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.