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A BILL TO BE ENTITLED
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AN ACT
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relating to the diagnosis, maintenance, and repair of |
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electronics-enabled heavy equipment. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is |
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amended by adding Chapter 121 to read as follows: |
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CHAPTER 121. DIAGNOSIS, MAINTENANCE, AND REPAIR OF |
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ELECTRONICS-ENABLED HEAVY EQUIPMENT |
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Sec. 121.001. DEFINITIONS. In this chapter: |
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(1) "Authorized repair provider" means an individual |
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or business entity that is not an affiliate of but has an |
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arrangement with an original equipment manufacturer: |
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(A) under which the original equipment |
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manufacturer grants to the individual or business entity a license |
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to use a trade name, service mark, or other proprietary identifier |
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for the purpose of offering diagnosis, maintenance, or repair |
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services for electronics-enabled heavy equipment under the name of |
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the original equipment manufacturer; or |
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(B) to offer diagnosis, maintenance, or repair |
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for electronics-enabled heavy equipment on behalf of the original |
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equipment manufacturer. |
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(2) "Documentation" means any manual, diagram, |
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reporting output, service code description, schematic, or other |
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guidance or information used in the diagnosis, maintenance, or |
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repair of electronics-enabled heavy equipment. |
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(3) "Electronics-enabled heavy equipment" means heavy |
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equipment that, to function, depends wholly or partly on digital |
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electronics embedded in or attached to the equipment. |
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(4) "Embedded software" means any programmable |
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instructions provided on firmware that is delivered with |
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electronics-enabled heavy equipment or with a replacement part for |
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that equipment for the purpose of equipment operation, including |
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all relevant patches and fixes made by the original equipment |
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manufacturer of the equipment or replacement part for that purpose. |
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(5) "Fair and reasonable terms" means: |
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(A) making a part or tool available under costs |
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and terms equivalent to the most favorable cost and terms offered |
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to an original equipment manufacturer's authorized repair provider |
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for obtaining an equivalent part or tool, accounting for any |
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discounts, rebates, or other incentive program offered to the |
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authorized repair provider; and |
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(B) making documentation available at no cost, |
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except that an original equipment manufacturer may charge the |
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reasonable actual cost of preparing and sending a copy of the |
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documentation when the documentation is requested in physical |
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printed form. |
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(6) "Firmware" means a software program or set of |
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instructions programmed on electronics-enabled heavy equipment or |
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on a replacement part for the equipment that allows the equipment or |
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replacement part to communicate with itself or other computer |
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hardware. |
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(7) "Heavy equipment" has the meaning assigned by |
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Section 23.1241, Tax Code. |
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(8) "Independent repair provider" means an individual |
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or business entity operating in this state who does not, on the |
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individual's or entity's own behalf or through an affiliate, have an |
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arrangement with an original equipment manufacturer as described by |
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Subdivision (1) and who is engaged in diagnosis, maintenance, or |
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repair of electronics-enabled heavy equipment. |
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(9) "Original equipment manufacturer" means a |
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business entity that sells, leases, or supplies new |
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electronics-enabled heavy equipment. |
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(10) "Owner" means an individual or business entity |
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who owns or leases electronics-enabled heavy equipment purchased or |
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used in this state. |
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(11) "Replacement part" means a new or used |
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replacement part made available by the original equipment |
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manufacturer for the purpose of maintenance or repair of |
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electronics-enabled heavy equipment manufactured, sold, or |
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supplied by the original equipment manufacturer. |
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(12) "Tool" means any software program, including |
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embedded software, hardware implement, or other apparatus used for |
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diagnosis, maintenance, or repair of electronics-enabled heavy |
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equipment, including software or another mechanism that: |
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(A) provisions, programs, or pairs a new part; |
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(B) calibrates functionality; or |
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(C) performs any other function required to |
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restore the equipment to fully functional condition. |
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(13) "Trade secret" has the meaning assigned by 18 |
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U.S.C. Section 1839, as that section existed on January 1, 2023. |
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Sec. 121.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT |
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MANUFACTURERS. (a) For electronics-enabled heavy equipment, |
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including parts for that equipment, sold or used in this state, the |
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original equipment manufacturer of the equipment or part shall make |
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available on fair and reasonable terms to any independent repair |
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provider or to an owner of electronics-enabled heavy equipment |
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manufactured by or on behalf of, sold by, or supplied by the |
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original equipment manufacturer: |
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(1) documentation, replacement parts, and tools; and |
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(2) for equipment containing an electronic security |
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lock or other security-related function, any special |
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documentation, replacement part, or tool needed to disable and |
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reset the lock or function when disabled in the course of diagnosis, |
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maintenance, or repair of the equipment. |
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(b) An original equipment manufacturer may make available |
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the documentation, replacement part, or tool under Subsection |
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(a)(2) through an appropriate secure release system. |
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Sec. 121.003. CONSTRUCTION OF CHAPTER. Nothing in this |
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chapter may be construed to: |
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(1) require an original equipment manufacturer to |
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divulge a trade secret to an owner or an independent service |
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provider except as necessary to provide documentation, replacement |
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parts, and tools on fair and reasonable terms as provided by this |
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chapter; |
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(2) alter the terms of an arrangement described by |
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Section 121.001(1) between an authorized repair provider and |
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original equipment manufacturer, except that any provision in an |
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agreement between an authorized repair provider and original |
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equipment manufacturer that purports to waive, avoid, restrict, or |
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limit the original equipment manufacturer's obligation to comply |
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with this chapter is void and unenforceable; |
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(3) require an authorized repair provider to make |
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documentation, parts, or tools available on fair and reasonable |
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terms; or |
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(4) allow: |
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(A) modifications to electronics-enabled heavy |
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equipment that deactivate safety notification systems; or |
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(B) noncompliance with applicable law, including |
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federal emissions laws, copyright laws, and occupational safety |
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laws prohibiting certain modifications to heavy equipment. |
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Sec. 121.004. DECEPTIVE TRADE PRACTICE. A violation of |
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this chapter is a deceptive trade practice in addition to the |
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practices described by Subchapter E, Chapter 17, and is actionable |
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under that subchapter. |
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SECTION 2. To the extent of a conflict between Chapter 121, |
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Business & Commerce Code, as added by this Act, and a provision of |
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an agreement between an authorized repair provider and original |
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equipment manufacturer entered into before the effective date of |
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this Act, the provision of the agreement prevails. |
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SECTION 3. This Act takes effect September 1, 2023. |