By Naishtat H.B. No. 878
75R1498 BEM-D
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, sleeping, reaching, grasping,
1-20 or caring for himself or herself.
1-21 (2) "Collateral cost" means an expense incurred by a
1-22 lessee or consumer in connection with the repair of a nonconformity
1-23 in an assistive technology device, including the cost of obtaining
1-24 an alternative assistive technology device or other device used for
2-1 mobility assistance.
2-2 (3) "Consumer" means:
2-3 (A) a person who purchases an assistive
2-4 technology device from a dealer or manufacturer for a purpose other
2-5 than resale;
2-6 (B) a person to whom an assistive technology
2-7 device is transferred for a purpose other than resale, if the
2-8 transfer occurs before the expiration of an express warranty
2-9 applicable to the device; or
2-10 (C) a person, other than a lessee, who may
2-11 enforce an express warranty applicable to an assistive technology
2-12 device.
2-13 (4) "Dealer" means a person engaged in the business of
2-14 selling an assistive technology device.
2-15 (5) "Lessee" means a person who leases an assistive
2-16 technology device from a lessor under a written lease.
2-17 (6) "Lessor" means a person who:
2-18 (A) leases an assistive technology device to a
2-19 person; or
2-20 (B) holds the lessor's rights under a written
2-21 lease of an assistive technology device.
2-22 (7) "Manufacturer" means a person, or an agent of a
2-23 person, who manufactures or assembles an assistive technology
2-24 device or a warrantor of the device. The term includes an importer
2-25 and a distributor, factory branch, or distributor branch. The term
2-26 does not include a dealer of an assistive technology device.
2-27 (8) "Nonconformity" with respect to an assistive
3-1 technology device means a condition or defect that substantially
3-2 impairs the use, value, or safety of the device. The term does not
3-3 include a condition or defect that is the result of abuse, neglect,
3-4 or unauthorized modification or alteration of the device by a
3-5 consumer or lessee.
3-6 (9) "Person" means an individual, corporation,
3-7 partnership, sole proprietorship, or other business entity.
3-8 Sec. 3. WARRANTY FOR ASSISTIVE TECHNOLOGY DEVICE. (a) A
3-9 manufacturer that sells a new assistive technology device to a
3-10 consumer, either directly or through a dealer, shall furnish the
3-11 consumer with an express written warranty for the device.
3-12 (b) The warranty must:
3-13 (1) state at a minimum that there are no defects in
3-14 parts or performance; and
3-15 (2) be for a period of at least one year after the
3-16 date the device is first delivered to the consumer.
3-17 (c) An assistive technology device is covered as if an
3-18 express warranty had been provided under this section, regardless
3-19 of whether the manufacturer furnishes an express written warranty
3-20 to the consumer.
3-21 Sec. 4. 30-DAY RETURN PRIVILEGE. (a) A manufacturer or
3-22 dealer of an assistive technology device who sells an assistive
3-23 technology device to a consumer shall accept a return of an
3-24 assistive technology device that does not meet the needs of the
3-25 person with the disability if the return is made not later than the
3-26 30th day after the purchase date.
3-27 (b) The manufacturer or dealer shall provide to the consumer
4-1 a refund in accordance with Section 8 of this article.
4-2 Sec. 5. REPAIR OF NONCONFORMING ASSISTIVE TECHNOLOGY DEVICE.
4-3 (a) A nonconformity covered by an express warranty applicable to a
4-4 new assistive technology device or to a component of the device
4-5 shall be repaired, at the manufacturer's expense, if the consumer
4-6 or lessee:
4-7 (1) reports the nonconformity to the manufacturer or
4-8 lessor of the device or any of the manufacturer's authorized
4-9 dealers; and
4-10 (2) makes the device available for repair before the
4-11 first anniversary of the date on which the device is first
4-12 delivered to the consumer or lessee.
4-13 (b) A repair required to be made under this section must be
4-14 made regardless of whether the repair is made after expiration of
4-15 the warranty period.
4-16 Sec. 6. CONSUMER'S OR LESSEE'S LIABILITY FOR REPAIR. If in
4-17 any subsequent proceeding it is determined that a condition or
4-18 defect of an assistive technology device is not covered by a
4-19 warranty under this article and the manufacturer was not otherwise
4-20 obligated to repair the device, and if the manufacturer has
4-21 repaired the device, the consumer or lessee, as applicable, is
4-22 liable to the manufacturer for the costs of repair.
4-23 Sec. 7. REASONABLE ATTEMPT TO REPAIR NONCONFORMITY. For
4-24 purposes of Sections 8 and 9 of this article, a reasonable attempt
4-25 to repair a nonconformity in an assistive technology device or
4-26 component of the device is considered to have occurred if at any
4-27 time during the period ending on the later of the end of the term
5-1 of an express warranty applicable to the nonconformity in the
5-2 device or a component of the device, or the first anniversary of
5-3 the date the device is first delivered to the consumer or lessee:
5-4 (1) the nonconformity continues after being subject to
5-5 repair at least four times by the manufacturer or lessor of the
5-6 device, or any of the manufacturer's dealers; or
5-7 (2) the device is out of service for a cumulative
5-8 total of 30 or more days because of the nonconformity.
5-9 Sec. 8. REFUND OR REPLACEMENT OF ASSISTIVE TECHNOLOGY DEVICE
5-10 THAT IS NOT LEASED. (a) If a nonconformity in an assistive
5-11 technology device or component of the device continues after a
5-12 reasonable attempt to repair the nonconformity, the manufacturer of
5-13 the device, at the direction of a consumer, shall accept the return
5-14 of the device, and shall:
5-15 (1) replace the device with a comparable new assistive
5-16 technology device and refund any collateral costs; or
5-17 (2) refund to the consumer and to any holder of a
5-18 perfected security interest in the device, as the holder's interest
5-19 may appear, an amount equal to the difference between the cost of
5-20 the device as computed under Subsection (b) of this section and a
5-21 reasonable allowance for use of the device.
5-22 (b) The cost of the device is computed by adding:
5-23 (1) the purchase price of the device;
5-24 (2) the amount of any finance charge charged to the
5-25 consumer; and
5-26 (3) collateral costs.
5-27 (c) A reasonable allowance for use of an assistive
6-1 technology device may not exceed the amount computed by multiplying
6-2 the purchase price of the device by a fraction, the denominator of
6-3 which is 1,825 and the numerator of which is the number of days
6-4 that the device was used before the consumer first reported the
6-5 nonconformity to the dealer or manufacturer.
6-6 Sec. 9. REFUND FOR ASSISTIVE TECHNOLOGY DEVICE THAT IS
6-7 LEASED. (a) If a nonconformity in an assistive technology device
6-8 or component of the device continues after a reasonable attempt to
6-9 repair the nonconformity, the manufacturer of the device, at the
6-10 direction of a lessee, shall:
6-11 (1) accept the return of the device;
6-12 (2) refund to the lessee the sum of the amount the
6-13 lessee paid under the written lease and any collateral costs less a
6-14 reasonable allowance for use of the device; and
6-15 (3) refund to the lessor and any holder of a perfected
6-16 security interest in the device, as the holder's interest may
6-17 appear, the current value of the written lease as computed under
6-18 Subsection (b) of this section if the lease is terminated before
6-19 the termination date set forth in the lease because of the
6-20 nonconformity.
6-21 (b) The current value of a written lease is computed by
6-22 subtracting the lessor's early termination savings, if any, from
6-23 the total of:
6-24 (1) the total amount for which the lease obligates the
6-25 lessee for the period of the lease remaining after the date on
6-26 which the lease is terminated;
6-27 (2) the early termination cost; and
7-1 (3) the value of the assistive technology device at
7-2 the lease expiration date, if the lease sets forth that value.
7-3 (c) A reasonable allowance for use of an assistive
7-4 technology device may not exceed the amount computed by multiplying
7-5 the total amount for which the written lease obligates the lessee
7-6 by a fraction, the denominator of which is 1,825 and the numerator
7-7 of which is the number of days that the device was used by the
7-8 lessee before first reporting the nonconformity to the
7-9 manufacturer, dealer, or lessor.
7-10 (d) In this section:
7-11 (1) "Early termination cost" means an expense or other
7-12 obligation, including a penalty for prepayment under a finance
7-13 arrangement, that a lessor of an assistive technology device incurs
7-14 as a result of:
7-15 (A) the termination of a written lease before
7-16 the termination date set forth in the lease; and
7-17 (B) the return of an assistive technology device
7-18 to a manufacturer under Subsection (a) of this section.
7-19 (2) "Early termination savings" means an expense or
7-20 other obligation that a lessor of an assistive technology device
7-21 avoids payment of or responsibility for as a result of the
7-22 termination of a written lease before the termination date set
7-23 forth in that lease and the return of an assistive technology
7-24 device to a manufacturer under Subsection (a) of this section. The
7-25 term includes the amount of any interest the lessor would have paid
7-26 to finance the device, or, if the lessor does not finance the
7-27 device, the difference between the amount for which the lease
8-1 obligates the lessee during the period of the lease term remaining
8-2 after a written lease is terminated and before the termination date
8-3 set forth in the lease and the present value of that amount as of
8-4 the date on which the lease is terminated.
8-5 Sec. 10. PROCEDURES FOR RECEIPT OF REPLACEMENT DEVICE OR
8-6 REFUND. (a) To receive a comparable new assistive technology
8-7 device under Section 8 of this article or a refund under Section 8
8-8 or 9 of this article, a consumer, lessee, or lessor, as applicable,
8-9 must send notice to the manufacturer of the nonconforming assistive
8-10 technology device of the person's intent to transfer possession of
8-11 the device to the manufacturer.
8-12 (b) Not later than the 30th day after the date on which the
8-13 manufacturer receives the notice, the manufacturer shall provide
8-14 the consumer with a new device or a refund, as applicable, or shall
8-15 provide a refund to the lessor or lessee, as appropriate.
8-16 (c) On receipt of a new device or refund, the consumer,
8-17 lessee, or lessor shall return to the manufacturer the
8-18 nonconforming device and any endorsement necessary to transfer
8-19 legal possession to the manufacturer, if applicable.
8-20 Sec. 11. ENFORCEMENT OF LEASE FOLLOWING REFUND. A person
8-21 may not enforce the lease against a lessee who receives a refund
8-22 under Section 9 of this article.
8-23 Sec. 12. DISCLOSURE REQUIREMENT FOR SALE OR LEASE OF CERTAIN
8-24 ASSISTIVE TECHNOLOGY DEVICES. An assistive technology device
8-25 returned by a consumer, lessee, or lessor in this state under
8-26 Section 8 or 9 of this article or by a consumer, lessee, or lessor
8-27 in another state under a similar law of that state may not be sold
9-1 or leased in this state unless full disclosure of the reasons for
9-2 the return is made to a prospective buyer or lessee.
9-3 Sec. 13. RIGHTS AND REMEDIES UNDER OTHER LAWS OR CONTRACTS.
9-4 This article may not be construed to limit a right or remedy
9-5 available to a consumer, lessee, or lessor under any other law or
9-6 contract.
9-7 Sec. 14. WAIVER VOID. An attempted waiver by a consumer or
9-8 lessee of rights under this article is void.
9-9 Sec. 15. CAUSE OF ACTION; DAMAGES. (a) A consumer or
9-10 lessee may bring an action to recover damages caused by a violation
9-11 of this article. The consumer or lessee is entitled to recover an
9-12 amount not to exceed two times the amount of actual damages.
9-13 (b) A consumer or lessee who prevails in an action under
9-14 this section is entitled to recover court costs, reasonable
9-15 attorney's fees, and any other relief the court determines is
9-16 appropriate.
9-17 (c) An action under this section is in addition to any other
9-18 remedy a consumer or lessee may have under law.
9-19 SECTION 2. This Act takes effect September 1, 1997.
9-20 SECTION 3. The importance of this legislation and the
9-21 crowded condition of the calendars in both houses create an
9-22 emergency and an imperative public necessity that the
9-23 constitutional rule requiring bills to be read on three several
9-24 days in each house be suspended, and this rule is hereby suspended.