78R3794 RCJ-D
By: Dukes H.B. No. 1176
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of unsolicited commercial electronic
mail; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Business & Commerce Code, is amended by
adding Chapter 46 to read as follows:
CHAPTER 46. ELECTRONIC MAIL SOLICITATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 46.001. DEFINITIONS. In this chapter:
(1) "Commercial electronic mail message" means an
electronic mail message sent to promote a product or service for
sale or lease.
(2) "Electronic mail" means an electronic message or
computer file containing an image of a message that is transmitted
between two or more computers. The term includes an electronic
message that is transmitted within or between computer networks.
(3) "Electronic mail address" means a destination,
commonly expressed as a string of characters, to which electronic
mail may be sent or delivered.
(4) "Electronic mail service provider" means a
business or organization qualified to do business in this state
that provides users the ability to send or receive electronic mail.
(5) "Electronic mail solicitor" means a person who
sends or causes to be sent a commercial electronic mail message.
(6) "Established business relationship" means a prior
or existing relationship of a person formed by a voluntary two-way
communication between a person and another person, regardless of
whether consideration is exchanged, regarding a product or service
offered by one of the persons, that has not been terminated by
either party.
(7) "Interactive computer service" has the meaning
assigned by Section 35.101.
(8) "Obscene" has the meaning assigned by Section
43.21, Penal Code.
(9) "Sexual performance" has the meaning assigned by
Section 43.25, Penal Code.
(10) "Unsolicited commercial electronic mail message"
means a commercial electronic mail message that is addressed to a
recipient with whom the initiator does not have an existing
business or personal relationship and that is not sent at the
request of or with the consent of the recipient.
Sec. 46.002. APPLICABILITY. This chapter does not apply to
an action by an intervening interactive computer service or
electronic mail service provider that handles or retransmits the
message, unless the service or provider assists in transmitting an
electronic mail message when the service or provider knows or is
consciously indifferent to the fact that the person sending the
message is engaged or intends to engage in an act or practice that
violates this chapter.
[Sections 46.003-46.050 reserved for expansion]
SUBCHAPTER B. ELECTRONIC MAIL SOLICITATIONS
Sec. 46.051. UNSOLICITED ELECTRONIC MAIL MESSAGES; SUBJECT
DISCLOSURE; TOLL-FREE NUMBER. (a) An electronic mail solicitor
may not take any action to send an unsolicited commercial
electronic mail message unless:
(1) "ADV" is used as the first three characters in the
subject line of the message or, if the message contains any obscene
material or material depicting a sexual performance, "ADV-Adult" is
used as the first word on the subject line; and
(2) the name, the address, and a toll-free telephone
number or valid electronic mail address of the electronic mail
solicitor appears in the body of the message, enabling the
recipient to contact the solicitor and request:
(A) removal from the solicitor's electronic mail
list; or
(B) that the solicitor send commercial
electronic mail solicitations for specific products or services
only.
(b) An electronic mail solicitor or a person acting on
behalf of the electronic mail solicitor may not:
(1) send an unsolicited commercial electronic mail
message to a recipient who has requested removal from the
electronic mail solicitor's electronic mail list under Subsection
(a)(2); or
(2) send, to a person who has requested solicitations
only for certain products or services under Subsection (a)(2), an
unsolicited commercial electronic mail message solicitation for a
product or service not included in the request.
[Sections 46.052-46.100 reserved for expansion]
SUBCHAPTER C. ENFORCEMENT
Sec. 46.101. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 46.051.
(b) An offense under this section is a Class B misdemeanor.
SECTION 2. Title 4, Business & Commerce Code, is amended by
adding Chapter 47 to read as follows:
CHAPTER 47. REGULATION OF ELECTRONIC MAIL SOLICITATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 47.001. DEFINITIONS. In this chapter:
(1) "Commercial electronic mail solicitation" means
an electronic mail message sent to promote an item for sale or lease
that is initiated by a solicitor for the purpose of inducing a
person to purchase, rent, claim, or receive an item. The term
includes electronic mail sent by a purchaser in response to a
solicitation sent by mail or made by any other means.
(2) "Electronic mail" means an electronic message or
computer file containing an image of a message that is transmitted
between two or more computers. The term includes an electronic
message that is transmitted within or between computer networks.
(3) "Electronic mail address" means a destination,
commonly expressed as a string of characters, to which electronic
mail may be sent or delivered.
(4) "Electronic mail service provider" means a
business or organization qualified to do business in this state
that provides users the ability to send or receive electronic mail.
(5) "Established business relationship" means a prior
or existing relationship of a person formed by a voluntary two-way
communication between a person and another person, regardless of
whether consideration is exchanged, regarding an item offered by
one of the persons, that has not been terminated by either party.
(6) "Interactive computer service" has the meaning
assigned by Section 35.101.
(7) "Item" means a product, property, or service.
(8) "Owner" means a person who has control or is
entitled to, by ownership or other claim, at least 10 percent of the
net income of a seller.
(9) "Purchaser" means a person who is:
(A) solicited to become or becomes obligated for
the purchase or rental of an item; or
(B) offered the opportunity to claim or receive
an item.
(10) "Representative" means a person employed or
authorized by a seller to make a commercial electronic mail
solicitation.
(11) "Seller" means a person who makes a commercial
electronic mail solicitation on the person's own behalf.
(12) "Supervised financial institution" means a bank,
trust company, savings and loan association, credit union,
industrial loan company, personal property broker, consumer
finance lender, commercial finance lender, insurer, or other
financial institution that is subject to supervision by an official
or agency of this state or the United States.
Sec. 47.002. MAKING A COMMERCIAL ELECTRONIC MAIL
SOLICITATION. In this chapter a person makes a commercial
electronic mail solicitation if the person effects or attempts to
effect a commercial electronic mail solicitation.
Sec. 47.003. APPLICABILITY. This chapter does not apply to
an action by an intervening interactive computer service or
electronic mail service provider that handles or retransmits a
commercial electronic mail solicitation, unless the service or
provider assists in transmitting an electronic mail message when
the service or provider knows or is consciously indifferent to the
fact that the person sending the message is engaged or intends to
engage in an act that violates this chapter.
Sec. 47.004. CONSTRUCTION AND APPLICATION. This chapter
shall be liberally construed and applied to promote its underlying
purpose to protect persons against false, misleading, or deceptive
practices in the commercial electronic mail solicitation business.
[Sections 47.005-47.050 reserved for expansion]
SUBCHAPTER B. EXEMPTIONS
Sec. 47.051. CLAIM OF EXEMPTION. (a) In a civil proceeding
alleging a violation of this chapter, the burden of proving an
exemption is on the person claiming the exemption.
(b) In a criminal proceeding alleging a violation of this
chapter, the burden of producing evidence to support a defense of an
exemption is on the person claiming the exemption.
Sec. 47.052. EXEMPTIONS APPLY TO SELLER. The exemptions
provided by this chapter apply only to a seller making a commercial
electronic mail solicitation on the seller's own behalf.
Sec. 47.053. PERSONS OR ITEMS REGULATED BY OTHER LAW. This
chapter does not apply to:
(1) a person offering or selling a security that has
been qualified for sale under Section 7, The Securities Act
(Article 581-7, Vernon's Texas Civil Statutes), or that is subject
to an exemption under Section 5 or 6 of that Act;
(2) a publicly traded corporation registered with the
Securities and Exchange Commission or the State Securities Board,
or a subsidiary or agent of the corporation;
(3) a person licensed under the Insurance Code if the
solicited transaction is governed by the Insurance Code;
(4) a supervised financial institution or parent,
subsidiary, or affiliate of a supervised financial institution;
(5) a person or affiliate of a person whose business is
regulated by the Public Utility Commission of Texas;
(6) a person subject to the control or licensing
regulations of the Federal Communications Commission;
(7) a person selling a contractual plan regulated by
the Federal Trade Commission trade regulation on use of negative
option plans by sellers in commerce under 16 C.F.R. Part 425;
(8) a person subject to the filing requirements of
Chapter 1803, Occupations Code; or
(9) a person soliciting a transaction regulated by the
Commodity Futures Trading Commission if the person is registered or
temporarily licensed for that activity with the Commodity Futures
Trading Commission under the Commodity Exchange Act (7 U.S.C.
Section 1 et seq.) and the registration or license has not expired
or been suspended or revoked.
Sec. 47.054. ESTABLISHED BUSINESS RELATIONSHIP. This
chapter does not apply to a commercial electronic mail solicitation
made to a person with whom the solicitor has an established business
relationship.
Sec. 47.055. CERTAIN NONPROFIT AND EDUCATIONAL
ORGANIZATIONS. This chapter does not apply to an educational
institution or organization or a nonprofit organization exempt from
taxation under Section 501(c)(3), Internal Revenue Code of 1986, as
amended.
Sec. 47.056. CERTAIN ISOLATED SOLICITATIONS. This chapter
does not apply to a person engaging in a commercial electronic mail
solicitation that is an isolated transaction and not done in the
course of a pattern of repeated transactions of a similar nature.
[Sections 47.057-47.100 reserved for expansion]
SUBCHAPTER C. REGISTRATION
Sec. 47.101. REGISTRATION REQUIRED. (a) A seller may not
engage in commercial electronic mail solicitation from a location
in this state or to a purchaser located in this state without a
registration certificate for the business location from which the
solicitation is made.
(b) A separate registration certificate is required for
each business location from which a solicitation is made.
Sec. 47.102. CONTENTS OF REGISTRATION STATEMENT;
VERIFICATION; PUBLIC INFORMATION. (a) A seller must file a
registration statement with the secretary of state to obtain a
registration certificate.
(b) A registration statement must be in the form prescribed
by the secretary of state and contain the information required by
Subchapter D.
(c) A registration statement must be verified by each
principal of the seller and must specify the date and location of
verification.
(d) The information included in or attached to a
registration statement is public information.
(e) In this section, "principal" means an owner, an
executive officer of a corporation, a general partner of a
partnership, a sole proprietor, a trustee of a trust, or another
individual with similar supervisory functions with respect to any
person.
Sec. 47.103. FILING FEE. The filing fee for a registration
statement is $200.
Sec. 47.104. ISSUANCE OF CERTIFICATE OF REGISTRATION. (a)
The secretary of state shall issue a registration certificate and
mail the certificate to the seller on receipt of:
(1) a completed registration statement;
(2) the registration statement filing fee;
(3) the security required by Section 47.107; and
(4) the consent regarding service of process required
by Section 47.108.
(b) If the seller uses one registration statement to
register more than one business location, the secretary of state
shall issue a registration certificate for each business location
and mail all the certificates to the principal business location
shown on the registration statement.
Sec. 47.105. EFFECTIVE DATE; RENEWAL. (a) A registration
statement becomes effective on the date that the secretary of state
issues the registration certificate.
(b) A registration statement is effective for one year and
may be renewed annually by:
(1) filing a renewal registration statement with the
information required by Subchapter D; and
(2) paying the registration statement filing fee.
Sec. 47.106. UPDATE ADDENDUM REQUIRED. (a) A seller shall
file with the secretary of state an addendum for each quarter after
the effective date of the registration providing the required
registration information for each representative who is soliciting
or has solicited on behalf of the seller during the preceding
quarter.
(b) In addition to the quarterly addendum, if a material
change in information submitted in a registration statement, other
than the information described by Subsection (a), occurs before the
date for renewal, a seller shall submit that information to the
secretary of state by filing an addendum.
Sec. 47.107. SECURITY. (a) A registration statement filed
under this chapter must be accompanied by:
(1) a bond executed by a corporate surety approved by
the secretary of state and licensed to do business in this state;
(2) an irrevocable letter of credit issued for the
benefit of the registrant by a supervised financial institution
whose deposits are insured by an agency of the federal government;
or
(3) a certificate of deposit in a supervised financial
institution whose deposits are insured by an agency of the federal
government, the principal of which may be withdrawn only on the
order of the secretary of state.
(b) The bond, letter of credit, or certificate of deposit
must be:
(1) in the amount of $10,000; and
(2) conditioned on the seller's compliance with this
chapter.
Sec. 47.108. SECRETARY OF STATE AS SELLER'S AGENT TO
RECEIVE SERVICE. (a) A seller shall file with the secretary of
state, in the form prescribed by the secretary of state, an
irrevocable consent appointing the secretary of state to act as the
seller's agent to receive service of process in a noncriminal suit,
action, or proceeding against the seller or the seller's successor,
executor, or administrator that may arise under this chapter if:
(1) an agent has not been designated under Section
47.151(15);
(2) the agent has resigned or died and a replacement
has not been designated under Section 47.106; or
(3) the agent cannot with reasonable diligence be
found at the designated address.
(b) Service on the secretary of state under this section has
the same effect as service on the seller. Service on the secretary
of state may be made by:
(1) leaving a copy of the process in the office of the
secretary of state;
(2) promptly sending by first-class mail a notice of
the service and a copy of the process to the seller's principal
business location at the last address on file with the secretary of
state; and
(3) filing the plaintiff's affidavit of compliance
with this section in the case on or before the return date of the
process, if any, or within an additional period that the court
allows.
[Sections 47.109-47.150 reserved for expansion]
SUBCHAPTER D. DISCLOSURES REQUIRED IN REGISTRATION STATEMENT
Sec. 47.151. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND
ORGANIZATIONAL INFORMATION. A registration statement must
contain:
(1) the seller's name and the name under which the
seller is doing or intends to do business, if different from the
seller's name;
(2) the name of each parent and affiliated
organization of the seller that:
(A) will engage in business transactions with
purchasers relating to sales solicited by the seller; or
(B) accepts responsibility for statements made
by, or acts of, the seller relating to sales solicited by the
seller;
(3) the seller's business form and place of
organization;
(4) if the seller is a corporation, a copy of its
articles of incorporation and bylaws;
(5) if the seller is a partnership, a copy of the
partnership agreement;
(6) if the seller is a limited liability company, a
copy of the articles of organization and regulations or other
organizational documents;
(7) if the seller is operating under an assumed
business name, the location where the assumed name has been
registered;
(8) for any parent or affiliated organization
disclosed under Subdivision (2), the applicable information that is
required of a seller under Subdivisions (3)-(7);
(9) the complete street address of each location of
the seller, designating the principal location from which the
seller will be conducting business;
(10) if the principal business location of the seller
is not in this state, a designation of its main location in the
state;
(11) a listing of each electronic mail address to be
used by the seller and the physical address where each computer
initiating solicitations using that electronic mail address is
located;
(12) the name and title of each of the seller's
officers, directors, trustees, general and limited partners, and
owners or the seller's sole proprietor, as applicable, and the name
of each of those persons who has management responsibilities in
connection with the seller's business activities;
(13) the complete address of the principal residence,
the date of birth, and the number and state of issuance of the
driver's license of each person whose name is disclosed under
Subdivision (12);
(14) the name and principal residence address of each
person the seller leaves in charge at each location from which the
seller does business in this state and the business location at
which each of these persons is or will be in charge;
(15) the name and address of the seller's agent in this
state, other than the secretary of state, authorized to receive
service of process; and
(16) the name and address of each financial
institution with which banking or similar monetary transactions are
made by the seller and the identification number of each of the
seller's accounts in each institution.
Sec. 47.152. DISCLOSURE OF CERTAIN CONVICTIONS, JUDGMENTS,
ORDERS, AND BANKRUPTCIES. (a) With respect to the seller and each
person identified under Section 47.151(12) or (14), a registration
statement must state the identity of each person:
(1) who has been convicted of or pleaded nolo
contendere to:
(A) a felony or misdemeanor involving an alleged
violation of this chapter; or
(B) fraud, theft, embezzlement, fraudulent
conversion, or misappropriation of property;
(2) against whom a final judgment or order has been
entered in a civil or administrative action, including a stipulated
judgment or order, in which the complaint or petition alleged:
(A) acts constituting a violation of this
chapter, fraud, theft, embezzlement, fraudulent conversion, or
misappropriation of property;
(B) the use of untrue or misleading
representations in an attempt to sell or dispose of property; or
(C) the use of unfair, unlawful, or deceptive
business practices;
(3) who is subject to an injunction or restrictive
court order relating to business activity as the result of an action
brought by a federal, state, or local public agency, including an
action affecting a vocational license; or
(4) who has, during the previous seven tax years:
(A) filed in bankruptcy;
(B) been adjudged a bankrupt;
(C) been reorganized due to insolvency; or
(D) been a principal, director, officer,
trustee, general or limited partner of, or had management
responsibilities for, a corporation, partnership, joint venture,
limited liability company, or other business entity that has filed
in bankruptcy, been adjudged a bankrupt, or been reorganized due to
insolvency while the person held that position or within one year
after the date on which the person last held that position.
(b) Under Subsections (a)(1), (2), and (3), the statement
must identify the:
(1) court or administrative agency rendering the
conviction, judgment, or order;
(2) docket number of the matter;
(3) date of conviction, judgment, or order; and
(4) name of the governmental agency, if any, that
brought the action resulting in the conviction, judgment, or order.
(c) Under Subsection (a)(4), the statement must include
the:
(1) name and location of the person filing in
bankruptcy, adjudged a bankrupt, or reorganized due to insolvency;
(2) date of the filing, judgment, or reorganization
order;
(3) court having jurisdiction; and
(4) docket number of the matter.
Sec. 47.153. DISCLOSURE OF CERTAIN SALES INFORMATION. The
registration statement must be accompanied by:
(1) a description of the item the seller is offering
for sale;
(2) a copy of all sales information and literature,
including sample introductions, sample closings, product
information, and contest or premium-award information, provided by
the seller to representatives or about which the seller informs
representatives;
(3) a copy of all written material the seller sends to
any purchaser;
(4) if the seller represents or implies, or directs
representatives to represent or imply, to purchasers that the
purchaser will receive a specific item, including a certificate
that the purchaser must redeem to obtain the item described in the
certificate, or one or more items from among designated items,
whether the items are designated as gifts, premiums, bonuses,
prizes, or otherwise:
(A) a list of the items described;
(B) the value of each item and the basis for the
valuation;
(C) the price paid by the seller to its supplier
for each item and the name, address, and telephone number of the
supplier of each item;
(D) if the purchaser is to receive fewer than all
of the items described by the seller:
(i) the manner in which the seller decides
which item a particular purchaser is to receive;
(ii) for each item, the odds of a single
purchaser's receiving the item; and
(iii) the name and address of each
recipient who has received, during the preceding 12 months or, if
the seller has not been in business that long, during the period the
seller has been in business, the item having the greatest value and
the item with the smallest odds of being received; and
(E) all rules, regulations, and terms a purchaser
must meet to receive the item;
(5) if the seller is offering an item that the seller
does not manufacture or supply:
(A) the name, address, and telephone number of
each of the seller's suppliers and a description of each item
provided by the supplier;
(B) if the possession of the item is to be
retained by the seller or will not be transferred to the purchaser
until the purchaser has paid in full:
(i) the address of each location where the
item will be kept;
(ii) if not kept on premises owned by the
seller or at an address registered under Section 47.151(9) or (10),
the name of the owner of the business at which the item will be kept;
and
(iii) a copy of any contract or other
document that evidences the seller's right to store the item at the
address designated under Subparagraph (ii);
(C) if the seller is not selling the item from its
own inventory but purchases the item to fill an order already taken
from a purchaser, copies of all contracts or other documents
evidencing the seller's ability to call on suppliers to fill the
seller's orders;
(D) if the seller represents to purchasers that
the seller has insurance or a surety bond relating to a purchaser's
purchase of an item, a copy of each insurance policy and bond; and
(E) if the seller makes a representation as to
the post-purchase earning or profit potential of an item, data to
substantiate the claims made and, if the representation relates to
previous sales made by the seller or a related entity,
substantiating data based on the experiences of at least 50 percent
of the persons who purchased that particular type of item from the
seller or related entity during the preceding six months or, if the
seller or related entity has not been in business that long, during
the period the seller or related entity has been in business,
including:
(i) the period the seller or related entity
has been selling the particular type of item being offered;
(ii) the number of purchasers of the item
from the seller or related entity known to the seller or related
entity to have made at least the same earnings or profit as those
represented; and
(iii) the percentage that the number
disclosed under Subparagraph (ii) represents of the total number of
purchasers from the seller or related entity of the particular type
of item offered; and
(6) if the seller is offering to sell an interest in an
oil, gas, or mineral field, well, or exploration site:
(A) the seller's ownership interest, if any, in
each field, well, or site being offered for sale;
(B) the total number of interests to be sold in
each field, well, or site being offered for sale; and
(C) if, in selling an interest in any particular
field, well, or site, reference is made to an investigation of the
field, well, or site by the seller or anyone else:
(i) the name, business address, telephone
number, and professional credentials of the person who made the
investigation; and
(ii) a copy of the report and other
documents relating to the investigation prepared by the person.
[Sections 47.154-47.200 reserved for expansion]
SUBCHAPTER E. ADDITIONAL INFORMATION FROM SELLER
Sec. 47.201. INFORMATION POSTED OR AVAILABLE AT SELLER'S
BUSINESS LOCATION. (a) A seller shall post the registration
certificate in a conspicuous place at the location for which it is
issued.
(b) A seller shall make available at each of the seller's
business locations a copy of the entire registration statement and
addenda, if any, for inspection by a purchaser or representative of
a governmental agency.
(c) A seller shall post in close proximity to the
registration certificate the name of each individual in charge of
the location.
Sec. 47.202. DISCLOSURES TO PROSPECTIVE PURCHASERS. A
seller shall, when the solicitation is made and before consummation
of any sales transaction, provide to each purchaser:
(1) the complete street address of the location from
which the representative is sending the commercial electronic mail
message to the purchaser and, if different, the complete street
address of the seller's principal location;
(2) if the seller represents or implies that a
purchaser will receive without charge a specified item or one item
from among designated items, whether the items are designated as
gifts, premiums, bonuses, prizes, or otherwise:
(A) the information required to be filed by
Sections 47.153(4)(D)(i), (D)(ii), and (E), as appropriate; and
(B) the total number of individuals who have
actually received from the seller during the preceding 12 months
or, if the seller has not been in the business that long, during the
period the seller has been in business the item having the greatest
value and the item with the smallest odds of being received;
(3) if the seller is offering to sell an interest in an
oil, gas, or mineral field, well, or exploration site, the
information required by Section 47.153(6); and
(4) if the seller represents that an item is being
offered at a price below that usually charged for the item, the name
of the manufacturer of the item.
Sec. 47.203. REFERENCE TO COMPLIANCE WITH STATUTE
PROHIBITED. A seller may not make or authorize the making of a
reference to its compliance with this chapter to a purchaser.
[Sections 47.204-47.250 reserved for expansion]
SUBCHAPTER F. OFFENSES
Sec. 47.251. VIOLATION OF CHAPTER. (a) A person commits an
offense if the person knowingly violates Section 47.101, 47.106,
47.201, 47.202, or 47.203. Each violation constitutes a separate
offense.
(b) An offense under this section is a Class A misdemeanor.
Sec. 47.252. REPRESENTATIVE FOR UNREGISTERED AGENT. (a) A
person commits an offense if the person knowingly acts as a
representative on behalf of a seller who violates the registration
requirements of this chapter. Each violation constitutes a
separate offense.
(b) An offense under this section is a Class A misdemeanor.
Sec. 47.253. REQUEST OF CREDIT CARD ACCOUNT NUMBER OR
CHECKING ACCOUNT NUMBER AFTER OFFER OF FREE ITEM. (a) A seller
commits an offense if the seller knowingly:
(1) represents or implies that a purchaser will
receive without charge an item or service, regardless of whether
designated as a gift, premium, bonus, prize, or otherwise; and
(2) requests a credit card account number or checking
account number from the purchaser for the purpose of charging to the
credit card account or debiting from the checking account an amount
as a condition precedent to the purchaser's receipt of an item.
(b) An offense under this section is a Class A misdemeanor.
[Sections 47.254-47.300 reserved for expansion]
SUBCHAPTER G. ENFORCEMENT
Sec. 47.301. INJUNCTION. (a) The attorney general may
bring suit to enjoin a person from violating this chapter.
(b) The attorney general shall notify the defendant of the
alleged prohibited conduct not later than the seventh day before
the date the suit is filed except that if the attorney general
intends to request that the court issue a temporary restraining
order notice is not required.
(c) The attorney general is entitled to recover all
reasonable costs of prosecuting the case, including court costs and
costs of investigation, depositions, witness fees, and attorney's
fees.
Sec. 47.302. CIVIL PENALTIES. (a) A person who violates
this chapter is subject to a civil penalty of not more than $5,000
for each violation.
(b) A person who violates an injunction issued under Section
47.301 is liable to this state for a civil penalty of not more than
$25,000 for each violation and not more than $50,000 for all
violations of the injunction.
(c) The attorney general may bring suit to recover a civil
penalty under Subsection (b) in the court that issued the original
injunction.
(d) The party bringing the suit also is entitled to recover
all reasonable costs of prosecuting the case, including court costs
and costs of investigation, depositions, witness fees, and
attorney's fees.
Sec. 47.303. DECEPTIVE TRADE PRACTICES. A violation of
this chapter is a false, misleading, or deceptive act or practice
under Subchapter E, Chapter 17, and any public or private right or
remedy prescribed by that subchapter may be used to enforce this
chapter.
Sec. 47.304. ACTION TO RECOVER AGAINST SECURITY. (a) A
person who is injured by the bankruptcy of a seller or the seller's
breach of an agreement entered into during an exchange of
communications that began with an unsolicited commercial
electronic mail solicitation may bring an action to recover against
the bond, letter of credit, or certificate of deposit required
under Section 47.107.
(b) The liability of the surety on a bond provided under
Section 47.107 does not exceed the amount of the bond, regardless of
the number of claims filed or the aggregate amount claimed. If the
amount claimed exceeds the amount of the bond, the surety shall
deposit the amount of the bond with the secretary of state for
distribution to claimants entitled to recovery, and the surety is
then relieved of all liability under the bond.
Sec. 47.305. WAIVER PROHIBITED. An attempted waiver of a
provision of this chapter is void.
SECTION 3. (a) The change in law made by Section 1 of this
Act takes effect September 1, 2003, and applies only to an
electronic mail message sent on or after that date.
(b) The change in law made by Section 2 of this Act takes
effect January 1, 2004, and applies only to a person who effects or
attempts to effect a commercial electronic mail solicitation on or
after that date.