88R273 JES-D
 
  By: Meza H.B. No. 515
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the diagnosis, maintenance, and repair of
  electronics-enabled heavy equipment.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle C, Title 5, Business & Commerce Code, is
  amended by adding Chapter 121 to read as follows:
  CHAPTER 121. DIAGNOSIS, MAINTENANCE, AND REPAIR OF
  ELECTRONICS-ENABLED HEAVY EQUIPMENT
         Sec. 121.001.  DEFINITIONS. In this chapter:
               (1)  "Authorized repair provider" means an individual
  or business entity that is not an affiliate of but has an
  arrangement with an original equipment manufacturer:
                     (A)  under which the original equipment
  manufacturer grants to the individual or business entity a license
  to use a trade name, service mark, or other proprietary identifier
  for the purpose of offering diagnosis, maintenance, or repair
  services for electronics-enabled heavy equipment under the name of
  the original equipment manufacturer; or
                     (B)  to offer diagnosis, maintenance, or repair
  for electronics-enabled heavy equipment on behalf of the original
  equipment manufacturer.
               (2)  "Documentation" means any manual, diagram,
  reporting output, service code description, schematic, or other
  guidance or information used in the diagnosis, maintenance, or
  repair of electronics-enabled heavy equipment.
               (3)  "Electronics-enabled heavy equipment" means heavy
  equipment that, to function, depends wholly or partly on digital
  electronics embedded in or attached to the equipment.
               (4)  "Embedded software" means any programmable
  instructions provided on firmware that is delivered with
  electronics-enabled heavy equipment or with a replacement part for
  that equipment for the purpose of equipment operation, including
  all relevant patches and fixes made by the original equipment
  manufacturer of the equipment or replacement part for that purpose.
               (5)  "Fair and reasonable terms" means:
                     (A)  making a part or tool available under costs
  and terms equivalent to the most favorable cost and terms offered
  to an original equipment manufacturer's authorized repair provider
  for obtaining an equivalent part or tool, accounting for any
  discounts, rebates, or other incentive program offered to the
  authorized repair provider; and
                     (B)  making documentation available at no cost,
  except that an original equipment manufacturer may charge the
  reasonable actual cost of preparing and sending a copy of the
  documentation when the documentation is requested in physical
  printed form.
               (6)  "Firmware" means a software program or set of
  instructions programmed on electronics-enabled heavy equipment or
  on a replacement part for the equipment that allows the equipment or
  replacement part to communicate with itself or other computer
  hardware.
               (7)  "Heavy equipment" has the meaning assigned by
  Section 23.1241, Tax Code.
               (8)  "Independent repair provider" means an individual
  or business entity operating in this state who does not, on the
  individual's or entity's own behalf or through an affiliate, have an
  arrangement with an original equipment manufacturer as described by
  Subdivision (1) and who is engaged in diagnosis, maintenance, or
  repair of electronics-enabled heavy equipment.
               (9)  "Original equipment manufacturer" means a
  business entity that sells, leases, or supplies new
  electronics-enabled heavy equipment.
               (10)  "Owner" means an individual or business entity
  who owns or leases electronics-enabled heavy equipment purchased or
  used in this state.
               (11)  "Replacement part" means a new or used
  replacement part made available by the original equipment
  manufacturer for the purpose of maintenance or repair of
  electronics-enabled heavy equipment manufactured, sold, or
  supplied by the original equipment manufacturer.
               (12)  "Tool" means any software program, including
  embedded software, hardware implement, or other apparatus used for
  diagnosis, maintenance, or repair of electronics-enabled heavy
  equipment, including software or another mechanism that:
                     (A)  provisions, programs, or pairs a new part;
                     (B)  calibrates functionality; or
                     (C)  performs any other function required to
  restore the equipment to fully functional condition.
               (13)  "Trade secret" has the meaning assigned by 18
  U.S.C. Section 1839, as that section existed on January 1, 2023.
         Sec. 121.002.  REQUIREMENTS FOR ORIGINAL EQUIPMENT
  MANUFACTURERS. (a) For electronics-enabled heavy equipment,
  including parts for that equipment, sold or used in this state, the
  original equipment manufacturer of the equipment or part shall make
  available on fair and reasonable terms to any independent repair
  provider or to an owner of electronics-enabled heavy equipment
  manufactured by or on behalf of, sold by, or supplied by the
  original equipment manufacturer:
               (1)  documentation, replacement parts, and tools; and
               (2)  for equipment containing an electronic security
  lock or other security-related function, any special
  documentation, replacement part, or tool needed to disable and
  reset the lock or function when disabled in the course of diagnosis,
  maintenance, or repair of the equipment.
         (b)  An original equipment manufacturer may make available
  the documentation, replacement part, or tool under Subsection
  (a)(2) through an appropriate secure release system.
         Sec. 121.003.  CONSTRUCTION OF CHAPTER. Nothing in this
  chapter may be construed to:
               (1)  require an original equipment manufacturer to
  divulge a trade secret to an owner or an independent service
  provider except as necessary to provide documentation, replacement
  parts, and tools on fair and reasonable terms as provided by this
  chapter;
               (2)  alter the terms of an arrangement described by
  Section 121.001(1) between an authorized repair provider and
  original equipment manufacturer, except that any provision in an
  agreement between an authorized repair provider and original
  equipment manufacturer that purports to waive, avoid, restrict, or
  limit the original equipment manufacturer's obligation to comply
  with this chapter is void and unenforceable;
               (3)  require an authorized repair provider to make
  documentation, parts, or tools available on fair and reasonable
  terms; or
               (4)  allow: 
                     (A)  modifications to electronics-enabled heavy
  equipment that deactivate safety notification systems; or
                     (B)  noncompliance with applicable law, including
  federal emissions laws, copyright laws, and occupational safety
  laws prohibiting certain modifications to heavy equipment.
         Sec. 121.004.  DECEPTIVE TRADE PRACTICE. A violation of
  this chapter is a deceptive trade practice in addition to the
  practices described by Subchapter E, Chapter 17, and is actionable
  under that subchapter.
         SECTION 2.  To the extent of a conflict between Chapter 121,
  Business & Commerce Code, as added by this Act, and a provision of
  an agreement between an authorized repair provider and original
  equipment manufacturer entered into before the effective date of
  this Act, the provision of the agreement prevails.
         SECTION 3.  This Act takes effect September 1, 2023.