By Truan S.B. No. 106
76R1268 DWS-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a telecommunication for the delivery of an
1-3 advertisement; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 4, Business & Commerce Code, is amended by
1-6 adding Chapter 42 to read as follows:
1-7 CHAPTER 42. ADVERTISEMENT DELIVERED BY TELECOMMUNICATION
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 42.001. DEFINITIONS. In this chapter:
1-10 (1) "Advertisement" means a message soliciting the
1-11 sale of a good or service, soliciting a contribution, or otherwise
1-12 seeking a monetary benefit for the person who initiated the message
1-13 or on whose behalf the message is initiated.
1-14 (2) "Internet" means the largest nonproprietary
1-15 nonprofit cooperative public computer network, popularly known as
1-16 the Internet.
1-17 (3) "Telecommunication" means:
1-18 (A) a telephone call, including a call made by
1-19 an automated dialing announcing device;
1-20 (B) a transmission to or from a facsimile device
1-21 or other telecopier; or
1-22 (C) a communication made over the Internet or a
1-23 similar public computer network.
1-24 (Sections 42.002-42.010 reserved for expansion
2-1 SUBCHAPTER B. DELIVERY OF ADVERTISEMENT BY TELECOMMUNICATION
2-2 Sec. 42.011. CERTAIN ADVERTISEMENTS PROHIBITED. (a) A
2-3 person may not initiate a telecommunication for the delivery of an
2-4 advertisement if the delivery causes the recipient of the
2-5 advertisement or a service provider who stores or transfers the
2-6 advertisement to incur a fee, expense, or other damages.
2-7 (b) It is a defense to an action under this subchapter that
2-8 the plaintiff, in writing or electronic format, requested or
2-9 consented to the initiation of the telecommunication.
2-10 Sec. 42.012. CIVIL ACTION. A person damaged by a violation
2-11 of Section 42.011 may bring an action against the person who
2-12 initiated the telecommunication for one or more of the following:
2-13 (1) an injunction;
2-14 (2) damages in the amount provided by Section 42.013;
2-15 (3) restitution of any property acquired as a result
2-16 of the violation;
2-17 (4) court costs and reasonable attorney's fees; and
2-18 (5) any other relief the court considers proper.
2-19 Sec. 42.013. AMOUNT OF DAMAGES. A plaintiff prevailing in an
2-20 action for damages under this subchapter is entitled to the greater
2-21 of $500 for each violation or the person's actual damages, except
2-22 that:
2-23 (1) if the trier of fact finds that the defendant
2-24 committed the violation knowingly, the plaintiff is entitled to the
2-25 greater of $1,500 for each violation or three times the person's
2-26 actual damages; or
2-27 (2) if the trier of fact finds that the defendant
3-1 committed the violation intentionally, the plaintiff is entitled to
3-2 the greater of $3,000 for each violation or six times the person's
3-3 actual damages.
3-4 Sec. 42.014. GROUNDLESS ACTION; HARASSMENT. If the court
3-5 finds that an action brought under this subchapter is brought for
3-6 the purpose of harassment or is groundless and otherwise brought in
3-7 bad faith, the defendant is entitled to recover court costs and
3-8 reasonable attorney's fees.
3-9 Sec. 42.015. FAILURE TO SATISFY JUDGMENT. (a) Failure of a
3-10 defendant to satisfy a judgment against the defendant under this
3-11 subchapter before the expiration of three months after the date the
3-12 judgment is final is grounds for revocation of the defendant's
3-13 license or other authority to do business in this state or for
3-14 appointment of a receiver to take over the defendant's affairs.
3-15 The revocation or appointment must be made by:
3-16 (1) an agency authorized to make such a revocation or
3-17 appointment; or
3-18 (2) if no agency has authority to make such a
3-19 revocation or appointment, an order of the court that rendered the
3-20 judgment.
3-21 (b) The cost of any receivership under this section shall be
3-22 paid by the defendant.
3-23 Sec. 42.016. JURISDICTION. This subchapter applies to a
3-24 telecommunication for the delivery of an advertisement regardless
3-25 of whether the person initiating the telecommunication resides in
3-26 this state or the telecommunication is initiated in this state, if
3-27 the person who initiates the telecommunication knows or with
4-1 reasonable diligence should know that the recipient of the
4-2 advertisement or a service provider storing or transferring the
4-3 advertisement is a resident of this state.
4-4 Sec. 42.017. VENUE. In addition to venue otherwise provided
4-5 by law, an action under this subchapter may be brought in the
4-6 county in which:
4-7 (1) the plaintiff resides; or
4-8 (2) the telecommunication is initiated.
4-9 (Sections 42.018-42.030 reserved for expansion
4-10 SUBCHAPTER C. INFORMATION CONCERNING ORIGIN OR ROUTING OF
4-11 TELECOMMUNICATION
4-12 Sec. 42.031. PROVIDING FALSE INFORMATION ON POINT OF ORIGIN
4-13 OR ROUTING. A person commits an offense if the person initiates a
4-14 telecommunication for the delivery of an advertisement that
4-15 contains false information as to the point of origin or routing of
4-16 the telecommunication.
4-17 Sec. 42.032. CRIMINAL PENALTY. An offense under Section
4-18 42.031 is a Class B misdemeanor, except that if the offense is
4-19 committed knowingly, the offense is a Class A misdemeanor.
4-20 SECTION 2. Section 35.47, Business & Commerce Code, is
4-21 repealed.
4-22 SECTION 3. This Act takes effect September 1, 1999.
4-23 SECTION 4. The importance of this legislation and the
4-24 crowded condition of the calendars in both houses create an
4-25 emergency and an imperative public necessity that the
4-26 constitutional rule requiring bills to be read on three several
4-27 days in each house be suspended, and this rule is hereby suspended.