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AN ACT
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relating to a nonsubstantive revision of statutes relating to |
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business and commerce; including conforming amendments. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. GENERAL MATTERS |
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SECTION 1.01. PURPOSE OF ACT. (a) This Act is enacted as a |
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part of the state's continuing statutory revision program under |
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Section 323.007, Government Code. The program contemplates a |
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topic-by-topic revision of the state's general and permanent |
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statute law without substantive change. |
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(b) Consistent with the objectives of the statutory |
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revision program, the purpose of this Act is to make the law |
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encompassed by this Act more accessible and understandable by: |
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(1) rearranging the statutes into a more logical |
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order; |
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(2) employing a format and numbering system designed |
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to facilitate citation of the law and to accommodate future |
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expansion of the law; |
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(3) eliminating repealed, duplicative, |
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unconstitutional, expired, executed, and other ineffective |
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provisions; and |
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(4) restating the law in modern American English to |
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the greatest extent possible. |
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ARTICLE 2. MISCELLANEOUS COMMERCIAL PROVISIONS |
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SECTION 2.01. TITLES 4 THROUGH 15 AND 99. The Business & |
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Commerce Code is amended by revising Title 4 and adding Titles 5 |
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through 15 and 99 to read as follows: |
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TITLE 4. BUSINESS OPPORTUNITIES AND AGREEMENTS |
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CHAPTER 51. BUSINESS OPPORTUNITIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 51.001. SHORT TITLE |
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Sec. 51.002. GENERAL DEFINITIONS |
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Sec. 51.003. DEFINITION OF BUSINESS OPPORTUNITY |
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Sec. 51.004. LIBERAL CONSTRUCTION AND APPLICATION |
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Sec. 51.005. BURDEN OF PROOF |
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Sec. 51.006. WAIVER |
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Sec. 51.007. MAINTENANCE OF RECORDS |
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Sec. 51.008. FILING FEE |
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Sec. 51.009. RULES |
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[Sections 51.010-51.050 reserved for expansion] |
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SUBCHAPTER B. REGISTRATION OF BUSINESS OPPORTUNITY |
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Sec. 51.051. FILING OF DISCLOSURE STATEMENTS AND LIST |
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OF SELLERS |
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Sec. 51.052. UPDATING OF INFORMATION ON FILE |
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Sec. 51.053. FILING OF DISCLOSURE DOCUMENT FROM OTHER |
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REGULATORY AGENCY |
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Sec. 51.054. FILING OF COPY OF BOND OR NOTIFICATION OF |
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ACCOUNT |
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[Sections 51.055-51.100 reserved for expansion] |
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SUBCHAPTER C. BOND, TRUST ACCOUNT, OR LETTER OF CREDIT |
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Sec. 51.101. BOND, TRUST ACCOUNT, OR LETTER OF CREDIT |
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REQUIRED |
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Sec. 51.102. ACTION AGAINST BOND, TRUST ACCOUNT, OR |
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LETTER OF CREDIT |
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[Sections 51.103-51.150 reserved for expansion] |
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SUBCHAPTER D. DISCLOSURE STATEMENT |
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Sec. 51.151. DISCLOSURE TO PURCHASER OF BUSINESS |
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OPPORTUNITY |
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Sec. 51.152. COVER SHEET OF DISCLOSURE STATEMENT |
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Sec. 51.153. CONTENTS: NAMES AND ADDRESSES |
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Sec. 51.154. CONTENTS: SALES PERIODS |
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Sec. 51.155. CONTENTS: SERVICES DESCRIPTION |
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Sec. 51.156. CONTENTS: UPDATED FINANCIAL STATEMENT |
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Sec. 51.157. CONTENTS: TRAINING DESCRIPTION |
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Sec. 51.158. CONTENTS: SECURITY DESCRIPTION |
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Sec. 51.159. CONTENTS: DELIVERY DATE; CANCELLATION OF |
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CONTRACT |
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Sec. 51.160. CONTENTS: SALES OR EARNINGS |
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REPRESENTATION |
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Sec. 51.161. CONTENTS: LEGAL ACTION HISTORY |
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Sec. 51.162. CONTENTS: BANKRUPTCY OR REORGANIZATION |
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Sec. 51.163. CONTENTS: CONTRACT COPY |
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Sec. 51.164. USE OF DISCLOSURE DOCUMENT FROM OTHER |
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REGULATORY AGENCY |
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[Sections 51.165-51.200 reserved for expansion] |
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SUBCHAPTER E. BUSINESS OPPORTUNITY CONTRACT |
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Sec. 51.201. FORM OF BUSINESS OPPORTUNITY CONTRACT |
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Sec. 51.202. DELIVERY OF COPIES OF DOCUMENTS TO |
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PURCHASER |
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Sec. 51.203. EFFECT OF ASSIGNMENT OF BUSINESS |
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OPPORTUNITY CONTRACT |
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[Sections 51.204-51.250 reserved for expansion] |
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SUBCHAPTER F. TERMINATION OF BUSINESS OPPORTUNITY REGISTRATION |
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Sec. 51.251. VOLUNTARY TERMINATION OF BUSINESS |
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OPPORTUNITY REGISTRATION |
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Sec. 51.252. INVOLUNTARY TERMINATION OF BUSINESS |
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OPPORTUNITY REGISTRATION |
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[Sections 51.253-51.300 reserved for expansion] |
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SUBCHAPTER G. ENFORCEMENT |
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Sec. 51.301. PROHIBITED ACTS |
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Sec. 51.302. DECEPTIVE TRADE PRACTICE; REMEDIES |
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Sec. 51.303. REVIEW AND SUIT BY ATTORNEY GENERAL |
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CHAPTER 51. BUSINESS OPPORTUNITIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 51.001. SHORT TITLE. This chapter may be cited as the |
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Business Opportunity Act. (Bus. & Com. Code, Sec. 41.001.) |
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Sec. 51.002. GENERAL DEFINITIONS. In this chapter: |
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(1) "Business opportunity contract" means an |
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agreement that obligates or is intended to obligate a purchaser to a |
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seller. |
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(2) "Buy-back" or "secured investment" means a |
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representation that implies a purchaser's payment is protected from |
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loss. |
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(3) "Equipment" includes electrical devices, video |
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and audio devices, molds, display units, including display racks, |
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and machines, including coin-operated game machines and vending and |
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other machines that dispense products. |
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(4) "Initial consideration" means the total amount a |
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purchaser is obligated to pay under a business opportunity contract |
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before or at the time products, equipment, supplies, or services |
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are delivered or within six months after the date the purchaser |
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begins operation of the business opportunity plan. The term means |
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the total sale price if the contract states a specific total sale |
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price for purchase of the business opportunity plan and the total |
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sale price is to be paid as a down payment and one or more additional |
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payments. The term does not include the not-for-profit sale of |
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sales demonstration materials, samples, or equipment for not more |
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than $500. |
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(5) "Marketing program" means advice or training that |
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a seller or a person recommended by a seller gives to a purchaser |
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regarding the sale of products, equipment, supplies, or services. |
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The term includes the preparation or provision of: |
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(A) a brochure, pamphlet, or advertising |
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material, including promotional literature; |
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(B) training regarding the promotion, operation, |
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or management of a business opportunity; or |
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(C) operational, managerial, technical, or |
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financial guidelines or assistance. |
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(6) "Product" includes tangible personal property. |
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(7) "Purchaser" means a person who becomes or is |
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solicited to become obligated under a business opportunity |
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contract. |
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(8) "Seller" means a principal or agent who sells or |
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leases or offers to sell or lease a business opportunity. |
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(9) "Services" includes any assistance, guidance, |
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direction, work, labor, or other services provided by a seller to |
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initiate or maintain a business opportunity. |
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(10) "Supplies" includes materials used to make, |
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produce, grow, or breed a product or item. (Bus. & Com. Code, Secs. |
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41.003(1), (2), (4), (5), (6), (7), (8), (9), (10), (11), (12).) |
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Sec. 51.003. DEFINITION OF BUSINESS OPPORTUNITY. (a) In |
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this chapter, "business opportunity" means a sale or lease for an |
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initial consideration of more than $500 of products, equipment, |
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supplies, or services that will be used by or for the purchaser to |
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begin a business in which the seller represents that: |
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(1) the purchaser will earn or is likely to earn a |
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profit in excess of the amount of the initial consideration the |
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purchaser paid; and |
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(2) the seller will: |
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(A) provide a location or assist the purchaser in |
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finding a location for the use or operation of the products, |
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equipment, supplies, or services on premises that are not owned or |
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leased by the purchaser or seller; |
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(B) provide a sales, production, or marketing |
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program; or |
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(C) buy back or is likely to buy back products, |
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equipment, or supplies purchased or products made, produced, grown, |
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or bred by the purchaser using wholly or partly the products, |
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equipment, supplies, or services that the seller initially sold or |
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leased or offered for sale or lease to the purchaser. |
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(b) In this chapter, "business opportunity" does not |
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include: |
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(1) the sale or lease of an established and ongoing |
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business or enterprise that has actively conducted business before |
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the sale or lease, whether composed of one or more than one |
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component business or enterprise, if the sale or lease represents |
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an isolated transaction or series of transactions involving a bona |
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fide change of ownership or control of the business or enterprise or |
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liquidation of the business or enterprise; |
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(2) a sale by a retailer of goods or services under a |
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contract or other agreement to sell the inventory of one or more |
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ongoing leased departments to a purchaser who is granted the right |
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to sell the goods or services within or adjoining a retail business |
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establishment as a department or division of the retail business |
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establishment; |
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(3) a transaction that is: |
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(A) regulated by the Texas Department of |
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Licensing and Regulation, the Texas Department of Insurance, the |
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Texas Real Estate Commission, or the director of the Motor Vehicle |
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Division of the Texas Department of Transportation; and |
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(B) engaged in by a person licensed by one of |
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those agencies; |
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(4) a real estate syndication; |
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(5) a sale or lease to a business enterprise that also |
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sells or leases products, equipment, or supplies or performs |
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services: |
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(A) that are not supplied by the seller; and |
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(B) that the purchaser does not use with the |
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seller's products, equipment, supplies, or services; |
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(6) the offer or sale of a franchise as described by |
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the Petroleum Marketing Practices Act (15 U.S.C. Section 2801 et |
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seq.) and its subsequent amendments; |
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(7) the offer or sale of a business opportunity if the |
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seller: |
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(A) has a net worth of $25 million or more |
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according to the seller's audited balance sheet as of a date not |
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earlier than the 13th month before the date of the transaction; or |
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(B) is at least 80 percent owned by another |
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person who: |
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(i) in writing unconditionally guarantees |
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performance by the person offering the business opportunity plan; |
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and |
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(ii) has a net worth of more than $25 |
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million according to the person's most recent audited balance sheet |
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as of a date not earlier than the 13th month before the date of the |
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transaction; or |
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(8) an arrangement defined as a franchise by 16 C.F.R. |
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Section 436.2(a) and its subsequent amendments if: |
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(A) the franchisor complies in all material |
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respects in this state with 16 C.F.R. Part 436 and each order or |
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other action of the Federal Trade Commission; and |
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(B) before offering for sale or selling a |
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franchise in this state, a person files with the secretary of state |
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a notice containing: |
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(i) the name of the franchisor; |
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(ii) the name under which the franchisor |
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intends to transact business; and |
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(iii) the franchisor's principal business |
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address. |
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(c) The secretary of state shall prescribe the form of the |
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notice described by Subsection (b)(8)(B). (Bus. & Com. Code, Sec. |
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41.004.) |
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Sec. 51.004. LIBERAL CONSTRUCTION AND APPLICATION. (a) |
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This chapter shall be liberally construed and applied to: |
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(1) protect persons against false, misleading, or |
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deceptive practices in the advertising, offering for sale or lease, |
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or sale or lease of business opportunities; and |
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(2) provide efficient and economical procedures to |
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secure that protection. |
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(b) In construing this chapter, a court to the extent |
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possible shall follow the interpretations given by the Federal |
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Trade Commission and the federal courts to Section 5(a)(1), Federal |
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Trade Commission Act (15 U.S.C. Section 45(a)(1)), and 16 C.F.R. |
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Part 436 and their subsequent amendments. (Bus. & Com. Code, Sec. |
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41.002.) |
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Sec. 51.005. BURDEN OF PROOF. A person who claims to be |
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exempt from this chapter has the burden of proving the exemption. |
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(Bus. & Com. Code, Sec. 41.005.) |
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Sec. 51.006. WAIVER. A waiver of this chapter is contrary |
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to public policy and void. (Bus. & Com. Code, Sec. 41.009.) |
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Sec. 51.007. MAINTENANCE OF RECORDS. (a) A seller shall |
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maintain a complete set of books, records, and accounts of business |
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opportunity sales made by the seller. |
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(b) A document relating to a business opportunity sold or |
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leased shall be maintained until the fourth anniversary of the date |
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of the business opportunity contract. (Bus. & Com. Code, Sec. |
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41.008.) |
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Sec. 51.008. FILING FEE. The secretary of state may charge a |
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reasonable fee to cover the costs incurred as a result of a filing |
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required by Subchapter B or Section 51.003 or 51.251. (Bus. & Com. |
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Code, Sec. 41.007.) |
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Sec. 51.009. RULES. The secretary of state may adopt rules |
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to administer and enforce this chapter. (Bus. & Com. Code, Sec. |
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41.006.) |
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[Sections 51.010-51.050 reserved for expansion] |
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SUBCHAPTER B. REGISTRATION OF BUSINESS OPPORTUNITY |
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Sec. 51.051. FILING OF DISCLOSURE STATEMENTS AND LIST OF |
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SELLERS. Before a sale or offer for sale, including advertising, of |
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a business opportunity, the principal seller must register the |
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business opportunity with the secretary of state by filing: |
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(1) a copy of the disclosure statement required by |
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Subchapter D, except as provided by Section 51.053; and |
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(2) a list of the name and resident address of any |
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individual who sells or will sell the business opportunity for the |
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principal seller. (Bus. & Com. Code, Sec. 41.051.) |
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Sec. 51.052. UPDATING OF INFORMATION ON FILE. (a) A copy |
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of a disclosure statement filed under Section 51.051 must be |
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updated through a new filing: |
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(1) annually; and |
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(2) when a material change occurs. |
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(b) The list filed under Section 51.051(2) must be updated |
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through a new filing every six months. (Bus. & Com. Code, Sec. |
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41.052.) |
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Sec. 51.053. FILING OF DISCLOSURE DOCUMENT FROM OTHER |
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REGULATORY AGENCY. Instead of filing with the secretary of state a |
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copy of a disclosure statement, a seller may file a copy of a |
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similar document required by the State Securities Board, Securities |
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and Exchange Commission, or Federal Trade Commission that contains |
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all the information required to be disclosed by this chapter. (Bus. & |
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Com. Code, Sec. 41.054 (part).) |
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Sec. 51.054. FILING OF COPY OF BOND OR NOTIFICATION OF |
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ACCOUNT. A principal seller who is required to obtain a bond or |
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establish a trust account under Subchapter C shall |
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contemporaneously file with the secretary of state a copy of: |
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(1) the bond; or |
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(2) the formal notification by the depository that the |
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trust account is established. (Bus. & Com. Code, Sec. 41.053.) |
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[Sections 51.055-51.100 reserved for expansion] |
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SUBCHAPTER C. BOND, TRUST ACCOUNT, OR LETTER OF CREDIT |
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Sec. 51.101. BOND, TRUST ACCOUNT, OR LETTER OF CREDIT |
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REQUIRED. (a) Before a seller makes a representation described by |
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Section 51.003(a)(1) or otherwise represents that the purchaser is |
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assured of making a profit from a business opportunity, the |
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principal seller must: |
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(1) obtain a surety bond from a surety company |
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authorized to transact business in this state; |
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(2) establish a trust account; or |
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(3) obtain an irrevocable letter of credit. |
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(b) The bond, trust account, or irrevocable letter of credit |
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must be: |
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(1) in an amount of $25,000 or more; and |
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(2) in favor of this state. (Bus. & Com. Code, Sec. |
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41.101.) |
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Sec. 51.102. ACTION AGAINST BOND, TRUST ACCOUNT, OR LETTER |
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OF CREDIT. (a) A person may bring an action against the bond, trust |
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account, or irrevocable letter of credit obtained or established |
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under Section 51.101 to recover actual damages for: |
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(1) a violation of this chapter; or |
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(2) the seller's breach of: |
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(A) the business opportunity contract; or |
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(B) an obligation arising from a business |
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opportunity sale. |
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(b) The aggregate liability of the surety, trustee, or |
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issuer in an action under Subsection (a) may not exceed the amount |
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of the bond, trust account, or irrevocable letter of credit. (Bus. & |
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Com. Code, Sec. 41.102.) |
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[Sections 51.103-51.150 reserved for expansion] |
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SUBCHAPTER D. DISCLOSURE STATEMENT |
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Sec. 51.151. DISCLOSURE TO PURCHASER OF BUSINESS |
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OPPORTUNITY. (a) Except as provided by Section 51.164, a seller |
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must provide a purchaser with a written disclosure statement that |
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meets the requirements of this subchapter. |
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(b) The seller must provide the disclosure statement at |
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least 10 business days before the earlier of the date: |
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(1) the purchaser signs a business opportunity |
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contract; or |
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(2) the seller receives any consideration. (Bus. & |
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Com. Code, Sec. 41.151.) |
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Sec. 51.152. COVER SHEET OF DISCLOSURE STATEMENT. (a) A |
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disclosure statement must have a cover sheet titled, in at least |
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12-point boldface capital letters, "DISCLOSURES REQUIRED BY TEXAS |
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LAW." The following statement must appear below the title in at |
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least 10-point boldface type: "The State of Texas has not reviewed |
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and does not endorse, approve, recommend, or sponsor any business |
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opportunity. The information contained in this disclosure has not |
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been verified by the state. If you have any questions about this |
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investment, see an attorney before you sign a contract or |
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agreement." |
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(b) Only the title and required statement may appear on the |
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cover sheet. (Bus. & Com. Code, Sec. 41.152.) |
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Sec. 51.153. CONTENTS: NAMES AND ADDRESSES. A disclosure |
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statement must contain: |
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(1) the name of the seller; |
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(2) each name under which the seller has transacted, |
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is transacting, or intends to transact business; |
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(3) the name of any parent or affiliated company that |
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will engage in a business transaction with the purchaser or that |
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takes responsibility for statements made by the seller; and |
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(4) the names, addresses, and titles of: |
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(A) the seller's officers, directors, trustees, |
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general partners, general managers, and principal executives; |
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(B) shareholders owning more than 20 percent of |
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the shares of the seller; and |
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(C) any other persons responsible for the |
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seller's business activities relating to the sale of business |
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opportunities. (Bus. & Com. Code, Sec. 41.153.) |
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Sec. 51.154. CONTENTS: SALES PERIODS. A disclosure |
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statement must: |
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(1) specify the period during which the seller has |
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sold business opportunities; and |
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(2) specify the period during which the seller has |
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sold business opportunities involving the products, equipment, |
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supplies, or services the seller is offering to the purchaser. |
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(Bus. & Com. Code, Sec. 41.154.) |
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Sec. 51.155. CONTENTS: SERVICES DESCRIPTION. A disclosure |
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statement must contain: |
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(1) a detailed description of the actual services the |
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seller undertakes to perform for the purchaser; and |
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(2) if the seller promises to perform services in |
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connection with the placement of products, equipment, or supplies |
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at a location: |
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(A) the full nature of those services; and |
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(B) the nature of any agreements to be made with |
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the owners or managers of that location. (Bus. & Com. Code, Sec. |
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41.155.) |
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Sec. 51.156. CONTENTS: UPDATED FINANCIAL STATEMENT. A |
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disclosure statement must contain a copy of a financial statement |
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of the seller that: |
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(1) was prepared according to generally accepted |
|
accounting principles within the previous 13 months; and |
|
(2) has been updated to reflect any material change in |
|
the seller's financial condition. (Bus. & Com. Code, Sec. 41.156.) |
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Sec. 51.157. CONTENTS: TRAINING DESCRIPTION. If the |
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seller promises training, the disclosure statement must contain a |
|
complete description of the training, including: |
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(1) the length of the training; and |
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(2) any costs of the training that the purchaser will |
|
be required to incur, including travel and lodging expenses. (Bus. & |
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Com. Code, Sec. 41.157.) |
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Sec. 51.158. CONTENTS: SECURITY DESCRIPTION. If the |
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seller is required to obtain a bond or establish a trust account, |
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the disclosure statement must contain one of the following |
|
statements, as applicable: |
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(1) "As required by Texas law, the seller has secured a |
|
bond issued by ______, a surety company authorized to do business in |
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this state. Before signing a contract to purchase this business |
|
opportunity, you should confirm the bond's status with the surety |
|
company."; or |
|
(2) "As required by Texas law, the seller has |
|
established a trust account with ______. Before signing a contract |
|
to purchase this business opportunity, you should confirm with the |
|
bank or savings institution the current status of the trust |
|
account." (Bus. & Com. Code, Sec. 41.158.) |
|
Sec. 51.159. CONTENTS: DELIVERY DATE; CANCELLATION OF |
|
CONTRACT. If the seller is required to deliver to the purchaser the |
|
product, equipment, or supplies necessary to begin substantial |
|
operation of the business and states a definite or approximate |
|
delivery date for the product, equipment, or supplies, the |
|
disclosure statement must contain the following statement: "If the |
|
seller fails to deliver the product, equipment, or supplies |
|
necessary to begin substantial operation of the business within 45 |
|
days of the delivery date stated in your contract, you may notify |
|
the seller in writing and cancel your contract." (Bus. & Com. Code, |
|
Sec. 41.159.) |
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Sec. 51.160. CONTENTS: SALES OR EARNINGS REPRESENTATION. |
|
If the seller makes a statement concerning sales or earnings that |
|
may be made through the business opportunity, the disclosure |
|
statement must contain a statement disclosing: |
|
(1) the total number of purchasers of business |
|
opportunities involving the product, equipment, supplies, or |
|
services being offered who to the seller's knowledge have, not |
|
earlier than the third year before the date of the disclosure |
|
statement, actually achieved sales of or received earnings in the |
|
amount or range specified; and |
|
(2) the total number of purchasers who, not earlier |
|
than the third year before the date of the disclosure statement, |
|
purchased business opportunities involving the product, equipment, |
|
supplies, or services being offered. (Bus. & Com. Code, Sec. |
|
41.160.) |
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Sec. 51.161. CONTENTS: LEGAL ACTION HISTORY. (a) A |
|
disclosure statement must contain a statement disclosing any person |
|
described by Section 51.153 who: |
|
(1) has, during the previous seven fiscal years: |
|
(A) been convicted of a felony, or pleaded nolo |
|
contendere to a felony charge, involving fraud, embezzlement, |
|
fraudulent conversion, or misappropriation of property; or |
|
(B) been held liable in a civil action resulting |
|
in a final judgment, or has settled out of court a civil action, |
|
involving: |
|
(i) allegations of fraud, embezzlement, |
|
fraudulent conversion, or misappropriation of property; |
|
(ii) the use of untrue or misleading |
|
representations in an attempt to sell or dispose of property; or |
|
(iii) the use of unfair, unlawful, or |
|
deceptive business practices; |
|
(2) is a party to a civil action involving: |
|
(A) allegations of fraud, 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; or |
|
(3) is subject to an injunction or restrictive order |
|
relating to business activity as a result of an action brought by a |
|
public agency or department. |
|
(b) A statement required by Subsection (a) must include: |
|
(1) the identity and location of any court or agency; |
|
(2) the date of any entry of a plea of nolo contendere, |
|
conviction, judgment, or decision; |
|
(3) any penalty imposed; |
|
(4) any damages assessed; |
|
(5) the terms of any settlement or order; and |
|
(6) the date, nature, and issuer of any order or |
|
ruling. (Bus. & Com. Code, Sec. 41.161.) |
|
Sec. 51.162. CONTENTS: BANKRUPTCY OR REORGANIZATION. (a) |
|
A disclosure statement must contain a statement disclosing any |
|
person described by Section 51.153 who has, during the previous |
|
seven fiscal years: |
|
(1) filed in bankruptcy; |
|
(2) been adjudged bankrupt; |
|
(3) been reorganized because of insolvency; or |
|
(4) been a principal, director, executive officer, or |
|
partner of any other person that, during or not later than the first |
|
anniversary of the end of the period the person held the position in |
|
relation to the other person, filed in bankruptcy, was adjudged |
|
bankrupt, or was reorganized because of insolvency. |
|
(b) A statement required by Subsection (a)(4) must include: |
|
(1) the name and location of the person who filed in |
|
bankruptcy, was adjudged bankrupt, or was reorganized; |
|
(2) the date of the filing, adjudication, or |
|
reorganization; and |
|
(3) any other material fact relating to the filing, |
|
adjudication, or reorganization. (Bus. & Com. Code, Sec. 41.162.) |
|
Sec. 51.163. CONTENTS: CONTRACT COPY. A disclosure |
|
statement must contain a copy of the business opportunity contract |
|
that the seller uses as a matter of course and that will be |
|
presented to the purchaser at closing. (Bus. & Com. Code, Sec. |
|
41.163.) |
|
Sec. 51.164. USE OF DISCLOSURE DOCUMENT FROM OTHER |
|
REGULATORY AGENCY. Instead of providing a disclosure statement to |
|
a purchaser under this subchapter, a seller may provide a copy of a |
|
similar document required by the State Securities Board, Securities |
|
and Exchange Commission, or Federal Trade Commission that contains |
|
all the information required to be disclosed by this chapter. (Bus. & |
|
Com. Code, Sec. 41.054 (part).) |
|
[Sections 51.165-51.200 reserved for expansion] |
|
SUBCHAPTER E. BUSINESS OPPORTUNITY CONTRACT |
|
Sec. 51.201. FORM OF BUSINESS OPPORTUNITY CONTRACT. A |
|
business opportunity contract must be in writing and include, in |
|
10-point type or in handwriting of an equivalent size, the |
|
following: |
|
(1) the terms of payment, including the initial |
|
consideration, down payment, and additional payments required; |
|
(2) a detailed description of the acts or services the |
|
seller undertakes to perform for the purchaser; |
|
(3) the seller's principal business address; |
|
(4) the name and address of the seller's agent in this |
|
state authorized to receive service of process; |
|
(5) the delivery date or, if the contract provides for |
|
staggered delivery times to the purchaser, the approximate delivery |
|
date of the products, equipment, or supplies the seller is to: |
|
(A) deliver to the purchaser's home or business |
|
address; or |
|
(B) place at a location owned or managed by a |
|
person other than the purchaser; and |
|
(6) a complete description of the nature of the |
|
buy-back or security arrangement if the seller has represented |
|
orally or in writing when selling, leasing, soliciting, or offering |
|
a business opportunity that there is a buy-back or that the initial |
|
consideration is secured. (Bus. & Com. Code, Sec. 41.201.) |
|
Sec. 51.202. DELIVERY OF COPIES OF DOCUMENTS TO PURCHASER. |
|
A copy of the completed business opportunity contract and any other |
|
document the seller requires the purchaser to sign shall be given to |
|
the purchaser at the time the purchaser signs the contract. (Bus. & |
|
Com. Code, Sec. 41.202.) |
|
Sec. 51.203. EFFECT OF ASSIGNMENT OF BUSINESS OPPORTUNITY |
|
CONTRACT. An assignee of a business opportunity contract or of the |
|
seller's rights under the contract is subject to all equities, |
|
rights, and defenses of the purchaser against the seller. (Bus. & |
|
Com. Code, Sec. 41.203.) |
|
[Sections 51.204-51.250 reserved for expansion] |
|
SUBCHAPTER F. TERMINATION OF BUSINESS OPPORTUNITY REGISTRATION |
|
Sec. 51.251. VOLUNTARY TERMINATION OF BUSINESS OPPORTUNITY |
|
REGISTRATION. The principal seller of a registered business |
|
opportunity may voluntarily terminate the business opportunity's |
|
registration with the secretary of state if: |
|
(1) the registered business opportunity will no longer |
|
be offered in this state; |
|
(2) the registered business opportunity has changed to |
|
the extent that it no longer meets the definition of a business |
|
opportunity under Section 51.003(a); |
|
(3) the registered business opportunity has become |
|
exempt under Section 51.003(b); or |
|
(4) the principal seller offering the registered |
|
business opportunity ceases to exist as a legal entity. (Bus. & |
|
Com. Code, Sec. 41.251.) |
|
Sec. 51.252. INVOLUNTARY TERMINATION OF BUSINESS |
|
OPPORTUNITY REGISTRATION. (a) The secretary of state may |
|
terminate the registration of a business opportunity registered |
|
under Section 51.051 if the seller does not comply with Section |
|
51.052. |
|
(b) The secretary of state must give the business |
|
opportunity registrant notice of the delinquency not later than the |
|
31st day before the date of termination of the business opportunity |
|
registration under Subsection (a). |
|
(c) The notice of delinquency must be given by certified |
|
mail addressed to the registered agent or the principal place of |
|
business of the business opportunity registrant noted in the latest |
|
filing made under this chapter. |
|
(d) The secretary of state may adopt rules governing: |
|
(1) the termination of a delinquent registration; |
|
(2) the effective date of the termination; and |
|
(3) the grace period, if any. (Bus. & Com. Code, Sec. |
|
41.252.) |
|
[Sections 51.253-51.300 reserved for expansion] |
|
SUBCHAPTER G. ENFORCEMENT |
|
Sec. 51.301. PROHIBITED ACTS. A seller may not: |
|
(1) employ a representation, device, scheme, or |
|
artifice to deceive a purchaser; |
|
(2) make an untrue statement of a material fact or omit |
|
to state a material fact in connection with the documents and |
|
information required to be provided to the secretary of state or |
|
purchaser; |
|
(3) represent that the business opportunity provides |
|
or will provide income or earning potential unless the seller: |
|
(A) has documented data to substantiate the |
|
representation of income or earning potential; and |
|
(B) discloses the data to the purchaser when the |
|
representation is made; or |
|
(4) make a claim or representation that is |
|
inconsistent with the information required to be disclosed by this |
|
chapter in: |
|
(A) advertising or other promotional material; |
|
or |
|
(B) an oral sales presentation, solicitation, or |
|
discussion between the seller and the purchaser. (Bus. & Com. Code, |
|
Sec. 41.301.) |
|
Sec. 51.302. DECEPTIVE TRADE PRACTICE; REMEDIES. (a) A |
|
violation of this chapter is a false, misleading, or deceptive act |
|
or practice under Section 17.46. |
|
(b) A public or private right or remedy prescribed by |
|
Chapter 17 may be used to enforce this chapter. (Bus. & Com. Code, |
|
Sec. 41.302.) |
|
Sec. 51.303. REVIEW AND SUIT BY ATTORNEY GENERAL. (a) The |
|
attorney general may review the copy of a disclosure statement |
|
filed with the secretary of state under Subchapter B. |
|
(b) If the disclosure statement fails to comply with this |
|
chapter, the attorney general may: |
|
(1) notify the secretary of state and the seller in |
|
writing of the deficiency; and |
|
(2) file suit to enjoin the seller from transacting |
|
business until the failure to comply has been corrected. |
|
(c) If the attorney general notifies the secretary of state |
|
under Subsection (b), the secretary of state shall: |
|
(1) attach a copy of the notice to the front of the |
|
disclosure statement; and |
|
(2) on inquiry of the status of the disclosure |
|
statement, disclose that a statement has been filed but that the |
|
attorney general has questioned the correctness of the statement. |
|
(Bus. & Com. Code, Sec. 41.303.) |
|
CHAPTER 52. INVENTION DEVELOPMENT SERVICES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 52.001. SHORT TITLE |
|
Sec. 52.002. DEFINITIONS |
|
Sec. 52.003. APPLICABILITY OF CHAPTER TO CONTRACT FOR |
|
INVENTION DEVELOPMENT SERVICES |
|
Sec. 52.004. WAIVER BY CUSTOMER PROHIBITED |
|
[Sections 52.005-52.050 reserved for expansion] |
|
SUBCHAPTER B. FINANCIAL REQUIREMENTS OF INVENTION DEVELOPERS |
|
Sec. 52.051. BOND REQUIRED |
|
Sec. 52.052. BENEFICIARY OF BOND; CLAIM AGAINST BOND |
|
Sec. 52.053. CASH DEPOSIT INSTEAD OF BOND |
|
[Sections 52.054-52.100 reserved for expansion] |
|
SUBCHAPTER C. INVENTION DEVELOPMENT SERVICES CONTRACT |
|
Sec. 52.101. WRITTEN CONTRACT REQUIRED; CUSTOMER COPY |
|
Sec. 52.102. MANDATORY CONTRACT TERMS |
|
Sec. 52.103. MULTIPLE CONTRACTS |
|
Sec. 52.104. PAYMENT FOR SERVICES; OPTION TO TERMINATE |
|
CONTRACT |
|
Sec. 52.105. COVER NOTICE REQUIRED |
|
Sec. 52.106. QUARTERLY REPORTS TO CUSTOMER REQUIRED |
|
[Sections 52.107-52.150 reserved for expansion] |
|
SUBCHAPTER D. ENFORCEMENT |
|
Sec. 52.151. CONTRACT VOIDABLE |
|
Sec. 52.152. PRIVATE CAUSE OF ACTION |
|
Sec. 52.153. DECEPTIVE TRADE PRACTICE |
|
Sec. 52.154. MUTUALLY EXCLUSIVE REMEDIES |
|
Sec. 52.155. PRESUMPTION OF INJURY |
|
Sec. 52.156. ENFORCEMENT BY ATTORNEY GENERAL |
|
Sec. 52.157. APPLICATION OF OTHER LAWS |
|
CHAPTER 52. INVENTION DEVELOPMENT SERVICES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 52.001. SHORT TITLE. This chapter may be cited as the |
|
Regulation of Invention Development Services Act. (V.A.C.S. Art. |
|
9020, Sec. 1.) |
|
Sec. 52.002. DEFINITIONS. In this chapter: |
|
(1) "Customer" means: |
|
(A) an individual who enters into a contract with |
|
an invention developer for invention development services; or |
|
(B) a firm, partnership, corporation, or other |
|
entity that enters into a contract with an invention developer for |
|
invention development services and is not purchasing those services |
|
as an adjunct to the traditional commercial enterprises in which |
|
the entity engages as a business. |
|
(2) "Invention" means a discovery, process, machine, |
|
design, formulation, product, concept, idea, or any combination of |
|
these, regardless of whether patentable. |
|
(3) "Invention developer" means an individual, firm, |
|
partnership, or corporation, or an agent, employee, officer, |
|
partner, or independent contractor of one of those entities, who: |
|
(A) performs or offers to perform invention |
|
development services for a customer; and |
|
(B) is not: |
|
(i) a federal, state, or local government |
|
department or agency; |
|
(ii) a nonprofit, charitable, scientific, |
|
or educational organization organized under the Texas Non-Profit |
|
Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil |
|
Statutes) or formed under Title 1 and Chapter 22, Business |
|
Organizations Code, or described by Section 170(b)(1)(A), Internal |
|
Revenue Code of 1986, as amended; |
|
(iii) an attorney acting within the scope |
|
of the attorney's professional license; |
|
(iv) a person registered to practice before |
|
the United States Patent and Trademark Office and acting within the |
|
scope of that person's professional license; or |
|
(v) a person, firm, corporation, |
|
association, or other entity that does not charge a fee, including |
|
reimbursement for expenditures made or costs incurred by the |
|
entity, for invention development services other than payment made |
|
from a portion of the income a customer received by virtue of an act |
|
performed by the entity. |
|
(4) "Invention development services" means an act done |
|
by or for an invention developer for the invention developer's |
|
procurement or attempted procurement of a licensee or buyer of an |
|
intellectual property right in an invention, including: |
|
(A) evaluating, perfecting, marketing, or |
|
brokering an invention; |
|
(B) performing a patent search; and |
|
(C) preparing or prosecuting a patent |
|
application by a person not registered to practice before the |
|
United States Patent and Trademark Office. (V.A.C.S. Art. 9020, |
|
Secs. 2, 3, 4.) |
|
Sec. 52.003. APPLICABILITY OF CHAPTER TO CONTRACT FOR |
|
INVENTION DEVELOPMENT SERVICES. This chapter applies to each |
|
contract under which an invention developer agrees to perform |
|
invention development services for a customer. (V.A.C.S. Art. |
|
9020, Sec. 5(a) (part).) |
|
Sec. 52.004. WAIVER BY CUSTOMER PROHIBITED. A waiver by a |
|
customer of a provision of this chapter is void. (V.A.C.S. Art. |
|
9020, Sec. 9(a) (part).) |
|
[Sections 52.005-52.050 reserved for expansion] |
|
SUBCHAPTER B. FINANCIAL REQUIREMENTS OF INVENTION DEVELOPERS |
|
Sec. 52.051. BOND REQUIRED. (a) Except as provided by |
|
Section 52.053, an invention developer performing or offering to |
|
perform invention development services in this state shall maintain |
|
a bond issued by a surety company authorized to transact business in |
|
this state. |
|
(b) The principal amount of the bond must equal at least the |
|
greater of: |
|
(1) five percent of the invention developer's gross |
|
income from the invention development business in this state during |
|
the invention developer's last fiscal year; or |
|
(2) $25,000. |
|
(c) The invention developer must file a copy of the bond |
|
with the secretary of state before the date the invention developer |
|
begins business in this state. |
|
(d) Before the 91st day after the last day of the invention |
|
developer's fiscal year, the invention developer shall change the |
|
amount of the bond if necessary to conform with this section and |
|
Section 52.052. (V.A.C.S. Art. 9020, Sec. 11(a).) |
|
Sec. 52.052. BENEFICIARY OF BOND; CLAIM AGAINST BOND. (a) |
|
The bond required by Section 52.051 must be: |
|
(1) in favor of this state; and |
|
(2) for the benefit of any person who, after entering |
|
into a contract for invention development services with the |
|
invention developer, is damaged by fraud, dishonesty, or failure to |
|
provide the invention developer's services in performance of the |
|
contract. |
|
(b) A person making a claim against the bond may bring an |
|
action against the invention developer and the surety. The |
|
aggregate liability of the surety to all persons for all breaches of |
|
conditions of the bond required by this section is limited to the |
|
amount of the bond. (V.A.C.S. Art. 9020, Sec. 11(b).) |
|
Sec. 52.053. CASH DEPOSIT INSTEAD OF BOND. Instead of |
|
furnishing the bond required by Section 52.051, the invention |
|
developer may provide for, in an amount equal to the amount of the |
|
bond required: |
|
(1) cash deposited with the secretary of state; |
|
(2) a certificate of deposit payable to the secretary |
|
of state and issued by a bank that is: |
|
(A) transacting business in this state; and |
|
(B) insured by the Federal Deposit Insurance |
|
Corporation; |
|
(3) an investment certificate of a share account |
|
assigned to the secretary of state and issued by a savings and loan |
|
association that is: |
|
(A) transacting business in this state; and |
|
(B) insured by the Federal Deposit Insurance |
|
Corporation; or |
|
(4) a bearer bond issued by the United States |
|
government or this state. (V.A.C.S. Art. 9020, Sec. 11(c).) |
|
[Sections 52.054-52.100 reserved for expansion] |
|
SUBCHAPTER C. INVENTION DEVELOPMENT SERVICES CONTRACT |
|
Sec. 52.101. WRITTEN CONTRACT REQUIRED; CUSTOMER COPY. (a) |
|
A contract for invention development services must be in writing. |
|
(b) The invention developer shall give a copy of the |
|
contract to the customer at the time the customer signs the |
|
contract. (V.A.C.S. Art. 9020, Sec. 5(a) (part).) |
|
Sec. 52.102. MANDATORY CONTRACT TERMS. (a) A contract for |
|
invention development services must contain in boldfaced type of |
|
not less than 10-point size: |
|
(1) the payment terms; |
|
(2) the contract termination rights required by |
|
Section 52.104; |
|
(3) a full, clear, and concise description of the |
|
specific acts or services that the invention developer agrees to |
|
perform for the customer; |
|
(4) a statement of whether the invention developer |
|
agrees to construct, sell, or distribute one or more prototypes, |
|
models, or devices embodying the customer's invention; |
|
(5) the full name and principal place of business of |
|
the invention developer; |
|
(6) the name and principal place of business of any |
|
parent, subsidiary, or affiliated company that may engage in |
|
performing any of the invention development services; |
|
(7) if the invention developer makes an oral or |
|
written representation of estimated or projected customer |
|
earnings, a statement of estimated or projected customer earnings |
|
and a description of the data on which the estimation or projection |
|
is based; |
|
(8) the name and address of the custodian of all |
|
records and correspondence pertaining to the invention development |
|
services described by the contract; |
|
(9) a statement that the invention developer: |
|
(A) is required to maintain all records and |
|
correspondence relating to performance of the invention |
|
development services for the customer until the second anniversary |
|
of the date the contract expires; and |
|
(B) on seven days' written notice will make the |
|
invention development services records and correspondence |
|
available to the customer or the customer's representative for |
|
review and copying at the customer's reasonable expense on the |
|
invention developer's premises during normal business hours; and |
|
(10) a time schedule for performance of the invention |
|
development services, including an estimated date by which |
|
performance is expected to be completed. |
|
(b) An invention developer is a fiduciary to the extent that |
|
the description of specific acts or services required by Subsection |
|
(a)(3) gives the invention developer discretion in determining |
|
which acts or services will be performed. (V.A.C.S. Art. 9020, Sec. |
|
8.) |
|
Sec. 52.103. MULTIPLE CONTRACTS. If it is the invention |
|
developer's normal practice to seek more than one contract in |
|
connection with an invention or if the invention developer normally |
|
seeks to perform services in connection with an invention in more |
|
than one phase with the performance of each phase covered in one or |
|
more subsequent contracts, the invention developer shall give to |
|
the customer at the time the customer signs the first contract: |
|
(1) a written statement describing that practice; and |
|
(2) a written summary of the developer's normal terms, |
|
if any, for subsequent contracts, including the approximate amount |
|
of the developer's normal fees or other consideration that the |
|
developer may require from the customer. (V.A.C.S. Art. 9020, Sec. |
|
5(b).) |
|
Sec. 52.104. PAYMENT FOR SERVICES; OPTION TO TERMINATE |
|
CONTRACT. (a) For purposes of this section, delivery of a |
|
promissory note, bill of exchange, or negotiable instrument of any |
|
kind to the invention developer or to a third party for the benefit |
|
of the invention developer is payment, regardless of the date or |
|
dates appearing on the instrument. |
|
(b) Notwithstanding any contractual provision to the |
|
contrary, payment for invention development services may not be |
|
required, made, or received before the fourth working day after the |
|
date the customer receives a copy of the contract for invention |
|
development services signed by the invention developer and the |
|
customer. |
|
(c) Until the payment for invention development services is |
|
made, the parties to the contract have the option to terminate the |
|
contract. The customer may exercise the option to terminate by |
|
refraining from making payment to the invention developer. The |
|
invention developer may exercise the option to terminate by giving |
|
to the customer a written notice of the invention developer's |
|
exercise of the option. The written notice becomes effective when |
|
the customer receives the notice. (V.A.C.S. Art. 9020, Secs. 5(c), |
|
(d), (e).) |
|
Sec. 52.105. COVER NOTICE REQUIRED. (a) A contract for |
|
invention development services must have attached a conspicuous and |
|
legible cover sheet that contains: |
|
(1) the name, home address, office address, and local |
|
office address of the invention developer; and |
|
(2) the following notice in boldfaced type of not less |
|
than 10-point size: |
|
THIS CONTRACT BETWEEN YOU AND AN INVENTION DEVELOPER IS |
|
REGULATED BY THE STATE OF TEXAS' REGULATION OF INVENTION |
|
DEVELOPMENT SERVICES ACT. YOU ARE NOT PERMITTED OR REQUIRED TO MAKE |
|
ANY PAYMENTS UNDER THIS CONTRACT UNTIL FOUR (4) WORKING DAYS AFTER |
|
YOU SIGN THIS CONTRACT AND RECEIVE A COMPLETED COPY OF IT. |
|
IF YOU ASSIGN EVEN A PARTIAL INTEREST IN THE INVENTION TO THE |
|
INVENTION DEVELOPER, THE INVENTION DEVELOPER MAY HAVE THE RIGHT TO |
|
SELL OR DISPOSE OF THE INVENTION WITHOUT YOUR CONSENT AND MAY NOT |
|
HAVE TO SHARE THE PROFITS WITH YOU. |
|
THE TOTAL NUMBER OF CUSTOMERS WHO HAVE CONTRACTED WITH THE |
|
INVENTION DEVELOPER SINCE (year) IS (number). THE TOTAL NUMBER OF |
|
CUSTOMERS KNOWN BY THIS INVENTION DEVELOPER TO HAVE RECEIVED, BY |
|
VIRTUE OF THIS INVENTION DEVELOPER'S PERFORMANCE, AN AMOUNT OF |
|
MONEY IN EXCESS OF THE AMOUNT PAID BY THE CUSTOMER TO THIS INVENTION |
|
DEVELOPER IS (number). |
|
YOU ARE ENCOURAGED TO CONSULT WITH A QUALIFIED ATTORNEY |
|
BEFORE SIGNING THIS CONTRACT. BY PROCEEDING WITHOUT THE ADVICE OF A |
|
QUALIFIED ATTORNEY, YOU COULD LOSE ANY RIGHTS YOU MIGHT HAVE IN YOUR |
|
IDEA OR INVENTION. |
|
(b) The invention developer shall complete the cover sheet |
|
by providing the proper information in the blanks of the cover |
|
sheet. In the first blank the invention developer shall enter the |
|
later of the year that the invention developer began to transact |
|
business or May 7, 1981. The invention developer may round the |
|
numbers the invention developer enters in the last two blanks to the |
|
nearest 100 and, in computing the numbers, may exclude persons who |
|
have contracted with the invention developer during the three |
|
calendar months preceding the date of the contract. If the number |
|
to be inserted in the third blank is zero, the invention developer |
|
shall enter a zero in the blank. |
|
(c) The cover sheet may not contain anything other than the |
|
information required by Subsection (a). (V.A.C.S. Art. 9020, Sec. |
|
6.) |
|
Sec. 52.106. QUARTERLY REPORTS TO CUSTOMER REQUIRED. At |
|
least once each calendar quarter during the term of a contract for |
|
invention development services, the invention developer shall |
|
deliver to the customer at the address specified in the contract a |
|
written report that identifies the contract and contains: |
|
(1) a full, clear, and concise description of the |
|
services performed up to the date of the report and of the services |
|
to be performed; and |
|
(2) the name and address of each person to whom the |
|
subject matter of the contract has been disclosed, the reason for |
|
each disclosure, the nature of the disclosure, and copies of all |
|
responses received as a result of those disclosures. (V.A.C.S. |
|
Art. 9020, Sec. 7.) |
|
[Sections 52.107-52.150 reserved for expansion] |
|
SUBCHAPTER D. ENFORCEMENT |
|
Sec. 52.151. CONTRACT VOIDABLE. A contract for invention |
|
development services is voidable at the option of the customer if |
|
the contract: |
|
(1) does not substantially comply with this chapter; |
|
or |
|
(2) was entered into in reliance on any false, |
|
fraudulent, or misleading information, representation, notice, or |
|
advertisement of the invention developer. (V.A.C.S. Art. 9020, |
|
Sec. 9(a) (part).) |
|
Sec. 52.152. PRIVATE CAUSE OF ACTION. (a) This section |
|
applies only to a customer who is injured by an invention |
|
developer's: |
|
(1) violation of this chapter; |
|
(2) false or fraudulent statement, representation, or |
|
omission of material fact; or |
|
(3) failure to make all disclosures required by this |
|
chapter. |
|
(b) A customer to whom this section applies may recover in a |
|
civil action against the invention developer: |
|
(1) the greater of: |
|
(A) the amount of any actual damages sustained by |
|
the customer; or |
|
(B) $1,000; |
|
(2) court costs; and |
|
(3) attorney's fees. (V.A.C.S. Art. 9020, Sec. 9(b).) |
|
Sec. 52.153. DECEPTIVE TRADE PRACTICE. The following acts, |
|
omissions, or failures by an invention developer constitute a |
|
deceptive trade practice under Chapter 17: |
|
(1) a violation of this chapter; |
|
(2) an omission of material fact; or |
|
(3) a failure to make a disclosure required by this |
|
chapter. (V.A.C.S. Art. 9020, Sec. 9(c) (part).) |
|
Sec. 52.154. MUTUALLY EXCLUSIVE REMEDIES. Remedies |
|
available under Sections 52.152 and 52.153 are mutually exclusive. |
|
(V.A.C.S. Art. 9020, Sec. 9(c) (part).) |
|
Sec. 52.155. PRESUMPTION OF INJURY. For purposes of |
|
Sections 52.152 and 52.153, a rebuttable presumption of injury is |
|
established by: |
|
(1) a substantial violation of this chapter by an |
|
invention developer; or |
|
(2) a customer's execution of a contract for invention |
|
development services in reliance on a false or fraudulent |
|
statement, representation, or an omission of material fact. |
|
(V.A.C.S. Art. 9020, Sec. 9(d).) |
|
Sec. 52.156. ENFORCEMENT BY ATTORNEY GENERAL. (a) The |
|
attorney general shall enforce this chapter. |
|
(b) The attorney general may: |
|
(1) recover a civil penalty not to exceed $2,000 for |
|
each violation of this chapter; and |
|
(2) seek equitable relief to restrain a violation of |
|
this chapter. (V.A.C.S. Art. 9020, Sec. 10.) |
|
Sec. 52.157. APPLICATION OF OTHER LAWS. This chapter does |
|
not nullify or limit any obligation, right, or remedy that is |
|
applicable or available under the law of this state. (V.A.C.S. Art. |
|
9020, Sec. 12.) |
|
CHAPTER 53. STORE LEASES |
|
Sec. 53.001. STORE LEASE CONTRACT |
|
CHAPTER 53. STORE LEASES |
|
Sec. 53.001. STORE LEASE CONTRACT. (a) A provision of a |
|
lease contract that requires a store to be open when another store |
|
located in the same shopping center is open does not apply on Sunday |
|
unless the provision specifically states that it applies on Sunday. |
|
(b) This section applies to a contract executed before or |
|
after September 1, 1985. (Bus. & Com. Code, Sec. 35.44.) |
|
CHAPTER 54. COMPENSATION AGREEMENTS FOR SALES REPRESENTATIVES |
|
Sec. 54.001. DEFINITIONS |
|
Sec. 54.002. CONTRACT |
|
Sec. 54.003. PAYMENT ON TERMINATION OF CERTAIN |
|
COMPENSATION AGREEMENTS |
|
Sec. 54.004. DAMAGES |
|
Sec. 54.005. PERSONAL JURISDICTION |
|
Sec. 54.006. WAIVER |
|
CHAPTER 54. COMPENSATION AGREEMENTS FOR SALES REPRESENTATIVES |
|
Sec. 54.001. DEFINITIONS. In this chapter: |
|
(1) "Commission" means compensation paid a sales |
|
representative by a principal in an amount based on a percentage of |
|
the dollar amount of certain orders for or sales of the principal's |
|
product. |
|
(2) "Principal" means a person who: |
|
(A) manufactures, produces, imports, or |
|
distributes a product for sale; |
|
(B) uses a sales representative to solicit orders |
|
for the product; and |
|
(C) compensates the sales representative wholly |
|
or partly by commission. |
|
(3) "Sales representative" means an independent |
|
contractor who solicits, on behalf of a principal, orders for the |
|
purchase at wholesale of the principal's product. (Bus. & Com. |
|
Code, Sec. 35.81.) |
|
Sec. 54.002. CONTRACT. (a) A contract between a principal |
|
and a sales representative under which the sales representative is |
|
to solicit wholesale orders within this state must: |
|
(1) be in writing or in a computer-based medium; and |
|
(2) state the method by which the sales |
|
representative's commission is to be computed and paid. |
|
(b) The principal shall provide the sales representative |
|
with a copy of the contract. |
|
(c) A provision in the contract establishing venue for an |
|
action arising under the contract in a state other than this state |
|
is void. (Bus. & Com. Code, Sec. 35.82.) |
|
Sec. 54.003. PAYMENT ON TERMINATION OF CERTAIN COMPENSATION |
|
AGREEMENTS. If a compensation agreement between a sales |
|
representative and a principal that does not comply with Section |
|
54.002 is terminated, the principal shall pay all commissions due |
|
the sales representative not later than the 30th working day after |
|
the date of the termination. (Bus. & Com. Code, Sec. 35.83.) |
|
Sec. 54.004. DAMAGES. A principal who fails to comply with |
|
a provision of a contract under Section 54.002 relating to payment |
|
of a commission or who fails to pay a commission as required by |
|
Section 54.003 is liable to the sales representative in a civil |
|
action for: |
|
(1) three times the unpaid commission due the sales |
|
representative; and |
|
(2) reasonable attorney's fees and costs. (Bus. & Com. |
|
Code, Sec. 35.84.) |
|
Sec. 54.005. PERSONAL JURISDICTION. A principal who is not |
|
a resident of this state and who enters into a contract subject to |
|
this chapter is considered to be transacting business in this state |
|
for purposes of the exercise of personal jurisdiction over the |
|
principal. (Bus. & Com. Code, Sec. 35.85.) |
|
Sec. 54.006. WAIVER. A provision of this chapter may not be |
|
waived, whether by an express waiver or by an attempt to make a |
|
contract or agreement subject to the laws of another state. A |
|
waiver of a provision of this chapter is void. (Bus. & Com. Code, |
|
Sec. 35.86.) |
|
CHAPTER 55. FARM, INDUSTRIAL, OFF-ROAD CONSTRUCTION, FORESTRY |
|
HARVESTING, AND OUTDOOR POWER EQUIPMENT DEALER AGREEMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 55.001. DEFINITIONS |
|
Sec. 55.002. SECURITY INTEREST |
|
Sec. 55.003. WAIVER OF CHAPTER |
|
[Sections 55.004-55.050 reserved for expansion] |
|
SUBCHAPTER B. PROVISIONS REGARDING DEALER AGREEMENT OR DEALERSHIP |
|
Sec. 55.051. SUPPLEMENTARY AGREEMENT |
|
Sec. 55.052. CHANGE IN COMPETITIVE CIRCUMSTANCES |
|
Sec. 55.053. INTEREST IN DEALERSHIP BY SALE OR |
|
TRANSFER |
|
Sec. 55.054. TRANSFER OF CONTROLLING INTEREST IN |
|
DEALERSHIP BY SUCCESSION |
|
Sec. 55.055. CONTINUATION OF AGREEMENT |
|
Sec. 55.056. CAUSE REQUIRED FOR TERMINATION |
|
Sec. 55.057. RENOVATION OR ADDITIONAL SPACE |
|
[Sections 55.058-55.100 reserved for expansion] |
|
SUBCHAPTER C. WARRANTIES |
|
Sec. 55.101. APPLICABILITY OF SUBCHAPTER |
|
Sec. 55.102. ACCEPTANCE OR REJECTION OF WARRANTY CLAIM |
|
Sec. 55.103. SUPPLIER'S RECOVERY OF WARRANTY CLAIM |
|
Sec. 55.104. PURCHASER'S WARRANTY AGREEMENT |
|
[Sections 55.105-55.150 reserved for expansion] |
|
SUBCHAPTER D. DELIVERY, SALE, AND RETURN OF EQUIPMENT |
|
Sec. 55.151. COERCED ORDERS, DELIVERIES, OR REFUSALS |
|
TO PURCHASE PROHIBITED |
|
Sec. 55.152. DISCRIMINATION AMONG DEALERS |
|
Sec. 55.153. LATE DELIVERY OF BACK-ORDERED SEASONAL |
|
DEMAND ITEM |
|
Sec. 55.154. SALES TO AFFILIATED DEALER |
|
Sec. 55.155. RETURN OF INVENTORY; RESPONSIBILITY FOR |
|
COSTS |
|
Sec. 55.156. RETURN OF DATA PROCESSING OR PERIPHERAL |
|
EQUIPMENT, SOFTWARE, OR CERTAIN TOOLS; |
|
RESPONSIBILITY FOR COSTS |
|
Sec. 55.157. SUPPLIER'S LIABILITY FOR LATE PAYMENT |
|
Sec. 55.158. EXCEPTIONS TO SUPPLIER'S REPURCHASE, |
|
PURCHASE, OR ASSUMPTION RESPONSIBILITY |
|
[Sections 55.159-55.200 reserved for expansion] |
|
SUBCHAPTER E. ENFORCEMENT |
|
Sec. 55.201. ACTION FOR VIOLATION OF CHAPTER |
|
CHAPTER 55. FARM, INDUSTRIAL, OFF-ROAD CONSTRUCTION, FORESTRY |
|
HARVESTING, AND OUTDOOR POWER EQUIPMENT DEALER AGREEMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 55.001. DEFINITIONS. In this chapter: |
|
(1) "Controlling interest" means 50 percent or more |
|
ownership of or a managing interest in a dealership. |
|
(2) "Current price" means an amount equal to the price |
|
listed in the supplier's printed price list in effect when a dealer |
|
agreement is terminated, less applicable trade and cash discounts. |
|
(3) "Dealer" means a person in the business of the |
|
retail sale of equipment. The term does not include an individual, |
|
partnership, or corporation who: |
|
(A) is primarily engaged in the retail sale and |
|
service of off-road construction and earth-moving equipment; |
|
(B) has purchased 75 percent or more of the |
|
dealer's total new product inventory from a single supplier under |
|
all agreements with that supplier; and |
|
(C) has a total annual average sales volume in |
|
excess of $100 million for the preceding three years with that |
|
single supplier for the territory for which the dealer is |
|
responsible in this state. |
|
(4) "Dealer agreement" means an oral or written |
|
contract, of definite or indefinite duration, between a supplier |
|
and a dealer, that states the rights and obligations of the parties |
|
with respect to the purchase or sale of equipment. |
|
(5) "Dealer cost" means an amount equal to the sum of |
|
the original invoice price that the dealer paid for inventory and |
|
the cost to the dealer of the inventory's delivery from the supplier |
|
to the dealer, less applicable discounts. |
|
(6) "Dealership" means the retail sale business |
|
engaged in by a dealer under a dealer agreement. |
|
(7) "Equipment" means farm tractors, farm implements, |
|
utility tractors, industrial tractors, forklifts, |
|
material-handling equipment, forestry harvesting equipment, |
|
off-road construction equipment, and outdoor power equipment and |
|
any attachments to or repair parts for those items. |
|
(8) "Inventory" means new or unused equipment that is |
|
provided by a supplier to a dealer under a dealer agreement and that |
|
was: |
|
(A) purchased within the 30-month period |
|
preceding the date of the termination of the dealership; or |
|
(B) listed in the supplier's current sales manual |
|
on the date of termination. |
|
(9) "Outdoor power equipment" means machinery |
|
operated by an engine or electric power and used in the landscaping |
|
or cultivation of land for nonagricultural purposes. The term |
|
includes lawn and garden implements. |
|
(10) "Supplier" means: |
|
(A) a person engaged in the manufacture, |
|
assembly, or wholesale distribution of equipment; or |
|
(B) the person's successor in interest, |
|
including a purchaser of assets or stock and a surviving |
|
corporation resulting from a merger, liquidation, or |
|
reorganization. (Bus. & Com. Code, Secs. 19.01(2), (3), (4), (5), |
|
(6), (7), (8), (9), (10), (11), (12).) |
|
Sec. 55.002. SECURITY INTEREST. This chapter does not |
|
affect a supplier's security interest in inventory. (Bus. & Com. |
|
Code, Sec. 19.03.) |
|
Sec. 55.003. WAIVER OF CHAPTER. An attempted waiver of a |
|
provision of this chapter is void. (Bus. & Com. Code, Sec. 19.05.) |
|
[Sections 55.004-55.050 reserved for expansion] |
|
SUBCHAPTER B. PROVISIONS REGARDING DEALER AGREEMENT OR DEALERSHIP |
|
Sec. 55.051. SUPPLEMENTARY AGREEMENT. A supplier may not |
|
coerce or compel a dealer to enter into a written or oral agreement |
|
supplementing a dealer agreement with the supplier unless the |
|
supplementary agreement is imposed on all other similarly situated |
|
dealers in this state. (Bus. & Com. Code, Sec. 19.21.) |
|
Sec. 55.052. CHANGE IN COMPETITIVE CIRCUMSTANCES. A |
|
supplier may not substantially change the competitive |
|
circumstances of a dealer agreement without cause. (Bus. & Com. |
|
Code, Sec. 19.27.) |
|
Sec. 55.053. INTEREST IN DEALERSHIP BY SALE OR TRANSFER. |
|
(a) A supplier may not prevent, by contract or otherwise, a dealer |
|
or an officer, member, partner, or shareholder of a dealer from |
|
selling or transferring a noncontrolling interest in the dealership |
|
to another person. |
|
(b) A supplier may prevent a person from selling or |
|
transferring a controlling interest in a dealership without the |
|
supplier's written consent. A supplier may not unreasonably |
|
withhold the supplier's consent to a sale or transfer of a |
|
controlling interest. (Bus. & Com. Code, Secs. 19.26(a), (b).) |
|
Sec. 55.054. TRANSFER OF CONTROLLING INTEREST IN DEALERSHIP |
|
BY SUCCESSION. (a) In this section, "family member" means an |
|
individual related within the second degree by consanguinity or |
|
affinity to an individual owning a controlling interest. |
|
(b) A supplier and a dealer may provide by written agreement |
|
for succession rights to a controlling interest in a dealership on |
|
the death of an individual owning the controlling interest. |
|
(c) If not otherwise determined by a written agreement |
|
between the dealer and supplier, on the death of an individual |
|
owning a controlling interest in a dealership, the family member to |
|
whom the interest passes by will or intestate succession may |
|
request that the supplier consent to a transfer of the ownership |
|
interest to the family member. |
|
(d) The supplier shall consent to a transfer described by |
|
Subsection (c) if the family member meets the reasonable financial, |
|
business experience, and character standards of the supplier. |
|
Before the 91st day after the date the supplier receives the family |
|
member's request, the supplier shall send a written response to the |
|
family member that: |
|
(1) grants the supplier's consent; or |
|
(2) states the supplier's refusal to consent and the |
|
specific reasons for the refusal. (Bus. & Com. Code, Secs. |
|
19.26(c), (d).) |
|
Sec. 55.055. CONTINUATION OF AGREEMENT. Section 55.053 or |
|
55.054 does not require a supplier to continue a dealer agreement if |
|
the supplier determines that the dealer's area of responsibility or |
|
trade area lacks sufficient sales potential to reasonably support |
|
continuation of the agreement. (Bus. & Com. Code, Sec. 19.26(e).) |
|
Sec. 55.056. CAUSE REQUIRED FOR TERMINATION. A supplier |
|
may not terminate, cancel, or fail to renew a dealer agreement |
|
without cause. (Bus. & Com. Code, Sec. 19.41.) |
|
Sec. 55.057. RENOVATION OR ADDITIONAL SPACE. A supplier |
|
may not require as a condition of renewal or extension of a dealer |
|
agreement that the dealer complete substantial renovation of the |
|
dealer's place of business or acquire new or additional space to |
|
serve as the dealer's place of business, unless the supplier gives |
|
the dealer: |
|
(1) one year's written notice of the requirement that |
|
states all grounds for the requirement; and |
|
(2) reasonable time to complete the renovation or |
|
acquisition. (Bus. & Com. Code, Sec. 19.42.) |
|
[Sections 55.058-55.100 reserved for expansion] |
|
SUBCHAPTER C. WARRANTIES |
|
Sec. 55.101. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies only to a warranty claim submitted by a dealer: |
|
(1) while the dealer agreement is in effect; or |
|
(2) after the termination of the dealer agreement, if |
|
the claim is for work performed before the effective date of the |
|
termination. (Bus. & Com. Code, Sec. 19.28(a).) |
|
Sec. 55.102. ACCEPTANCE OR REJECTION OF WARRANTY CLAIM. |
|
(a) Not later than the 30th day after the date a supplier receives a |
|
warranty claim from a dealer, the supplier shall accept or reject |
|
the claim. A claim not rejected before that date is considered |
|
accepted. |
|
(b) Not later than the 30th day after the date a warranty |
|
claim is accepted or rejected, the supplier shall: |
|
(1) pay the accepted claim; or |
|
(2) send the dealer written notice of the grounds for |
|
rejecting the claim. |
|
(c) A supplier, including a supplier of an electric engine |
|
or motor, who pays a claim may not pay less than the hourly labor |
|
rate and other expenses involved in the work that the dealer |
|
regularly charges to a retail customer who does not assert a |
|
warranty and the dealer's net price plus 15 percent for parts. The |
|
number of hours of labor claimed may not exceed 1-1/2 times the |
|
supplier's recommended hours for the work. (Bus. & Com. Code, Secs. |
|
19.28(b), (c), (d).) |
|
Sec. 55.103. SUPPLIER'S RECOVERY OF WARRANTY CLAIM. After |
|
paying a warranty claim, a supplier may not charge back, set off, or |
|
otherwise attempt to recover all or part of the amount of the claim |
|
unless: |
|
(1) the claim was fraudulent; |
|
(2) the work for which the claim was made was not |
|
properly performed or was unnecessary to comply with the warranty; |
|
or |
|
(3) the dealer did not substantiate the claim |
|
according to the supplier's written requirements in effect when the |
|
claim arose. (Bus. & Com. Code, Sec. 19.28(e).) |
|
Sec. 55.104. PURCHASER'S WARRANTY AGREEMENT. A dealer or |
|
supplier authorized to sell new farm, industrial, or outdoor power |
|
equipment shall give the purchaser a written warranty agreement |
|
including replacement or cash refund. If the dealer determines the |
|
equipment cannot be made usable, the manufacturer is liable to the |
|
purchaser for the replacement or cash refund. (Bus. & Com. Code, |
|
Sec. 19.28(f).) |
|
[Sections 55.105-55.150 reserved for expansion] |
|
SUBCHAPTER D. DELIVERY, SALE, AND RETURN OF EQUIPMENT |
|
Sec. 55.151. COERCED ORDERS, DELIVERIES, OR REFUSALS TO |
|
PURCHASE PROHIBITED. A supplier may not coerce or compel a dealer |
|
to: |
|
(1) order or accept delivery of equipment with a |
|
special feature or accessory not included in the base list price of |
|
the equipment as publicly advertised by the supplier unless the |
|
special feature or accessory is a safety feature or accessory |
|
required by the supplier or by applicable law; or |
|
(2) refuse to purchase equipment manufactured by |
|
another manufacturer. (Bus. & Com. Code, Sec. 19.22.) |
|
Sec. 55.152. DISCRIMINATION AMONG DEALERS. (a) A supplier |
|
may not discriminate among dealers in the supplier's delivery, in |
|
reasonable quantities and within a reasonable time after receipt of |
|
a dealer's order, of equipment covered by the dealer agreement and |
|
specifically represented by the supplier as available for immediate |
|
delivery. |
|
(b) Subsection (a) does not apply if the discrimination is |
|
because of: |
|
(1) the supplier's restrictions on extending credit to |
|
the dealer; |
|
(2) the dealer's default under a dealership agreement; |
|
or |
|
(3) an act of God, work stoppage or delay because of a |
|
strike or labor difficulty, bona fide shortage of materials, |
|
freight embargo, or other cause over which the supplier has no |
|
control. (Bus. & Com. Code, Sec. 19.23.) |
|
Sec. 55.153. LATE DELIVERY OF BACK-ORDERED SEASONAL DEMAND |
|
ITEM. (a) Unless the supplier notifies a dealer of the status of a |
|
back-ordered item before shipment of the item to the dealer, a |
|
dealer may reject the delivery of an item of equipment other than a |
|
repair part or attachment from a supplier if: |
|
(1) the item has special value in a particular time of |
|
year because of predictable seasonal demand and is less marketable |
|
and less valuable after the seasonal demand period ends; |
|
(2) the item was back-ordered and delivery is made |
|
after the seasonal demand period ends; and |
|
(3) the dealer sends written notice of the rejection |
|
to the supplier before the 11th day after the delivery of the item. |
|
(b) The supplier shall pay the costs of the return of an item |
|
the delivery of which is rejected under Subsection (a). |
|
(c) A supplier may not coerce or compel a dealer to accept |
|
late delivery of back-ordered seasonal demand equipment other than |
|
repair parts or attachments. (Bus. & Com. Code, Sec. 19.24.) |
|
Sec. 55.154. SALES TO AFFILIATED DEALER. (a) In this |
|
section, "affiliated dealer" means a dealer in which a supplier has |
|
an ownership interest. |
|
(b) Except as provided by Subsection (c), a supplier may |
|
not: |
|
(1) sell or offer to sell new or unused equipment to an |
|
affiliated dealer at a price lower than the price for a sale of the |
|
same equipment, identically equipped, to a nonaffiliated dealer; or |
|
(2) use a sales promotion plan or other program or |
|
device that results in a sale or offer of sale of new or unused |
|
equipment to an affiliated dealer at an actual price that is: |
|
(A) lower than the price for a nonaffiliated |
|
dealer; or |
|
(B) fixed and predetermined solely by the |
|
supplier. |
|
(c) This section does not apply to sales made to a dealer for |
|
resale to: |
|
(1) a unit, agency, or political subdivision of the |
|
United States or this state; |
|
(2) a major fleet account; or |
|
(3) an organization for testing or demonstrating the |
|
equipment. (Bus. & Com. Code, Secs. 19.01(1), 19.25.) |
|
Sec. 55.155. RETURN OF INVENTORY; RESPONSIBILITY FOR COSTS. |
|
(a) If on termination of a dealer agreement the dealer delivers to |
|
the supplier or a person designated by the supplier inventory |
|
purchased from the supplier and held by the dealer on the date of |
|
the termination, the supplier shall pay to the dealer: |
|
(1) the dealer cost of new, unsold, undamaged, and |
|
complete equipment, other than repair parts, returned by the |
|
dealer; and |
|
(2) an amount equal to: |
|
(A) 85 percent of the current price of new, |
|
undamaged repair parts returned by the dealer, if the supplier |
|
handles, packs, and loads the parts; or |
|
(B) 90 percent of the current price of new, |
|
undamaged repair parts returned by the dealer, if the supplier does |
|
not handle, pack, or load the parts. |
|
(b) Before returning inventory under this section and not |
|
later than the 120th day after the effective date of termination, |
|
the dealer shall submit to the supplier a list of the inventory the |
|
dealer intends to return, including, to the extent possible, each |
|
item's trade name, description, and serial number. Not later than |
|
the 60th day after the date the supplier receives the list, the |
|
supplier shall notify the dealer in writing of: |
|
(1) each item that the supplier claims is not subject |
|
to reimbursement under this section; and |
|
(2) the destination for each item the dealer is to |
|
deliver to a person designated by the supplier. |
|
(c) The supplier may subtract from the amount owed under |
|
Subsection (a) the amount of debt owed by the dealer to the |
|
supplier. |
|
(d) The supplier and dealer are each responsible for |
|
one-half of the cost of delivering the inventory to the supplier or |
|
a person designated by the supplier, except that if the dealer |
|
delivers an item to a person designated by the supplier the dealer |
|
is not responsible for the amount that exceeds the amount for which |
|
the dealer would have been responsible if the item had been |
|
delivered to the supplier. |
|
(e) The supplier shall pay the amount owed under this |
|
section: |
|
(1) before the 91st day after the date the supplier or |
|
person designated by the supplier receives inventory from the |
|
dealer; and |
|
(2) after the dealer has furnished proof that the |
|
inventory was purchased from the supplier. |
|
(f) On payment of the amount owed under this section, title |
|
to the inventory is transferred to the supplier or person |
|
designated by the supplier. |
|
(g) A supplier and dealer may by agreement alter the time |
|
limits provided by this section. (Bus. & Com. Code, Sec. 19.43.) |
|
Sec. 55.156. RETURN OF DATA PROCESSING OR PERIPHERAL |
|
EQUIPMENT, SOFTWARE, OR CERTAIN TOOLS; RESPONSIBILITY FOR COSTS. |
|
(a) If on termination of a dealer agreement the dealer delivers to |
|
the supplier data processing or peripheral equipment, software, or |
|
specialized repair tools that the supplier required the dealer to |
|
purchase or lease, the supplier shall: |
|
(1) assume any responsibilities of the dealer under |
|
the lease for that equipment or software; and |
|
(2) pay the dealer: |
|
(A) an amount equal to the fair market value of |
|
the data processing or peripheral equipment or software purchased |
|
by the dealer and delivered to the supplier; and |
|
(B) an amount equal to 75 percent of the cost to |
|
the dealer of the specialized repair tools purchased by the dealer |
|
and delivered to the supplier. |
|
(b) The supplier and dealer are each responsible for |
|
one-half of the cost of delivering the data processing or |
|
peripheral equipment, software, or specialized repair tools to the |
|
supplier. |
|
(c) The supplier shall assume the responsibilities under |
|
the lease and pay the amount required by this section before the |
|
61st day after the date the supplier receives the data processing or |
|
peripheral equipment, software, or specialized repair tools. |
|
(d) On payment of the amount required by this section, title |
|
or the right of possession to the data processing or peripheral |
|
equipment or specialized repair tools purchased or leased by the |
|
dealer is transferred to the supplier. (Bus. & Com. Code, Sec. |
|
19.44.) |
|
Sec. 55.157. SUPPLIER'S LIABILITY FOR LATE PAYMENT. A |
|
supplier who does not make a payment required by Section 55.155 or |
|
55.156 before the 61st day after the date the supplier receives the |
|
final shipment of the inventory, data processing or peripheral |
|
equipment, software, or specialized repair tools from the dealer is |
|
liable to the dealer for: |
|
(1) the greater of the dealer cost or current price of |
|
any inventory; |
|
(2) any cost to the dealer of the data processing or |
|
peripheral equipment, software, or specialized repair tools; |
|
(3) any expense incurred by the dealer in returning |
|
the inventory, data processing or peripheral equipment, software, |
|
or specialized repair tools to the supplier; |
|
(4) interest on any amounts owed under Subdivision |
|
(1), (2), or (3), at the rate applicable to a judgment of a court of |
|
this state, beginning on the 61st day after the date the supplier |
|
received the inventory, data processing or peripheral equipment, |
|
software, or specialized repair tools; |
|
(5) reasonable attorney's fees; and |
|
(6) court costs. (Bus. & Com. Code, Sec. 19.47.) |
|
Sec. 55.158. EXCEPTIONS TO SUPPLIER'S REPURCHASE, |
|
PURCHASE, OR ASSUMPTION RESPONSIBILITY. (a) A supplier is not |
|
required to repurchase: |
|
(1) inventory: |
|
(A) that the dealer orders after the dealer |
|
receives notice of the termination of the dealer agreement from the |
|
supplier; or |
|
(B) for which the dealer cannot furnish evidence |
|
of clear title that is satisfactory to the supplier; or |
|
(2) a repair part that: |
|
(A) has a limited storage life and was purchased |
|
from the supplier more than two years before the date of termination |
|
of the dealer agreement; |
|
(B) is in a broken or damaged package; |
|
(C) is usually sold as part of a set, if the part |
|
is separated from the set; or |
|
(D) cannot be sold without reconditioning or |
|
repackaging. |
|
(b) A supplier is not required to purchase or assume the |
|
responsibilities under the lease for: |
|
(1) data processing or peripheral equipment or |
|
software that the dealer purchased that was not specifically |
|
required by the supplier; or |
|
(2) a specialized repair tool that: |
|
(A) is not unique to the supplier's product line; |
|
(B) is not in complete and salable condition; or |
|
(C) was not purchased by the dealer within the |
|
three-year period preceding the date of termination of the dealer |
|
agreement. (Bus. & Com. Code, Sec. 19.45.) |
|
[Sections 55.159-55.200 reserved for expansion] |
|
SUBCHAPTER E. ENFORCEMENT |
|
Sec. 55.201. ACTION FOR VIOLATION OF CHAPTER. A person |
|
injured by a violation of this chapter may bring an action for: |
|
(1) an injunction to prevent further violation; |
|
(2) damages; |
|
(3) reasonable attorney's fees; and |
|
(4) costs. (Bus. & Com. Code, Sec. 19.02.) |
|
TITLE 5. REGULATION OF BUSINESSES AND SERVICES |
|
SUBTITLE A. GENERAL PRACTICES |
|
CHAPTER 71. ASSUMED BUSINESS OR PROFESSIONAL NAME |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 71.001. SHORT TITLE |
|
Sec. 71.002. DEFINITIONS |
|
Sec. 71.003. APPLICABILITY OF CHAPTER |
|
[Sections 71.004-71.050 reserved for expansion] |
|
SUBCHAPTER B. REQUIREMENTS APPLICABLE TO CERTAIN UNINCORPORATED |
|
PERSONS |
|
Sec. 71.051. CERTIFICATE FOR CERTAIN UNINCORPORATED |
|
PERSONS |
|
Sec. 71.052. CONTENTS OF CERTIFICATE |
|
Sec. 71.053. EXECUTION OF CERTIFICATE |
|
Sec. 71.054. PLACE OF FILING |
|
[Sections 71.055-71.100 reserved for expansion] |
|
SUBCHAPTER C. REQUIREMENTS APPLICABLE TO INCORPORATED BUSINESS OR |
|
PROFESSION AND CERTAIN OTHER ENTITIES |
|
Sec. 71.101. CERTIFICATE FOR INCORPORATED BUSINESS OR |
|
PROFESSION, LIMITED PARTNERSHIP, |
|
REGISTERED LIMITED LIABILITY |
|
PARTNERSHIP, OR LIMITED LIABILITY |
|
COMPANY |
|
Sec. 71.102. CONTENTS OF CERTIFICATE |
|
Sec. 71.103. PLACE OF FILING |
|
Sec. 71.104. EXECUTION OF CERTIFICATE |
|
[Sections 71.105-71.150 reserved for expansion] |
|
SUBCHAPTER D. GENERAL PROVISIONS REGARDING ASSUMED NAME |
|
CERTIFICATE |
|
Sec. 71.151. DURATION AND RENEWAL OF CERTIFICATE |
|
Sec. 71.152. MATERIAL CHANGE IN INFORMATION; NEW |
|
CERTIFICATE |
|
Sec. 71.153. ABANDONMENT OF USE OF BUSINESS OR |
|
PROFESSIONAL NAME |
|
Sec. 71.154. INDEX OF CERTIFICATES |
|
Sec. 71.155. FILING FEES |
|
Sec. 71.156. PRESCRIBED FORMS |
|
Sec. 71.157. EFFECT OF FILING |
|
Sec. 71.158. FILING OF REPRODUCTION |
|
[Sections 71.159-71.200 reserved for expansion] |
|
SUBCHAPTER E. PENALTIES |
|
Sec. 71.201. CIVIL ACTION; SANCTION |
|
Sec. 71.202. CRIMINAL PENALTY: GENERAL VIOLATION |
|
Sec. 71.203. CRIMINAL PENALTY: FRAUDULENT FILING |
|
CHAPTER 71. ASSUMED BUSINESS OR PROFESSIONAL NAME |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 71.001. SHORT TITLE. This chapter may be cited as the |
|
Assumed Business or Professional Name Act. (Bus. & Com. Code, Sec. |
|
36.01.) |
|
Sec. 71.002. DEFINITIONS. In this chapter: |
|
(1) "Address" means: |
|
(A) a post office address; and |
|
(B) a street address, if the street address is |
|
not the same as the post office address. |
|
(2) "Assumed name" means: |
|
(A) for an individual, a name that does not |
|
include the surname of the individual; |
|
(B) for a partnership, a name that does not |
|
include the surname or other legal name of each joint venturer or |
|
general partner; |
|
(C) for an individual or a partnership, a name, |
|
including a surname, that suggests the existence of additional |
|
owners by including words such as "Company," "& Company," "& Son," |
|
"& Sons," "& Associates," "Brothers," and similar words, but not |
|
words that merely describe the business being conducted or the |
|
professional service being rendered; |
|
(D) for a limited partnership, a name other than |
|
the name stated in its certificate of formation; |
|
(E) for a company, a name used by the company; |
|
(F) for a corporation, a name other than the name |
|
stated in its certificate of formation or a comparable document; |
|
(G) for a registered limited liability |
|
partnership, a name other than the name stated in its application |
|
filed with the office of the secretary of state or a comparable |
|
document; and |
|
(H) for a limited liability company, a name other |
|
than the name stated in its certificate of formation or a comparable |
|
document. |
|
(3) "Certificate" means an assumed name certificate. |
|
(4) "Company" means a real estate investment trust, a |
|
joint-stock company, or any other business, professional, or other |
|
association or legal entity that is not incorporated, other than a |
|
partnership, limited partnership, limited liability company, or |
|
registered limited liability partnership. |
|
(5) "Corporation" means: |
|
(A) a domestic or foreign corporation, |
|
professional corporation, professional association, or other |
|
corporation; or |
|
(B) any other business, professional, or other |
|
association or legal entity that is incorporated. |
|
(6) "Estate" means a person's property that is |
|
administered by a representative. |
|
(7) "Office" means: |
|
(A) for a person that is not an individual or that |
|
is a corporation that is not required to or does not maintain a |
|
registered office in this state, the person's: |
|
(i) principal office; and |
|
(ii) principal place of business if not the |
|
same as the person's principal office; and |
|
(B) for a corporation, limited partnership, |
|
registered limited liability partnership, or limited liability |
|
company that is required to maintain a registered office in this |
|
state, the entity's: |
|
(i) registered office; and |
|
(ii) principal office if not the same as the |
|
entity's registered office. |
|
(8) "Partnership" means a joint venture or general |
|
partnership other than a limited partnership or a registered |
|
limited liability partnership. |
|
(9) "Person" includes an individual, partnership, |
|
limited partnership, limited liability company, registered limited |
|
liability partnership, company, or corporation. |
|
(10) "Registrant" means a person who has filed, or on |
|
whose behalf there has been filed, a certificate under this chapter |
|
or other law. |
|
(11) "Representative" means a trustee, administrator, |
|
executor, independent executor, guardian, conservator, trustee in |
|
bankruptcy, receiver, or other person appointed by a court or by |
|
trust or will to have custody of, take possession of, have title to, |
|
or otherwise be empowered to control the person or property of any |
|
person. (Bus. & Com. Code, Sec. 36.02; New.) |
|
Sec. 71.003. APPLICABILITY OF CHAPTER. (a) This chapter |
|
does not apply to an insurer authorized to engage in business in |
|
this state and described in Subchapter A, Chapter 805, Insurance |
|
Code, except as specifically provided by the Insurance Code. |
|
(b) This chapter does not require a corporation, limited |
|
partnership, registered limited liability partnership, or limited |
|
liability company or its shareholders, associates, partners, or |
|
members to file a certificate to conduct business or render a |
|
professional service in this state under the name of the entity as |
|
stated in the certificate of formation, application filed with the |
|
office of the secretary of state, or other comparable document of |
|
the entity. (Bus. & Com. Code, Secs. 36.03, 36.11(c).) |
|
[Sections 71.004-71.050 reserved for expansion] |
|
SUBCHAPTER B. REQUIREMENTS APPLICABLE TO CERTAIN UNINCORPORATED |
|
PERSONS |
|
Sec. 71.051. CERTIFICATE FOR CERTAIN UNINCORPORATED |
|
PERSONS. A person must file a certificate under this subchapter if |
|
the person regularly conducts business or renders a professional |
|
service in this state under an assumed name other than as a |
|
corporation, limited partnership, registered limited liability |
|
partnership, or limited liability company. (Bus. & Com. Code, Sec. |
|
36.10(a) (part).) |
|
Sec. 71.052. CONTENTS OF CERTIFICATE. The certificate must |
|
state: |
|
(1) the assumed name under which the business is or is |
|
to be conducted or the professional service is or is to be rendered; |
|
(2) if the registrant is: |
|
(A) an individual, the individual's full name and |
|
residence address; |
|
(B) a partnership: |
|
(i) the venture or partnership name; |
|
(ii) the venture or partnership office |
|
address; |
|
(iii) the full name of each joint venturer |
|
or general partner; and |
|
(iv) each joint venturer's or general |
|
partner's residence address if the venturer or partner is an |
|
individual or the joint venturer's or general partner's office |
|
address if the venturer or partner is not an individual; |
|
(C) an estate: |
|
(i) the name of the estate; |
|
(ii) the estate's office address, if any; |
|
(iii) the full name of each representative |
|
of the estate; and |
|
(iv) each representative's residence |
|
address if the representative is an individual or the |
|
representative's office address if the representative is not an |
|
individual; |
|
(D) a real estate investment trust: |
|
(i) the name of the trust; |
|
(ii) the address of the trust; |
|
(iii) the full name of each trustee |
|
manager; and |
|
(iv) each trustee manager's residence |
|
address if the trustee manager is an individual or the trustee |
|
manager's office address if the trustee manager is not an |
|
individual; or |
|
(E) a company, other than a real estate |
|
investment trust, or a corporation: |
|
(i) the name of the company or corporation; |
|
(ii) the state, country, or other |
|
jurisdiction under the laws of which the company or corporation was |
|
organized or incorporated; and |
|
(iii) the company's or corporation's office |
|
address; |
|
(3) the period, not to exceed 10 years, during which |
|
the registrant will use the assumed name; and |
|
(4) a statement specifying that the business that is |
|
or will be conducted or the professional service that is or will be |
|
rendered in the county under the assumed name is being or will be |
|
conducted or rendered as a proprietorship, sole practitioner, |
|
partnership, real estate investment trust, joint-stock company, or |
|
other form of unincorporated business or professional association |
|
or entity other than a limited partnership, limited liability |
|
company, or registered limited liability partnership. (Bus. & Com. |
|
Code, Sec. 36.10(a) (part).) |
|
Sec. 71.053. EXECUTION OF CERTIFICATE. (a) The |
|
certificate must be executed and acknowledged: |
|
(1) by each individual whose name is required to be |
|
stated in the certificate or the individual's representative or |
|
attorney-in-fact; and |
|
(2) under oath on behalf of each person whose name is |
|
required to be stated in the certificate and who is not an |
|
individual, by: |
|
(A) the person's representative or |
|
attorney-in-fact; or |
|
(B) a joint venturer, general partner, trustee |
|
manager, officer, or other person having authority regarding the |
|
person comparable to the person's representative or |
|
attorney-in-fact. |
|
(b) A certificate executed and acknowledged by an |
|
attorney-in-fact must include a statement that the attorney has |
|
been authorized in writing by the attorney's principal to execute |
|
and acknowledge the certificate. (Bus. & Com. Code, Sec. |
|
36.10(b).) |
|
Sec. 71.054. PLACE OF FILING. A person shall file the |
|
certificate in the office of the county clerk in each county in |
|
which the person: |
|
(1) has or will maintain business or professional |
|
premises; or |
|
(2) conducts business or renders a professional |
|
service, if the person does not or will not maintain business or |
|
professional premises in any county. (Bus. & Com. Code, Sec. |
|
36.10(a) (part).) |
|
[Sections 71.055-71.100 reserved for expansion] |
|
SUBCHAPTER C. REQUIREMENTS APPLICABLE TO INCORPORATED BUSINESS OR |
|
PROFESSION AND CERTAIN OTHER ENTITIES |
|
Sec. 71.101. CERTIFICATE FOR INCORPORATED BUSINESS OR |
|
PROFESSION, LIMITED PARTNERSHIP, REGISTERED LIMITED LIABILITY |
|
PARTNERSHIP, OR LIMITED LIABILITY COMPANY. A corporation, limited |
|
partnership, registered limited liability partnership, or limited |
|
liability company must file a certificate under this subchapter if |
|
the entity: |
|
(1) regularly conducts business or renders |
|
professional services in this state under an assumed name; or |
|
(2) is required by law to use an assumed name in this |
|
state to conduct business or render professional services. (Bus. & |
|
Com. Code, Sec. 36.11(a) (part).) |
|
Sec. 71.102. CONTENTS OF CERTIFICATE. The certificate must |
|
state: |
|
(1) the assumed name under which the business is or is |
|
to be conducted or the professional service is or is to be rendered; |
|
(2) the registrant's name as stated in the |
|
registrant's certificate of formation or application filed with the |
|
office of the secretary of state or other comparable document; |
|
(3) the state, country, or other jurisdiction under |
|
the laws of which the registrant was incorporated or organized and |
|
the registrant's registered or similar office address in that |
|
state, country, or jurisdiction; |
|
(4) the period, not to exceed 10 years, during which |
|
the registrant will use the assumed name; |
|
(5) a statement specifying that the registrant is: |
|
(A) a business corporation, nonprofit |
|
corporation, professional corporation, professional association, |
|
or other type of corporation; |
|
(B) a limited partnership, registered limited |
|
liability partnership, or limited liability company; or |
|
(C) another type of incorporated business, |
|
professional or other association, or legal entity; |
|
(6) the address of: |
|
(A) the registrant's: |
|
(i) registered office in this state and the |
|
name of its registered agent at that address; and |
|
(ii) principal office, if the principal |
|
office address is not the same as the registrant's registered |
|
office address in this state; or |
|
(B) if the registrant is not required to or does |
|
not maintain a registered office in this state: |
|
(i) the registrant's office in this state; |
|
and |
|
(ii) the registrant's place of business in |
|
this state and any office of the registrant outside this state, if |
|
the registrant is not incorporated or organized under the laws of |
|
this state; and |
|
(7) the county or counties in this state where the |
|
registrant is or will be conducting business or rendering |
|
professional services under the assumed name. (Bus. & Com. Code, |
|
Sec. 36.11(a) (part).) |
|
Sec. 71.103. PLACE OF FILING. (a) The corporation, limited |
|
partnership, registered limited liability partnership, or limited |
|
liability company shall file the certificate in the office of the |
|
secretary of state and in the office or offices of each county clerk |
|
as specified by Subsection (b) or (c). |
|
(b) Except as provided by Subsection (c), the entity shall |
|
file the certificate in the offices of the county clerk of the |
|
county in which the entity's: |
|
(1) registered office is located; and |
|
(2) principal office is located if the principal |
|
office is in this state and not in the same county where the |
|
registered office is located. |
|
(c) If the entity is not required to or does not maintain a |
|
registered office in this state, the entity shall file the |
|
certificate: |
|
(1) in the office of the county clerk of the county in |
|
which the entity's office in this state is located; or |
|
(2) in the office of the county clerk of the county in |
|
which the entity's principal place of business in this state is |
|
located, if: |
|
(A) the entity is not incorporated or organized |
|
under the laws of this state; and |
|
(B) the county in which the entity's principal |
|
place of business in this state is located is not the same county |
|
where the entity's office is located. (Bus. & Com. Code, Sec. |
|
36.11(a) (part).) |
|
Sec. 71.104. EXECUTION OF CERTIFICATE. (a) A certificate |
|
filed in the secretary of state's office must be executed by an |
|
officer, general partner, member, manager, or representative of or |
|
attorney-in-fact for the registrant. |
|
(b) A certificate filed in a county clerk's office must be |
|
executed and acknowledged in the manner provided by Section 71.053 |
|
for a certificate filed under that section. |
|
(c) A certificate executed by an attorney-in-fact must |
|
include a statement that the attorney has been authorized in |
|
writing by the attorney's principal to execute the certificate. |
|
(Bus. & Com. Code, Sec. 36.11(b).) |
|
[Sections 71.105-71.150 reserved for expansion] |
|
SUBCHAPTER D. GENERAL PROVISIONS REGARDING ASSUMED NAME |
|
CERTIFICATE |
|
Sec. 71.151. DURATION AND RENEWAL OF CERTIFICATE. (a) A |
|
certificate is effective for a term not to exceed 10 years from the |
|
date the certificate is filed. |
|
(b) A certificate is void at the end of the certificate's |
|
stated term, unless within six months preceding the certificate's |
|
expiration date the registrant files in the office of a county clerk |
|
and the secretary of state, if applicable, a renewal certificate |
|
complying with the requirements of this chapter for an original |
|
certificate. |
|
(c) A registrant may renew a certificate under this section |
|
for any number of successive terms, but each term may not exceed 10 |
|
years. (Bus. & Com. Code, Sec. 36.13.) |
|
Sec. 71.152. MATERIAL CHANGE IN INFORMATION; NEW |
|
CERTIFICATE. (a) Not later than the 60th day after an event occurs |
|
that causes the information in a certificate to become materially |
|
misleading, a registrant must file a new certificate complying with |
|
this chapter in the office in which the original or renewal |
|
certificate was filed. |
|
(b) An event that causes the information in a certificate to |
|
become materially misleading includes: |
|
(1) a change in the name, identity, entity, form of |
|
business or professional organization, or location of a registrant; |
|
(2) for a proprietorship or sole practitioner, a |
|
change in ownership; |
|
(3) for a partnership: |
|
(A) the admission of a new partner or joint |
|
venturer; or |
|
(B) the end of a general partner's or joint |
|
venturer's association with the partnership; or |
|
(4) for a registrant required by law to maintain a |
|
registered office or similar office and a registered agent or |
|
similar agent at that office, a change in the address of the office |
|
or in the identity of the agent. |
|
(c) A new certificate filed under this section is effective |
|
for a term not to exceed 10 years from the date the certificate is |
|
filed. (Bus. & Com. Code, Sec. 36.12.) |
|
Sec. 71.153. ABANDONMENT OF USE OF BUSINESS OR PROFESSIONAL |
|
NAME. (a) A registrant who has filed a certificate under this |
|
chapter and who ceases to conduct business or render professional |
|
services in this state under the assumed name stated in the |
|
certificate may file a statement of abandonment of use of the |
|
assumed name in the office in which the registrant's certificate |
|
was filed. |
|
(b) The statement of abandonment of use of an assumed name |
|
must state: |
|
(1) the assumed name being abandoned; |
|
(2) the date on which the certificate was filed in the |
|
office in which the statement of abandonment is being filed and in |
|
any other office in which the certificate was filed; and |
|
(3) the registrant's name and residence or office |
|
address as required for a certificate filed under this chapter. |
|
(c) A statement of abandonment must be executed and |
|
acknowledged in the same manner as if the registrant were filing a |
|
certificate under this chapter. (Bus. & Com. Code, Sec. 36.14.) |
|
Sec. 71.154. INDEX OF CERTIFICATES. (a) The secretary of |
|
state and each county clerk shall keep an alphabetical index of: |
|
(1) all assumed names that have been filed in the |
|
office of the respective officer; and |
|
(2) the persons filing the certificates. |
|
(b) A copy of a certificate or statement is presumptive |
|
evidence in any court in this state of the facts contained in the |
|
copy if the copy is certified to by: |
|
(1) the county clerk in whose office the certificate |
|
or statement was filed; or |
|
(2) the secretary of state. (Bus. & Com. Code, Sec. |
|
36.15 (part).) |
|
Sec. 71.155. FILING FEES. (a) The county clerk shall |
|
collect a fee of: |
|
(1) $2 for filing each certificate or statement |
|
required or permitted to be filed under this chapter; and |
|
(2) 50 cents for each name to be indexed. |
|
(b) The secretary of state shall collect for the use of this |
|
state a fee of: |
|
(1) $25 for indexing and filing each certificate or |
|
statement required or permitted to be filed under this chapter; and |
|
(2) $10 for filing each statement of abandonment of |
|
use of an assumed name. (Bus. & Com. Code, Sec. 36.15 (part).) |
|
Sec. 71.156. PRESCRIBED FORMS. (a) The secretary of state |
|
may prescribe a form to be used for filing a certificate or |
|
statement that complies with this chapter in the secretary's office |
|
or in the office of any county clerk in this state. |
|
(b) Unless otherwise specifically provided by law, the use |
|
of a form prescribed under this section is not mandatory. (Bus. & |
|
Com. Code, Sec. 36.16.) |
|
Sec. 71.157. EFFECT OF FILING. (a) This chapter does not |
|
give a registrant a right to use the assumed name in violation of |
|
the common or statutory law of unfair competition or unfair trade |
|
practices, common law copyright, or similar law. |
|
(b) The filing of a certificate under this chapter does not |
|
in itself constitute actual use of the assumed name stated in the |
|
certificate for purposes of determining priority of rights. (Bus. & |
|
Com. Code, Sec. 36.17.) |
|
Sec. 71.158. FILING OF REPRODUCTION. (a) The secretary of |
|
state may accept for filing a photographic, photostatic, or similar |
|
reproduction of a signed original document required or authorized |
|
to be filed in the secretary's office under this chapter. |
|
(b) A signature on a document required or authorized to be |
|
filed in the secretary of state's office under this chapter may be a |
|
facsimile. (Bus. & Com. Code, Sec. 36.18.) |
|
[Sections 71.159-71.200 reserved for expansion] |
|
SUBCHAPTER E. PENALTIES |
|
Sec. 71.201. CIVIL ACTION; SANCTION. (a) A person's |
|
failure to comply with this chapter does not impair the validity of |
|
any contract or act by the person or prevent the person from |
|
defending any action or proceeding in any court of this state, but |
|
the person may not maintain in a court of this state an action or |
|
proceeding arising out of a contract or act in which an assumed name |
|
was used until an original, new, or renewed certificate has been |
|
filed as required by this chapter. |
|
(b) In an action or proceeding brought against a person who |
|
has not complied with this chapter, the court may award the |
|
plaintiff or other party bringing the action or proceeding expenses |
|
incurred, including attorney's fees, in locating and effecting |
|
service of process on the defendant. (Bus. & Com. Code, Sec. |
|
36.25.) |
|
Sec. 71.202. CRIMINAL PENALTY: GENERAL VIOLATION. (a) A |
|
person commits an offense if the person: |
|
(1) conducts business or renders a professional |
|
service in this state under an assumed name; and |
|
(2) intentionally violates this chapter. |
|
(b) An offense under this section is a Class A misdemeanor. |
|
(Bus. & Com. Code, Sec. 36.26.) |
|
Sec. 71.203. CRIMINAL PENALTY: FRAUDULENT FILING. (a) A |
|
person may not knowingly or intentionally sign and present for |
|
filing or cause to be presented for filing a document authorized or |
|
required to be filed under this chapter that: |
|
(1) indicates that the person signing the document has |
|
the authority to act on behalf of the entity for which the document |
|
is presented and the person does not have that authority; |
|
(2) contains a material false statement; or |
|
(3) is forged. |
|
(b) A person commits an offense if the person violates |
|
Subsection (a). An offense under this subsection is punishable as |
|
if it were an offense under Section 37.10, Penal Code. (Bus. & Com. |
|
Code, Sec. 36.27.) |
|
CHAPTER 72. BUSINESS RECORDS |
|
SUBCHAPTER A. DISPOSAL OF CERTAIN BUSINESS RECORDS |
|
Sec. 72.001. DEFINITIONS |
|
Sec. 72.002. DESTRUCTION OF CERTAIN BUSINESS RECORDS |
|
Sec. 72.003. RETENTION OF REPRODUCTION OF BUSINESS |
|
RECORDS |
|
Sec. 72.004. DISPOSAL OF BUSINESS RECORDS CONTAINING |
|
PERSONAL IDENTIFYING INFORMATION |
|
[Sections 72.005-72.050 reserved for expansion] |
|
SUBCHAPTER B. DELETION OF CERTAIN RECORDS OR INFORMATION RELATING |
|
TO CUSTOMERS' CHECKS |
|
Sec. 72.051. REQUIRED DELETION OF CERTAIN ELECTRONIC |
|
RECORDS |
|
CHAPTER 72. BUSINESS RECORDS |
|
SUBCHAPTER A. DISPOSAL OF CERTAIN BUSINESS RECORDS |
|
Sec. 72.001. DEFINITIONS. In this subchapter: |
|
(1) "Business record" means letters, words, sounds, or |
|
numbers, or the equivalent of letters, words, sounds, or numbers, |
|
recorded in the operation of a business by: |
|
(A) handwriting; |
|
(B) typewriting; |
|
(C) printing; |
|
(D) photostat; |
|
(E) photograph; |
|
(F) magnetic impulse; |
|
(G) mechanical or electronic recording; |
|
(H) digitized optical image; or |
|
(I) another form of data compilation. |
|
(2) "Personal identifying information" means an |
|
individual's first name or initial and last name in combination |
|
with one or more of the following: |
|
(A) date of birth; |
|
(B) social security number or other |
|
government-issued identification number; |
|
(C) mother's maiden name; |
|
(D) unique biometric data, including the |
|
individual's fingerprint, voice data, or retina or iris image; |
|
(E) unique electronic identification number, |
|
address, or routing code; |
|
(F) telecommunication access device as defined |
|
by Section 32.51, Penal Code, including debit or credit card |
|
information; or |
|
(G) financial institution account number or any |
|
other financial information. |
|
(3) "Reproduction" means a counterpart of an original |
|
business record produced by: |
|
(A) production from the same impression or the |
|
same matrix as the original; |
|
(B) photography, including an enlargement or |
|
miniature; |
|
(C) mechanical or electronic rerecording; |
|
(D) chemical reproduction; |
|
(E) digitized optical imaging; or |
|
(F) another technique that accurately reproduces |
|
the original. (Bus. & Com. Code, Sec. 35.48(a).) |
|
Sec. 72.002. DESTRUCTION OF CERTAIN BUSINESS RECORDS. (a) |
|
A business record required to be retained by a law of this state may |
|
be destroyed at any time after the third anniversary of the date the |
|
business record was created. |
|
(b) Subsection (a) does not apply if a law or rule |
|
applicable to the business record prescribes a different retention |
|
period or procedure for disposal. (Bus. & Com. Code, Sec. |
|
35.48(b).) |
|
Sec. 72.003. RETENTION OF REPRODUCTION OF BUSINESS RECORDS. |
|
A law of this state that requires retention of a business record is |
|
satisfied by retention of a reproduction of the original record. |
|
(Bus. & Com. Code, Sec. 35.48(c).) |
|
Sec. 72.004. DISPOSAL OF BUSINESS RECORDS CONTAINING |
|
PERSONAL IDENTIFYING INFORMATION. (a) This section does not apply |
|
to: |
|
(1) a financial institution as defined by 15 U.S.C. |
|
Section 6809; or |
|
(2) a covered entity as defined by Section 601.001 or |
|
602.001, Insurance Code. |
|
(b) When a business disposes of a business record that |
|
contains personal identifying information of a customer of the |
|
business, the business shall modify, by shredding, erasing, or |
|
other means, the personal identifying information so as to make the |
|
information unreadable or undecipherable. |
|
(c) A business is considered to comply with Subsection (b) |
|
if the business contracts with a person engaged in the business of |
|
disposing of records for the modification of personal identifying |
|
information on behalf of the business in accordance with that |
|
subsection. |
|
(d) A business that disposes of a business record without |
|
complying with Subsection (b) is liable for a civil penalty in an |
|
amount not to exceed $500 for each business record. The attorney |
|
general may bring an action against the business to: |
|
(1) recover the civil penalty; |
|
(2) obtain any other remedy, including injunctive |
|
relief; and |
|
(3) recover costs and reasonable attorney's fees |
|
incurred in bringing the action. |
|
(e) A business that in good faith modifies a business record |
|
as required by Subsection (b) is not liable for a civil penalty |
|
under Subsection (d) if the business record is reconstructed, |
|
wholly or partly, through extraordinary means. |
|
(f) Subsection (b) does not require a business to modify a |
|
business record if: |
|
(1) the business is required to retain the business |
|
record under another law; or |
|
(2) the business record is historically significant |
|
and: |
|
(A) there is no potential for identity theft or |
|
fraud while the business retains custody of the business record; or |
|
(B) the business record is transferred to a |
|
professionally managed historical repository. (Bus. & Com. Code, |
|
Secs. 35.48(d), (e), (f), (g), (h), (i).) |
|
[Sections 72.005-72.050 reserved for expansion] |
|
SUBCHAPTER B. DELETION OF CERTAIN RECORDS OR INFORMATION RELATING |
|
TO CUSTOMERS' CHECKS |
|
Sec. 72.051. REQUIRED DELETION OF CERTAIN ELECTRONIC |
|
RECORDS. (a) In this section, "law enforcement agency" has the |
|
meaning assigned by Article 59.01, Code of Criminal Procedure. |
|
(b) This section applies only to a business that accepts |
|
checks from customers in the ordinary course of business. This |
|
section does not apply to a financial institution as defined by 31 |
|
U.S.C. Section 5312(a)(2), as amended. |
|
(c) A business shall delete any electronic record |
|
indicating that a customer has issued a dishonored check or any |
|
other information except for a checking account number or bank |
|
routing transit number on which the business bases a refusal to |
|
accept a check from a customer. The record must be deleted not |
|
later than the 30th day after the date: |
|
(1) the customer and the business agree that the |
|
information contained in the electronic record is incorrect; or |
|
(2) the customer presents to the business: |
|
(A) a copy of a report filed by the customer with |
|
a law enforcement agency stating that the dishonored check was |
|
unauthorized; and |
|
(B) a written statement of the customer |
|
indicating that the dishonored check was unauthorized. |
|
(d) A business that violates Subsection (c) is liable to |
|
this state for a civil penalty in an amount not to exceed $1,000. |
|
The attorney general may: |
|
(1) bring an action to recover the civil penalty; and |
|
(2) recover reasonable expenses incurred in |
|
recovering the penalty, including court costs, reasonable |
|
attorney's fees, investigative costs, witness fees, and deposition |
|
expenses. (Bus. & Com. Code, Sec. 35.62.) |
|
[Chapters 73-90 reserved for expansion] |
|
SUBTITLE B. RENTAL PRACTICES |
|
CHAPTER 91. PRIVATE PASSENGER VEHICLE RENTAL COMPANIES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 91.001. DEFINITIONS |
|
[Sections 91.002-91.050 reserved for expansion] |
|
SUBCHAPTER B. DAMAGE WAIVERS AND MANDATORY CHARGES |
|
Sec. 91.051. WRITTEN AGREEMENT REQUIRED FOR DAMAGE |
|
WAIVER |
|
Sec. 91.052. NOTICE TO RENTER |
|
Sec. 91.053. POSTED NOTICE |
|
Sec. 91.054. PROHIBITED REPRESENTATIONS AND COERCION |
|
Sec. 91.055. MANDATORY CHARGE |
|
Sec. 91.056. VOIDING OF DAMAGE WAIVER |
|
[Sections 91.057-91.100 reserved for expansion] |
|
SUBCHAPTER C. ENFORCEMENT PROVISIONS |
|
Sec. 91.101. CIVIL PENALTY |
|
Sec. 91.102. INJUNCTION |
|
Sec. 91.103. SUIT FOR CIVIL PENALTY OR INJUNCTIVE |
|
RELIEF |
|
CHAPTER 91. PRIVATE PASSENGER VEHICLE RENTAL COMPANIES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 91.001. DEFINITIONS. In this chapter: |
|
(1) "Authorized driver" means: |
|
(A) the renter; |
|
(B) a person whom the rental company expressly |
|
designates on the rental agreement as an authorized driver; |
|
(C) the renter's spouse if the spouse: |
|
(i) holds a driver's license; and |
|
(ii) satisfies any minimum age requirement |
|
established by the rental company; |
|
(D) an employer, employee, or coworker of the |
|
renter if the person: |
|
(i) holds a driver's license; |
|
(ii) satisfies any minimum age requirement |
|
established by the rental company; and |
|
(iii) is engaged in a business activity |
|
with the renter at the time of the rental; or |
|
(E) a person who: |
|
(i) holds a driver's license; and |
|
(ii) is driving directly to a medical or |
|
police facility under circumstances reasonably believed to |
|
constitute an emergency. |
|
(2) "Damage" means damage to or loss of a rented |
|
vehicle, regardless of fault involved in the damage or loss. The |
|
term includes: |
|
(A) theft and loss of use; and |
|
(B) any cost incident to the damage or loss, |
|
including storage, impound, towing, and administrative charges. |
|
(3) "Damage waiver" means a rental company's agreement |
|
not to hold an authorized driver liable for all or part of any |
|
damage to a rented vehicle. |
|
(4) "Mandatory charge" means a charge for an item or |
|
service provided in connection with a rental transaction, other |
|
than a charge imposed by law: |
|
(A) that is in addition to the base rental rate; |
|
and |
|
(B) that the renter may not avoid or decline. |
|
(5) "Private passenger vehicle" means a motor vehicle |
|
of the private passenger type, including a passenger van, primarily |
|
intended for private use. |
|
(6) "Rental agreement" means an agreement for 30 days |
|
or less that states the terms governing the use of a private |
|
passenger vehicle rented by a rental company. |
|
(7) "Rental company" means a person in the business of |
|
renting private passenger vehicles to the public for 30 days or |
|
less. The term does not include a person who holds a license under |
|
Chapter 2301, Occupations Code, and whose primary business activity |
|
is not renting private passenger vehicles. |
|
(8) "Renter" means a person who obtains use of a |
|
private passenger vehicle from a rental company under a rental |
|
agreement. (V.A.C.S. Art. 9026c, Secs. 1, 4(a).) |
|
[Sections 91.002-91.050 reserved for expansion] |
|
SUBCHAPTER B. DAMAGE WAIVERS AND MANDATORY CHARGES |
|
Sec. 91.051. WRITTEN AGREEMENT REQUIRED FOR DAMAGE WAIVER. |
|
A rental company may not sell a damage waiver unless the renter |
|
agrees to the damage waiver in writing at or before the time the |
|
rental agreement is executed. (V.A.C.S. Art. 9026c, Sec. 2(a).) |
|
Sec. 91.052. NOTICE TO RENTER. (a) A rental company shall |
|
provide each renter who purchases a damage waiver, the charge for |
|
which is not included in the base rental rate, the following notice: |
|
NOTICE: Your rental agreement offers, for an |
|
additional charge, an optional waiver to cover all or a |
|
part of your responsibility for damage to or loss of |
|
the vehicle. Before deciding whether to purchase the |
|
waiver, you may wish to determine whether your own |
|
automobile insurance or credit card agreement provides |
|
you coverage for rental vehicle damage or loss and |
|
determine the amount of the deductible under your own |
|
insurance coverage. The purchase of the waiver is not |
|
mandatory. The waiver is not insurance. |
|
(b) The notice under Subsection (a) must be in at least |
|
10-point type. (V.A.C.S. Art. 9026c, Sec. 3(a).) |
|
Sec. 91.053. POSTED NOTICE. In addition to providing the |
|
notice required by Section 91.052, a rental company shall post in a |
|
conspicuous location where the damage waiver is offered the |
|
following notice: |
|
Notice to Texas Residents Regarding Damage Waivers |
|
Your personal automobile insurance policy may or may |
|
not provide coverage for your responsibility for the |
|
loss of or damage to a rented vehicle during the rental |
|
term. Before deciding whether to purchase a damage |
|
waiver, you may wish to determine whether your |
|
automobile insurance policy provides you coverage for |
|
rental vehicle damage or loss. If you file a claim |
|
under your personal automobile insurance policy, your |
|
insurance company may choose to nonrenew your policy |
|
at your renewal date, but may do so only if you are at |
|
fault for the claim. |
|
(V.A.C.S. Art. 9026c, Sec. 3(b).) |
|
Sec. 91.054. PROHIBITED REPRESENTATIONS AND COERCION. (a) |
|
An employee or agent of a rental company may not: |
|
(1) make an oral or written representation that |
|
contradicts this chapter; or |
|
(2) use coercive language or a coercive act in an |
|
attempt to persuade a renter to purchase a damage waiver. |
|
(b) For purposes of this section, if the renter has declined |
|
the damage waiver, a further statement or question by the employee |
|
or agent that refers to the damage waiver, other than a statement |
|
made in conjunction with review of the rental agreement that the |
|
waiver has been declined, is considered coercive. (V.A.C.S. Art. |
|
9026c, Sec. 5.) |
|
Sec. 91.055. MANDATORY CHARGE. (a) A rental company that |
|
includes a mandatory charge in a rental agreement shall prominently |
|
display and fully disclose the charge: |
|
(1) separately on the face of the agreement; and |
|
(2) in all of the rental company's price advertising, |
|
price quotes, price offers, and price displays, including displays |
|
in computerized reservation systems. |
|
(b) A rental company may not impose or require the purchase |
|
of a damage waiver as a mandatory charge. (V.A.C.S. Art. 9026c, |
|
Secs. 4(b), (c).) |
|
Sec. 91.056. VOIDING OF DAMAGE WAIVER. A rental company may |
|
not void a damage waiver unless: |
|
(1) an authorized driver causes the damage |
|
intentionally or by wilful and wanton misconduct; |
|
(2) the damage arises out of use of the vehicle: |
|
(A) by a person: |
|
(i) who is not an authorized driver; |
|
(ii) while under the influence of an |
|
intoxicant that impairs driving ability, including alcohol, an |
|
illegal drug, or a controlled substance; or |
|
(iii) while engaged in commission of a |
|
crime other than a traffic infraction; |
|
(B) to carry persons or property for hire; |
|
(C) to push or tow anything; |
|
(D) for driver's training; |
|
(E) to engage in a speed contest; or |
|
(F) outside the continental United States, |
|
unless the rental agreement specifically authorizes the use; or |
|
(3) the rental company entered into the rental |
|
transaction based on fraudulent information supplied by the renter. |
|
(V.A.C.S. Art. 9026c, Sec. 2(b).) |
|
[Sections 91.057-91.100 reserved for expansion] |
|
SUBCHAPTER C. ENFORCEMENT PROVISIONS |
|
Sec. 91.101. CIVIL PENALTY. A rental company that violates |
|
this chapter is liable for a civil penalty in an amount of not less |
|
than $500 or more than $1,000 for each act of violation. (V.A.C.S. |
|
Art. 9026c, Sec. 6(a).) |
|
Sec. 91.102. INJUNCTION. A person injured or threatened |
|
with injury by a violation of this chapter may seek injunctive |
|
relief against the person committing or threatening to commit the |
|
violation. (V.A.C.S. Art. 9026c, Sec. 6(c).) |
|
Sec. 91.103. SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF. |
|
The attorney general or a county or district attorney may bring an |
|
action in the name of the state for a civil penalty under Section |
|
91.101, injunctive relief under Section 91.102, or both. (V.A.C.S. |
|
Art. 9026c, Sec. 6(b).) |
|
CHAPTER 92. RENTAL-PURCHASE AGREEMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 92.001. DEFINITIONS |
|
Sec. 92.002. ADVERTISEMENT REQUIREMENTS |
|
[Sections 92.003-92.050 reserved for expansion] |
|
SUBCHAPTER B. FORM AND CONTENT OF AGREEMENTS |
|
Sec. 92.051. FORM OF AGREEMENT |
|
Sec. 92.052. REQUIRED DISCLOSURES |
|
Sec. 92.053. OTHER REQUIRED PROVISIONS |
|
Sec. 92.054. PROHIBITED PROVISIONS |
|
Sec. 92.055. RESTRICTIONS ON LATE CHARGES AND |
|
REINSTATEMENT FEES |
|
[Sections 92.056-92.100 reserved for expansion] |
|
SUBCHAPTER C. REPOSSESSION AND REINSTATEMENT |
|
Sec. 92.101. MERCHANT'S REPOSSESSION RIGHT |
|
Sec. 92.102. EFFECT OF REPOSSESSION DURING |
|
REINSTATEMENT PERIOD |
|
Sec. 92.103. EFFECT ON REINSTATEMENT PERIOD OF |
|
MERCHANDISE RETURN |
|
Sec. 92.104. MERCHANT'S DUTIES ON REINSTATEMENT |
|
[Sections 92.105-92.150 reserved for expansion] |
|
SUBCHAPTER D. LOSS DAMAGE WAIVERS |
|
Sec. 92.151. CONTRACT FOR WAIVER |
|
Sec. 92.152. CHARGE FOR WAIVER |
|
Sec. 92.153. RESTRICTIONS ON MERCHANT CONCERNING |
|
WAIVER |
|
Sec. 92.154. REQUIRED NOTICE IN WAIVER |
|
Sec. 92.155. STATEMENT OF TOTAL CHARGE |
|
Sec. 92.156. AUTHORIZED EXCLUSIONS |
|
Sec. 92.157. RELATIONSHIP TO INSURANCE |
|
Sec. 92.158. RULES FOR REVIEW OF CERTAIN CONTRACTS |
|
Sec. 92.159. FEES |
|
Sec. 92.160. ADMINISTRATIVE ENFORCEMENT OF SUBCHAPTER |
|
[Sections 92.161-92.200 reserved for expansion] |
|
SUBCHAPTER E. CIVIL ENFORCEMENT |
|
Sec. 92.201. ACTION FOR VIOLATION OF CHAPTER |
|
Sec. 92.202. DECEPTIVE TRADE PRACTICE |
|
CHAPTER 92. RENTAL-PURCHASE AGREEMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 92.001. DEFINITIONS. In this chapter: |
|
(1) "Advertisement" means a commercial message in any |
|
medium that directly or indirectly promotes or assists a |
|
rental-purchase agreement. |
|
(2) "Commission" means the Texas Commission of |
|
Licensing and Regulation. |
|
(3) "Consumer" means an individual who leases personal |
|
property under a rental-purchase agreement. |
|
(4) "Department" means the Texas Department of |
|
Licensing and Regulation. |
|
(5) "Loss damage waiver" means a merchant's agreement |
|
to not hold a consumer liable for loss from all or part of any damage |
|
to merchandise. |
|
(6) "Merchandise" means the personal property that is |
|
the subject of a rental-purchase agreement. |
|
(7) "Merchant" means a person who, in the ordinary |
|
course of business, regularly leases, offers to lease, or arranges |
|
for the leasing of merchandise under a rental-purchase agreement. |
|
The term includes a person who is assigned an interest in a |
|
rental-purchase agreement. |
|
(8) "Rental-purchase agreement" means an agreement |
|
under which a consumer may use merchandise for personal, family, or |
|
household purposes for an initial period of four months or less, and |
|
that: |
|
(A) is automatically renewable with each payment |
|
after the initial period; and |
|
(B) permits the consumer to become the owner of |
|
the merchandise. (Bus. & Com. Code, Secs. 35.71(1), (3), (3-a), |
|
(4), (5), (6), 35.722(a).) |
|
Sec. 92.002. ADVERTISEMENT REQUIREMENTS. An advertisement |
|
for a rental-purchase agreement that refers to or states the amount |
|
of a payment or the right to acquire ownership of any one particular |
|
item under the agreement must clearly and conspicuously state: |
|
(1) that the transaction advertised is a |
|
rental-purchase agreement; |
|
(2) the total amount and number of payments necessary |
|
to acquire ownership; and |
|
(3) that the consumer does not acquire ownership |
|
rights unless the merchandise is rented for a specified number of |
|
payment periods. (Bus. & Com. Code, Sec. 35.73.) |
|
[Sections 92.003-92.050 reserved for expansion] |
|
SUBCHAPTER B. FORM AND CONTENT OF AGREEMENTS |
|
Sec. 92.051. FORM OF AGREEMENT. (a) A rental-purchase |
|
agreement must be written in: |
|
(1) plain English; and |
|
(2) any other language used by the merchant in an |
|
advertisement related to the agreement. |
|
(b) A numerical amount included in a rental-purchase |
|
agreement must be stated in figures. |
|
(c) A disclosure required by this chapter must be printed or |
|
typed in each rental-purchase agreement in a size equal to at least |
|
10-point boldfaced type. |
|
(d) The attorney general shall provide a form agreement that |
|
may be used to satisfy the requirements of a rental-purchase |
|
agreement under this chapter. (Bus. & Com. Code, Secs. 35.72(a), |
|
(b).) |
|
Sec. 92.052. REQUIRED DISCLOSURES. (a) A rental-purchase |
|
agreement must disclose: |
|
(1) whether the merchandise is new or used; |
|
(2) the price for which the merchant would have sold |
|
the merchandise to the consumer for cash on the date of the |
|
agreement; |
|
(3) the amount and timing of payments; |
|
(4) the total number of payments necessary and the |
|
total amount to be paid to acquire ownership of the merchandise; |
|
(5) that the consumer does not acquire ownership |
|
rights unless the consumer complies with the ownership terms of the |
|
agreement; |
|
(6) the amount and purpose of any payment, charge, or |
|
fee in addition to the regular periodic payments; and |
|
(7) whether the consumer is liable for loss or damage |
|
to the merchandise and, if so, the maximum amount for which the |
|
consumer may be liable. |
|
(b) Notice of the right to reinstate the agreement must be |
|
disclosed in the agreement. (Bus. & Com. Code, Secs. 35.71(2), |
|
35.72(f) (part), (g).) |
|
Sec. 92.053. OTHER REQUIRED PROVISIONS. A rental-purchase |
|
agreement must provide that: |
|
(1) any charge in addition to periodic payments must |
|
be reasonably related to the service performed; and |
|
(2) a consumer who fails to make a timely payment may |
|
reinstate an agreement, without losing any right or option |
|
previously acquired, by taking the required action before the later |
|
of: |
|
(A) one week after the due date of the payment; or |
|
(B) the number of days after the due date of the |
|
payment that is equal to half the number of days in a regular |
|
payment period. (Bus. & Com. Code, Sec. 35.72(e).) |
|
Sec. 92.054. PROHIBITED PROVISIONS. (a) A rental-purchase |
|
agreement may not: |
|
(1) require a consumer to: |
|
(A) pay a late charge or reinstatement fee except |
|
as provided by Section 92.055(b); |
|
(B) make a payment at the end of the scheduled |
|
rental-purchase term in excess of or in addition to a regular |
|
periodic payment to acquire ownership of the merchandise; or |
|
(C) purchase insurance or a loss damage waiver |
|
from the merchant to cover the merchandise; |
|
(2) require a confession of judgment; |
|
(3) authorize a merchant or an agent of the merchant to |
|
commit a breach of the peace in repossessing merchandise; or |
|
(4) waive a defense, counterclaim, or right the |
|
consumer may have against the merchant or an agent of the merchant. |
|
(b) A consumer may not in any event be required to pay a sum |
|
greater than the total amount to be paid to acquire ownership of the |
|
merchandise as disclosed under Section 92.052(a)(4). (Bus. & Com. |
|
Code, Sec. 35.72(c) (part).) |
|
Sec. 92.055. RESTRICTIONS ON LATE CHARGES AND REINSTATEMENT |
|
FEES. (a) Only one late charge or reinstatement fee may be |
|
collected on a payment regardless of the period during which the |
|
payment remains in default. |
|
(b) A rental-purchase agreement may require the consumer to |
|
pay a late charge or reinstatement fee only if: |
|
(1) a periodic payment is delinquent for more than: |
|
(A) seven days, if the payment is due monthly; or |
|
(B) three days, if the payment is due more |
|
frequently than monthly; and |
|
(2) the charge or fee is in an amount not less than $5 |
|
and not more than the lesser of: |
|
(A) $10; or |
|
(B) 10 percent of the delinquent payment. (Bus. & |
|
Com. Code, Secs. 35.72(c) (part), (d).) |
|
[Sections 92.056-92.100 reserved for expansion] |
|
SUBCHAPTER C. REPOSSESSION AND REINSTATEMENT |
|
Sec. 92.101. MERCHANT'S REPOSSESSION RIGHT. This chapter |
|
does not prevent a merchant from attempting repossession of |
|
merchandise during the reinstatement period. (Bus. & Com. Code, |
|
Sec. 35.72(f) (part).) |
|
Sec. 92.102. EFFECT OF REPOSSESSION DURING REINSTATEMENT |
|
PERIOD. A consumer's right to reinstate a rental-purchase |
|
agreement is not affected by the merchant's repossession of the |
|
merchandise during the reinstatement period. (Bus. & Com. Code, |
|
Sec. 35.72(f) (part).) |
|
Sec. 92.103. EFFECT ON REINSTATEMENT PERIOD OF MERCHANDISE |
|
RETURN. If merchandise is returned during the applicable |
|
reinstatement period, other than through judicial process, the |
|
right to reinstate the rental-purchase agreement is extended for a |
|
period of not less than 30 days after the date of return. (Bus. & |
|
Com. Code, Sec. 35.72(f) (part).) |
|
Sec. 92.104. MERCHANT'S DUTIES ON REINSTATEMENT. (a) On |
|
reinstatement, the merchant shall provide the consumer with: |
|
(1) the same merchandise; or |
|
(2) substitute merchandise of comparable quality and |
|
condition. |
|
(b) A merchant who provides the consumer with substitute |
|
merchandise shall also provide the consumer with the disclosures |
|
required by Section 92.052(a). (Bus. & Com. Code, Sec. 35.72(f) |
|
(part).) |
|
[Sections 92.105-92.150 reserved for expansion] |
|
SUBCHAPTER D. LOSS DAMAGE WAIVERS |
|
Sec. 92.151. CONTRACT FOR WAIVER. In addition to other |
|
charges permitted by this chapter, a consumer may contract for a |
|
loss damage waiver. (Bus. & Com. Code, Sec. 35.721(a) (part).) |
|
Sec. 92.152. CHARGE FOR WAIVER. A merchant may charge a |
|
periodic fee for a loss damage waiver in an amount not to exceed 10 |
|
percent of the periodic rental payment. (Bus. & Com. Code, Sec. |
|
35.721(e).) |
|
Sec. 92.153. RESTRICTIONS ON MERCHANT CONCERNING WAIVER. A |
|
merchant may not: |
|
(1) sell a loss damage waiver unless: |
|
(A) the department has approved the form of the |
|
contract containing the waiver; and |
|
(B) the consumer agrees to the waiver in writing; |
|
or |
|
(2) impose or require the purchase of a loss damage |
|
waiver as a mandatory charge. (Bus. & Com. Code, Secs. 35.721(b), |
|
(g).) |
|
Sec. 92.154. REQUIRED NOTICE IN WAIVER. A contract that |
|
offers a loss damage waiver must include the following notice: |
|
"This contract offers an optional loss damage waiver for an |
|
additional charge to cover your responsibility for loss of or |
|
damage to the merchandise. You do not have to purchase this |
|
coverage. Before deciding whether or not to purchase this |
|
loss damage waiver, you may consider whether your homeowners' |
|
or casualty insurance policy affords you coverage for loss of |
|
or damage to rental merchandise and the amount of the |
|
deductible you would pay under your policy." |
|
(Bus. & Com. Code, Sec. 35.721(f).) |
|
Sec. 92.155. STATEMENT OF TOTAL CHARGE. A loss damage |
|
waiver agreement must include a statement of the total charge for |
|
the loss damage waiver. (Bus. & Com. Code, Sec. 35.721(d).) |
|
Sec. 92.156. AUTHORIZED EXCLUSIONS. A loss damage waiver |
|
may exclude: |
|
(1) loss or damage to the merchandise that is caused by |
|
an unexplained disappearance or abandonment of the merchandise; |
|
(2) damage that is intentionally caused by the |
|
consumer; or |
|
(3) damage that results from the consumer's wilful or |
|
wanton misconduct. (Bus. & Com. Code, Sec. 35.721(c).) |
|
Sec. 92.157. RELATIONSHIP TO INSURANCE. A loss damage |
|
waiver is not insurance. (Bus. & Com. Code, Sec. 35.721(a) (part).) |
|
Sec. 92.158. RULES FOR REVIEW OF CERTAIN CONTRACTS. The |
|
commission by rule shall provide the method for annually submitting |
|
to the department for review any contract, including any amendment |
|
to a contract, that contains a loss damage waiver. (Bus. & Com. |
|
Code, Sec. 35.721(h) (part).) |
|
Sec. 92.159. FEES. The commission by rule shall set a |
|
reasonable fee to be paid by a merchant for: |
|
(1) the review of a contract form under Section |
|
92.158; and |
|
(2) the administration of this chapter by the |
|
department. (Bus. & Com. Code, Sec. 35.721(h) (part).) |
|
Sec. 92.160. ADMINISTRATIVE ENFORCEMENT OF SUBCHAPTER. (a) |
|
The department shall enforce this subchapter and, as necessary, may |
|
investigate a merchant who has one or more contracts that include a |
|
loss damage waiver. |
|
(b) A person may file a complaint with the department |
|
alleging a violation of this subchapter. The department shall |
|
investigate the alleged violation on receipt of the complaint and |
|
may inspect any record relevant to the complaint. |
|
(c) If, as a result of an investigation, the department |
|
determines that a violation may have occurred, the commission shall |
|
provide an opportunity for a hearing in the manner provided for a |
|
contested case under Chapter 2001, Government Code. |
|
(d) If, after opportunity for hearing, the commission |
|
determines that the merchant has violated this subchapter, the |
|
commission may: |
|
(1) impose an administrative penalty under Chapter 51, |
|
Occupations Code; or |
|
(2) award the complainant damages in an amount not to |
|
exceed the amount of the contract price for the merchandise. (Bus. & |
|
Com. Code, Secs. 35.722(b), (c), (d), (e).) |
|
[Sections 92.161-92.200 reserved for expansion] |
|
SUBCHAPTER E. CIVIL ENFORCEMENT |
|
Sec. 92.201. ACTION FOR VIOLATION OF CHAPTER. (a) A |
|
consumer damaged by a merchant's violation of this chapter is |
|
entitled to recover from the merchant: |
|
(1) actual damages; |
|
(2) an amount equal to 25 percent of the total amount |
|
of payments required to obtain ownership of the merchandise, except |
|
that the amount recovered under this subdivision may not be less |
|
than $250 or more than $1,000; and |
|
(3) reasonable attorney's fees and court costs. |
|
(b) A merchant is not liable under this section for a |
|
violation of this chapter caused by the merchant's error if, |
|
subject to Subsection (c), the merchant: |
|
(1) provides the consumer written notice of the error; |
|
and |
|
(2) makes adjustments in the consumer's account as |
|
necessary to ensure: |
|
(A) the consumer will not be required to pay an |
|
amount in excess of the amount disclosed; and |
|
(B) the agreement otherwise complies with this |
|
chapter. |
|
(c) A merchant must take action under Subsection (b) before: |
|
(1) the 31st day after the date the merchant discovers |
|
the error; and |
|
(2) the merchant receives written notice of the error |
|
from the consumer or an action under this section is filed. (Bus. & |
|
Com. Code, Secs. 35.74(a), (b).) |
|
Sec. 92.202. DECEPTIVE TRADE PRACTICE. A violation of this |
|
chapter is a deceptive trade practice under Subchapter E, Chapter |
|
17. (Bus. & Com. Code, Sec. 35.74(c).) |
|
[Chapters 93-100 reserved for expansion] |
|
SUBTITLE C. BUSINESS OPERATIONS |
|
CHAPTER 101. INTERNATIONAL MATCHMAKING ORGANIZATIONS |
|
Sec. 101.001. DEFINITIONS |
|
Sec. 101.002. PROVIDING CRIMINAL HISTORY, MARITAL |
|
HISTORY, AND BASIC RIGHTS INFORMATION |
|
Sec. 101.003. PROVIDING ADDITIONAL CRIMINAL HISTORY, |
|
MARITAL HISTORY, AND BASIC RIGHTS |
|
INFORMATION |
|
Sec. 101.004. OBTAINING CRIMINAL HISTORY RECORD |
|
INFORMATION AND MARITAL HISTORY |
|
INFORMATION |
|
Sec. 101.005. CIVIL PENALTY |
|
CHAPTER 101. INTERNATIONAL MATCHMAKING ORGANIZATIONS |
|
Sec. 101.001. DEFINITIONS. In this chapter: |
|
(1) "Basic rights information" means information |
|
applicable to a noncitizen, including information about human |
|
rights, immigration, and emergency assistance and resources. |
|
(2) "Client" means a person who is a resident of the |
|
United States and who contracts with an international matchmaking |
|
organization to meet recruits. |
|
(3) "Criminal history record information" means |
|
criminal history record information obtained from the Department of |
|
Public Safety under Subchapter F, Chapter 411, Government Code, and |
|
from the Federal Bureau of Investigation under Section 411.087, |
|
Government Code. |
|
(4) "International matchmaking organization" means a |
|
corporation, partnership, sole proprietorship, or other legal |
|
entity that does business in the United States and offers to |
|
residents of this state dating, matrimonial, or social referral |
|
services involving recruits by: |
|
(A) exchanging names, telephone numbers, |
|
addresses, or statistics; |
|
(B) selecting photographs; or |
|
(C) providing a social environment for |
|
introducing clients to recruits in a country other than the United |
|
States. |
|
(5) "Marital history information" means a declaration |
|
of a person's current marital status, the number of times the person |
|
has been married, and whether any marriage occurred as a result of |
|
receiving services from an international matchmaking organization. |
|
(6) "Recruit" means a person who: |
|
(A) is not a citizen or resident of the United |
|
States; and |
|
(B) is recruited by an international matchmaking |
|
organization for the purpose of providing dating, matrimonial, or |
|
social referral services. (Bus. & Com. Code, Sec. 35.121.) |
|
Sec. 101.002. PROVIDING CRIMINAL HISTORY, MARITAL HISTORY, |
|
AND BASIC RIGHTS INFORMATION. (a) An international matchmaking |
|
organization shall provide each recruit with the criminal history |
|
record information and marital history information of the |
|
organization's clients and with basic rights information. |
|
(b) The information under Subsection (a) must: |
|
(1) be in the recruit's native language; and |
|
(2) be displayed in a manner that: |
|
(A) separates the criminal history record |
|
information, the marital history information, and the basic rights |
|
information from any other information; and |
|
(B) is highly noticeable. (Bus. & Com. Code, |
|
Sec. 35.122.) |
|
Sec. 101.003. PROVIDING ADDITIONAL CRIMINAL HISTORY, |
|
MARITAL HISTORY, AND BASIC RIGHTS INFORMATION. (a) An |
|
international matchmaking organization shall disseminate to a |
|
recruit the criminal history record information and marital history |
|
information of a client and the basic rights information not later |
|
than the 30th day after the date the organization receives the |
|
criminal history record information and the marital history |
|
information from the client. |
|
(b) The international matchmaking organization shall |
|
provide the information to the recruit in the recruit's native |
|
language. The organization shall pay the costs incurred to |
|
translate the information. (Bus. & Com. Code, Sec. 35.123.) |
|
Sec. 101.004. OBTAINING CRIMINAL HISTORY RECORD |
|
INFORMATION AND MARITAL HISTORY INFORMATION. (a) A client shall: |
|
(1) obtain a copy of the client's own criminal history |
|
record information; |
|
(2) provide the criminal history record information to |
|
the international matchmaking organization; and |
|
(3) provide the client's own marital history |
|
information to the international matchmaking organization. |
|
(b) The international matchmaking organization shall |
|
require the client to affirm that the marital history information |
|
is complete and accurate and includes information regarding |
|
marriages, annulments, and dissolutions that occurred in another |
|
state or a foreign country. |
|
(c) The international matchmaking organization may not |
|
provide any further services to the client or the recruit until the |
|
organization has: |
|
(1) obtained the requested criminal history record |
|
information and marital history information; and |
|
(2) provided the information to the recruit. (Bus. & |
|
Com. Code, Sec. 35.124.) |
|
Sec. 101.005. CIVIL PENALTY. (a) An international |
|
matchmaking organization that violates this chapter is subject to a |
|
civil penalty not to exceed $20,000 for each violation. |
|
(b) In determining the amount of the civil penalty, the |
|
court shall consider: |
|
(1) any previous violations of this chapter by the |
|
international matchmaking organization; |
|
(2) the seriousness of the violation, including the |
|
nature, circumstances, extent, and gravity of the violation; |
|
(3) the demonstrated good faith of the international |
|
matchmaking organization; and |
|
(4) the amount necessary to deter future violations. |
|
(c) The attorney general or the appropriate district or |
|
county attorney may bring an action under this section in the name |
|
of the state in a district court in: |
|
(1) Travis County; or |
|
(2) a county in which any part of the violation occurs. |
|
(d) A penalty collected under this section by the attorney |
|
general or a district or county attorney shall be deposited in the |
|
state treasury to the credit of the compensation to victims of crime |
|
fund under Article 56.54, Code of Criminal Procedure. (Bus. & Com. |
|
Code, Sec. 35.125.) |
|
CHAPTER 102. SEXUALLY ORIENTED BUSINESSES |
|
Sec. 102.001. DEFINITIONS |
|
Sec. 102.002. PROHIBITION ON CERTAIN ACTIVITIES BY SEX |
|
OFFENDER IN RELATION TO BUSINESS |
|
Sec. 102.003. PROHIBITION ON CERTAIN ACTIVITIES BY |
|
BUSINESS IN RELATION TO SEX OFFENDER |
|
Sec. 102.004. INJUNCTION OR OTHER RELIEF |
|
Sec. 102.005. CRIMINAL PENALTIES |
|
CHAPTER 102. SEXUALLY ORIENTED BUSINESSES |
|
Sec. 102.001. DEFINITIONS. In this chapter: |
|
(1) "Sex offender" means a person who has been |
|
convicted of or placed on deferred adjudication for an offense for |
|
which a person is subject to registration under Chapter 62, Code of |
|
Criminal Procedure. |
|
(2) "Sexually oriented business" has the meaning |
|
assigned by Section 243.002, Local Government Code. (Bus. & Com. |
|
Code, Sec. 47.001.) |
|
Sec. 102.002. PROHIBITION ON CERTAIN ACTIVITIES BY SEX |
|
OFFENDER IN RELATION TO BUSINESS. A sex offender may not: |
|
(1) wholly or partly own a sexually oriented business; |
|
or |
|
(2) serve as a director, officer, operator, manager, |
|
or employee of a sexually oriented business. (Bus. & Com. Code, |
|
Sec. 47.002(a).) |
|
Sec. 102.003. PROHIBITION ON CERTAIN ACTIVITIES BY BUSINESS |
|
IN RELATION TO SEX OFFENDER. If a sexually oriented business knows |
|
that a person is a sex offender, the business may not: |
|
(1) contract with that person to operate or manage the |
|
business as an independent contractor; or |
|
(2) employ that person as an officer, operator, |
|
manager, or other employee. (Bus. & Com. Code, Sec. 47.002(b).) |
|
Sec. 102.004. INJUNCTION OR OTHER RELIEF. (a) The attorney |
|
general or appropriate district or county attorney, in the name of |
|
the state, may bring an action for an injunction or other process |
|
against a person who violates or threatens to violate Section |
|
102.002 or 102.003. |
|
(b) The action may be brought in a district court in: |
|
(1) Travis County; or |
|
(2) a county in which any part of the violation or |
|
threatened violation occurs. |
|
(c) The court may grant any prohibitory or mandatory relief |
|
warranted by the facts, including a temporary restraining order, |
|
temporary injunction, or permanent injunction. (Bus. & Com. Code, |
|
Sec. 47.003.) |
|
Sec. 102.005. CRIMINAL PENALTIES. (a) A sex offender |
|
commits an offense if the sex offender violates Section 102.002. |
|
(b) A sexually oriented business commits an offense if the |
|
business violates Section 102.003. |
|
(c) An offense under this section is a Class A misdemeanor. |
|
(Bus. & Com. Code, Sec. 47.004.) |
|
CHAPTER 103. APPRAISALS IMPROPERLY INDUCED BY MORTGAGE LENDERS |
|
Sec. 103.001. DEFINITIONS |
|
Sec. 103.002. CRIMINAL PENALTY |
|
CHAPTER 103. APPRAISALS IMPROPERLY INDUCED BY MORTGAGE LENDERS |
|
Sec. 103.001. DEFINITIONS. In this chapter: |
|
(1) "Lender" means a person who lends money for or |
|
invests money in mortgage loans. |
|
(2) "Mortgage loan" means a loan secured by a deed of |
|
trust, security deed, or other lien on real property. (Bus. & Com. |
|
Code, Sec. 35.56(a).) |
|
Sec. 103.002. CRIMINAL PENALTY. (a) A lender commits an |
|
offense if in connection with a mortgage loan transaction the |
|
lender pays or offers to pay a person, including an individual |
|
licensed or certified by the Texas Appraiser Licensing and |
|
Certification Board or the Texas Real Estate Commission, a fee or |
|
other consideration for appraisal services and the payment: |
|
(1) is contingent on a minimum, maximum, or pre-agreed |
|
estimate of value of property securing the loan; and |
|
(2) interferes with the person's ability or obligation |
|
to provide an independent and impartial opinion of the property's |
|
value. |
|
(b) An offense under this section is a Class A misdemeanor. |
|
(c) An instruction a lender gives to a real estate appraiser |
|
regarding a legal or other regulatory requirement for the appraisal |
|
of property, or any other communication between a lender or real |
|
estate appraiser necessary or appropriate under a law, regulation, |
|
or underwriting standard applicable to a real estate appraisal, |
|
does not constitute interference by a lender for purposes of |
|
Subsection (a)(2). (Bus. & Com. Code, Secs. 35.56(b), (c), (d).) |
|
CHAPTER 104. RESTRICTIONS ON CHARGES BY MOTOR FUEL FRANCHISORS |
|
Sec. 104.001. DEFINITIONS |
|
Sec. 104.002. PROHIBITED FEES, CHARGES, AND DISCOUNTS |
|
Sec. 104.003. CIVIL ACTION |
|
CHAPTER 104. RESTRICTIONS ON CHARGES BY MOTOR FUEL FRANCHISORS |
|
Sec. 104.001. DEFINITIONS. In this chapter: |
|
(1) "Franchise": |
|
(A) includes: |
|
(i) a contract under which a distributor or |
|
retailer is authorized to occupy marketing premises in connection |
|
with the sale, consignment, or distribution of motor fuel under a |
|
trademark owned or controlled by a franchisor-refiner or by a |
|
refiner who supplies motor fuel to a distributor who authorizes the |
|
occupancy; |
|
(ii) a contract relating to the supply of |
|
motor fuel to be sold, consigned, or distributed under a trademark |
|
owned or controlled by a refiner; and |
|
(iii) the unexpired portion of any |
|
franchise transferred or assigned under the franchise provisions or |
|
any applicable provision of state or federal law authorizing the |
|
transfer or assignment regardless of the franchise provisions; and |
|
(B) does not include a contract: |
|
(i) that is made in the distribution of |
|
motor fuels through a card-lock or key-operated pumping system; and |
|
(ii) to which a refiner or producer of the |
|
motor fuel is not a party. |
|
(2) "Franchisee" means a distributor or retailer who |
|
is authorized under a franchise to use a trademark in connection |
|
with the sale, consignment, or distribution of motor fuel. |
|
(3) "Franchisor" means a refiner or distributor who |
|
authorizes under a franchise the use of a trademark in connection |
|
with the sale, consignment, or distribution of motor fuel. |
|
(4) "Motor fuel" includes diesel fuel and gasoline: |
|
(A) delivered to a service station by a |
|
franchisor; and |
|
(B) usable as a propellant of a motor vehicle. |
|
(V.A.C.S. Art. 8612, Secs. 1(1), (2), (3), (5).) |
|
Sec. 104.002. PROHIBITED FEES, CHARGES, AND DISCOUNTS. (a) |
|
For purposes of this section, wholesale price is computed by adding |
|
to the invoice price or purchase price per gallon charged to a |
|
franchisee who buys motor fuel any excise tax paid by the buyer and |
|
any reasonable freight charges paid by the buyer, and subtracting |
|
that portion of any refund, rebate, or subsidy not designed to |
|
offset the fee, charge, or discount described by this section. |
|
(b) Except as provided by Subsection (c), a franchisor may |
|
not require a franchisee to pay to the franchisor a fee, charge, or |
|
discount for: |
|
(1) honoring a credit card issued by the franchisor; |
|
or |
|
(2) submitting to the franchisor, for payment or |
|
credit to the franchisee's account, documents or other evidence of |
|
indebtedness of the holder of a credit card issued by the |
|
franchisor. |
|
(c) A franchisor may require a franchisee to pay the fee, |
|
charge, or discount if the franchisor, in consideration of |
|
competitive prices in the relevant market, has adjusted the |
|
wholesale prices charged or rebates credited to franchisees for |
|
motor fuel by amounts that on average for franchisees in this state |
|
substantially offset the fee, charge, or discount. (V.A.C.S. Art. |
|
8612, Secs. 1(4), 2.) |
|
Sec. 104.003. CIVIL ACTION. (a) A franchisee may bring a |
|
civil action against a franchisor who violates Section 104.002, |
|
without regard to the amount in controversy, in the district court |
|
in any county in which the franchisor or franchisee transacts |
|
business. An action under this section must be commenced and |
|
prosecuted not later than the second anniversary of the date the |
|
cause of action accrues against the franchisor. |
|
(b) The court shall award to a franchisee who prevails in an |
|
action under this section: |
|
(1) the amount of actual damages; |
|
(2) equitable relief as determined by the court to be |
|
necessary to remedy the effects of the franchisor's violation of |
|
Section 104.002, including a declaratory judgment, permanent |
|
injunctive relief, and temporary injunctive relief; and |
|
(3) court costs and attorney's fees that are |
|
reasonable in relation to the amount of work expended. |
|
(c) In addition to the remedies provided under Subsection |
|
(b), on finding that the defendant wilfully and knowingly committed |
|
the violation, the trier of fact shall award not more than three |
|
times the amount of actual damages. |
|
(d) In an action under this section, the franchisor has the |
|
burden of establishing the offset described by Section 104.002 as |
|
an affirmative defense. (V.A.C.S. Art. 8612, Sec. 3.) |
|
CHAPTER 105. REFUELING SERVICES FOR PERSONS WITH DISABILITIES |
|
Sec. 105.001. DEFINITIONS |
|
Sec. 105.002. APPLICABILITY OF CHAPTER |
|
Sec. 105.003. REFUELING SERVICES |
|
Sec. 105.004. NOTICE |
|
Sec. 105.005. OFFENSE; PENALTY |
|
Sec. 105.006. ENFORCEMENT |
|
CHAPTER 105. REFUELING SERVICES FOR PERSONS WITH DISABILITIES |
|
Sec. 105.001. DEFINITIONS. (a) In this chapter: |
|
(1) "Refueling service" means the service of pumping |
|
motor vehicle fuel into the fuel tank of a motor vehicle. |
|
(2) "Service station" means a gasoline service station |
|
or other facility that offers gasoline or other motor vehicle fuel |
|
for sale to the public from the facility. |
|
(b) In this chapter, with respect to the operation of a |
|
service station, "person" means an individual, firm, partnership, |
|
association, trustee, or corporation. (V.A.C.S. Art. 8613, Sec. 1; |
|
New.) |
|
Sec. 105.002. APPLICABILITY OF CHAPTER. (a) This chapter |
|
applies to a service station that ordinarily provides pump island |
|
service, except that such a service station is not required to |
|
provide refueling service under this chapter during any regularly |
|
scheduled hours during which, for security reasons, the service |
|
station does not provide pump island service. |
|
(b) This chapter does not apply to: |
|
(1) a service station or other facility that: |
|
(A) never provides pump island service; and |
|
(B) has only remotely controlled pumps; or |
|
(2) a refueling service used to provide liquefied gas, |
|
as defined by Section 162.001, Tax Code. (V.A.C.S. Art. 8613, Sec. |
|
3.) |
|
Sec. 105.003. REFUELING SERVICES. (a) A person who |
|
operates a service station shall provide, on request, refueling |
|
service to a person with a disability who is the driver of a vehicle |
|
and displays: |
|
(1) a license plate issued under Section 504.201 or |
|
504.203, Transportation Code; or |
|
(2) a disabled parking placard issued under Section |
|
681.004, Transportation Code. |
|
(b) The price charged for motor vehicle fuel provided under |
|
Subsection (a) may not exceed the price the service station would |
|
otherwise generally charge the public for the purchase of motor |
|
vehicle fuel without refueling service. (V.A.C.S. Art. 8613, Sec. |
|
2.) |
|
Sec. 105.004. NOTICE. (a) The Department of Agriculture |
|
shall provide a notice that states the provisions of this chapter to |
|
each person who operates a service station. |
|
(b) The Texas Department of Transportation shall provide a |
|
notice that states the provisions of this chapter to each person |
|
with a disability who is issued: |
|
(1) license plates under Section 504.201, |
|
Transportation Code; or |
|
(2) a disabled parking placard under Section 681.004, |
|
Transportation Code. (V.A.C.S. Art. 8613, Sec. 4.) |
|
Sec. 105.005. OFFENSE; PENALTY. (a) A person commits an |
|
offense if the person violates Section 105.003 and the person is: |
|
(1) a manager responsible for setting the service |
|
policy of a service station subject to this chapter; or |
|
(2) an employee acting independently against the |
|
established service policy of the service station. |
|
(b) An offense under this section is a Class C misdemeanor. |
|
(V.A.C.S. Art. 8613, Sec. 5.) |
|
Sec. 105.006. ENFORCEMENT. In addition to enforcement by |
|
the prosecuting attorney who represents the state, this chapter may |
|
be enforced by the attorney general. (V.A.C.S. Art. 8613, Sec. 6.) |
|
TITLE 6. SALE OR TRANSFER OF GOODS |
|
CHAPTER 201. SALE OF ITEMS AT FLEA MARKETS |
|
Sec. 201.001. DEFINITION |
|
Sec. 201.002. INAPPLICABILITY OF CHAPTER TO CERTAIN |
|
ITEMS |
|
Sec. 201.003. SALE OF CERTAIN ITEMS PROHIBITED |
|
Sec. 201.004. FRAUDULENT AUTHORIZATION FOR SALE OF |
|
CERTAIN ITEMS AT RETAIL |
|
Sec. 201.005. PROVISION OF BOOTH OR SIMILAR SPACE NOT |
|
AN OFFENSE |
|
Sec. 201.006. INVESTIGATION RECORDS REQUIRED |
|
CHAPTER 201. SALE OF ITEMS AT FLEA MARKETS |
|
Sec. 201.001. DEFINITION. In this chapter, "flea market" |
|
means a location at which booths or similar spaces are rented or |
|
otherwise made temporarily available to two or more persons and at |
|
which the persons offer tangible personal property for sale. (Bus. & |
|
Com. Code, Sec. 35.55(a).) |
|
Sec. 201.002. INAPPLICABILITY OF CHAPTER TO CERTAIN ITEMS. |
|
This chapter does not apply to the sale or offer for sale of a |
|
nutritional supplement or vitamin. (Bus. & Com. Code, Sec. |
|
35.55(h).) |
|
Sec. 201.003. SALE OF CERTAIN ITEMS PROHIBITED. (a) A |
|
person commits an offense if the person sells or offers for sale at |
|
a flea market: |
|
(1) infant formula or baby food of a type usually |
|
consumed by children younger than two years of age; |
|
(2) a drug, as defined by Section 431.002, Health and |
|
Safety Code; or |
|
(3) contact lenses, including disposable contact |
|
lenses. |
|
(b) It is a defense to prosecution under this section that |
|
the person selling the item: |
|
(1) is authorized in writing to sell the item at retail |
|
by the manufacturer of the item or the manufacturer's authorized |
|
distributor and the authorization states the person's name; and |
|
(2) provides the authorization for examination by any |
|
person at the flea market who requests to see the authorization. |
|
(c) It is a defense to prosecution under this section that |
|
only a sample of the item or a catalog or brochure displaying the |
|
item was available at the flea market and the item sold was not |
|
delivered to the buyer at the flea market. |
|
(d) An offense under this section is a misdemeanor |
|
punishable by a fine not to exceed $100. |
|
(e) The penalty provided by this section is in addition to |
|
any other sanction provided by law. (Bus. & Com. Code, Secs. |
|
35.55(b), (d), (f).) |
|
Sec. 201.004. FRAUDULENT AUTHORIZATION FOR SALE OF CERTAIN |
|
ITEMS AT RETAIL. (a) A person commits an offense if the person |
|
provides to another person an authorization under Section |
|
201.003(b) and: |
|
(1) the authorization is forged or contains a false |
|
statement; or |
|
(2) the person displaying the authorization obtained |
|
the authorization by fraud. |
|
(b) An offense under this section is a misdemeanor |
|
punishable by a fine not to exceed $100. (Bus. & Com. Code, Secs. |
|
35.55(e), (f).) |
|
Sec. 201.005. PROVISION OF BOOTH OR SIMILAR SPACE NOT AN |
|
OFFENSE. A person does not commit an offense under this chapter |
|
solely because the person provides booths or similar spaces at a |
|
flea market. (Bus. & Com. Code, Sec. 35.55(c).) |
|
Sec. 201.006. INVESTIGATION RECORDS REQUIRED. A law |
|
enforcement agency investigating a violation of this chapter shall |
|
maintain a record of the investigation. The record is public |
|
information. (Bus. & Com. Code, Sec. 35.55(g).) |
|
CHAPTER 202. SALES OF MOTOR VEHICLES WITH STOPLAMP COVERINGS |
|
Sec. 202.001. SALE OF MOTOR VEHICLE WITH CERTAIN |
|
STOPLAMP COVERING PROHIBITED |
|
CHAPTER 202. SALES OF MOTOR VEHICLES WITH STOPLAMP COVERINGS |
|
Sec. 202.001. SALE OF MOTOR VEHICLE WITH CERTAIN STOPLAMP |
|
COVERING PROHIBITED. (a) In this section, "motor vehicle" has the |
|
meaning assigned by Section 541.201, Transportation Code. |
|
(b) A person in the business of selling motor vehicles may |
|
not sell a motor vehicle with a transparent or semitransparent |
|
covering: |
|
(1) placed over a stoplamp that is mounted on the rear |
|
center line of the vehicle either in or on the rear window or within |
|
six inches from the rear window of the vehicle for the purpose of |
|
emitting light when the vehicle's brakes are applied; and |
|
(2) on which is impressed or imprinted a name, trade |
|
name, logotype, or other message that a person behind the vehicle |
|
can read when the stoplamp is illuminated. |
|
(c) A person who violates this section commits an offense. |
|
An offense under this section is a Class C misdemeanor. (Bus. & |
|
Com. Code, Sec. 35.46.) |
|
CHAPTER 203. EXPORTING ARTICLES WITHOUT INSPECTION |
|
Sec. 203.001. CRIMINAL PENALTY FOR EXPORTING ARTICLES |
|
WITHOUT REQUIRED INSPECTION |
|
CHAPTER 203. EXPORTING ARTICLES WITHOUT INSPECTION |
|
Sec. 203.001. CRIMINAL PENALTY FOR EXPORTING ARTICLES |
|
WITHOUT REQUIRED INSPECTION. (a) A person commits an offense if |
|
the person: |
|
(1) exports from this state, or ships for the purpose |
|
of exportation to a state other than this state or to a foreign |
|
port, an article of commerce that by law of this state is required |
|
to be inspected by a public inspector; and |
|
(2) does not have the article inspected as required by |
|
law. |
|
(b) An offense under this section is a misdemeanor |
|
punishable by a fine not to exceed $100. (Bus. & Com. Code, Sec. |
|
35.57.) |
|
TITLE 7. RECEIPTS, DOCUMENTS OF TITLE, AND OTHER INSTRUMENTS |
|
CHAPTER 251. WAREHOUSE RECEIPTS |
|
Sec. 251.001. DEFINITIONS |
|
Sec. 251.002. WAREHOUSEMAN ISSUING FRAUDULENT WAREHOUSE |
|
RECEIPT |
|
Sec. 251.003. WAREHOUSEMAN FAILING TO STATE |
|
WAREHOUSEMAN'S OWNERSHIP OF GOODS ON |
|
RECEIPT |
|
Sec. 251.004. WAREHOUSEMAN ISSUING WAREHOUSE RECEIPT |
|
WITHOUT CONTROL OF GOODS |
|
Sec. 251.005. WAREHOUSEMAN ISSUING DUPLICATE OR |
|
ADDITIONAL WAREHOUSE RECEIPT |
|
Sec. 251.006. WAREHOUSEMAN WRONGFULLY DELIVERING GOODS |
|
Sec. 251.007. FAILURE TO DISCLOSE LACK OF OWNERSHIP OF |
|
GOODS |
|
Sec. 251.008. FAILURE TO DISCLOSE EXISTENCE OF LIEN ON |
|
GOODS |
|
CHAPTER 251. WAREHOUSE RECEIPTS |
|
Sec. 251.001. DEFINITIONS. In this chapter: |
|
(1) "Goods" means all things treated as movable for |
|
purposes of a contract of storage or transportation. |
|
(2) "Issue" includes aiding in the issuance of a |
|
warehouse receipt. |
|
(3) "Warehouse receipt" means a receipt issued by a |
|
warehouseman. |
|
(4) "Warehouseman" means a person engaged in the |
|
business of storing goods for hire. The term includes an officer, |
|
agent, or employee of a warehouseman. (Bus. & Com. Code, Sec. |
|
35.27; New.) |
|
Sec. 251.002. WAREHOUSEMAN ISSUING FRAUDULENT WAREHOUSE |
|
RECEIPT. (a) A warehouseman may not, with intent to defraud, issue |
|
a warehouse receipt that contains a false statement. |
|
(b) A warehouseman who violates this section commits an |
|
offense. An offense under this section is a misdemeanor punishable |
|
by: |
|
(1) confinement in the county jail for a term of not |
|
more than one year; |
|
(2) a fine not to exceed $1,000; or |
|
(3) both the fine and confinement. (Bus. & Com. Code, |
|
Sec. 35.28.) |
|
Sec. 251.003. WAREHOUSEMAN FAILING TO STATE WAREHOUSEMAN'S |
|
OWNERSHIP OF GOODS ON RECEIPT. (a) A warehouseman may not |
|
knowingly issue a negotiable warehouse receipt describing goods the |
|
warehouseman owns, whether solely, jointly, or in common, and is |
|
storing, unless the warehouseman states the warehouseman's |
|
ownership of the goods on the receipt. |
|
(b) A warehouseman who violates this section commits an |
|
offense. An offense under this section is a misdemeanor punishable |
|
by: |
|
(1) confinement in the county jail for a term of not |
|
more than one year; or |
|
(2) a fine not to exceed $1,000. (Bus. & Com. Code, |
|
Sec. 35.29.) |
|
Sec. 251.004. WAREHOUSEMAN ISSUING WAREHOUSE RECEIPT |
|
WITHOUT CONTROL OF GOODS. (a) A warehouseman may not issue a |
|
warehouse receipt for goods if the warehouseman knows at the time of |
|
issuance that the goods described in the receipt are not under the |
|
warehouseman's control. |
|
(b) A warehouseman who violates this section commits an |
|
offense. An offense under this section is a felony punishable by: |
|
(1) imprisonment in the Texas Department of Criminal |
|
Justice for a term of not more than five years; |
|
(2) a fine not to exceed $5,000; or |
|
(3) both the fine and imprisonment. (Bus. & Com. Code, |
|
Sec. 35.30.) |
|
Sec. 251.005. WAREHOUSEMAN ISSUING DUPLICATE OR ADDITIONAL |
|
WAREHOUSE RECEIPT. (a) A warehouseman may not issue a duplicate or |
|
additional negotiable warehouse receipt for goods if the |
|
warehouseman knows at the time of issuance that a previously issued |
|
negotiable warehouse receipt describing the goods is outstanding |
|
and uncanceled. |
|
(b) This section does not apply if: |
|
(1) the word "duplicate" is plainly placed on the |
|
duplicate or additional negotiable warehouse receipt; or |
|
(2) goods described in the outstanding and uncanceled |
|
negotiable warehouse receipt were delivered under a court order on |
|
proof that the receipt was lost or destroyed. |
|
(c) A warehouseman who violates this section commits an |
|
offense. An offense under this section is a felony punishable by: |
|
(1) imprisonment in the Texas Department of Criminal |
|
Justice for a term of not more than five years; |
|
(2) a fine not to exceed $5,000; or |
|
(3) both the fine and imprisonment. (Bus. & Com. Code, |
|
Sec. 35.31.) |
|
Sec. 251.006. WAREHOUSEMAN WRONGFULLY DELIVERING GOODS. |
|
(a) A warehouseman may not knowingly deliver goods that are |
|
described in a negotiable warehouse receipt and stored with the |
|
warehouseman, unless the receipt is surrendered to the warehouseman |
|
at or before the time the warehouseman delivers the goods. |
|
(b) This section does not apply if the goods are: |
|
(1) delivered under a court order on proof that the |
|
negotiable warehouse receipt describing the goods was lost or |
|
destroyed; |
|
(2) lawfully sold to satisfy a warehouseman's lien; or |
|
(3) disposed of because of the perishable or hazardous |
|
nature of the goods. |
|
(c) A warehouseman who violates this section commits an |
|
offense. An offense under this section is a misdemeanor punishable |
|
by: |
|
(1) confinement in the county jail for a term of not |
|
more than one year; |
|
(2) a fine not to exceed $1,000; or |
|
(3) both the fine and confinement. (Bus. & Com. Code, |
|
Sec. 35.32.) |
|
Sec. 251.007. FAILURE TO DISCLOSE LACK OF OWNERSHIP OF |
|
GOODS. (a) A person who obtains a negotiable warehouse receipt |
|
describing goods the person does not own may not, with intent to |
|
defraud, negotiate the receipt for value without disclosing the |
|
person's lack of ownership. |
|
(b) A person who violates this section commits an offense. |
|
An offense under this section is a misdemeanor punishable by: |
|
(1) confinement in the county jail for a term of not |
|
more than one year; |
|
(2) a fine not to exceed $1,000; or |
|
(3) both the fine and confinement. (Bus. & Com. Code, |
|
Sec. 35.33 (part).) |
|
Sec. 251.008. FAILURE TO DISCLOSE EXISTENCE OF LIEN ON |
|
GOODS. (a) A person who obtains a negotiable warehouse receipt |
|
describing goods subject to a lien may not, with intent to defraud, |
|
negotiate the receipt for value without disclosing the lien's |
|
existence. |
|
(b) A person who violates this section commits an offense. |
|
An offense under this section is a misdemeanor punishable by: |
|
(1) confinement in the county jail for a term of not |
|
more than one year; |
|
(2) a fine not to exceed $1,000; or |
|
(3) both the fine and confinement. (Bus. & Com. Code, |
|
Sec. 35.33 (part).) |
|
CHAPTER 252. BILLS OF LADING |
|
Sec. 252.001. DEFINITIONS |
|
Sec. 252.002. DUTIES OF RAILROAD COMMISSION |
|
Sec. 252.003. AGENT WRONGFULLY FAILING OR REFUSING TO |
|
ISSUE BILL OF LADING |
|
Sec. 252.004. AGENT ISSUING FRAUDULENT BILL OF LADING |
|
Sec. 252.005. AGENT ISSUING ORDER BILL OF LADING IN |
|
DUPLICATE OR SET OF PARTS |
|
Sec. 252.006. FRAUDULENTLY INDUCING ISSUANCE OF BILL |
|
OF LADING |
|
Sec. 252.007. FRAUDULENTLY NEGOTIATING OR TRANSFERRING |
|
BILL OF LADING |
|
CHAPTER 252. BILLS OF LADING |
|
Sec. 252.001. DEFINITIONS. In this chapter: |
|
(1) "Agent" includes an officer, employee, or |
|
receiver. |
|
(2) "Bill of lading" means a document evidencing the |
|
receipt of goods for shipment issued by a person engaged in the |
|
business of transporting or forwarding goods. The term includes an |
|
air consignment note, air waybill, or other document for air |
|
transportation comparable to a bill of lading for marine or rail |
|
transportation. |
|
(3) "Goods" means all things treated as movable for |
|
purposes of a contract of storage or transportation. (Bus. & Com. |
|
Code, Sec. 35.14 (part).) |
|
Sec. 252.002. DUTIES OF RAILROAD COMMISSION. (a) In this |
|
section, "common carrier" does not include a pipeline company or |
|
express company. |
|
(b) The Railroad Commission of Texas shall: |
|
(1) prescribe forms, terms, and conditions for |
|
authenticating, certifying, or validating bills of lading issued by |
|
a common carrier; |
|
(2) regulate the manner by which a common carrier |
|
issues bills of lading; and |
|
(3) take other action necessary to carry out the |
|
purposes of Chapter 7. |
|
(c) After giving reasonable notice to interested common |
|
carriers and to the public, the railroad commission may amend a rule |
|
adopted under Subsection (b). (Bus. & Com. Code, Secs. 35.14 |
|
(part), 35.15.) |
|
Sec. 252.003. AGENT WRONGFULLY FAILING OR REFUSING TO ISSUE |
|
BILL OF LADING. (a) In this section, "common carrier" does not |
|
include a pipeline company or express company. |
|
(b) An agent of a common carrier may not after lawful demand |
|
fail or refuse to issue a bill of lading in accordance with Chapter |
|
7 or a rule of the railroad commission. |
|
(c) An agent who violates this section commits an offense. |
|
An offense under this section is a misdemeanor punishable by: |
|
(1) confinement in the county jail for a term of not |
|
more than six months; |
|
(2) a fine not to exceed $200; or |
|
(3) both the fine and confinement. (Bus. & Com. Code, |
|
Secs. 35.14 (part), 35.16.) |
|
Sec. 252.004. AGENT ISSUING FRAUDULENT BILL OF LADING. (a) |
|
In this section, "common carrier" does not include a pipeline |
|
company or express company. |
|
(b) An agent of a common carrier may not with intent to |
|
defraud a person: |
|
(1) issue a bill of lading; |
|
(2) incorrectly describe goods or the quantity of |
|
goods in a bill of lading; or |
|
(3) issue a bill of lading without authority. |
|
(c) An agent who violates this section commits an offense. |
|
An offense under this section is a felony punishable by |
|
imprisonment in the Texas Department of Criminal Justice for a term |
|
of not more than 10 years or less than two years. (Bus. & Com. Code, |
|
Secs. 35.14 (part), 35.17.) |
|
Sec. 252.005. AGENT ISSUING ORDER BILL OF LADING IN |
|
DUPLICATE OR SET OF PARTS. (a) Except where customary in overseas |
|
transportation, an agent of a common carrier may not knowingly |
|
issue or aid in issuing an order bill of lading in duplicate or in a |
|
set of parts. |
|
(b) An agent who violates this section commits an offense. |
|
An offense under this section is a felony punishable by: |
|
(1) imprisonment in the Texas Department of Criminal |
|
Justice for a term of not more than five years; and |
|
(2) a fine not to exceed $5,000. (Bus. & Com. Code, |
|
Sec. 35.18.) |
|
Sec. 252.006. FRAUDULENTLY INDUCING ISSUANCE OF BILL OF |
|
LADING. (a) A person may not, with intent to defraud, induce an |
|
agent of a common carrier to: |
|
(1) issue to the person a bill of lading; or |
|
(2) materially misrepresent in a bill of lading issued |
|
on behalf of the common carrier the quantity of goods described in |
|
the bill of lading. |
|
(b) A person who violates this section commits an offense. |
|
An offense under this section is a felony punishable by |
|
imprisonment in the Texas Department of Criminal Justice for a term |
|
of not more than five years or less than two years. (Bus. & Com. |
|
Code, Sec. 35.20.) |
|
Sec. 252.007. FRAUDULENTLY NEGOTIATING OR TRANSFERRING |
|
BILL OF LADING. (a) A person may not, with intent to defraud, |
|
negotiate or transfer a bill of lading that: |
|
(1) is issued in violation of Chapter 7; or |
|
(2) contains a false, material statement of fact. |
|
(b) A person who violates this section commits an offense. |
|
An offense under this section is a felony punishable by |
|
imprisonment in the Texas Department of Criminal Justice for a term |
|
of not more than 10 years. (Bus. & Com. Code, Sec. 35.21.) |
|
CHAPTER 253. PROTESTED OUT-OF-STATE DRAFTS |
|
Sec. 253.001. DAMAGES ON PROTESTED OUT-OF-STATE DRAFTS |
|
CHAPTER 253. PROTESTED OUT-OF-STATE DRAFTS |
|
Sec. 253.001. DAMAGES ON PROTESTED OUT-OF-STATE DRAFTS. |
|
The holder of a protested draft is entitled to damages in an amount |
|
equal to 10 percent of the amount of the draft, plus interest and |
|
the costs of suit, if: |
|
(1) the draft was drawn by a merchant in this state on |
|
the merchant's agent or factor outside this state; and |
|
(2) the drawer's or indorser's liability on the draft |
|
has been fixed. (Bus. & Com. Code, Sec. 35.39.) |
|
CHAPTER 254. NOTE OR LIEN IDENTIFYING A PATENT RIGHT |
|
Sec. 254.001. IDENTIFICATION OF PATENT RIGHT |
|
Sec. 254.002. FAILURE TO IDENTIFY PATENT RIGHT; |
|
CRIMINAL PENALTY |
|
CHAPTER 254. NOTE OR LIEN IDENTIFYING A PATENT RIGHT |
|
Sec. 254.001. IDENTIFICATION OF PATENT RIGHT. (a) A note |
|
or lien evidencing or securing the purchase price for a patent right |
|
or patent right territory must contain on the face of the note or |
|
lien a statement that the note or lien was given for a patent right |
|
or patent right territory. |
|
(b) The statement required by Subsection (a): |
|
(1) is notice to a subsequent purchaser of the note or |
|
lien of all equities between the original parties to the note or |
|
lien; and |
|
(2) subjects a subsequent holder of the note or lien to |
|
all defenses available against the original parties to the note or |
|
lien. (Bus. & Com. Code, Secs. 35.40(a), (b).) |
|
Sec. 254.002. FAILURE TO IDENTIFY PATENT RIGHT; CRIMINAL |
|
PENALTY. (a) A person selling a patent right or patent right |
|
territory may not take a note or lien evidencing or securing the |
|
purchase price for the patent right or patent right territory |
|
without placing on the face of the note or lien the statement |
|
required by Section 254.001(a). |
|
(b) A person who violates this section commits an offense. |
|
An offense under this section is a misdemeanor punishable by a fine |
|
of not less than $25 or more than $200. (Bus. & Com. Code, Secs. |
|
35.40(c), (d).) |
|
TITLE 8. SECURITY INSTRUMENTS |
|
CHAPTER 261. UTILITY SECURITY INSTRUMENTS |
|
Sec. 261.001. DEFINITIONS |
|
Sec. 261.002. ACT CONSTITUTING FILING |
|
Sec. 261.003. APPLICABILITY OF CHAPTER |
|
Sec. 261.004. FILING UTILITY SECURITY INSTRUMENT WITH |
|
SECRETARY OF STATE: PERFECTION AND |
|
NOTICE |
|
Sec. 261.005. DURATION OF PERFECTION AND NOTICE |
|
Sec. 261.006. PRIORITIES AND REMEDIES APPLICABLE TO |
|
CERTAIN PERFECTED SECURITY INTERESTS |
|
Sec. 261.007. NOTICE OF NAME CHANGE, MERGER, OR |
|
CONSOLIDATION |
|
Sec. 261.008. ENDORSEMENT AND FILING BY SECRETARY OF |
|
STATE; FEES |
|
Sec. 261.009. CERTIFICATE OF FILING; FEE |
|
Sec. 261.010. COPY OF FILED UTILITY SECURITY |
|
INSTRUMENT; FEE |
|
Sec. 261.011. NOTICE OF UTILITY SECURITY INSTRUMENT |
|
AFFECTING REAL PROPERTY |
|
CHAPTER 261. UTILITY SECURITY INSTRUMENTS |
|
Sec. 261.001. DEFINITIONS. (a) In this chapter: |
|
(1) "Utility" means a person engaged in this state in: |
|
(A) generating, transmitting, or distributing |
|
and selling electric power; |
|
(B) transporting, distributing, and selling, |
|
through a local distribution system, natural or other gas for |
|
domestic, commercial, industrial, or other use; |
|
(C) owning or operating a pipeline to transmit or |
|
sell natural or other gas, natural gas liquids, crude oil, or |
|
petroleum products to another pipeline company or to a refinery, |
|
local distribution system, municipality, or industrial consumer; |
|
(D) providing telephone or telegraph service to |
|
others; |
|
(E) producing, transmitting, or distributing and |
|
selling steam or water; |
|
(F) operating a railroad; or |
|
(G) providing sewer service to others. |
|
(2) "Utility security instrument" means: |
|
(A) a mortgage, deed of trust, security |
|
agreement, or other instrument executed to secure payment of a |
|
bond, note, or other obligation of a utility; or |
|
(B) an instrument that supplements or amends an |
|
instrument described by Paragraph (A), including a signed copy of |
|
the instrument. |
|
(b) The definitions in Chapters 1 and 9 apply to this |
|
chapter. (Bus. & Com. Code, Sec. 35.01.) |
|
Sec. 261.002. ACT CONSTITUTING FILING. For purposes of |
|
this chapter, a utility security instrument is filed when it is |
|
deposited for filing with the secretary of state. (New.) |
|
Sec. 261.003. APPLICABILITY OF CHAPTER. A utility is |
|
subject to the requirements and entitled to the benefits of this |
|
chapter: |
|
(1) only if the utility files with the secretary of |
|
state a utility security instrument that states conspicuously on |
|
its title page: "This Instrument Grants A Security Interest By A |
|
Utility"; and |
|
(2) only with respect to collateral covered by a |
|
utility security instrument filed by the utility in accordance with |
|
Subdivision (1). (Bus. & Com. Code, Secs. 35.015(1), (2).) |
|
Sec. 261.004. FILING UTILITY SECURITY INSTRUMENT WITH |
|
SECRETARY OF STATE: PERFECTION AND NOTICE. (a) Subject to |
|
Subsection (b), the filing with the secretary of state of a utility |
|
security instrument executed by a utility and described by Section |
|
261.003(1) and payment of the filing fee prescribed by Section |
|
261.008: |
|
(1) constitute perfection of a security interest |
|
created by the instrument in any personal property: |
|
(A) in which a security interest may be perfected |
|
by filing under Chapter 9, including any goods that are or will |
|
become a fixture; |
|
(B) that is located in this state; and |
|
(C) that was owned by the utility when the |
|
instrument was executed or is to be acquired by the utility after |
|
the instrument is executed; and |
|
(2) if the instrument is proven, acknowledged, or |
|
certified as otherwise required by law for the recording of real |
|
property mortgages, serve as notice to all persons of the existence |
|
of the instrument and the security interest granted by the |
|
instrument in any real property, or in any fixture on or to be |
|
placed on the property, that: |
|
(A) is located in this state; and |
|
(B) was owned by the utility when the instrument |
|
was executed or is to be acquired by the utility after the |
|
instrument is executed. |
|
(b) For perfection or notice under Subsection (a) to be |
|
effective as to a particular item of property, the filed utility |
|
security instrument must: |
|
(1) identify the property by type, character, or |
|
description if the property is presently owned personal property, |
|
including a fixture, and for that purpose any description of |
|
personal property or real property is sufficient, regardless of |
|
whether specific, if it reasonably identifies what is described; |
|
(2) provide a description of the property if the |
|
property is presently owned real property; or |
|
(3) if the property is to be acquired after the |
|
instrument is executed, state conspicuously on its title page: |
|
"This Instrument Contains After-Acquired Property Provisions." |
|
(c) A filing under this section satisfies any requirement |
|
of: |
|
(1) a filing of the utility security instrument or a |
|
financing statement in the office of a county clerk if that filing |
|
would otherwise be necessary to perfect a security interest; and |
|
(2) a recording of the utility security instrument in |
|
the office of a county clerk if that recording would otherwise make |
|
the instrument effective as to all creditors and subsequent |
|
purchasers for valuable consideration without notice. (Bus. & Com. |
|
Code, Secs. 35.02(a), (b), (c).) |
|
Sec. 261.005. DURATION OF PERFECTION AND NOTICE. The |
|
perfection and notice provided by the filing of a utility security |
|
instrument under Section 261.004 take effect on the date of filing |
|
and remain in effect without any renewal, refiling, or continuation |
|
statement until the interest granted as security is released by the |
|
filing of a termination statement, or a release of all or a part of |
|
the property, signed by the secured party. (Bus. & Com. Code, Sec. |
|
35.03.) |
|
Sec. 261.006. PRIORITIES AND REMEDIES APPLICABLE TO CERTAIN |
|
PERFECTED SECURITY INTERESTS. The provisions of Chapter 9 relating |
|
to priorities and remedies apply to security interests in personal |
|
property, including fixtures, perfected under Section 261.004. |
|
(Bus. & Com. Code, Sec. 35.02(d).) |
|
Sec. 261.007. NOTICE OF NAME CHANGE, MERGER, OR |
|
CONSOLIDATION. (a) A utility that changes its name or merges or |
|
consolidates after filing a utility security instrument under |
|
Section 261.004 shall promptly file with the secretary of state a |
|
written statement of the name change, merger, or consolidation. |
|
The written statement must: |
|
(1) be signed by the secured party and the utility; |
|
(2) identify the appropriate utility security |
|
instrument by file number; and |
|
(3) state the name of the utility after the name |
|
change, merger, or consolidation. |
|
(b) Unless a written statement is filed under Subsection (a) |
|
not later than four months after the effective date of the name |
|
change, merger, or consolidations, the filing of a utility security |
|
instrument before the name change, merger, or consolidation does |
|
not constitute perfection or serve as notice under Section 261.004 |
|
of a security interest in property acquired by the utility more than |
|
four months after the name change, merger, or consolidation. (Bus. & |
|
Com. Code, Sec. 35.04.) |
|
Sec. 261.008. ENDORSEMENT AND FILING BY SECRETARY OF STATE; |
|
FEES. (a) The secretary of state shall endorse on a utility |
|
security instrument and any statement of name change, merger, or |
|
consolidation filed with the secretary of state: |
|
(1) the day and hour of receipt; and |
|
(2) the assigned file number. |
|
(b) In the absence of other evidence, an endorsement under |
|
Subsection (a) is conclusive proof of the time and fact of filing. |
|
(c) The secretary of state shall file in adequate filing |
|
devices and retain in the secretary of state's office all utility |
|
security instruments and statements of name change, merger, or |
|
consolidation filed with the secretary of state. |
|
(d) The secretary of state shall charge a $25 fee to: |
|
(1) file and index: |
|
(A) a utility security instrument; |
|
(B) an instrument that supplements or amends a |
|
utility security instrument; or |
|
(C) a statement of name change, merger, or |
|
consolidation; and |
|
(2) stamp a copy of a document described by |
|
Subdivision (1), provided by the secured party or the utility, to |
|
indicate the date and place of filing. (Bus. & Com. Code, Sec. |
|
35.05.) |
|
Sec. 261.009. CERTIFICATE OF FILING; FEE. (a) On request |
|
of any person, the secretary of state shall issue a certificate |
|
that: |
|
(1) indicates whether on the date and hour stated in |
|
the request, there is on file any presently effective utility |
|
security instrument naming a particular utility; and |
|
(2) if there is, states: |
|
(A) the date and hour the utility security |
|
instrument was filed; and |
|
(B) the names and addresses of each secured |
|
party. |
|
(b) The fee for a certificate under this section is: |
|
(1) $10, if the request for the certificate is in the |
|
standard form prescribed by the secretary of state; or |
|
(2) $25, if the request is not in the standard form. |
|
(Bus. & Com. Code, Sec. 35.06 (part).) |
|
Sec. 261.010. COPY OF FILED UTILITY SECURITY INSTRUMENT; |
|
FEE. (a) On request and payment of the fee prescribed by |
|
Subsection (b), the secretary of state shall provide a person with a |
|
copy of any filed utility security instrument. |
|
(b) The fee for a copy under this section is $1.50 per page, |
|
but may not be less than $5 or more than $100 for each request |
|
concerning a particular utility. (Bus. & Com. Code, Sec. 35.06 |
|
(part).) |
|
Sec. 261.011. NOTICE OF UTILITY SECURITY INSTRUMENT |
|
AFFECTING REAL PROPERTY. (a) If a utility security instrument |
|
filed with the secretary of state under Section 261.004 grants a |
|
security interest in real property owned by the utility, a notice of |
|
utility security instrument affecting real property must be |
|
recorded in the office of the county clerk in the county in which |
|
the real property is located. The notice must state: |
|
(1) the name of the utility that executed the utility |
|
security instrument; |
|
(2) that a utility security instrument affecting real |
|
property in the county has been executed by the utility; and |
|
(3) that the utility security instrument was filed, |
|
and other security instruments may be on file, with the secretary of |
|
state. |
|
(b) A notice recorded under Subsection (a) is sufficient to |
|
provide notice of any other security instrument filed with the |
|
secretary of state that: |
|
(1) was executed by the utility; and |
|
(2) grants a security interest in any real property |
|
located in the county in which the notice was recorded or in any |
|
fixture on the property. |
|
(c) The county clerk shall record and index a notice |
|
described by Subsection (a) in the same records and indices as the |
|
clerk records and indexes mortgages on real property. |
|
(d) The county clerk shall maintain a separate index of |
|
utility security instruments and continuation statements recorded |
|
under prior law. (Bus. & Com. Code, Secs. 35.07(a), (b) (part), |
|
(c), (d).) |
|
TITLE 9. APPLICABILITY OF LAW TO COMMERCIAL TRANSACTIONS |
|
CHAPTER 271. RIGHTS OF PARTIES TO CHOOSE LAW APPLICABLE |
|
TO CERTAIN TRANSACTIONS |
|
Sec. 271.001. DEFINITION |
|
Sec. 271.002. SUBSTANTIALLY SIMILAR OR RELATED |
|
TRANSACTIONS |
|
Sec. 271.003. CONFLICT-OF-LAWS RULES |
|
Sec. 271.004. DETERMINATION OF REASONABLE RELATION OF |
|
TRANSACTION TO PARTICULAR JURISDICTION |
|
Sec. 271.005. LAW GOVERNING ISSUE RELATING TO |
|
QUALIFIED TRANSACTION |
|
Sec. 271.006. LAW GOVERNING INTERPRETATION OR |
|
CONSTRUCTION OF AGREEMENT RELATING TO |
|
QUALIFIED TRANSACTION |
|
Sec. 271.007. LAW GOVERNING VALIDITY OR ENFORCEABILITY |
|
OF TERM OF AGREEMENT RELATING TO |
|
QUALIFIED TRANSACTION |
|
Sec. 271.008. APPLICABILITY TO CERTAIN REAL PROPERTY |
|
TRANSACTIONS; EXCEPTIONS |
|
Sec. 271.009. EXCEPTION: MARRIAGE OR ADOPTION |
|
Sec. 271.010. EXCEPTION: DECEDENT'S ESTATE |
|
Sec. 271.011. EXCEPTION: OTHER STATUTE SPECIFYING |
|
GOVERNING LAW |
|
CHAPTER 271. RIGHTS OF PARTIES TO CHOOSE LAW APPLICABLE |
|
TO CERTAIN TRANSACTIONS |
|
Sec. 271.001. DEFINITION. In this chapter, "qualified |
|
transaction" means a transaction under which a party: |
|
(1) pays or receives, or is obligated to pay or is |
|
entitled to receive, consideration with an aggregate value of at |
|
least $1 million; or |
|
(2) lends, advances, borrows, or receives, or is |
|
obligated to lend or advance or is entitled to borrow or receive, |
|
money or credit with an aggregate value of at least $1 million. |
|
(Bus. & Com. Code, Sec. 35.51(a)(2).) |
|
Sec. 271.002. SUBSTANTIALLY SIMILAR OR RELATED |
|
TRANSACTIONS. For purposes of this chapter, two or more |
|
substantially similar or related transactions are considered a |
|
single transaction if the transactions: |
|
(1) are entered into contemporaneously; and |
|
(2) have at least one common party. (Bus. & Com. Code, |
|
Sec. 35.51(a)(1).) |
|
Sec. 271.003. CONFLICT-OF-LAWS RULES. For purposes of this |
|
chapter, a reference to the law of a particular jurisdiction does |
|
not include that jurisdiction's conflict-of-laws rules. (Bus. & |
|
Com. Code, Secs. 35.51(b) (part), (c) (part), (e) (part).) |
|
Sec. 271.004. DETERMINATION OF REASONABLE RELATION OF |
|
TRANSACTION TO PARTICULAR JURISDICTION. (a) For purposes of this |
|
chapter, a transaction bears a reasonable relation to a particular |
|
jurisdiction if the transaction, the subject matter of the |
|
transaction, or a party to the transaction is reasonably related to |
|
that jurisdiction. |
|
(b) A transaction bears a reasonable relation to a |
|
particular jurisdiction if: |
|
(1) a party to the transaction is a resident of that |
|
jurisdiction; |
|
(2) a party to the transaction has the party's place of |
|
business or, if that party has more than one place of business, the |
|
party's chief executive office or an office from which the party |
|
conducts a substantial part of the negotiations relating to the |
|
transaction, in that jurisdiction; |
|
(3) all or part of the subject matter of the |
|
transaction is located in that jurisdiction; |
|
(4) a party to the transaction is required to perform |
|
in that jurisdiction a substantial part of the party's obligations |
|
relating to the transaction, such as delivering payments; or |
|
(5) a substantial part of the negotiations relating to |
|
the transaction occurred in that jurisdiction and an agreement |
|
relating to the transaction was signed in that jurisdiction by a |
|
party to the transaction. (Bus. & Com. Code, Sec. 35.51(d).) |
|
Sec. 271.005. LAW GOVERNING ISSUE RELATING TO QUALIFIED |
|
TRANSACTION. (a) Except as provided by Section 271.007, |
|
271.008(b), 271.009, 271.010, or 271.011 or by Chapter 272, the law |
|
of a particular jurisdiction governs an issue relating to a |
|
qualified transaction if: |
|
(1) the parties to the transaction agree in writing |
|
that the law of that jurisdiction governs the issue, including the |
|
validity or enforceability of an agreement relating to the |
|
transaction or a provision of the agreement; and |
|
(2) the transaction bears a reasonable relation to |
|
that jurisdiction. |
|
(b) The law of a particular jurisdiction governs an issue |
|
described by this section regardless of whether the application of |
|
that law is contrary to a fundamental or public policy of this state |
|
or of any other jurisdiction. (Bus. & Com. Code, Sec. 35.51(b) |
|
(part).) |
|
Sec. 271.006. LAW GOVERNING INTERPRETATION OR CONSTRUCTION |
|
OF AGREEMENT RELATING TO QUALIFIED TRANSACTION. Except as provided |
|
by Section 271.008(b), 271.009, 271.010, or 271.011 and by Chapter |
|
272, if the parties to a qualified transaction agree in writing that |
|
the law of a particular jurisdiction governs the interpretation or |
|
construction of an agreement relating to the transaction or a |
|
provision of the agreement, the law of that jurisdiction governs |
|
that issue regardless of whether the transaction bears a reasonable |
|
relation to that jurisdiction. (Bus. & Com. Code, Sec. 35.51(c) |
|
(part).) |
|
Sec. 271.007. LAW GOVERNING VALIDITY OR ENFORCEABILITY OF |
|
TERM OF AGREEMENT RELATING TO QUALIFIED TRANSACTION. (a) Except as |
|
provided by Section 271.008(b), 271.009, 271.010, or 271.011 or by |
|
Chapter 272, this section applies if: |
|
(1) the parties to a qualified transaction agree in |
|
writing that the law of a particular jurisdiction governs the |
|
validity or enforceability of an agreement relating to the |
|
transaction or a provision of the agreement; |
|
(2) the transaction bears a reasonable relation to |
|
that jurisdiction; and |
|
(3) a term of the agreement or of that provision is |
|
invalid or unenforceable under the law of that jurisdiction but is |
|
valid or enforceable under the law of the jurisdiction that has the |
|
most significant relation to the transaction, the subject matter of |
|
the transaction, and the parties. |
|
(b) If this section applies: |
|
(1) the law of the jurisdiction that has the most |
|
significant relation to the transaction, the subject matter of the |
|
transaction, and the parties governs the validity or enforceability |
|
of a term described by Subsection (a)(3); and |
|
(2) the law of the jurisdiction that the parties agree |
|
would govern the validity or enforceability of the agreement or |
|
provision governs the validity or enforceability of the other terms |
|
of the agreement or provision. (Bus. & Com. Code, Sec. 35.51(e) |
|
(part).) |
|
Sec. 271.008. APPLICABILITY TO CERTAIN REAL PROPERTY |
|
TRANSACTIONS; EXCEPTIONS. (a) Sections 271.004-271.007 apply to |
|
the determination of the law that governs an issue relating to a |
|
transaction involving real property other than a matter described |
|
by Subsection (b), including the validity or enforceability of an |
|
indebtedness incurred in consideration for the transfer of, or the |
|
payment of which is secured by a lien on, real property. |
|
(b) Sections 271.004-271.007 do not apply to the |
|
determination of the law that governs: |
|
(1) whether a transaction transfers or creates an |
|
interest in real property for security purposes or otherwise; |
|
(2) the nature of an interest in real property that is |
|
transferred or created by a transaction; |
|
(3) the method for foreclosure of a lien on real |
|
property; |
|
(4) the nature of an interest in real property that |
|
results from foreclosure; or |
|
(5) the manner and effect of recording or failing to |
|
record evidence of a transaction that transfers or creates an |
|
interest in real property. (Bus. & Com. Code, Secs. 35.51(f) |
|
(part), (g).) |
|
Sec. 271.009. EXCEPTION: MARRIAGE OR ADOPTION. Sections |
|
271.004-271.007 do not apply to the determination of the law that |
|
governs: |
|
(1) the validity of a marriage or an adoption; |
|
(2) whether a marriage has been terminated; or |
|
(3) the effect of a marriage on property owned by a |
|
spouse at the time of the marriage or acquired by either spouse |
|
during the marriage. (Bus. & Com. Code, Sec. 35.51(f) (part).) |
|
Sec. 271.010. EXCEPTION: DECEDENT'S ESTATE. Sections |
|
271.004-271.007 do not apply to the determination of the law that |
|
governs: |
|
(1) whether an instrument is a will; |
|
(2) the rights of persons under a will; or |
|
(3) the rights of persons in the absence of a will. |
|
(Bus. & Com. Code, Sec. 35.51(f) (part).) |
|
Sec. 271.011. EXCEPTION: OTHER STATUTE SPECIFYING |
|
GOVERNING LAW. Sections 271.004-271.007 do not apply to the |
|
determination of the law that governs an issue that another statute |
|
of this state or a statute of the United States provides is governed |
|
by the law of a particular jurisdiction. (Bus. & Com. Code, Sec. |
|
35.51(f) (part).) |
|
CHAPTER 272. LAW APPLICABLE TO CERTAIN CONTRACTS FOR CONSTRUCTION |
|
OR REPAIR OF REAL PROPERTY IMPROVEMENTS |
|
Sec. 272.001. VOIDABLE CONTRACT PROVISION |
|
Sec. 272.002. CONTRACT PRINCIPALLY FOR CONSTRUCTION OR |
|
REPAIR OF REAL PROPERTY IMPROVEMENTS |
|
CHAPTER 272. LAW APPLICABLE TO CERTAIN CONTRACTS FOR CONSTRUCTION |
|
OR REPAIR OF REAL PROPERTY IMPROVEMENTS |
|
Sec. 272.001. VOIDABLE CONTRACT PROVISION. (a) This section |
|
applies only to a contract that is principally for the construction |
|
or repair of an improvement to real property located in this state. |
|
(b) If a contract contains a provision making the contract |
|
or any conflict arising under the contract subject to another |
|
state's law, litigation in the courts of another state, or |
|
arbitration in another state, that provision is voidable by the |
|
party obligated by the contract to perform the construction or |
|
repair. (Bus. & Com. Code, Sec. 35.52(a).) |
|
Sec. 272.002. CONTRACT PRINCIPALLY FOR CONSTRUCTION OR |
|
REPAIR OF REAL PROPERTY IMPROVEMENTS. (a) For purposes of this |
|
chapter, a contract is principally for the construction or repair |
|
of an improvement to real property located in this state if the |
|
contract obligates a party, as the party's principal obligation |
|
under the contract, to provide labor or labor and materials as a |
|
general contractor or subcontractor for the construction or repair |
|
of an improvement to real property located in this state. |
|
(b) For purposes of this chapter, a contract is not |
|
principally for the construction or repair of an improvement to |
|
real property located in this state if the contract: |
|
(1) is a partnership agreement or other agreement |
|
governing an entity or trust; |
|
(2) provides for a loan or other extension of credit |
|
and the party promising to construct or repair the improvement is |
|
doing so as part of the party's agreements with the lender or other |
|
person who extends credit; or |
|
(3) is for the management of real property or |
|
improvements and the obligation to construct or repair the |
|
improvement is part of that management. |
|
(c) Subsections (a) and (b) do not provide an exclusive list |
|
of the situations in which a contract is or is not principally for |
|
the construction or repair of an improvement to real property |
|
located in this state. (Bus. & Com. Code, Secs. 35.52(b), (c), (d).) |
|
CHAPTER 273. LAW OR FORUM APPLICABLE TO CERTAIN CONTRACTS FOR |
|
DISPOSITION OF GOODS |
|
Sec. 273.001. CONTRACTS SUBJECT TO CHAPTER |
|
Sec. 273.002. NOTICE OF APPLICABLE LAW OR FORUM |
|
Sec. 273.003. FAILURE TO PROVIDE NOTICE |
|
CHAPTER 273. LAW OR FORUM APPLICABLE TO CERTAIN CONTRACTS FOR |
|
DISPOSITION OF GOODS |
|
Sec. 273.001. CONTRACTS SUBJECT TO CHAPTER. This chapter |
|
applies to a contract only if: |
|
(1) the contract is for the sale, lease, exchange, or |
|
other disposition for value of goods for the price, rental, or other |
|
consideration of $50,000 or less; |
|
(2) any element of the contract's execution occurred |
|
in this state; |
|
(3) a party to the contract is: |
|
(A) an individual resident of this state; or |
|
(B) an association or corporation that is created |
|
under the laws of this state or has its principal place of business |
|
in this state; and |
|
(4) Section 1.301 does not apply to the contract. |
|
(Bus. & Com. Code, Sec. 35.53(a).) |
|
Sec. 273.002. NOTICE OF APPLICABLE LAW OR FORUM. If a |
|
contract contains a provision making the contract or any conflict |
|
arising under the contract subject to another state's laws, |
|
litigation in the courts of another state, or arbitration in |
|
another state, that provision must be set out conspicuously in |
|
print, type, or other form of writing that is boldfaced, |
|
capitalized, underlined, or otherwise set out in such a manner that |
|
a reasonable person against whom the provision may operate would |
|
notice the provision. (Bus. & Com. Code, Sec. 35.53(b) (part).) |
|
Sec. 273.003. FAILURE TO PROVIDE NOTICE. A contract |
|
provision that does not comply with Section 273.002 is voidable by a |
|
party against whom the provision is sought to be enforced. (Bus. & |
|
Com. Code, Sec. 35.53(b) (part).) |
|
CHAPTER 274. LAW APPLICABLE TO CONTRACT MADE OVER INTERNET |
|
Sec. 274.001. DEFINITION |
|
Sec. 274.002. APPLICABILITY OF CHAPTER; EXCEPTION |
|
Sec. 274.003. STATE LAW GOVERNING CONTRACT; BURDEN OF |
|
PROOF |
|
Sec. 274.004. APPLICABILITY OF OTHER LAW TO CONTRACT |
|
CHAPTER 274. LAW APPLICABLE TO CONTRACT MADE OVER INTERNET |
|
Sec. 274.001. DEFINITION. In this chapter, "Internet" |
|
means the largest nonproprietary nonprofit cooperative public |
|
computer network, popularly known as the Internet. (Bus. & Com. |
|
Code, Sec. 35.531(a).) |
|
Sec. 274.002. APPLICABILITY OF CHAPTER; EXCEPTION. (a) |
|
Except as provided by Subsection (b), this chapter applies only to a |
|
contract made solely over the Internet between a person located in |
|
this state and a person located outside this state who does not |
|
maintain an office or agent in this state for transacting business |
|
in this state. |
|
(b) This chapter does not apply to a contract to which |
|
Chapter 271 applies. (Bus. & Com. Code, Secs. 35.531(b), (e) |
|
(part).) |
|
Sec. 274.003. STATE LAW GOVERNING CONTRACT; BURDEN OF |
|
PROOF. (a) A contract is governed by the law of this state unless |
|
each party to the contract who is located in this state: |
|
(1) is given notice that the law of the state in which |
|
another party to the contract is located applies to the contract; |
|
and |
|
(2) agrees to the application of that state's law. |
|
(b) A person asserting that the law of another state governs |
|
a contract has the burden of proving that notice was given and |
|
agreement was obtained as specified by Subsection (a). (Bus. & Com. |
|
Code, Secs. 35.531(c), (d).) |
|
Sec. 274.004. APPLICABILITY OF OTHER LAW TO CONTRACT. |
|
Section 1.031 and Chapter 273 do not apply to a contract to which |
|
this chapter applies. (Bus. & Com. Code, Sec. 35.531(e) (part).) |
|
TITLE 10. USE OF TELECOMMUNICATIONS |
|
SUBTITLE A. TELEPHONES |
|
CHAPTER 301. TELEPHONE SOLICITATION PRACTICES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 301.001. DEFINITIONS |
|
[Sections 301.002-301.050 reserved for expansion] |
|
SUBCHAPTER B. PERMITTED AND PROHIBITED PRACTICES |
|
Sec. 301.051. TELEPHONE SOLICITATION REQUIREMENTS |
|
Sec. 301.052. CHARGES TO CONSUMER'S CREDIT CARD |
|
ACCOUNT |
|
[Sections 301.053-301.100 reserved for expansion] |
|
SUBCHAPTER C. ENFORCEMENT |
|
Sec. 301.101. INVESTIGATION BY ATTORNEY GENERAL'S |
|
OFFICE |
|
Sec. 301.102. INJUNCTIVE RELIEF |
|
Sec. 301.103. CIVIL PENALTY; RESTITUTION |
|
Sec. 301.104. CIVIL ACTION |
|
Sec. 301.105. VENUE |
|
CHAPTER 301. TELEPHONE SOLICITATION PRACTICES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 301.001. DEFINITIONS. In this chapter: |
|
(1) "Automated dial announcing device" means |
|
automated equipment used for telephone solicitation or collection |
|
that can: |
|
(A) store telephone numbers to be called or |
|
produce numbers to be called through use of a random or sequential |
|
number generator; and |
|
(B) convey, alone or in conjunction with other |
|
equipment, a prerecorded or synthesized voice message to the number |
|
called without the use of a live operator. |
|
(2) "Consumer" means a person who is solicited to |
|
purchase, lease, or receive a consumer good or service. |
|
(3) "Consumer good or service" means: |
|
(A) real property or tangible or intangible |
|
personal property that is normally used for personal, family, or |
|
household purposes, including: |
|
(i) personal property intended to be |
|
attached to or installed in any real property; |
|
(ii) a cemetery lot; and |
|
(iii) a time-share estate; or |
|
(B) a service related to real or personal |
|
property. |
|
(4) "Consumer telephone call" means an unsolicited |
|
call made to a residential telephone number by a telephone |
|
solicitor to: |
|
(A) solicit a sale of a consumer good or service; |
|
(B) solicit an extension of credit for a consumer |
|
good or service; or |
|
(C) obtain information that will or may be used |
|
to directly solicit a sale of a consumer good or service or to |
|
extend credit for the sale. |
|
(5) "Telephone solicitor" means a person who makes or |
|
causes to be made a consumer telephone call, including a call made |
|
by an automated dial announcing device. (Bus. & Com. Code, Sec. |
|
37.01.) |
|
[Sections 301.002-301.050 reserved for expansion] |
|
SUBCHAPTER B. PERMITTED AND PROHIBITED PRACTICES |
|
Sec. 301.051. TELEPHONE SOLICITATION REQUIREMENTS. (a) |
|
This section does not apply to a consumer telephone call made: |
|
(1) in response to the express request of the |
|
consumer; |
|
(2) primarily in connection with an existing debt or |
|
contract for which payment or performance has not been completed at |
|
the time of the call; or |
|
(3) to a consumer with whom the telephone solicitor |
|
has a prior or existing business relationship. |
|
(b) A telephone solicitor may not make a consumer telephone |
|
call to a consumer unless: |
|
(1) the telephone solicitor, immediately after making |
|
contact with the consumer to whom the call is made, identifies: |
|
(A) himself or herself by name; |
|
(B) the business on whose behalf the telephone |
|
solicitor is calling; and |
|
(C) the purpose of the call; |
|
(2) the telephone solicitor makes the call after 12 |
|
noon and before 9 p.m. on a Sunday or after 9 a.m. and before 9 p.m. |
|
on a weekday or a Saturday; and |
|
(3) for those calls in which an automated dial |
|
announcing device is used, the device disconnects the consumer's |
|
telephone line within the period specified by Section 55.126, |
|
Utilities Code, after either the telephone solicitor or the |
|
consumer terminates the call. (Bus. & Com. Code, Sec. 37.02.) |
|
Sec. 301.052. CHARGES TO CONSUMER'S CREDIT CARD ACCOUNT. A |
|
person who sells consumer goods or services through the use of a |
|
telephone solicitor may not make or submit a charge to a consumer's |
|
credit card account unless the seller: |
|
(1) provides that: |
|
(A) the consumer may receive a full refund for |
|
returning undamaged and unused goods or canceling services by |
|
providing notice to the seller not later than the seventh day after |
|
the date the consumer receives the goods or services; and |
|
(B) the seller will process: |
|
(i) a refund not later than the 30th day |
|
after the date the seller receives the returned goods from the |
|
consumer; or |
|
(ii) a full refund not later than the 30th |
|
day after the date the consumer cancels an order for the purchase of |
|
services not performed or a pro rata refund for any services not yet |
|
performed for the consumer; |
|
(2) provides to the consumer a written contract fully |
|
describing the goods or services being offered, the total price to |
|
be charged, the name, address, and business telephone number of the |
|
seller, and any terms affecting the sale and receives from the |
|
consumer a signed copy of the contract; or |
|
(3) is an organization that qualifies for an exemption |
|
from federal income taxation under Section 501(c)(3), Internal |
|
Revenue Code of 1986, and has obtained that exemption from the |
|
Internal Revenue Service. (Bus. & Com. Code, Sec. 37.03.) |
|
[Sections 301.053-301.100 reserved for expansion] |
|
SUBCHAPTER C. ENFORCEMENT |
|
Sec. 301.101. INVESTIGATION BY ATTORNEY GENERAL'S OFFICE. |
|
The attorney general's office shall investigate a complaint |
|
relating to a violation of this chapter. (Bus. & Com. Code, Sec. |
|
37.04(a) (part).) |
|
Sec. 301.102. INJUNCTIVE RELIEF. (a) The attorney |
|
general's office may petition a district court for a temporary |
|
restraining order to restrain a continuing violation of this |
|
chapter. |
|
(b) A district court, on petition of the attorney general's |
|
office and on finding that a person is violating this chapter, may: |
|
(1) issue an injunction prohibiting the person from |
|
continuing the violation; or |
|
(2) grant any other injunctive relief warranted by the |
|
facts. (Bus. & Com. Code, Secs. 37.04(a) (part), (b).) |
|
Sec. 301.103. CIVIL PENALTY; RESTITUTION. (a) A person who |
|
knowingly violates this chapter is liable for a civil penalty of not |
|
more than $10,000 for each violation. |
|
(b) In addition to bringing an action for injunctive relief |
|
under Section 301.102, the attorney general's office may seek |
|
restitution and petition a district court for the assessment of a |
|
civil penalty as provided by this chapter. (Bus. & Com. Code, Secs. |
|
37.04(a) (part), 37.05(a), (b).) |
|
Sec. 301.104. CIVIL ACTION. A consumer injured by a |
|
violation of this chapter may bring an action for recovery of |
|
damages. The damages awarded may not be less than the amount the |
|
consumer paid the person who sold the consumer goods or services |
|
through the use of the telephone solicitor, plus reasonable |
|
attorney's fees and court costs. (Bus. & Com. Code, Sec. 37.05(c).) |
|
Sec. 301.105. VENUE. Venue for an action brought under this |
|
chapter is in: |
|
(1) the county in which the consumer telephone call |
|
originated; |
|
(2) the county in which the consumer telephone call |
|
was received; or |
|
(3) Travis County. (Bus. & Com. Code, Sec. 37.04(c).) |
|
CHAPTER 302. REGULATION OF TELEPHONE SOLICITATION |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 302.001. DEFINITIONS |
|
Sec. 302.002. MAKING TELEPHONE SOLICITATION |
|
Sec. 302.003. LIBERAL CONSTRUCTION AND APPLICATION |
|
Sec. 302.004. ATTEMPTED WAIVER VOID |
|
[Sections 302.005-302.050 reserved for expansion] |
|
SUBCHAPTER B. EXEMPTIONS |
|
Sec. 302.051. BURDEN OF PROOF |
|
Sec. 302.052. EXEMPTIONS APPLY ONLY TO SELLERS; |
|
EXCEPTION |
|
Sec. 302.053. EXEMPTION: PERSONS REGULATED BY OTHER |
|
LAW |
|
Sec. 302.054. EXEMPTION: PERSONS SELLING MEDIA |
|
SUBSCRIPTIONS, CERTAIN MERCHANDISE, OR |
|
ITEMS FROM CERTAIN CATALOGS |
|
Sec. 302.055. EXEMPTION: EDUCATIONAL AND NONPROFIT |
|
ORGANIZATIONS |
|
Sec. 302.056. EXEMPTION: CERTAIN COMMERCIAL SALES |
|
Sec. 302.057. EXEMPTION: PERSON SOLICITING FOOD SALES |
|
Sec. 302.058. EXEMPTION: SOLICITATION OF FORMER OR |
|
CURRENT CUSTOMERS |
|
Sec. 302.059. EXEMPTION: PERSONS WHO MAKE CERTAIN |
|
SALES PRESENTATIONS OR MAKE SALES AT |
|
ESTABLISHED RETAIL LOCATIONS |
|
Sec. 302.060. EXEMPTION: CERTAIN PERSONS PROVIDING |
|
TELEPHONE SOLICITATION SERVICES |
|
PREDOMINANTLY FOR EXEMPT PERSONS |
|
Sec. 302.061. EXEMPTION: PERSONS CONDUCTING CERTAIN |
|
ISOLATED TELEPHONE SOLICITATIONS |
|
[Sections 302.062-302.100 reserved for expansion] |
|
SUBCHAPTER C. REGISTRATION |
|
Sec. 302.101. REGISTRATION CERTIFICATE REQUIRED |
|
Sec. 302.102. FILING OF REGISTRATION STATEMENT; PUBLIC |
|
INFORMATION |
|
Sec. 302.103. ISSUANCE OF REGISTRATION CERTIFICATE |
|
Sec. 302.104. EFFECTIVE DATE OF REGISTRATION |
|
STATEMENT; RENEWAL |
|
Sec. 302.105. ADDENDA REQUIREMENTS |
|
Sec. 302.106. FILING FEE |
|
Sec. 302.107. SECURITY REQUIREMENTS |
|
Sec. 302.108. APPOINTMENT OF SECRETARY OF STATE AS |
|
AGENT FOR SERVICE |
|
[Sections 302.109-302.150 reserved for expansion] |
|
SUBCHAPTER D. DISCLOSURES REQUIRED IN REGISTRATION STATEMENT |
|
Sec. 302.151. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, |
|
TELEPHONE NUMBERS, AND ORGANIZATIONAL |
|
INFORMATION |
|
Sec. 302.152. DISCLOSURE OF CERTAIN CONVICTIONS, |
|
PLEAS, JUDGMENTS, ORDERS, |
|
BANKRUPTCIES, AND REORGANIZATIONS |
|
Sec. 302.153. DISCLOSURE OF CERTAIN SALES INFORMATION |
|
[Sections 302.154-302.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL INFORMATION FROM SELLER |
|
Sec. 302.201. INFORMATION REQUIRED TO BE POSTED OR |
|
AVAILABLE AT SELLER'S BUSINESS |
|
LOCATION |
|
Sec. 302.202. DISCLOSURES REQUIRED BEFORE PURCHASE |
|
Sec. 302.203. REFERENCE TO COMPLIANCE WITH STATUTE |
|
PROHIBITED |
|
[Sections 302.204-302.250 reserved for expansion] |
|
SUBCHAPTER F. OFFENSES |
|
Sec. 302.251. VIOLATION OF CERTAIN PROVISIONS |
|
Sec. 302.252. ACTING AS SALESPERSON FOR UNREGISTERED |
|
SELLER |
|
Sec. 302.253. REQUEST FOR CREDIT CARD ACCOUNT NUMBER |
|
OR CHECKING ACCOUNT NUMBER AFTER OFFER |
|
OF FREE ITEM |
|
[Sections 302.254-302.300 reserved for expansion] |
|
SUBCHAPTER G. ENFORCEMENT |
|
Sec. 302.301. INJUNCTION |
|
Sec. 302.302. CIVIL PENALTIES |
|
Sec. 302.303. DECEPTIVE TRADE PRACTICES |
|
Sec. 302.304. ACTION TO RECOVER AGAINST SECURITY |
|
CHAPTER 302. REGULATION OF TELEPHONE SOLICITATION |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 302.001. DEFINITIONS. In this chapter: |
|
(1) "Item" means property or a service. The term |
|
includes a coupon book to be used with a business. |
|
(2) "Owner" means a person who has control of or is |
|
entitled to, by ownership or other claim, at least 10 percent of a |
|
seller's net income. |
|
(3) "Purchaser" means a person who: |
|
(A) is solicited to become or becomes obligated |
|
for the purchase or rental of an item; or |
|
(B) is offered an opportunity to claim or receive |
|
an item. |
|
(4) "Salesperson" means a person who is employed or |
|
authorized by a seller to make a telephone solicitation. |
|
(5) "Seller" means a person who makes a telephone |
|
solicitation on the person's own behalf. |
|
(6) "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. |
|
(7) "Telephone solicitation" means a telephone call a |
|
seller or salesperson initiates to induce a person to purchase, |
|
rent, claim, or receive an item. The term includes a telephone call |
|
a purchaser makes in response to a solicitation sent by mail or made |
|
by any other means. (Bus. & Com. Code, Sec. 38.001.) |
|
Sec. 302.002. MAKING TELEPHONE SOLICITATION. For purposes |
|
of this chapter, a person makes a telephone solicitation if the |
|
person effects or attempts to effect a telephone solicitation, |
|
including a solicitation initiated by an automatic dialing machine |
|
or a recorded message device. (Bus. & Com. Code, Sec. 38.002.) |
|
Sec. 302.003. LIBERAL 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 telephone solicitation business. (Bus. & |
|
Com. Code, Sec. 38.003.) |
|
Sec. 302.004. ATTEMPTED WAIVER VOID. An attempted waiver |
|
of a provision of this chapter is void. (Bus. & Com. Code, Sec. |
|
38.305.) |
|
[Sections 302.005-302.050 reserved for expansion] |
|
SUBCHAPTER B. EXEMPTIONS |
|
Sec. 302.051. BURDEN OF PROOF. (a) In a civil proceeding |
|
in which a violation of this chapter is alleged, a person who claims |
|
an exemption from the application of this chapter has the burden of |
|
proving the exemption. |
|
(b) In a criminal proceeding in which a violation of this |
|
chapter is alleged, a person who claims an exemption from the |
|
application of this chapter as a defense to prosecution has the |
|
burden of producing evidence to support the defense. (Bus. & Com. |
|
Code, Sec. 38.051.) |
|
Sec. 302.052. EXEMPTIONS APPLY ONLY TO SELLERS; EXCEPTION. |
|
Except as provided by Section 302.060, an exemption from the |
|
application of this chapter applies only to a seller. (Bus. & Com. |
|
Code, Sec. 38.052.) |
|
Sec. 302.053. EXEMPTION: PERSONS 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 who holds a license issued under the |
|
Insurance Code if the solicited transaction is governed by that |
|
code; |
|
(4) a supervised financial institution or a parent, a |
|
subsidiary, or an affiliate of a supervised financial institution; |
|
(5) a person whose business is regulated by the Public |
|
Utility Commission of Texas or an affiliate of that person, except |
|
that this chapter applies to such a person or affiliate only with |
|
respect to one or more automated dial announcing devices; |
|
(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 filing requirements under |
|
Chapter 1803, Occupations Code; or |
|
(9) a person who: |
|
(A) is soliciting a transaction regulated by the |
|
Commodity Futures Trading Commission; and |
|
(B) is registered or holds a temporary license |
|
for the activity described by Paragraph (A) with the Commodity |
|
Futures Trading Commission under the Commodity Exchange Act (7 |
|
U.S.C. Section 1 et seq.), if the registration or license has not |
|
expired or been suspended or revoked. (Bus. & Com. Code, Sec. |
|
38.053.) |
|
Sec. 302.054. EXEMPTION: PERSONS SELLING MEDIA |
|
SUBSCRIPTIONS, CERTAIN MERCHANDISE, OR ITEMS FROM CERTAIN |
|
CATALOGS. This chapter does not apply to: |
|
(1) a person soliciting the sale of a subscription to: |
|
(A) a daily or weekly newspaper of general |
|
circulation; |
|
(B) a magazine or other periodical of general |
|
circulation; or |
|
(C) a cable television service; |
|
(2) a person selling merchandise under an arrangement |
|
in which the seller periodically ships the merchandise to a |
|
consumer who has consented in advance to receive the merchandise |
|
periodically; or |
|
(3) a person periodically issuing and delivering to |
|
purchasers catalogs that each: |
|
(A) include a written description or |
|
illustration and the sales price of each item offered for sale; |
|
(B) include at least 24 full pages of written |
|
material or illustrations; |
|
(C) are distributed in more than one state; and |
|
(D) have an annual circulation of at least |
|
250,000 customers. (Bus. & Com. Code, Sec. 38.054.) |
|
Sec. 302.055. EXEMPTION: EDUCATIONAL AND NONPROFIT |
|
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. |
|
(Bus. & Com. Code, Sec. 38.055.) |
|
Sec. 302.056. EXEMPTION: CERTAIN COMMERCIAL SALES. This |
|
chapter does not apply to a sale in which the purchaser is a |
|
business that intends to: |
|
(1) resell the item purchased; or |
|
(2) use the item purchased in a recycling, reuse, |
|
remanufacturing, or manufacturing process. (Bus. & Com. Code, Sec. |
|
38.056.) |
|
Sec. 302.057. EXEMPTION: PERSON SOLICITING FOOD SALES. |
|
This chapter does not apply to a person soliciting the sale of food. |
|
(Bus. & Com. Code, Sec. 38.057.) |
|
Sec. 302.058. EXEMPTION: SOLICITATION OF FORMER OR CURRENT |
|
CUSTOMERS. This chapter does not apply to: |
|
(1) the solicitation of a contract for the maintenance |
|
or repair of an item previously purchased from the person making the |
|
solicitation or on whose behalf the solicitation is made; or |
|
(2) a person who: |
|
(A) is soliciting business from a former or |
|
current customer; and |
|
(B) has operated under the same business name for |
|
at least two years. (Bus. & Com. Code, Sec. 38.058.) |
|
Sec. 302.059. EXEMPTION: PERSONS WHO MAKE CERTAIN SALES |
|
PRESENTATIONS OR MAKE SALES AT ESTABLISHED RETAIL LOCATIONS. This |
|
chapter does not apply to: |
|
(1) a person conducting a telephone solicitation who: |
|
(A) does not intend to complete or obtain |
|
provisional acceptance of a sale during the telephone solicitation; |
|
(B) does not make a major sales presentation |
|
during the telephone solicitation but arranges for a major sales |
|
presentation to be made face-to-face at a later meeting between the |
|
salesperson and the purchaser; and |
|
(C) does not cause an individual to go to the |
|
purchaser to collect payment for the purchase or to deliver an item |
|
purchased directly following the telephone solicitation; or |
|
(2) a person who for at least two years, under the same |
|
name as that used in connection with the person's telemarketing |
|
operations, has operated a retail establishment where consumer |
|
goods are displayed and offered for sale continuously, if a |
|
majority of the person's business involves buyers obtaining |
|
services or products at the retail establishment. (Bus. & Com. |
|
Code, Sec. 38.059.) |
|
Sec. 302.060. EXEMPTION: CERTAIN PERSONS PROVIDING |
|
TELEPHONE SOLICITATION SERVICES PREDOMINANTLY FOR EXEMPT PERSONS. |
|
This chapter does not apply to a person: |
|
(1) who provides telephone solicitation services |
|
under contract to a seller; |
|
(2) who has been operating continuously for at least |
|
three years under the same business name; and |
|
(3) for whom at least 75 percent of the person's |
|
contracts are performed on behalf of other persons exempt from the |
|
application of this chapter under this section. (Bus. & Com. Code, |
|
Sec. 38.060(a).) |
|
Sec. 302.061. EXEMPTION: PERSONS CONDUCTING CERTAIN |
|
ISOLATED TELEPHONE SOLICITATIONS. This chapter does not apply to a |
|
person engaging in a telephone solicitation that: |
|
(1) is an isolated transaction; and |
|
(2) is not done in the course of a pattern of repeated |
|
transactions of a similar nature. (Bus. & Com. Code, Sec. 38.061.) |
|
[Sections 302.062-302.100 reserved for expansion] |
|
SUBCHAPTER C. REGISTRATION |
|
Sec. 302.101. REGISTRATION CERTIFICATE REQUIRED. (a) A |
|
seller may not make a telephone solicitation from a location in this |
|
state or to a purchaser located in this state unless the seller |
|
holds a registration certificate for the business location from |
|
which the telephone solicitation is made. |
|
(b) A separate registration certificate is required for |
|
each business location from which a telephone solicitation is made. |
|
(Bus. & Com. Code, Sec. 38.101.) |
|
Sec. 302.102. FILING OF REGISTRATION STATEMENT; PUBLIC |
|
INFORMATION. (a) To obtain a registration certificate, a seller |
|
must file with the secretary of state a registration statement |
|
that: |
|
(1) is in the form prescribed by the secretary of |
|
state; |
|
(2) contains the information required by Subchapter D; |
|
(3) is verified by each principal of the seller; and |
|
(4) specifies the date and location of verification. |
|
(b) Information included in or attached to a registration |
|
statement is public information. |
|
(c) 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. (Bus. & Com. Code, Sec. 38.302.) |
|
Sec. 302.103. ISSUANCE OF REGISTRATION CERTIFICATE. (a) |
|
The secretary of state shall issue a registration certificate and |
|
mail the certificate to the seller when the secretary of state |
|
receives: |
|
(1) a completed registration statement required by |
|
Section 302.102; |
|
(2) the filing fee prescribed by Section 302.106; |
|
(3) the security required by Section 302.107; and |
|
(4) the consent regarding service of process required |
|
by Section 302.108. |
|
(b) If the seller uses a single registration statement to |
|
register more than one business location, the secretary of state |
|
shall: |
|
(1) issue a registration certificate for each business |
|
location; and |
|
(2) mail all the certificates to the principal |
|
business location shown on the registration statement. (Bus. & |
|
Com. Code, Sec. 38.104.) |
|
Sec. 302.104. EFFECTIVE DATE OF REGISTRATION STATEMENT; |
|
RENEWAL. (a) A registration statement takes effect on the date the |
|
secretary of state issues the registration certificate and is |
|
effective for one year. |
|
(b) A registration statement may be renewed annually by: |
|
(1) filing a renewal registration statement |
|
containing the information required by Subchapter D; and |
|
(2) paying the filing fee prescribed by Section |
|
302.106. (Bus. & Com. Code, Sec. 38.105.) |
|
Sec. 302.105. ADDENDA REQUIREMENTS. (a) For each quarter |
|
after the effective date of a registration statement, the seller |
|
shall file with the secretary of state an addendum providing the |
|
required registration information for each salesperson who is |
|
soliciting or has solicited on behalf of the seller during the |
|
preceding quarter. |
|
(b) A seller may comply with Subsection (a) by filing with |
|
the secretary of state a copy of the "Employer's Quarterly Report" |
|
for employee wages that the seller files with the Texas Workforce |
|
Commission. |
|
(c) In addition to filing 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. (Bus. & |
|
Com. Code, Sec. 38.106.) |
|
Sec. 302.106. FILING FEE. The filing fee for a registration |
|
statement is $200. (Bus. & Com. Code, Sec. 38.103.) |
|
Sec. 302.107. SECURITY REQUIREMENTS. A registration |
|
statement must be accompanied by security that: |
|
(1) is in the amount of $10,000; |
|
(2) is in the form of: |
|
(A) a bond executed by a corporate security that: |
|
(i) is approved by the secretary of state; |
|
and |
|
(ii) holds a license to transact business |
|
in this state; |
|
(B) 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 |
|
(C) 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; and |
|
(3) is conditioned on the seller's compliance with |
|
this chapter. (Bus. & Com. Code, Sec. 38.107.) |
|
Sec. 302.108. APPOINTMENT OF SECRETARY OF STATE AS AGENT |
|
FOR 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 action or |
|
proceeding that may arise under this chapter against the seller or |
|
the seller's successor, executor, or administrator if: |
|
(1) an agent has not been named under Section |
|
302.151(15); |
|
(2) the agent named under Section 302.151(15) has |
|
resigned or died and the name of a successor agent has not been |
|
submitted under Section 302.105; or |
|
(3) the agent named under Section 302.151(15) cannot |
|
with reasonable diligence be found at the disclosed 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 action or proceeding on or before the |
|
return date of any process or within an additional period that the |
|
court allows. (Bus. & Com. Code, Sec. 38.108.) |
|
[Sections 302.109-302.150 reserved for expansion] |
|
SUBCHAPTER D. DISCLOSURES REQUIRED IN REGISTRATION STATEMENT |
|
Sec. 302.151. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, |
|
TELEPHONE NUMBERS, AND ORGANIZATIONAL INFORMATION. A registration |
|
statement must contain: |
|
(1) the seller's name and, if different from the |
|
seller's name, the name under which the seller is transacting or |
|
intends to transact business; |
|
(2) the name of each parent and affiliated |
|
organization of the seller that: |
|
(A) will transact business with a purchaser |
|
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: |
|
(A) form of business; and |
|
(B) place of organization; |
|
(4) for a seller who is a corporation, a copy of the |
|
seller's certificate of formation and bylaws; |
|
(5) for a seller who is a partnership, a copy of the |
|
partnership agreement; |
|
(6) for a seller who is operating under an assumed |
|
business name, the location where the assumed name has been |
|
registered; |
|
(7) for any parent or affiliated organization |
|
disclosed under Subdivision (2), the applicable information that is |
|
required of a seller under Subdivisions (3) through (6); |
|
(8) the complete street address of each location of |
|
the seller, designating the principal location from which the |
|
seller will be transacting business; |
|
(9) if the principal business location of the seller |
|
is not in this state, a designation of the seller's main location in |
|
this state; |
|
(10) a listing of each telephone number to be used by |
|
the seller and the address where each telephone using the number is |
|
located; |
|
(11) the name and title of each of the seller's |
|
officers, directors, trustees, general and limited partners, and |
|
owners, as applicable, and the name of each of those persons who has |
|
management responsibilities in connection with the seller's |
|
business activities; |
|
(12) for each person whose name is disclosed under |
|
Subdivision (11) and for each seller who is a sole proprietor: |
|
(A) the complete address of the person's |
|
principal residence; |
|
(B) the person's date of birth; and |
|
(C) the number of and state that issued the |
|
person's driver's license; |
|
(13) the name and principal residence address of each |
|
person the seller leaves in charge at each location from which the |
|
seller transacts business in this state and the business location |
|
at which each of those persons is or will be in charge; |
|
(14) the name and principal residence address of each |
|
salesperson who solicits on the seller's behalf or a copy of the |
|
"Employer's Quarterly Report" for employee wages the seller files |
|
with the Texas Workforce Commission and the name the salesperson |
|
uses while soliciting; |
|
(15) the name and address of the seller's agent in this |
|
state, other than the secretary of state, who is authorized to |
|
receive service of process; and |
|
(16) the name and address of each financial |
|
institution with which the seller makes banking or similar monetary |
|
transactions and the identification number of each of the seller's |
|
accounts in each institution. (Bus. & Com. Code, Sec. 38.151.) |
|
Sec. 302.152. DISCLOSURE OF CERTAIN CONVICTIONS, PLEAS, |
|
JUDGMENTS, ORDERS, BANKRUPTCIES, AND REORGANIZATIONS. (a) With |
|
respect to the seller and each person identified under Section |
|
302.151(11) or (13), a registration statement must identify each |
|
person: |
|
(1) who has been convicted of or pleaded nolo |
|
contendere to: |
|
(A) an offense 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: |
|
(i) a violation of this chapter; or |
|
(ii) fraud, theft, embezzlement, |
|
fraudulent conversion, or misappropriation of property; |
|
(B) the use of false or misleading |
|
representations in an attempt to sell or otherwise 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, during the previous seven tax years: |
|
(A) has filed in bankruptcy; |
|
(B) has been adjudged a bankrupt; |
|
(C) has been reorganized because of insolvency; |
|
or |
|
(D) has been a principal, director, officer, |
|
trustee, or general or limited partner of, or had management |
|
responsibilities for, a corporation, partnership, joint venture, |
|
or other business entity that has filed in bankruptcy, been |
|
adjudged a bankrupt, or been reorganized because of insolvency |
|
while the person held that position or on or before the first |
|
anniversary of the date on which the person last held that position. |
|
(b) For each person identified under Subsection (a)(1), |
|
(2), or (3), the statement must disclose: |
|
(1) the court that received the plea of nolo |
|
contendere or the court or administrative agency that rendered the |
|
conviction, judgment, or order; |
|
(2) the docket number of the matter; |
|
(3) the date the plea of nolo contendere was received |
|
or the date of the conviction, judgment, or order; and |
|
(4) the name of any government agency that brought the |
|
action resulting in the plea or the conviction, judgment, or order. |
|
(c) For each person identified under Subsection (a)(4), the |
|
statement must disclose: |
|
(1) the name and location of the person filing in |
|
bankruptcy, adjudged a bankrupt, or reorganized because of |
|
insolvency; |
|
(2) the date of the filing, judgment, or |
|
reorganization order; |
|
(3) the court having jurisdiction; and |
|
(4) the docket number of the matter. (Bus. & Com. |
|
Code, Sec. 38.152.) |
|
Sec. 302.153. DISCLOSURE OF CERTAIN SALES INFORMATION. (a) |
|
A registration statement must be accompanied by: |
|
(1) a description of the items the seller is offering |
|
for sale; |
|
(2) a copy of all sales information and literature, |
|
including scripts, outlines, instructions, and information |
|
regarding the conduct of telephone solicitations, sample |
|
introductions, sample closings, product information, and contest |
|
or premium-award information, that the seller provides to |
|
salespersons or about which the seller informs salespersons; |
|
(3) a copy of all written material the seller sends to |
|
any purchaser; and |
|
(4) as applicable, the information and documents |
|
specified by Subsections (b) through (h). |
|
(b) If the seller represents or implies, or directs a |
|
salesperson to represent or imply, to a purchaser 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, |
|
regardless of whether the items are designated as gifts, premiums, |
|
bonuses, or prizes or otherwise, the registration statement must be |
|
accompanied by: |
|
(1) a list of the items described; |
|
(2) the value of each item and the basis for the |
|
valuation; |
|
(3) the price the seller paid for each item to the |
|
seller's supplier and the name, address, and telephone number of |
|
each item's supplier; |
|
(4) all rules and terms a purchaser must meet to |
|
receive the item; and |
|
(5) if the purchaser will not receive all of the items |
|
described by the seller: |
|
(A) the manner in which the seller decides which |
|
item a particular purchaser is to receive; |
|
(B) for each item, the odds of a single purchaser |
|
receiving the item; and |
|
(C) the name and address of each purchaser who |
|
has received, during the preceding 12 months, the item with the |
|
greatest value and the item with the lowest odds of being received. |
|
(c) If the seller is offering an item that the seller does |
|
not manufacture or supply, the registration statement must be |
|
accompanied by: |
|
(1) the name, address, and telephone number of each of |
|
the seller's suppliers; |
|
(2) a description of each item provided by each |
|
supplier named in Subdivision (1); and |
|
(3) as applicable, the information and documents |
|
specified by Subsections (d) through (g). |
|
(d) If the seller is offering an item that the seller does |
|
not manufacture or supply and 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, the registration statement |
|
must be accompanied by: |
|
(1) the address of each location where the item will be |
|
kept; |
|
(2) if the item is not kept on premises owned by the |
|
seller or at an address registered under Section 302.151(8) or (9), |
|
the name of the owner of the business at which the item will be kept; |
|
and |
|
(3) a copy of any contract or other document that |
|
evidences the seller's right to store the item at the address |
|
designated under Subdivision (2). |
|
(e) If the seller is offering an item that the seller does |
|
not manufacture or supply and the seller is not selling the item |
|
from the seller's own inventory but purchases the item to fill an |
|
order previously taken from a purchaser, the registration statement |
|
must be accompanied by a copy of each contract or other document |
|
that evidences the seller's ability to call on suppliers to fill the |
|
seller's orders. |
|
(f) If the seller is offering an item that the seller does |
|
not manufacture or supply and the seller represents to purchasers |
|
that the seller has insurance or a surety bond relating to a |
|
purchaser's purchase of an item, the registration statement must be |
|
accompanied by a copy of each insurance policy or bond. |
|
(g) If the seller is offering an item that the seller does |
|
not manufacture or supply and the seller makes a representation |
|
regarding the post-purchase earning or profit potential of an item, |
|
the registration statement must be accompanied by: |
|
(1) data to substantiate the claims made; and |
|
(2) 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 purchasers of that |
|
particular type of item from the seller or related entity during the |
|
preceding six months, including: |
|
(A) the period the seller or related entity has |
|
been selling the particular type of item being offered; |
|
(B) the number of purchasers of the item known to |
|
the seller or related entity to have made at least the same earnings |
|
or profit as those represented; and |
|
(C) the percentage that the number disclosed |
|
under Paragraph (B) represents of the total number of purchasers |
|
from the seller or related entity of the particular type of item |
|
offered. |
|
(h) If the seller is offering to sell an interest in an oil, |
|
gas, or mineral field, well, or exploration site, the registration |
|
statement must be accompanied by: |
|
(1) any ownership interest of the seller in each |
|
field, well, or site being offered for sale; |
|
(2) the total number of interests to be sold in each |
|
field, well, or site being offered for sale; and |
|
(3) 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: |
|
(A) the name, business address, telephone |
|
number, and professional credentials of the person who conducted |
|
the investigation; and |
|
(B) a copy of the report and other documents |
|
relating to the investigation prepared by the person who conducted |
|
the investigation. (Bus. & Com. Code, Sec. 38.153.) |
|
[Sections 302.154-302.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL INFORMATION FROM SELLER |
|
Sec. 302.201. INFORMATION REQUIRED TO BE 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 the certificate is issued. |
|
(b) A seller shall post in close proximity to the |
|
registration certificate the name of each individual in charge of |
|
the location. |
|
(c) A seller shall make available at each of the seller's |
|
business locations a copy of the entire registration statement and |
|
any addenda for inspection by a purchaser or by a representative of |
|
a government agency. (Bus. & Com. Code, Sec. 38.201.) |
|
Sec. 302.202. DISCLOSURES REQUIRED BEFORE PURCHASE. When a |
|
telephone solicitation is made and before consummation of any sales |
|
transaction, a seller shall provide to each purchaser: |
|
(1) the complete street address of the location from |
|
which the salesperson is calling 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, regardless of whether the items are |
|
designated as gifts, premiums, bonuses, prizes, or otherwise: |
|
(A) the information required to be filed by |
|
Sections 302.153(b)(4) and (5)(A) and (B), as appropriate; and |
|
(B) the total number of individuals who have |
|
actually received from the seller during the preceding 12 months |
|
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 302.153(h); 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 item's manufacturer. (Bus. & Com. Code, Sec. 38.202.) |
|
Sec. 302.203. REFERENCE TO COMPLIANCE WITH STATUTE |
|
PROHIBITED. A seller may not make or authorize the making of a |
|
reference to the seller's compliance with this chapter to a |
|
purchaser. (Bus. & Com. Code, Sec. 38.203.) |
|
[Sections 302.204-302.250 reserved for expansion] |
|
SUBCHAPTER F. OFFENSES |
|
Sec. 302.251. VIOLATION OF CERTAIN PROVISIONS. (a) A |
|
person commits an offense if the person knowingly violates Section |
|
302.101, 302.105, 302.201, 302.202, or 302.203. Each violation |
|
constitutes a separate offense. |
|
(b) An offense under this section is a Class A misdemeanor. |
|
(Bus. & Com. Code, Sec. 38.251.) |
|
Sec. 302.252. ACTING AS SALESPERSON FOR UNREGISTERED |
|
SELLER. (a) A person commits an offense if the person knowingly |
|
acts as a salesperson 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. |
|
(Bus. & Com. Code, Sec. 38.252.) |
|
Sec. 302.253. REQUEST FOR 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 an item without charge, regardless of whether the item is |
|
designated as a gift, premium, bonus, or prize or otherwise; and |
|
(2) requests a credit card account number or checking |
|
account number from the purchaser to charge to the credit card |
|
account or debit from the checking account an amount as a condition |
|
precedent to the purchaser's receipt of the item. |
|
(b) An offense under this section is a Class A misdemeanor. |
|
(Bus. & Com. Code, Sec. 38.253.) |
|
[Sections 302.254-302.300 reserved for expansion] |
|
SUBCHAPTER G. ENFORCEMENT |
|
Sec. 302.301. INJUNCTION. (a) The attorney general may |
|
bring an action 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 action is filed, except that notice is not required if |
|
the attorney general intends to request that the court issue a |
|
temporary restraining order. |
|
(c) The attorney general is entitled to recover all |
|
reasonable costs of prosecuting the action, including court costs |
|
and investigation costs, deposition expenses, witness fees, and |
|
attorney's fees. (Bus. & Com. Code, Sec. 38.301.) |
|
Sec. 302.302. 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 |
|
302.301 is liable to this state for a civil penalty of not more |
|
than: |
|
(1) $25,000 for each violation of the injunction; and |
|
(2) $50,000 for all violations of the injunction. |
|
(c) The attorney general may bring an action to recover a |
|
civil penalty under Subsection (b) in the court that issued the |
|
original injunction. |
|
(d) The party bringing the action also is entitled to |
|
recover all reasonable costs of prosecuting the action, including |
|
court costs and investigation costs, deposition expenses, witness |
|
fees, and attorney's fees. (Bus. & Com. Code, Sec. 38.302.) |
|
Sec. 302.303. DECEPTIVE TRADE PRACTICES. (a) A violation |
|
of this chapter is a false, misleading, or deceptive act or practice |
|
under Subchapter E, Chapter 17. |
|
(b) A public or private right or remedy prescribed by |
|
Subchapter E, Chapter 17, may be used to enforce this chapter. |
|
(Bus. & Com. Code, Sec. 38.303.) |
|
Sec. 302.304. ACTION TO RECOVER AGAINST SECURITY. (a) A |
|
person injured by a seller's bankruptcy or by a seller's breach of |
|
an agreement entered into during a telephone solicitation may bring |
|
an action to recover against the security required under Section |
|
302.107. |
|
(b) The liability of the surety on a bond provided under |
|
Section 302.107 may 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. (Bus. & Com. Code, |
|
Sec. 38.304.) |
|
CHAPTER 303. TELEPHONE SOLICITATION FOR CERTAIN LAW |
|
ENFORCEMENT-RELATED CHARITABLE ORGANIZATIONS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 303.001. DEFINITIONS |
|
Sec. 303.002. SOLICITATION GOVERNED BY CHAPTER |
|
Sec. 303.003. PUBLIC ACCESS TO CERTAIN DOCUMENTS AND |
|
INFORMATION |
|
Sec. 303.004. RULES; PROCEDURES; FORMS |
|
[Sections 303.005-303.050 reserved for expansion] |
|
SUBCHAPTER B. REGISTRATION AND BOND REQUIREMENTS |
|
Sec. 303.051. RECORD OF ORGANIZATIONS |
|
Sec. 303.052. FORM AND CONTENT OF REGISTRATION |
|
STATEMENT |
|
Sec. 303.053. INITIAL REGISTRATION STATEMENT |
|
Sec. 303.054. EXPIRATION OF REGISTRATION; RENEWAL |
|
Sec. 303.055. FILING FEE |
|
Sec. 303.056. EXEMPTION: VOLUNTEER |
|
Sec. 303.057. REGISTRATION DOES NOT IMPLY ENDORSEMENT |
|
Sec. 303.058. BOOKS AND RECORDS |
|
Sec. 303.059. BOND |
|
[Sections 303.060-303.100 reserved for expansion] |
|
SUBCHAPTER C. SOLICITATION PRACTICES |
|
Sec. 303.101. DECEPTIVE ACT OR PRACTICE |
|
Sec. 303.102. REPRESENTATION OF BENEFIT TO SURVIVORS |
|
Sec. 303.103. NOTICE OF DISPOSITION OF MONEY |
|
Sec. 303.104. HOURS OF SOLICITATION |
|
[Sections 303.105-303.150 reserved for expansion] |
|
SUBCHAPTER D. VIOLATION; REMEDIES |
|
Sec. 303.151. NOTIFICATION OF NONCOMPLIANCE |
|
Sec. 303.152. VIOLATIONS RELATING TO FILING OF |
|
DOCUMENTS |
|
Sec. 303.153. REMEDIES |
|
Sec. 303.154. VENUE |
|
CHAPTER 303. TELEPHONE SOLICITATION FOR CERTAIN LAW |
|
ENFORCEMENT-RELATED CHARITABLE ORGANIZATIONS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 303.001. DEFINITIONS. In this chapter: |
|
(1) "Commercial telephone solicitor" means a person |
|
whom a law enforcement-related charitable organization retains to |
|
make a telephone solicitation, directly or through another person |
|
under the direction of the person retained. The term does not |
|
include a bona fide officer, director, or employee of, or volunteer |
|
for, a law enforcement-related charitable organization. |
|
(2) "Contribution" means a promise to give or a gift of |
|
money or other property, credit, financial assistance, or another |
|
thing of any kind or value. The term does not include: |
|
(A) volunteer services; or |
|
(B) bona fide fees, dues, or assessments a member |
|
pays if membership is not conferred solely as consideration for |
|
making a contribution in response to a telephone solicitation. |
|
(3) "Law enforcement-related charitable organization" |
|
means a person who solicits a contribution and is or purports to be |
|
established or operating for a charitable purpose relating to law |
|
enforcement. The term includes a nongovernmental law enforcement |
|
organization or publication and survivors of law enforcement |
|
officers killed in the line of duty. The term does not include a |
|
governmental law enforcement agency or organization. |
|
(4) "Telephone solicitation" means the use of a |
|
telephone to solicit another person to make a charitable |
|
contribution to a law enforcement-related charitable organization. |
|
(V.A.C.S. Art. 9023e, Secs. 2(1), (2), (3), (6).) |
|
Sec. 303.002. SOLICITATION GOVERNED BY CHAPTER. The |
|
telephone solicitation of a contribution from a person in this |
|
state is considered to be engaging in telephone solicitation in |
|
this state regardless of where the solicitation originates. |
|
(V.A.C.S. Art. 9023e, Sec. 1.) |
|
Sec. 303.003. PUBLIC ACCESS TO CERTAIN DOCUMENTS AND |
|
INFORMATION. (a) Except as provided by Subsection (b), a document |
|
required to be filed with the attorney general under this chapter is |
|
public information available to members of the public under Chapter |
|
552, Government Code. |
|
(b) A document that identifies the donors to a law |
|
enforcement-related charitable organization is confidential and |
|
not subject to disclosure. (V.A.C.S. Art. 9023e, Sec. 3(b).) |
|
Sec. 303.004. RULES; PROCEDURES; FORMS. The attorney |
|
general may adopt rules, procedures, and forms necessary to |
|
administer and enforce this chapter. (V.A.C.S. Art. 9023e, Sec. |
|
14.) |
|
[Sections 303.005-303.050 reserved for expansion] |
|
SUBCHAPTER B. REGISTRATION AND BOND REQUIREMENTS |
|
Sec. 303.051. RECORD OF ORGANIZATIONS. The attorney |
|
general shall maintain: |
|
(1) a register of law enforcement-related charitable |
|
organizations subject to this chapter; and |
|
(2) a registry of law enforcement-related charitable |
|
organizations that submit to the attorney general a completed |
|
registration statement containing the information required by |
|
Section 303.052. (V.A.C.S. Art. 9023e, Secs. 3(a), 4(a) (part).) |
|
Sec. 303.052. FORM AND CONTENT OF REGISTRATION STATEMENT. |
|
A registration statement under Section 303.051(2) must be submitted |
|
on a form the attorney general prescribes or approves and must |
|
contain: |
|
(1) for each of the organization's offices, chapters, |
|
local units, branches, and affiliates: |
|
(A) the legal name and each assumed name; |
|
(B) the mailing address and street address; and |
|
(C) each telephone number and facsimile number; |
|
(2) the organization's employer identification |
|
number; |
|
(3) the name, title, address, and telephone number of: |
|
(A) the organization's executive director or |
|
other chief operating officer; and |
|
(B) each of the organization's officers and |
|
directors; |
|
(4) the name of each officer, director, or employee: |
|
(A) whom the organization compensates or who has |
|
custody and control of the organization's money; and |
|
(B) who has been convicted of or pleaded nolo |
|
contendere to: |
|
(i) a felony; or |
|
(ii) a misdemeanor involving fraud or the |
|
theft, misappropriation, misapplication, or misuse of another's |
|
property; |
|
(5) for each person listed under Subdivision (4), a |
|
statement of: |
|
(A) the offense; and |
|
(B) the state, court, and date of each conviction |
|
or plea of nolo contendere; |
|
(6) if the organization is a corporation, the date and |
|
state of incorporation; |
|
(7) if the organization is not a corporation, the type |
|
of organization and date established; |
|
(8) the date the organization began transacting |
|
business in this state; |
|
(9) the name and address of the organization's |
|
registered agent in this state; |
|
(10) a statement of the organization's charitable |
|
purposes; |
|
(11) a list of the programs for which funds are |
|
solicited; |
|
(12) the day and month on which the organization's |
|
fiscal year ends; |
|
(13) a statement of whether the organization: |
|
(A) is eligible to receive tax-deductible |
|
contributions under Section 170, Internal Revenue Code of 1986; and |
|
(B) has applied for or been granted tax-exempt |
|
status by the Internal Revenue Service and, if so: |
|
(i) the Internal Revenue Code of 1986 |
|
section on which the application was based; |
|
(ii) the application date; |
|
(iii) the date the exemption was granted or |
|
denied; and |
|
(iv) a statement of whether or when the tax |
|
exemption has ever been denied, revoked, or modified; |
|
(14) a statement that includes: |
|
(A) the method of accounting used and the name, |
|
address, and telephone number of each of the organization's |
|
accountants and auditors; |
|
(B) for the preceding 12 months: |
|
(i) the total contributions received; |
|
(ii) the total fund-raising costs, computed |
|
according to generally accepted accounting principles; |
|
(iii) if the organization retained a |
|
commercial telephone solicitor: |
|
(a) the name and address of each |
|
commercial telephone solicitor; and |
|
(b) a written confirmation from each |
|
commercial telephone solicitor that it has complied with all state |
|
and local registration laws; and |
|
(iv) the amount paid to commercial |
|
telephone solicitors; and |
|
(C) a statement that: |
|
(i) the organization has attempted in good |
|
faith to comply with each ordinance of a municipality or each order |
|
of a county in this state regarding telephone solicitation that has |
|
been filed with the attorney general; or |
|
(ii) no ordinance or order described by |
|
Subparagraph (i) applies; |
|
(15) if the organization files a federal tax return, a |
|
copy of: |
|
(A) the organization's most recently filed |
|
Internal Revenue Service Form 990 and other federal tax returns; |
|
(B) each supplement, amendment, and attachment |
|
to those returns; and |
|
(C) each request for an extension to file any of |
|
those returns; |
|
(16) if the organization does not file a federal tax |
|
return: |
|
(A) a statement of the reason a return is not |
|
filed; and |
|
(B) the organization's most recent financial |
|
statements, including audited financial statements, if any have |
|
been prepared; and |
|
(17) a sworn statement verifying that the information |
|
contained in the registration statement and each attachment to the |
|
registration statement is true, correct, and complete to the best |
|
of the affiant's knowledge. (V.A.C.S. Art. 9023e, Secs. 4(a) |
|
(part), (e).) |
|
Sec. 303.053. INITIAL REGISTRATION STATEMENT. A law |
|
enforcement-related charitable organization shall file the |
|
organization's initial registration statement before the 10th |
|
working day before the date the organization begins telephone |
|
solicitation in this state. (V.A.C.S. Art. 9023e, Sec. 4(b).) |
|
Sec. 303.054. EXPIRATION OF REGISTRATION; RENEWAL. (a) A |
|
law enforcement-related charitable organization's registration |
|
expires on the 15th day of the fifth month after the last day of the |
|
organization's fiscal year. |
|
(b) The organization shall file a renewal registration |
|
statement on the form required under Section 303.052. The renewal |
|
registration statement must include the organization's name and |
|
employer identification number and any changes to information |
|
previously submitted to the attorney general. For an item on which |
|
there is no change from the previous year's registration statement, |
|
"no change" may be indicated. (V.A.C.S. Art. 9023e, Sec. 4(c).) |
|
Sec. 303.055. FILING FEE. (a) An initial registration |
|
statement must be accompanied by a filing fee not to exceed $50. |
|
(b) A renewal registration statement must be accompanied by |
|
a filing fee of $50. (V.A.C.S. Art. 9023e, Sec. 4(d).) |
|
Sec. 303.056. EXEMPTION: VOLUNTEER. A volunteer |
|
authorized to solicit on behalf of a law enforcement-related |
|
charitable organization is not required to register under this |
|
chapter. (V.A.C.S. Art. 9023e, Sec. 4(f).) |
|
Sec. 303.057. REGISTRATION DOES NOT IMPLY ENDORSEMENT. (a) |
|
Registration under this chapter does not imply endorsement by this |
|
state or the attorney general. |
|
(b) A law enforcement-related charitable organization may |
|
not state or imply that registration under this chapter is |
|
endorsement by this state or the attorney general. (V.A.C.S. Art. |
|
9023e, Sec. 8.) |
|
Sec. 303.058. BOOKS AND RECORDS. (a) A law |
|
enforcement-related charitable organization required to file a |
|
registration statement shall maintain books and records of the |
|
organization's activities in this state. The books and records must |
|
be maintained: |
|
(1) in a form that enables the organization to |
|
accurately provide the information required by this chapter; and |
|
(2) until at least the third anniversary of the end of |
|
the period to which the registration statement relates. |
|
(b) On written request of authorized personnel of the |
|
attorney general, the organization shall make the books and records |
|
available for inspection and copying by authorized personnel: |
|
(1) at the organization's principal place of business |
|
not later than the 10th working day after the date of the request; |
|
or |
|
(2) at another agreed place and time. |
|
(c) The authority provided by this section is in addition to |
|
the attorney general's other statutory or common law audit or |
|
investigative authority. (V.A.C.S. Art. 9023e, Sec. 7.) |
|
Sec. 303.059. BOND. A commercial telephone solicitor shall |
|
post with the secretary of state a surety bond that: |
|
(1) is in the amount of $50,000; and |
|
(2) is issued by a surety company authorized to |
|
transact business in this state. (V.A.C.S. Art. 9023e, Sec. 5.) |
|
[Sections 303.060-303.100 reserved for expansion] |
|
SUBCHAPTER C. SOLICITATION PRACTICES |
|
Sec. 303.101. DECEPTIVE ACT OR PRACTICE. A person may not |
|
commit an unfair or deceptive act or practice in making a telephone |
|
solicitation for a law enforcement-related charitable |
|
organization. (V.A.C.S. Art. 9023e, Sec. 13(a).) |
|
Sec. 303.102. REPRESENTATION OF BENEFIT TO SURVIVORS. A |
|
person may not represent to a person solicited that a contribution |
|
is to be used to benefit the survivors of a law enforcement officer |
|
killed in the line of duty unless: |
|
(1) all of the contributions collected are used to |
|
benefit those survivors; or |
|
(2) the person solicited is informed in writing of the |
|
percentage of the contribution that will directly benefit those |
|
survivors. (V.A.C.S. Art. 9023e, Sec. 13(b).) |
|
Sec. 303.103. NOTICE OF DISPOSITION OF MONEY. (a) If less |
|
than 90 percent of the contributions collected by a law |
|
enforcement-related charitable organization or commercial |
|
telephone solicitor are paid to a law enforcement-related |
|
charitable organization, the commercial telephone solicitor shall |
|
notify each person solicited by telephone, before accepting a |
|
contribution from the person, of: |
|
(1) the percentage of the contributions that will be |
|
paid to the organization for which the contributions are being |
|
solicited; and |
|
(2) the percentage of the contributions that the |
|
solicitor will retain. |
|
(b) Information required to be disclosed under Subsection |
|
(a) shall also be included on any written statement mailed to the |
|
contributor. (V.A.C.S. Art. 9023e, Sec. 12(a).) |
|
Sec. 303.104. HOURS OF SOLICITATION. A law |
|
enforcement-related charitable organization or commercial |
|
telephone solicitor may not make a telephone solicitation call |
|
unless the call is made after 9 a.m. and before 7 p.m., Monday |
|
through Friday. (V.A.C.S. Art. 9023e, Sec. 12(b).) |
|
[Sections 303.105-303.150 reserved for expansion] |
|
SUBCHAPTER D. VIOLATION; REMEDIES |
|
Sec. 303.151. NOTIFICATION OF NONCOMPLIANCE. If a law |
|
enforcement-related charitable organization does not file a |
|
document required by this chapter, files an incomplete or |
|
inaccurate document, or otherwise does not comply with this |
|
chapter, the attorney general shall notify the organization of the |
|
organization's noncompliance by first class mail sent to the |
|
organization's last reported address. (V.A.C.S. Art. 9023e, Sec. |
|
6(a).) |
|
Sec. 303.152. VIOLATIONS RELATING TO FILING OF DOCUMENTS. |
|
(a) A law enforcement-related charitable organization violates |
|
this chapter if the organization: |
|
(1) does not file complete documents before the 31st |
|
day after the date a notice under Section 303.151 is mailed; or |
|
(2) with actual awareness files materially inaccurate |
|
documents. |
|
(b) For purposes of Subsection (a)(2), actual awareness may |
|
be inferred from an objective manifestation that indicates that a |
|
person acted with actual awareness. (V.A.C.S. Art. 9023e, Secs. |
|
2(4), 6(b).) |
|
Sec. 303.153. REMEDIES. (a) The attorney general may bring |
|
an action against a person who violates this chapter to: |
|
(1) cancel or suspend the person's registration; |
|
(2) obtain an injunction to restrain the person from |
|
continuing the violation; |
|
(3) restrain the person from transacting business in |
|
this state while violating this chapter; |
|
(4) impose a civil penalty of not more than $25,000 for |
|
each violation; or |
|
(5) both obtain an injunction and impose a civil |
|
penalty. |
|
(b) A person who violates an injunction issued under this |
|
section is liable to this state for a civil penalty of not less than |
|
$100,000. |
|
(c) In an action that the attorney general successfully |
|
prosecutes under this chapter, the court may allow the attorney |
|
general to recover civil penalties and the reasonable costs, |
|
attorney's fees, and expenses, including investigative costs, |
|
witness fees, and deposition expenses, incurred in bringing the |
|
action. |
|
(d) A remedy authorized by this chapter is in addition to |
|
any other procedure or remedy provided by another statutory law or |
|
common law. (V.A.C.S. Art. 9023e, Secs. 9, 10 (part).) |
|
Sec. 303.154. VENUE. An action under this chapter must be |
|
brought in: |
|
(1) Travis County; |
|
(2) the county in which the law enforcement-related |
|
charitable organization has its principal place of business or a |
|
fixed and established place of business at the time the action is |
|
brought; or |
|
(3) the county in which solicitation occurred. |
|
(V.A.C.S. Art. 9023e, Sec. 11.) |
|
CHAPTER 304. TELEMARKETING |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 304.001. SHORT TITLE |
|
Sec. 304.002. DEFINITIONS |
|
Sec. 304.003. MAKING TELEMARKETING CALL |
|
Sec. 304.004. INAPPLICABILITY OF CHAPTER TO CERTAIN |
|
CALLS |
|
Sec. 304.005. LIBERAL CONSTRUCTION AND APPLICATION |
|
Sec. 304.006. ATTEMPTED WAIVER VOID |
|
[Sections 304.007-304.050 reserved for expansion] |
|
SUBCHAPTER B. TEXAS NO-CALL LIST |
|
Sec. 304.051. MAINTENANCE OF TEXAS NO-CALL LIST |
|
Sec. 304.052. TELEMARKETING CALL TO TELEPHONE NUMBER |
|
ON LIST PROHIBITED |
|
Sec. 304.053. EXPIRATION, RENEWAL, AND DELETION OF |
|
ENTRY |
|
Sec. 304.054. FEE |
|
Sec. 304.055. PUBLICATION IN TELEPHONE DIRECTORY |
|
Sec. 304.056. PLACEMENT OF ENTRIES ON NATIONAL |
|
DO-NOT-CALL REGISTRY |
|
Sec. 304.057. GENERAL RULEMAKING AUTHORITY |
|
Sec. 304.058. RULES REGARDING ISOLATED CALLS |
|
Sec. 304.059. RULES REGARDING PUBLIC NOTICE |
|
Sec. 304.060. RULES REGARDING DISSEMINATION OF LIST |
|
Sec. 304.061. EDUCATIONAL PROGRAMS |
|
Sec. 304.062. ASSISTANCE OF DEPARTMENT OF INFORMATION |
|
RESOURCES |
|
[Sections 304.063-304.100 reserved for expansion] |
|
SUBCHAPTER C. FACSIMILE TRANSMISSIONS |
|
Sec. 304.101. NOTICE IN FACSIMILE SOLICITATION |
|
Sec. 304.102. ACKNOWLEDGMENT REQUIRED; TRANSMISSION |
|
PROHIBITED |
|
[Sections 304.103-304.150 reserved for expansion] |
|
SUBCHAPTER D. CALLER IDENTIFICATION |
|
Sec. 304.151. INTERFERENCE WITH CALLER IDENTIFICATION |
|
SERVICE OR DEVICE PROHIBITED |
|
Sec. 304.152. EXCEPTION: USE OF CERTAIN SERVICE OR |
|
EQUIPMENT |
|
[Sections 304.153-304.200 reserved for expansion] |
|
SUBCHAPTER E. REGULATORY REPORTS |
|
Sec. 304.201. REPORT BY COMMISSION |
|
Sec. 304.202. REPORT BY ATTORNEY GENERAL |
|
[Sections 304.203-304.250 reserved for expansion] |
|
SUBCHAPTER F. ENFORCEMENT |
|
Sec. 304.251. ENFORCEMENT BY COMMISSION |
|
Sec. 304.252. ENFORCEMENT BY ATTORNEY GENERAL |
|
Sec. 304.253. ENFORCEMENT BY LICENSING AGENCY |
|
Sec. 304.254. DETERMINATION OF AMOUNT OF |
|
ADMINISTRATIVE PENALTY |
|
Sec. 304.255. STAY OF ADMINISTRATIVE PENALTY |
|
Sec. 304.256. CONTESTED CASE |
|
Sec. 304.257. PRIVATE ACTION: TELEMARKETING CALLS |
|
Sec. 304.258. PRIVATE ACTION: FACSIMILE TRANSMISSION |
|
Sec. 304.259. VENUE |
|
CHAPTER 304. TELEMARKETING |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 304.001. SHORT TITLE. This chapter may be cited as the |
|
Texas Telemarketing Disclosure and Privacy Act. (Bus. & Com. Code, |
|
Sec. 44.001.) |
|
Sec. 304.002. DEFINITIONS. In this chapter: |
|
(1) "Caller identification service or device" means a |
|
service or device designed to provide the user of the service or |
|
device with the telephone number of an incoming telephone call. |
|
(2) "Commission" means the Public Utility Commission |
|
of Texas. |
|
(3) "Consumer good or service" means property of any |
|
kind that is normally used for personal, family, or household |
|
purposes. The term does not include a security, as defined by |
|
Section 4, The Securities Act (Article 581-4, Vernon's Texas Civil |
|
Statutes). |
|
(4) "Established business relationship" means a |
|
relationship that: |
|
(A) is formed by a voluntary two-way |
|
communication between a person and a consumer, regardless of |
|
whether consideration is exchanged; |
|
(B) pertains to a consumer good or service |
|
offered by the person; and |
|
(C) has not been terminated by either party. |
|
(5) "Facsimile recording device" means a device |
|
capable of receiving a facsimile transmission. |
|
(6) "Facsimile solicitation" means a telemarketing |
|
call made by a transmission to a facsimile recording device. |
|
(7) "State licensee" means a person licensed by a |
|
state agency under a law of this state that requires the person to |
|
obtain a license as a condition of engaging in a profession or |
|
business. |
|
(8) "Telemarketer" means a person who makes or causes |
|
to be made a telemarketing call. |
|
(9) "Telemarketing call" means an unsolicited |
|
telephone call made to: |
|
(A) solicit a sale of a consumer good or service; |
|
(B) solicit an extension of credit for a consumer |
|
good or service; or |
|
(C) obtain information that may be used to |
|
solicit a sale of a consumer good or service or to extend credit for |
|
the sale. |
|
(10) "Telephone call" means a call or other |
|
transmission made to or received at a telephone number, including: |
|
(A) a call made by an automated telephone dialing |
|
system; |
|
(B) a transmission to a facsimile recording |
|
device; and |
|
(C) a call to a mobile telephone number serviced |
|
by a provider of commercial mobile service, as defined by Section |
|
332(d), Communications Act of 1934 (47 U.S.C. Section 151 et seq.), |
|
as amended, Federal Communications Commission rules, or the Omnibus |
|
Budget Reconciliation Act of 1993 (Pub. L. No. 103-66), as amended. |
|
(Bus. & Com. Code, Secs. 44.002, 44.003(a).) |
|
Sec. 304.003. MAKING TELEMARKETING CALL. For purposes of |
|
this chapter, a person makes a telemarketing call if the person |
|
effects a telemarketing call on the person's own behalf or on behalf |
|
of another entity. A person makes a telemarketing call on behalf of |
|
another entity if, as a result of the telemarketing call, the other |
|
entity can: |
|
(1) become entitled to receive money or other property |
|
of any kind from a sale solicited during the call; or |
|
(2) receive information obtained during the call to: |
|
(A) extend or offer to extend to the person |
|
solicited credit for a consumer good or service; or |
|
(B) directly solicit a sale of a consumer good or |
|
service or extend credit for the sale. (Bus. & Com. Code, Sec. |
|
44.004.) |
|
Sec. 304.004. INAPPLICABILITY OF CHAPTER TO CERTAIN |
|
CALLS. This chapter does not apply to a call made: |
|
(1) by a consumer: |
|
(A) as the result of a solicitation by a seller or |
|
telemarketer; or |
|
(B) in response to general media advertising by a |
|
direct mail solicitation that clearly, conspicuously, and |
|
truthfully makes all disclosures required by federal or state law; |
|
(2) in connection with: |
|
(A) an established business relationship; or |
|
(B) a business relationship that has been |
|
terminated, if the call is made before the later of: |
|
(i) the publication date of the first Texas |
|
no-call list in which the consumer's telephone number appears; or |
|
(ii) the first anniversary of the date of |
|
termination; |
|
(3) between a telemarketer and a business, other than |
|
by a facsimile solicitation, unless the business has informed the |
|
telemarketer that the business does not wish to receive a |
|
telemarketing call from the telemarketer; |
|
(4) to collect a debt; or |
|
(5) by a state licensee if: |
|
(A) the call is not made by an automated |
|
telephone dialing system; |
|
(B) the solicited transaction is not completed |
|
until a face-to-face sales presentation by the seller occurs and |
|
the consumer is not required to pay or authorize payment until after |
|
the presentation; and |
|
(C) the consumer has not informed the |
|
telemarketer that the consumer does not wish to receive a |
|
telemarketing call from the telemarketer. (Bus. & Com. Code, Sec. |
|
44.003(b).) |
|
Sec. 304.005. LIBERAL CONSTRUCTION AND APPLICATION. This |
|
chapter shall be liberally construed and applied to promote its |
|
underlying purpose to protect the public against false, misleading, |
|
abusive, or deceptive practices in the telemarketing business. |
|
(Bus. & Com. Code, Sec. 44.005.) |
|
Sec. 304.006. ATTEMPTED WAIVER VOID. An attempted waiver |
|
of a provision of this chapter is void. (Bus. & Com. Code, Sec. |
|
44.006.) |
|
[Sections 304.007-304.050 reserved for expansion] |
|
SUBCHAPTER B. TEXAS NO-CALL LIST |
|
Sec. 304.051. MAINTENANCE OF TEXAS NO-CALL LIST. (a) The |
|
commission shall provide for the operation of a database to compile |
|
a list of names, zip codes, and telephone numbers of consumers in |
|
this state who object to receiving telemarketing calls or other |
|
unsolicited telephone calls. |
|
(b) The Texas no-call list is a combined list consisting of |
|
the name and telephone numbers of: |
|
(1) each consumer in this state who has requested to be |
|
on that list; and |
|
(2) each person in the portion of the national |
|
do-not-call registry maintained by the United States government |
|
that relates to this state. |
|
(c) The commission shall: |
|
(1) make available an Internet website at which a |
|
person may request that a telephone number be placed on the Texas |
|
no-call list; and |
|
(2) provide a toll-free telephone number and mailing |
|
address that a person may call or write to obtain a copy of a form to |
|
request placement of a telephone number on the Texas no-call list. |
|
(d) The Texas no-call list shall be updated and published on |
|
January 1, April 1, July 1, and October 1 of each year. |
|
(e) The commission may contract with a private vendor to |
|
maintain the Texas no-call list if the vendor has maintained a |
|
no-call list database containing the names and telephone numbers of |
|
consumers who have previously requested to be added to a no-call |
|
list. A contract under this subsection must require the vendor to |
|
publish the Texas portion of the national no-call list in an |
|
electronic format for any telemarketer who agrees to use the Texas |
|
no-call list only to update the telemarketer's no-call list to |
|
include those persons with whom the telemarketer does not have an |
|
established business relationship. (Bus. & Com. Code, Secs. |
|
44.101(a), (b), (c) (part).) |
|
Sec. 304.052. TELEMARKETING CALL TO TELEPHONE NUMBER ON |
|
LIST PROHIBITED. A telemarketer may not make a telemarketing call |
|
to a telephone number published on the Texas no-call list more than |
|
60 days after the date the telephone number appears on the current |
|
list. (Bus. & Com. Code, Sec. 44.102(a).) |
|
Sec. 304.053. EXPIRATION, RENEWAL, AND DELETION OF ENTRY. |
|
(a) An entry on the Texas no-call list expires on the third |
|
anniversary of the date the entry is first published on the list. |
|
An entry may be renewed for successive three-year periods. |
|
(b) The telephone number of a consumer on the Texas no-call |
|
list may be deleted from the list if: |
|
(1) the consumer makes a written request; or |
|
(2) the telephone number of the consumer is changed. |
|
(Bus. & Com. Code, Sec. 44.101(c) (part).) |
|
Sec. 304.054. FEE. (a) Except as provided by Subsection |
|
(b), the commission may charge a person a reasonable amount not to |
|
exceed $3 for a request to place a telephone number on the Texas |
|
no-call list or to renew an entry on the list. |
|
(b) The commission shall provide a method for placement or |
|
renewal of an entry by use of the Internet at no charge. (Bus. & |
|
Com. Code, Sec. 44.101(c) (part).) |
|
Sec. 304.055. PUBLICATION IN TELEPHONE DIRECTORY. A |
|
private for-profit publisher of a residential telephone directory |
|
that is distributed to the public at minimal or no cost shall |
|
include in the directory a prominently displayed Internet website |
|
address, toll-free number, and mailing address established by the |
|
commission through which a person may request placement of a |
|
telephone number on the Texas no-call list or order a copy of the |
|
form to make that request. (Bus. & Com. Code, Sec. 44.101(c) |
|
(part).) |
|
Sec. 304.056. PLACEMENT OF ENTRIES ON NATIONAL DO-NOT-CALL |
|
REGISTRY. The commission or a person the commission designates |
|
may: |
|
(1) provide information on the Texas no-call list to |
|
the administrator of the national do-not-call registry; and |
|
(2) allow the names and telephone numbers on the Texas |
|
no-call list to be placed on the national do-not-call registry. |
|
(Bus.& Com. Code, Sec. 44.101(d).) |
|
Sec. 304.057. GENERAL RULEMAKING AUTHORITY. The commission |
|
may adopt rules to administer this subchapter and Subchapter F, |
|
other than Sections 304.254, 304.255, 304.256, and 304.258, as that |
|
subchapter relates to the Texas no-call list. (Bus. & Com. Code, |
|
Sec. 44.103(a) (part).) |
|
Sec. 304.058. RULES REGARDING ISOLATED CALLS. The |
|
commission shall adopt rules providing that a telemarketing call |
|
made to a telephone number on the Texas no-call list is not a |
|
violation of Section 304.052 if the telemarketing call: |
|
(1) is an isolated occurrence; and |
|
(2) is made by a person who has in place adequate |
|
procedures to comply with this subchapter. (Bus. & Com. Code, Sec. |
|
44.103(a) (part).) |
|
Sec. 304.059. RULES REGARDING PUBLIC NOTICE. The |
|
commission shall adopt rules requiring each local exchange |
|
telephone company and each provider of commercial mobile service, |
|
as described by Section 304.002(10)(C), that provides commercial |
|
mobile service in this state to inform its customers of the |
|
requirements of this subchapter and Sections 304.251, 304.252, |
|
304.253, 304.257, and 304.259, as those sections relate to the |
|
Texas no-call list, through: |
|
(1) annual inserts in billing statements mailed to |
|
customers; |
|
(2) notification: |
|
(A) included in a customer's electronic bill; |
|
(B) printed on a customer's paper bill; |
|
(C) sent free of charge by messaging service to a |
|
customer's mobile telephone number; or |
|
(D) conspicuously published in the consumer |
|
information pages of local telephone directories; or |
|
(3) other appropriate means of notice. (Bus. & Com. |
|
Code, Sec. 44.103(a) (part).) |
|
Sec. 304.060. RULES REGARDING DISSEMINATION OF LIST. The |
|
commission shall adopt rules providing for: |
|
(1) the distribution of the Texas no-call list in |
|
formats, including electronic formats, commonly used by persons |
|
making telemarketing calls; and |
|
(2) a fee for each distribution, not to exceed $75. |
|
(Bus. & Com. Code, Sec. 44.103(a) (part).) |
|
Sec. 304.061. EDUCATIONAL PROGRAMS. In addition to |
|
requiring the notice under Section 304.059, the commission may |
|
conduct educational programs designed to inform members of the |
|
public of their rights and telemarketers of their obligations under |
|
this subchapter and Sections 304.251, 304.252, 304.253, 304.257, |
|
and 304.259, as those sections relate to the Texas no-call list. |
|
(Bus. & Com. Code, Sec. 44.103(b).) |
|
Sec. 304.062. ASSISTANCE OF DEPARTMENT OF INFORMATION |
|
RESOURCES. On request of the commission, the Department of |
|
Information Resources shall assist the commission in administering |
|
this subchapter. (Bus. & Com. Code, Sec. 44.104.) |
|
[Sections 304.063-304.100 reserved for expansion] |
|
SUBCHAPTER C. FACSIMILE TRANSMISSIONS |
|
Sec. 304.101. NOTICE IN FACSIMILE SOLICITATION. In |
|
addition to complying with the technical and procedural standards |
|
established by federal statutes or regulations regarding telephone |
|
facsimile machines and transmissions, a person in this state who |
|
makes or causes to be made a facsimile solicitation shall include in |
|
the transmitted document or on a cover page to the document a |
|
statement, in at least 12-point type, containing: |
|
(1) the complete name of the person making the |
|
facsimile solicitation and street address of the person's place of |
|
business; and |
|
(2) a toll-free or local exchange accessible telephone |
|
number of the person that: |
|
(A) is answered in the order in which calls are |
|
received by an individual capable of responding to inquiries from |
|
recipients of facsimile solicitations at all times after 9 a.m. and |
|
before 5 p.m. on each day except Saturday and Sunday; or |
|
(B) automatically and immediately deletes the |
|
specified telephone number of the recipient. (Bus. & Com. Code, |
|
Sec. 44.151.) |
|
Sec. 304.102. ACKNOWLEDGMENT REQUIRED; TRANSMISSION |
|
PROHIBITED. On receiving oral or written notice from the recipient |
|
of a facsimile solicitation not to send any further facsimile |
|
transmissions to one or more specified telephone numbers, the |
|
person making the solicitation: |
|
(1) shall within 24 hours after receiving the notice |
|
send the recipient of the solicitation written acknowledgment of |
|
the receipt; and |
|
(2) other than a single transmission to comply with |
|
Subdivision (1), may not make or cause to be made a transmission to |
|
a telephone number specified by the recipient. (Bus. & Com. Code, |
|
Sec. 44.152.) |
|
[Sections 304.103-304.150 reserved for expansion] |
|
SUBCHAPTER D. CALLER IDENTIFICATION |
|
Sec. 304.151. INTERFERENCE WITH CALLER IDENTIFICATION |
|
SERVICE OR DEVICE PROHIBITED. (a) In making a telemarketing |
|
call, a telemarketer may not block the identity of the telephone |
|
number from which the call is made to evade a device designed to |
|
identify a telephone caller. |
|
(b) A telemarketer may not: |
|
(1) interfere with or circumvent the capability of a |
|
caller identification service or device to access or provide to the |
|
recipient of the telemarketing call any information regarding the |
|
call that the service or device is capable of providing; or |
|
(2) fail to provide caller identification information |
|
in a manner that is accessible by a caller identification service or |
|
device, if the telemarketer is capable of providing the information |
|
in that manner. (Bus. & Com. Code, Secs. 44.051(a), (b).) |
|
Sec. 304.152. EXCEPTION: USE OF CERTAIN SERVICE OR |
|
EQUIPMENT. For purposes of Section 304.151, use of a |
|
telecommunications service or telecommunications equipment that is |
|
incapable of transmitting caller identification information does |
|
not of itself constitute interference with or circumvention of the |
|
capability of a caller identification service or device to access |
|
or provide the information. (Bus. & Com. Code, Sec. 44.051(c).) |
|
[Sections 304.153-304.200 reserved for expansion] |
|
SUBCHAPTER E. REGULATORY REPORTS |
|
Sec. 304.201. REPORT BY COMMISSION. (a) Before December |
|
31 of each even-numbered year, the commission shall submit a report |
|
to the lieutenant governor and the speaker of the house of |
|
representatives. |
|
(b) The report must contain for the two-year period ending |
|
August 31 of the year of the report: |
|
(1) a statement of: |
|
(A) the number of telephone numbers included on |
|
the Texas no-call list; |
|
(B) the number of no-call lists distributed; and |
|
(C) the amount collected for requests to place |
|
telephone numbers and renew entries on the list and for |
|
distribution of the list; |
|
(2) a list of complaints the commission received |
|
concerning activities regulated by this chapter, itemized by type; |
|
(3) a summary of any enforcement efforts made by the |
|
commission; and |
|
(4) the commission's recommendations for any changes |
|
to this chapter. (Bus. & Com. Code, Sec. 44.201.) |
|
Sec. 304.202. REPORT BY ATTORNEY GENERAL. (a) Before |
|
December 31 of each even-numbered year, the attorney general shall |
|
submit a report to the lieutenant governor and the speaker of the |
|
house of representatives. |
|
(b) The report must contain for the two-year period ending |
|
August 31 of the year of the report: |
|
(1) a list of complaints the attorney general received |
|
concerning activities regulated by this chapter, itemized by type; |
|
(2) a summary of any enforcement efforts made by the |
|
attorney general; and |
|
(3) the attorney general's recommendations for any |
|
changes to this chapter. (Bus. & Com. Code, Sec. 44.202.) |
|
[Sections 304.203-304.250 reserved for expansion] |
|
SUBCHAPTER F. ENFORCEMENT |
|
Sec. 304.251. ENFORCEMENT BY COMMISSION. (a) Except as |
|
provided by Section 304.253, the commission shall receive and |
|
investigate complaints concerning violations of Subchapters B, C, |
|
and D and may impose an administrative penalty not to exceed $1,000 |
|
for each violation. |
|
(b) Notwithstanding Section 304.252, if a complaint alleges |
|
that the person violating Subchapter B, C, or D is a |
|
telecommunications provider, as defined by Section 51.002, |
|
Utilities Code, the commission has exclusive jurisdiction over the |
|
violation alleged in the complaint. (Bus. & Com. Code, Secs. |
|
44.052(a), 44.102(b) (part), 44.153(a) (part).) |
|
Sec. 304.252. ENFORCEMENT BY ATTORNEY GENERAL. (a) Except |
|
as provided by Section 304.253, the attorney general may |
|
investigate violations of Subchapters B, C, and D and file civil |
|
enforcement actions seeking: |
|
(1) a civil penalty in an amount not to exceed $1,000 |
|
for each violation, except as provided by Subsection (b); |
|
(2) injunctive relief; and |
|
(3) attorney's fees. |
|
(b) If the court finds the defendant wilfully or knowingly |
|
violated Subchapter B, C, or D, the court may increase the amount of |
|
the civil penalty to an amount not to exceed $3,000 for each |
|
violation. |
|
(c) A violation of Subchapter B, C, or D is subject to |
|
enforcement action by the attorney general's consumer protection |
|
division under Sections 17.47, 17.58, 17.60, and 17.61. (Bus. & |
|
Com. Code, Secs. 44.052(b), 44.102(c), 44.153(b).) |
|
Sec. 304.253. ENFORCEMENT BY LICENSING AGENCY. (a) A state |
|
agency that issues a license to a state licensee shall: |
|
(1) receive and investigate complaints concerning |
|
violations of Subchapters B and C by the state licensee; and |
|
(2) may receive and investigate complaints concerning |
|
violations of Subchapter D by the state licensee. |
|
(b) The state agency may: |
|
(1) impose an administrative penalty not to exceed |
|
$1,000 for each violation; |
|
(2) order restitution for any monetary damages of the |
|
complainant in the case of a violation of Subchapter B or D; and |
|
(3) suspend or revoke the state licensee's license, if |
|
the agency finds that the licensee wilfully or knowingly violated |
|
Subchapter B, C, or D. (Bus. & Com. Code, Secs. 44.052(c), |
|
44.102(d), 44.153(c).) |
|
Sec. 304.254. DETERMINATION OF AMOUNT OF ADMINISTRATIVE |
|
PENALTY. The amount of an administrative penalty imposed under |
|
this subchapter must be based on: |
|
(1) the seriousness of the violation, including the |
|
nature, circumstances, extent, and gravity of the violation; |
|
(2) any history of previous violations; |
|
(3) the amount necessary to deter a future violation; |
|
(4) any effort to correct the violation; and |
|
(5) any other matter that justice may require. (Bus. & |
|
Com. Code, Sec. 44.251.) |
|
Sec. 304.255. STAY OF ADMINISTRATIVE PENALTY. (a) The |
|
enforcement of an administrative penalty imposed under this |
|
subchapter may be stayed during the time the order is under judicial |
|
review if the person on whom the penalty is imposed pays the penalty |
|
to the clerk of the court or files a supersedeas bond with the court |
|
in the amount of the penalty. |
|
(b) A person who cannot afford to pay the penalty or file the |
|
bond may stay the enforcement by filing an affidavit in the manner |
|
required by the Texas Rules of Civil Procedure for a party who |
|
cannot afford to file security for costs, subject to the right to |
|
contest the affidavit as provided by those rules. (Bus. & Com. |
|
Code, Sec. 44.252.) |
|
Sec. 304.256. CONTESTED CASE. A proceeding to impose an |
|
administrative penalty under this subchapter is a contested case |
|
under Chapter 2001, Government Code. (Bus. & Com. Code, Sec. |
|
44.253.) |
|
Sec. 304.257. PRIVATE ACTION: TELEMARKETING CALLS. (a) A |
|
consumer on the Texas no-call list is presumed to be adversely |
|
affected by a telemarketer who calls the consumer more than once. |
|
The consumer may bring a civil action based on the second or a |
|
subsequent violation of Subchapter B if: |
|
(1) the consumer has notified the telemarketer of the |
|
alleged violation; |
|
(2) not later than the 30th day after the date of the |
|
call, the consumer files with the commission, the attorney general, |
|
or a state agency that licenses the person making the call a |
|
verified complaint stating the relevant facts surrounding the |
|
violation; and |
|
(3) the commission, attorney general, or state agency |
|
receiving the complaint does not initiate an administrative action |
|
or a civil enforcement action, as appropriate, against the |
|
telemarketer named in the complaint before the 121st day after the |
|
date the complaint is filed. |
|
(b) If the consumer brings an action based on a violation of |
|
Section 304.052 and the court finds that the defendant wilfully or |
|
knowingly violated that section, the court may award damages in an |
|
amount not to exceed $500 for each violation. |
|
(c) Section 304.251(b) does not affect the right of a |
|
consumer to bring an action under Subsection (a). (Bus. & Com. |
|
Code, Secs. 44.102(b) (part), (f), (g).) |
|
Sec. 304.258. PRIVATE ACTION: FACSIMILE TRANSMISSION. (a) |
|
A person may bring a civil action based on a violation of Subchapter |
|
C: |
|
(1) for damages in an amount equal to the greater of: |
|
(A) the person's actual monetary loss from the |
|
violation; or |
|
(B) $500 for each violation; |
|
(2) to enjoin the violation; or |
|
(3) for both damages and an injunction. |
|
(b) If the court finds that the defendant wilfully or |
|
knowingly violated Subchapter C, the court may increase the amount |
|
of the damages awarded to an amount equal to not more than three |
|
times the amount available under Subsection (a)(1). |
|
(c) Section 304.251(b) does not affect the right of a |
|
consumer to bring an action under Subsection (a). (Bus. & Com. |
|
Code, Secs. 44.153(a) (part), (e), (f).) |
|
Sec. 304.259. VENUE. (a) Venue for an action based on a |
|
violation of Subchapter B or C is in: |
|
(1) the county in which the telemarketing call was |
|
made or received; or |
|
(2) Travis County, if the action is brought by the |
|
commission, the attorney general, or a state agency. |
|
(b) Venue for an action under Subchapter D is in Travis |
|
County. (Bus. & Com. Code, Secs. 44.052(d), 44.102(e), 44.153(d).) |
|
CHAPTER 305. TELEPHONIC COMMUNICATIONS MADE FOR |
|
PURPOSE OF SOLICITATION |
|
SUBCHAPTER A. PROHIBITED COMMUNICATIONS MADE FOR |
|
PURPOSE OF SOLICITATION |
|
Sec. 305.001. PROHIBITED TELEPHONE CALLS |
|
Sec. 305.002. PROHIBITED FACSIMILE TRANSMISSIONS: |
|
CHARGE TO RECIPIENT |
|
Sec. 305.003. PROHIBITED FACSIMILE TRANSMISSIONS: |
|
HOURS OF TRANSMISSION |
|
[Sections 305.004-305.050 reserved for expansion] |
|
SUBCHAPTER B. ENFORCEMENT |
|
Sec. 305.051. INVESTIGATION |
|
Sec. 305.052. CRIMINAL PENALTY |
|
Sec. 305.053. CIVIL ACTION |
|
CHAPTER 305. TELEPHONIC COMMUNICATIONS MADE FOR |
|
PURPOSE OF SOLICITATION |
|
SUBCHAPTER A. PROHIBITED COMMUNICATIONS MADE FOR |
|
PURPOSE OF SOLICITATION |
|
Sec. 305.001. PROHIBITED TELEPHONE CALLS. A person may not |
|
make a telephone call or use an automatic dial announcing device to |
|
make a telephone call for the purpose of making a sale if: |
|
(1) the person making the call or using the device |
|
knows or should have known that the called number is a mobile |
|
telephone for which the called person will be charged for that |
|
specific call; and |
|
(2) the called person has not consented to the making |
|
of such a call to the person calling or using the device or to the |
|
business enterprise for which the person is calling or using the |
|
device. (Bus. & Com. Code, Sec. 35.47(a).) |
|
Sec. 305.002. PROHIBITED FACSIMILE TRANSMISSIONS: CHARGE |
|
TO RECIPIENT. A person may not make or cause to be made a |
|
transmission for the purpose of a solicitation or sale to a |
|
facsimile recording device or other telecopier for which the person |
|
receiving the transmission will be charged for the transmission, |
|
unless the person receiving the transmission has, before the |
|
transmission, consented to the making of the transmission. (Bus. & |
|
Com. Code, Sec. 35.47(b).) |
|
Sec. 305.003. PROHIBITED FACSIMILE TRANSMISSIONS: HOURS OF |
|
TRANSMISSION. A person may not make or cause to be made a |
|
transmission for the purpose of a solicitation or sale to a |
|
facsimile recording device after 11 p.m. and before 7 a.m. (Bus. & |
|
Com. Code, Sec. 35.47(c).) |
|
[Sections 305.004-305.050 reserved for expansion] |
|
SUBCHAPTER B. ENFORCEMENT |
|
Sec. 305.051. INVESTIGATION. (a) On complaint of a called |
|
person that a person has violated Section 305.001, 305.002, or |
|
305.003, the county or district attorney of the county in which the |
|
called person resides shall investigate the complaint and file |
|
charges if appropriate. |
|
(b) A telephone company serving the caller or called person |
|
is not responsible for investigating a complaint or keeping records |
|
relating to this chapter. (Bus. & Com. Code, Sec. 35.47(d).) |
|
Sec. 305.052. CRIMINAL PENALTY. (a) A person who violates |
|
Section 305.001, 305.002, or 305.003 commits an offense. |
|
(b) An offense under this section is a Class C misdemeanor. |
|
(Bus. & Com. Code, Sec. 35.47(e).) |
|
Sec. 305.053. CIVIL ACTION. (a) A person who receives a |
|
communication that violates 47 U.S.C. Section 227, a regulation |
|
adopted under that provision, or Subchapter A may bring an action in |
|
this state against the person who originates the communication for: |
|
(1) an injunction; |
|
(2) damages in the amount provided by this section; or |
|
(3) both an injunction and damages. |
|
(b) A plaintiff who prevails in an action for damages under |
|
this section is entitled to the greater of: |
|
(1) $500 for each violation; or |
|
(2) the plaintiff's actual damages. |
|
(c) If the court finds that the defendant committed the |
|
violation knowingly or intentionally, the court may increase the |
|
amount of the award of damages under Subsection (b) to not more than |
|
the greater of: |
|
(1) $1,500 for each violation; or |
|
(2) three times the plaintiff's actual damages. (Bus. & |
|
Com. Code, Sec. 35.47(f).) |
|
[Chapters 306-320 reserved for expansion] |
|
SUBTITLE B. ELECTRONIC COMMUNICATIONS |
|