fee, a fee of $10 which shall be deposited in
  18-27  the real estate recovery fund.
   19-1        (c)  If on December 31 of any year the balance remaining in
   19-2  the real estate recovery fund is less than $1 million, each real
   19-3  estate broker and each real estate salesperson <salesman>, on the
   19-4  next renewal of the <his> license, shall pay, in addition to the
   19-5  <his> license renewal fee, a fee of $10, which shall be deposited
   19-6  in the real estate recovery fund, or a pro rata share of the amount
   19-7  necessary to bring the fund to $1.7 million, whichever is less.  If
   19-8  on December 31 of any year the balance remaining in the real estate
   19-9  recovery fund is more than $3.5 million or more than the total
  19-10  amount of claims paid from the fund during the previous four fiscal
  19-11  years, whichever is greater, the amount of money in excess of the
  19-12  greater amount shall be transferred to the general revenue fund.
  19-13        (d)  No action for a judgment which subsequently results in
  19-14  an order for collection from the real estate recovery fund shall be
  19-15  started later than two years from the accrual of the cause of
  19-16  action.  When an aggrieved person commences action for a judgment
  19-17  which may result in collection from the real estate recovery fund,
  19-18  the real estate broker or real estate salesperson <salesman> shall
  19-19  notify the commission in writing to this effect at the time of the
  19-20  commencement of the action.
  19-21        (e)  When an aggrieved person recovers a valid judgment in a
  19-22  court of competent jurisdiction against a real estate broker or
  19-23  real estate salesperson <salesman>, on the grounds described in
  19-24  Subsection (a) of this section that occurred on or after May 19,
  19-25  1975, the aggrieved person may, after final judgment has been
  19-26  entered, execution returned nulla bona, and a judgment lien
  19-27  perfected, file a verified claim in the court in which the judgment
   20-1  was entered and, on 20 days' written notice to the commission, and
   20-2  to the judgment debtor, may apply to the court for an order
   20-3  directing payment out of the real estate recovery fund of the
   20-4  amount unpaid on the judgment, subject to the limitations stated in
   20-5  Subsection (n) of this section.
   20-6        (f)  The court shall proceed on the application forthwith.
   20-7  On the hearing on the application, the aggrieved person is required
   20-8  to show that:
   20-9              (1)  the judgment is based on facts allowing recovery
  20-10  under Subsection (a) of this section;
  20-11              (2)  the person <he> is not a spouse of the debtor, or
  20-12  the personal representative of the spouse; and the person <he> is
  20-13  not a real estate broker or salesperson <salesman>, as defined by
  20-14  this Act, who is seeking to recover a real estate commission in the
  20-15  transaction or transactions for which the application for payment
  20-16  is made;
  20-17              (3)  the person <he> has obtained a judgment under
  20-18  Subsection (e) of this section that is not subject to a stay or
  20-19  discharge in bankruptcy and has been judicially determined to be
  20-20  nondischargeable in a pending bankruptcy, stating the amount of the
  20-21  judgment and the amount owing on the judgment at the date of the
  20-22  application;
  20-23              (4)  based on the best available information, the
  20-24  judgment debtor lacks sufficient attachable assets in this state or
  20-25  any other state to satisfy the judgment; and
  20-26              (5)  the amount that may be realized from the sale of
  20-27  real or personal property or other assets liable to be sold or
   21-1  applied in satisfaction of the judgment and the balance remaining
   21-2  due on the judgment after application of the amount that may be
   21-3  realized.
   21-4        (h)  The court shall make an order directed to the commission
   21-5  requiring payment from the real estate recovery fund of whatever
   21-6  sum it finds to be payable on the claim, pursuant to and in
   21-7  accordance with the limitations contained in this section, if the
   21-8  court is satisfied, on the hearing, of the truth of all matters
   21-9  required to be shown by the aggrieved person by Subsection (f) of
  21-10  this section and that the aggrieved person has satisfied all of the
  21-11  requirements of Subsections (e) and (f) of this section.  The
  21-12  commission may relitigate any issue material and relevant in the
  21-13  hearing on the application that was determined in the underlying
  21-14  action on which the judgment in favor of the applicant was based.
  21-15  If the court finds that the aggregate amount of claims against a
  21-16  real estate broker or salesperson <salesman> exceeds the
  21-17  limitations contained in this section, the court shall reduce
  21-18  proportionately the amount it finds payable on the claim.
  21-19        (i)  A license granted under the provisions of this Act may
  21-20  be revoked by the commission on proof that the commission has made
  21-21  a payment from the real estate recovery fund of any amount toward
  21-22  satisfaction of a judgment against a licensed real estate broker or
  21-23  salesperson <salesman>.  The commission may probate an order
  21-24  revoking a license.  No broker or salesperson <salesman> is
  21-25  eligible to receive a new license until the broker or salesperson
  21-26  <he> has repaid in full, plus interest at the current legal rate,
  21-27  the amount paid from the real estate recovery fund on the broker's
   22-1  or salesperson's <his> account.
   22-2        (j)  The sums received by the real estate commission for
   22-3  deposit in the real estate recovery fund shall be held by the
   22-4  commission in trust for carrying out the purposes of the real
   22-5  estate recovery fund.  Subject to legislative appropriation, money
   22-6  in the fund may be used by the commission to pay the expenses
   22-7  involved in collecting judgments assigned to the commission.  These
   22-8  funds may be invested and reinvested in the same manner as funds of
   22-9  the Texas State Employees Retirement System, and the interest from
  22-10  these investments shall be deposited to the credit of the real
  22-11  estate recovery fund, provided, however, that no investments shall
  22-12  be made which will impair the necessary liquidity required to
  22-13  satisfy judgment payments awarded pursuant to this section.
  22-14        (l)  When, on the order of the court, the commission has paid
  22-15  from the real estate recovery fund any sum to the judgment
  22-16  creditor, the commission shall be subrogated to all of the rights
  22-17  of the judgment creditor to the extent of the amount paid.  The
  22-18  judgment creditor shall assign all of the creditor's <his> right,
  22-19  title, and interest in the judgment up to the amount paid by the
  22-20  commission which amount shall have priority for repayment in the
  22-21  event of any subsequent recovery on the judgment.  Any amount and
  22-22  interest recovered by the commission on the judgment shall be
  22-23  deposited to the fund.
  22-24        (n)  Notwithstanding any other provision, payments from the
  22-25  real estate recovery fund are subject to the following conditions
  22-26  and limitations:
  22-27              (1)  payments may be made only pursuant to an order of
   23-1  a court of competent jurisdiction, as provided in Subsection (e) of
   23-2  this section, and in the manner prescribed by this section;
   23-3              (2)  payments for claims, including attorneys' fees,
   23-4  interest, and court costs, arising out of the same transaction
   23-5  shall be limited in the aggregate to $50,000 regardless of the
   23-6  number of claimants; and
   23-7              (3)  payments for claims based on judgments against any
   23-8  one licensed real estate broker or salesperson <salesman> may not
   23-9  exceed in the aggregate $100,000 until the fund has been reimbursed
  23-10  by the licensee for all amounts paid.
  23-11        (q)  A broker or salesperson <salesman> licensed under this
  23-12  Act shall notify consumers and service recipients of the
  23-13  availability of the real estate recovery fund established under
  23-14  this section for reimbursing certain aggrieved persons.  The notice
  23-15  must include the name, mailing address, and telephone number of the
  23-16  commission and any other information required by commission rule.
  23-17  The notification may be provided with the notice required by
  23-18  Section 5(q) of this Act or:
  23-19              (1)  on a written contract for the services of a broker
  23-20  or salesperson <salesman>;
  23-21              (2)  on a brochure distributed by a broker or
  23-22  salesperson <salesman>;
  23-23              (3)  on a sign prominently displayed in the place of
  23-24  business of a salesperson <salesman> or broker; or
  23-25              (4)  in a bill or receipt for service provided by a
  23-26  broker or salesperson <salesman>.
  23-27        SECTION 11.  Subsections (a), (b), and (e), Section 9, The
   24-1  Real Estate License Act (Article 6573a, Vernon's Texas Civil
   24-2  Statutes), are amended to read as follows:
   24-3        (a)  When an applicant has satisfactorily met all
   24-4  requirements and conditions of this Act, a license shall be issued
   24-5  which may remain in force and effect so long as the holder of the
   24-6  license remains in compliance with the obligations of this Act,
   24-7  which include payment of the renewal fee as provided in Section 11
   24-8  of this Act.  Each active salesperson <salesman> license issued
   24-9  shall be delivered or mailed to the broker with whom the
  24-10  salesperson <salesman> is associated and shall be kept under the
  24-11  broker's <his> custody and control.
  24-12        (b)  An applicant is not permitted to engage in the real
  24-13  estate business either as a broker or salesperson <salesman> until
  24-14  a license evidencing the applicant's <his> authority to engage in
  24-15  the real estate business has been received.
  24-16        (e)  The commission shall require in any application for a
  24-17  broker or salesperson <salesman> license or a renewal of a broker
  24-18  or salesperson <salesman> license the applicant to disclose whether
  24-19  the applicant has entered a plea of guilty or nolo contendere to,
  24-20  been found guilty of, or been convicted of a felony and the time
  24-21  for appeal has elapsed or the judgment or conviction has been
  24-22  affirmed on appeal, irrespective of an order granting probation
  24-23  following the conviction or suspending the imposition of sentence.
  24-24        SECTION 12.  Subsection (a), Section 10, The Real Estate
  24-25  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
  24-26  amended to read as follows:
  24-27        (a)  If the commission declines or fails to license an
   25-1  applicant, it shall immediately give written notice of the refusal
   25-2  to the applicant.  Before the applicant may appeal to a district
   25-3  court as provided in Section 18 of this Act, the applicant <he>
   25-4  must file within 10 days after the receipt of the notice an appeal
   25-5  from the ruling, requesting a time and place for a hearing before
   25-6  the commission.  The commission shall set a time and place for the
   25-7  hearing within 30 days from the receipt of the appeal, giving 10
   25-8  days' notice of the hearing to the applicant.  The time of the
   25-9  hearing may be continued from time to time with the consent of the
  25-10  applicant.  Following the hearing, the commission shall enter an
  25-11  order which is, in its opinion, appropriate in the matter
  25-12  concerned.
  25-13        SECTION 13.  Section 11, The Real Estate License Act (Article
  25-14  6573a, Vernon's Texas Civil Statutes), is amended to read as
  25-15  follows:
  25-16        Sec. 11.  <(a)>  The commission shall charge and collect the
  25-17  following fees:
  25-18              (1)  a fee not to exceed $100 for the filing of an
  25-19  original application for a real estate broker license;
  25-20              (2)  a fee not to exceed $100 for annual renewal of a
  25-21  real estate broker license;
  25-22              (3)  a fee not to exceed $50 for the filing of an
  25-23  original application for a real estate salesperson <salesman>
  25-24  license;
  25-25              (4)  a fee not to exceed $50 for annual renewal of a
  25-26  real estate salesperson <salesman> license;
  25-27              (5)  a fee not to exceed $25 for an application for a
   26-1  license examination;
   26-2              (6)  a fee not to exceed $20 for filing a request for a
   26-3  license for each additional office or place of business;
   26-4              (7)  a fee not to exceed $20 for filing a request for a
   26-5  license for a change of place of business, change of name, return
   26-6  to active status, or change of sponsoring broker;
   26-7              (8)  a fee not to exceed $20 for filing a request to
   26-8  replace a license lost or destroyed;
   26-9              (9)  a fee not to exceed $400 for filing an application
  26-10  for approval of an education program under Section 7(f) of this
  26-11  Act;
  26-12              (10)  a fee not to exceed $200 a year for operation of
  26-13  an education program under Section 7(f) of this Act;
  26-14              (11)  a fee of $15 for transcript evaluation;
  26-15              (12)  a fee not to exceed $10 for preparing a license
  26-16  history; and
  26-17              (13)  a fee not to exceed $50 for the filing of an
  26-18  application for a moral character determination.
  26-19        SECTION 14.  Subsections (a), (b), and (d), Section 12, The
  26-20  Real Estate License Act (Article 6573a, Vernon's Texas Civil
  26-21  Statutes), are amended to read as follows:
  26-22        (a)  Each resident broker shall maintain a fixed office
  26-23  within this state.  The address of the office shall be designated
  26-24  on the broker's license.  Within 10 days after a move from a
  26-25  previously designated address, the broker shall submit an
  26-26  application for a new license, designating the new location of the
  26-27  broker's <his> office, together with the required fee, whereupon
   27-1  the commission shall issue a license, reflecting the new location,
   27-2  provided the new location complies with the terms of this section.
   27-3        (b)  If a broker maintains more than one place of business
   27-4  within this state, the broker <he> shall apply for, pay the
   27-5  required fee for, and obtain an additional license to be known as a
   27-6  branch office license for each additional office the broker <he>
   27-7  maintains.
   27-8        (d)  Each broker shall also prominently display in the
   27-9  broker's <his> place or in one of the broker's <his> places of
  27-10  business the license of each real estate salesperson <salesman>
  27-11  associated with the broker <him>.
  27-12        SECTION 15.  Section 13, The Real Estate License Act (Article
  27-13  6573a, Vernon's Texas Civil Statutes), is amended to read as
  27-14  follows:
  27-15        Sec. 13.  (a)  When the association of a salesperson
  27-16  <salesman> with the salesperson's <his> sponsoring broker is
  27-17  terminated, the broker shall immediately return the salesperson
  27-18  <salesman> license to the commission.  The salesperson <salesman>
  27-19  license then becomes inactive.
  27-20        (b)  The salesperson <salesman> license may be activated if,
  27-21  before the license expires, a request, accompanied by the required
  27-22  fee, is filed with the commission by a licensed broker advising
  27-23  that the broker <he> assumes sponsorship of the salesperson
  27-24  <salesman>.
  27-25        SECTION 16.  Subsection (a), Section 13A, The Real Estate
  27-26  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
  27-27  amended to read as follows:
   28-1        (a)  A real estate broker who holds a license issued under
   28-2  this Act and who is not acting as a broker or sponsoring a
   28-3  salesperson <salesman> may apply to the commission in writing to be
   28-4  placed on the inactive status list maintained by the commission.
   28-5  The broker must apply for inactive status before the expiration of
   28-6  the broker's license.  The broker shall terminate the broker's
   28-7  association with any salesperson <salesmen> sponsored by the broker
   28-8  by giving written notice to the salesperson <salesmen> before the
   28-9  30th day before the date the broker applies for inactive status.  A
  28-10  person on inactive status under this section is required to pay the
  28-11  annual renewal fees.
  28-12        SECTION 17.  Section 14, The Real Estate License Act (Article
  28-13  6573a, Vernon's Texas Civil Statutes), is amended to read as
  28-14  follows:
  28-15        Sec. 14.  (a)  It is unlawful for a licensed broker to employ
  28-16  or compensate directly or indirectly a person for performing an act
  28-17  enumerated in the definition of real estate broker in Section 2 of
  28-18  this Act if the person is not a licensed broker or licensed
  28-19  salesperson <salesman> in this state.  However, a licensed broker
  28-20  may pay a commission to a licensed broker of another state if the
  28-21  foreign broker does not conduct in this state any of the
  28-22  negotiations for which the fee, compensation, or commission is
  28-23  paid.
  28-24        (b)  A resident broker of another state who furnishes the
  28-25  evidence required under Section 7(g) of this Act may apply for a
  28-26  license as a broker in this state.  A resident of another state who
  28-27  is not licensed as a broker but who was formerly licensed as a
   29-1  salesperson <salesman> or broker in this state may apply for a
   29-2  license in this state not later than the fifth <first> anniversary
   29-3  of the date of the expiration of the previous license.  An
   29-4  application by a nonresident is subject to the requirements under
   29-5  this Act for the type of license applied for.  A nonresident
   29-6  licensee need not maintain a place of business in this state.  The
   29-7  commission may in its discretion refuse to issue a license to an
   29-8  applicant who is not a resident of this state for the same reasons
   29-9  that it may refuse to license a resident of this state.  The
  29-10  commission shall judge the competency of a nonresident applicant
  29-11  solely on the basis of the examination conducted under Section 7 of
  29-12  this Act.
  29-13        (c)  Each nonresident applicant shall file an irrevocable
  29-14  consent that legal actions may be commenced against the applicant
  29-15  <him> in the proper court of any county of this state in which a
  29-16  cause of action may arise, or in which the plaintiff may reside, by
  29-17  service of process or pleading authorized by the laws of this
  29-18  state, or by serving the administrator or assistant administrator
  29-19  of the commission.  The consent shall stipulate that the service of
  29-20  process or pleading shall be valid and binding in all courts as if
  29-21  personal service had been made on the nonresident in this state.
  29-22  The consent shall be duly acknowledged, and if made by a
  29-23  corporation, shall be authenticated by its seal.  A service of
  29-24  process or pleading served on the commission shall be by duplicate
  29-25  copies, one of which shall be filed in the office of the commission
  29-26  and the other forwarded by registered mail to the last known
  29-27  principal address which the commission has for the nonresident
   30-1  against whom the process or pleading is directed.  No default in an
   30-2  action may be taken except on certification by the commission that
   30-3  a copy of the process or pleading was mailed to the defendant as
   30-4  provided in this section, and no default judgment may be taken in
   30-5  an action or proceeding until 20 days after the day of mailing of
   30-6  the process or pleading to the defendant.
   30-7        Notwithstanding any other provision of this subsection, a
   30-8  nonresident of this state who resides in a city whose boundaries
   30-9  are contiguous at any point to the boundaries of a city of this
  30-10  state, and who has been an actual bona fide resident of that city
  30-11  for at least 60 days immediately preceding the filing of the
  30-12  person's <his> application, is eligible to be licensed as a real
  30-13  estate broker or salesperson <salesman> under this Act in the same
  30-14  manner as a resident of this state.  If a person <he> is licensed
  30-15  in this manner, the person <he> shall at all times maintain a place
  30-16  of business either in the city in which the person <he> resides or
  30-17  in the city in this state which is contiguous to the city in which
  30-18  the person <he> resides, and the person <he> may not maintain a
  30-19  place of business at another location in this state unless the
  30-20  person <he> also complies with the requirements of Section 14(b) of
  30-21  this Act.  The place of business must satisfy the requirements of
  30-22  Subsection (a) of Section 12 of this Act, but the place of business
  30-23  shall be deemed a definite place of business in this state within
  30-24  the meaning of Subsection (a) of Section 12.
  30-25        SECTION 18.  Subsections (a) and (d), Section 15, The Real
  30-26  Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
  30-27  are amended to read as follows:
   31-1        (a)  The commission may, on its own motion, and shall, on the
   31-2  signed complaint in writing of any person <a consumer or service
   31-3  recipient>, provided the complaint, or the complaint together with
   31-4  evidence, documentary or otherwise, presented in connection with
   31-5  the complaint, provides reasonable cause, investigate the actions
   31-6  and records of a real estate broker or real estate salesperson
   31-7  <salesman>.  The commission may suspend or revoke a license issued
   31-8  under the provisions of this Act at any time when it has been
   31-9  determined that:
  31-10              (1)  the licensee has entered a plea of guilty or nolo
  31-11  contendere to, or been found guilty of, or been convicted of, a
  31-12  felony, in which fraud is an essential element, and the time for
  31-13  appeal has elapsed or the judgment or conviction has been affirmed
  31-14  on appeal, irrespective of an order granting probation following
  31-15  such conviction, suspending the imposition of sentence;
  31-16              (2)  the licensee has procured, or attempted to
  31-17  procure, a real estate license, for the licensee <himself> or
  31-18  another person <a salesman>, by fraud, misrepresentation or deceit,
  31-19  or by making a material misstatement of fact in an application for
  31-20  a real estate license;
  31-21              (3)  the licensee, when selling, buying, trading, or
  31-22  renting real property on the licensee's <in his> own account
  31-23  <name>, engaged in misrepresentation or dishonest or fraudulent
  31-24  action;
  31-25              (4)  the licensee has failed within a reasonable time
  31-26  to make good a check issued to the commission after the commission
  31-27  has mailed a request for payment by certified mail to the
   32-1  licensee's last known business address as reflected by the
   32-2  commission's records;
   32-3              (5)  the licensee has disregarded or violated a
   32-4  provision of this Act;
   32-5              (6)  the licensee, while performing an act constituting
   32-6  an act of a broker or salesperson <salesman>, as defined by this
   32-7  Act, has been guilty of:
   32-8                    (A)  making a material misrepresentation, or
   32-9  failing to disclose to a potential purchaser any latent structural
  32-10  defect or any other defect known to the broker or salesperson
  32-11  <salesman>.  Latent structural defects and other defects do not
  32-12  refer to trivial or insignificant defects but refer to those
  32-13  defects that would be a significant factor to a reasonable and
  32-14  prudent purchaser in making a decision to purchase;
  32-15                    (B)  making a false promise of a character likely
  32-16  to influence, persuade, or induce any person to enter into a
  32-17  contract or agreement when the licensee could not or did not intend
  32-18  to keep such promise;
  32-19                    (C)  pursuing a continued and flagrant course of
  32-20  misrepresentation or making of false promises through agents,
  32-21  salespersons <salesmen>, advertising, or otherwise;
  32-22                    (D)  failing to make clear, to all parties to a
  32-23  transaction, which party the licensee <he> is acting for, or
  32-24  receiving compensation from more than one party except with the
  32-25  full knowledge and consent of all parties;
  32-26                    (E)  failing within a reasonable time properly to
  32-27  account for or remit money coming into the licensee's <his>
   33-1  possession which belongs to others, or commingling money belonging
   33-2  to others with the licensee's <his> own funds;
   33-3                    (F)  paying a commission or fees to or dividing a
   33-4  commission or fees with anyone not licensed as a real estate broker
   33-5  or salesperson <salesman> in this state or in any other state for
   33-6  compensation for services for which <as> a real estate license is
   33-7  required by this Act <agent>;
   33-8                    (G)  failing to specify in a listing contract or
   33-9  in another contract in which the licensee agrees to perform
  33-10  services for which a license is required under this Act a definite
  33-11  termination date which is not subject to prior notice;
  33-12                    (H)  accepting, receiving, or charging an
  33-13  undisclosed commission, rebate, or direct profit on expenditures
  33-14  made for a principal;
  33-15                    (I)  soliciting, selling, or offering for sale
  33-16  real property under a scheme or program that constitutes a lottery
  33-17  or deceptive practice;
  33-18                    (J)  acting in the dual capacity of broker and
  33-19  undisclosed principal in a transaction;
  33-20                    (K)  guaranteeing, authorizing, or permitting a
  33-21  person to guarantee that future profits will result from a resale
  33-22  of real property;
  33-23                    (L)  placing a sign on real property offering it
  33-24  for sale, lease, or rent without the written consent of the owner
  33-25  or the owner's <his> authorized agent;
  33-26                    (M)  inducing or attempting to induce a party to
  33-27  a contract of sale or lease to break the contract for the purpose
   34-1  of substituting in lieu thereof a new contract;
   34-2                    (N)  negotiating or attempting to negotiate the
   34-3  sale, exchange, lease, or rental of real property with an owner,
   34-4  <or> lessor, buyer, or tenant, knowing that the owner, <or> lessor,
   34-5  buyer, or tenant had a written outstanding contract, granting
   34-6  exclusive agency in connection with the transaction <property> to
   34-7  another real estate broker;
   34-8                    (O)  offering real property for sale or for lease
   34-9  without the knowledge and consent of the owner or the owner's <his>
  34-10  authorized agent, or on terms other than those authorized by the
  34-11  owner or the owner's <his> authorized agent;
  34-12                    (P)  publishing, or causing to be published, an
  34-13  advertisement including, but not limited to, advertising by
  34-14  newspaper, radio, television, or display which is misleading, or
  34-15  which is likely to deceive the public, or which in any manner tends
  34-16  to create a misleading impression, or which fails to identify the
  34-17  person causing the advertisement to be published as a licensed real
  34-18  estate broker or salesperson <agent>;
  34-19                    (Q)  having knowingly withheld from or inserted
  34-20  in a statement of account or invoice, a statement that made it
  34-21  inaccurate in a material particular;
  34-22                    (R)  publishing or circulating an unjustified or
  34-23  unwarranted threat of legal proceedings, or other action;
  34-24                    (S)  establishing an association, by employment
  34-25  or otherwise, with an unlicensed person who is expected or required
  34-26  to perform an act for which <as> a real estate license is required
  34-27  by this Act <licensee>, or aiding or abetting or conspiring with a
   35-1  person to circumvent the requirements of this Act;
   35-2                    (T)  failing or refusing on demand to furnish
   35-3  copies of a document pertaining to a transaction dealing with real
   35-4  estate to a person whose signature is affixed to the document;
   35-5                    (U)  failing to advise a purchaser in writing
   35-6  before the closing of a transaction that the purchaser should
   35-7  either have the abstract covering the real estate which is the
   35-8  subject of the contract examined by an attorney of the purchaser's
   35-9  own selection, or be furnished with or obtain a policy of title
  35-10  insurance;
  35-11                    (V)  conduct which constitutes dishonest
  35-12  dealings, bad faith, or untrustworthiness;
  35-13                    (W)  acting negligently or incompetently in
  35-14  performing an act for which a person is required to hold a real
  35-15  estate license;
  35-16                    (X)  disregarding or violating a provision of
  35-17  this Act;
  35-18                    (Y)  failing within a reasonable time to deposit
  35-19  money received as escrow agent in a real estate transaction, either
  35-20  in trust with a title company authorized to do business in this
  35-21  state, or in a custodial, trust, or escrow account maintained for
  35-22  that purpose in a banking institution authorized to do business in
  35-23  this state;
  35-24                    (Z)  disbursing money deposited in a custodial,
  35-25  trust, or escrow account, as provided in Subsection (Y) before the
  35-26  transaction concerned has been consummated or finally otherwise
  35-27  terminated; or
   36-1                    (AA)  discriminating against an owner, potential
   36-2  purchaser, lessor, or potential lessee on the basis of race, color,
   36-3  religion, sex, national origin, <or> ancestry, familial status, or
   36-4  disability, including directing prospective home buyers or lessees
   36-5  interested in equivalent properties to different areas according to
   36-6  the race, color, religion, sex, national origin, <or> ancestry,
   36-7  familial status, or disability of the potential owner or lessee;
   36-8              (7)  the licensee has failed or refused on demand to
   36-9  produce a document, book, or record in the licensee's <his>
  36-10  possession concerning a real estate transaction conducted by the
  36-11  licensee <him> for inspection by the commission or its authorized
  36-12  personnel or representative;
  36-13              (8)  the licensee has failed within a reasonable time
  36-14  to provide information requested by the commission in connection
  36-15  with an investigation to determine whether the licensee has
  36-16  violated a provision of this Act or a rule of the commission <as a
  36-17  result of a formal or informal complaint to the commission which
  36-18  would indicate a violation of this Act>; or
  36-19              (9)  the licensee has failed without just cause to
  36-20  surrender to the rightful owner, on demand, a document or
  36-21  instrument coming into the licensee's <his> possession.
  36-22        (d)  The commission may not investigate under this section a
  36-23  complaint submitted more than four years after the date of the
  36-24  incident involving a real estate broker or salesperson <salesman>
  36-25  that is the subject of the complaint.
  36-26        SECTION 19.  Subsection (a), Section 15B, The Real Estate
  36-27  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
   37-1  amended to read as follows:
   37-2        (a)  Notwithstanding any other provision of the Act, there
   37-3  shall be no undercover or covert investigations of a person
   37-4  licensed under this Act conducted by authority of this Act unless
   37-5  expressly authorized by the commission after due consideration of
   37-6  the circumstances and determination by the commission that such
   37-7  measures are necessary to carry out the purposes of this Act.  No
   37-8  investigations of licensees or any other actions against licensees
   37-9  shall be initiated on the basis of anonymous complaints whether in
  37-10  writing or otherwise but shall be initiated only upon the
  37-11  commission's own motion or a signed written complaint <from a
  37-12  consumer or service recipient>.  The commission may authorize an
  37-13  employee of the commission to file a signed written complaint
  37-14  against a licensee relating to a payment from a recovery fund
  37-15  established under this Act, a criminal conviction, or an act of the
  37-16  licensee that involves obtaining or attempting to obtain a license
  37-17  by fraud, engaging in misrepresentation or deceit, or failing to
  37-18  make good a check issued to the commission.  Upon the adoption of
  37-19  such motion by the commission or upon receipt of such complaint,
  37-20  the licensee shall be notified promptly and in writing <unless the
  37-21  commission itself, after due consideration, determines otherwise>.
  37-22        SECTION 20.  Section 15D, The Real Estate License Act
  37-23  (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
  37-24  as follows:
  37-25        Sec. 15D.  No licensed real estate broker, licensed real
  37-26  estate salesperson <salesman>, or not for profit real estate board
  37-27  or association which provides information about real property sales
   38-1  prices or terms of sale for the purpose of facilitating the
   38-2  listing, selling, leasing, financing, or appraisal of real property
   38-3  shall be liable to any other person as a result of so providing
   38-4  such information unless the disclosure of same is otherwise
   38-5  specifically prohibited by statute.
   38-6        SECTION 21.  Subsections (a), (b), (d), and (e), Section 16,
   38-7  The Real Estate License Act (Article 6573a, Vernon's Texas Civil
   38-8  Statutes), are amended to read as follows:
   38-9        (a)  A license granted under the provisions of this Act shall
  38-10  be suspended or revoked by the commission on proof that the
  38-11  licensee, not being licensed and authorized to practice law in this
  38-12  state, for a consideration, reward, pecuniary benefit, present or
  38-13  anticipated, direct or indirect, or in connection with or as a part
  38-14  of the licensee's <his> employment, agency, or fiduciary
  38-15  relationship as a licensee, drew a deed, note, deed of trust, will,
  38-16  or other written instrument that may transfer or anywise affect the
  38-17  title to or an interest in land, except as provided in the
  38-18  subsections below, or advised or counseled a person as to the
  38-19  validity or legal sufficiency of an instrument or as to the
  38-20  validity of title to real estate.
  38-21        (b)  Notwithstanding the provisions of this Act or any other
  38-22  law, the completion of contract forms which bind the sale,
  38-23  exchange, option, lease, or rental of any interest in real property
  38-24  by a real estate broker or salesperson <salesman> incident to the
  38-25  performance of the acts of a broker as defined by this article does
  38-26  not constitute the unauthorized or illegal practice of law in this
  38-27  state, provided the forms have been promulgated for use by the
   39-1  commission for the particular kind of transaction involved, or the
   39-2  forms have been prepared by an attorney at law licensed by this
   39-3  state and approved by said attorney for the particular kind of
   39-4  transaction involved, or the forms have been prepared by the
   39-5  property owner or prepared by an attorney and required by the
   39-6  property owner.
   39-7        (d)  The Texas Real Estate Broker-Lawyer Committee shall have
   39-8  12 members including six members appointed by the commission and
   39-9  six members of the State Bar of Texas appointed by the President of
  39-10  the State Bar of Texas.  The members of the committee shall hold
  39-11  office for staggered terms of six years with the terms of two
  39-12  commission appointees and two State Bar appointees expiring every
  39-13  two years.  Each member shall hold office until the member's <his>
  39-14  successor is appointed.  A vacancy for any cause shall be filled
  39-15  for the expired term by the agency making the original appointment.
  39-16  Appointments to the committee shall be made without regard to race,
  39-17  creed, sex, religion, or national origin.
  39-18        (e)  In the best interest of the public the commission may
  39-19  adopt rules and regulations requiring real estate brokers and
  39-20  salespersons <salesmen> to use contract forms which have been
  39-21  prepared by the Texas Real Estate Broker-Lawyer Committee and
  39-22  promulgated by the commission; provided, however, that the
  39-23  commission shall not prohibit a real estate broker or salesperson
  39-24  <salesman> from using a contract form or forms binding the sale,
  39-25  exchange, option, lease, or rental of any interest in real property
  39-26  which have been prepared by the property owner or prepared by an
  39-27  attorney and required by the property owner.  For the purpose of
   40-1  this section, contract forms prepared by the Texas Real Estate
   40-2  Broker-Lawyer Committee appointed by the commission and the State
   40-3  Bar of Texas and promulgated by the commission prior to the
   40-4  effective date of this Act shall be deemed to have been prepared by
   40-5  the Texas Real Estate Broker-Lawyer Committee.  The commission may
   40-6  suspend or revoke a license issued under the provisions of this
   40-7  article when it has determined that the licensee failed to use a
   40-8  contract form as required by the commission pursuant to this
   40-9  section.
  40-10        SECTION 22.  Subsection (a), Section 17, The Real Estate
  40-11  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
  40-12  amended to read as follows:
  40-13        (a)  If the commission proposes to suspend or revoke a
  40-14  person's license or registration, the person is entitled to a
  40-15  hearing before the commission or a hearings officer appointed by
  40-16  the commission.  The commission shall prescribe procedures by which
  40-17  all decisions to suspend or revoke are made by or are appealable to
  40-18  the commission.  The commission shall prescribe the time and place
  40-19  of the hearing.  However, the hearing shall be held, if the
  40-20  licensee so desires, within the county where the licensee has the
  40-21  licensee's <his> principal place of business, or if the licensee is
  40-22  a nonresident, the hearing may be called for and held in any county
  40-23  within this state.  The hearing is governed by the procedures for a
  40-24  contested case under Chapter 2001, Government Code <the
  40-25  Administrative Procedure and Texas Register Act (Article 6252-13a,
  40-26  Vernon's Texas Civil Statutes)>.
  40-27        SECTION 23.  Subsection (a), Section 18A, The Real Estate
   41-1  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
   41-2  amended to read as follows:
   41-3        (a)  Any listing contract form adopted by the commission
   41-4  relating to the contractual obligations between a seller of real
   41-5  estate and a real estate broker or salesperson <salesman> acting as
   41-6  an agent for the seller shall include a section that informs the
   41-7  parties to the contract that real estate commissions are
   41-8  negotiable.
   41-9        SECTION 24.  Subsection (a), Section 18B, The Real Estate
  41-10  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
  41-11  amended to read as follows:
  41-12        (a)  If a person files a complaint with the commission
  41-13  relating to a real estate broker or salesperson <salesman>, the
  41-14  commission shall furnish to the person an explanation of the
  41-15  remedies that are available to the person under this Act and
  41-16  information about appropriate state or local agencies or officials
  41-17  with which the person may file a complaint.  The commission shall
  41-18  furnish the same explanation and information to the person against
  41-19  whom the complaint is filed.
  41-20        SECTION 25.  Subsections (a) and (b), Section 19, The Real
  41-21  Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
  41-22  are amended to read as follows:
  41-23        (a)  A person acting as a real estate broker or real estate
  41-24  salesperson <salesman> without first obtaining a license is guilty
  41-25  of a misdemeanor and on conviction shall be punishable by a fine of
  41-26  not less than $100 nor more than $500, or by imprisonment in the
  41-27  county jail for a term not to exceed one year, or both; and if a
   42-1  corporation or a limited liability company, shall be punishable by
   42-2  a fine of not less than $1,000 nor more than $2,000.  A person, on
   42-3  conviction of a second or subsequent offense, shall be punishable
   42-4  by a fine of not less than $500 nor more than $1,000, or by
   42-5  imprisonment for a term not to exceed two years, or both; and if a
   42-6  corporation or a limited liability company, shall be punishable by
   42-7  a fine of not less than $2,000 nor more than $5,000.
   42-8        (b)  In case a person received money, or the equivalent
   42-9  thereof, as a fee, commission, compensation, or profit by or in
  42-10  consequence of a violation of Subsection (a) of this section, the
  42-11  person <he> shall, in addition, be liable to a penalty of not less
  42-12  than the amount of the sum of money so received and not more than
  42-13  three times the sum so received, as may be determined by the court,
  42-14  which penalty may be recovered in a court of competent jurisdiction
  42-15  by an aggrieved person.
  42-16        SECTION 26.  Subsection (o), Section 19A, The Real Estate
  42-17  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
  42-18  amended to read as follows:
  42-19        (o)  A penalty collected under this section for a violation
  42-20  by a person licensed as a real estate broker or salesperson
  42-21  <salesman> shall be deposited in the real estate recovery fund.  A
  42-22  penalty collected under this section for a violation by a person
  42-23  licensed or registered as a real estate inspector shall be
  42-24  deposited in the real estate inspection recovery fund.
  42-25        SECTION 27.  Section 20, The Real Estate License Act (Article
  42-26  6573a, Vernon's Texas Civil Statutes), is amended to read as
  42-27  follows:
   43-1        Sec. 20.  (a)  A person may not bring or maintain an action
   43-2  for the collection of compensation for the performance in this
   43-3  state of an act set forth in Section 2 of this Act without alleging
   43-4  and proving that the person performing the brokerage services was a
   43-5  duly licensed real estate broker or salesperson <salesman> at the
   43-6  time the alleged services were commenced, or was a duly licensed
   43-7  attorney at law in this state or in any other state.
   43-8        (b)  An action may not be brought in a court in this state
   43-9  for the recovery of a commission for the sale or purchase of real
  43-10  estate unless the promise or agreement on which the action is
  43-11  brought, or some memorandum thereof, is in writing and signed by
  43-12  the party to be charged or signed by a person lawfully authorized
  43-13  by the party <him> to sign it.
  43-14        (c)  When an offer to purchase real estate in this state is
  43-15  signed, the real estate broker or salesperson <salesman> shall
  43-16  advise the purchaser or purchasers, in writing, that the purchaser
  43-17  or purchasers should have the abstract covering the real estate
  43-18  which is the subject of the contract examined by an attorney of the
  43-19  purchaser's own selection, or that the purchaser or purchasers
  43-20  should be furnished with or obtain a policy of title insurance.
  43-21  Failure to advise the purchaser as provided in this subsection
  43-22  precludes the payment of or recovery of any commission agreed to be
  43-23  paid on the sale.
  43-24        SECTION 28.  Subdivisions (2), (5), and (9), Subsection (b),
  43-25  Section 23, The Real Estate License Act (Article 6573a, Vernon's
  43-26  Texas Civil Statutes), are amended to read as follows:
  43-27              (2)  The committee is composed of nine members
   44-1  appointed by the commission.  The members of the committee hold
   44-2  office for staggered terms of six years, with the terms of three
   44-3  members expiring February 1 of each odd-numbered year.  Each member
   44-4  holds office until the member's successor is appointed.
   44-5  Appointments to the committee shall be made without regard to the
   44-6  sex, race, color, age, handicap, religion, or national origin of
   44-7  the appointees.  In the event of a vacancy during a term, the
   44-8  commission shall appoint a replacement who meets the qualifications
   44-9  for appointment under this subdivision to fill the unexpired part
  44-10  of the term.  A member of the committee must be a professional
  44-11  inspector actively engaged in the practice of real estate
  44-12  inspecting at the time of appointment and must have been primarily
  44-13  engaged in the practice of real estate inspecting for at least five
  44-14  years before the member's appointment.  A member of the committee
  44-15  may not hold a real estate broker or salesperson <salesman>
  44-16  license.  Each member of the committee is entitled to a per diem
  44-17  allowance and to reimbursement of travel expenses necessarily
  44-18  incurred in performing functions as a member of the committee,
  44-19  subject to any applicable limitation in the General Appropriations
  44-20  Act.  The committee shall annually elect from its members a
  44-21  chairperson <chairman>, a vice chairperson <vice-chairman>, and
  44-22  secretary.  A quorum of the committee consists of five members.
  44-23              (5)  If the administrator of the commission has
  44-24  knowledge that a potential ground for removal exists, the
  44-25  administrator shall notify the chairperson <chairman> of the
  44-26  commission that a potential ground exists.
  44-27              (9)  The committee shall act in an advisory capacity to
   45-1  develop and recommend to the commission rules under this section.
   45-2  The committee shall review commission rules relating to this
   45-3  section and recommend changes in the rules to the commission.  The
   45-4  commission shall submit all proposed rules, all proposed rule
   45-5  changes and all requests for proposed rules or rule changes that
   45-6  relate to the regulation and licensing of inspectors under this
   45-7  section to the committee for development or recommendation.  The
   45-8  commission may modify the rules developed by the committee if the
   45-9  commission finds such modifications are in the public interest.
  45-10  This section does not prohibit the commission from developing and
  45-11  adopting rules relating to the regulation and licensing of
  45-12  inspectors under this section if the committee fails to develop or
  45-13  recommend rules under this section within a reasonable period of
  45-14  time after the commission submits the proposed rules, rule changes
  45-15  or requests for proposed rules or rule changes to the committee.
  45-16  If the committee determines that a rule requested by the commission
  45-17  should not be developed or recommended for adoption by the
  45-18  commission, the committee shall submit a report on the matter to
  45-19  the commission.  The chairperson <chairman> of the commission and
  45-20  the chairperson <chairman> of the committee shall then appoint
  45-21  three members each from their respective bodies to meet as an ad
  45-22  hoc committee to consider the report and recommend possible action
  45-23  by the commission.  The chairperson <chairman> of the commission or
  45-24  a member of the commission designated by the chairperson <chairman>
  45-25  shall serve as the seventh member of the ad hoc committee.  At
  45-26  least one member of the ad hoc committee must be a public member of
  45-27  the commission.
   46-1        SECTION 29.  Subsection (l), Section 23, The Real Estate
   46-2  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
   46-3  amended to read as follows:
   46-4        (l)  Prohibited acts.  A professional inspector, real estate
   46-5  inspector or an apprentice inspector licensed under this section
   46-6  may not:
   46-7              (1)  accept an assignment for real estate inspection if
   46-8  the employment or fee is contingent on the reporting of a specific,
   46-9  predetermined condition of the improvements to real property or is
  46-10  contingent on the reporting of specific findings other than those
  46-11  known by the inspector to be facts at the time of accepting the
  46-12  assignment;
  46-13              (2)  act in a manner or engage in a practice that is
  46-14  dishonest or fraudulent or that involves deceit or
  46-15  misrepresentation;
  46-16              (3)  perform a real estate inspection in a negligent or
  46-17  incompetent manner;
  46-18              (4)  act in the dual capacity of inspector and
  46-19  undisclosed principal in a transaction;
  46-20              (5)  act in the dual capacity of inspector and real
  46-21  estate broker or salesperson <salesman> in a transaction;
  46-22              (6)  perform or agree to perform any repairs or
  46-23  maintenance in connection with a real estate inspection pursuant to
  46-24  the provisions of any earnest money contract, lease agreement, or
  46-25  exchange of real estate; or
  46-26              (7)  violate the rules adopted by the commission or any
  46-27  provisions of this section.
   47-1        SECTION 30.  Subsection (o), Section 23, The Real Estate
   47-2  License Act (Article 6573a, Vernon's Texas Civil Statutes), is
   47-3  amended by amending Subdivisions (7) and (11) to read as follows:
   47-4              (7)  The court shall proceed on the application
   47-5  forthwith.  On the hearing on the application, the aggrieved person
   47-6  is required to show:
   47-7                    (A)  that the judgment is based on facts allowing
   47-8  recovery under Subdivision (1) of this subsection;
   47-9                    (B)  that the person is not a spouse of the
  47-10  debtor or the personal representative of the spouse and the person
  47-11  is not a licensed <an> inspector, as defined by this section;
  47-12                    (C)  that the person has obtained a judgment
  47-13  under Subdivision (6) of this subsection that is not subject to a
  47-14  stay or discharge in bankruptcy and has been judicially determined
  47-15  to be nondischargeable in a pending bankruptcy, stating the amount
  47-16  of the judgment and the amount owing on the judgment at the date of
  47-17  the application;
  47-18                    (D)  that based on the best information
  47-19  available, the judgment debtor lacks sufficient attachable assets
  47-20  in this state or any other state to satisfy the judgment; and
  47-21                    (E)  the amount that may be realized from the
  47-22  sale of real or personal property or other assets liable to be sold
  47-23  or applied in satisfaction of the judgment and the balance
  47-24  remaining due on the judgment after application of the amount that
  47-25  may be realized.
  47-26              (11)  The sums received by the commission for deposit
  47-27  in the real estate inspection recovery fund shall be held by the
   48-1  commission in trust for carrying out the purpose of the real estate
   48-2  inspection recovery fund.  Subject to legislative appropriation,
   48-3  money in the fund may be used by the commission to pay the expenses
   48-4  involved in collecting a judgment assigned to the commission.
   48-5  These funds may be invested and reinvested in the same manner as
   48-6  funds of the Employees Retirement System of Texas, and the interest
   48-7  from these investments shall be deposited to the credit of the real
   48-8  estate inspection recovery fund.  However, investments may not be
   48-9  made that will impair the necessary liquidity required to satisfy
  48-10  judgment payments awarded pursuant to this subsection.
  48-11        SECTION 31.  (a)  This Act takes effect September 1, 1995.
  48-12        (b)  The change made by this Act in the title of a person
  48-13  licensed to sell real estate does not affect the validity of a
  48-14  license issued or an act performed before the effective date of
  48-15  this Act.
  48-16        SECTION 32.  The importance of this legislation and the
  48-17  crowded condition of the calendars in both houses create an
  48-18  emergency and an imperative public necessity that the
  48-19  constitutional rule requiring bills to be read on three several
  48-20  days in each house be suspended, and this rule is hereby suspended.