By Nelson S.B. No. 1633
76R1373 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the sale or exchange of items at a flea market;
1-3 providing a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 35, Business & Commerce Code, is amended
1-6 by adding Subchapter J to read as follows:
1-7 SUBCHAPTER J. FLEA MARKETS
1-8 Sec. 35.111. DEFINITIONS. In this subchapter:
1-9 (1) "Device" and "drug" have the meanings assigned by
1-10 Section 431.002, Health and Safety Code.
1-11 (2) "Flea market" means:
1-12 (A) a location at which:
1-13 (i) booths or similar spaces are rented or
1-14 otherwise made available temporarily to two or more persons who
1-15 offer tangible personal property for sale or exchange; and
1-16 (ii) a fee is charged:
1-17 (a) for the sale or
1-18 exchange of personal property; or
1-19 (b) to prospective buyers
1-20 for admission to the location; or
1-21 (B) a location at which more than six times a
1-22 year for a total of not more than 120 days one or more persons
1-23 offer tangible personal property for sale or exchange.
1-24 (3) "Flea market vendor" means a person who uses a
2-1 booth or similar space to sell or exchange tangible personal
2-2 property at a flea market more than four times a year.
2-3 (4) "Nonprescription drug" means a nonnarcotic drug or
2-4 device that may be sold without a prescription and that is labeled
2-5 and packaged in compliance with applicable state or federal law.
2-6 The term does not include vitamins or an herbal product, dietary
2-7 supplement, or botanical extract.
2-8 (5) "Unused personal property" means tangible personal
2-9 property that has never been used after being acquired directly
2-10 from the producer or manufacturer of the property or a wholesaler
2-11 or retailer, including property in an original package or
2-12 container.
2-13 Sec. 35.112. EXEMPT EVENTS. This subchapter does not apply
2-14 to an:
2-15 (1) industry or association trade show;
2-16 (2) event organized for the exclusive benefit of a
2-17 community chest, fund, foundation, association, or corporation
2-18 organized and operated for religious, educational, or charitable
2-19 purposes, if no portion of any fee charged vendors or prospective
2-20 purchasers and none of the gross receipts or net earnings of the
2-21 sale or exchange of personal property benefits a private
2-22 shareholder or person participating in the event or the
2-23 organization of the event; or
2-24 (3) event or location at which all of the personal
2-25 property offered for sale or on display is new and all persons
2-26 selling, exchanging, offering, or displaying personal property for
2-27 sale or exchange are manufacturers of the property or authorized
3-1 representatives or distributors of the manufacturer.
3-2 Sec. 35.113. SALE OF ITEMS AT FLEA MARKET. (a) A person
3-3 commits an offense if the person sells or offers for sale at a flea
3-4 market:
3-5 (1) packaged food of a type usually consumed by
3-6 children younger than two years of age;
3-7 (2) a nonprescription drug; or
3-8 (3) a device.
3-9 (b) A person who provides spaces at a flea market commits an
3-10 offense if the person knowingly permits at the flea market a sale
3-11 prohibited by Subsection (a).
3-12 (c) It is a defense to prosecution under Subsection (a) or
3-13 (b) that:
3-14 (1) the person selling the item is authorized in
3-15 writing to sell the item at retail by the manufacturer of the item
3-16 or the manufacturer's authorized distributor, the authorization
3-17 states the person's name, and the person provides for examination
3-18 the authorization to any person at the flea market who requests to
3-19 see the authorization; or
3-20 (2) only a sample of the item or a catalog or brochure
3-21 displaying the item was available at the flea market and the item
3-22 sold was not delivered to the buyer at the flea market.
3-23 (d) A person commits an offense if the person provides to
3-24 another person an authorization under Subsection (c)(1); and:
3-25 (1) the authorization is forged or contains a false
3-26 statement; or
3-27 (2) the person displaying the authorization obtained
4-1 the authorization by fraud.
4-2 (e) An offense under this section is a Class C misdemeanor,
4-3 unless it is shown on the trial of an offense under this section
4-4 that the person has previously been convicted of a violation of
4-5 this section. If it is shown at the trial for the offense that
4-6 the person has been previously convicted under this section one
4-7 time, the offense is a Class B misdemeanor. If it is shown at the
4-8 trial for the offense that the person has been previously convicted
4-9 under this section two or more times, the offense is a Class A
4-10 misdemeanor.
4-11 Sec. 35.114. PURCHASE OF GOODS BY FLEA MARKET VENDOR. (a)
4-12 This section does not apply to the sale or exchange of the
4-13 following property at a flea market:
4-14 (1) a motor vehicle or trailer that is:
4-15 (A) required to be registered in this state; or
4-16 (B) subject to Chapter 501, Transportation Code;
4-17 (2) wood for fuel purposes, ice, or livestock;
4-18 (3) arts or crafts by a person producing the arts or
4-19 crafts; or
4-20 (4) unused property the style, packaging, or material
4-21 of which clearly indicates the property:
4-22 (A) is no longer available for sale at retail;
4-23 or
4-24 (B) was manufactured or produced more than five
4-25 years ago.
4-26 (b) A flea market vendor shall create or maintain in
4-27 connection with a purchase of unused personal property acquired by
5-1 the vendor for sale or exchange at a flea market a purchase receipt
5-2 that must contain:
5-3 (1) the date of the transaction;
5-4 (2) the name and address of the seller of the
5-5 property;
5-6 (3) a description of each item of unused personal
5-7 property purchased from the seller, including the item's serial and
5-8 model number, if any;
5-9 (4) the price paid for each item of unused personal
5-10 property purchased from the seller;
5-11 (5) the signature of the vendor; and
5-12 (6) the signature of the seller.
5-13 (c) A flea market vendor shall retain the original of each
5-14 purchase receipt until the second anniversary of the date on which
5-15 the property was purchased.
5-16 (d) A flea market vendor may not:
5-17 (1) falsify or destroy a purchase receipt required
5-18 under this section;
5-19 (2) fail or refuse to make a purchase receipt
5-20 available for examination within a reasonable time to a person who
5-21 requests to see the purchase receipt; or
5-22 (3) be required to carry or present a purchase receipt
5-23 without reasonable notice.
5-24 (e) An offense under this section is a Class C misdemeanor,
5-25 unless it is shown on the trial of an offense under this section
5-26 that the person has previously been convicted of a violation of
5-27 this section. If it is shown at the trial for the offense that
6-1 the person has been previously convicted under this section one
6-2 time, the offense is a Class B misdemeanor. If it is shown at the
6-3 trial for the offense that the person has been previously convicted
6-4 under this section two or more times, the offense is a Class A
6-5 misdemeanor.
6-6 SECTION 2. This Act takes effect September 1, 1999.
6-7 SECTION 3. The importance of this legislation and the
6-8 crowded condition of the calendars in both houses create an
6-9 emergency and an imperative public necessity that the
6-10 constitutional rule requiring bills to be read on three several
6-11 days in each house be suspended, and this rule is hereby suspended.