Amend CSSB 1100 as follows:
1. Add the following appropriately numbered sections:
SECTION ____. Subdivision (5), Section 2, The Real Estate
License Act (Article 6573a, Vernon's Texas Civil Statutes), is
amended to read as follows:
(5) "Person" means and individual or any other entity,
including but not limited to<-> a governmental body, limited
liability company, limited liability partnership, partnership, or
<a> corporation, foreign or domestic.
SECTION ____. Section 3, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended to read
as follows:
Sec. 3. The provisions of this Act shall not apply to any of
the following persons and transactions, and each and all of the
following persons and transactions are hereby exempted from the
provisions of this Act:
(1) an attorney at law licensed in this state or in
any other state;
(2) an attorney in fact under a duly executed power of
attorney authorizing the consummation of a real estate transaction;
(3) a public official in the conduct of his official
duties;
(4) a person calling the sale of real estate by
auction under the authority of a license issued by this state
provided the person does not perform any other act of a real estate
broker or salesman as defined by this Act;
(5) a person acting under a court order or under the
authority of a will or a written trust instrument;
(6) a salesperson employed by an owner in the sale of
structures and land on which said structures are situated, provided
such structures are erected by the owner in the due course of his
business;
(7) an on-site manager of an apartment complex;
(8) transactions involving the sale, lease, or
transfer of any mineral or mining interest in real property;
(9) an owner or his employees in renting or leasing
his own real estate whether improved or unimproved;
(10) transactions involving the sale, lease, or
transfer of cemetery lots; <or>
(11) transactions involving the renting, leasing, or
management of hotels or motels; or
(12) a partnership or limited liability partnership
performing an act constituting an act of a broker or salesman, as
defined by this Act, through a partner who is duly licensed as a
real estate broker; or
(13) a person registered under Section 9A of this Act
who sells, buys, leases, or transfers an easement or right-of-way
for use in connection with telecommunication, utility, railroad, or
pipeline service.
SECTION ____. Section 4, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended to read
as follows:
Sec. 4. A person who, directly or indirectly for another,
with the intention or on the promise of receiving any valuable
consideration, offers, attempts, or agrees to perform, or performs,
a single act defined in Subdivisions 2 and 3, Section 2 of this
Act, whether as a part of a transaction, or as an entire
transaction, is deemed to be acting as a real estate broker or
salesman within the meaning of this Act. The commission of a
single such act by a person required to be licensed or registered
under this Act and not so licensed or registered shall constitute a
violation of this Act.
SECTION ____. Subsection (m), Section 5, The Real Estate
License Act (Article 6573a, Vernon's Texas Civil Statutes), is
amended to read as follows:
(m) The commission shall charge and collect as a condition
for issuance and for renewal of a real estate broker license the
fee under Section 11(a)(14) of this Act. The commission shall
charge and collect as a condition for issuance and for renewal of a
registration under Section 9A of this Act the fee under Section
11(a)(14) of this Act. The commission shall charge and collect as
a condition for issuance and for renewal of a real estate salesman
license the fee under Section 11(a)(15) of this Act. The
commission shall transmit the fees under this subsection quarterly
to Texas A&M University for deposit in a separate banking account.
The money in the separate account shall be expended for the support
and maintenance of the Texas Real Estate Research Center and for
carrying out the purposes, objectives, and duties of the center.
However, all money expended from the separate account shall be as
determined by legislative appropriation.
SECTION ____. Section 6, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended by
adding Subsection (d) to read as follows:
(d) For an individual to be eligible for a registration or a
renewal of a registration under Section 9A of this Act, the
individual must be a citizen of the United States or a lawfully
admitted alien and be at least 18 years of age. For a corporation,
limited liability company, partnership, limited liability
partnership, or any other entity to be eligible for a registration
or renewal of a registration under Section 9A of this Act, it must
designate one of its officers, partners, or managers to act for it.
The designated person must be an individual registered under
Section 9A of this Act.
SECTION ____. Section 8, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended to read
as follows:
Sec. 8. (a) The commission shall establish a real estate
recovery fund which shall be set apart and maintained by the
commission as provided in this section. The fund shall be used in
the manner provided in this section for reimbursing aggrieved
persons who suffer actual damages by reason of certain acts
committed by a duly licensed real estate broker or salesman, a duly
registered person under Section 9A of this Act, or by an unlicensed
employee or agent of a broker or salesman, provided the registrant,
broker, or salesman was registered or licensed by the State of
Texas at the time the act was committed and provided recovery is
ordered by a court of competent jurisdiction against the
registrant, broker, or salesman. The use of the fund is limited to
an act that constitutes a violation of Section 15(a)(3) or (6) of
this Act if the judgment debtor was at the time of the violation a
licensed real estate broker or salesman. The use of the fund is
limited to an act that constitutes a violation of Section 9A(c)(1)
of this Act if the judgment debtor was at the time of the violation
registered under Section 9A of this Act.
(b) On application for an original license pursuant to this
Act, the applicant shall pay, in addition to his original license
application fee, a fee of $10 which shall be deposited in the real
estate recovery fund. On application for an original registration
under Section 9A of this Act and for each renewal of such
registration, the registrant shall pay, in addition to the
registrant's original application fee or renewal fee, a fee of $50,
which shall be deposited in the real estate recovery fund.
(c) If on December 31 of any year the balance remaining in
the real estate recovery fund is less than $1 million, each real
estate broker and each real estate salesman, on the next renewal of
his license, shall pay, in addition to his license renewal fee, a
fee of $10, which shall be deposited in the real estate recovery
fund, or a pro rata share of the amount necessary to bring the fund
to $1.7 million, whichever is less. If on December 31 of any year
the balance remaining in the real estate recovery fund is more than
$3.5 million or more than the total amount of claims paid from the
fund during the previous four fiscal years, whichever is greater,
the amount of money in excess of the greater amount shall be
transferred to the general revenue fund.
(d) No action for a judgment which subsequently results in
an order for collection from the real estate recovery fund shall be
started later than two years from the accrual of the cause of
action. When an aggrieved person commences action for a judgment
which may result in collection from the real estate recovery fund,
the registrant, real estate broker, or real estate salesman shall
notify the commission in writing to this effect at the time of the
commencement of the action.
(e) When an aggrieved person recovers a valid judgment in a
court of competent jurisdiction against a registrant, real estate
broker, or real estate salesman, on the grounds described in
Subsection (a) of this section that occurred on or after May 19,
1975, the aggrieved person may, after final judgment has been
entered, execution returned nulla bona, and a judgment lien
perfected, file a verified claim in the court in which the judgment
was entered and, on 20 days' written notice to the commission, and
to the judgment debtor, may apply to the court for an order
directing payment out of the real estate recovery fund of the
amount unpaid on the judgment, subject to the limitations stated in
Subsection (n) of this section.
(f) The court shall proceed on the application forthwith.
On the hearing on the application, the aggrieved person is required
to show that:
(1) the judgment is based on facts allowing recovery
under Subsection (a) of this section;
(2) he is not a spouse of the debtor, or the personal
representative of the spouse; and he is not a registrant under
Section 9A of this Act or a real estate broker or salesman, as
defined by this Act, who is seeking to recover a real estate
commission or any compensation in the transaction or transactions
for which the application for payment is made;
(3) he has obtained a judgment under Subsection (e) of
this section that is not subject to a stay or discharge in
bankruptcy, stating the amount of the judgment and the amount owing
on the judgment at the date of the application;
(4) based on the best available information, the
judgment debtor lacks sufficient attachable assets in this state or
any other state to satisfy the judgment; and
(5) the amount that may be realized from the sale of
real or personal property or other assets liable to be sold or
applied in satisfaction of the judgment and the balance remaining
due on the judgment after application of the amount that may be
realized.
(g) A recovery on the judgment against a single defendant
made before payment from the recovery fund must be applied by the
creditor first to actual damages.
(h) The court shall make an order directed to the commission
requiring payment from the real estate recovery fund of whatever
sum it finds to be payable on the claim, pursuant to and in
accordance with the limitations contained in this section, if the
court is satisfied, on the hearing, of the truth of all matters
required to be shown by the aggrieved person by Subsection (f) of
this section and that the aggrieved person has satisfied all of the
requirements of Subsections (e) and (f) of this section. The
commission may relitigate any issue material and relevant in the
hearing on the application that was determined in the underlying
action on which the judgment in favor of the applicant was based.
If the court finds that the aggregate amount of claims against a
registrant, real estate broker, or salesman exceeds the limitations
contained in this section, the court shall reduce proportionately
the amount it finds payable on the claim.
(i) A license or registration granted under the provisions
of this Act may be revoked by the commission on proof that the
commission has made a payment from the real estate recovery fund of
any amount toward satisfaction of a judgment against a registrant
under Section 9A of this Act or a licensed real estate broker or
salesman. The commission may probate an order revoking a license.
No registrant, broker, or salesman is eligible to receive a new
registration or license until he has repaid in full, plus interest
at the current legal rate, the amount paid from the real estate
recovery fund on his account.
(j) The sums received by the real estate commission for
deposit in the real estate recovery fund shall be held by the
commission in trust for carrying out the purposes of the real
estate recovery fund. These funds may be invested and reinvested
in the same manner as funds of the Texas State Employees Retirement
System, and the interest from these investments shall be deposited
to the credit of the real estate recovery fund, provided, however,
that no investments shall be made which will impair the necessary
liquidity required to satisfy judgment payments awarded pursuant to
this section.
(k) When the real estate commission receives notice of entry
of a final judgment and a hearing is scheduled under Subsection (h)
of this section, the commission may notify the Attorney General of
Texas of its desire to enter an appearance, file a response, appear
at the court hearing, defend the action, or take whatever other
action it deems appropriate. In taking such action the real estate
commission and the attorney general shall act only to protect the
fund from spurious or unjust claims or to insure compliance with
the requirements for recovery under this section.
(l) When, on the order of the court, the commission has paid
from the real estate recovery fund any sum to the judgment
creditor, the commission shall be subrogated to all of the rights
of the judgment creditor to the extent of the amount paid. The
judgment creditor shall assign all his right, title, and interest
in the judgment up to the amount paid by the commission which
amount shall have priority for repayment in the event of any
subsequent recovery on the judgment. Any amount and interest
recovered by the commission on the judgment shall be deposited to
the fund.
(m) The failure of an aggrieved person to comply with the
provisions of this section relating to the real estate recovery
fund shall constitute a waiver of any rights under this section.
(n) Notwithstanding any other provision, payments from the
real estate recovery fund are subject to the following conditions
and limitations:
(1) payments may be made only pursuant to an order of
a court of competent jurisdiction, as provided in Subsection (e) of
this section, and in the manner prescribed by this section;
(2) payments for claims, including attorneys' fees,
interest, and court costs, arising out of the same transaction
shall be limited in the aggregate to $50,000 regardless of the
number of claimants; and
(3) payments for claims based on judgments against any
one licensed real estate broker, licensed real estate <or>
salesman, or registrant under Section 9A of this Act may not exceed
in the aggregate $100,000 until the fund has been reimbursed by the
licensee or registrant for all amounts paid.
(o) Nothing contained in this section shall limit the
authority of the commission to take disciplinary action against a
registrant or licensee for a violation of this Act or the rules and
regulations of the commission; nor shall the repayment in full of
all obligations to the real estate recovery fund by a registrant or
licensee nullify or modify the effect of any other disciplinary
proceeding brought pursuant to this Act.
(p) Any person receiving payment out of the real estate
recovery fund pursuant to Section 8 of this Act shall be entitled
to receive reasonable attorney fees as determined by the court,
subject to the limitations stated in Subsection (n) of this
section.
(q) A registrant, broker, or salesman registered or licensed
under this Act shall notify consumers and service recipients of the
availability of the real estate recovery fund established under
this section for reimbursing certain aggrieved persons. The notice
must include the name, mailing address, and telephone number of the
commission and any other information required by commission rule.
The notification may be provided with the notice required by
Section 5(q) of this Act or:
(1) on a written contract for the services of a
registrant, broker, or salesman;
(2) on a brochure distributed by a registrant, broker,
or salesman;
(3) on a sign prominently displayed in the place of
business of a registrant, salesman, or broker; or
(4) in a bill or receipt for service provided by a
registrant, broker, or salesman.
SECTION ____. Section 9, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended to read
as follows:
Sec. 9. (a) When an applicant has satisfactorily met all
requirements and conditions of this Act, a license or certificate
of registration shall be issued which may remain in force and
effect so long as the holder of the certificate of registration or
license remains in compliance with the obligations of this Act,
which include payment of the renewal fee as provided in Section 11
of this Act. Each active salesman license issued shall be
delivered or mailed to the broker with whom the salesman is
associated and shall be kept under his custody and control.
(b) An applicant is not permitted to engage in the real
estate business either as a broker or salesman until a license
evidencing his authority to engage in the real estate business has
been received. A person may not engage in the business of selling,
buying, leasing, or transferring an easement or right-of-way for
another for compensation until the person is licensed or registered
under this Act.
(c) The commission by rule may adopt a system under which
licenses and registrations expire on various dates during the year.
Dates for payment of the renewal fee shall be adjusted accordingly.
For the year in which the renewal date is changed, renewal fees
payable shall be prorated on a monthly basis so each licensee or
registrant shall pay only that portion of the fee which is
allocable to the number of months during which the license or
registration is valid. On renewal of the license or registration
on the new renewal date, the total renewal fee is payable.
(d) Any other provision of this Act notwithstanding, the
commission may issue licenses and registrations valid for a period
not to exceed 24 months and may charge and collect renewal fees for
such period; provided, however, that such renewal fees shall not,
calculated on an annual basis, exceed the amounts established in
Section 11 of this Act, and further provided that the educational
conditions for renewal established in Subsection (e) of Section 7
of this Act shall not be waived by the commission.
(e) The commission shall require, in any application for a
broker or salesman license or a renewal of a broker or salesman
license, the applicant to disclose whether the applicant has
entered a plea of guilty or nolo contendere to, been found guilty
of, or been convicted of a felony and the time for appeal has
elapsed or the judgment or conviction has been affirmed on appeal,
irrespective of an order granting probation following the
conviction or suspending the imposition of sentence.
SECTION ____. The Real Estate License Act (Article 6573a,
Vernon's Texas Civil Statutes) is amended by adding Section 9A to
read as follows:
Sec. 9A. (a) A person may not sell, buy, lease, or transfer
an easement or right-of-way for another for compensation, or with
the intention or in the expectation or on the promise of receiving
a collecting compensation, for use in connection with
telecommunication, utility, railroad, or pipeline service unless
the person is:
(1) licensed as a real estate broker or real estate
salesman under this Act;
(2) exempt from this Act for the purpose of selling,
buying, leasing, or transferring an easement or right-of-way; or
(3) registered with the commission under this section.
(b) The commission shall maintain a registry of persons who
are registered under this section.
(c) The commission shall investigate a signed complaint
received by the commission that relates to the acts of a person
registered or required to be registered under this section. The
commission may revoke or suspend the registration of a registrant
under this section who:
(1) engaged in dishonest dealings, fraud, deceptive
acts, misrepresentations, bad faith, unlawful discrimination, or
untrustworthiness;
(2) failed within a reasonable time to make good a
check to the commission after the commission has mailed a request
for payment to the registrant's last known address as reflected in
the commission records;
(3) failed to provide to a party in a transaction a
written notice promulgated by the commission that is to be given
before the party is obligated to sell, buy, lease, or transfer a
right-of-way or easement and that contains the name of the
registrant, the certificate number of the registrant, the name of
the person the registrant represents, a statement advising the
party that the party may seek representation from a lawyer or real
estate broker in the transaction, and a statement generally
advising the party that the right-of-way or easement may affect the
value of the property; or
(4) disregarded or violated a provision of this Act or
a rule of the commission relating to registrants under this
section.
(d) The commission may adopt rules to administer and enforce
this section.
SECTION ____. Subsection (a), Section 10, The Real Estate
License Act (Article 6573a, Vernon's Texas Civil Statutes), is
amended to read as follows:
(a) If the commission declines or fails to register or
license an applicant, it shall immediately give written notice of
the refusal to the applicant. Before the applicant may appeal to a
district court as provided in Section 18 of this Act, he must file
within 10 days after the receipt of the notice an appeal from the
ruling, requesting a time and place for a hearing before the
commission. The commission shall set a time and place for the
hearing within 30 days from the receipt of the appeal, giving 10
days' notice of the hearing to the applicant. The time of the
hearing may be continued from time to time with the consent of the
applicant. Following the hearing, the commission shall enter an
order which is, in its opinion, appropriate in the matter
concerned.
SECTION ____. Section 11, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended to read
as follows:
Sec. 11. (a) The commission shall charge and collect the
following fees:
(1) a fee not to exceed $100 for the filing of an
original application for a real estate broker license;
(2) a fee not to exceed $100 for annual renewal of a
real estate broker license;
(3) a fee not to exceed $50 for the filing of an
original application for a real estate salesman license;
(4) a fee not to exceed $50 for annual renewal of a
real estate salesman license;
(5) a fee not to exceed $25 for an application for a
license examination;
(6) a fee not to exceed $20 for filing a request for a
license for each additional office or place of business;
(7) a fee not to exceed $20 for filing a request for a
license or certificate of registration for a change of place of
business, change of name, return to active status, or change of
sponsoring broker;
(8) a fee not to exceed $20 for filing a request to
replace a license or certificate of registration lost or destroyed;
(9) a fee not to exceed $400 for filing an application
for approval of an education program under Section 7(f) of this
Act;
(10) a fee not to exceed $200 a year for operation of
an education program under Section 7(f) of this Act;
(11) a fee of $15 for transcript evaluation;
(12) a fee not to exceed $10 for preparing a license
or registration history;
(13) a fee not to exceed $50 for the filing of an
application for a moral character determination;
(14) an annual fee of $20 from each real estate broker
and each registrant under Section 9A of this Act to be transmitted
to Texas A&M University for the Texas Real Estate Research Center
as provided by Section 5(m) of this Act; <and>
(15) an annual fee of $17.50 from each real estate
salesman to be transmitted to Texas A&M University for the Texas
Real Estate Research Center as provided by Section 5(m) of this
Act;
(16) an annual fee of $80 from each registrant under
Section 9A of this Act; and
(17) any fee authorized under Section 8 of this Act
for the real estate recovery fund.
SECTION ____. Section 12, The Real Estate License Act
(Article 6573a, Vernon's Texas Civil Statutes), is amended by
adding Subsection (e) to read as follows:
(e) The certificate of registration of a registrant under
Section 9A of this Act shall at all times be prominently displayed
in the registrant's place of business. Within 10 days after a move
from a previously designated address, the registrant shall notify
the commission of the move and obtain a new certificate of
registration reflecting the new location.
SECTION ____. Subsections (a) and (b), Section 16, The Real
Estate License Act (Article 6573a, Vernon's Texas Civil Statutes),
are amended to read as follows:
(a) A license or registration granted under the provisions
of this Act shall be suspended or revoked by the commission on
proof that the licensee or registrant, not being licensed and
authorized to practice law in this state, for a consideration,
reward, pecuniary benefit, present or anticipated, direct or
indirect, or in connection with or as a part of his employment,
agency, or fiduciary relationship as a licensee, drew a deed, note,
deed of trust, will, or other written instrument that may transfer
or anywise affect the title to or an interest in land, except as
provided in the subsections below, or advised or counseled a person
as to the validity or legal sufficiency of an instrument or as to
the validity of title to real estate.
(b) Notwithstanding the provisions of this Act or any other
law, the completion of contract forms which bind the sale,
exchange, option, lease, or rental of any interest in real property
by a registrant under Section 9A of this Act, a real estate broker,
or a real estate salesman incident to the performance of the acts
of a broker as defined by this Act <article> does not constitute
the unauthorized or illegal practice of law in this state, provided
the forms have been promulgated for use by the commission for the
particular kind of transaction involved, or the forms have been
prepared by an attorney at law licensed by this state and approved
by said attorney for the particular kind of transaction involved,
or the forms have been prepared by the property owner or prepared
by an attorney and required by the property owner.
SECTION ____. Subsection (a), Section 19, The Real Estate
License Act (Article 6573a, Vernon's Texas Civil Statutes), is
amended to read as follows:
(a) A person acting as a real estate broker or real estate
salesman without first obtaining a license or a person required to
register under Section 9A of this Act who sells, purchases, leases,
or transfers a right-of-way or easement without first obtaining a
certificate of registration under Section 9A of this Act is guilty
of a misdemeanor and on conviction shall be punishable by a fine of
not less than $100 nor more than $500, or by imprisonment in the
county jail for a term not to exceed one year, or both; and if a
person other than an individual <corporation or a limited liability
company>, shall be punishable by a fine of not less than $1,000 nor
more than $2,000. A person, on conviction of a second or
subsequent offense, shall be punishable by a fine of not less than
$500 nor more than $1,000, or by imprisonment for a term not to
exceed two years, or both; and if a person other than an individual
<corporation or a limited liability company>, shall be punishable
by a fine of not less than $2,000 nor more than $5,000.
SECTION ____. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 1997.
(b) Sections 3, 7, 8, and 13 of this Act take effect January
1, 1998.
SECTION ____. Transactions included within the provisions of
Section 9A, The Real Estate License Act (Article 6573a, Vernon's
Texas Civil Statutes), as added by this Act, shall be governed by
this Act from and after its effective date. Transactions executed
prior to that date are validated in all respects with regard to
compliance with the licensing provisions of Section 1, The Real
Estate License Act (Article 6573a, Vernon's Texas Civil Statutes).
2. Renumber appropriate sections accordingly.