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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 17.42(e),
Business & Commerce Code, is amended to read as follows:
(e) The fact that a consumer
has signed a waiver under this section is not a defense to an action
brought by a prosecuting [the] attorney [general]
under Section 17.47.
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No
equivalent provision.
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SECTION 2. Section 17.45,
Business & Commerce Code, is amended by adding Subdivision (14) to read
as follows:
(14) "Prosecuting
attorney" means:
(A) the consumer
protection division of the attorney general's office;
(B) a district attorney;
or
(C) a county attorney.
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No
equivalent provision.
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SECTION 3. Section 17.46(a),
Business & Commerce Code, is amended to read as follows:
(a) False, misleading, or
deceptive acts or practices in the conduct of any trade or commerce are
hereby declared unlawful and are subject to action by the consumer
protection division or other prosecuting attorney, as applicable,
under Sections 17.47, 17.58, 17.60, and 17.61 of this code.
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No
equivalent provision.
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SECTION 4. Sections
17.47(a), (c), (d), (e), and (h), Business & Commerce Code, are amended
to read as follows:
(a) Subject to Section
17.48, whenever a prosecuting attorney [Whenever the consumer
protection division] has reason to believe that any person is engaging
in, has engaged in, or is about to engage in any act or practice declared
to be unlawful by this subchapter, and that proceedings would be in the
public interest, the prosecuting attorney [division] may
bring an action in the name of the state against the person to restrain by
temporary restraining order, temporary injunction, or permanent injunction
the use of such method, act, or practice.
Nothing herein shall require
the prosecuting attorney [consumer protection division] to
notify such person that court action is or may be under consideration.
Provided, however, the prosecuting attorney [consumer protection
division] shall, at least seven days prior to instituting such court
action, contact such person to inform him in general of the alleged
unlawful conduct. Cessation of unlawful conduct after such prior contact
shall not render such court action moot under any circumstances, and such
injunctive relief shall lie even if such person has ceased such unlawful
conduct after such prior contact. Such prior contact shall not be required
if, in the opinion of the prosecuting attorney [consumer
protection division], there is good cause to believe that such person
would evade service of process if prior contact were made or that such
person would destroy relevant records if prior contact were made, or that
such an emergency exists that immediate and irreparable injury, loss, or
damage would occur as a result of such delay in obtaining a temporary
restraining order.
(c) In addition to the
request for a temporary restraining order, or permanent injunction in a
proceeding brought under Subsection (a) of this section, a prosecuting
attorney [the consumer protection division] may request, and the
trier of fact may award, a civil penalty to be paid to the state or county,
as appropriate, in an amount of:
(1) not more than $20,000
per violation; and
(2) if the act or practice
that is the subject of the proceeding was calculated to acquire or deprive
money or other property from a consumer who was 65 years of age or older
when the act or practice occurred, an additional amount of not more than
$250,000.
(d) The court may make such
additional orders or judgments as are necessary to compensate identifiable
persons for actual damages or to restore money or property, real or
personal, which may have been acquired by means of any unlawful act or
practice. Damages may not include any damages incurred beyond a point two
years prior to the institution of the action by a prosecuting attorney
[the consumer protection division]. Orders of the court may also
include the appointment of a receiver or a sequestration of assets if a
person who has been ordered by a court to make restitution under this
section has failed to do so within three months after the order to make
restitution has become final and nonappealable.
(e) Any person who violates
the terms of an injunction under this section shall forfeit and pay to the
state or county, as appropriate, a civil penalty of not more than
$10,000 per violation, not to exceed $50,000. In determining whether or
not an injunction has been violated the court shall take into consideration
the maintenance of procedures reasonably adapted to insure compliance with
the injunction. For the purposes of this section, the district court
issuing the injunction shall retain jurisdiction, and the cause shall be
continued, and in these cases, the prosecuting [consumer
protection division, or the district or county] attorney [with prior
notice to the consumer protection division, acting in the name of the
state,] may petition for recovery of civil penalties under this
section.
(h) In bringing or
participating in an action under this subchapter, the prosecuting
attorney [consumer protection division] acts in the name of the
state and does not establish an attorney-client relationship with another
person, including a person to whom the prosecuting attorney [consumer
protection division] requests that the court award relief.
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No
equivalent provision.
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SECTION 5. Sections 17.48(b)
and (d), Business & Commerce Code, are amended to read as follows:
(b) A district or county
attorney[, with prior written notice to the consumer protection
division,] may institute and prosecute actions seeking injunctive
relief and civil penalties under this subchapter, after complying
with the prior contact provisions of Subsection (a) of Section 17.47 of
this subchapter. On request, the consumer protection division shall assist
the district or county attorney in any action taken under this subchapter.
If an action is prosecuted by a district or county attorney alone, he shall
make a full report to the consumer protection division including the final
disposition of the matter. No district or county attorney may bring an
action under this section against any licensed insurer or licensed
insurance agent transacting business under the authority and jurisdiction
of the State Board of Insurance unless first requested in writing to do so
by the State Board of Insurance, the commissioner of insurance, or the
consumer protection division pursuant to a request by the State Board of
Insurance or commissioner of insurance.
(d) A district or county
attorney is not required to obtain the permission of the consumer
protection division to prosecute an action under this subchapter [for a
violation of Section 17.46(b)(28), if the district or county attorney
provides prior written notice to the division as required by Subsection (b)].
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No
equivalent provision.
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SECTION 6. The heading to
Section 304.252, Business & Commerce Code, is amended to read as
follows:
Sec. 304.252. ENFORCEMENT BY
CERTAIN PROSECUTING ATTORNEYS [ATTORNEY GENERAL].
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No
equivalent provision.
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SECTION 7. Section
304.252(c), Business & Commerce Code, is amended to read as follows:
(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.
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No
equivalent provision.
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SECTION 8. Section 306.053,
Business & Commerce Code, is amended to read as follows:
Sec. 306.053. DECEPTIVE
TRADE PRACTICE; ENFORCEMENT. A violation of this chapter is a false,
misleading, or deceptive act or practice under Section 17.46 and is subject
to action [only by the consumer protection division of the attorney
general's office] as provided by Section 17.46(a).
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No
equivalent provision.
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SECTION 9. Section 17.48(c),
Business & Commerce Code, is repealed.
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No
equivalent provision.
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SECTION 10. The changes in
law made by this Act apply only to a cause of action that accrues on or after
the effective date of this Act. A cause of action that accrued before the
effective date of this Act is governed by the law in effect immediately
before the effective date of this Act, and that law is continued in effect
for that purpose.
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No
equivalent provision.
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No
equivalent provision.
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SECTION 1. Subchapter E,
Chapter 17, Business & Commerce Code, is amended by adding Section
17.463 to read as follows:
Sec. 17.463. PRODUCTION,
SALE, DISTRIBUTION, OR PROMOTION OF CERTAIN SYNTHETIC SUBSTANCES. (a)
This section applies only to an act described by Section 17.46(b)(31).
(b) Subject to Subsection
(e) and except as otherwise provided by this section, an act to which this
section applies is subject to action by a district or county attorney under
Sections 17.47, 17.58, 17.60, and 17.61 to the same extent as the act is
subject to action by the consumer protection division under those sections.
(c) If a district or
county attorney, under the authority of this section, accepts assurance of
voluntary compliance under Section 17.58, the district or county attorney
must file the assurance of voluntary compliance in the district court in
the county in which the alleged violator resides or does business.
(d) If a district or
county attorney, under the authority of this section, executes and serves a
civil investigative demand and files a petition described by Section
17.61(g), the petition must be filed in the district court in the county
where the parties reside.
(e) A district or county
attorney may act under this section so long as the consumer protection
division does not intend to act with respect to that matter.
(f) Notwithstanding any
other law, in an action brought by a district or county attorney under this
section, all settlements or penalties collected by the district or county
attorney shall be divided between the state and the county in which the
attorney brought suit, with:
(1) 50 percent of the
amount collected paid to the comptroller for deposit to the credit of the
basic civil legal services account established by Section 51.943,
Government Code; and
(2) 50 percent of the
amount collected paid to the county.
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No
equivalent provision.
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SECTION 2. Subchapter E,
Chapter 17, Business & Commerce Code, is amended by adding Section
17.463 to read as follows:
Sec. 17.463. PRODUCTION,
SALE, DISTRIBUTION, OR PROMOTION OF CERTAIN SYNTHETIC SUBSTANCES. (a)
This section applies only to an act described by Section 17.46(b)(30).
(b) Subject to Subsection
(e) and except as otherwise provided by this section, an act to which this
section applies is subject to action by a district or county attorney under
Sections 17.47, 17.58, 17.60, and 17.61 to the same extent as the act is
subject to action by the consumer protection division under those sections.
(c) If a district or
county attorney, under the authority of this section, accepts assurance of
voluntary compliance under Section 17.58, the district or county attorney
must file the assurance of voluntary compliance in the district court in
the county in which the alleged violator resides or does business.
(d) If a district or
county attorney, under the authority of this section, executes and serves a
civil investigative demand and files a petition described by Section
17.61(g), the petition must be filed in the district court in the county
where the parties reside.
(e) A district or county
attorney may act under this section so long as the consumer protection
division does not intend to act with respect to that matter.
(f) Notwithstanding any
other law, in an action brought by a district or county attorney under this
section, all settlements or penalties collected by the district or county
attorney shall be divided between the state and the county in which the
attorney brought suit, with:
(1) 50 percent of the
amount collected paid to the comptroller for deposit to the credit of the
basic civil legal services account established by Section 51.943,
Government Code; and
(2) 50 percent of the
amount collected paid to the county.
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No
equivalent provision.
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SECTION 3. This Act applies
only to conduct that occurs on or after the effective date of this Act.
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No
equivalent provision.
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SECTION 4. (a) Section 1 of
this Act takes effect only if the Act of the 85th Legislature, Regular
Session, 2017, relating to nonsubstantive additions to and corrections in
enacted codes becomes law.
(b) Section 2 of this Act
takes effect only if the Act of the 85th Legislature, Regular Session,
2017, relating to nonsubstantive additions to and corrections in enacted codes
does not become law.
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SECTION 11. This Act takes
effect September 1, 2017.
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SECTION 5. Same as introduced
version.
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