By Danburg, Woolley, Homer, Merritt,                   H.B. No. 537
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to telephone solicitation; providing penalties.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Chapters 37 and 38, Business & Commerce Code, are
 1-5     amended to read as follows:
 1-6                     CHAPTER 37. TELEPHONE SOLICITATION
 1-7           Sec. 37.01.  DEFINITIONS.  In this chapter:
 1-8                 (1)  "Automated dialing announcing device" means
 1-9     automated equipment used for telephone solicitation or collection
1-10     that is capable:
1-11                       (A)  of storing telephone numbers to be called or
1-12     has a random or sequential number generator capable of producing
1-13     numbers to be called; and
1-14                       (B)  alone or in conjunction with other
1-15     equipment, of conveying a prerecorded or synthesized voice message
1-16     to the number called without the use of a live operator.
1-17                 (2)  ["Consumer" means a person who is solicited to
1-18     purchase, lease, or receive a consumer good or service.]
1-19                 [(3)]  "Consumer good or service" means:
1-20                       (A)  real property or tangible or intangible
1-21     personal property that is normally used for personal, family, or
1-22     household purposes, including personal property intended to be
1-23     attached to or installed in any real property;
1-24                       (B)  a cemetery lot;
1-25                       (C)  a time-share estate; [and]
 2-1                       (D)  a service related to real or personal
 2-2     property; and
 2-3                       (E)  a coupon book to be used with a business or
 2-4     company.
 2-5                 (3)  "Telephone solicitation" [(4)  "Consumer telephone
 2-6     call"] means an unsolicited call, including a call by an automated
 2-7     dialing announcing device or recorded message device, made to a
 2-8     residential telephone number by a telephone solicitor to:
 2-9                       (A)  solicit a sale of a consumer good or
2-10     service;
2-11                       (B)  solicit an extension of credit for a
2-12     consumer good or service; [or]
2-13                       (C)  obtain information that will or may be used
2-14     to directly solicit a sale of a consumer good or service or to
2-15     extend credit for the sale; or
2-16                       (D)  solicit a contribution of money or other
2-17     property.
2-18                 (4) [(5)]  "Telephone solicitor" means a person who
2-19     makes or causes to be made a telephone solicitation [consumer
2-20     telephone call, including  a call made by an automated dialing
2-21     device].
2-22           Sec. 37.02.  SOLICITOR IDENTITY; PERMISSIBLE HOURS;
2-23     DISCONNECT.  [(a)]  A telephone solicitor may not make a telephone
2-24     solicitation [consumer telephone call to a consumer] unless:
2-25                 (1)  the telephone solicitor identifies himself or
2-26     herself by name and identifies the entity [business] on whose
2-27     behalf the telephone solicitor is calling and the purpose of the
 3-1     call immediately after making contact with the person [consumer] to
 3-2     whom the call is made;
 3-3                 (2)  the telephone solicitor makes the call after [12
 3-4     noon or before 9 p.m. on a Sunday or after] 9 a.m. and before 9
 3-5     p.m. on a weekday or a Saturday; and
 3-6                 (3)  for those calls in which an automated dialing
 3-7     [dial] announcing device is used, where technically possible, the
 3-8     device must disconnect the called person's [consumer's] telephone
 3-9     line within 30 seconds after termination of the call by either the
3-10     telephone solicitor or the called person [consumer].
3-11           [(b)  A consumer telephone call is not subject to the
3-12     provisions of Subsection (a) of this section if the call is made:]
3-13                 [(1)  in response to the express request of the
3-14     consumer;]
3-15                 [(2)  primarily in connection with an existing debt or
3-16     contract for which payment or performance has not been completed at
3-17     the time of the call; or]
3-18                 [(3)  to a consumer with whom the telephone solicitor
3-19     has a prior or existing business relationship.]
3-20           Sec. 37.03.  CHARGES TO CONSUMER CREDIT ACCOUNT.  A person
3-21     who sells consumer goods and services through the use of a
3-22     telephone solicitor may not make or submit a charge to a consumer's
3-23     credit card account unless:
3-24                 (1)  the seller provides that the consumer may receive
3-25     a full refund for the return of undamaged and unused goods or a
3-26     cancellation of services by providing notice to the seller not
3-27     later than the seventh day after the date the consumer receives the
 4-1     goods or services and in which the seller will process:
 4-2                       (A)  a refund not later than the 30th day after
 4-3     the date the seller receives the returned merchandise from the
 4-4     consumer;
 4-5                       (B)  a full refund not later than the 30th day
 4-6     after the purchaser of services cancels an order for the purchase
 4-7     of services not performed or a pro rata refund for any services not
 4-8     yet performed for the consumer;
 4-9                 (2)  the seller provides to the consumer a written
4-10     contract fully describing the goods or services being offered, the
4-11     total price to be charged, the name, address, and business phone of
4-12     the seller, and any terms or conditions affecting the sale and
4-13     receives from the consumer a signed copy of such contract; or
4-14                 (3)  the seller is an organization that qualifies for
4-15     and has obtained an exemption from federal income tax from the
4-16     Internal Revenue Service under Section 501(c)(3), Internal Revenue
4-17     Code of 1986 (26 U.S.C. Section 501(c)(3)).
4-18           Sec. 37.031.  NO-CALL LIST.  (a)  In this section,
4-19     "commission" means the Public Utility Commission of Texas.
4-20           (b)  The commission shall maintain a telephone solicitation
4-21     no-call list of the telephone numbers of residential customers in
4-22     this state who have requested to be on the list.  The commission
4-23     shall update the list quarterly.  An entry on the list expires on
4-24     the fifth anniversary of the date the entry is first included on
4-25     the list. An entry may be renewed for successive five-year periods.
4-26     The commission may not charge a person for a request to place a
4-27     number on the list or to renew an entry on the list.  The
 5-1     commission shall develop and disseminate a form to be used by
 5-2     residential customers to request to be on the list and shall
 5-3     provide a toll-free telephone number that customers may call to
 5-4     obtain a copy of the form.  The form must include a notice in at
 5-5     least 12-point bold-faced type stating:
 5-6           "You may continue to receive telephone solicitation calls
 5-7     from religious and charitable organizations, veterans
 5-8     organizations, public or private universities and their alumni
 5-9     organizations (if you are an alumnus), and organizations calling on
5-10     behalf of political candidates, political parties, or officeholders
5-11     or organizations calling in support of or opposition to ballot
5-12     issues.  You may continue to receive calls from companies with
5-13     which you already do business.  This does not apply to telephone
5-14     solicitation calls to your business telephone."
5-15           (c)  A telephone solicitor may not make a telephone
5-16     solicitation to a telephone number on the no-call list under
5-17     Subsection (b) after the 30th day after the day the list containing
5-18     the number is first available to the telephone solicitor.
5-19           (d)  A violation of Subsection (c) is subject to enforcement
5-20     and penalties under Subchapter B, Chapter 15, Utilities Code, as if
5-21     the violation were a violation of Title 2, Utilities Code, by a
5-22     person regulated under that title.  A violation of Subsection (c)
5-23     is also subject to other enforcement and penalties provided by this
5-24     chapter.  An administrative penalty collected for a violation of
5-25     Subsection (c) may be used only for administering this section.
5-26           (e)  The commission shall receive and investigate complaints
5-27     concerning violations of Subsection (c).  On determination that a
 6-1     violation has occurred, the commission shall take appropriate
 6-2     action for enforcement and penalties.
 6-3           (f)  The commission may adopt rules to administer this
 6-4     section.  The commission shall adopt rules:
 6-5                 (1)  requiring each local exchange telephone company to
 6-6     inform its customers of the requirements of this section by annual
 6-7     inserts in billing statements mailed to customers or conspicuous
 6-8     publication of the notice in the consumer information pages of
 6-9     local telephone directories; and
6-10                 (2)  providing that a telephone solicitation made to a
6-11     telephone number on the no-call list is not a violation of this
6-12     section if the call is an isolated occurrence made by a telephone
6-13     solicitor who has in place adequate procedures to comply with this
6-14     section.
6-15           (g)  In addition to requiring the notice required by
6-16     Subsection (f)(1), the commission shall conduct an educational
6-17     program designed to inform the public of their rights under this
6-18     section.  The educational program shall be directed to all
6-19     residential telephone subscribers and shall be conducted at least
6-20     annually if funds are available.
6-21           (h)  The commission shall provide for dissemination of the
6-22     no-call list in formats, including electronic formats, commonly
6-23     used by telephone solicitors.  The commission shall provide for
6-24     dissemination of the no-call list in braille format if requested by
6-25     a registered solicitor.  A telephone solicitor registered under
6-26     Chapter 38 shall be provided a copy of the list and each update of
6-27     the list without charge.  The commission shall set and collect a
 7-1     fee for a copy of the list or an update of the list provided to a
 7-2     person not registered under Chapter 38 in an amount, not more than
 7-3     $200, necessary to cover the cost of administering this section,
 7-4     considering amounts available for that purpose under Subsection
 7-5     (d).
 7-6           Sec. 37.032.  REQUEST OF CREDIT CARD NUMBER OR FINANCIAL
 7-7     INSTITUTION ACCOUNT NUMBER AFTER OFFER OF FREE CONSUMER GOOD OR
 7-8     SERVICE.  (a)  A telephone solicitor commits an offense if the
 7-9     telephone solicitor, in connection with a telephone solicitation
7-10     made in violation of another provision of this chapter or Chapter
7-11     38, knowingly:
7-12                 (1)  represents or implies that a called person will
7-13     receive without charge a consumer good or service, regardless of
7-14     whether designated as a gift, premium, bonus, prize, or otherwise;
7-15     and
7-16                 (2)  requests a credit card account number, debit card
7-17     account number, or financial institution account number from the
7-18     called person for the purpose of charging to the credit card
7-19     account or debiting from the financial institution account an
7-20     amount as a condition precedent to the called person's receipt of a
7-21     consumer good or service.
7-22           (b)  An offense under this section is a Class A misdemeanor.
7-23           Sec. 37.04.  ENFORCEMENT.  (a)  The attorney general's office
7-24     shall investigate a complaint relating to a violation of this
7-25     chapter and may petition a district court for a temporary
7-26     restraining order to restrain a continuing violation of this
7-27     chapter and for the assessment of a civil penalty as provided by
 8-1     Section 37.05 of this code.
 8-2           (b)  A district court, on petition of the attorney general's
 8-3     office and on a finding by the court that a person is violating
 8-4     this chapter may, by injunction, prohibit a person from continuing
 8-5     a violation of this chapter or grant any other injunctive relief
 8-6     warranted by the facts.
 8-7           (c)  Venue for a suit brought under this chapter is in:
 8-8                 (1)  the county in which the telephone solicitation
 8-9     [consumer telephone call] originated;
8-10                 (2)  the county in which the telephone solicitation
8-11     [consumer telephone call] was received; or
8-12                 (3)  Travis County.
8-13           Sec. 37.05.  CIVIL PENALTY.  (a)   A person who knowingly
8-14     violates this chapter is liable for a civil penalty of not more
8-15     than $10,000 for each violation.
8-16           (b)  In addition to bringing an action for injunctive relief,
8-17     the attorney general may also seek restitution, attorney fees,
8-18     investigative costs, and civil penalties as provided herein.
8-19           (c)  A called person [consumer] injured by a violation of
8-20     this chapter may bring any action for recovery of damages.  The
8-21     damages awarded may not be less than the amount paid by the called
8-22     person to the person making the sale or receiving the contribution
8-23     as a result of the telephone solicitation [buyer to the telephone
8-24     solicitor], plus reasonable attorney fees and court costs.
8-25           Sec. 37.06.  DECEPTIVE TRADE PRACTICES.  A violation of this
8-26     chapter is a false, misleading, or deceptive act or practice under
8-27     Subchapter E, Chapter 17, and any public or private right or remedy
 9-1     prescribed by that subchapter may be used to enforce this chapter.
 9-2           Sec. 37.07.  EXEMPTION.  This chapter does not apply to:
 9-3                 (1)  an institution of higher education or a private or
 9-4     independent institution of higher education, as those terms are
 9-5     defined by Section 61.003, Education Code;
 9-6                 (2)  an entity exempt from taxation under Section
 9-7     501(c)(3), (4), or (19), Internal Revenue Code of 1986, as amended,
 9-8     or a person making a telephone solicitation on behalf of such an
 9-9     entity;
9-10                 (3)  an organization calling on behalf of a political
9-11     candidate, political party, or officeholder or an organization
9-12     calling in support of or opposition to a ballot issue;
9-13                 (4)  a person offering or selling a security that has
9-14     been qualified for sale under Section 7, The Securities Act
9-15     (Article 581-7, Vernon's Texas Civil Statutes), or that is subject
9-16     to an exemption under Section 5 or 6 of that Act;
9-17                 (5)  a person licensed under the Insurance Code if the
9-18     solicited transaction is governed by the Insurance Code; or
9-19                 (6)  a telephone solicitation made:
9-20                       (A)  in response to the express request of the
9-21     called person;
9-22                       (B)  primarily in connection with an existing
9-23     debt or contract for which payment or performance has not been
9-24     completed at the time of the call;
9-25                       (C)  to a person with whom the telephone
9-26     solicitor has an established business relationship, as defined by
9-27     47 C.F.R. Section 64.1200, as amended, except that this exemption
 10-1    does not apply to a telephone solicitation by a provider of local
 10-2    exchange or interexchange telecommunication service; or
 10-3                      (D)  by a person who:
 10-4                            (i)  does not intend to complete or obtain
 10-5    provisional acceptance of a sale or obtain provisional commitment
 10-6    to make a contribution during the telephone solicitation;
 10-7                            (ii)  does not make a major sales
 10-8    presentation or presentation soliciting a contribution during the
 10-9    telephone solicitation; and
10-10                            (iii)  either:
10-11                                           (a)  arranges for a major
10-12    sales presentation to be made at a later face-to-face meeting
10-13    between a salesperson and the called person; or
10-14                                           (b)  invites the called
10-15    person to attend a later meeting at which a contribution may be
10-16    solicited.
10-17       CHAPTER 38. REGISTRATION [REGULATION] OF TELEPHONE SOLICITORS
10-18                              [SOLICITATION]
10-19                     SUBCHAPTER A.  GENERAL PROVISIONS
10-20          Sec. 38.001.  DEFINITIONS.  In this chapter:
10-21                (1)  "Consumer good or service" has the meaning
10-22    assigned by Section 37.01.  ["Item" means property or service and
10-23    includes a coupon book that is to be used with a business or
10-24    company.]
10-25                (2)  "Owner" means a person who has control of or is
10-26    entitled to, by ownership or other claim, at least 10 percent of
10-27    the net income of a telephone solicitor [seller].
 11-1                (3)  "Principal" means an owner, an executive officer
 11-2    of a corporation, a general partner of a partnership, a sole
 11-3    proprietor, a trustee of a trust, or another individual with
 11-4    similar supervisory functions with respect to any person.
 11-5                (4)  "Purchaser" means a person who is:
 11-6                      (A)  solicited to become or becomes obligated for
 11-7    the purchase or rental of a consumer good or service [an item]; or
 11-8                      (B)  offered the opportunity to claim or receive
 11-9    a consumer good or service [an item.]
11-10                [(4)  "Salesperson" means a person employed or
11-11    authorized by a seller to make a telephone solicitation.]
11-12                [(5)  "Seller" means a person who makes a telephone
11-13    solicitation on the person's own behalf].
11-14                (5) [(6)]  "Supervised financial institution" means a
11-15    bank, trust company, savings and loan association, credit union,
11-16    industrial loan company, personal property broker, consumer finance
11-17    lender, commercial finance lender, insurer, or other financial
11-18    institution that is subject to supervision by an official or agency
11-19    of this state or the United States.
11-20                (6) [(7)]  "Telephone solicitation" means an
11-21    unsolicited call, including a call by an automated dialing
11-22    announcing device or recorded message device, made to a residential
11-23    telephone number by a telephone solicitor to:
11-24                      (A)  solicit a sale of a consumer good or
11-25    service;
11-26                      (B)  solicit an extension of credit for a
11-27    consumer good or service;
 12-1                      (C)  obtain information that will or may be used
 12-2    to directly solicit a sale of a consumer good or service or to
 12-3    extend credit for the sale; or
 12-4                      (D)  solicit a contribution of money or other
 12-5    property.
 12-6                (7)  "Telephone solicitor" means a person who makes or
 12-7    causes to be made a telephone solicitation [a telephone call
 12-8    initiated by a seller or salesperson to or from a person for the
 12-9    purpose of inducing the person to purchase, rent, claim, or receive
12-10    an item.  The term includes a call made by a purchaser in response
12-11    to a solicitation sent by mail or made by any other means].
12-12          Sec. 38.002.  MAKING TELEPHONE SOLICITATION.  In this
12-13    chapter, a person makes a telephone solicitation if the person
12-14    effects or attempts to effect a telephone solicitation[, including
12-15    a solicitation initiated by an automatic dialing machine or a
12-16    recorded message device].
12-17          Sec. 38.003.  CONSTRUCTION AND APPLICATION.  This chapter
12-18    shall be liberally construed and applied to promote its underlying
12-19    purpose to protect persons against false, misleading, or deceptive
12-20    practices in the telephone solicitation business.
12-21                         SUBCHAPTER B. EXEMPTIONS
12-22          Sec. 38.051.  CLAIM OF EXEMPTION.  (a)  In a civil proceeding
12-23    alleging a violation of this chapter, the burden of proving an
12-24    exemption is on the person claiming the exemption.
12-25          (b)  In a criminal proceeding alleging a violation of this
12-26    chapter, the burden of producing evidence to support a defense of
12-27    an exemption is on the person claiming the exemption.
 13-1          Sec. 38.052.  EXEMPTIONS APPLY TO TELEPHONE SOLICITOR
 13-2    [SELLER].  Except as provided by Section 38.054, the [The]
 13-3    exemptions provided by this chapter apply only to a telephone
 13-4    solicitor [seller] engaging in a telephone solicitation on the
 13-5    telephone solicitor's [seller's] own behalf.
 13-6          Sec. 38.053.  PERSONS [OR ITEMS] REGULATED BY OTHER LAW.
 13-7    This chapter does not apply to:
 13-8                (1)  a person who is required to register and post a
 13-9    bond, and who registers and posts that bond, under Article 9023b,
13-10    Revised Statutes;
13-11                (2)  a person who is required to register and post a
13-12    bond, and who registers and posts that bond, under Chapter 920,
13-13    Acts of the 73rd Legislature, Regular Session, 1993 (Article 9023c,
13-14    Vernon's Texas Civil Statutes);
13-15                (3)  a person who is required to post a bond, and who
13-16    posts that bond, under Chapter 1202, Acts of the 75th Legislature,
13-17    Regular Session, 1997 (Article 9023e, Vernon's Texas Civil
13-18    Statutes);
13-19                (4)  a person offering or selling a security that has
13-20    been qualified for sale under Section 7, The Securities Act
13-21    (Article 581-7, Vernon's Texas Civil Statutes), or that is subject
13-22    to an exemption under Section 5 or 6 of that Act; or
13-23                [(2)  a publicly traded corporation registered with the
13-24    Securities and Exchange Commission or the State Securities Board,
13-25    or a subsidiary or agent of the corporation;]
13-26                (5) [(3)]  a person licensed under the Insurance Code
13-27    if the solicited transaction is governed by the Insurance Code[;]
 14-1                [(4)  a supervised financial institution or parent,
 14-2    subsidiary, or affiliate of a supervised financial institution;]
 14-3                [(5)  a person or affiliate of a person whose business
 14-4    is regulated by the Public Utility Commission of Texas, except that
 14-5    this chapter applies to a person or affiliate of a person who is
 14-6    regulated by the Public Utility Commission of Texas only with
 14-7    respect to one or more automated dial announcing devices;]
 14-8                [(6)  a person subject to the control or licensing
 14-9    regulations of the Federal Communications Commission;]
14-10                [(7)  a person selling a contractual plan regulated by
14-11    the Federal Trade Commission trade regulation on use of negative
14-12    option plans by sellers in commerce under 16 C.F.R. Part 425;]
14-13                [(8)  a person subject to the filing requirements of
14-14    Chapter 920, Acts of the 73rd Legislature, Regular Session, 1993
14-15    (Article 9023c, Vernon's Texas Civil Statutes); or]
14-16                [(9)  a person soliciting a transaction regulated by
14-17    the Commodity Futures Trading Commission if the person is
14-18    registered or temporarily licensed for that activity with the
14-19    Commodity Futures Trading Commission under the Commodity Exchange
14-20    Act (7 U.S.C.  Section 1 et seq.) and the registration or license
14-21    has not expired or been suspended or revoked.]
14-22          [Sec. 38.054.  MEDIA AND SUBSCRIPTION SERVICES AND CERTAIN
14-23    CATALOGS.  This chapter does not apply to:]
14-24                [(1)  a person soliciting the sale of a subscription
14-25    to:]
14-26                      [(A)  a daily or weekly newspaper of general
14-27    circulation;]
 15-1                      [(B)  a magazine or other periodical of general
 15-2    circulation; or]
 15-3                      [(C)  a cable television service;]
 15-4                [(2)  a person selling merchandise under an arrangement
 15-5    in which the seller periodically ships the merchandise to a
 15-6    consumer who has consented in advance to receive the merchandise
 15-7    periodically; or]
 15-8                [(3)  a person who periodically issues and delivers
 15-9    catalogs to potential purchasers if the catalog:]
15-10                      [(A)  includes a written description or
15-11    illustration and the sales price of each item offered for sale;]
15-12                      [(B)  includes at least 24 full pages of written
15-13    material or illustrations;]
15-14                      [(C)  is distributed in more than one state; and]
15-15                      [(D)  has an annual circulation of at least
15-16    250,000 customers].
15-17          Sec. 38.054 [38.055].  CERTAIN NONPROFIT, [AND] EDUCATIONAL,
15-18    AND POLITICAL ORGANIZATIONS.  (a)  This chapter does not apply to
15-19    an entity [educational institution or organization or a nonprofit
15-20    organization] exempt from taxation under Section 501(c)(3) or (4),
15-21    Internal Revenue Code of 1986, as amended, or a person making a
15-22    telephone solicitation on behalf of such an entity, if the entity
15-23    is:
15-24                (1)  a nonprofit organization; or
15-25                (2)  an entity organized and operated exclusively for
15-26    educational purposes.
15-27          (b)  This chapter does not apply to an organization calling
 16-1    on behalf of a political candidate, political party, or
 16-2    officeholder or an organization calling in support of or opposition
 16-3    to a ballot issue.
 16-4          [Sec. 38.056.  CERTAIN COMMERCIAL SALES.  This chapter does
 16-5    not apply to a sale in which the purchaser is a business that
 16-6    intends to:]
 16-7                [(1)  resell the item purchased; or]
 16-8                [(2)  use the item purchased in a recycling, reuse,
 16-9    remanufacturing, or manufacturing process.]
16-10          [Sec. 38.057.  FOOD.  This chapter does not apply to a person
16-11    soliciting the sale of food.]
16-12          Sec. 38.055 [38.058].  SOLICITATION OF CURRENT OR FORMER
16-13    CUSTOMERS OR CONTRIBUTORS.  This chapter does not apply to a call
16-14    made to a person with whom the telephone solicitor has an
16-15    established business relationship, as defined by 47 C.F.R. Section
16-16    64.1200, as amended, except that this exemption does not apply to a
16-17    telephone solicitation by a provider of local exchange or
16-18    interexchange telecommunication service[:]
16-19                [(1)  the solicitation of contracts for the maintenance
16-20    or repair of items previously purchased from the person making the
16-21    solicitation or on whose behalf the solicitation is made; or]
16-22                [(2)  a person soliciting business from a former or
16-23    current customer if the person has operated under the exact same
16-24    business name for at least two years].
16-25          Sec. 38.056 [38.059].  ARRANGEMENT FOR LATER PRESENTATION
16-26    [PROMOTIONS AT ESTABLISHED RETAIL SALES LOCATIONS OR AT CONSUMER'S
16-27    RESIDENCE].  This chapter does not apply to[:]
 17-1                [(1)]  a person soliciting[:]
 17-2                      [(A)]  without intent to complete or obtain
 17-3    provisional acceptance of a sale during the telephone
 17-4    solicitation[;]
 17-5                      [(B)]  who does not make the major sales
 17-6    presentation during the telephone solicitation but arranges for the
 17-7    major sales presentation to be made at a later face-to-face meeting
 17-8    between the salesperson and the purchaser[; and]
 17-9                      [(C)  who does not cause an individual to go to
17-10    the prospective purchaser to collect payment for the purchase or to
17-11    deliver an item purchased directly following the telephone
17-12    solicitation; or]
17-13                [(2)  a person who for at least two years has been
17-14    operating under the same name as that used in connection with its
17-15    telemarketing operations a retail establishment where consumer
17-16    goods are displayed and offered for sale continuously if a majority
17-17    of the person's business involves the buyers obtaining services or
17-18    products at the person's retail establishment.]
17-19          [Sec. 38.060.  CERTAIN SOLICITATION SERVICES HAVING
17-20    PREDOMINATELY EXEMPT CUSTOMERS.  (a)  This chapter does not apply
17-21    to a person:]
17-22                [(1)  who provides telephone solicitation services
17-23    under contract to sellers;]
17-24                [(2)  who has been operating continuously for at least
17-25    three years under the same business name; and]
17-26                [(3)  for whom at least 75 percent of the person's
17-27    contracts are performed on behalf of other persons exempt under
 18-1    this section.]
 18-2          [(b)  Notwithstanding Section 38.052, the exemption provided
 18-3    by this section applies to a person providing telephone
 18-4    solicitation services to sellers].
 18-5          Sec. 38.057 [38.061].  CERTAIN ISOLATED SOLICITATIONS.  This
 18-6    chapter does not apply to a person engaging in a [commercial]
 18-7    telephone solicitation that is an isolated transaction and not done
 18-8    in the course of a pattern of repeated transactions of a similar
 18-9    nature.
18-10                        SUBCHAPTER C. REGISTRATION
18-11          Sec. 38.101.  REGISTRATION REQUIRED.  (a)  A telephone
18-12    solicitor [seller] may not engage in telephone solicitation from a
18-13    location in this state or to a person [purchaser] located in this
18-14    state without a registration certificate for the business location
18-15    from which the solicitation is made.
18-16          (b)  A separate registration certificate is required for each
18-17    business location from which a solicitation is made.
18-18          Sec. 38.102.  CONTENTS OF REGISTRATION STATEMENT;
18-19    VERIFICATION; PUBLIC INFORMATION.  (a)  A telephone solicitor
18-20    [seller] must file a registration statement with the secretary of
18-21    state to obtain a registration certificate.
18-22          (b)  A registration statement must be in the form prescribed
18-23    by the secretary of state and contain the information required by
18-24    Subchapter D.
18-25          (c)  A registration statement must be verified by each
18-26    principal of the telephone solicitor [seller] and must specify the
18-27    date and location of verification.
 19-1          (d)  The information included in or attached to a
 19-2    registration statement is public information.
 19-3          [(e)  In this section, "principal" means an owner, an
 19-4    executive officer of a corporation, a general partner of a
 19-5    partnership, a sole proprietor, a trustee of a trust, or another
 19-6    individual with similar supervisory functions with respect to any
 19-7    person.]
 19-8          Sec. 38.103.  FILING FEE.  (a)  The filing fee for a
 19-9    registration statement is $75 [$200].
19-10          (b)  The fee collected under this section may be used only to
19-11    defray the costs of the secretary of state and the Public Utility
19-12    Commission of Texas in administering this chapter and Section
19-13    37.031.
19-14          Sec. 38.104.  ISSUANCE OF CERTIFICATE OF REGISTRATION.
19-15    (a)  The secretary of state shall issue a registration certificate
19-16    and mail the certificate to the telephone solicitor [seller] on
19-17    receipt of:
19-18                (1)  a completed registration statement;
19-19                (2)  the registration statement filing fee;
19-20                (3)  the security required by Section 38.107; and
19-21                (4)  the consent regarding service of process required
19-22    by Section 38.108.
19-23          (b)  If the telephone solicitor [seller] uses one
19-24    registration statement to register more than one business location,
19-25    the secretary of state shall issue a registration certificate for
19-26    each business location and mail all the certificates to the
19-27    principal business location shown on the registration statement.
 20-1          Sec. 38.105.  EFFECTIVE DATE; RENEWAL.  (a)  A registration
 20-2    statement becomes effective on the date that the secretary of state
 20-3    issues the registration certificate.
 20-4          (b)  A registration statement is effective for one year and
 20-5    may be renewed annually by:
 20-6                (1)  filing a renewal registration statement with the
 20-7    information required by Subchapter D; and
 20-8                (2)  paying the registration statement filing fee.
 20-9          Sec. 38.106.  CHANGE IN INFORMATION.  If [UPDATE ADDENDUM
20-10    REQUIRED.  (a)  A seller shall file with the secretary of state an
20-11    addendum for each quarter after the effective date of the
20-12    registration providing the required registration information for
20-13    each salesperson who is soliciting or has solicited on behalf of
20-14    the seller during the preceding quarter.]
20-15          [(b)  A seller may comply with Subsection (a)  by providing a
20-16    copy of the "Employer's Quarterly Report" for employee wages the
20-17    seller files with the Texas Workforce Commission.]
20-18          [(c)  In addition to the quarterly addendum, if] a material
20-19    change in information submitted in a registration statement,
20-20    including a change of a telephone solicitation agent of the
20-21    telephone solicitor, [other than the information described by
20-22    Subsection (a),] occurs before the date for renewal, a telephone
20-23    solicitor [seller] shall submit that information to the secretary
20-24    of state by filing an addendum.
20-25          Sec. 38.107.  SECURITY.  (a)  Except as provided by
20-26    Subsections (c) and (d), a [A] registration statement filed under
20-27    this chapter must be accompanied by:
 21-1                (1)  a bond executed by a corporate surety approved by
 21-2    the secretary of state and licensed to do business in this state;
 21-3                (2)  an irrevocable letter of credit issued for the
 21-4    benefit of the registrant by a supervised financial institution
 21-5    whose deposits are insured by an agency of the federal government;
 21-6    or
 21-7                (3)  a certificate of deposit in a supervised financial
 21-8    institution whose deposits are insured by an agency of the federal
 21-9    government, the principal of which may be withdrawn only on the
21-10    order of the secretary of state.
21-11          (b)  The bond, letter of credit, or certificate of deposit
21-12    must be:
21-13                (1)  maintained in the amount of $25,000 [$10,000]; and
21-14                (2)  conditioned on the telephone solicitor's
21-15    [seller's] compliance with this chapter.
21-16          (c)  A telephone solicitor that ceases all activities subject
21-17    to this chapter may apply to the secretary of state for release of
21-18    the security required by this section.  The application must be
21-19    verified by each principal of the telephone solicitor.  The
21-20    secretary of state shall promptly notify the attorney general of
21-21    receipt of an application under this subsection.  Unless the
21-22    attorney general files notice of objection with the secretary of
21-23    state, the secretary of state shall release the security not
21-24    earlier than the later of:
21-25                (1)  the 180th day after the date the telephone
21-26    solicitor conducted its final activity subject to this chapter; or
21-27                (2)  the 60th day after the date the attorney general
 22-1    is notified under this subsection.
 22-2          (d)  The secretary of state may accept the self-insurance or
 22-3    bond of the registrant itself, without separate surety, if the
 22-4    registrant demonstrates to the satisfaction of the secretary of
 22-5    state the existence of a suitable agent to receive service of
 22-6    process and a history of financial solvency and continuous
 22-7    operation sufficient to justify the self-insurance or bond of the
 22-8    registrant.
 22-9          Sec. 38.108.  SECRETARY OF STATE AS TELEPHONE SOLICITOR'S
22-10    [SELLER'S] AGENT TO RECEIVE SERVICE.  (a)  A telephone solicitor
22-11    [seller] shall file with the secretary of state, in the form
22-12    prescribed by the secretary of state, an irrevocable consent
22-13    appointing the secretary of state to act as the telephone
22-14    solicitor's [seller's] agent to receive service of process in a
22-15    noncriminal suit, action, or proceeding against the telephone
22-16    solicitor [seller] or the telephone solicitor's [seller's]
22-17    successor, executor, or administrator that may arise under this
22-18    chapter if:
22-19                (1)  an agent has not been designated under Section
22-20    38.151(6) [38.151(15)];
22-21                (2)  the agent has resigned or died and a replacement
22-22    has not been designated under Section 38.106; or
22-23                (3)  the agent cannot with reasonable diligence be
22-24    found at the designated address.
22-25          (b)  Service on the secretary of state under this section has
22-26    the same effect as service on the telephone solicitor [seller].
22-27    Service on the secretary of state may be made by:
 23-1                (1)  leaving a copy of the process in the office of the
 23-2    secretary of state;
 23-3                (2)  promptly sending by first-class mail a notice of
 23-4    the service and a copy of the process to the telephone solicitor's
 23-5    [seller's] principal business location at the last address on file
 23-6    with the secretary of state; and
 23-7                (3)  filing the plaintiff's affidavit of compliance
 23-8    with this section in the case on or before the return date of the
 23-9    process, if any, or within an additional period that the court
23-10    allows.
23-11       SUBCHAPTER D. DISCLOSURES REQUIRED IN REGISTRATION STATEMENT
23-12          Sec. 38.151.  DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND
23-13    ORGANIZATIONAL INFORMATION.  A registration statement must contain:
23-14                (1)  the telephone solicitor's [seller's] name and the
23-15    name under which the telephone solicitor [seller] is doing or
23-16    intends  to do business, if different from the telephone
23-17    solicitor's [seller's] name;
23-18                (2)  the name of each parent and affiliated
23-19    organization of the telephone solicitor [seller] that:
23-20                      (A)  will engage in business transactions with
23-21    purchasers relating to sales solicited by the telephone solicitor
23-22    or will receive contributions solicited by the telephone solicitor
23-23    [seller]; or
23-24                      (B)  accepts responsibility for statements made
23-25    by, or acts of, the telephone solicitor [seller] relating to sales
23-26    or contributions solicited by the telephone solicitor [seller];
23-27                (3)  the telephone solicitor's [seller's] business form
 24-1    and place of organization;
 24-2                (4)  [if the seller is a corporation, a copy of its
 24-3    articles of incorporation and bylaws;]
 24-4                [(5)  if the seller is a partnership, a copy of the
 24-5    partnership agreement;]
 24-6                [(6)  if the seller is operating under an assumed
 24-7    business name, the location where the assumed name has been
 24-8    registered;]
 24-9                [(7)  for any parent or affiliated organization
24-10    disclosed under Subdivision (2), the applicable information that is
24-11    required of a seller under Subdivisions (3)-(6);]
24-12                [(8)]  the complete street address of the physical
24-13    location of the principal place of business of the telephone
24-14    solicitor and the telephone solicitor's telephone number at that
24-15    location [each location of the seller,  designating the principal
24-16    location from which the seller will be conducting business];
24-17                (5) [(9)  if the principal business location of the
24-18    seller is not in this state, a designation of its main location in
24-19    the state;]
24-20                [(10)  a listing of each telephone number to be used by
24-21    the seller and the address where each telephone using the number is
24-22    located;]
24-23                [(11)]  the name of an officer, a general or limited
24-24    partner, or the sole proprietor, as applicable, of the telephone
24-25    solicitor [and title of each of the seller's officers, directors,
24-26    trustees, general and limited partners, sole proprietor, and
24-27    owners, as applicable, and the name of each of those persons who
 25-1    has management responsibilities in connection with the seller's
 25-2    business activities;]
 25-3                [(12)  the complete address of the principal residence,
 25-4    the date of birth, and the number and state of issuance of the
 25-5    driver's license of each person whose name is disclosed under
 25-6    Subdivision (11);]
 25-7                [(13)  the name and principal residence address of each
 25-8    person the seller leaves in charge at each location from which the
 25-9    seller does business in this state and the business location at
25-10    which each of these persons is or will be in charge;]
25-11                [(14)  the name and principal residence address of each
25-12    salesperson who solicits on behalf of the seller or a copy of the
25-13    "Employer's Quarterly Report" for employee wages the seller files
25-14    with the Texas Workforce Commission and the name the salesperson
25-15    uses while soliciting]; and
25-16                (6) [(15)]  the name and address of the telephone
25-17    solicitor's [seller's] agent in this state, other than the
25-18    secretary of  state, authorized to receive service of process[; and]
25-19                [(16)  the name and address of each financial
25-20    institution with which banking or similar monetary transactions are
25-21    made by the seller and the identification number of each of the
25-22    seller's accounts in each institution].
25-23          [Sec. 38.152.  DISCLOSURE OF CERTAIN CONVICTIONS, JUDGMENTS,
25-24    ORDERS, AND BANKRUPTCIES.  (a)  With respect to the seller and each
25-25    person identified under Section 38.151(11) or (13), a registration
25-26    statement must state the identity of each person:]
25-27                [(1)  who has been convicted of or pleaded nolo
 26-1    contendere to:]
 26-2                      [(A)  a felony or misdemeanor involving an
 26-3    alleged violation of this chapter; or]
 26-4                      [(B)  fraud, theft, embezzlement, fraudulent
 26-5    conversion, or misappropriation of property;]
 26-6                [(2)  against whom a final judgment or order has been
 26-7    entered in a civil or administrative action, including a stipulated
 26-8    judgment or order, in which the complaint or petition alleged:]
 26-9                      [(A)  acts constituting a violation of this
26-10    chapter, fraud, theft, embezzlement, fraudulent conversion, or
26-11    misappropriation of property;]
26-12                      [(B)  the use of untrue or misleading
26-13    representations in an attempt to sell or dispose of property; or]
26-14                      [(C)  the use of unfair, unlawful, or deceptive
26-15    business practices;]
26-16                [(3)  who is subject to an injunction or restrictive
26-17    court order relating to business activity as the result of an
26-18    action brought by a federal, state, or local public agency,
26-19    including an action affecting a vocational license; or]
26-20                [(4)  who has, during the previous seven tax years:]
26-21                      [(A)  filed in bankruptcy;]
26-22                      [(B)  been adjudged a bankrupt;]
26-23                      [(C)  been reorganized due to insolvency; or]
26-24                      [(D)  been a principal, director, officer,
26-25    trustee, general or limited partner of, or had management
26-26    responsibilities for, a corporation, partnership, joint venture, or
26-27    other business entity that has filed in bankruptcy, been adjudged a
 27-1    bankrupt, or been reorganized due to insolvency while the person
 27-2    held that position or within one year after the date on which the
 27-3    person last held that position.]
 27-4          [(b)  Under Subsections (a)(1), (2), and (3), the statement
 27-5    must identify the:]
 27-6                [(1)  court or administrative agency rendering the
 27-7    conviction, judgment, or order;]
 27-8                [(2)  docket number of the matter;]
 27-9                [(3)  date of conviction, judgment, or order; and]
27-10                [(4)  name of the governmental agency, if any, that
27-11    brought the action resulting in the conviction, judgment, or order.]
27-12          [(c)  Under Subsection (a)(4), the statement must include
27-13    the:]
27-14                [(1)  name and location of the person filing in
27-15    bankruptcy, adjudged a bankrupt, or reorganized due to insolvency;]
27-16                [(2)  date of the filing, judgment, or reorganization
27-17    order;]
27-18                [(3)  court having jurisdiction; and]
27-19                [(4)  docket number of the matter.]
27-20          [Sec. 38.153.  DISCLOSURE OF CERTAIN SALES INFORMATION.  The
27-21    registration statement must be accompanied by:]
27-22                [(1)  a description of the items the seller is offering
27-23    for sale;]
27-24                [(2)  a copy of all sales information and literature,
27-25    including scripts, outlines, instructions, and information
27-26    regarding the conduct of telephone solicitations, sample
27-27    introductions, sample closings, product information, and contest or
 28-1    premium-award information, provided by the seller to salespersons
 28-2    or about which the seller informs salespersons;]
 28-3                [(3)  a copy of all written material the seller sends
 28-4    to any purchaser;]
 28-5                [(4)  if the seller represents or implies, or directs
 28-6    salespersons to represent or imply, to purchasers that the
 28-7    purchaser will receive a specific item, including a certificate
 28-8    that the purchaser must redeem to obtain the item described in the
 28-9    certificate, or one or more items from among designated items,
28-10    whether the items are designated as gifts, premiums, bonuses,
28-11    prizes, or otherwise:]
28-12                      [(A)  a list of the items described;]
28-13                      [(B)  the value of each item and the basis for
28-14    the valuation;]
28-15                      [(C)  the price paid by the seller to its
28-16    supplier for each item and the name, address, and telephone number
28-17    of each item's supplier;]
28-18                      [(D)  if the purchaser is to receive fewer than
28-19    all of the items described by the seller:]
28-20                            [(i)  the manner in which the seller
28-21    decides which item a particular purchaser is to receive;]
28-22                            [(ii)  for each item, the odds of a single
28-23    purchaser's receiving the item; and]
28-24                            [(iii)  the name and address of each
28-25    recipient who has received, during the preceding 12 months or, if
28-26    the seller has not been in business that long, during the period
28-27    the seller has been in business, the item having the greatest value
 29-1    and the item with the smallest odds of being received; and]
 29-2                      [(E)  all rules, regulations, and terms a
 29-3    purchaser must meet to receive the item;]
 29-4                [(5)  if the seller is offering an item that the seller
 29-5    does not manufacture or supply:]
 29-6                      [(A)  the name, address, and telephone number of
 29-7    each of the seller's suppliers and a description of each item
 29-8    provided by the supplier;]
 29-9                      [(B)  if the possession of the item is to be
29-10    retained by the seller or will not be transferred to the purchaser
29-11    until the purchaser has paid in full:]
29-12                            [(i)  the address of each location where
29-13    the item will be kept;]
29-14                            [(ii)  if not kept on premises owned by the
29-15    seller or at an address registered under Section 38.151(8) or (9),
29-16    the name of the owner of the business at which the item will be
29-17    kept; and]
29-18                            [(iii)  a copy of any contract or other
29-19    document that evidences the seller's right to store the item at the
29-20    address designated under Subparagraph (ii);]
29-21                      [(C)  if the seller is not selling the item from
29-22    its own inventory but purchases the item to fill an order already
29-23    taken from a purchaser, copies of all contracts or other documents
29-24    evidencing the seller's ability to call on suppliers to fill the
29-25    seller's orders;]
29-26                      [(D)  if the seller represents to purchasers that
29-27    the seller has insurance or a surety bond relating to a purchaser's
 30-1    purchase of an item, a copy of each insurance policy and bond; and]
 30-2                      [(E)  if the seller makes a representation as to
 30-3    the post-purchase earning or profit potential of an item, data to
 30-4    substantiate the claims made and, if the representation relates to
 30-5    previous sales made by the seller or a related entity,
 30-6    substantiating data based on the experiences of at least 50 percent
 30-7    of the persons who purchased that particular type of item from the
 30-8    seller or related entity during the preceding six months or, if the
 30-9    seller or related entity has not been in business that long, during
30-10    the period the seller or related entity has been in business,
30-11    including:]
30-12                            [(i)  the period the seller or related
30-13    entity has been selling the particular type of item being offered;]
30-14                            [(ii)  the number of purchasers of the item
30-15    from the seller or related entity known to the seller or related
30-16    entity to have made at least the same earnings or profit as those
30-17    represented; and]
30-18                            [(iii)  the percentage that the number
30-19    disclosed under Subparagraph (ii) represents of the total number of
30-20    purchasers from the seller or related entity of the particular type
30-21    of item offered; and]
30-22                [(6)  if the seller is offering to sell an interest in
30-23    an oil, gas, or mineral field, well, or exploration site:]
30-24                      [(A)  the seller's ownership interest, if any, in
30-25    each field, well, or site being offered for sale;]
30-26                      [(B)  the total number of interests to be sold in
30-27    each field, well, or site being offered for sale; and]
 31-1                      [(C)  if, in selling an interest in any
 31-2    particular field, well, or site, reference is made to an
 31-3    investigation of the field, well, or site by the seller or anyone
 31-4    else:]
 31-5                            [(i)  the name, business address, telephone
 31-6    number, and professional credentials of the person who made the
 31-7    investigation; and]
 31-8                            [(ii)  a copy of the report and other
 31-9    documents relating to the investigation prepared by the person.]
31-10                 SUBCHAPTER E. ADDITIONAL INFORMATION FROM
31-11                       TELEPHONE SOLICITOR [SELLER]
31-12          Sec. 38.201.  INFORMATION POSTED OR AVAILABLE AT TELEPHONE
31-13    SOLICITOR'S [SELLER'S BUSINESS] LOCATION.  (a)  A telephone
31-14    solicitor [seller] shall post the registration certificate in a
31-15    conspicuous place at the location for which it is issued.
31-16          (b)  A telephone solicitor [seller] shall make available at
31-17    each of the telephone solicitor's [seller's] business locations
31-18    from which telephone solicitations are made a copy of the entire
31-19    registration statement and addenda, if any, for inspection by a
31-20    purchaser or representative of a governmental agency.
31-21          (c)  A telephone solicitor [seller] shall post in close
31-22    proximity to the registration certificate the name of each
31-23    individual in charge of the location.
31-24          Sec. 38.202.  DISCLOSURES TO SOLICITED PERSONS [PROSPECTIVE
31-25    PURCHASERS].  A telephone solicitor [seller] shall, when the
31-26    solicitation is made and before consummation of any sales
31-27    transaction or receipt of any contribution, provide to each
 32-1    purchaser or contributor:
 32-2                (1)  the complete street address or telephone number of
 32-3    the location from which the telephone solicitation is being made
 32-4    [salesperson is calling the purchaser] and, if different, the
 32-5    complete street address of the telephone solicitor's [seller's]
 32-6    principal location;
 32-7                (2)  if the telephone solicitor [seller] represents or
 32-8    implies that a purchaser or contributor will receive without charge
 32-9    a specified consumer good or service [item] or one consumer good or
32-10    service [item] from among designated consumer goods or services
32-11    [items], whether the consumer goods or services [items] are
32-12    designated as gifts, premiums, bonuses, prizes, or otherwise:
32-13                      (A)  the manner in which the telephone solicitor
32-14    decides which consumer good or service a particular purchaser or
32-15    contributor is to receive;
32-16                      (B)  for each consumer good or service, the odds
32-17    of a single purchaser or contributor receiving the consumer good or
32-18    service; and
32-19                      (C)  all rules and terms a purchaser or
32-20    contributor must meet to receive the consumer good or service
32-21    [information required to be filed by Sections 38.153(4)(D)(i),
32-22    (D)(ii), and (E), as appropriate; and]
32-23                      [(B)  the total number of individuals who have
32-24    actually received from the seller during the preceding 12 months
32-25    or, if the seller has not been in the business that long, during
32-26    the period the seller has been in business the item having the
32-27    greatest value and the item with the smallest odds of being
 33-1    received];
 33-2                (3)  if the telephone solicitor [seller] is offering to
 33-3    sell an interest in an oil, gas, or mineral field, well, or
 33-4    exploration site:
 33-5                      (A)  the telephone solicitor's ownership
 33-6    interest, if any, in each field, well, or site being offered for
 33-7    sale;
 33-8                      (B)  the total number of interests to be sold in
 33-9    each field, well, or site being offered for sale; and
33-10                      (C)  if, in selling an interest in any particular
33-11    field, well, or site, reference is made to an investigation of the
33-12    field, well, or site by the telephone solicitor or anyone else:
33-13                            (i)  the name, business address, telephone
33-14    number, and professional credentials of the person who made the
33-15    investigation; and
33-16                            (ii)  a copy of the report and other
33-17    documents relating to the investigation prepared by the person[,
33-18    the information required by Section 38.153(6)]; and
33-19                (4)  if the telephone solicitor [seller] represents
33-20    that a consumer good or service [an item] is being offered at a
33-21    price below that usually charged for the consumer good or service
33-22    [item], the name of the manufacturer of the consumer good or
33-23    provider of the service [item].
33-24          Sec. 38.203.  REFERENCE TO COMPLIANCE WITH STATUTE
33-25    PROHIBITED.  A telephone solicitor [seller] may not make or
33-26    authorize the making of a reference to its compliance with this
33-27    chapter to a solicited person [purchaser].
 34-1                          SUBCHAPTER F. OFFENSES
 34-2          Sec. 38.251.  VIOLATION OF CHAPTER.  (a)  A person commits an
 34-3    offense if the person knowingly violates Section 38.101, 38.106,
 34-4    38.201, 38.202, or 38.203.  Each violation constitutes a separate
 34-5    offense.
 34-6          (b)  An offense under this section is a Class A misdemeanor.
 34-7          Sec. 38.252.  TELEPHONE SOLICITATION [SALESPERSON] FOR
 34-8    UNREGISTERED TELEPHONE SOLICITOR [SELLER].  (a)  A person commits
 34-9    an offense if the person knowingly makes a telephone solicitation
34-10    [acts as a salesperson] on behalf of a telephone solicitor [seller]
34-11    who violates the registration requirements of this chapter.  Each
34-12    violation constitutes a separate offense.
34-13          (b)  An offense under this section is a Class A misdemeanor.
34-14          [Sec. 38.253.  REQUEST OF CREDIT CARD ACCOUNT NUMBER OR
34-15    CHECKING ACCOUNT NUMBER AFTER OFFER OF FREE ITEM.  (a)  A seller
34-16    commits an offense if the  seller knowingly:]
34-17                [(1)  represents or implies that a purchaser will
34-18    receive without charge an item or service, regardless of whether
34-19    designated as a gift, premium, bonus, prize, or otherwise; and]
34-20                [(2)  requests a credit card account number or checking
34-21    account number from the purchaser for the purpose of charging to
34-22    the credit card account or debiting from the checking account an
34-23    amount as a condition precedent to the purchaser's receipt of an
34-24    item.]
34-25          [(b)  An offense under this section is a Class A
34-26    misdemeanor.]
34-27                         SUBCHAPTER G. ENFORCEMENT
 35-1          Sec. 38.301.  INJUNCTION.  (a)  The attorney general may
 35-2    bring suit to enjoin a person from violating this chapter.
 35-3          (b)  The attorney general shall notify the defendant of the
 35-4    alleged prohibited conduct not later than the seventh day before
 35-5    the date the suit is filed except that if the attorney general
 35-6    intends to request that the court issue a temporary restraining
 35-7    order notice is not required.
 35-8          (c)  The attorney general is entitled to recover all
 35-9    reasonable costs of prosecuting the case, including court costs and
35-10    costs of investigation, depositions, witness fees, and attorney's
35-11    fees.
35-12          Sec. 38.302.  CIVIL PENALTIES.  (a)  A person who violates
35-13    this chapter is subject to a civil penalty of not more than $5,000
35-14    for each violation.
35-15          (b)  A person who violates an injunction issued under Section
35-16    38.301 is liable to this state for a civil penalty of not more than
35-17    $25,000 for each violation [and not more than $50,000 for all
35-18    violations of the injunction].
35-19          (c)  The attorney general may bring suit to recover a civil
35-20    penalty under Subsection (b) in the court that issued the original
35-21    injunction.
35-22          (d)  The party bringing the suit also is entitled to recover
35-23    all reasonable costs of prosecuting the case, including court costs
35-24    and costs of investigation, depositions, witness fees, and
35-25    attorney's fees.
35-26          Sec. 38.303.  DECEPTIVE TRADE PRACTICES.  A violation of this
35-27    chapter is a false, misleading, or deceptive act or practice under
 36-1    Subchapter E, Chapter 17, and any public or private right or remedy
 36-2    prescribed by that subchapter may be used to enforce this chapter.
 36-3          Sec. 38.304.  ACTION TO RECOVER AGAINST SECURITY.  (a)  A
 36-4    person who is injured by the bankruptcy of a telephone solicitor
 36-5    [seller] or the telephone solicitor's [seller's] breach of an
 36-6    agreement entered into during a telephone solicitation may bring an
 36-7    action to recover against the bond, letter of credit, or
 36-8    certificate of deposit required under Section 38.107.
 36-9          (b)  The liability of the surety on a bond provided under
36-10    Section 38.107 does not exceed the amount of the bond, regardless
36-11    of the number of claims filed or the aggregate amount claimed.  If
36-12    the amount claimed exceeds the amount of the bond, the surety shall
36-13    deposit the amount of the bond with the secretary of state for
36-14    distribution to claimants entitled to recovery, and the surety is
36-15    then relieved of all liability under the bond.
36-16          (c)  The attorney general may bring an action in the name of
36-17    the state to recover against the bond, letter of credit, or
36-18    certificate of deposit required under Section 38.107.
36-19          Sec. 38.305.  WAIVER PROHIBITED.  An attempted waiver of a
36-20    provision of this chapter is void.
36-21          SECTION 2.  Subchapter G, Chapter 55, Utilities Code, is
36-22    repealed.
36-23          SECTION 3.  The change in law made by this Act applies only
36-24    to a telephone solicitation made on or after the effective date of
36-25    this Act.  A  telephone solicitation made before the effective date
36-26    of this Act is governed by the law in effect when  the telephone
36-27    solicitation was made, and the former law is continued in effect
 37-1    for that purpose.
 37-2          SECTION 4.  This Act takes effect September 1, 1999, except
 37-3    that the requirements of Section 37.031, Business & Commerce Code,
 37-4    as added by this Act, apply only on and after January 1, 2000.
 37-5          SECTION 5.  The importance of this legislation and the
 37-6    crowded condition of the calendars in both houses create an
 37-7    emergency and an imperative public necessity that the
 37-8    constitutional rule requiring bills to be read on three several
 37-9    days in each house be suspended, and this rule is hereby suspended.