By:  Brown                                             S.B. No. 957
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to loss damage waivers in certain rental-purchase
 1-3     agreements.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 35.71, Business & Commerce Code, is
 1-6     amended to read as follows:
 1-7           Sec. 35.71.  DEFINITIONS.  In this subchapter:
 1-8                 (1)  "Advertisement" means a commercial message in any
 1-9     medium that directly or indirectly promotes or assists a
1-10     rental-purchase agreement.
1-11                 (2)  "Cash price" means the price for which the
1-12     merchant would have sold the merchandise to the consumer for cash
1-13     on the date of the rental-purchase agreement.
1-14                 (3)  "Consumer" means an individual who leases personal
1-15     property under a rental-purchase agreement.
1-16                 (4)  "Loss damage waiver" means a merchant's agreement
1-17     not to hold a consumer liable for loss from all or a part of any
1-18     damage to merchandise.
1-19                 (5)  "Merchandise" means the personal property that is
1-20     the subject of a rental-purchase agreement.
1-21                 (6) [(5)]  "Merchant" means a person who, in the
1-22     ordinary course of business, regularly leases, offers to lease, or
1-23     arranges for the leasing of merchandise under a rental-purchase
1-24     agreement, and includes a person who is assigned an interest in a
1-25     rental-purchase agreement.
 2-1                 (7) [(6)]  "Rental-purchase agreement" means an
 2-2     agreement for the use of merchandise by a consumer for personal,
 2-3     family, or household purposes, for an initial period of four months
 2-4     or less that is automatically renewable with each payment after the
 2-5     initial period, and that permits the consumer to become the owner
 2-6     of the merchandise.
 2-7           SECTION 2.  Subsection (c), Section 35.72, Business &
 2-8     Commerce Code, is amended to read as follows:
 2-9           (c)  A rental-purchase agreement may not contain a provision:
2-10                 (1)  requiring a confession of judgment;
2-11                 (2)  authorizing a merchant or an agent of the merchant
2-12     to commit a breach of the peace in the repossession of merchandise;
2-13                 (3)  waiving a defense, counterclaim, or right the
2-14     consumer may have against the merchant or an agent of the merchant;
2-15                 (4)  requiring the purchase of insurance from the
2-16     merchant to cover the merchandise;
2-17                 (5)  requiring the payment of a late charge or
2-18     reinstatement fee unless a periodic payment is delinquent for more
2-19     than seven days and the charge or fee is in an amount equal to not
2-20     more than the lesser of five percent of the delinquent payment or
2-21     $5, and not less than $2; [or]
2-22                 (6)  requiring a payment at the end of the scheduled
2-23     rental-purchase term in excess of or in addition to a regular
2-24     periodic payment in order to acquire ownership of the merchandise.
2-25     In no event shall the consumer be required to pay a sum greater
2-26     than the total amount to be paid to acquire ownership, as disclosed
 3-1     in Subsection (g)(3) of this section; or
 3-2                 (7)  requiring the purchase of a loss damage waiver.
 3-3           SECTION 3.  Subchapter F, Chapter 35, Business & Commerce
 3-4     Code, is amended by adding Section 35.721 to read as follows:
 3-5           Sec. 35.721.  LOSS DAMAGE WAIVER.  (a)  In addition to other
 3-6     charges permitted by this subchapter, a consumer may contract for a
 3-7     loss damage waiver.  A loss damage waiver is not insurance.
 3-8           (b)  A merchant may not sell a loss damage waiver unless the
 3-9     consumer agrees to the waiver in writing at or before the time the
3-10     rental-purchase agreement is executed.  A merchant may not impose
3-11     or require the purchase of a loss damage waiver as a mandatory
3-12     charge.
3-13           (c)  A loss damage waiver may exclude loss or damage to the
3-14     merchandise caused by moisture, scratches, or vandalism, mysterious
3-15     disappearance of the merchandise, abandonment of the merchandise,
3-16     or any other damage that is intentionally caused by the consumer or
3-17     that results from the consumer's wilful or wanton misconduct or
3-18     negligence.
3-19           (d)  A loss damage waiver agreement must include a statement
3-20     of the total periodic charge for the loss damage waiver.  The
3-21     periodic charge for a loss damage waiver may not exceed:
3-22                 (1)  in the case of a rental-purchase agreement with
3-23     weekly or biweekly renewal dates, the greater of:
3-24                       (A)  10 percent of a periodic lease payment; or
3-25                       (B)  $2; or
3-26                 (2)  in the case of a rental-purchase agreement with
 4-1     monthly renewal dates, the greater of:
 4-2                       (A)  10 percent of a periodic lease payment; or
 4-3                       (B)  $5.
 4-4           (e)  The loss damage waiver agreement must display the
 4-5     following disclosure notice:
 4-6           NOTICE:  THIS CONTRACT OFFERS, FOR AN ADDITIONAL
 4-7           CHARGE, AN OPTIONAL LOSS DAMAGE WAIVER TO COVER YOUR
 4-8           RESPONSIBILITY FOR DAMAGE TO THE PROPERTY.  BEFORE
 4-9           DECIDING WHETHER TO PURCHASE THE OPTIONAL LOSS DAMAGE
4-10           WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOUR OWN
4-11           HOMEOWNERS OR CASUALTY INSURANCE AFFORDS YOU COVERAGE
4-12           FOR DAMAGE TO THE RENTAL PROPERTY AND DETERMINE THE
4-13           AMOUNT OF ANY DEDUCTIBLE UNDER YOUR OWN INSURANCE
4-14           COVERAGE.  THE PURCHASE OF THIS OPTIONAL LOSS DAMAGE
4-15           WAIVER IS NOT MANDATORY AND MAY BE DECLINED.  THE LOSS
4-16           DAMAGE WAIVER IS NOT INSURANCE, NOR IS THE PURCHASE OF
4-17           INSURANCE MANDATORY.
4-18           (f)  An employee or agent of the merchant may not make oral
4-19     or written representations that contradict the provisions of this
4-20     section.  An employee or agent may not use coercive language or
4-21     action in an attempt to persuade a consumer to purchase a loss
4-22     damage waiver.  For the purposes of this subsection, if the
4-23     consumer has declined a loss damage waiver, any further statement
4-24     or question by an employee or agent of the merchant making
4-25     reference to the loss damage waiver, other than a statement that
4-26     the waiver has been declined, made in conjunction with a review of
 5-1     the rental-purchase agreement is considered coercive.
 5-2           (g)  A merchant may not sell a loss damage waiver unless the
 5-3     merchant:
 5-4                 (1)  annually registers with the Texas Department of
 5-5     Licensing and Regulation; and
 5-6                 (2)  files with the Texas Department of Licensing and
 5-7     Regulation a copy of each loss damage waiver agreement form used by
 5-8     the merchant.
 5-9           (h)  The Texas Department of Licensing and Regulation may:
5-10                 (1)  charge a merchant a fee for registration under
5-11     Subsection (g) in an amount designed to recover the department's
5-12     costs in issuing the registration;
5-13                 (2)  set the amount of the registration fee by rule;
5-14     and
5-15                 (3)  by rule adopt procedures for applying for
5-16     registration under Subsection (g).
5-17           (i)  The commissioner of licensing and regulation shall
5-18     enforce this section and may investigate any consumer complaint
5-19     concerning the amount of loss damage waiver fees charged by a
5-20     merchant.
5-21           SECTION 4.  The change in law made by this Act applies only
5-22     to a rental-purchase agreement entered into on or after the
5-23     effective date of this Act.  A rental-purchase agreement entered
5-24     into before the effective date of this Act is governed by the law
5-25     in effect when the rental-purchase agreement was entered into, and
5-26     the former law is continued in effect for that purpose.  The
 6-1     registration and filing requirements apply on and after January 1,
 6-2     2002.
 6-3           SECTION 5.  This Act takes effect September 1, 2001.