By Barrientos S.B. No. 657
77R4471 DWS-F
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;
2-1 (C) a time-share estate; [and]
2-2 (D) a service related to real or personal
2-3 property; and
2-4 (E) a coupon book to be used with a business or
2-5 company.
2-6 (3) "Telephone solicitation" [(4) "Consumer telephone
2-7 call"] means an unsolicited call, including a call by an automated
2-8 dialing announcing device or recorded message device, made to a
2-9 residential telephone number by a telephone solicitor to:
2-10 (A) solicit a sale of a consumer good or
2-11 service;
2-12 (B) solicit an extension of credit for a
2-13 consumer good or service; [or]
2-14 (C) obtain information that will or may be used
2-15 to directly solicit a sale of a consumer good or service or to
2-16 extend credit for the sale; or
2-17 (D) solicit a contribution of money or other
2-18 property.
2-19 (4) [(5)] "Telephone solicitor" means a person who
2-20 makes or causes to be made a telephone solicitation [consumer
2-21 telephone call, including a call made by an automated dialing
2-22 device].
2-23 Sec. 37.02. SOLICITOR IDENTITY; PERMISSIBLE HOURS;
2-24 DISCONNECT. (a) A telephone solicitor may not make a telephone
2-25 solicitation [consumer telephone call to a consumer] unless:
2-26 (1) the telephone solicitor identifies himself or
2-27 herself by name and identifies the entity [business] on whose
3-1 behalf the telephone solicitor is calling and the purpose of the
3-2 call immediately after making contact with the person [consumer] to
3-3 whom the call is made;
3-4 (2) the telephone solicitor makes the call after 12
3-5 noon or before 9 p.m. on a Sunday or after 9 a.m. and before 9 p.m.
3-6 on a weekday or a Saturday; and
3-7 (3) for those calls in which an automated dialing
3-8 [dial] announcing device is used, the device must disconnect the
3-9 called person's [consumer's] telephone line within the period
3-10 provided by Section 55.126, Utilities Code, after termination of
3-11 the call by either the telephone solicitor or the called person
3-12 [consumer].
3-13 (b) A telephone solicitation [consumer telephone call] is
3-14 not subject to the provisions of Subsection (a) of this section if
3-15 the call is made:
3-16 (1) in response to the express request of the called
3-17 person [consumer];
3-18 (2) primarily in connection with an existing debt or
3-19 contract for which payment or performance has not been completed at
3-20 the time of the call; or
3-21 (3) to a person:
3-22 (A) to [consumer with] whom the telephone
3-23 solicitor has previously sold a consumer good or service or
3-24 extended credit as a result of a telephone solicitation; or
3-25 (B) who has previously contributed to the entity
3-26 on whose behalf the telephone solicitor is calling as a result of a
3-27 telephone solicitation [a prior or existing business relationship].
4-1 Sec. 37.03. CONFIRMATION OF AGREEMENT. (a) An oral
4-2 agreement made during a telephone solicitation to purchase a
4-3 consumer good or service or make a contribution and to authorize
4-4 charges to be made to a credit card account, debit card account, or
4-5 any other account held by a financial institution is voidable by
4-6 the called person unless the person making the sale or receiving
4-7 the contribution obtains from the called person a confirmation of
4-8 the agreement in the form provided by this section.
4-9 (b) The confirmation must:
4-10 (1) be in writing and signed by the called person;
4-11 (2) disclose all terms of the agreement;
4-12 (3) include:
4-13 (A) the name of the person making the sale or
4-14 receiving the contribution;
4-15 (B) an address and telephone number at which an
4-16 individual representing the person making the sale or receiving the
4-17 contribution may be contacted during normal business hours;
4-18 (C) a statement of all amounts to be paid by the
4-19 called person, including any delivery or other charges;
4-20 (D) the date of the agreement;
4-21 (E) a detailed description of any consumer good
4-22 or service sold; and
4-23 (F) a notice, in at least 12-point type and
4-24 located immediately preceding the space for the called person's
4-25 signature, as follows: "YOU ARE NOT OBLIGATED TO PAY ANY MONEY
4-26 CHARGED TO A CREDIT CARD ACCOUNT, DEBIT CARD ACCOUNT, OR ANY OTHER
4-27 ACCOUNT HELD BY A FINANCIAL INSTITUTION UNLESS YOU SIGN THIS
5-1 CONFIRMATION AND SEND IT TO THE PERSON MAKING THE SALE OR RECEIVING
5-2 THE CONTRIBUTION"; and
5-3 (4) be accompanied by a copy of the confirmation to be
5-4 retained by the called person.
5-5 (c) A called person who submits payment under an agreement
5-6 that is made during a telephone solicitation and that authorizes
5-7 charges to be made to a credit card account, debit card account, or
5-8 any other account held by a financial institution and who does not
5-9 submit the confirmation as provided by this section may cancel the
5-10 agreement at any time by:
5-11 (1) notifying in writing the person making the sale or
5-12 receiving the contribution; and
5-13 (2) returning any goods that the called person
5-14 received under the agreement in substantially the condition the
5-15 goods were in when received by the called person.
5-16 (d) Not later than the 10th business day after the date of
5-17 receiving a notice of cancellation under Subsection (c), the person
5-18 making the sale or receiving the contribution shall:
5-19 (1) return to the called person all payments made by
5-20 the called person under the agreement;
5-21 (2) return any property received from the called
5-22 person under the agreement in substantially the condition the
5-23 property was in when received by the person making the sale or
5-24 receiving the contribution; and
5-25 (3) terminate any security interest created under the
5-26 agreement and file any necessary document to give notice of the
5-27 termination. [CHARGES TO CONSUMER CREDIT ACCOUNT. A person who
6-1 sells consumer goods and services through the use of a telephone
6-2 solicitor may not make or submit a charge to a consumer's credit
6-3 card account unless:]
6-4 [(1) the seller provides that the consumer may receive
6-5 a full refund for the return of undamaged and unused goods or a
6-6 cancellation of services by providing notice to the seller not
6-7 later than the seventh day after the date the consumer receives the
6-8 goods or services and in which the seller will process:]
6-9 [(A) a refund not later than the 30th day after
6-10 the date the seller receives the returned merchandise from the
6-11 consumer;]
6-12 [(B) a full refund not later than the 30th day
6-13 after the purchaser of services cancels an order for the purchase
6-14 of services not performed or a pro rata refund for any services not
6-15 yet performed for the consumer;]
6-16 [(2) the seller provides to the consumer a written
6-17 contract fully describing the goods or services being offered, the
6-18 total price to be charged, the name, address, and business phone of
6-19 the seller, and any terms or conditions affecting the sale and
6-20 receives from the consumer a signed copy of such contract; or]
6-21 [(3) the seller is an organization that qualifies for
6-22 and has obtained an exemption from federal income tax from the
6-23 Internal Revenue Service under Section 501(c)(3), Internal Revenue
6-24 Code of 1986 (26 U.S.C. Section 501(c)(3)).]
6-25 Sec. 37.031. NO-CALL LIST. (a) In this section,
6-26 "commission" means the Public Utility Commission of Texas.
6-27 (b) The commission shall maintain a telephone solicitation
7-1 no-call list of the telephone numbers of residential customers in
7-2 this state who have requested to be on the list. The commission
7-3 shall update the list quarterly. Entries on the list expire
7-4 annually and may be renewed. The commission may not charge a
7-5 person for a request to place a number on the list or to renew an
7-6 entry on the list.
7-7 (c) A telephone solicitor may not make a telephone
7-8 solicitation to a telephone number on the no-call list under
7-9 Subsection (b) after the 30th day after the day the list containing
7-10 the number is first available to the telephone solicitor.
7-11 (d) A violation of Subsection (c) is subject to enforcement
7-12 and penalties under Subchapter B, Chapter 15, Utilities Code, as if
7-13 the violation were a violation of Title 2, Utilities Code, by a
7-14 person regulated under that title. A violation of Subsection (c)
7-15 is also subject to other enforcement and penalties provided by this
7-16 chapter. An administrative penalty collected for a violation of
7-17 Subsection (c) may be used only for administering this section.
7-18 (e) The commission shall receive and investigate complaints
7-19 concerning violations of Subsection (c). On determination that a
7-20 violation has occurred, the commission shall take appropriate
7-21 action for enforcement and penalties.
7-22 (f) The commission may adopt rules to administer this
7-23 section. The commission shall adopt rules:
7-24 (1) requiring each local exchange telephone company to
7-25 inform its customers of the requirements of this section by annual
7-26 inserts in billing statements mailed to customers and conspicuous
7-27 publication of the notice in the consumer information pages of
8-1 local telephone directories; and
8-2 (2) providing that a telephone solicitation made to a
8-3 telephone number on the no-call list is not a violation of this
8-4 section if the call is an isolated occurrence made by a telephone
8-5 solicitor who has in place adequate procedures to comply with this
8-6 section.
8-7 (g) In addition to requiring the notices required by
8-8 Subsection (f)(1), the commission shall conduct an educational
8-9 program designed to inform the public of their rights under this
8-10 section. The educational program shall be directed to all
8-11 residential telephone subscribers and shall be conducted at least
8-12 annually.
8-13 (h) The commission shall provide for dissemination of the
8-14 no-call list. A telephone solicitor registered under Chapter 38
8-15 shall be provided a copy of the list and each update of the list
8-16 without charge. The commission shall set and collect a fee for a
8-17 copy of the list or an update of the list provided to a person not
8-18 registered under Chapter 38 in an amount, not more than $200,
8-19 necessary to cover the cost of administering this section,
8-20 considering amounts available for that purpose under Subsection
8-21 (d).
8-22 Sec. 37.032. DIRECT COLLECTION AND DELIVERY. A telephone
8-23 solicitor may not cause an individual to go to the called person to
8-24 collect payment or a contribution or to deliver a consumer good or
8-25 service purchased unless a confirmation has been obtained as
8-26 required by Section 37.03.
8-27 Sec. 37.033. REQUEST OF CREDIT CARD NUMBER OR FINANCIAL
9-1 INSTITUTION ACCOUNT NUMBER AFTER OFFER OF FREE CONSUMER GOOD OR
9-2 SERVICE. (a) A telephone solicitor commits an offense if the
9-3 telephone solicitor knowingly:
9-4 (1) represents or implies that a called person will
9-5 receive without charge a consumer good or service, regardless of
9-6 whether designated as a gift, premium, bonus, prize, or otherwise;
9-7 and
9-8 (2) requests a credit card account number, debit card
9-9 account number, or financial institution account number from the
9-10 called person for the purpose of charging to the credit card
9-11 account or debiting from the financial institution account an
9-12 amount as a condition precedent to the called person's receipt of a
9-13 consumer good or service.
9-14 (b) An offense under this section is a Class A misdemeanor.
9-15 Sec. 37.04. ENFORCEMENT. (a) The attorney general's office
9-16 shall investigate a complaint relating to a violation of this
9-17 chapter and may petition a district court for a temporary
9-18 restraining order to restrain a continuing violation of this
9-19 chapter and for the assessment of a civil penalty as provided by
9-20 Section 37.05 of this code.
9-21 (b) A district court, on petition of the attorney general's
9-22 office and on a finding by the court that a person is violating
9-23 this chapter may, by injunction, prohibit a person from continuing
9-24 a violation of this chapter or grant any other injunctive relief
9-25 warranted by the facts.
9-26 (c) Venue for a suit brought under this chapter is in:
9-27 (1) the county in which the telephone solicitation
10-1 [consumer telephone call] originated;
10-2 (2) the county in which the telephone solicitation
10-3 [consumer telephone call] was received; or
10-4 (3) Travis County.
10-5 Sec. 37.05. CIVIL PENALTY. (a) A person who knowingly
10-6 violates this chapter is liable for a civil penalty of not more
10-7 than $10,000 for each violation.
10-8 (b) In addition to bringing an action for injunctive relief,
10-9 the attorney general may also seek restitution, attorney fees,
10-10 investigative costs, and civil penalties as provided herein.
10-11 (c) A called person [consumer] injured by a violation of
10-12 this chapter may bring any action for recovery of damages. The
10-13 damages awarded may not be less than the amount paid by the called
10-14 person to the person making the sale or receiving the contribution
10-15 as a result of the telephone solicitation [buyer to the telephone
10-16 solicitor], plus reasonable attorney fees and court costs.
10-17 Sec. 37.06. DECEPTIVE TRADE PRACTICES. A violation of this
10-18 chapter is a false, misleading, or deceptive act or practice under
10-19 Subchapter E, Chapter 17, and any public or private right or remedy
10-20 prescribed by that subchapter may be used to enforce this chapter.
10-21 CHAPTER 38. REGISTRATION [REGULATION] OF TELEPHONE SOLICITORS
10-22 [SOLICITATION]
10-23 SUBCHAPTER A. GENERAL PROVISIONS
10-24 Sec. 38.001. DEFINITIONS. In this chapter:
10-25 (1) "Consumer good or service" has the meaning
10-26 assigned by Section 37.01. ["Item" means property or service and
10-27 includes a coupon book that is to be used with a business or
11-1 company.]
11-2 (2) "Owner" means a person who has control of or is
11-3 entitled to, by ownership or other claim, at least 10 percent of
11-4 the net income of a telephone solicitor [seller].
11-5 (3) "Principal" means an owner, an executive officer
11-6 of a corporation, a general partner of a partnership, a sole
11-7 proprietor, a trustee of a trust, or another individual with
11-8 similar supervisory functions with respect to any person.
11-9 (4) "Purchaser" means a person who is:
11-10 (A) solicited to become or becomes obligated for
11-11 the purchase or rental of a consumer good or service [an item]; or
11-12 (B) offered the opportunity to claim or receive
11-13 a consumer good or service [an item].
11-14 [(4) "Salesperson" means a person employed or
11-15 authorized by a seller to make a telephone solicitation.]
11-16 [(5) "Seller" means a person who makes a telephone
11-17 solicitation on the person's own behalf.]
11-18 (5) [(6)] "Supervised financial institution" means a
11-19 bank, trust company, savings and loan association, credit union,
11-20 industrial loan company, personal property broker, consumer finance
11-21 lender, commercial finance lender, insurer, or other financial
11-22 institution that is subject to supervision by an official or agency
11-23 of this state or the United States.
11-24 (6) [(7)] "Telephone solicitation" means:
11-25 (A) an unsolicited call, including a call by an
11-26 automated dialing announcing device or recorded message device,
11-27 made to a residential telephone number by a telephone solicitor to:
12-1 (i) solicit a sale of a consumer good or
12-2 service;
12-3 (ii) solicit an extension of credit for a
12-4 consumer good or service;
12-5 (iii) obtain information that will or may
12-6 be used to directly solicit a sale of a consumer good or service or
12-7 to extend credit for the sale; or
12-8 (iv) solicit a contribution of money or
12-9 other property; or
12-10 (B) a solicitation sent by mail or made by any
12-11 other means for a purpose listed in Paragraph (A) to which the
12-12 person solicited may respond by a telephone call to the telephone
12-13 solicitor.
12-14 (7) "Telephone solicitor" means a person who makes or
12-15 causes to be made a telephone solicitation [a telephone call
12-16 initiated by a seller or salesperson to or from a person for the
12-17 purpose of inducing the person to purchase, rent, claim, or receive
12-18 an item. The term includes a call made by a purchaser in response
12-19 to a solicitation sent by mail or made by any other means].
12-20 Sec. 38.002. MAKING TELEPHONE SOLICITATION. In this
12-21 chapter, a person makes a telephone solicitation if the person
12-22 effects or attempts to effect a telephone solicitation[, including
12-23 a solicitation initiated by an automatic dialing machine or a
12-24 recorded message device].
12-25 Sec. 38.003. CONSTRUCTION AND APPLICATION. This chapter
12-26 shall be liberally construed and applied to promote its underlying
12-27 purpose to protect persons against false, misleading, or deceptive
13-1 practices in the telephone solicitation business.
13-2 SUBCHAPTER B. EXEMPTIONS
13-3 Sec. 38.051. CLAIM OF EXEMPTION. (a) In a civil proceeding
13-4 alleging a violation of this chapter, the burden of proving an
13-5 exemption is on the person claiming the exemption.
13-6 (b) In a criminal proceeding alleging a violation of this
13-7 chapter, the burden of producing evidence to support a defense of
13-8 an exemption is on the person claiming the exemption.
13-9 Sec. 38.052. EXEMPTIONS APPLY TO TELEPHONE SOLICITOR
13-10 [SELLER]. The exemptions provided by this chapter apply only to a
13-11 telephone solicitor [seller] engaging in a telephone solicitation
13-12 on the telephone solicitor's [seller's] own behalf.
13-13 Sec. 38.053. PERSONS [OR ITEMS] REGULATED BY OTHER LAW.
13-14 This chapter does not apply to:
13-15 (1) a person who is required to register and post a
13-16 bond, and who registers and posts that bond, under Section
13-17 1804.101, Occupations Code;
13-18 (2) a person who is required to register and post a
13-19 bond, and who registers and posts that bond, under Section
13-20 1803.056, Occupations Code; or
13-21 (3) a person who is required to post a bond, and who
13-22 posts that bond, under Chapter 1202, Acts of the 75th Legislature,
13-23 Regular Session, 1997 (Article 9023e, Vernon's Texas Civil
13-24 Statutes) [offering or selling a security that has been qualified
13-25 for sale under Section 7, The Securities Act (Article 581-7,
13-26 Vernon's Texas Civil Statutes), or that is subject to an exemption
13-27 under Section 5 or 6 of that Act;]
14-1 [(2) a publicly traded corporation registered with the
14-2 Securities and Exchange Commission or the State Securities Board,
14-3 or a subsidiary or agent of the corporation;]
14-4 [(3) a person licensed under the Insurance Code if the
14-5 solicited transaction is governed by the Insurance Code;]
14-6 [(4) a supervised financial institution or parent,
14-7 subsidiary, or affiliate of a supervised financial institution;]
14-8 [(5) a person or affiliate of a person whose business
14-9 is regulated by the Public Utility Commission of Texas, except that
14-10 this chapter applies to a person or affiliate of a person who is
14-11 regulated by the Public Utility Commission of Texas only with
14-12 respect to one or more automated dial announcing devices;]
14-13 [(6) a person subject to the control or licensing
14-14 regulations of the Federal Communications Commission;]
14-15 [(7) a person selling a contractual plan regulated by
14-16 the Federal Trade Commission trade regulation on use of negative
14-17 option plans by sellers in commerce under 16 C.F.R. Part 425;]
14-18 [(8) a person subject to the filing requirements of
14-19 Chapter 920, Acts of the 73rd Legislature, Regular Session, 1993
14-20 (Article 9023c, Vernon's Texas Civil Statutes); or]
14-21 [(9) a person soliciting a transaction regulated by
14-22 the Commodity Futures Trading Commission if the person is
14-23 registered or temporarily licensed for that activity with the
14-24 Commodity Futures Trading Commission under the Commodity Exchange
14-25 Act (7 U.S.C. Section 1 et seq.) and the registration or license
14-26 has not expired or been suspended or revoked.]
14-27 [Sec. 38.054. MEDIA AND SUBSCRIPTION SERVICES AND CERTAIN
15-1 CATALOGS. This chapter does not apply to:]
15-2 [(1) a person soliciting the sale of a subscription
15-3 to:]
15-4 [(A) a daily or weekly newspaper of general
15-5 circulation;]
15-6 [(B) a magazine or other periodical of general
15-7 circulation; or]
15-8 [(C) a cable television service;]
15-9 [(2) a person selling merchandise under an arrangement
15-10 in which the seller periodically ships the merchandise to a
15-11 consumer who has consented in advance to receive the merchandise
15-12 periodically; or]
15-13 [(3) a person who periodically issues and delivers
15-14 catalogs to potential purchasers if the catalog:]
15-15 [(A) includes a written description or
15-16 illustration and the sales price of each item offered for sale;]
15-17 [(B) includes at least 24 full pages of written
15-18 material or illustrations;]
15-19 [(C) is distributed in more than one state; and]
15-20 [(D) has an annual circulation of at least
15-21 250,000 customers].
15-22 Sec. 38.054 [38.055]. CERTAIN NONPROFIT AND EDUCATIONAL
15-23 ORGANIZATIONS. This chapter does not apply to an entity
15-24 [educational institution or organization or a nonprofit
15-25 organization] exempt from taxation under Section 501(c)(3),
15-26 Internal Revenue Code of 1986, if the entity is:
15-27 (1) a nonprofit organization; or
16-1 (2) an entity organized and operated exclusively for
16-2 educational purposes.
16-3 [Sec. 38.056. CERTAIN COMMERCIAL SALES. This chapter does
16-4 not apply to a sale in which the purchaser is a business that
16-5 intends to:]
16-6 [(1) resell the item purchased; or]
16-7 [(2) use the item purchased in a recycling, reuse,
16-8 remanufacturing, or manufacturing process.]
16-9 [Sec. 38.057. FOOD. This chapter does not apply to a person
16-10 soliciting the sale of food.]
16-11 Sec. 38.055 [38.058]. SOLICITATION OF CURRENT OR FORMER
16-12 CUSTOMERS OR CONTRIBUTORS. This chapter does not apply to a call
16-13 made to:
16-14 (1) [the solicitation of contracts for the maintenance
16-15 or repair of items previously purchased from the person making the
16-16 solicitation or on whose behalf the solicitation is made; or]
16-17 [(2)] a person to whom the solicitor has previously
16-18 sold a consumer good or service or extended credit as a result of a
16-19 previous telephone solicitation; or
16-20 (2) a person who has previously contributed to the
16-21 entity on whose behalf the solicitation is made as a result of a
16-22 previous telephone solicitation [soliciting business from a former
16-23 or 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 solicitation
17-4 who:[;]
17-5 (1) [(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 (2) complies with Section 37.032 [(C) who does not
17-10 cause an individual to go to the prospective purchaser to collect
17-11 payment for the purchase or to deliver an item purchased directly
17-12 following the telephone 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 $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[, other
20-20 than the information described by Subsection (a),] occurs before
20-21 the date for renewal, a telephone solicitor [seller] shall submit
20-22 that information to the secretary of state by filing an addendum.
20-23 Sec. 38.107. SECURITY. (a) A registration statement filed
20-24 under this chapter must be accompanied by:
20-25 (1) a bond executed by a corporate surety approved by
20-26 the secretary of state and licensed to do business in this state;
20-27 (2) an irrevocable letter of credit issued for the
21-1 benefit of the registrant by a supervised financial institution
21-2 whose deposits are insured by an agency of the federal government;
21-3 or
21-4 (3) a certificate of deposit in a supervised financial
21-5 institution whose deposits are insured by an agency of the federal
21-6 government, the principal of which may be withdrawn only on the
21-7 order of the secretary of state.
21-8 (b) The bond, letter of credit, or certificate of deposit
21-9 must be:
21-10 (1) maintained in the amount of $10,000; and
21-11 (2) conditioned on the telephone solicitor's
21-12 [seller's] compliance with this chapter.
21-13 (c) A telephone solicitor that ceases all activities subject
21-14 to this chapter may apply to the secretary of state for release of
21-15 the security required by this section. The application must be
21-16 verified by each principal of the telephone solicitor. The
21-17 secretary of state shall promptly notify the attorney general of
21-18 receipt of an application under this subsection. The secretary of
21-19 state shall release the security not earlier than the later of:
21-20 (1) the 180th day after the date the telephone
21-21 solicitor conducted its final activity subject to this chapter; or
21-22 (2) the 60th day after the date the attorney general
21-23 is notified under this subsection.
21-24 Sec. 38.108. SECRETARY OF STATE AS TELEPHONE SOLICITOR'S
21-25 [SELLER'S] AGENT TO RECEIVE SERVICE. (a) A telephone solicitor
21-26 [seller] shall file with the secretary of state, in the form
21-27 prescribed by the secretary of state, an irrevocable consent
22-1 appointing the secretary of state to act as the telephone
22-2 solicitor's [seller's] agent to receive service of process in a
22-3 noncriminal suit, action, or proceeding against the telephone
22-4 solicitor [seller] or the telephone solicitor's [seller's]
22-5 successor, executor, or administrator that may arise under this
22-6 chapter if:
22-7 (1) an agent has not been designated under Section
22-8 38.151(7) [38.151(15)];
22-9 (2) the agent has resigned or died and a replacement
22-10 has not been designated under Section 38.106; or
22-11 (3) the agent cannot with reasonable diligence be
22-12 found at the designated address.
22-13 (b) Service on the secretary of state under this section has
22-14 the same effect as service on the telephone solicitor [seller].
22-15 Service on the secretary of state may be made by:
22-16 (1) leaving a copy of the process in the office of the
22-17 secretary of state;
22-18 (2) promptly sending by first-class mail a notice of
22-19 the service and a copy of the process to the telephone solicitor's
22-20 [seller's] principal business location at the last address on file
22-21 with the secretary of state; and
22-22 (3) filing the plaintiff's affidavit of compliance
22-23 with this section in the case on or before the return date of the
22-24 process, if any, or within an additional period that the court
22-25 allows.
22-26 SUBCHAPTER D. DISCLOSURES REQUIRED IN REGISTRATION STATEMENT
22-27 Sec. 38.151. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND
23-1 ORGANIZATIONAL INFORMATION. A registration statement must contain:
23-2 (1) the telephone solicitor's [seller's] name and the
23-3 name under which the telephone solicitor [seller] is doing or
23-4 intends to do business, if different from the telephone
23-5 solicitor's [seller's] name;
23-6 (2) the name of each parent and affiliated
23-7 organization of the telephone solicitor [seller] that:
23-8 (A) will engage in business transactions with
23-9 purchasers relating to sales solicited by the telephone solicitor
23-10 or will receive contributions solicited by the telephone solicitor
23-11 [seller]; or
23-12 (B) accepts responsibility for statements made
23-13 by, or acts of, the telephone solicitor [seller] relating to sales
23-14 or contributions solicited by the telephone solicitor [seller];
23-15 (3) the telephone solicitor's [seller's] business form
23-16 and place of organization;
23-17 (4) [if the seller is a corporation, a copy of its
23-18 articles of incorporation and bylaws;]
23-19 [(5) if the seller is a partnership, a copy of the
23-20 partnership agreement;]
23-21 [(6) if the seller is operating under an assumed
23-22 business name, the location where the assumed name has been
23-23 registered;]
23-24 [(7) for any parent or affiliated organization
23-25 disclosed under Subdivision (2), the applicable information that is
23-26 required of a seller under Subdivisions (3)-(6);]
23-27 [(8)] the complete street address of each location of
24-1 the telephone solicitor and each agent of the telephone solicitor
24-2 [seller], designating the principal location from which each [the
24-3 seller] will be conducting telephone solicitations [business];
24-4 [(9) if the principal business location of the seller
24-5 is not in this state, a designation of its main location in the
24-6 state;]
24-7 (5) [(10)] a listing of each telephone number to be
24-8 used by the telephone solicitor [seller] and the address where each
24-9 telephone using the number is located;
24-10 (6) [(11)] the name and title of each of the telephone
24-11 solicitor's [seller's] officers, directors, trustees, general and
24-12 limited partners, sole proprietor, and owners, as applicable, and
24-13 the name of each of those persons who has management
24-14 responsibilities in connection with the telephone solicitor's
24-15 [seller's business] activities;
24-16 [(12) the complete address of the principal residence,
24-17 the date of birth, and the number and state of issuance of the
24-18 driver's license of each person whose name is disclosed under
24-19 Subdivision (11);]
24-20 [(13) the name and principal residence address of each
24-21 person the seller leaves in charge at each location from which the
24-22 seller does business in this state and the business location at
24-23 which each of these persons is or will be in charge;]
24-24 [(14) the name and principal residence address of each
24-25 salesperson who solicits on behalf of the seller or a copy of the
24-26 "Employer's Quarterly Report" for employee wages the seller files
24-27 with the Texas Workforce Commission and the name the salesperson
25-1 uses while soliciting;]
25-2 (7) [(15)] the name and address of the telephone
25-3 solicitor's [seller's] agent in this state, other than the
25-4 secretary of state, authorized to receive service of process; and
25-5 (8) [(16)] the name and address of each financial
25-6 institution with which banking or similar monetary transactions are
25-7 made by the telephone solicitor [seller] and the identification
25-8 number of each of the telephone solicitor's [seller's] accounts in
25-9 each institution.
25-10 [Sec. 38.152. DISCLOSURE OF CERTAIN CONVICTIONS, JUDGMENTS,
25-11 ORDERS, AND BANKRUPTCIES. (a) With respect to the seller and each
25-12 person identified under Section 38.151(11) or (13), a registration
25-13 statement must state the identity of each person:]
25-14 [(1) who has been convicted of or pleaded nolo
25-15 contendere to:]
25-16 [(A) a felony or misdemeanor involving an
25-17 alleged violation of this chapter; or]
25-18 [(B) fraud, theft, embezzlement, fraudulent
25-19 conversion, or misappropriation of property;]
25-20 [(2) against whom a final judgment or order has been
25-21 entered in a civil or administrative action, including a stipulated
25-22 judgment or order, in which the complaint or petition alleged:]
25-23 [(A) acts constituting a violation of this
25-24 chapter, fraud, theft, embezzlement, fraudulent conversion, or
25-25 misappropriation of property;]
25-26 [(B) the use of untrue or misleading
25-27 representations in an attempt to sell or dispose of property; or]
26-1 [(C) the use of unfair, unlawful, or deceptive
26-2 business practices;]
26-3 [(3) who is subject to an injunction or restrictive
26-4 court order relating to business activity as the result of an
26-5 action brought by a federal, state, or local public agency,
26-6 including an action affecting a vocational license; or]
26-7 [(4) who has, during the previous seven tax years:]
26-8 [(A) filed in bankruptcy;]
26-9 [(B) been adjudged a bankrupt;]
26-10 [(C) been reorganized due to insolvency; or]
26-11 [(D) been a principal, director, officer,
26-12 trustee, general or limited partner of, or had management
26-13 responsibilities for, a corporation, partnership, joint venture, or
26-14 other business entity that has filed in bankruptcy, been adjudged a
26-15 bankrupt, or been reorganized due to insolvency while the person
26-16 held that position or within one year after the date on which the
26-17 person last held that position.]
26-18 [(b) Under Subsections (a)(1), (2), and (3), the statement
26-19 must identify the:]
26-20 [(1) court or administrative agency rendering the
26-21 conviction, judgment, or order;]
26-22 [(2) docket number of the matter;]
26-23 [(3) date of conviction, judgment, or order; and]
26-24 [(4) name of the governmental agency, if any, that
26-25 brought the action resulting in the conviction, judgment, or order.]
26-26 [(c) Under Subsection (a)(4), the statement must include
26-27 the:]
27-1 [(1) name and location of the person filing in
27-2 bankruptcy, adjudged a bankrupt, or reorganized due to insolvency;]
27-3 [(2) date of the filing, judgment, or reorganization
27-4 order;]
27-5 [(3) court having jurisdiction; and]
27-6 [(4) docket number of the matter.]
27-7 [Sec. 38.153. DISCLOSURE OF CERTAIN SALES INFORMATION. The
27-8 registration statement must be accompanied by:]
27-9 [(1) a description of the items the seller is offering
27-10 for sale;]
27-11 [(2) a copy of all sales information and literature,
27-12 including scripts, outlines, instructions, and information
27-13 regarding the conduct of telephone solicitations, sample
27-14 introductions, sample closings, product information, and contest or
27-15 premium-award information, provided by the seller to salespersons
27-16 or about which the seller informs salespersons;]
27-17 [(3) a copy of all written material the seller sends
27-18 to any purchaser;]
27-19 [(4) if the seller represents or implies, or directs
27-20 salespersons to represent or imply, to purchasers that the
27-21 purchaser will receive a specific item, including a certificate
27-22 that the purchaser must redeem to obtain the item described in the
27-23 certificate, or one or more items from among designated items,
27-24 whether the items are designated as gifts, premiums, bonuses,
27-25 prizes, or otherwise:]
27-26 [(A) a list of the items described;]
27-27 [(B) the value of each item and the basis for
28-1 the valuation;]
28-2 [(C) the price paid by the seller to its
28-3 supplier for each item and the name, address, and telephone number
28-4 of each item's supplier;]
28-5 [(D) if the purchaser is to receive fewer than
28-6 all of the items described by the seller:]
28-7 [(i) the manner in which the seller
28-8 decides which item a particular purchaser is to receive;]
28-9 [(ii) for each item, the odds of a single
28-10 purchaser's receiving the item; and]
28-11 [(iii) the name and address of each
28-12 recipient who has received, during the preceding 12 months or, if
28-13 the seller has not been in business that long, during the period
28-14 the seller has been in business, the item having the greatest value
28-15 and the item with the smallest odds of being received; and]
28-16 [(E) all rules, regulations, and terms a
28-17 purchaser must meet to receive the item;]
28-18 [(5) if the seller is offering an item that the seller
28-19 does not manufacture or supply:]
28-20 [(A) the name, address, and telephone number of
28-21 each of the seller's suppliers and a description of each item
28-22 provided by the supplier;]
28-23 [(B) if the possession of the item is to be
28-24 retained by the seller or will not be transferred to the purchaser
28-25 until the purchaser has paid in full:]
28-26 [(i) the address of each location where
28-27 the item will be kept;]
29-1 [(ii) if not kept on premises owned by the
29-2 seller or at an address registered under Section 38.151(8) or (9),
29-3 the name of the owner of the business at which the item will be
29-4 kept; and]
29-5 [(iii) a copy of any contract or other
29-6 document that evidences the seller's right to store the item at the
29-7 address designated under Subparagraph (ii);]
29-8 [(C) if the seller is not selling the item from
29-9 its own inventory but purchases the item to fill an order already
29-10 taken from a purchaser, copies of all contracts or other documents
29-11 evidencing the seller's ability to call on suppliers to fill the
29-12 seller's orders;]
29-13 [(D) if the seller represents to purchasers that
29-14 the seller has insurance or a surety bond relating to a purchaser's
29-15 purchase of an item, a copy of each insurance policy and bond; and]
29-16 [(E) if the seller makes a representation as to
29-17 the post-purchase earning or profit potential of an item, data to
29-18 substantiate the claims made and, if the representation relates to
29-19 previous sales made by the seller or a related entity,
29-20 substantiating data based on the experiences of at least 50 percent
29-21 of the persons who purchased that particular type of item from the
29-22 seller or related entity during the preceding six months or, if the
29-23 seller or related entity has not been in business that long, during
29-24 the period the seller or related entity has been in business,
29-25 including:]
29-26 [(i) the period the seller or related
29-27 entity has been selling the particular type of item being offered;]
30-1 [(ii) the number of purchasers of the item
30-2 from the seller or related entity known to the seller or related
30-3 entity to have made at least the same earnings or profit as those
30-4 represented; and]
30-5 [(iii) the percentage that the number
30-6 disclosed under Subparagraph (ii) represents of the total number of
30-7 purchasers from the seller or related entity of the particular type
30-8 of item offered; and]
30-9 [(6) if the seller is offering to sell an interest in
30-10 an oil, gas, or mineral field, well, or exploration site:]
30-11 [(A) the seller's ownership interest, if any, in
30-12 each field, well, or site being offered for sale;]
30-13 [(B) the total number of interests to be sold in
30-14 each field, well, or site being offered for sale; and]
30-15 [(C) if, in selling an interest in any
30-16 particular field, well, or site, reference is made to an
30-17 investigation of the field, well, or site by the seller or anyone
30-18 else:]
30-19 [(i) the name, business address, telephone
30-20 number, and professional credentials of the person who made the
30-21 investigation; and]
30-22 [(ii) a copy of the report and other
30-23 documents relating to the investigation prepared by the person.]
30-24 SUBCHAPTER E. ADDITIONAL INFORMATION FROM
30-25 TELEPHONE SOLICITOR [SELLER]
30-26 Sec. 38.201. INFORMATION POSTED OR AVAILABLE AT TELEPHONE
30-27 SOLICITOR'S [SELLER'S BUSINESS] LOCATION. (a) A telephone
31-1 solicitor [seller] shall post the registration certificate in a
31-2 conspicuous place at the location for which it is issued.
31-3 (b) A telephone solicitor [seller] shall make available at
31-4 each of the telephone solicitor's [seller's] business locations a
31-5 copy of the entire registration statement and addenda, if any, for
31-6 inspection by a purchaser or representative of a governmental
31-7 agency.
31-8 (c) A telephone solicitor [seller] shall post in close
31-9 proximity to the registration certificate the name of each
31-10 individual in charge of the location.
31-11 Sec. 38.202. DISCLOSURES TO SOLICITED PERSONS [PROSPECTIVE
31-12 PURCHASERS]. A telephone solicitor [seller] shall, when the
31-13 solicitation is made and before consummation of any sales
31-14 transaction or receipt of any contribution, provide to each
31-15 purchaser or contributor:
31-16 (1) the complete street address of the location from
31-17 which the telephone solicitation is being made [salesperson is
31-18 calling the purchaser] and, if different, the complete street
31-19 address of the telephone solicitor's [seller's] principal location;
31-20 (2) if the telephone solicitor [seller] represents or
31-21 implies that a purchaser or contributor will receive without charge
31-22 a specified consumer good or service [item] or one consumer good or
31-23 service [item] from among designated consumer goods or services
31-24 [items], whether the consumer goods or services [items] are
31-25 designated as gifts, premiums, bonuses, prizes, or otherwise:
31-26 (A) the manner in which the telephone solicitor
31-27 decides which consumer good or service a particular purchaser or
32-1 contributor is to receive;
32-2 (B) for each consumer good or service, the odds
32-3 of a single purchaser or contributor receiving the consumer good or
32-4 service;
32-5 (C) all rules and terms a purchaser or
32-6 contributor must meet to receive the consumer good or service
32-7 [information required to be filed by Sections 38.153(4)(D)(i),
32-8 (D)(ii), and (E), as appropriate]; and
32-9 (D) [(B)] the total number of individuals who
32-10 have actually received from the telephone solicitor [seller] during
32-11 the preceding 12 months or, if the telephone solicitor [seller]
32-12 has not been in the business that long, during the period the
32-13 telephone solicitor [seller] has been in business the consumer good
32-14 or service [item] having the greatest value and the consumer good
32-15 or service [item] with the smallest odds of being received;
32-16 (3) if the telephone solicitor [seller] is offering to
32-17 sell an interest in an oil, gas, or mineral field, well, or
32-18 exploration site:
32-19 (A) the telephone solicitor's ownership
32-20 interest, if any, in each field, well, or site being offered for
32-21 sale;
32-22 (B) the total number of interests to be sold in
32-23 each field, well, or site being offered for sale; and
32-24 (C) if, in selling an interest in any particular
32-25 field, well, or site, reference is made to an investigation of the
32-26 field, well, or site by the telephone solicitor or anyone else:
32-27 (i) the name, business address, telephone
33-1 number, and professional credentials of the person who made the
33-2 investigation; and
33-3 (ii) a copy of the report and other
33-4 documents relating to the investigation prepared by the person[,
33-5 the information required by Section 38.153(6)]; and
33-6 (4) if the telephone solicitor [seller] represents
33-7 that a consumer good or service [an item] is being offered at a
33-8 price below that usually charged for the consumer good or service
33-9 [item], the name of the manufacturer of the consumer good or
33-10 service [item].
33-11 Sec. 38.203. REFERENCE TO COMPLIANCE WITH STATUTE
33-12 PROHIBITED. A telephone solicitor [seller] may not make or
33-13 authorize the making of a reference to its compliance with this
33-14 chapter to a solicited person [purchaser].
33-15 SUBCHAPTER F. OFFENSES
33-16 Sec. 38.251. VIOLATION OF CHAPTER. (a) A person commits an
33-17 offense if the person knowingly violates Section 38.101, 38.106,
33-18 38.201, 38.202, or 38.203. Each violation constitutes a separate
33-19 offense.
33-20 (b) An offense under this section is a Class A misdemeanor.
33-21 Sec. 38.252. TELEPHONE SOLICITATION [SALESPERSON] FOR
33-22 UNREGISTERED TELEPHONE SOLICITOR [SELLER]. (a) A person commits
33-23 an offense if the person knowingly makes a telephone solicitation
33-24 [acts as a salesperson] on behalf of a telephone solicitor [seller]
33-25 who violates the registration requirements of this chapter. Each
33-26 violation constitutes a separate offense.
33-27 (b) An offense under this section is a Class A misdemeanor.
34-1 [Sec. 38.253. REQUEST OF CREDIT CARD ACCOUNT NUMBER OR
34-2 CHECKING ACCOUNT NUMBER AFTER OFFER OF FREE ITEM. (a) A seller
34-3 commits an offense if the seller knowingly:]
34-4 [(1) represents or implies that a purchaser will
34-5 receive without charge an item or service, regardless of whether
34-6 designated as a gift, premium, bonus, prize, or otherwise; and]
34-7 [(2) requests a credit card account number or checking
34-8 account number from the purchaser for the purpose of charging to
34-9 the credit card account or debiting from the checking account an
34-10 amount as a condition precedent to the purchaser's receipt of an
34-11 item.]
34-12 [(b) An offense under this section is a Class A
34-13 misdemeanor.]
34-14 SUBCHAPTER G. ENFORCEMENT
34-15 Sec. 38.301. INJUNCTION. (a) The attorney general may
34-16 bring suit to enjoin a person from violating this chapter.
34-17 (b) The attorney general shall notify the defendant of the
34-18 alleged prohibited conduct not later than the seventh day before
34-19 the date the suit is filed except that if the attorney general
34-20 intends to request that the court issue a temporary restraining
34-21 order notice is not required.
34-22 (c) The attorney general is entitled to recover all
34-23 reasonable costs of prosecuting the case, including court costs and
34-24 costs of investigation, depositions, witness fees, and attorney's
34-25 fees.
34-26 Sec. 38.302. CIVIL PENALTIES. (a) A person who violates
34-27 this chapter is subject to a civil penalty of not more than $5,000
35-1 for each violation.
35-2 (b) A person who violates an injunction issued under Section
35-3 38.301 is liable to this state for a civil penalty of not more than
35-4 $25,000 for each violation [and not more than $50,000 for all
35-5 violations of the injunction].
35-6 (c) The attorney general may bring suit to recover a civil
35-7 penalty under Subsection (b) in the court that issued the original
35-8 injunction.
35-9 (d) The party bringing the suit also is entitled to recover
35-10 all reasonable costs of prosecuting the case, including court costs
35-11 and costs of investigation, depositions, witness fees, and
35-12 attorney's fees.
35-13 Sec. 38.303. DECEPTIVE TRADE PRACTICES. A violation of this
35-14 chapter is a false, misleading, or deceptive act or practice under
35-15 Subchapter E, Chapter 17, and any public or private right or remedy
35-16 prescribed by that subchapter may be used to enforce this chapter.
35-17 Sec. 38.304. ACTION TO RECOVER AGAINST SECURITY. (a) A
35-18 person who is injured by the bankruptcy of a telephone solicitor
35-19 [seller] or the telephone solicitor's [seller's] breach of an
35-20 agreement entered into during a telephone solicitation may bring an
35-21 action to recover against the bond, letter of credit, or
35-22 certificate of deposit required under Section 38.107.
35-23 (b) The liability of the surety on a bond provided under
35-24 Section 38.107 does not exceed the amount of the bond, regardless
35-25 of the number of claims filed or the aggregate amount claimed. If
35-26 the amount claimed exceeds the amount of the bond, the surety shall
35-27 deposit the amount of the bond with the secretary of state for
36-1 distribution to claimants entitled to recovery, and the surety is
36-2 then relieved of all liability under the bond.
36-3 (c) The attorney general may bring an action on behalf of
36-4 the injured person to recover against the bond, letter of credit,
36-5 or certificate of deposit required under Section 38.107. The
36-6 attorney general shall distribute any amount recovered to the
36-7 injured person.
36-8 Sec. 38.305. WAIVER PROHIBITED. An attempted waiver of a
36-9 provision of this chapter is void.
36-10 SECTION 2. Subchapter G, Chapter 55, Utilities Code, is
36-11 repealed.
36-12 SECTION 3. The change in law made by this Act applies only
36-13 to a telephone solicitation made on or after the effective date of
36-14 this Act. A telephone solicitation made before the effective date
36-15 of this Act is governed by the law in effect when the telephone
36-16 solicitation was made, and the former law is continued in effect
36-17 for that purpose.
36-18 SECTION 4. This Act takes effect September 1, 2001, except
36-19 that the requirements of Section 37.031, Business & Commerce Code,
36-20 as added by this Act, apply only on and after January 1, 2002.