78R15874 DWS-F


By:  Van de Putte                                                 S.B. No. 1212

Substitute the following for S.B. No. 1212:                                   

By:  Kolkhorst                                                C.S.S.B. No. 1212



A BILL TO BE ENTITLED

AN ACT

relating to participation by the attorney general's consumer 
protection division and the award of civil penalties in an action 
under the Deceptive Trade Practices-Consumer Protection Act.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Section 17.47, Business & Commerce Code, is 
amended by amending Subsection (c) and adding Subsections (g) and 
(h) to read as follows:
	(c)  In addition to the request for a temporary restraining 
order, or permanent injunction in a proceeding brought under 
Subsection (a) of this section, the consumer protection division 
may request, and the trier of fact may award, a civil penalty to be 
paid to the state in an amount of:
		(1)  not more than $20,000 [$2,000] per violation[, not 
to exceed a total of $10,000]; and [or]
		(2)  [not more than $10,000 per violation, not to 
exceed a total of $100,000,] if [the consumer protection division 
determines that] the act or practice that is the subject of the 
proceeding was calculated to acquire or deprive money or other 
property from a consumer who was 65 years of age or older when the 
act or practice occurred, an additional amount of not more than 
$250,000.
	(g)  In determining the amount of penalty imposed under 
Subsection (c), the trier of fact shall consider:
		(1)  the seriousness of the violation, including the 
nature, circumstances, extent, and gravity of any prohibited act or 
practice;
		(2)  the history of previous violations;                               
		(3)  the amount necessary to deter future violations;                  
		(4)  the economic effect on the person against whom the 
penalty is to be assessed;
		(5)  knowledge of the illegality of the act or 
practice; and         
		(6)  any other matter that justice may require.                        
	(h)  In bringing or participating in an action under this 
subchapter, the consumer protection division acts in the name of 
the state and does not establish an attorney-client relationship 
with another person, including a person to whom the consumer 
protection division requests that the court award relief.
	SECTION 2.  Subchapter E, Chapter 17, Business & Commerce 
Code, is amended by adding Section 17.501 to read as follows:
	Sec. 17.501.  CONSUMER PROTECTION DIVISION PARTICIPATION IN 
CLASS ACTION.  (a)  A consumer filing an action under Section 17.50 
that is to be maintained as a class action shall send to the 
consumer protection division:
		(1)  a copy of the notice required by Section 
17.505(a), by registered or certified mail, at the same time the 
notice is given to the person complained against; and
		(2)  a copy of the petition in the action not later than 
the earlier of:
			(A)  the 30th day after the date the petition is 
filed; or          
			(B)  the 10th day before the date of any hearing on 
class certification or a proposed settlement.
	(b)  The court shall abate the action for 60 days if the court 
finds that notice was not provided to the consumer protection 
division as required by Subsection (a).
	(c)  The court, on a showing of good cause, may allow the 
consumer protection division, as representative of the public, to 
intervene in an action to which this section applies.  The consumer 
protection division shall file its motion for intervention with the 
court before which the action is pending and serve a copy of the 
motion on each party to the action.
	SECTION 3.  This Act takes effect September 1, 2003.                           
	SECTION 4.  The change in law made by this Act applies only 
to an action instituted on or after the effective date of this Act.  
An action instituted before the effective date of this Act is 
governed by the law in effect when the action was instituted, and 
the former law is continued in effect for that purpose.