85R2641 GRM-F
 
  By: Wu H.B. No. 1435
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the commencement and prosecution of certain actions by
  county and district attorneys under the Deceptive Trade
  Practices-Consumer Protection Act.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         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.
         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. 
         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.
         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.
         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)].
         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].
         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.
         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).
         SECTION 9.  Section 17.48(c), Business & Commerce Code, is
  repealed.
         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.
         SECTION 11.  This Act takes effect September 1, 2017.