1-1 By: Reyna of Bexar (Senate Sponsor - Wentworth) H.B. No. 695
1-2 (In the Senate - Received from the House April 24, 2001;
1-3 April 25, 2001, read first time and referred to Committee on
1-4 Business and Commerce; May 3, 2001, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 7, Nays
1-6 0; May 3, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 695 By: Fraser
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of certain occupations by the Texas Real
1-11 Estate Commission; providing penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 6(a), The Real Estate License Act (Article
1-14 6573a, Vernon's Texas Civil Statutes), is amended to read as
1-15 follows:
1-16 (a) A person desiring to act as a real estate broker in this
1-17 state shall file an application for a license with the commission
1-18 on a form prescribed by the commission. [A broker desiring to
1-19 engage a person to participate in real estate brokerage activity
1-20 shall join the person in filing an application for a salesperson
1-21 license on a form prescribed by the commission.] A person
1-22 previously licensed as a broker may apply for inactive status. A
1-23 person desiring to act as a real estate salesperson in this state
1-24 must [previously licensed as a salesperson may] apply for a
1-25 salesperson license on a form prescribed by the commission. If the
1-26 person satisfies all requirements for a salesperson license, the
1-27 commission may issue an inactive salesperson license to the person.
1-28 The person may not act as a salesperson unless the person is
1-29 sponsored by a licensed broker who has notified the commission and
1-30 paid the fee for issuance of an active license to the salesperson
1-31 as required by Section 13(b) of this Act [inactive status without
1-32 the participation of a broker. The person must apply for inactive
1-33 status on a form prescribed by the commission not later than the
1-34 first anniversary of the date of the expiration of the broker or
1-35 salesperson license].
1-36 SECTION 2. Sections 7(b), (d), and (e), The Real Estate
1-37 License Act (Article 6573a, Vernon's Texas Civil Statutes), are
1-38 amended to read as follows:
1-39 (b) The commission by rule may:
1-40 (1) prescribe the content of the core real estate
1-41 courses listed in Subsection (a) of this section; and
1-42 (2) establish the title and content of additional core
1-43 real estate courses.
1-44 (d) Each applicant for a broker license shall furnish the
1-45 commission satisfactory evidence that the applicant has had not
1-46 less than two years active experience in this state as a licensed
1-47 real estate salesperson or broker during the 36-month period
1-48 immediately preceding the filing of the application; and, in
1-49 addition, shall furnish the commission satisfactory evidence of
1-50 having completed successfully 60 semester hours, or equivalent
1-51 classroom hours, of postsecondary education, of which a minimum of
1-52 18 semester hours or equivalent classroom hours must be completed
1-53 in core real estate courses. The remaining 42 hours must be
1-54 completed in core real estate courses or related [postsecondary
1-55 education] courses accepted by the commission. These
1-56 qualifications for a broker license may not be required of an
1-57 applicant who, at the time of making the application, is duly
1-58 licensed as a real estate broker by any other state in the United
1-59 States if that state's requirements for licensure are comparable to
1-60 those of Texas. As a prerequisite for applying for a broker
1-61 license, those persons licensed as salespersons subject to the
1-62 annual education requirements provided by Subsection (e) of this
1-63 section shall, as part of the hours required by this subsection,
1-64 furnish the commission satisfactory evidence of having completed
2-1 all the requirements of Subsection (e) of this section.
2-2 (e) Each applicant for a salesperson license shall furnish
2-3 the commission satisfactory evidence of having completed 12
2-4 semester hours, or equivalent classroom hours, of postsecondary
2-5 education, eight [six] hours of which must be completed in core
2-6 real estate courses, of which a minimum of four [two] hours must be
2-7 completed in Principles of Real Estate as described in Subsection
2-8 (a)(1) of this section, a minimum of two hours must be completed in
2-9 Law of Agency as described in Subsection (a)(10) of this section,
2-10 and a minimum of two hours must be completed in Law of Contracts as
2-11 described in Subsection (a)(11) of this section. The remaining
2-12 four [six] hours must [shall] be completed in core real estate
2-13 courses or related courses. As a condition for the first renewal
2-14 of a salesperson license, the applicant shall furnish the
2-15 commission satisfactory evidence of having completed a minimum of
2-16 14 semester hours, or equivalent classroom hours, 10 [eight] hours
2-17 of which must be completed in core real estate courses. As a
2-18 condition for the second renewal of a salesperson license, the
2-19 applicant shall furnish the commission satisfactory evidence of
2-20 having completed a minimum of 16 semester hours, or equivalent
2-21 classroom hours, 12 [10] hours of which must be completed in core
2-22 real estate courses. As a condition for the third renewal of a
2-23 salesperson license, the applicant shall furnish the commission
2-24 satisfactory evidence of having completed a minimum of 18 semester
2-25 hours, or equivalent classroom hours, 14 [12] hours of which must
2-26 be completed in core real estate courses.
2-27 SECTION 3. Section 7A(a), The Real Estate License Act
2-28 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
2-29 as follows:
2-30 (a) To renew an active real estate broker license or an
2-31 active real estate salesperson license that is not subject to the
2-32 annual education requirements of this Act, the licensee must
2-33 provide the commission proof of attendance at at least 15 classroom
2-34 hours of continuing education courses approved by the commission
2-35 during the term of the current license. The commission by rule may
2-36 prescribe the title, content, and duration of continuing education
2-37 courses that a licensee must attend to renew a license and may
2-38 provide for the substitution of relevant educational experience or
2-39 correspondence courses approved by the commission instead of
2-40 classroom attendance. In addition, supervised video instruction
2-41 may be approved by the commission as a course counting as classroom
2-42 hours of mandatory continuing education. At least six hours of
2-43 instruction must be devoted to the rules of the commission, fair
2-44 housing laws, landlord-tenant law and other Property Code issues,
2-45 agency laws, antitrust laws, the Deceptive Trade Practices-Consumer
2-46 Protection Act (Subchapter E, Chapter 17, Business & Commerce
2-47 Code), disclosures to buyers, landlords, tenants, and sellers,
2-48 current contract and addendum forms, the unauthorized practice of
2-49 law, case studies involving violations of laws and regulations,
2-50 current Federal Housing Administration and Department of Veterans
2-51 Affairs regulations, tax laws, property tax consulting laws and
2-52 legal issues, or other legal topics approved by the commission.
2-53 The remaining hours may be devoted to other real estate-related
2-54 topics approved by the commission. The commission may consider
2-55 equivalent courses for continuing education credit. Property tax
2-56 consulting laws and legal issues include but are not limited to the
2-57 Tax Code, preparation of property tax reports, the unauthorized
2-58 practice of law, agency laws, tax laws, laws concerning property
2-59 taxes or assessments, deceptive trade practices, contract forms and
2-60 addendum, and other legal topics approved by the commission. Real
2-61 estate related courses approved by the State Bar of Texas for
2-62 minimum continuing legal education participatory credit and core
2-63 real estate courses under Section 7(a) of this Act shall
2-64 automatically be approved as mandatory continuing education courses
2-65 under this Act. The commission may not require examinations except
2-66 for correspondence courses or courses offered by alternative
2-67 delivery systems such as computers. Daily classroom course
2-68 segments must be at least one hour long but not more than 10 hours
2-69 long.
3-1 SECTION 4. Sections 8(c) and (f), The Real Estate License Act
3-2 (Article 6573a, Vernon's Texas Civil Statutes), are amended to read
3-3 as follows:
3-4 (c) On determination by the commission at any time that [If
3-5 on December 31 of any year] the balance remaining in the real
3-6 estate recovery fund is less than $1 million, each real estate
3-7 broker and each real estate salesperson, on the next renewal of the
3-8 license, shall pay, in addition to the license renewal fee, a fee
3-9 of $10, which shall be deposited in the real estate recovery fund,
3-10 or a pro rata share of the amount necessary to bring the fund to
3-11 $1.7 million, whichever is less. If on December 31 of any year the
3-12 balance remaining in the real estate recovery fund is more than
3-13 $3.5 million or more than the total amount of claims paid from the
3-14 fund during the previous four fiscal years, whichever is greater,
3-15 the amount of money in excess of the greater amount shall be
3-16 transferred to the general revenue fund. To ensure the
3-17 availability of a sufficient amount to pay anticipated claims on
3-18 the fund, the commission by rule may provide for the collection of
3-19 assessments at different times and under conditions other than
3-20 those specified by this Act.
3-21 (f) The court shall proceed on the application forthwith.
3-22 On the hearing on the application, the aggrieved person is required
3-23 to show that:
3-24 (1) the judgment is based on facts allowing recovery
3-25 under Subsection (a) of this section;
3-26 (2) the person is not a spouse of the debtor, or the
3-27 personal representative of the spouse; and the person is not a
3-28 registrant under Section 9A of this Act or a real estate broker or
3-29 salesperson, as defined by this Act, who is seeking to recover a
3-30 real estate commission or any compensation in the transaction or
3-31 transactions for which the application for payment is made;
3-32 (3) [the person has obtained a judgment under
3-33 Subsection (e) of this section that is not subject to a stay or
3-34 discharge in bankruptcy, stating the amount of the judgment and the
3-35 amount owing on the judgment at the date of the application;]
3-36 [(4)] based on the best available information, the
3-37 judgment debtor lacks sufficient attachable assets in this state or
3-38 any other state to satisfy the judgment; and
3-39 (4) [(5)] the amount that may be realized from the
3-40 sale of real or personal property or other assets liable to be sold
3-41 or applied in satisfaction of the judgment and the balance
3-42 remaining due on the judgment after application of the amount that
3-43 may be realized.
3-44 SECTION 5. Section 11, The Real Estate License Act (Article
3-45 6573a, Vernon's Texas Civil Statutes), is amended to read as
3-46 follows:
3-47 Sec. 11. The commission shall charge and collect the
3-48 following fees:
3-49 (1) a fee not to exceed $100 for the filing of an
3-50 original application for a real estate broker license;
3-51 (2) a fee not to exceed $100 for annual renewal of a
3-52 real estate broker license;
3-53 (3) a fee not to exceed $50 for the filing of an
3-54 original application for a real estate salesperson license;
3-55 (4) a fee not to exceed $50 for annual renewal of a
3-56 real estate salesperson license;
3-57 (5) a fee not to exceed $100 [$50] for an application
3-58 for a license examination;
3-59 (6) a fee not to exceed $20 for filing a request for a
3-60 license for each additional office or place of business;
3-61 (7) a fee not to exceed $20 for filing a request for a
3-62 license or certificate of registration for a change of place of
3-63 business, change of name, return to active status, or change of
3-64 sponsoring broker;
3-65 (8) a fee not to exceed $20 for filing a request to
3-66 replace a license or certificate of registration lost or destroyed;
3-67 (9) a fee not to exceed $400 for filing an application
3-68 for approval of an education program under Section 7(f) of this
3-69 Act;
4-1 (10) a fee not to exceed $200 a year for operation of
4-2 an education program under Section 7(f) of this Act;
4-3 (11) a fee of $20 [$15] for transcript evaluation;
4-4 (12) a fee not to exceed $10 for preparing a license
4-5 or registration history;
4-6 (13) a fee not to exceed $50 for the filing of an
4-7 application for a moral character determination;
4-8 (14) an annual fee of $20 from each real estate broker
4-9 and each registrant under Section 9A of this Act to be transmitted
4-10 to Texas A&M University for the Texas Real Estate Research Center
4-11 as provided by Section 5(m) of this Act;
4-12 (15) an annual fee of $17.50 from each real estate
4-13 salesperson to be transmitted to Texas A&M University for the Texas
4-14 Real Estate Research Center as provided by Section 5(m) of this
4-15 Act;
4-16 (16) an annual fee of $80 from each registrant under
4-17 Section 9A of this Act; and
4-18 (17) any fee authorized under Section 8 of this Act
4-19 for the real estate recovery fund.
4-20 SECTION 6. Section 15(a), The Real Estate License Act
4-21 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
4-22 as follows:
4-23 (a) The commission may, on its own motion, and shall, on the
4-24 signed complaint in writing of any person [a consumer or service
4-25 recipient], provided the complaint, or the complaint together with
4-26 evidence, documentary or otherwise, presented in connection with
4-27 the complaint, provides reasonable cause, investigate the actions
4-28 and records of a real estate broker or real estate salesperson. The
4-29 commission may suspend or revoke a license issued under the
4-30 provisions of this Act or take other disciplinary action authorized
4-31 by this Act at any time when it has been determined that:
4-32 (1) the licensee has entered a plea of guilty or nolo
4-33 contendere to, or been found guilty of, or been convicted of, a
4-34 felony, in which fraud is an essential element, and the time for
4-35 appeal has elapsed or the judgment or conviction has been affirmed
4-36 on appeal, irrespective of an order granting probation following
4-37 such conviction, suspending the imposition of sentence;
4-38 (2) the licensee has procured, or attempted to
4-39 procure, a real estate license, for the licensee or a salesperson,
4-40 by fraud, misrepresentation or deceit, or by making a material
4-41 misstatement of fact in an application for a real estate license;
4-42 (3) the licensee, when selling, buying, trading, or
4-43 renting real property in the licensee's own name, engaged in
4-44 misrepresentation or dishonest or fraudulent action;
4-45 (4) the licensee has failed within a reasonable time
4-46 to make good a check issued to the commission after the commission
4-47 has mailed a request for payment by certified mail to the
4-48 licensee's last known business address as reflected by the
4-49 commission's records;
4-50 (5) the licensee has disregarded or violated a
4-51 provision of this Act;
4-52 (6) the licensee, while performing an act constituting
4-53 an act of a broker or salesperson, as defined by this Act, has been
4-54 guilty of:
4-55 (A) making a material misrepresentation, or
4-56 failing to disclose to a potential purchaser any latent structural
4-57 defect or any other defect known to the broker or salesperson.
4-58 Latent structural defects and other defects do not refer to trivial
4-59 or insignificant defects but refer to those defects that would be a
4-60 significant factor to a reasonable and prudent purchaser in making
4-61 a decision to purchase;
4-62 (B) making a false promise of a character likely
4-63 to influence, persuade, or induce any person to enter into a
4-64 contract or agreement when the licensee could not or did not intend
4-65 to keep such promise;
4-66 (C) pursuing a continued and flagrant course of
4-67 misrepresentation or making of false promises through agents,
4-68 salespersons, advertising, or otherwise;
4-69 (D) failing to make clear, to all parties to a
5-1 transaction, which party the licensee is acting for, or receiving
5-2 compensation from more than one party except with the full
5-3 knowledge and consent of all parties;
5-4 (E) failing within a reasonable time properly to
5-5 account for or remit money coming into the licensee's possession
5-6 which belongs to others, or commingling money belonging to others
5-7 with the licensee's own funds;
5-8 (F) paying a commission or fees to or dividing a
5-9 commission or fees with anyone not licensed as a real estate broker
5-10 or salesperson in this state or in any other state for compensation
5-11 for services as a real estate agent;
5-12 (G) failing to specify a definite termination
5-13 date that is not subject to prior notice in a contract, other than
5-14 a contract to perform property management services, in which the
5-15 licensee agrees to perform services for which a license is required
5-16 under this Act;
5-17 (H) accepting, receiving, or charging an
5-18 undisclosed commission, rebate, or direct profit on expenditures
5-19 made for a principal;
5-20 (I) soliciting, selling, or offering for sale
5-21 real property under a scheme or program that constitutes a lottery
5-22 or deceptive practice;
5-23 (J) acting in the dual capacity of broker and
5-24 undisclosed principal in a transaction;
5-25 (K) guaranteeing, authorizing, or permitting a
5-26 person to guarantee that future profits will result from a resale
5-27 of real property;
5-28 (L) placing a sign on real property offering it
5-29 for sale, lease, or rent without the written consent of the owner
5-30 or the owner's authorized agent;
5-31 (M) inducing or attempting to induce a party to
5-32 a contract of sale or lease to break the contract for the purpose
5-33 of substituting in lieu thereof a new contract;
5-34 (N) negotiating or attempting to negotiate the
5-35 sale, exchange, lease, or rental of real property with an owner,
5-36 lessor, buyer, or tenant, knowing that the owner, lessor, buyer, or
5-37 tenant had a written outstanding contract, granting exclusive
5-38 agency in connection with the transaction to another real estate
5-39 broker;
5-40 (O) offering real property for sale or for lease
5-41 without the knowledge and consent of the owner or the owner's
5-42 authorized agent, or on terms other than those authorized by the
5-43 owner or the owner's authorized agent;
5-44 (P) publishing, or causing to be published, an
5-45 advertisement including, but not limited to, advertising by
5-46 newspaper, radio, television, the Internet, or display which is
5-47 misleading, or which is likely to deceive the public, or which in
5-48 any manner tends to create a misleading impression, or which fails
5-49 to identify the person causing the advertisement to be published as
5-50 a licensed real estate broker or agent;
5-51 (Q) having knowingly withheld from or inserted
5-52 in a statement of account or invoice, a statement that made it
5-53 inaccurate in a material particular;
5-54 (R) publishing or circulating an unjustified or
5-55 unwarranted threat of legal proceedings, or other action;
5-56 (S) establishing an association, by employment
5-57 or otherwise, with an unlicensed person who is expected or required
5-58 to act as a real estate licensee, or aiding or abetting or
5-59 conspiring with a person to circumvent the requirements of this
5-60 Act;
5-61 (T) failing or refusing on demand to furnish
5-62 copies of a document pertaining to a transaction dealing with real
5-63 estate to a person whose signature is affixed to the document;
5-64 (U) failing to advise a purchaser in writing
5-65 before the closing of a transaction that the purchaser should
5-66 either have the abstract covering the real estate which is the
5-67 subject of the contract examined by an attorney of the purchaser's
5-68 own selection, or be furnished with or obtain a policy of title
5-69 insurance;
6-1 (V) conduct which constitutes dishonest
6-2 dealings, bad faith, or untrustworthiness;
6-3 (W) acting negligently or incompetently in
6-4 performing an act for which a person is required to hold a real
6-5 estate license;
6-6 (X) disregarding or violating a provision of
6-7 this Act;
6-8 (Y) failing within a reasonable time to deposit
6-9 money received as escrow agent in a real estate transaction, either
6-10 in trust with a title company authorized to do business in this
6-11 state, or in a custodial, trust, or escrow account maintained for
6-12 that purpose in a banking institution authorized to do business in
6-13 this state;
6-14 (Z) disbursing money deposited in a custodial,
6-15 trust, or escrow account, as provided in Subsection (Y) before the
6-16 transaction concerned has been consummated or finally otherwise
6-17 terminated; or
6-18 (AA) discriminating against an owner, potential
6-19 purchaser, lessor, or potential lessee on the basis of race, color,
6-20 religion, sex, national origin, or ancestry, including directing
6-21 prospective home buyers or lessees interested in equivalent
6-22 properties to different areas according to the race, color,
6-23 religion, sex, national origin, or ancestry of the potential owner
6-24 or lessee;
6-25 (7) the licensee has failed or refused on demand to
6-26 produce a document, book, or record in the licensee's possession
6-27 concerning a real estate transaction conducted by the licensee for
6-28 inspection by the commission or its authorized personnel or
6-29 representative;
6-30 (8) the licensee has failed within a reasonable time
6-31 to provide information requested by the commission as a result of a
6-32 formal or informal complaint to the commission which would indicate
6-33 a violation of this Act; or
6-34 (9) the licensee has failed without just cause to
6-35 surrender to the rightful owner, on demand, a document or
6-36 instrument coming into the licensee's possession.
6-37 SECTION 7. Section 15B(e), The Real Estate License Act
6-38 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
6-39 as follows:
6-40 (e) The commission may authorize a commission employee to
6-41 file a signed written complaint against a licensee and to conduct
6-42 an investigation if:
6-43 (1) a judgment against the licensee has been paid from
6-44 a recovery fund established under this Act;
6-45 (2) the licensee is convicted of a criminal offense
6-46 that may constitute grounds for the suspension or revocation of the
6-47 licensee's license; [or]
6-48 (3) the licensee fails to make good a check issued to
6-49 the commission;
6-50 (4) the licensee fails to complete required continuing
6-51 education within the period prescribed by commission rules adopted
6-52 under Section 7A(g) of this Act; or
6-53 (5) the licensee fails to provide, within a reasonable
6-54 time, information requested by the commission in connection with an
6-55 application to renew a license.
6-56 SECTION 8. Section 19(a), The Real Estate License Act
6-57 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
6-58 as follows:
6-59 (a) A person acting as a real estate broker or real estate
6-60 salesperson without first obtaining a license or a person required
6-61 to register under Section 9A of this Act who sells, purchases,
6-62 leases, or transfers a right-of-way or easement without first
6-63 obtaining a certificate of registration under Section 9A of this
6-64 Act commits an offense. An offense under this subsection is a
6-65 Class A misdemeanor [is guilty of a misdemeanor and on conviction
6-66 shall be punishable by a fine of not less than $100 nor more than
6-67 $500, or by imprisonment in the county jail for a term not to
6-68 exceed one year, or both; and if a person other than an individual,
6-69 shall be punishable by a fine of not less than $1,000 nor more than
7-1 $2,000. A person, on conviction of a second or subsequent offense,
7-2 shall be punishable by a fine of not less than $500 nor more than
7-3 $1,000, or by imprisonment for a term not to exceed two years, or
7-4 both; and if a person other than an individual, shall be punishable
7-5 by a fine of not less than $2,000 nor more than $5,000].
7-6 SECTION 9. Sections 19A(a), (b), (d), (h), (m), and (o), The
7-7 Real Estate License Act (Article 6573a, Vernon's Texas Civil
7-8 Statutes), are amended to read as follows:
7-9 (a) If a person [licensed under this Act] violates this Act
7-10 or a rule or order adopted by the commission under this Act, the
7-11 commission may assess an administrative penalty against the person
7-12 as provided by this section.
7-13 (b) The penalty for each violation shall be set in an amount
7-14 not to exceed $1,000. Each day a violation continues or occurs may
7-15 be considered a separate violation for purposes of penalty
7-16 assessment if the commission finds that the person charged:
7-17 (1) engaged in an activity for which a real estate
7-18 broker or real estate salesperson license is required without
7-19 holding a license; and
7-20 (2) was not licensed by the commission as a real
7-21 estate broker or real estate salesperson at any time in the four
7-22 years preceding the date of the violation.
7-23 (d) If, after investigation of a possible violation and the
7-24 facts surrounding that possible violation, the administrator
7-25 determines that a violation has occurred, the administrator may
7-26 issue a violation report stating the facts on which the conclusion
7-27 that a violation occurred is based, recommending that an
7-28 administrative penalty under this section be imposed on the person
7-29 charged, and recommending the amount of that proposed penalty. The
7-30 administrator shall base the recommended amount of the proposed
7-31 penalty on the seriousness of the violation determined by the
7-32 consideration of the factors set forth in Subsection (c) of this
7-33 section. The commission may authorize the administrator to
7-34 delegate to another commission employee the administrator's
7-35 authority to act under this section.
7-36 (h) If the person charged requests a hearing or fails to
7-37 timely respond to the notice, the administrator shall set a hearing
7-38 and give notice of the hearing. The hearing shall be held by a
7-39 hearing examiner designated by the administrator. The hearing
7-40 examiner shall make findings of fact and conclusions of law and
7-41 promptly issue to the commission a proposal for decision as to the
7-42 occurrence of the violation, including a recommendation as to the
7-43 amount of the proposed penalty if a penalty is warranted. Based on
7-44 the findings of fact, conclusions of law, and recommendations of
7-45 the hearing examiner, the commission by order may find a violation
7-46 has occurred and may assess a penalty or may find that no violation
7-47 has occurred. All proceedings under this subsection are subject to
7-48 Chapter 2001, Government Code. The commission may authorize the
7-49 hearing examiner to conduct the hearing and enter a final decision
7-50 [the Administrative Procedure and Texas Register Act (Article
7-51 6252-13a, Vernon's Texas Civil Statutes)].
7-52 (m) Judicial review of the order or decision of the
7-53 commission assessing the penalty shall be under the substantial
7-54 evidence rule and shall be instituted by filing a petition with a
7-55 district court in Travis County, as provided by Chapter 2001,
7-56 Government Code [Section 19, Administrative Procedure and Texas
7-57 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)].
7-58 (o) A penalty collected under this section for a violation
7-59 by a person licensed as a real estate broker or salesperson shall
7-60 be deposited in the real estate recovery fund. A penalty collected
7-61 under this section for a violation by a person licensed or
7-62 registered as a real estate inspector shall be deposited in the
7-63 real estate inspection recovery fund. A penalty collected under
7-64 this section for a violation by a person who is not licensed under
7-65 this Act shall be deposited in the real estate recovery fund or the
7-66 real estate inspection recovery fund, as determined by the
7-67 commission.
7-68 SECTION 10. Sections 23(f)(3)-(6), The Real Estate License
7-69 Act (Article 6573a, Vernon's Texas Civil Statutes), are amended to
8-1 read as follows:
8-2 (3) [If a person's license has been expired for 90
8-3 days or less, the person may renew the license by paying to the
8-4 commission the required renewal fee and a fee that is one-half of
8-5 the examination fee, if any, for the registration or license.]
8-6 [(4) If a person's license has been expired for longer
8-7 than 90 days but less than one year, the person may renew the
8-8 license by paying to the commission all unpaid renewal fees and a
8-9 fee that is equal to the examination fee, if any, for the license.]
8-10 [(5)] If a person's license expires [has been expired
8-11 for one year or longer], the person may not renew the license. The
8-12 person may obtain a new license by submitting to reexamination, if
8-13 required, and complying with the requirements and procedures for
8-14 obtaining an original license. [However, the commission may renew
8-15 without reexamination an expired license of a person who was
8-16 licensed in this state, moved to another state, and is currently
8-17 licensed and has been in practice in the other state for the one
8-18 year preceding application. The person must pay to the commission
8-19 a fee that is equal to the examination fee for the license.]
8-20 (4) [(6)] At least 30 days before the expiration of a
8-21 person's license, the commission shall send written notice of the
8-22 impending license expiration to the person at the person's last
8-23 known address according to the records of the commission.
8-24 SECTION 11. Section 23(h)(1), The Real Estate License Act
8-25 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
8-26 as follows:
8-27 (1) The commission shall charge and collect reasonable
8-28 and necessary fees to recover the cost of administering this
8-29 section as follows:
8-30 (A) a fee not to exceed $75 for the filing of an
8-31 original application for a license as an apprentice inspector;
8-32 (B) a fee not to exceed $125 for the filing of
8-33 an original application for a license as a real estate inspector;
8-34 (C) a fee not to exceed $150 for the filing of
8-35 an original application for a license as a professional inspector;
8-36 (D) a fee not to exceed $125 for the annual
8-37 license renewal of an apprentice inspector;
8-38 (E) a fee not to exceed $175 for the annual
8-39 license renewal of a real estate inspector;
8-40 (F) a fee not to exceed $200 for the annual
8-41 license renewal of a professional inspector;
8-42 (G) a fee not to exceed $100 for taking a
8-43 license examination; [and]
8-44 (H) a fee not to exceed $20 for a request for a
8-45 change of place of business or to replace a lost or destroyed
8-46 license; and
8-47 (I) a fee not to exceed $20 for filing a request
8-48 for issuance of a license because of a change of name, return to
8-49 active status, or change in sponsoring professional inspector.
8-50 SECTION 12. Section 23(k), The Real Estate License Act
8-51 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
8-52 as follows:
8-53 (k) Continuing education programs. The commission shall
8-54 recognize, prepare, or administer continuing education programs for
8-55 inspectors. Participation in the programs is mandatory. A real
8-56 estate inspector must submit satisfactory evidence to the
8-57 commission of successful completion of at least eight [four]
8-58 classroom hours of core real estate inspection courses annually
8-59 before a license [licensed] renewal is issued. A professional
8-60 inspector must submit satisfactory evidence to the commission of
8-61 successful completion of at least 16 [eight] classroom hours of
8-62 core [related] real estate inspection courses annually before a
8-63 license renewal is issued.
8-64 SECTION 13. Section 23(m)(2), The Real Estate License Act
8-65 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
8-66 as follows:
8-67 (2) An offense under this subsection is a Class A [B]
8-68 misdemeanor.
8-69 SECTION 14. Sections 23(o)(3), (7), and (15), The Real Estate
9-1 License Act (Article 6573a, Vernon's Texas Civil Statutes), are
9-2 amended to read as follows:
9-3 (3) If at [on December 31 of] any time [year] the
9-4 balance remaining in the real estate inspection recovery fund is
9-5 less than $300,000, each inspector, on the next renewal of the
9-6 person's license, shall pay, in addition to the license renewal
9-7 fee, a fee of $75, or a pro rata share of the amount necessary to
9-8 bring the fund to $450,000, whichever is less, which shall be
9-9 deposited in the real estate inspection recovery fund. To ensure
9-10 the availability of a sufficient amount to pay anticipated claims
9-11 on the fund, the commission by rule may provide for the collection
9-12 of assessments at different times and under conditions other than
9-13 those specified by this Act.
9-14 (7) The court shall proceed on the application
9-15 forthwith. On the hearing on the application, the aggrieved person
9-16 is required to show:
9-17 (A) that the judgment is based on facts allowing
9-18 recovery under Subdivision (1) of this subsection;
9-19 (B) that the person is not a spouse of the
9-20 debtor or the personal representative of the spouse and the person
9-21 is not an inspector, as defined by this section;
9-22 (C) [that the person has obtained a judgment
9-23 under Subdivision (6) of this subsection that is not subject to a
9-24 stay or discharge in bankruptcy, stating the amount of the judgment
9-25 and the amount owing on the judgment at the date of the
9-26 application;]
9-27 [(D)] that based on the best information
9-28 available, the judgment debtor lacks sufficient attachable assets
9-29 in this state or any other state to satisfy the judgment; and
9-30 (D) [(E)] the amount that may be realized from
9-31 the sale of real or personal property or other assets liable to be
9-32 sold or applied in satisfaction of the judgment and the balance
9-33 remaining due on the judgment after application of the amount that
9-34 may be realized.
9-35 (15) Notwithstanding any other provision, payments
9-36 from the real estate inspection recovery fund are subject to the
9-37 following conditions and limitations:
9-38 (A) payments may be made only pursuant to an
9-39 order of a court of competent jurisdiction, as provided by
9-40 Subdivision (6) of this subsection, and in the manner prescribed by
9-41 this subsection;
9-42 (B) payments for claims, including attorney
9-43 fees, interest, and court costs, arising out of the same
9-44 transaction shall be limited in the aggregate to $12,500 [$7,500]
9-45 regardless of the number of claimants; and
9-46 (C) payments for claims based on judgments
9-47 against a licensed inspector may not exceed in the aggregate
9-48 $30,000 [$15,000] until the fund has been reimbursed by the
9-49 licensee for all amounts paid.
9-50 SECTION 15. Section 24(f), The Real Estate License Act
9-51 (Article 6573a, Vernon's Texas Civil Statutes), is amended to read
9-52 as follows:
9-53 (f) A person commits an offense if the person engages in
9-54 business as a residential rental locator in this state without a
9-55 license issued under this Act. An offense under this subsection is
9-56 a Class A [B] misdemeanor.
9-57 SECTION 16. Section 18, Residential Service Company Act
9-58 (Article 6573b, Revised Statutes), is amended by adding Subsection
9-59 (c) to read as follows:
9-60 (c) The commission may authorize a hearing examiner to
9-61 conduct a hearing and enter a final decision in a proceeding under
9-62 this section. A final decision of a hearing examiner under this
9-63 subsection is appealable to the commission as provided by
9-64 commission rule.
9-65 SECTION 17. Section 39.002(b), Business & Commerce Code, is
9-66 amended to read as follows:
9-67 (b) Notwithstanding Subsection (a), this chapter does not
9-68 apply to:
9-69 (1) a purchase of farm equipment;
10-1 (2) an insurance sale regulated by the Texas
10-2 Department of Insurance;
10-3 (3) a sale of goods or services made:
10-4 (A) under a preexisting revolving charge account
10-5 or retail charge agreement; or
10-6 (B) after negotiations between the parties at a
10-7 business establishment at a fixed location where goods or services
10-8 are offered or exhibited for sale; [or]
10-9 (4) a sale or lease of real property if:
10-10 (A) the purchaser or tenant is represented by a
10-11 licensed attorney;
10-12 (B) the transaction is negotiated by a licensed
10-13 real estate broker; or
10-14 (C) the transaction is negotiated at a place
10-15 other than the consumer's residence by the person who owns the
10-16 property;
10-17 (5) a residential service contract sale regulated by
10-18 the Texas Real Estate Commission; or
10-19 (6) a contract engaging the services of a person
10-20 licensed by the Texas Real Estate Commission.
10-21 SECTION 18. (a) Except as provided by Subsection (b) of this
10-22 section, this Act takes effect September 1, 2001.
10-23 (b) The changes in law made by this Act to Sections 7(d) and
10-24 (e), The Real Estate License Act (Article 6573a, Vernon's Texas
10-25 Civil Statutes), take effect January 1, 2002, and apply only to an
10-26 application for a real estate broker license or real estate
10-27 salesperson license filed on or after that date. An application
10-28 filed before January 1, 2002, is governed by the law in effect on
10-29 the date the application was filed, and the former law is continued
10-30 in effect for that purpose.
10-31 (c) The changes in law made by this Act to Sections 8(f) and
10-32 23(o)(7) and (15), The Real Estate License Act (Article 6573a,
10-33 Vernon's Texas Civil Statutes), apply only to a cause of action
10-34 that arises on or after the effective date of this Act. A cause of
10-35 action that arises before the effective date of this Act is
10-36 governed by the law in effect on the date the cause of action
10-37 arose, and the former law is continued in effect for that purpose.
10-38 (d) The changes in law made by this Act to Sections 19(a),
10-39 23(m)(2), and 24(f), The Real Estate License Act (Article 6573a,
10-40 Vernon's Texas Civil Statutes), apply only to an offense committed
10-41 on or after the effective date of this Act. For purposes of this
10-42 subsection, an offense is committed before the effective date of
10-43 this Act if any element of the offense occurs before that date. An
10-44 offense committed before the effective date of this Act is covered
10-45 by the law in effect when the offense was committed, and the former
10-46 law is continued in effect for that purpose.
10-47 (e) The changes in law made by this Act to Sections
10-48 23(f)(3)-(6), The Real Estate License Act (Article 6573a, Vernon's
10-49 Texas Civil Statutes), apply only to the renewal of a real estate
10-50 inspector license or professional inspector license that expires on
10-51 or after the effective date of this Act. A license that expires
10-52 before that date is governed by the law in effect on the date the
10-53 license expires, and the former law is continued in effect for that
10-54 purpose.
10-55 (f) The change in law made by this Act to Section 23(k), The
10-56 Real Estate License Act (Article 6573a, Vernon's Texas Civil
10-57 Statutes), applies only to the renewal of a real estate inspector
10-58 license or professional inspector license that expires on or after
10-59 December 31, 2001. A license that expires before that date is
10-60 governed by the law in effect on the date the license expires, and
10-61 the former law is continued in effect for that purpose.
10-62 (g) The changes in law made by this Act that relate to a
10-63 disciplinary action or the imposition of an administrative penalty
10-64 for a violation of The Real Estate License Act (Article 6573a,
10-65 Vernon's Texas Civil Statutes) apply only to a violation that
10-66 occurs on or after the effective date of this Act. A violation
10-67 that occurs before the effective date of this Act is governed by
10-68 the law in effect on the date the violation occurred, and the
10-69 former law is continued in effect for that purpose.
11-1 * * * * *