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SECTION 1. Section 17.46,
Business & Commerce Code, is amended by amending Subsection (b) and
adding Subsection (b-1) to read as follows:
(b) Except as provided in
Subsection (d) of this section, the term "false, misleading, or
deceptive acts or practices" includes, but is not limited to, the
following acts:
(1) passing off goods or
services as those of another;
(2) causing confusion or
misunderstanding as to the source, sponsorship, approval, or certification
of goods or services;
(3) causing confusion or
misunderstanding as to affiliation, connection, or association with, or
certification by, another;
(4) using deceptive
representations or designations of geographic origin in connection with
goods or services;
(5) representing that goods
or services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has a sponsorship,
approval, status, affiliation, or connection which he does not;
(6) representing that goods
are original or new if they are deteriorated, reconditioned, reclaimed,
used, or secondhand;
(7) representing that goods
or services are of a particular standard, quality, or grade, or that goods
are of a particular style or model, if they are of another;
(8) disparaging the goods,
services, or business of another by false or misleading representation of
facts;
(9) advertising goods or
services with intent not to sell them as advertised;
(10) advertising goods or
services with intent not to supply a reasonable expectable public
demand, unless the advertisements disclosed a limitation of quantity;
(11) making false or
misleading statements of fact concerning the reasons for, existence
of, or amount of price reductions;
(12) representing that an
agreement confers or involves rights, remedies, or obligations which it
does not have or involve, or which are prohibited by law;
(13) knowingly making false or
misleading statements of fact concerning the need for parts, replacement,
or repair service;
(14) misrepresenting the
authority of a salesman, representative or agent to negotiate the final
terms of a consumer transaction;
(15) basing a charge for the
repair of any item in whole or in part on a guaranty or warranty instead of
on the value of the actual repairs made or work to be performed on the
item without stating separately the charges for the work and the charge for
the warranty or guaranty, if any;
(16) disconnecting, turning
back, or resetting the odometer of any motor vehicle so as to reduce
the number of miles indicated on the odometer gauge;
(17) advertising of any sale
by fraudulently representing that a person is going out of business;
(18) advertising, selling,
or distributing a card which purports to be a prescription drug identification
card issued under Section 4151.152, Insurance Code, in accordance with
rules adopted by the commissioner of insurance, which offers a discount on
the purchase of health care goods or services from a third party
provider, and which is not evidence of insurance coverage, unless:
(A) the discount is
authorized under an agreement between the seller of the card and the provider
of those goods and services or the discount or card is offered to
members of the seller;
(B) the seller does not
represent that the card provides insurance coverage of any kind; and
(C) the discount is not
false, misleading, or deceptive;
(19) using or employing a
chain referral sales plan in connection with the sale or offer to sell of
goods, merchandise, or anything of value, which uses the sales technique, plan,
arrangement, or agreement in which the buyer or prospective buyer is
offered the opportunity to purchase merchandise or goods and in
connection with the purchase receives the seller's promise or representation
that the buyer shall have the right to receive compensation or
consideration in any form for furnishing to the seller the names of other
prospective buyers if receipt of the compensation or consideration is contingent
upon the occurrence of an event subsequent to the time the buyer purchases
the merchandise or goods;
(20) representing that a guaranty
[guarantee] or warranty confers or involves rights or remedies which
it does not have or involve, provided, however, that nothing in this
subchapter shall be construed to expand the implied warranty of merchantability
as defined in Sections 2.314 through 2.318 and Sections 2A.212 through
2A.216 to involve obligations in excess of those which are appropriate
to the goods;
(21) promoting a pyramid
promotional scheme, as defined by Section 17.461;
(22) representing that work
or services have been performed on, or parts replaced in, goods when
the work or services were not performed or the parts replaced;
(23) filing suit founded upon
a written contractual obligation of and signed by the defendant to pay
money arising out of or based on a consumer transaction for goods,
services, loans, or extensions of credit intended primarily for personal,
family, household, or agricultural use in any county other than in the
county in which the defendant resides at the time of the commencement of the
action or in the county in which the defendant in fact signed the contract;
provided, however, that a violation of this subsection shall not occur where
it is shown by the person filing such suit he neither knew or had
reason to know that the county in which such suit was filed was
neither the county in which the defendant resides at the commencement of the
suit nor the county in which the defendant in fact signed the contract;
(24) failing to disclose
information concerning goods or services which was known at the time of the
transaction if such failure to disclose such information was intended to
induce the consumer into a transaction into which the consumer would not
have entered had the information been disclosed;
(25) using the term
"corporation," "incorporated," or an abbreviation of
either of those terms in the name of a business entity that is not
incorporated under the laws of this state or another jurisdiction;
(26) selling, offering to
sell, or illegally promoting an annuity contract under Chapter 22, Acts of
the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-5, Vernon's
Texas Civil Statutes), with the intent that the annuity contract will be
the subject of a salary reduction agreement, as defined by that Act, if
the annuity contract is not an eligible qualified investment under that
Act or is not registered with the Teacher Retirement System of Texas as
required by Section 8A of that Act; [or]
(27) taking advantage of a
disaster declared by the governor under Chapter 418, Government Code,
by:
(A) selling or leasing
fuel, food, medicine, or another necessity at an exorbitant or excessive
price; or
(B) demanding an exorbitant
or excessive price in connection with the sale or lease of fuel, food,
medicine, or another necessity; or
(28) mailing an unrequested solicitation in
connection with a good or service that:
(A) simulates or resembles a check or other
negotiable instrument or invoice;
(B) falsely suggests that
the solicitation is sent on behalf of a governmental entity; or
(C) resembles a
governmental notice or form that states or suggests a criminal penalty may
be imposed if the recipient does not remit payment for the good or service.
(b-1) It is an affirmative defense to an action brought for a
violation of Subsection (b)(28) that the following notice is printed in at
least 14-point boldfaced type at the top and bottom of each page of the
mailed document:
"THIS IS AN ADVERTISEMENT. You are under no obligation to make
a purchase, remit a payment, or take any other action."
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SECTION 1. Section 17.46(b),
Business & Commerce Code, is amended to read as follows:
(b) Except as provided in
Subsection (d) of this section, the term "false, misleading, or
deceptive acts or practices" includes, but is not limited to, the
following acts:
(1) passing off goods or
services as those of another;
(2) causing confusion or
misunderstanding as to the source, sponsorship, approval, or certification
of goods or services;
(3) causing confusion or
misunderstanding as to affiliation, connection, or association with, or
certification by, another;
(4) using deceptive
representations or designations of geographic origin in connection with
goods or services;
(5) representing that goods
or services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has a
sponsorship, approval, status, affiliation, or connection which he does
not;
(6) representing that goods
are original or new if they are deteriorated, reconditioned, reclaimed,
used, or secondhand;
(7) representing that goods
or services are of a particular standard, quality, or grade, or that goods
are of a particular style or model, if they are of another;
(8) disparaging the goods,
services, or business of another by false or misleading representation of
facts;
(9) advertising goods or
services with intent not to sell them as advertised;
(10) advertising goods or
services with intent not to supply a reasonable expectable public demand,
unless the advertisements disclosed a limitation of quantity;
(11) making false or
misleading statements of fact concerning the reasons for, existence of, or
amount of price reductions;
(12) representing that an
agreement confers or involves rights, remedies, or obligations which it
does not have or involve, or which are prohibited by law;
(13) knowingly making false
or misleading statements of fact concerning the need for parts,
replacement, or repair service;
(14) misrepresenting the
authority of a salesman, representative or agent to negotiate the final
terms of a consumer transaction;
(15) basing a charge for the
repair of any item in whole or in part on a guaranty or warranty instead of
on the value of the actual repairs made or work to be performed on the item
without stating separately the charges for the work and the charge for the
warranty or guaranty, if any;
(16) disconnecting, turning
back, or resetting the odometer of any motor vehicle so as to reduce the
number of miles indicated on the odometer gauge;
(17) advertising of any sale
by fraudulently representing that a person is going out of business;
(18) advertising, selling, or
distributing a card which purports to be a prescription drug identification
card issued under Section 4151.152, Insurance Code, in accordance with
rules adopted by the commissioner of insurance, which offers a discount on
the purchase of health care goods or services from a third party provider,
and which is not evidence of insurance coverage, unless:
(A) the discount is
authorized under an agreement between the seller of the card and the
provider of those goods and services or the discount or card is offered to
members of the seller;
(B) the seller does not
represent that the card provides insurance coverage of any kind; and
(C) the discount is not
false, misleading, or deceptive;
(19) using or employing a
chain referral sales plan in connection with the sale or offer to sell of
goods, merchandise, or anything of value, which uses the sales technique,
plan, arrangement, or agreement in which the buyer or prospective buyer is
offered the opportunity to purchase merchandise or goods and in connection
with the purchase receives the seller's promise or representation that the
buyer shall have the right to receive compensation or consideration in any
form for furnishing to the seller the names of other prospective buyers if
receipt of the compensation or consideration is contingent upon the
occurrence of an event subsequent to the time the buyer purchases the
merchandise or goods;
(20) representing that a guaranty
[guarantee] or warranty confers or involves rights or remedies which
it does not have or involve, provided, however, that nothing in this
subchapter shall be construed to expand the implied warranty of merchantability
as defined in Sections 2.314 through 2.318 and Sections 2A.212 through
2A.216 to involve obligations in excess of those which are appropriate to
the goods;
(21) promoting a pyramid
promotional scheme, as defined by Section 17.461;
(22) representing that work
or services have been performed on, or parts replaced in, goods when the
work or services were not performed or the parts replaced;
(23) filing suit founded upon
a written contractual obligation of and signed by the defendant to pay
money arising out of or based on a consumer transaction for goods,
services, loans, or extensions of credit intended primarily for personal,
family, household, or agricultural use in any county other than in the
county in which the defendant resides at the time of the commencement of
the action or in the county in which the defendant in fact signed the
contract; provided, however, that a violation of this subsection shall not
occur where it is shown by the person filing such suit he neither knew or
had reason to know that the county in which such suit was filed was neither
the county in which the defendant resides at the commencement of the suit
nor the county in which the defendant in fact signed the contract;
(24) failing to disclose
information concerning goods or services which was known at the time of the
transaction if such failure to disclose such information was intended to
induce the consumer into a transaction into which the consumer would not
have entered had the information been disclosed;
(25) using the term
"corporation," "incorporated," or an abbreviation of
either of those terms in the name of a business entity that is not
incorporated under the laws of this state or another jurisdiction;
(26) selling, offering to
sell, or illegally promoting an annuity contract under Chapter 22, Acts of
the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-5, Vernon's
Texas Civil Statutes), with the intent that the annuity contract will be
the subject of a salary reduction agreement, as defined by that Act, if the
annuity contract is not an eligible qualified investment under that Act or
is not registered with the Teacher Retirement System of Texas as required
by Section 8A of that Act; [or]
(27) taking advantage of a
disaster declared by the governor under Chapter 418, Government Code, by:
(A) selling or leasing fuel,
food, medicine, or another necessity at an exorbitant or excessive price;
or
(B) demanding an exorbitant
or excessive price in connection with the sale or lease of fuel, food,
medicine, or another necessity;
(28) delivering or distributing a solicitation
in connection with a good or service that:
(A) represents that the
solicitation is sent on behalf of a governmental entity when it is not; or
(B) resembles a
governmental notice or form that represents or implies that a criminal
penalty may be imposed if the recipient does not remit payment for the good
or service; or
(29) delivering or distributing a solicitation in connection with a
good or service that resembles a check or other negotiable instrument or
invoice, unless the portion of the solicitation that resembles a check or
other negotiable instrument or invoice includes the following notice,
clearly and conspicuously printed in at least 18-point type:
"SPECIMEN-NON-NEGOTIABLE".
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