75R8048 BEM-F
By Naishtat H.B. No. 878
Substitute the following for H.B. No. 878:
By Dukes C.S.H.B. No. 878
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to warranties for certain devices or equipment used in
1-3 assisting a person with disabilities to perform daily functions or
1-4 activities.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 20, Title 132, Revised Statutes, is
1-7 amended by adding Article 9001 to read as follows:
1-8 Art. 9001. ASSISTIVE TECHNOLOGY WARRANTIES
1-9 Sec. 1. SHORT TITLE. This article may be cited as the
1-10 Assistive Technology Warranty Act.
1-11 Sec. 2. DEFINITIONS. In this article:
1-12 (1) "Assistive technology device" means a device or
1-13 equipment that:
1-14 (A) has a retail cost of $1,000 or more; and
1-15 (B) assists a person with a disability in
1-16 performing functions or activities that the person is incapable of
1-17 or has difficulty in performing, because of the person's
1-18 disability, such as moving, walking, standing, speaking, breathing,
1-19 hearing, seeing, learning, working, driving or riding in a motor
1-20 vehicle, sleeping, reaching, grasping, or caring for himself or
1-21 herself.
1-22 (2) "Collateral cost" means an expense incurred by a
1-23 lessee or consumer in connection with the repair of a nonconformity
1-24 in an assistive technology device, including the cost of obtaining
2-1 an alternative assistive technology device or other device used for
2-2 mobility assistance and the cost of employing a person to assist
2-3 the lessee or consumer in performing the functions or activities
2-4 that the assistive technology device was designed to assist the
2-5 lessee or consumer in performing.
2-6 (3) "Consumer" means:
2-7 (A) a person who purchases an assistive
2-8 technology device from a dealer or manufacturer for a purpose other
2-9 than resale;
2-10 (B) a person to whom an assistive technology
2-11 device is transferred for a purpose other than resale, if the
2-12 transfer occurs before the expiration of an express warranty
2-13 applicable to the device; or
2-14 (C) a person, other than a lessee, who may
2-15 enforce an express warranty applicable to an assistive technology
2-16 device.
2-17 (4) "Dealer" means a person engaged in the business of
2-18 selling an assistive technology device or a person who routinely
2-19 sells assistive technology devices.
2-20 (5) "Lessee" means a person who leases an assistive
2-21 technology device from a lessor under a written lease.
2-22 (6) "Lessor" means a person who:
2-23 (A) leases an assistive technology device to a
2-24 person; or
2-25 (B) holds the lessor's rights under a written
2-26 lease of an assistive technology device.
2-27 (7) "Manufacturer" means a person, or an agent of a
3-1 person, who manufactures or assembles an assistive technology
3-2 device or a warrantor of the device. The term includes an importer
3-3 and a distributor, factory branch, or distributor branch. The term
3-4 does not include a dealer of an assistive technology device.
3-5 (8) "Nonconformity" with respect to an assistive
3-6 technology device means a defect that impairs the use, value, or
3-7 safety of the device. The term does not include a condition or
3-8 defect that is the result of abuse, neglect, or unauthorized
3-9 modification or alteration of the device by a consumer or lessee.
3-10 (9) "Person" means an individual, this state, a state
3-11 agency, or a corporation, partnership, sole proprietorship, or
3-12 other business entity.
3-13 Sec. 3. WARRANTY FOR ASSISTIVE TECHNOLOGY DEVICE. (a) A
3-14 manufacturer that sells a new assistive technology device to a
3-15 consumer, either directly or through a dealer, shall furnish the
3-16 consumer with an express written warranty for the device.
3-17 (b) The warranty must:
3-18 (1) state at a minimum that there are no defects in
3-19 manufacture, design, parts, or performance; and
3-20 (2) be for a period of at least one year after the
3-21 date the device is first delivered to the consumer.
3-22 (c) An assistive technology device is covered as if an
3-23 express warranty had been provided under this section, regardless
3-24 of whether the manufacturer furnishes an express written warranty
3-25 to the consumer.
3-26 Sec. 4. 30-DAY RETURN PRIVILEGE. (a) Except as provided by
3-27 Subsection (c) of this section or Section 5 of this article, a
4-1 manufacturer, dealer, or lessor of an assistive technology device
4-2 who sells or leases an assistive technology device to a consumer or
4-3 lessee shall accept a return of an assistive technology device that
4-4 does not meet the needs of the person with the disability if the
4-5 return is made not later than the 30th day after the purchase date.
4-6 (b) The manufacturer, dealer, or lessor shall provide to the
4-7 consumer a refund in accordance with Section 9 of this article.
4-8 (c) This section does not apply to any component of an
4-9 assistive technology device that has been custom fitted, built to
4-10 nonstandard specifications, or molded to meet an individual
4-11 consumer's specific needs.
4-12 Sec. 5. REPAIR OR RETURN DUE TO CONSUMER'S PHYSICAL CHANGE.
4-13 A manufacturer or dealer is not required to repair or accept the
4-14 return of an assistive technology device or to provide a refund if
4-15 the primary reason for the repair or return is that a physical
4-16 change in the consumer has affected the ability of the consumer to
4-17 use the device.
4-18 Sec. 6. REPAIR OF NONCONFORMING ASSISTIVE TECHNOLOGY DEVICE.
4-19 (a) A nonconformity covered by an express warranty applicable to a
4-20 new assistive technology device or to a component of the device
4-21 shall be repaired, at the manufacturer's expense, if the consumer
4-22 or lessee:
4-23 (1) reports the nonconformity to the manufacturer or
4-24 lessor of the device or any of the manufacturer's authorized
4-25 dealers; and
4-26 (2) makes the device available for repair before the
4-27 first anniversary of the date on which the device is first
5-1 delivered to the consumer or lessee.
5-2 (b) A repair required to be made under this section must be
5-3 made regardless of whether the repair is made after expiration of
5-4 the warranty period.
5-5 Sec. 7. CONSUMER'S OR LESSEE'S LIABILITY FOR REPAIR. (a)
5-6 If in any subsequent proceeding it is determined by a trier of fact
5-7 that a defect of an assistive technology device is not covered by a
5-8 warranty under this article and the manufacturer was not otherwise
5-9 obligated to repair the device, and if the manufacturer has
5-10 repaired the device, the consumer or lessee, as applicable, is
5-11 liable to the manufacturer for the costs of repair.
5-12 (b) The manufacturer must disclose to the consumer or
5-13 lessee, as applicable, that the defect is not covered by a warranty
5-14 under this article before making the repair. The disclosure must
5-15 be conspicuously placed on a document that is signed by the
5-16 consumer or lessee.
5-17 Sec. 8. REASONABLE ATTEMPT TO REPAIR NONCONFORMITY. For
5-18 purposes of Sections 9 and 10 of this article, a reasonable attempt
5-19 to repair a nonconformity in an assistive technology device or
5-20 component of the device is considered to have occurred if at any
5-21 time during the period ending on the later of the end of the term
5-22 of an express warranty applicable to the nonconformity in the
5-23 device or a component of the device, or the end of the one-year
5-24 warranty created by this Act:
5-25 (1) the nonconformity is subject to repair four times
5-26 or more by the manufacturer or lessor of the device, or any of the
5-27 manufacturer's dealers; or
6-1 (2) the device is out of service for a cumulative
6-2 total of 30 or more days because of the nonconformity.
6-3 Sec. 9. REFUND OR REPLACEMENT OF ASSISTIVE TECHNOLOGY DEVICE
6-4 THAT IS NOT LEASED. (a) Except as provided by Section 11 of this
6-5 article, if a nonconformity in an assistive technology device or
6-6 component of the device continues after a reasonable attempt to
6-7 repair the nonconformity, the manufacturer of the device, at the
6-8 direction of a consumer, shall accept the return of the device, and
6-9 shall:
6-10 (1) replace the device with a comparable new assistive
6-11 technology device and refund any collateral costs; or
6-12 (2) refund to the consumer and to any holder of a
6-13 perfected security interest in the device, as the holder's interest
6-14 may appear, an amount equal to the difference between the cost of
6-15 the device as computed under Subsection (b) of this section and a
6-16 reasonable allowance for use of the device.
6-17 (b) The cost of the device is computed by adding:
6-18 (1) the purchase price of the device;
6-19 (2) the amount of any finance charge charged to the
6-20 consumer; and
6-21 (3) collateral costs.
6-22 (c) A reasonable allowance for use of an assistive
6-23 technology device may not exceed the amount computed by multiplying
6-24 the purchase price of the device by a fraction, the denominator of
6-25 which is 1,825 and the numerator of which is the number of days
6-26 that the device was used before the consumer first reported the
6-27 nonconformity to the dealer or manufacturer.
7-1 Sec. 10. REFUND FOR ASSISTIVE TECHNOLOGY DEVICE THAT IS
7-2 LEASED. (a) Except as provided by Section 11 of this article, if
7-3 a nonconformity in an assistive technology device or component of
7-4 the device continues after a reasonable attempt to repair the
7-5 nonconformity, the manufacturer of the device, at the direction of
7-6 a lessee, shall:
7-7 (1) accept the return of the device;
7-8 (2) refund to the lessee the sum of the amount the
7-9 lessee paid under the written lease and any collateral costs less a
7-10 reasonable allowance for use of the device; and
7-11 (3) refund to the lessor and any holder of a perfected
7-12 security interest in the device, as the holder's interest may
7-13 appear, the current value of the written lease as computed under
7-14 Subsection (b) of this section if the lease is terminated before
7-15 the termination date set forth in the lease because of the
7-16 nonconformity.
7-17 (b) The current value of a written lease is computed by
7-18 subtracting the lessor's early termination savings, if any, from
7-19 the total of:
7-20 (1) the total amount for which the lease obligates the
7-21 lessee for the period of the lease remaining after the date on
7-22 which the lease is terminated;
7-23 (2) the early termination cost; and
7-24 (3) the value of the assistive technology device at
7-25 the lease expiration date, if the lease sets forth that value.
7-26 (c) A reasonable allowance for use of an assistive
7-27 technology device may not exceed the amount computed by multiplying
8-1 the total amount for which the written lease obligates the lessee
8-2 by a fraction, the denominator of which is 1,825 and the numerator
8-3 of which is the number of days that the device was used by the
8-4 lessee before first reporting the nonconformity to the
8-5 manufacturer, dealer, or lessor.
8-6 (d) In this section:
8-7 (1) "Early termination cost" means an expense or other
8-8 obligation, including a penalty for prepayment under a finance
8-9 arrangement, that a lessor of an assistive technology device incurs
8-10 as a result of:
8-11 (A) the termination of a written lease before
8-12 the termination date set forth in the lease; and
8-13 (B) the return of an assistive technology device
8-14 to a manufacturer under Subsection (a) of this section.
8-15 (2) "Early termination savings" means an expense or
8-16 other obligation that a lessor of an assistive technology device
8-17 avoids payment of or responsibility for as a result of the
8-18 termination of a written lease before the termination date set
8-19 forth in that lease and the return of an assistive technology
8-20 device to a manufacturer under Subsection (a) of this section. The
8-21 term includes the amount of any interest the lessor would have paid
8-22 to finance the device, or, if the lessor does not finance the
8-23 device, the difference between the amount for which the lease
8-24 obligates the lessee during the period of the lease term remaining
8-25 after a written lease is terminated and before the termination date
8-26 set forth in the lease and the present value of that amount as of
8-27 the date on which the lease is terminated.
9-1 Sec. 11. RETURN OF A PHYSICALLY ALTERED ASSISTIVE TECHNOLOGY
9-2 DEVICE. The manufacturer of an assistive technology device is not
9-3 required to accept return of the device if the device, while in the
9-4 possession of the consumer, has been intentionally altered by the
9-5 user in a manner that affects the ability of the device to be used.
9-6 Sec. 12. PROCEDURES FOR RECEIPT OF REPLACEMENT DEVICE OR
9-7 REFUND. (a) To receive a comparable new assistive technology
9-8 device under Section 9 of this article or a refund under Section 9
9-9 or 10 of this article, a consumer, lessee, or lessor, as
9-10 applicable, must send notice to the manufacturer of the
9-11 nonconforming assistive technology device of the person's intent to
9-12 transfer possession of the device to the manufacturer.
9-13 (b) Not later than the 30th day after the date on which the
9-14 manufacturer receives the notice, the manufacturer shall provide
9-15 the consumer with a new device or a refund, as applicable, or shall
9-16 provide a refund to the lessor or lessee, as appropriate.
9-17 (c) On receipt of a new device or refund, the consumer,
9-18 lessee, or lessor shall return to the manufacturer the
9-19 nonconforming device and any endorsement necessary to transfer
9-20 legal possession to the manufacturer, if applicable.
9-21 Sec. 13. ENFORCEMENT OF LEASE FOLLOWING REFUND. A person
9-22 may not enforce the lease against a lessee who receives a refund
9-23 under Section 10 of this article.
9-24 Sec. 14. DISCLOSURE REQUIREMENT FOR SALE OR LEASE OF CERTAIN
9-25 ASSISTIVE TECHNOLOGY DEVICES. An assistive technology device
9-26 manufactured to a nonstandard specification or returned by a
9-27 consumer, lessee, or lessor in this state under Section 9 or 10 of
10-1 this article or by a consumer, lessee, or lessor in another state
10-2 under a similar law of that state may not be sold or leased in this
10-3 state unless full written disclosure of the nonstandard
10-4 manufacturing specifications or reasons for the return is made to a
10-5 prospective buyer or lessee.
10-6 Sec. 15. RIGHTS AND REMEDIES UNDER OTHER LAWS OR CONTRACTS.
10-7 This article may not be construed to limit a right or remedy
10-8 available to a consumer, lessee, or lessor under any other law or
10-9 contract.
10-10 Sec. 16. WAIVER VOID. An attempted waiver by a consumer or
10-11 lessee of rights under this article is void.
10-12 Sec. 17. CAUSE OF ACTION; DAMAGES. (a) A consumer or
10-13 lessee may bring an action to recover damages caused by a violation
10-14 of this article.
10-15 (b) A consumer or lessee who prevails in an action under
10-16 this section is entitled to recover:
10-17 (1) an amount not to exceed two times the amount of
10-18 actual damages; and
10-19 (2) court costs, reasonable attorney's fees, expert
10-20 witness costs, and any other relief the court determines is
10-21 appropriate.
10-22 (c) An action under this section is in addition to any other
10-23 remedy a consumer or lessee may have under law.
10-24 SECTION 2. This Act takes effect September 1, 1997.
10-25 SECTION 3. The importance of this legislation and the
10-26 crowded condition of the calendars in both houses create an
10-27 emergency and an imperative public necessity that the
11-1 constitutional rule requiring bills to be read on three several
11-2 days in each house be suspended, and this rule is hereby suspended.