BUSINESS & COMMERCE CODE
TITLE 2. COMPETITION AND TRADE PRACTICES
CHAPTER 15. MONOPOLIES, TRUSTS AND CONSPIRACIES IN RESTRAINT OF
TRADE
SUBCHAPTER A. GENERAL PROVISIONS AND PROHIBITED RESTRAINTS
§ 15.01. TITLE OF ACT. This Act shall be known and may
be cited as the Texas Free Enterprise and Antitrust Act of 1983.
Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, § 1, eff. Aug.
29, 1983.
§ 15.02. APPLICABILITY OF PROVISIONS. (a) The
provisions of this Act are cumulative of each other and of any other
provision of law of this state in effect relating to the same
subject. Among other things, the provisions of this Act preserve
the constitutional and common law authority of the attorney general
to bring actions under state and federal law.
(b) If any of the provisions of this Act are held invalid,
the remainder shall not be affected as a result; nor shall the
application of the provision held invalid to persons or
circumstances other than those as to which it is held invalid be
affected as a result.
Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, § 1, eff. Aug.
29, 1983.
§ 15.03. DEFINITIONS. Except as otherwise provided in
Subsection (a) of Section 15.10 of this Act, for purposes of this
Act:
(1) The term "attorney general" means the Attorney
General of Texas or any assistant attorney general acting under the
direction of the Attorney General of Texas.
(2) The term "goods" means any property, tangible or
intangible, real, personal, or mixed, and any article, commodity,
or other thing of value, including insurance.
(3) The term "person" means a natural person,
proprietorship, partnership, corporation, municipal corporation,
association, or any other public or private group, however
organized, but does not include the State of Texas, its
departments, and its administrative agencies or a community center
operating under Subchapter A, Chapter 534, Health and Safety Code.
(4) The term "services" means any work or labor,
including without limitation work or labor furnished in connection
with the sale, lease, or repair of goods.
(5) The terms "trade" and "commerce" mean the sale,
purchase, lease, exchange, or distribution of any goods or
services; the offering for sale, purchase, lease, or exchange of
any goods or services; the advertising of any goods or services;
the business of insurance; and all other economic activity
undertaken in whole or in part for the purpose of financial gain
involving or relating to any goods or services.
Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, § 1, eff. Aug.
29, 1983; Acts 1991, 72nd Leg., ch. 242, § 6.01, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 601, § 2, eff. Sept. 1, 1995.
§ 15.04. PURPOSE AND CONSTRUCTION. The purpose of this
Act is to maintain and promote economic competition in trade and
commerce occurring wholly or partly within the State of Texas and to
provide the benefits of that competition to consumers in the state.
The provisions of this Act shall be construed to accomplish this
purpose and shall be construed in harmony with federal judicial
interpretations of comparable federal antitrust statutes to the
extent consistent with this purpose.
Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, § 1, eff. Aug.
29, 1983; Acts 1991, 72nd Leg., ch. 242, § 6.02, eff. Sept. 1,
1991.
§ 15.05. UNLAWFUL PRACTICES. (a) Every contract,
combination, or conspiracy in restraint of trade or commerce is
unlawful.
(b) It is unlawful for any person to monopolize, attempt to
monopolize, or conspire to monopolize any part of trade or
commerce.
(c) It is unlawful for any person to sell, lease, or
contract for the sale or lease of any goods, whether patented or
unpatented, for use, consumption, or resale or to fix a price for
such use, consumption, or resale or to discount from or rebate upon
such price, on the condition, agreement, or understanding that the
purchaser or lessee shall not use or deal in the goods of a
competitor or competitors of the seller or lessor, where the effect
of the condition, agreement, or understanding may be to lessen
competition substantially in any line of trade or commerce.
(d) It is unlawful for any person to acquire, directly or
indirectly, the whole or any part of the stock or other share
capital or the assets of any other person or persons, where the
effect of such acquisition may be to lessen competition
substantially in any line of trade or commerce.
This subsection shall not be construed:
(1) to prohibit the purchase of stock or other share
capital of another person where the purchase is made solely for
investment and does not confer control of that person in a manner
that could substantially lessen competition;
(2) to prevent a corporation from forming subsidiary
or parent corporations for the purpose of conducting its
immediately lawful business, or any natural and legitimate branch
extensions of such business, or from owning and holding all or a
part of the stock or other share capital of a subsidiary, or
transferring all or part of its stock or other share capital to be
owned and held by a parent, where the effect of such a transaction
is not to lessen competition substantially;
(3) to affect or impair any right previously legally
acquired; or
(4) to apply to transactions duly consummated pursuant
to authority given by any statute of this state or of the United
States or pursuant to authority or approval given by any regulatory
agency of this state or of the United States under any
constitutional or statutory provisions vesting the agency with such
power.
(e) It is unlawful for an employer and a labor union or other
organization to agree or combine so that:
(1) a person is denied the right to work for an
employer because of membership or nonmembership in the labor union
or other organization; or
(2) membership or nonmembership in the labor union or
other organization is made a condition of obtaining or keeping a job
with the employer.
(f) It is not unlawful for:
(1) employees to agree to quit their employment or to
refuse to deal with tangible personal property of their immediate
employer, unless their refusal to deal with tangible personal
property of their immediate employer is intended to induce or has
the effect of inducing that employer to refrain from buying or
otherwise acquiring tangible personal property from a person; or
(2) persons to agree to refer for employment a
migratory worker who works on seasonal crops if the referral is made
irrespective of whether or not the worker belongs to a labor union
or organization.
(g) Nothing in this section shall be construed to prohibit
activities that are exempt from the operation of the federal
antitrust laws, 15 U.S.C. Section 1 et seq., except that an
exemption otherwise available under the McCarran-Ferguson Act (15
U.S.C. Sections 1011-1015) does not serve to exempt activities
under this Act. Nothing in this section shall apply to actions
required or affirmatively approved by any statute of this state or
of the United States or by a regulatory agency of this state or of
the United States duly acting under any constitutional or statutory
authority vesting the agency with such power.
(h) In any lawsuit alleging a contract, combination, or
conspiracy to fix prices, evidence of uniform prices alone shall
not be sufficient to establish a violation of Subsection (a) of
Section 15.05.
(i) In determining whether a restraint related to the sale
or delivery of professional services is reasonable, except in cases
involving price fixing, or other per se violations, the court may
consider, but shall not reach its decision solely on the basis of,
criteria which include: (1) whether the activities involved
maintain or improve the quality of such services to benefit the
public interest; (2) whether the activities involved limit or
reduce the cost of such services to benefit the public interest.
For purposes of this subsection, the term "professional services"
means services performed by any licensed accountant, physician, or
professional engineer in connection with his or her professional
employment or practice.
Amended by Acts 1983, 68th Leg., p. 3010, ch. 519, § 1, eff. Aug.
29, 1983; Acts 1991, 72nd Leg., ch. 242, § 6.02, eff. Sept. 1,
1991.
SUBCHAPTER B. PROCEDURE AND EVIDENCE
§ 15.10. CIVIL INVESTIGATIVE
DEMANDS. (a) Definitions. For purposes of this section:
(1) The terms "antitrust investigation" and
"investigation" mean any inquiry conducted by the attorney general
for the purpose of ascertaining whether any person is or has been
engaged in or is actively preparing to engage in activities which
may constitute an antitrust violation.
(2) The term "antitrust violation" means any act or
omission in violation of any of the prohibitions contained in
Section 15.05 of this Act or in violation of any of the antitrust
laws set forth in Subsection (a) of Section 12 of Title 15, the
United States Code.
(3) The terms "civil investigative demand" and
"demand" mean any demand issued by the attorney general under
Subsection (b) of this section.
(4) The terms "documentary material" and "material"
include the original or any identical copy and all nonidentical
copies of any contract, agreement, book, booklet, brochure,
pamphlet, catalog, magazine, notice, announcement, circular,
bulletin, instruction, minutes, agenda, study, analysis, report,
graph, map, chart, table, schedule, note, letter, telegram,
telephone or other message, product of discovery, magnetic or
electronic recording, and any other written, printed, or recorded
matter.
(5) The term "person" means a natural person,
proprietorship, partnership, corporation, municipal corporation,
association, or any other public or private group, however
organized, and includes any person acting under color or authority
of state law.
(6) The term "product of discovery" includes without
limitation the original or duplicate of any deposition,
interrogatory, document, thing, result of the inspection of land or
other property, examination, or admission obtained by any method of
discovery in any judicial or administrative proceeding of an
adversarial nature; any digest, analysis, selection, compilation,
or other derivation thereof, and any index or manner of access
thereto.
(b) Authority to Issue Demand. Whenever the attorney
general has reason to believe that any person may be in possession,
custody, or control of any documentary material or may have any
information relevant to a civil antitrust investigation, the
attorney general may, prior to the institution of a civil
proceeding, issue in writing and serve upon such person a civil
investigative demand requiring the person to produce such
documentary material for inspection and copying, to answer in
writing written interrogatories, to give oral testimony, or to
provide any combination of such material, answers, and testimony;
provided, however, that the attorney general may not issue and
serve a demand for documentary material upon a proprietorship or
partnership whose annual gross income does not exceed $5 million.
(c) Contents of Demand.
(1) Each demand shall describe the nature of the
activities that are the subject of the investigation and shall set
forth each statute and section of that statute that may have been or
may be violated as a result of such activities. Each demand shall
advise the person upon whom the demand is to be served that the
person has the right to object to the demand as provided for in this
section.
(2) Each demand for production of documentary material
shall:
(A) describe the class or classes of material to
be produced with reasonable specificity so that the material
demanded is fairly identified;
(B) prescribe a return date or dates which will
provide a reasonable period of time within which the material is to
be produced; and
(C) identify the individual or individuals
acting on behalf of the attorney general to whom the material is to
be made available for inspection and copying.
(3) Each demand for answers to written interrogatories
shall:
(A) propound the interrogatories with
definiteness and certainty;
(B) prescribe a date or dates by which answers to
interrogatories shall be submitted; and
(C) identify the individual or individuals
acting on behalf of the attorney general to whom the answers should
be submitted.
(4) Each demand for the giving of oral testimony
shall:
(A) prescribe a reasonable date, time, and place
at which the testimony shall begin; and
(B) identify the individual or individuals
acting on behalf of the attorney general who will conduct the
examination.
(5) No demand for any product of discovery may be
returned until 20 days after the attorney general serves a copy of
the demand upon the person from whom the discovery was obtained.
(d) Protected Material and Information.
(1) A demand may require the production of documentary
material, the submission of answers to written interrogatories, or
the giving of oral testimony only if the material or information
sought would be discoverable under the Texas Rules of Civil
Procedure or other state law relating to discovery.
(2) Any demand for a product of discovery supercedes
any inconsistent order, rule, or provision of law (other than this
subchapter) preventing or restraining disclosure of such product of
discovery; provided, however, that voluntary disclosure of a
product of discovery under this section does not constitute a
waiver of any right or privilege, including any right or privilege
which may be invoked to resist discovery of trial preparation
materials, to which the person making the disclosure may be
entitled.
(e) Service; Proof of Service.
(1) Service of any demand or of any petition filed
under Subsection (f) or (h) of this section may be made upon any
natural person by delivering a duly executed copy of the demand or
petition to the person to be served or by mailing such copy by
registered or certified mail, return receipt requested, to such
person at his or her residence or principal office or place of
business.
(2) Service of any demand or of any petition filed
under Subsection (f) or (h) of this section may be made upon any
person other than a natural person by delivering a duly executed
copy of the demand or petition to a person to whom delivery would be
appropriate under state law if the demand or petition were process
in a civil suit.
(3) A verified return by the individual serving any
demand or any petition filed under Subsection (f) or (h) setting
forth the manner of service shall be proof of such service. In the
case of service by registered or certified mail, the return shall be
accompanied by the return post office receipt of delivery of the
demand or petition.
(f) Petition for Order Modifying or Setting Aside Demand.
At any time before the return date specified in a demand or within
20 days after the demand has been served, whichever period is
shorter, the person who has been served and, in the case of a demand
for a product of discovery, the person from whom the discovery was
obtained may file a petition for an order modifying or setting aside
the demand in the district court in the county of the person's
residence or principal office or place of business or in a district
court of Travis County. Any such petition shall specify each ground
upon which the petitioner relies in seeking the relief sought. The
petition may be based upon any failure of such demand to comply with
the provisions of this section or upon any constitutional or other
legal right or privilege of the petitioner. The petitioner shall
serve a copy of the petition upon the attorney general. The
attorney general may submit an answer to the petition. In ruling on
the petition, the court shall presume absent evidence to the
contrary that the attorney general issued the demand in good faith
and within the scope of his or her authority.
(g) Compliance With Demand.
(1) A person on whom a demand is served shall comply
with the terms of the demand unless otherwise provided by court
order.
(2) The time for compliance with the demand in whole or
in part shall not run during the pendency of any petition filed
under Subsection (f) of this section; provided, however, that the
petitioner shall comply with any portions of the demand not sought
to be modified or set aside.
(3) Documentary Material.
(A) Any person upon whom any demand for the
production of documentary material has been duly served under this
section shall make such material available to the attorney general
for inspection and copying during normal business hours on the
return date specified in the demand at the person's principal
office or place of business or as otherwise may be agreed upon by
the person and the attorney general. The attorney general shall
bear the expense of any copying. The person may substitute copies
for originals of all or part of the requested documents so long as
the originals are made available for inspection. The person shall
indicate in writing which if any of the documents produced contain
trade secrets or confidential information.
(B) The production of documentary material in
response to any demand shall be made under a sworn certificate in
such form as the demand designates by a natural person having
knowledge of the facts and circumstances relating to such
production to the effect that all of the requested material in the
possession, custody, or control of the person to whom the demand is
directed has been produced.
(4) Interrogatories.
(A) Each interrogatory in any demand duly served
under this section shall be answered separately and fully in
writing, unless it is objected to, in which case the basis for the
objection shall be set forth in lieu of an answer. The person shall
indicate in writing which if any of the answers contain trade
secrets or confidential information.
(B) Answers to interrogatories shall be
submitted under a sworn certificate in such form as the related
demand designates by a natural person having knowledge of the facts
and circumstances relating to the preparation of the answers to the
effect that all of the requested information in the possession,
custody, control, or knowledge of the person to whom the demand is
directed has been set forth fully and accurately.
(5) Oral Examination.
(A) The examination of any person pursuant to a
demand for oral testimony duly served under this section shall be
taken before any person authorized to administer oaths and
affirmations by the laws of Texas or the United States. The person
before whom the testimony is to be taken shall put the witness on
oath or affirmation and shall personally or by someone acting under
his or her direction and in his or her presence record the witness's
testimony. At the expense of the attorney general, the testimony
shall be taken stenographically and may be transcribed.
(B) The oral testimony of any person taken
pursuant to a demand served under this section shall be taken in the
county where the person resides, is found, transacts business, or
in such other place as may be agreed upon by the person and the
attorney general.
(C) Any person compelled to appear under a demand
for oral testimony under this section may be accompanied,
represented, and advised by counsel. Counsel may advise such
person in confidence, either upon the request of such person or upon
counsel's own initiative, with respect to any question arising in
connection with the examination.
(D) The individual conducting the examination on
behalf of the attorney general shall exclude from the place of
examination all other persons except the person being examined, the
person's counsel, the counsel of the person to whom the demand has
been issued, the person before whom the testimony is to be taken,
any stenographer taking the testimony, and any persons assisting
the individual conducting the examination.
(E) During the examination, the person being
examined or his or her counsel may object on the record to any
question, in whole or in part, and shall briefly state for the
record the reason for the objection. An objection may properly be
made, received, and entered upon the record when it is claimed that
such person is entitled to refuse to answer the question on grounds
of any constitutional or other legal right or privilege, including
the privilege against self-incrimination. Neither such person nor
his or her counsel shall otherwise object to or refuse to answer any
question or interrupt the oral examination. If the person refuses
to answer any question, the attorney general may petition the
district court in the county where the examination is being
conducted for an order compelling the person to answer the
question.
(F) If and when the testimony has been fully
transcribed, the person before whom the testimony was taken shall
promptly transmit the transcript of the testimony to the witness
and a copy of the transcript to the attorney general. The witness
shall have a reasonable opportunity to examine the transcript and
make any changes in form or substance accompanied by a statement of
the reasons for such changes. The witness shall then sign and
return the transcript, unless he or she is ill, cannot be found,
refuses to sign, or in writing waives the signing. If the witness
does not sign the transcript within 15 days of receiving it, the
person before whom the testimony has been given shall sign it and
state on the record the reason, if known, for the witness's failure
to sign. The officer shall then certify on the transcript that the
witness was duly sworn and that the transcript is a true record of
the testimony given by the witness and promptly transmit a copy of
the certified transcript to the attorney general.
(G) Upon request, the attorney general shall
furnish a copy of the certified transcript to the witness.
(H) The witness shall be entitled to the same
fees and mileage that are paid to witnesses in the district courts
of Texas.
(h) Failure To Comply With Demand.
(1) Petition for Enforcement. Whenever any person
fails to comply with any demand duly served on such person under
this section, the attorney general may file in the district court in
the county in which the person resides, is found, or transacts
business and serve on the person a petition for an order of the
court for enforcement of this section. If the person transacts
business in more than one county, the petition shall be filed in the
county of the person's principal office or place of business in the
state or in any other county as may be agreed upon by the person and
the attorney general.
(2) Deliberate Noncompliance. Any person, who, with
intent to avoid, evade, or prevent compliance in whole or part with
a demand issued under this section, removes from any place,
conceals, withholds, destroys, mutilates, alters, or by any other
means falsifies any documentary material or otherwise provides
inaccurate information is guilty of a misdemeanor and on conviction
is punishable by a fine of not more than $5,000 or by confinement in
county jail for not more than one year or by both.
(i) Disclosure and Use of Material and Information.
(1) Except as provided in this section or ordered by a
court for good cause shown, no documentary material, answers to
interrogatories, or transcripts of oral testimony, or copies or
contents thereof, shall be available for examination or used by any
person without the consent of the person who produced the material,
answers, or testimony and, in the case of any product of discovery,
of the person from whom the discovery was obtained.
(2) The attorney general may make available for
inspection or prepare copies of documentary material, answers to
interrogatories, or transcripts of oral testimony in his or her
possession as he or she determines may be required by the state in
the course of any investigation or a judicial proceeding in which
the state is a party.
(3) The attorney general may make available for
inspection or prepare copies of documentary material, answers to
interrogatories, or transcripts of oral testimony in his or her
possession as he or she determines may be required for official use
by any officer of the State of Texas or of the United States charged
with the enforcement of the laws of the State of Texas or the United
States; provided that any material disclosed under this subsection
may not be used for criminal law enforcement purposes.
(4) Upon request, the attorney general shall make
available copies of documentary material, answers to
interrogatories, and transcripts of oral testimony for inspection
by the person who produced such material or information and, in the
case of a product of discovery, the person from whom the discovery
was obtained or by any duly authorized representative of the
person, including his or her counsel.
(5) Not later than 15 days prior to disclosing any
documentary material or answers to written interrogatories
designated as containing trade secrets or confidential information
under this subsection, the attorney general shall notify the person
who produced the material of the attorney general's intent to make
such disclosure. The person who produced the documentary material
or answers to written interrogatories may petition a district court
in any county of this state in which the person resides, does
business, or maintains its principal office for a protective order
limiting the terms under which the attorney general may disclose
such trade secrets or confidential information.
(6) Upon written request, the attorney general shall
return documentary material produced under this section in
connection with an antitrust investigation to the person who
produced it whenever:
(A) any case or proceeding before any court
arising out of the investigation has been completed; or
(B) the attorney general has decided after
completing an examination and analysis of such material not to
institute any case or proceeding before a court in connection with
the investigation.
(j) Jurisdiction. Whenever any petition is filed in the
district court in any county as provided for in this section, the
court shall have jurisdiction to hear and determine the matter
presented and to enter any order or orders required to implement the
provisions of this section. Any final order is subject to appeal.
Failure to comply with any final order entered by a court under this
section is punishable by the court as a contempt of the order.
(k) Nonexclusive Procedures. Nothing in this section shall
preclude the attorney general from using procedures not specified
in the section in conducting an antitrust investigation; provided,
however, that in conducting such an investigation, the attorney
general shall use the procedures set forth in this section in lieu
of those set forth in Article 1302-5.01 through Article 1302-5.06,
Texas Miscellaneous Corporation Laws Act.
Added by Acts 1983, 68th Leg., p. 3019, ch. 519, § 2, eff. Aug.
29, 1983.
§ 15.11. PARTY TO SUIT MAY SUBPOENA WITNESS. (a) A
party to a suit brought to enforce any of the prohibitions in
Section 15.05 of this Act or to enforce the laws conserving natural
resources may apply to the clerk of the court in which the suit is
pending to subpoena a witness located anywhere in the state. On
receipt of the application, the clerk shall issue the subpoena
applied for but may not issue more than five subpoenas for a party
without first obtaining the court's written approval.
(b) A witness subpoenaed under Subsection (a) of this
section who fails to appear and testify in compliance with the
subpoena is guilty of contempt of court and may be fined not more
than $100 and attached and imprisoned in the county jail until he or
she appears in court and testifies as required.
Added by Acts 1983, 68th Leg., p. 3019, ch. 519, § 2, eff. Aug.
29, 1983.
§ 15.12. ADDITIONAL PROCEDURES. In addition to the
procedures set forth in this subchapter, the attorney general and
any other party to a suit brought by the attorney general to enforce
any of the prohibitions in Section 15.05 of this Act may request
discovery and production of documents and other things, serve
written interrogatories, and subpoena and depose witnesses in
accordance with the applicable provisions of the Texas Rules of
Civil Procedure and other state law relating to discovery.
Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, § 2, eff. Aug.
29, 1983.
§ 15.13. IMMUNITY FROM CRIMINAL
PROSECUTION. (a) Application by Attorney General. If a person
upon whom an investigative demand or request for discovery has been
properly served pursuant to Section 15.10, 15.11, or 15.12 of this
Act refuses or is likely to refuse to comply with the demand or
request on the basis of his or her privilege against
self-incrimination, the attorney general may apply to a district
court in the county in which the person is located for an order
granting the person immunity from prosecution and compelling the
person's compliance with the demand or request.
(b) Order Granting Immunity and Compelling Testimony and
Production. Upon receipt of an application filed under Subsection
(a) of this section, the court may issue an order granting the
person immunity from prosecution and requiring the person to comply
with the demand or request notwithstanding his or her claim of
privilege. The order shall explain the scope of protection
afforded by it.
(c) Effectiveness of Order. An order may be issued under
Subsection (b) of this section prior to the assertion of the
privilege against self-incrimination but shall not be effective
until the person to whom it is directed asserts the privilege and is
informed of the order.
(d) Compliance with Order. A person who has been informed
of an order issued by a court under this section compelling his or
her testimony or production of material may not refuse to comply
with the order on the basis of his or her privilege against
self-incrimination. A person who complies with the order may not be
criminally prosecuted for or on account of any act, transaction,
matter, or thing about which he or she is ordered to testify or
produce unless the alleged offense is perjury or failure to comply
with the order. Failure to comply with the order may be punished by
the court as contempt of the order.
Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, § 2, eff. Aug.
29, 1983.
§ 15.16. DECLARATORY JUDGMENT ACTION. (a) A person
(other than a foreign corporation not having a permit or
certificate of authority to do business in this state) uncertain of
whether or not his or her action or proposed action violates or will
violate the prohibitions contained in Section 15.05 of this Act may
file suit against the state for declaratory judgment, citing this
section as authority, in one of the Travis County district courts.
(b) Citation and all process in the suit shall be served on
the attorney general, who shall represent the state. The petition
shall describe in detail the person's action or proposed action and
all other relevant facts, and the court in its declaratory judgment
shall fully recite the action or proposed action and other facts
considered.
(c) A declaratory judgment granted under this section which
rules that action or proposed action does not violate the
prohibitions contained in Section 15.05 of this Act:
(1) shall be strictly construed and may not be
extended by implication to an action or fact not recited in the
judgment;
(2) does not bind the state with reference to a person
not a party to the suit in which the judgment was granted; and
(3) does not estop the state from subsequently
establishing a violation of the prohibitions contained in Section
15.05 of this Act based on an action or fact not recited in the
declaratory judgment, which action or fact, when combined with an
action or fact recited in the judgment, constitutes a violation of
the prohibitions contained in Section 15.05 of this Act.
(d) A person filing suit under this section shall pay all
costs of the suit.
Amended by Acts 1983, 68th Leg., p. 3019, ch. 519, § 2, eff. Aug.
29, 1983.
SUBCHAPTER C. ENFORCEMENT
§ 15.20. CIVIL SUITS BY THE STATE. (a) Suit to Collect
Civil Fine. The attorney general may file suit in district court in
Travis County or in any county in the State of Texas in which any of
the named defendants resides, does business, or maintains its
principal office on behalf of the State of Texas to collect a civil
fine from any person, other than a municipal corporation, whom the
attorney general believes has violated any of the prohibitions in
Subsection (a), (b), or (c) of Section 15.05 of this Act. Every
person adjudged to have violated any of these prohibitions shall
pay a fine to the state not to exceed $1 million if a corporation,
or, if any other person, $100,000.
(b) Suit for Injunctive Relief. The attorney general may
file suit against any person, other than a municipal corporation,
in district court in Travis County, or in any county in the State of
Texas in which any of the named defendants resides, does business,
or maintains its principal office on behalf of the State of Texas to
enjoin temporarily or permanently any activity or contemplated
activity that violates or threatens to violate any of the
prohibitions in Section 15.05 of this Act. In any such suit, the
court shall apply the same principles as those generally applied by
courts of equity in suits for injunctive relief against threatened
conduct that would cause injury to business or property. In any
such suit in which the state substantially prevails on the merits,
the state shall be entitled to recover the cost of suit.
Upon finding a violation of the prohibition against acquiring
the stock, share capital, or assets of a person in Subsection (d) of
Section 15.05 of this Act, the court shall, upon further finding
that no other remedy will eliminate the lessening of competition,
order the divestiture or other disposition of the stock, share
capital, or assets and shall prescribe a reasonable time, manner,
and degree of the divestiture or other disposition.
(c) No suit filed under Subsection (a) or (b) of this
section may be transferred to another county except on order of the
court.
(d) Nothing in this section shall be construed to limit the
constitutional or common law authority of the attorney general to
bring actions under state and federal law.
Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
§ 15.21. SUITS BY INJURED PERSONS OR GOVERNMENTAL
ENTITIES. (a) Suit to Recover Damages.
(1) Any person or governmental entity, including the
State of Texas and any of its political subdivisions or
tax-supported institutions, whose business or property has been
injured by reason of any conduct declared unlawful in Subsection
(a), (b), or (c) of Section 15.05 of this Act may sue any person,
other than a municipal corporation, in district court in any county
of this state in which any of the named defendants resides, does
business, or maintains its principal office or in any county in
which any of the named plaintiffs resided at the time the cause of
action or any part thereof arose and shall recover actual damages
sustained, interest on actual damages for the period beginning on
the date of service of such person's pleading setting forth a claim
under the antitrust laws and ending on the date of judgment (the
rate of such interest to be in accordance with Texas law regarding
postjudgment interest rates and the amount of interest to be
adjusted by the court if it finds that the award of all or part of
such interest is unjust in the circumstances), and the cost of suit,
including a reasonable attorney's fee; provided, however, that if
the trier of fact finds that the unlawful conduct was willful or
flagrant, it shall increase the recovery to threefold the damages
sustained and the cost of suit, including a reasonable attorney's
fee; provided that interest on actual damages as specified above
may not be recovered when recovered damages are increased
threefold.
(2) Any person or governmental entity who obtains a
judgment for damages under 15 U.S.C. Section 15 or any other
provision of federal law comparable to this subsection may not
recover damages in a suit under this subsection based on
substantially the same conduct that was the subject of the federal
suit.
(3) On a finding by the court that an action under this
section was groundless and brought in bad faith or for the purpose
of harassment, the court shall award to the defendant or defendants
a reasonable attorney's fee, court costs, and other reasonable
expenses of litigation.
(b) Suit for Injunctive Relief. Any person or governmental
entity, including the State of Texas and any of its political
subdivisions or tax-supported institutions, whose business or
property is threatened with injury by reason of anything declared
unlawful in Subsection (a), (b), or (c) of Section 15.05 of this Act
may sue any person, other than a municipal corporation, in district
court in any county of this state in which any of the named
defendants resides, does business, or maintains its principal
office or in any county in which any of the named plaintiffs resided
at the time the cause of action or any part thereof arose to enjoin
the unlawful practice temporarily or permanently. In any such
suit, the court shall apply the same principles as those generally
applied by courts of equity in suits for injunctive relief against
threatened conduct that would cause injury to business or property.
In any such suit in which the plaintiff substantially prevails on
the merits, the plaintiff shall be entitled to recover the cost of
suit, including a reasonable attorney's fee based on the fair
market value of the attorney services used.
(c) Copies of Complaints to Attorney General. Any person or
governmental entity filing suit under this section shall mail a
copy of the complaint to the Attorney General of Texas. The
attorney general as representative of the public may intervene in
the action by filing a notice of intervention with the court before
which the action is pending and serving copies of the notice on all
parties to the action. The penalty for failure to comply with this
subsection shall be a monetary fine not in excess of $200. The
attorney general may file suit to recover the fine on behalf of the
state in the district court in which the private suit has been
brought.
Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
§ 15.22. CRIMINAL SUITS. (a) Every person, other than
a municipal corporation, who acts in violation of any of the
prohibitions in Subsection (a) or (b) of Section 15.05 of this Act
shall be deemed guilty of a felony and upon conviction shall be
punished by confinement in the Texas Department of Corrections for
a term of not more than three years or by a fine not to exceed $5,000
or by both.
(b) A district attorney or criminal district attorney may
file criminal suit to enforce the provisions in Subsection (a) of
this section in district court in Travis County or in any county in
which any of the acts that allegedly have contributed to a violation
of any of the prohibitions in Subsections (a) and (b) of Section
15.05 of this Act are alleged to have occurred or to be occurring.
Amended by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
§ 15.24. JUDGMENT IN FAVOR OF THE STATE EVIDENCE IN
ACTION. A final judgment rendered in an action brought under
Section 15.20 or 15.22 of this Act to the effect that a defendant or
defendants have violated any of the prohibitions in Section 15.05
of this Act is prima facie evidence against such defendant or
defendants in any action brought under Section 15.21 as to all
matters with respect to which the judgment would be an estoppel
between the parties to the suit. This section shall not apply to
consent judgments or decrees entered before any testimony has been
taken.
Added by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
§ 15.25. LIMITATION OF ACTIONS. (a) Any suit to
recover damages under Section 15.21 of this Act is barred unless
filed within four years after the cause of action accrued or within
one year after the conclusion of any action brought by the state
under Section 15.20 or 15.22 of this Act based in whole or in part on
the same conduct, whichever is longer. For the purpose of this
subsection, a cause of action for a continuing violation is
considered to accrue at any and all times during the period of the
violation.
(b) No suit under this Act shall be barred on the grounds
that the activity or conduct complained of in any way affects or
involves interstate or foreign commerce. It is the intent of the
legislature to exercise its powers to the full extent consistent
with the constitutions of the State of Texas and the United States.
Added by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
§ 15.26. JURISDICTION. Whenever any suit or petition is
filed in the district court in any county in the State of Texas as
provided for in Section 15.10, 15.20, 15.21, or 15.22 of this Act,
the court shall have jurisdiction and venue to hear and determine
the matter presented and to enter any order or orders required to
implement the provisions of this Act. Once suit is properly filed,
it may be transferred to another county upon order of the court for
good cause shown.
Added by Acts 1983, 68th Leg., p. 3034, ch. 519, § 3, eff. Aug.
29, 1983.
SUBCHAPTER D. RECOVERY OF DAMAGES PURSUANT TO FEDERAL ANTITRUST
LAWS
§ 15.40. AUTHORITY, POWERS, AND DUTIES OF ATTORNEY
GENERAL. (a) The attorney general may bring an action on behalf
of the state or of any of its political subdivisions or tax
supported institutions to recover the damages provided for by the
federal antitrust laws, Title 15, United States Code, provided that
the attorney general shall notify in writing any political
subdivision or tax supported institution of his intention to bring
any such action on its behalf, and at any time within 30 days
thereafter, such political subdivision or tax supported
institution may, by formal resolution of its governing body or as
otherwise specifically provided by applicable law, withdraw the
authority of the attorney general to bring the intended action. In
any action brought pursuant to this section on behalf of any
political subdivision or tax supported institution of the state,
the state shall retain for deposit in the general revenue fund of
the State Treasury, out of the proceeds, if any, resulting from such
action, an amount equal to the expense incurred by the state in the
investigation and prosecution of such action.
(b) In any action brought by the attorney general pursuant
to the federal antitrust laws for the recovery of damages by the
estate or any of its political subdivisions or tax supported
institutions, in addition to his other powers and authority the
attorney general may enter into contracts relating to the
investigation and the prosecution of such action with any other
party who could bring a similar action or who has brought such an
action for the recovery of damages and with whom the attorney
general finds it advantageous to act jointly, or to share common
expenses or to cooperate in any manner relative to such action. In
any such action the attorney general may undertake, among other
things, either to render legal services as special counsel to, or to
obtain the legal services of special counsel from, any department
or agency of the United States, any other state or any department or
agency thereof, any county, city, public corporation or public
district of this state or of any other state, that has brought or
intends to bring a similar action for the recovery of damages, or
their duly authorized legal representatives in such action.
Added by Acts 1969, 61st Leg., p. 1708, ch. 559, § 1, eff. June
10, 1969.
SUBCHAPTER E. COVENANTS NOT TO COMPETE
§ 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO
COMPETE. (a) Notwithstanding Section 15.05 of this code, and
subject to any applicable provision of Subsection (b), a covenant
not to compete is enforceable if it is ancillary to or part of an
otherwise enforceable agreement at the time the agreement is made
to the extent that it contains limitations as to time, geographical
area, and scope of activity to be restrained that are reasonable and
do not impose a greater restraint than is necessary to protect the
goodwill or other business interest of the promisee.
(b) A covenant not to compete is enforceable against a
person licensed as a physician by the Texas State Board of Medical
Examiners if such covenant complies with the following
requirements:
(1) the covenant must:
(A) not deny the physician access to a list of his
patients whom he had seen or treated within one year of termination
of the contract or employment;
(B) provide access to medical records of the
physician's patients upon authorization of the patient and any
copies of medical records for a reasonable fee as established by the
Texas State Board of Medical Examiners under Section 159.008,
Occupations Code; and
(C) provide that any access to a list of patients
or to patients' medical records after termination of the contract
or employment shall not require such list or records to be provided
in a format different than that by which such records are maintained
except by mutual consent of the parties to the contract;
(2) the covenant must provide for a buy out of the
covenant by the physician at a reasonable price or, at the option of
either party, as determined by a mutually agreed upon arbitrator
or, in the case of an inability to agree, an arbitrator of the court
whose decision shall be binding on the parties; and
(3) the covenant must provide that the physician will
not be prohibited from providing continuing care and treatment to a
specific patient or patients during the course of an acute illness
even after the contract or employment has been terminated.
Added by Acts 1989, 71st Leg., ch. 1193, § 1, eff. Aug. 28, 1989.
Amended by Acts 1993, 73rd Leg., ch. 965, § 1, eff. Sept. 1,
1993; Acts 1999, 76th Leg., ch. 1574, § 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 1420, § 14.729, eff. Sept. 1, 2001.
§ 15.51. PROCEDURES AND REMEDIES IN ACTIONS TO ENFORCE
COVENANTS NOT TO COMPETE. (a) Except as provided in Subsection
(c) of this section, a court may award the promisee under a covenant
not to compete damages, injunctive relief, or both damages and
injunctive relief for a breach by the promisor of the covenant.
(b) If the primary purpose of the agreement to which the
covenant is ancillary is to obligate the promisor to render
personal services, for a term or at will, the promisee has the
burden of establishing that the covenant meets the criteria
specified by Section 15.50 of this code. If the agreement has a
different primary purpose, the promisor has the burden of
establishing that the covenant does not meet those criteria. For
the purposes of this subsection, the "burden of establishing" a
fact means the burden of persuading the triers of fact that the
existence of the fact is more probable than its nonexistence.
(c) If the covenant is found to be ancillary to or part of an
otherwise enforceable agreement but contains limitations as to
time, geographical area, or scope of activity to be restrained that
are not reasonable and impose a greater restraint than is necessary
to protect the goodwill or other business interest of the promisee,
the court shall reform the covenant to the extent necessary to cause
the limitations contained in the covenant as to time, geographical
area, and scope of activity to be restrained to be reasonable and to
impose a restraint that is not greater than necessary to protect the
goodwill or other business interest of the promisee and enforce the
covenant as reformed, except that the court may not award the
promisee damages for a breach of the covenant before its
reformation and the relief granted to the promisee shall be limited
to injunctive relief. If the primary purpose of the agreement to
which the covenant is ancillary is to obligate the promisor to
render personal services, the promisor establishes that the
promisee knew at the time of the execution of the agreement that the
covenant did not contain limitations as to time, geographical area,
and scope of activity to be restrained that were reasonable and the
limitations imposed a greater restraint than necessary to protect
the goodwill or other business interest of the promisee, and the
promisee sought to enforce the covenant to a greater extent than was
necessary to protect the goodwill or other business interest of the
promisee, the court may award the promisor the costs, including
reasonable attorney's fees, actually and reasonably incurred by the
promisor in defending the action to enforce the covenant.
Added by Acts 1989, 71st Leg., ch. 1193, § 1, eff. Aug. 28, 1989.
Amended by Acts 1993, 73rd Leg., ch. 965, § 2, eff. Sept. 1,
1993.
§ 15.52. PREEMPTION OF OTHER LAW. The criteria for
enforceability of a covenant not to compete provided by Section
15.50 of this code and the procedures and remedies in an action to
enforce a covenant not to compete provided by Section 15.51 of this
code are exclusive and preempt any other criteria for
enforceability of a covenant not to compete or procedures and
remedies in an action to enforce a covenant not to compete under
common law or otherwise.
Added by Acts 1993, 73rd Leg., ch. 965, § 3, eff. Sept. 1, 1993.
