BUSINESS & COMMERCE CODE
CHAPTER 17. DECEPTIVE TRADE PRACTICES
SUBCHAPTER A. GENERAL PROVISIONS
§ 17.01. DEFINITIONS. In this chapter, unless the
context requires a different definition,
(1) "container" includes bale, barrel, bottle, box,
cask, keg, and package; and
(2) "proprietary mark" includes word, name, symbol,
device, and any combination of them in any form or arrangement, used
by a person to identify his tangible personal property and
distinguish it from the tangible personal property of another.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
SUBCHAPTER B. DECEPTIVE ADVERTISING, PACKING, SELLING, AND
EXPORTING
§ 17.08. PRIVATE USE OF STATE SEAL. (a) In this
section:
(1) "Commercial purpose" means a purpose that is
intended to result in a profit or other tangible benefit but does
not include:
(A) official use of the state seal or a
representation of the state seal in a state function;
(B) use of the state seal or a representation of
the state seal for a political purpose by an elected official of
this state;
(C) use of the state seal or a representation of
the state seal in an encyclopedia, dictionary, book, journal,
pamphlet, periodical, magazine, or newspaper incident to a
description or history of seals, coats of arms, heraldry, or this
state;
(D) use of the state seal or a representation of
the state seal in a library, museum, or educational facility
incident to descriptions or exhibits relating to seals, coats of
arms, heraldry, or this state;
(E) use of the state seal or a representation of
the state seal in a theatrical, motion-picture, television, or
similar production for a historical, educational, or newsworthy
purpose; or
(F) use of the state seal or a representation of
the state seal for another historical, educational, or newsworthy
purpose if authorized in writing by the secretary of state.
(2) "Representation of the state seal " includes a
nonexact representation that the secretary of state determines is
deceptively similar to the state seal.
(3) "Official use" means the use of the state seal by
an officer or employee of this state in performing a state function.
(4) "State function" means a state governmental
activity authorized or required by law.
(5) "State seal" means the state seal, the reverse of
the state seal, and the state arms as defined by Article 6139f,
Revised Statutes.
(b) Except as otherwise provided by this section, a person
may not use a representation of the state seal:
(1) to advertise or publicize tangible personal
property or a commercial undertaking; or
(2) for another commercial purpose.
(c) A person may use a representation of the state seal for a
commercial purpose if the person obtains a license from the
secretary of state for that use. The secretary of state, under the
authority vested in the secretary as custodian of the seal under
Article IV, Section 19, of the Texas Constitution, shall issue a
license to a person who applies for a license on a form provided by
the secretary of state and who pays the fees required under this
section if the secretary of state determines that the use is in the
best interests of the state and not detrimental to the image of the
state. A license issued under this section expires one year after
the date of issuance and may be renewed.
(d) The secretary of state shall adopt rules relating to the
use of the state seal by a person licensed under this section. The
secretary of state shall adopt the rules in the manner provided by
Chapter 2001, Government Code.
(e) The application fee for a license under this section is
$35. The license fee for an original or renewal license is $250. In
addition to those fees, each licensee shall pay an amount equal to
three percent of the licensee's annual gross receipts related to
the licensed use in excess of $5,000 to the state as a royalty fee.
(f) A person licensed under this section shall maintain
records relating to the licensee's use of the state seal in the
manner required by the rules of the secretary of state. The
secretary of state may examine the records during reasonable
business hours to determine the licensee's compliance with this
section. Each licensee shall display the license in a conspicuous
manner in the licensee's office or place of business.
(g) The secretary of state may suspend or revoke a license
issued under this section for failure to comply with this section or
the rules adopted under this section. The secretary of state may
bring a civil action to enjoin a violation of this section or the
rules adopted under this section.
(h) A person who reproduces an official document bearing the
state seal does not violate Subsection (b) of this section if the
document is:
(1) reproduced in complete form; and
(2) used for a purpose related to the purpose for which
the document was issued by the state.
(i) A person who violates a provision of Subsection (b) of
this section commits an offense. An offense under this section is a
Class C misdemeanor.
(j) A person who violates Subsection (b) of this section
commits a separate offense each day that the person violates a
provision of that subsection.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts
1985, 69th Leg., ch. 811, § 10, eff. Sept. 1, 1985; Acts 1993,
73rd Leg., ch. 300, § 8, eff. Aug. 30, 1993; Acts 1995, 74th
Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 17.11. DECEPTIVE WHOLESALE AND GOING-OUT-OF-BUSINESS
ADVERTISING. (a) In Subsection (b) of this section, unless the
context requires a different definition, "wholesaler" means a
person who sells for the purpose of resale and not directly to a
consuming purchaser.
(b) No person may wilfully misrepresent the nature of his
business by using in selling or advertising the word manufacturer,
wholesaler, retailer, or other word of similar meaning.
(c) No person may wilfully misrepresent the ownership of a
business for the purpose of holding a liquidation sale, auction
sale, or other sale which represents that the business is going out
of business. A person who advertises a liquidation sale, auction
sale, or going-out-of-business sale shall state the correct name
and permanent address of the owner of the business in the
advertising.
(d) A person who violates a provision of Subsection (b) or
(c) of this section is guilty of a misdemeanor and upon conviction
is punishable by a fine of not less than $100 nor more than $500.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.12. DECEPTIVE ADVERTISING. (a) No person may
disseminate a statement he knows materially misrepresents the cost
or character of tangible personal property, a security, service, or
anything he may offer for the purpose of
(1) selling, contracting to sell, otherwise disposing
of, or contracting to dispose of the tangible personal property,
security, service, or anything he may offer; or
(2) inducing a person to contract with regard to the
tangible personal property, security, service, or anything he may
offer.
(b) No person may solicit advertising in the name of a club,
association, or organization without the written permission of such
club, association, or organization or distribute any publication
purporting to represent officially a club, association, or
organization without the written authority of or a contract with
such club, association, or organization and without listing in such
publication the complete name and address of the club, association,
or organization endorsing it.
(c) A person's proprietary mark appearing on or in a
statement described in Subsection (a) of this section is prima
facie evidence that the person disseminated the statement.
(d) A person who violates a provision of Subsection (a) or
(b) of this Section is guilty of a misdemeanor and upon conviction
is punishable by a fine of not less than $10 nor more than $200.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts
1969, 61st Leg., p. 2045, ch. 701, § 1, eff. June 12, 1969.
SUBCHAPTER C. REGULATING THE SALE OR TRANSFER OF SECONDHAND WATCHES
§ 17.18. APPLICABILITY OF SUBCHAPTER TO SECONDHAND
WATCHES. (a) A watch is secondhand if its
(1) case, movement, or case and movement as a unit, has
been previously sold or transferred to a person for his own use or
the use of another;
(2) serial number, movement number, or other
identification mark or number has been removed, altered, or covered
up; or
(3) movement is more than one year old and has been
repaired even though the watch has been returned to the seller or
transferor for exchange or credit as described in Subsection (b)(1)
of this section.
(b) A watch is not secondhand if
(1) after the sale or transfer described in Subsection
(a)(1) of this section,
(A) the purchaser or transferee returns the watch
to the seller or transferor for exchange or credit within one year
from the date of sale or transfer to him;
(B) the seller or transferor keeps a written
record showing
(i) the purchaser's or transferee's name;
(ii) the date of sale or transfer;
(iii) the serial number on the case and
movement, if present; and
(iv) any proprietary mark;
(C) the record is kept for at least five years
from the date of sale or transfer; and
(D) the record is open for inspection at the
seller's or transferor's business address during business hours by
(i) the county or district attorney of the
county in which the seller or transferor does business; or
(ii) his duly authorized representative;
or
(2) its movement is merely cleaned, oiled, or recased.
(c) The provisions of Subsections (a) and (b) of this
section do not apply to a pawnbroker's auction sale of unredeemed
pledges.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.19. LABELING SECONDHAND WATCHES. No person in the
business of buying or selling watches may sell or exchange, offer to
sell or exchange, possess, or display with intent to sell or
exchange a secondhand watch unless he
(1) fastens to the watch a clearly written or printed
tag bearing the word "secondhand"; and
(2) places the tag so the word "secondhand" is in plain
sight at all times.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.20. CONTENT OF INVOICE FOR SECONDHAND
WATCH. (a) No person in the business of buying or selling watches
may sell or transfer a secondhand watch unless he gives the
purchaser or transferee a written invoice
(1) bearing the words "secondhand watch" in letters
larger than any other letters on the invoice, except those of the
letterhead; and
(2) listing the following items:
(A) the seller's or transferor's name and
address;
(B) the purchaser's or transferee's name and
address;
(C) the date of sale or transfer;
(D) the name of the watch or its manufacturer;
and
(E) the serial number or proprietary mark on the
watch or, if the serial number or proprietary mark has been removed,
altered, or covered up, a statement to that effect.
(b) The seller or transferor shall keep on file a duplicate
of the invoice required by Subsection (a) of this section for at
least five years from the date of sale or transfer.
(c) The county or district attorney, or his authorized
representative, of the county in which the seller or transferor
does business may inspect the duplicate invoice described in
Subsection (b) of this section
(1) during the seller's or transferor's business
hours; and
(2) at the seller's or transferor's business address.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.21. ADVERTISING WATCH AS SECONDHAND. No person may
advertise or display a secondhand watch for sale or exchange unless
he clearly states in the advertisement or display that the watch is
secondhand.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.22. CRIMINAL PENALTY. A person, or his agent or
employee, who violates a provision of Section 17.19, 17.20, or
17.21 of this code is guilty of a misdemeanor and upon conviction is
punishable by imprisonment in the county jail for not more than 100
days or by a fine of not more than $500 or by both.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
SUBCHAPTER D. COUNTERFEITING OR CHANGING A REQUIRED MARK; MISUSE
OF CONTAINER BEARING MARK
§ 17.29. MISUSING CONTAINER; EVIDENCE OF MISUSE AND
CONTAINER'S OWNERSHIP. (a) In this section, unless the context
requires a different definition, "container" also includes
drink-dispensing fountain.
(b) Unless the owner of a reusable container bearing a
proprietary mark (or one acting with the owner's written
permission) agrees, no person may
(1) fill the container for sale or other commercial
purpose;
(2) deface, cover up, or remove the proprietary mark
from the container; or
(3) refuse to return the container to the owner if he
requests its return.
(c) A person's wilful
(1) possession of a full or empty reusable container
without the owner's permission is prima facie evidence of his
violating a provision of Subsection (b) of this section;
(2) use, purchase, sale, or other disposition of a
full or empty reusable container without the owner's permission is
prima facie evidence of his violating a provision of Subsection (b)
of this section; and
(3) breaking, damaging, or destroying a full or empty
reusable container is prima facie evidence of his violating a
provision of Subsection (b) of this section.
(d) In an action in which the ownership of a reusable
container is in issue, a person's proprietary mark on the container
is prima facie evidence that the person or his licensee owns the
container.
(e) A person who violates a provision of Subsection (b) of
this section is guilty of a misdemeanor and upon conviction is
punishable by
(1) a fine of not less than $25 nor more than $50 for
each violation concerning a drink-dispensing fountain; or
(2) a fine of not less than $5 nor more than $10 for
each violation concerning any other container.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.30. MISUSING DAIRY CONTAINER BEARING PROPRIETARY
MARK. (a) In this section, unless the context requires a
different definition, "dairy container" includes butter box, ice
cream can, ice cream tub, milk bottle, milk bottle case, milk can,
and milk jar.
(b) Without the owner's consent, no person may
(1) fill with milk, cream, butter, or ice cream;
damage; mutilate; or destroy a dairy container bearing the owner's
commonly used proprietary mark; or
(2) wilfully refuse to return on request to the owner a
dairy container bearing his commonly used proprietary mark.
(c) Without the owner's written consent, no person may
(1) deface or remove an owner's proprietary mark from a
dairy container; or
(2) substitute on a dairy container his proprietary
mark for that of the owner.
(d) A person's commonly used proprietary mark on a dairy
container is prima facie evidence of that person's ownership of the
container.
(e) A person who violates a provision of Subsection (b) or
(c) of this section is guilty of a misdemeanor and upon conviction
is punishable by a fine of not less than $10 nor more than $100.
Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.
§ 17.31. IDENTIFICATION, POSSESSION, AND USE OF CERTAIN
CONTAINERS. (a) In this section:
(1) "Bakery basket or tray" means a wire or plastic
container that holds bread or other baked goods and is used by a
distributor or retailer or an agent of a distributor or retailer to
transport, store, or carry bakery products.
(2) "Container" means a bakery basket or tray, dairy
case, egg basket, poultry box, or other container used to
transport, store, or carry a product.
(3) "Dairy case" means a wire or plastic container
that holds 16 quarts or more of beverage and is used by a
distributor or retailer or an agent of a distributor or retailer to
transport, store, or carry dairy products.
(4) "Egg basket" means a permanent type of container
that contains four dozen or more shell eggs and is used by a
distributor or retailer or an agent of a distributor or retailer to
transport, store, or carry eggs.
(5) "Laundry cart" means a basket that is mounted on
wheels and used in a coin-operated laundry or dry cleaning
establishment by a customer or an attendant to transport laundry
and laundry supplies.
(6) "Name or mark" means any permanently affixed or
permanently stamped name or mark that is used for the purpose of
identifying the owner of a shopping cart, laundry cart, or
container.
(7) "Parking area" means a lot or other property
provided by a retail establishment for the use of customers to park
automobiles or other vehicles while doing business in that
establishment.
(8) "Poultry box" means a permanent type of container
that is used by a processor, distributor, retailer, or food service
establishment or an agent of one of those persons to transport,
store, or carry poultry.
(9) "Shopping cart" means a basket that is mounted on
wheels, or a similar device, generally used in a retail
establishment by a customer to transport goods of any kind.
(b) A person owning a shopping cart, laundry cart, or
container may adopt and use a name or mark on the carts or
containers.
(c) A person may not:
(1) use for any purpose outside the premises of the
owner or an adjacent parking area, a container of another that is
identified with or by any name or mark unless the use is authorized
by the owner;
(2) sell or offer for sale a container of another that
is identified with or by a name or mark unless the sale is
authorized by the owner; or
(3) deface, obliterate, destroy, cover up, or
otherwise remove or conceal a name or mark on a container of another
without the written consent of the owner.
(d) A common carrier or contract carrier, unless engaged in
the transporting of dairy products, eggs, and poultry to and from
farms where they are produced, may not receive or transport a
container marked with a name or mark unless the carrier has in the
carrier's possession a bill of lading or invoice for the container.
(e) A person may not remove a container from the premises,
parking area, or any other area of a processor, distributor, or
retail establishment or from a delivery vehicle unless the person
is legally authorized to do so, if:
(1) the container is marked on at least one side with a
name or mark; and
(2) a notice to the public, warning that unauthorized
use by a person other than the owner is punishable by law, is
visibly displayed on the container.
(f) A person may not:
(1) remove a shopping cart or laundry cart from the
premises or parking area of a retail establishment with intent to
temporarily or permanently deprive the owner of the cart or the
retailer of possession of the cart;
(2) remove a shopping cart or laundry cart, without
written authorization from the owner of the cart, from the premises
or parking area of any retail establishment;
(3) possess, without the written permission of the
owner or retailer in lawful possession of the cart, a shopping cart
or laundry cart outside the premises or parking lot of the retailer
whose name or mark appears on the cart; or
(4) remove, obliterate, or alter a serial number,
name, or mark affixed to a shopping cart or laundry cart.
(g) The requiring, taking, or accepting of a deposit on
delivery of a container, shopping cart, or laundry cart is not
considered a sale of the container or cart.
(h) A person who violates this section commits an offense.
An offense under this section is a Class C misdemeanor. Each
violation constitutes a separate offense.
(i) This section does not apply to the owner of a shopping
cart, laundry cart, or container or to a customer or any other
person who has written consent from the owner of a shopping cart,
laundry cart, or container or from a retailer in lawful possession
of the cart or container to remove it from the premises or the
parking area of the retail establishment. For the purposes of this
section, the term "written consent" includes tokens and other
indicia of consent established by the owner of the carts or the
retailer.
Added by Acts 1989, 71st Leg., ch. 724, § 1, eff. Sept. 1, 1989.
SUBCHAPTER E. DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION
§ 17.41. SHORT TITLE. This subchapter may be cited as
the Deceptive Trade Practices-Consumer Protection Act.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.42. WAIVERS: PUBLIC POLICY. (a) Any waiver by a
consumer of the provisions of this subchapter is contrary to public
policy and is unenforceable and void; provided, however, that a
waiver is valid and enforceable if:
(1) the waiver is in writing and is signed by the
consumer;
(2) the consumer is not in a significantly disparate
bargaining position; and
(3) the consumer is represented by legal counsel in
seeking or acquiring the goods or services.
(b) A waiver under Subsection (a) is not effective if the
consumer's legal counsel was directly or indirectly identified,
suggested, or selected by a defendant or an agent of the defendant.
(c) A waiver under this section must be:
(1) conspicuous and in bold-face type of at least 10
points in size;
(2) identified by the heading "Waiver of Consumer
Rights," or words of similar meaning; and
(3) in substantially the following form:
"I waive my rights under the Deceptive Trade Practices-Consumer
Protection Act, Section 17.41 et seq., Business & Commerce Code, a
law that gives consumers special rights and protections. After
consultation with an attorney of my own selection, I voluntarily
consent to this waiver."
(d) The waiver required by Subsection (c) may be modified to
waive only specified rights under this subchapter.
(e) The fact that a consumer has signed a waiver under this
section is not a defense to an action brought by the attorney
general under Section 17.47.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1981, 67th Leg., p. 863, ch. 307, § 1, eff.
Aug. 31, 1981; Acts 1983, 68th Leg., p. 4943, ch. 883, § 1, eff.
Aug. 29, 1983; Acts 1987, 70th Leg., ch. 167, § 5.02(6), eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 380, § 1, eff. Sept. 1,
1989; Acts 1995, 74th Leg., ch. 414, § 1, eff. Sept. 1, 1995.
§ 17.43. CUMULATIVE REMEDIES. The provisions of this
subchapter are not exclusive. The remedies provided in this
subchapter are in addition to any other procedures or remedies
provided for in any other law; provided, however, that no recovery
shall be permitted under both this subchapter and another law of
both damages and penalties for the same act or practice. A
violation of a provision of law other than this subchapter is not in
and of itself a violation of this subchapter. An act or practice
that is a violation of a provision of law other than this subchapter
may be made the basis of an action under this subchapter if the act
or practice is proscribed by a provision of this subchapter or is
declared by such other law to be actionable under this subchapter.
The provisions of this subchapter do not in any way preclude other
political subdivisions of this state from dealing with deceptive
trade practices.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1979, 66th Leg., p. 1327, ch. 603, § 1,
eff. Aug. 27, 1979; Acts 1995, 74th Leg., ch. 414, § 1, eff.
Sept. 1, 1995.
§ 17.44. CONSTRUCTION AND APPLICATION. (a) This
subchapter shall be liberally construed and applied to promote its
underlying purposes, which are to protect consumers against false,
misleading, and deceptive business practices, unconscionable
actions, and breaches of warranty and to provide efficient and
economical procedures to secure such protection.
(b) Chapter 27, Property Code, prevails over this
subchapter to the extent of any conflict.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1995, 74th Leg., ch. 414, § 1, eff. Sept.
1, 1995.
§ 17.45. DEFINITIONS. As used in this subchapter:
(1) "Goods" means tangible chattels or real property
purchased or leased for use.
(2) "Services" means work, labor, or service purchased
or leased for use, including services furnished in connection with
the sale or repair of goods.
(3) "Person" means an individual, partnership,
corporation, association, or other group, however organized.
(4) "Consumer" means an individual, partnership,
corporation, this state, or a subdivision or agency of this state
who seeks or acquires by purchase or lease, any goods or services,
except that the term does not include a business consumer that has
assets of $25 million or more, or that is owned or controlled by a
corporation or entity with assets of $25 million or more.
(5) "Unconscionable action or course of action" means
an act or practice which, to a consumer's detriment, takes
advantage of the lack of knowledge, ability, experience, or
capacity of the consumer to a grossly unfair degree.
(6) "Trade" and "commerce" mean the advertising,
offering for sale, sale, lease, or distribution of any good or
service, of any property, tangible or intangible, real, personal,
or mixed, and any other article, commodity, or thing of value,
wherever situated, and shall include any trade or commerce directly
or indirectly affecting the people of this state.
(7) "Documentary material" includes the original or a
copy of any book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situated.
(8) "Consumer protection division" means the
antitrust and consumer protection division of the attorney
general's office.
(9) "Knowingly" means actual awareness, at the time of
the act or practice complained of, of the falsity, deception, or
unfairness of the act or practice giving rise to the consumer's
claim or, in an action brought under Subdivision (2) of Subsection
(a) of Section 17.50, actual awareness of the act, practice,
condition, defect, or failure constituting the breach of warranty,
but actual awareness may be inferred where objective manifestations
indicate that a person acted with actual awareness.
(10) "Business consumer" means an individual,
partnership, or corporation who seeks or acquires by purchase or
lease, any goods or services for commercial or business use. The
term does not include this state or a subdivision or agency of this
state.
(11) "Economic damages" means compensatory damages
for pecuniary loss, including costs of repair and replacement. The
term does not include exemplary damages or damages for physical
pain and mental anguish, loss of consortium, disfigurement,
physical impairment, or loss of companionship and society.
(12) "Residence" means a building:
(A) that is a single-family house, duplex,
triplex, or quadruplex or a unit in a multiunit residential
structure in which title to the individual units is transferred to
the owners under a condominium or cooperative system; and
(B) that is occupied or to be occupied as the
consumer's residence.
(13) "Intentionally" means actual awareness of the
falsity, deception, or unfairness of the act or practice, or the
condition, defect, or failure constituting a breach of warranty
giving rise to the consumer's claim, coupled with the specific
intent that the consumer act in detrimental reliance on the falsity
or deception or in detrimental ignorance of the unfairness.
Intention may be inferred from objective manifestations that
indicate that the person acted intentionally or from facts showing
that a defendant acted with flagrant disregard of prudent and fair
business practices to the extent that the defendant should be
treated as having acted intentionally.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1975, 64th Leg., p. 149, ch. 62, § 1, eff.
Sept. 1, 1975; Acts 1977, 65th Leg., p. 600, ch. 216, § 1, eff.
May 23, 1977; Acts 1979, 66th Leg., p. 1327, ch. 603, § 2, eff.
Aug. 27, 1979; Acts 1983, 68th Leg., p. 4943, ch. 883, § 2, 3,
eff. Aug. 29, 1983; Acts 1995, 74th Leg., ch. 414, § 2, eff.
Sept. 1, 1995.
§ 17.46. DECEPTIVE TRADE PRACTICES
UNLAWFUL. (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 under
Sections 17.47, 17.58, 17.60, and 17.61 of this code.
(b) Except as provided in Subsection (d) of this section,
the term "false, misleading, or deceptive acts or practices"
includes, but is not limited to, the following acts:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the
source, sponsorship, approval, or certification of goods or
services;
(3) causing confusion or misunderstanding as to
affiliation, connection, or association with, or certification by,
another;
(4) using deceptive representations or designations
of geographic origin in connection with goods or services;
(5) representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has
a sponsorship, approval, status, affiliation, or connection which
he does not;
(6) representing that goods are original or new if
they are deteriorated, reconditioned, reclaimed, used, or
secondhand;
(7) representing that goods or services are of a
particular standard, quality, or grade, or that goods are of a
particular style or model, if they are of another;
(8) disparaging the goods, services, or business of
another by false or misleading representation of facts;
(9) advertising goods or services with intent not to
sell them as advertised;
(10) advertising goods or services with intent not to
supply a reasonable expectable public demand, unless the
advertisements disclosed a limitation of quantity;
(11) making false or misleading statements of fact
concerning the reasons for, existence of, or amount of price
reductions;
(12) representing that an agreement confers or
involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law;
(13) knowingly making false or misleading statements
of fact concerning the need for parts, replacement, or repair
service;
(14) misrepresenting the authority of a salesman,
representative or agent to negotiate the final terms of a consumer
transaction;
(15) basing a charge for the repair of any item in
whole or in part on a guaranty or warranty instead of on the value of
the actual repairs made or work to be performed on the item without
stating separately the charges for the work and the charge for the
warranty or guaranty, if any;
(16) disconnecting, turning back, or resetting the
odometer of any motor vehicle so as to reduce the number of miles
indicated on the odometer gauge;
(17) advertising of any sale by fraudulently
representing that a person is going out of business;
(18) advertising, selling, or distributing a card
which purports to be a prescription drug identification card issued
under Section 19A, Article 21.07-6, Insurance Code, in accordance
with rules adopted by the commissioner of insurance, which offers a
discount on the purchase of health care goods or services from a
third party provider, and which is not evidence of insurance
coverage, unless:
(A) the discount is authorized under an agreement
between the seller of the card and the provider of those goods and
services or the discount or card is offered to members of the
seller;
(B) the seller does not represent that the card
provides insurance coverage of any kind; and
(C) the discount is not false, misleading, or
deceptive;
(19) using or employing a chain referral sales plan in
connection with the sale or offer to sell of goods, merchandise, or
anything of value, which uses the sales technique, plan,
arrangement, or agreement in which the buyer or prospective buyer
is offered the opportunity to purchase merchandise or goods and in
connection with the purchase receives the seller's promise or
representation that the buyer shall have the right to receive
compensation or consideration in any form for furnishing to the
seller the names of other prospective buyers if receipt of the
compensation or consideration is contingent upon the occurrence of
an event subsequent to the time the buyer purchases the merchandise
or goods;
(20) representing that a guarantee or warranty confers
or involves rights or remedies which it does not have or involve,
provided, however, that nothing in this subchapter shall be
construed to expand the implied warranty of merchantability as
defined in Sections 2.314 through 2.318 and Sections 2A.212 through
2A.216 to involve obligations in excess of those which are
appropriate to the goods;
(21) promoting a pyramid promotional scheme, as
defined by Section 17.461;
(22) representing that work or services have been
performed on, or parts replaced in, goods when the work or services
were not performed or the parts replaced;
(23) filing suit founded upon a written contractual
obligation of and signed by the defendant to pay money arising out
of or based on a consumer transaction for goods, services, loans, or
extensions of credit intended primarily for personal, family,
household, or agricultural use in any county other than in the
county in which the defendant resides at the time of the
commencement of the action or in the county in which the defendant
in fact signed the contract; provided, however, that a violation of
this subsection shall not occur where it is shown by the person
filing such suit he neither knew or had reason to know that the
county in which such suit was filed was neither the county in which
the defendant resides at the commencement of the suit nor the county
in which the defendant in fact signed the contract;
(24) failing to disclose information concerning goods
or services which was known at the time of the transaction if such
failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have
entered had the information been disclosed;
(25) using the term "corporation," "incorporated," or
an abbreviation of either of those terms in the name of a business
entity that is not incorporated under the laws of this state or
another jurisdiction;
(26) selling, offering to sell, or illegally promoting
an annuity contract under Chapter 22, Acts of the 57th Legislature,
3rd Called Session, 1962 (Article 6228a-5, Vernon's Texas Civil
Statutes), with the intent that the annuity contract will be the
subject of a salary reduction agreement, as defined by that Act, if
the annuity contract is not an eligible qualified investment under
that Act; or
(27) taking advantage of a disaster declared by the
governor under Chapter 418, Government Code, by:
(A) selling or leasing fuel, food, medicine, or
another necessity at an exorbitant or excessive price; or
(B) demanding an exorbitant or excessive price in
connection with the sale or lease of fuel, food, medicine, or
another necessity.
(c)(1) It is the intent of the legislature that in construing
Subsection (a) of this section in suits brought under Section 17.47
of this subchapter the courts to the extent possible will be guided
by Subsection (b) of this section and the interpretations given by
the Federal Trade Commission and federal courts to Section 5(a)(1)
of the Federal Trade Commission Act [15 U.S.C.A. § 45(a)(1) ].
(2) In construing this subchapter the court shall not
be prohibited from considering relevant and pertinent decisions of
courts in other jurisdictions.
(d) For the purposes of the relief authorized in Subdivision
(1) of Subsection (a) of Section 17.50 of this subchapter, the term
"false, misleading, or deceptive acts or practices" is limited to
the acts enumerated in specific subdivisions of Subsection (b) of
this section.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 601, ch. 216, § 2, 3,
eff. May 23, 1977; Acts 1977, 65th Leg., p. 892, ch. 336, § 1,
eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1327, ch. 603, § 3,
eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 280, § 1, eff.
Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 570, § 6, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 414, § 3, eff. Sept. 1, 1995;
Acts 1995, 74th Leg., ch. 463, § 1, eff. Sept. 1, 1995; Acts
2001, 77th Leg., ch. 962, § 1, eff. Sept. 1, 2001; Acts 2001,
77th Leg., ch. 1229, § 27, eff. June 1, 2002; Acts 2003, 78th
Leg., ch. 1276, § 4.001(a), eff. Sept. 1, 2003.
§ 17.461. PYRAMID PROMOTIONAL SCHEME. (a) In this
section:
(1) "Compensation" means payment of money, a financial
benefit, or another thing of value. The term does not include
payment based on sale of a product to a person, including a
participant, who purchases the product for actual use or
consumption.
(2) "Consideration" means the payment of cash or the
purchase of a product. The term does not include:
(A) a purchase of a product furnished at cost to
be used in making a sale and not for resale;
(B) a purchase of a product subject to a
repurchase agreement that complies with Subsection (b); or
(C) time and effort spent in pursuit of a sale or
in a recruiting activity.
(3) "Participate" means to contribute money into a
pyramid promotional scheme without promoting, organizing, or
operating the scheme.
(4) "Product" means a good, a service, or intangible
property of any kind.
(5) "Promoting a pyramid promotional scheme" means:
(A) inducing or attempting to induce one or more
other persons to participate in a pyramid promotional scheme; or
(B) assisting another person in inducing or
attempting to induce one or more other persons to participate in a
pyramid promotional scheme, including by providing references.
(6) "Pyramid promotional scheme" means a plan or
operation by which a person gives consideration for the opportunity
to receive compensation that is derived primarily from a person's
introduction of other persons to participate in the plan or
operation rather than from the sale of a product by a person
introduced into the plan or operation.
(b) To qualify as a repurchase agreement for the purposes of
Subsection (a)(2)(B), an agreement must be an enforceable agreement
by the seller to repurchase, on written request of the purchaser and
not later than the first anniversary of the purchaser's date of
purchase, all unencumbered products that are in an unused,
commercially resalable condition at a price not less than 90
percent of the amount actually paid by the purchaser for the
products being returned, less any consideration received by the
purchaser for purchase of the products being returned. A product
that is no longer marketed by the seller is considered resalable if
the product is otherwise in an unused, commercially resalable
condition and is returned to the seller not later than the first
anniversary of the purchaser's date of purchase, except that the
product is not considered resalable if before the purchaser
purchased the product it was clearly disclosed to the purchaser
that the product was sold as a nonreturnable, discontinued,
seasonal, or special promotion item.
(c) A person commits an offense if the person contrives,
prepares, establishes, operates, advertises, sells, or promotes a
pyramid promotional scheme. An offense under this subsection is a
state jail felony.
(d) It is not a defense to prosecution for an offense under
this section that the pyramid promotional scheme involved both a
franchise to sell a product and the authority to sell additional
franchises if the emphasis of the scheme is on the sale of
additional franchises.
Added by Acts 1995, 74th Leg., ch. 463, § 2, eff. Sept. 1, 1995.
§ 17.462. LISTING OF BUSINESS LOCATION IN DIRECTORY OR
DATABASE. (a) A person may not misrepresent the geographical
location of a business that derives 50 percent or more of its gross
income from the sale or arranging for the sale of flowers or floral
arrangements in the listing of the business in a telephone
directory or other directory assistance database.
(b) A person is considered to misrepresent the geographical
location of a business for purposes of Subsection (a) if the name of
the business indicates that the business is located in a
geographical area and:
(1) the business is not located within the
geographical area indicated;
(2) the listing fails to identify the municipality and
state of the business's geographical location; and
(3) a telephone call to the local telephone number
listed in the directory or database routinely is forwarded or
transferred to a location that is outside the calling area covered
by the directory or database in which the number is listed.
(c) A person may place a directory listing for a business
described by Subsection (a) the name of which indicates that it is
located in a geographical area that is different from the
geographical area in which the business is located if a conspicuous
notice in the listing states the municipality and state in which the
business is located.
(d) This section does not apply to a publisher of a
telephone directory or other publication or a provider of a
directory assistance service publishing or providing information
about another business.
(e) This section creates no duty and imposes no obligation
upon anyone other than the business that is the subject of the
advertisement or listing.
(f) A violation of this section is a false, misleading, or
deceptive act or practice under this subchapter, and any public or
private right or remedy prescribed by this subchapter may be used to
enforce this section.
Added by Acts 2003, 78th Leg., ch. 138, § 1, eff. Sept. 1, 2003.
§ 17.47. RESTRAINING ORDERS. (a) 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 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 consumer protection
division to notify such person that court action is or may be under
consideration. Provided, however, the 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
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.
(b) An action brought under Subsection (a) of this section
which alleges a claim to relief under this section may be commenced
in the district court of the county in which the person against whom
it is brought resides, has his principal place of business, has done
business, or in the district court of the county where the
transaction occurred, or, on the consent of the parties, in a
district court of Travis County. The court may issue temporary
restraining orders, temporary or permanent injunctions to restrain
and prevent violations of this subchapter and such injunctive
relief shall be issued without bond.
(c) In addition to the request for a temporary restraining
order, or permanent injunction in a proceeding brought under
Subsection (a) of this section, the consumer protection division
may request, and the trier of fact may award, a civil penalty to be
paid to the state 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 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 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 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.
(f) An order of the court awarding civil penalties under
Subsection (e) of this section applies only to violations of the
injunction incurred prior to the awarding of the penalty order.
Second or subsequent violations of an injunction issued under this
section are subject to the same penalties set out in Subsection (e)
of this section.
(g) In determining the amount of penalty imposed under
Subsection (c), the trier of fact shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited act or
practice;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) the economic effect on the person against whom the
penalty is to be assessed;
(5) knowledge of the illegality of the act or
practice; and
(6) any other matter that justice may require.
(h) In bringing or participating in an action under this
subchapter, the 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 consumer
protection division requests that the court award relief.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 602, ch. 216, § 4, eff.
May 23, 1977; Acts 1985, 69th Leg., ch. 564, § 1, eff. Aug. 26,
1985; Acts 1989, 71st Leg., ch. 1082, § 8.01, eff. Jan. 1, 1991;
Acts 1991, 72nd Leg., ch. 242, § 11.18, eff. Sept. 1, 1991; Acts
1997, 75th Leg., ch. 388, § 1, eff. May 28, 1997; Acts 2003, 78th
Leg., ch. 360, § 1, eff. Sept. 1, 2003.
§ 17.48. DUTY OF DISTRICT AND COUNTY ATTORNEY. (a) It
is the duty of the district and county attorneys to lend to the
consumer protection division any assistance requested in the
commencement and prosecutions of action under this subchapter.
(b) A district or county attorney, with prior written notice
to the consumer protection division, may institute and prosecute
actions seeking injunctive relief 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.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.49. EXEMPTIONS. (a) Nothing in this subchapter
shall apply to the owner or employees of a regularly published
newspaper, magazine, or telephone directory, or broadcast station,
or billboard, wherein any advertisement in violation of this
subchapter is published or disseminated, unless it is established
that the owner or employees of the advertising medium have
knowledge of the false, deceptive, or misleading acts or practices
declared to be unlawful by this subchapter, or had a direct or
substantial financial interest in the sale or distribution of the
unlawfully advertised good or service. Financial interest as used
in this section relates to an expectation which would be the direct
result of such advertisement.
(b) Nothing in this subchapter shall apply to acts or
practices authorized under specific rules or regulations
promulgated by the Federal Trade Commission under Section 5(a)(1)
of the Federal Trade Commission Act [15 U.S.C.A. 45(a)(1) ]. The
provisions of this subchapter do apply to any act or practice
prohibited or not specifically authorized by a rule or regulation
of the Federal Trade Commission. An act or practice is not
specifically authorized if no rule or regulation has been issued on
the act or practice.
(c) Nothing in this subchapter shall apply to a claim for
damages based on the rendering of a professional service, the
essence of which is the providing of advice, judgment, opinion, or
similar professional skill. This exemption does not apply to:
(1) an express misrepresentation of a material fact
that cannot be characterized as advice, judgment, or opinion;
(2) a failure to disclose information in violation of
Section 17.46(b)(24);
(3) an unconscionable action or course of action that
cannot be characterized as advice, judgment, or opinion;
(4) breach of an express warranty that cannot be
characterized as advice, judgment, or opinion; or
(5) a violation of Section 17.46(b)(26).
(d) Subsection (c) applies to a cause of action brought
against the person who provided the professional service and a
cause of action brought against any entity that could be found to be
vicariously liable for the person's conduct.
(e) Except as specifically provided by Subsections (b) and
(h), Section 17.50, nothing in this subchapter shall apply to a
cause of action for bodily injury or death or for the infliction of
mental anguish.
(f) Nothing in the subchapter shall apply to a claim arising
out of a written contract if:
(1) the contract relates to a transaction, a project,
or a set of transactions related to the same project involving total
consideration by the consumer of more than $100,000;
(2) in negotiating the contract the consumer is
represented by legal counsel who is not directly or indirectly
identified, suggested, or selected by the defendant or an agent of
the defendant; and
(3) the contract does not involve the consumer's
residence.
(g) Nothing in this subchapter shall apply to a cause of
action arising from a transaction, a project, or a set of
transactions relating to the same project, involving total
consideration by the consumer of more than $500,000, other than a
cause of action involving a consumer's residence.
(h) A person who violates Section 17.46(b)(26) is jointly
and severally liable under that subdivision for actual damages,
court costs, and attorney's fees. Subject to Chapter 41, Civil
Practice and Remedies Code, exemplary damages may be awarded in the
event of fraud or malice.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1995, 74th Leg., ch. 414, § 4, eff. Sept.
1, 1995; Acts 2001, 77th Leg., ch. 1229, § 28, eff. June 1, 2002;
Acts 2003, 78th Leg., ch. 1276, § 4.001(b), eff. Sept. 1, 2003.
§ 17.50. RELIEF FOR CONSUMERS. (a) A consumer may
maintain an action where any of the following constitute a
producing cause of economic damages or damages for mental anguish:
(1) the use or employment by any person of a false,
misleading, or deceptive act or practice that is:
(A) specifically enumerated in a subdivision of
Subsection (b) of Section 17.46 of this subchapter; and
(B) relied on by a consumer to the consumer's
detriment;
(2) breach of an express or implied warranty;
(3) any unconscionable action or course of action by
any person; or
(4) the use or employment by any person of an act or
practice in violation of Article 21.21, Insurance Code.
(b) In a suit filed under this section, each consumer who
prevails may obtain:
(1) the amount of economic damages found by the trier
of fact. If the trier of fact finds that the conduct of the
defendant was committed knowingly, the consumer may also recover
damages for mental anguish, as found by the trier of fact, and the
trier of fact may award not more than three times the amount of
economic damages; or if the trier of fact finds the conduct was
committed intentionally, the consumer may recover damages for
mental anguish, as found by the trier of fact, and the trier of fact
may award not more than three times the amount of damages for mental
anguish and economic damages;
(2) an order enjoining such acts or failure to act;
(3) orders necessary to restore to any party to the
suit any money or property, real or personal, which may have been
acquired in violation of this subchapter; and
(4) any other relief which the court deems proper,
including the appointment of a receiver or the revocation of a
license or certificate authorizing a person to engage in business
in this state if the judgment has not been satisfied within three
months of the date of the final judgment. The court may not revoke
or suspend a license to do business in this state or appoint a
receiver to take over the affairs of a person who has failed to
satisfy a judgment if the person is a licensee of or regulated by a
state agency which has statutory authority to revoke or suspend a
license or to appoint a receiver or trustee. Costs and fees of such
receivership or other relief shall be assessed against the
defendant.
(c) On a finding by the court that an action under this
section was groundless in fact or law or brought in bad faith, or
brought for the purpose of harassment, the court shall award to the
defendant reasonable and necessary attorneys' fees and court costs.
(d) Each consumer who prevails shall be awarded court costs
and reasonable and necessary attorneys' fees.
(e) In computing additional damages under Subsection (b),
attorneys' fees, costs, and prejudgment interest may not be
considered.
(f) A court may not award prejudgment interest applicable
to:
(1) damages for future loss under this subchapter; or
(2) additional damages under Subsection (b).
(g) Chapter 41, Civil Practice and Remedies Code, does not
apply to a cause of action brought under this subchapter.
(h) Notwithstanding any other provision of this subchapter,
if a claimant is granted the right to bring a cause of action under
this subchapter by another law, the claimant is not limited to
recovery of economic damages only, but may recover any actual
damages incurred by the claimant, without regard to whether the
conduct of the defendant was committed intentionally. For the
purpose of the recovery of damages for a cause of action described
by this subsection only, a reference in this subchapter to economic
damages means actual damages. In applying Subsection (b)(1) to an
award of damages under this subsection, the trier of fact is
authorized to award a total of not more than three times actual
damages, in accordance with that subsection.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 603, ch. 216, § 5, eff.
May 23, 1977; Acts 1979, 66th Leg., p. 1329, ch. 603, § 4, eff.
Aug. 27, 1979; Acts 1989, 71st Leg., ch. 380, § 2, eff. Sept. 1,
1989; Acts 1995, 74th Leg., ch. 414, § 5, eff. Sept. 1, 1995.
§ 17.501. CONSUMER PROTECTION DIVISION PARTICIPATION IN
CLASS ACTION. (a) A consumer filing an action under Section 17.50
that is to be maintained as a class action shall send to the
consumer protection division:
(1) a copy of the notice required by Section
17.505(a), by registered or certified mail, at the same time the
notice is given to the person complained against; and
(2) a copy of the petition in the action not later than
the earlier of:
(A) the 30th day after the date the petition is
filed; or
(B) the 10th day before the date of any hearing on
class certification or a proposed settlement.
(b) The court shall abate the action for 60 days if the court
finds that notice was not provided to the consumer protection
division as required by Subsection (a).
(c) The court, on a showing of good cause, may allow the
consumer protection division, as representative of the public, to
intervene in an action to which this section applies. The consumer
protection division shall file its motion for intervention with the
court before which the action is pending and serve a copy of the
motion on each party to the action.
Added by Acts 2003, 78th Leg., ch. 360, § 2, eff. Sept. 1, 2003.
§ 17.505. NOTICE; INSPECTION. (a) As a prerequisite
to filing a suit seeking damages under Subdivision (1) of
Subsection (b) of Section 17.50 of this subchapter against any
person, a consumer shall give written notice to the person at least
60 days before filing the suit advising the person in reasonable
detail of the consumer's specific complaint and the amount of
economic damages, damages for mental anguish, and expenses,
including attorneys' fees, if any, reasonably incurred by the
consumer in asserting the claim against the defendant. During the
60-day period a written request to inspect, in a reasonable manner
and at a reasonable time and place, the goods that are the subject
of the consumer's action or claim may be presented to the consumer.
(b) If the giving of 60 days' written notice is rendered
impracticable by reason of the necessity of filing suit in order to
prevent the expiration of the statute of limitations or if the
consumer's claim is asserted by way of counterclaim, the notice
provided for in Subsection (a) of this section is not required, but
the tender provided for by Subsection (d), Section 17.506 of this
subchapter may be made within 60 days after service of the suit or
counterclaim.
(c) A person against whom a suit is pending who does not
receive written notice, as required by Subsection (a), may file a
plea in abatement not later than the 30th day after the date the
person files an original answer in the court in which the suit is
pending. This subsection does not apply if Subsection (b) applies.
(d) The court shall abate the suit if the court, after a
hearing, finds that the person is entitled to an abatement because
notice was not provided as required by this section. A suit is
automatically abated without the order of the court beginning on
the 11th day after the date a plea in abatement is filed under
Subsection (c) if the plea in abatement:
(1) is verified and alleges that the person against
whom the suit is pending did not receive the written notice as
required by Subsection (a); and
(2) is not controverted by an affidavit filed by the
consumer before the 11th day after the date on which the plea in
abatement is filed.
(e) An abatement under Subsection (d) continues until the
60th day after the date that written notice is served in compliance
with Subsection (a).
Added by Acts 1977, 65th Leg., p. 604, ch. 216, § 6, eff. May 23,
1977. Amended by Acts 1979, 66th Leg., p. 1330, ch. 603, § 5,
eff. Aug. 27, 1979. Renumbered from V.T.C.A., Bus. & C. Code §
17.50A and amended by Acts 1987, 70th Leg., ch. 167, § 5.02(4),
(5), eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 380,
§ 3, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 414, § 6,
eff. Sept. 1, 1995.
§ 17.5051. MEDIATION. (a) A party may, not later than
the 90th day after the date of service of a pleading in which relief
under this subchapter is sought, file a motion to compel mediation
of the dispute in the manner provided by this section.
(b) The court shall, not later than the 30th day after the
date a motion under this section is filed, sign an order setting the
time and place of the mediation.
(c) If the parties do not agree on a mediator, the court
shall appoint the mediator.
(d) Mediation shall be held within 30 days after the date
the order is signed, unless the parties agree otherwise or the court
determines that additional time, not to exceed an additional 30
days, is warranted.
(e) Except as agreed to by all parties who have appeared in
the action, each party who has appeared shall participate in the
mediation and, except as provided by Subsection (f), shall share
the mediation fee.
(f) A party may not compel mediation under this section if
the amount of economic damages claimed is less than $15,000, unless
the party seeking to compel mediation agrees to pay the costs of the
mediation.
(g) Except as provided in this section, Section 154.023,
Civil Practice and Remedies Code, and Subchapters C and D, Chapter
154, Civil Practice and Remedies Code, apply to the appointment of a
mediator and to the mediation process provided by this section.
(h) This section does not apply to an action brought by the
attorney general under Section 17.47.
Added by Acts 1995, 74th Leg., ch. 414, § 7, eff. Sept. 1, 1995.
§ 17.5052. OFFERS OF SETTLEMENT. (a) A person who
receives notice under Section 17.505 may tender an offer of
settlement at any time during the period beginning on the date the
notice is received and ending on the 60th day after that date.
(b) If a mediation under Section 17.5051 is not conducted,
the person may tender an offer of settlement at any time during the
period beginning on the date an original answer is filed and ending
on the 90th day after that date.
(c) If a mediation under Section 17.5051 is conducted, a
person against whom a claim under this subchapter is pending may
tender an offer of settlement during the period beginning on the day
after the date that the mediation ends and ending on the 20th day
after that date.
(d) An offer of settlement tendered by a person against whom
a claim under this subchapter is pending must include an offer to
pay the following amounts of money, separately stated:
(1) an amount of money or other consideration, reduced
to its cash value, as settlement of the consumer's claim for
damages; and
(2) an amount of money to compensate the consumer for
the consumer's reasonable and necessary attorneys' fees incurred as
of the date of the offer.
(e) Unless both parts of an offer of settlement required
under Subsection (d) are accepted by the consumer not later than the
30th day after the date the offer is made, the offer is rejected.
(f) A settlement offer tendered by a person against whom a
claim under this subchapter is pending that complies with this
section and that has been rejected by the consumer may be filed with
the court with an affidavit certifying its rejection.
(g) If the court finds that the amount tendered in the
settlement offer for damages under Subsection (d)(1) is the same
as, substantially the same as, or more than the damages found by the
trier of fact, the consumer may not recover as damages any amount in
excess of the lesser of:
(1) the amount of damages tendered in the settlement
offer; or
(2) the amount of damages found by the trier of fact.
(h) If the court makes the finding described by Subsection
(g), the court shall determine reasonable and necessary attorneys'
fees to compensate the consumer for attorneys' fees incurred before
the date and time of the rejected settlement offer. If the court
finds that the amount tendered in the settlement offer to
compensate the consumer for attorneys' fees under Subsection (d)(2)
is the same as, substantially the same as, or more than the amount
of reasonable and necessary attorneys' fees incurred by the
consumer as of the date of the offer, the consumer may not recover
attorneys' fees greater than the amount of fees tendered in the
settlement offer.
(i) If the court finds that the offering party could not
perform the offer at the time the offer was made or that the
offering party substantially misrepresented the cash value of the
offer, Subsections (g) and (h) do not apply.
(j) If Subsection (g) does not apply, the court shall award
as damages the amount of economic damages and damages for mental
anguish found by the trier of fact, subject to Sections 17.50 and
17.501. If Subsection (h) does not apply, the court shall award
attorneys' fees as provided by Section 17.50(d).
(k) An offer of settlement is not an admission of engaging
in an unlawful act or practice or liability under this subchapter.
Except as otherwise provided by this section, an offer or a
rejection of an offer may not be offered in evidence at trial for
any purpose.
Added by Acts 1995, 74th Leg., ch. 414, § 7, eff. Sept. 1, 1995.
§ 17.506. DAMAGES: DEFENSES. (a) In an action brought
under Section 17.50 of this subchapter, it is a defense to the award
of any damages or attorneys' fees if the defendant proves that
before consummation of the transaction he gave reasonable and
timely written notice to the plaintiff of the defendant's reliance
on:
(1) written information relating to the particular
goods or service in question obtained from official government
records if the written information was false or inaccurate and the
defendant did not know and could not reasonably have known of the
falsity or inaccuracy of the information;
(2) written information relating to the particular
goods or service in question obtained from another source if the
information was false or inaccurate and the defendant did not know
and could not reasonably have known of the falsity or inaccuracy of
the information; or
(3) written information concerning a test required or
prescribed by a government agency if the information from the test
was false or inaccurate and the defendant did not know and could not
reasonably have known of the falsity or inaccuracy of the
information.
(b) In asserting a defense under Subdivision (1), (2), or
(3) of Subsection (a) of Section 17.506 above, the defendant shall
prove the written information was a producing cause of the alleged
damage. A finding of one producing cause does not bar recovery if
other conduct of the defendant not the subject of a defensive
finding under Subdivision (1), (2), or (3) of Subsection (a) of
Section 17.506 above was a producing cause of damages of the
plaintiff.
(c) In a suit where a defense is asserted under Subdivision
(2) of Subsection (a) of Section 17.506 above, suit may be asserted
against the third party supplying the written information without
regard to privity where the third party knew or should have
reasonably foreseen that the information would be provided to a
consumer; provided no double recovery may result.
(d) In an action brought under Section 17.50 of this
subchapter, it is a defense to a cause of action if the defendant
proves that he received notice from the consumer advising the
defendant of the nature of the consumer's specific complaint and of
the amount of economic damages, damages for mental anguish, and
expenses, including attorneys' fees, if any, reasonably incurred by
the consumer in asserting the claim against the defendant, and that
within 30 days after the day on which the defendant received the
notice the defendant tendered to the consumer:
(1) the amount of economic damages and damages for
mental anguish claimed; and
(2) the expenses, including attorneys' fees, if any,
reasonably incurred by the consumer in asserting the claim against
the defendant.
Added by Acts 1979, 66th Leg., p. 1331, ch. 603, § 6, eff. Aug.
27, 1979. Renumbered from V.T.C.A., Bus. & C. Code § 17.50B and
amended by Acts 1987, 70th Leg., ch. 167, § 5.02(5), eff. Sept.
1, 1987. Amended by Acts 1995, 74th Leg., ch. 414, § 8, eff.
Sept. 1, 1995.
§ 17.55. PROMOTIONAL MATERIAL. If damages or civil
penalties are assessed against the seller of goods or services for
advertisements or promotional material in a suit filed under
Section 17.47, 17.48, 17.50, or 17.51 of this subchapter, the
seller of the goods or services has a cause of action against a
third party for the amount of damages or civil penalties assessed
against the seller plus attorneys' fees on a showing that:
(1) the seller received the advertisements or
promotional material from the third party;
(2) the seller's only action with regard to the
advertisements or promotional material was to disseminate the
material; and
(3) the seller has ceased disseminating the material.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.555. INDEMNITY. A person against whom an action
has been brought under this subchapter may seek contribution or
indemnity from one who, under the statute law or at common law, may
have liability for the damaging event of which the consumer
complains. A person seeking indemnity as provided by this section
may recover all sums that he is required to pay as a result of the
action, his attorney's fees reasonable in relation to the amount of
work performed in maintaining his action for indemnity, and his
costs.
Added by Acts 1977, 65th Leg., p. 604, ch. 216, § 7, eff. May 23,
1977. Renumbered from § 17.55A by Acts 1987, 70th Leg., ch. 167,
§ 5.02(6), eff. Sept. 1, 1987.
§ 17.56. VENUE.
Text of section as amended by Acts 1995, 74th Leg., ch. 138, § 7.
Except as provided by Article 5.06-1(8), Insurance Code, an
action brought which alleges a claim to relief under Section 17.50
of this subchapter shall be brought as provided by Chapter 15, Civil
Practice and Remedies Code.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 604, ch. 216, § 8, eff.
May 23, 1977; Acts 1979, 66th Leg., p. 1332, ch. 603, § 7, eff.
Aug. 27, 1979; Acts 1995, 74th Leg., ch. 138, § 7, eff. Aug. 28,
1995.
For text of section as amended by Acts 1995, 74th Leg., ch. 414,
§ 9, see § 17.56, post.
§ 17.56. VENUE.
Text of section as amended by Acts 1995, 74th Leg., ch. 414, § 9.
An action brought under this subchapter may be brought:
(1) in any county in which venue is proper under
Chapter 15, Civil Practice and Remedies Code; or
(2) in a county in which the defendant or an authorized
agent of the defendant solicited the transaction made the subject
of the action at bar.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 604, ch. 216, § 8, eff.
May 23, 1977; Acts 1979, 66th Leg., p. 1332, ch. 603, § 7, eff.
Aug. 27, 1979; Acts 1995, 74th Leg., ch. 414, § 9, eff. Sept. 1,
1995.
For text of section as amended by Acts 1995, 74th Leg., ch. 138,
§ 7, see § 17.56, ante.
§ 17.565. LIMITATION. All actions brought under this
subchapter must be commenced within two years after the date on
which the false, misleading, or deceptive act or practice occurred
or within two years after the consumer discovered or in the exercise
of reasonable diligence should have discovered the occurrence of
the false, misleading, or deceptive act or practice. The period of
limitation provided in this section may be extended for a period of
180 days if the plaintiff proves that failure timely to commence the
action was caused by the defendant's knowingly engaging in conduct
solely calculated to induce the plaintiff to refrain from or
postpone the commencement of the action.
Added by Acts 1979, 66th Leg., p. 1332, ch. 603, § 8, eff. Aug.
27, 1979. Renumbered from V.T.C.A., Bus. & C. Code § 17.56A by
Acts 1987, 70th Leg., ch. 167, § 5.02(7), eff. Sept. 1, 1987.
§ 17.57. SUBPOENAS. The clerk of a district court at
the request of any party to a suit pending in his court which is
brought under this subchapter shall issue a subpoena for any
witness or witnesses who may be represented to reside within 100
miles of the courthouse of the county in which the suit is pending
or who may be found within such distance at the time of trial. The
clerk shall issue a separate subpoena and a copy thereof for each
witness subpoenaed. When an action is pending in Travis County on
the consent of the parties a subpoena may be issued for any witness
or witnesses who may be represented to reside within 100 miles of
the courthouse of a county in which the suit could otherwise have
been brought or who may be found within such distance at the time of
the trial.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.58. VOLUNTARY COMPLIANCE. (a) In the
administration of this subchapter the consumer protection division
may accept assurance of voluntary compliance with respect to any
act or practice which violates this subchapter from any person who
is engaging in, has engaged in, or is about to engage in the act or
practice. The assurance shall be in writing and shall be filed with
and subject to the approval of the district court in the county in
which the alleged violator resides or does business or in the
district court of Travis County.
(b) The acceptance of an assurance of voluntary compliance
may be conditioned on the stipulation that the person in violation
of this subchapter restore to any person in interest any money or
property, real or personal, which may have been acquired by means of
acts or practices which violate this subchapter.
(c) An assurance of voluntary compliance shall not be
considered an admission of prior violation of this subchapter.
However, unless an assurance has been rescinded by agreement of the
parties or voided by a court for good cause, subsequent failure to
comply with the terms of an assurance is prima facie evidence of a
violation of this subchapter.
(d) Matters closed by the filing of an assurance of
voluntary compliance may be reopened at any time. Assurances of
voluntary compliance shall in no way affect individual rights of
action under this subchapter, except that the rights of individuals
with regard to money or property received pursuant to a stipulation
in the voluntary compliance under Subsection (b) of this section
are governed by the terms of the voluntary compliance.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.59. POST JUDGMENT RELIEF. (a) If a money judgment
entered under this subchapter is unsatisfied 30 days after it
becomes final and if the prevailing party has made a good faith
attempt to obtain satisfaction of the judgment, the following
presumptions exist with respect to the party against whom the
judgment was entered:
(1) that the defendant is insolvent or in danger of
becoming insolvent; and
(2) that the defendant's property is in danger of being
lost, removed, or otherwise exempted from collection on the
judgment; and
(3) that the prevailing party will be materially
injured unless a receiver is appointed over the defendant's
business; and
(4) that there is no adequate remedy other than
receivership available to the prevailing party.
(b) Subject to the provisions of Subsection (a) of this
section, a prevailing party may move that the defendant show cause
why a receiver should not be appointed. Upon adequate notice and
hearing, the court shall appoint a receiver over the defendant's
business unless the defendant proves that all of the presumptions
set forth in Subsection (a) of this section are not applicable.
(c) The order appointing a receiver must clearly state
whether the receiver will have general power to manage and operate
the defendant's business or have power to manage only a defendant's
finances. The order shall limit the duration of the receivership to
such time as the judgment or judgments awarded under this
subchapter are paid in full. Where there are judgments against a
defendant which have been awarded to more than one plaintiff, the
court shall have discretion to take any action necessary to
efficiently operate a receivership in order to accomplish the
purpose of collecting the judgments.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1977, 65th Leg., p. 604, ch. 216, § 9, eff.
May 23, 1977.
§ 17.60. REPORTS AND EXAMINATIONS. Whenever the
consumer protection division has reason to believe that a person is
engaging in, has engaged in, or is about to engage in any act or
practice declared to be unlawful by this subchapter, or when it
reasonably believes it to be in the public interest to conduct an
investigation to ascertain whether any person is engaging in, has
engaged in, or is about to engage in any such act or practice, an
authorized member of the division may:
(1) require the person to file on the prescribed forms
a statement or report in writing, under oath or otherwise, as to all
the facts and circumstances concerning the alleged violation and
such other data and information as the consumer protection division
deems necessary;
(2) examine under oath any person in connection with
this alleged violation;
(3) examine any merchandise or sample of merchandise
deemed necessary and proper; and
(4) pursuant to an order of the appropriate court,
impound any sample of merchandise that is produced in accordance
with this subchapter and retain it in the possession of the division
until the completion of all proceedings in connection with which
the merchandise is produced.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1989, 71st Leg., ch. 1082, § 8.02, eff.
Jan. 1, 1991; Acts 1991, 72nd Leg., ch. 242, § 11.19, eff. Sept.
1, 1991.
§ 17.61. CIVIL INVESTIGATIVE DEMAND. (a) Whenever the
consumer protection division believes that any person may be in
possession, custody, or control of the original copy of any
documentary material relevant to the subject matter of an
investigation of a possible violation of this subchapter, an
authorized agent of the division may execute in writing and serve on
the person a civil investigative demand requiring the person to
produce the documentary material and permit inspection and copying.
(b) Each demand shall:
(1) state the statute and section under which the
alleged violation is being investigated, and the general subject
matter of the investigation;
(2) describe the class or classes of documentary
material to be produced with reasonable specificity so as to fairly
indicate the material demanded;
(3) prescribe a return date within which the
documentary material is to be produced; and
(4) identify the members of the consumer protection
division to whom the documentary material is to be made available
for inspection and copying.
(c) A civil investigative demand may contain a requirement
or disclosure of documentary material which would be discoverable
under the Texas Rules of Civil Procedure.
(d) Service of any demand may be made by:
(1) delivering a duly executed copy of the demand to
the person to be served or to a partner or to any officer or agent
authorized by appointment or by law to receive service of process on
behalf of that person;
(2) delivering a duly executed copy of the demand to
the principal place of business in the state of the person to be
served;
(3) mailing by registered mail or certified mail a
duly executed copy of the demand addressed to the person to be
served at the principal place of business in this state, or if the
person has no place of business in this state, to his principal
office or place of business.
(e) Documentary material demanded pursuant to this section
shall be produced for inspection and copying during normal business
hours at the principal office or place of business of the person
served, or at other times and places as may be agreed on by the
person served and the consumer protection division.
(f) No documentary material produced pursuant to a demand
under this section, unless otherwise ordered by a court for good
cause shown, shall be produced for inspection or copying by, nor
shall its contents be disclosed to any person other than the
authorized employee of the consumer protection division without the
consent of the person who produced the material. The consumer
protection division shall prescribe reasonable terms and
conditions allowing the documentary material to be available for
inspection and copying by the person who produced the material or
any duly authorized representative of that person. The consumer
protection division may use the documentary material or copies of
it as it determines necessary in the enforcement of this
subchapter, including presentation before any court. Any material
which contains trade secrets shall not be presented except with the
approval of the court in which the action is pending after adequate
notice to the person furnishing the material.
(g) At any time before the return date specified in the
demand, or within 20 days after the demand has been served,
whichever period is shorter, a petition to extend the return date
for, or to modify or set aside the demand, stating good cause, may
be filed in the district court in the county where the parties
reside, or a district court of Travis County.
(h) A person on whom a demand is served under this section
shall comply with the terms of the demand unless otherwise provided
by a court order.
(i) Personal service of a similar investigative demand
under this section may be made on any person outside of this state
if the person has engaged in conduct in violation of this
subchapter. Such persons shall be deemed to have submitted
themselves to the jurisdiction of this state within the meaning of
this section.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973. Amended by Acts 1989, 71st Leg., ch. 1082, § 8.03, eff.
Jan. 1, 1991; Acts 1991, 72nd Leg., ch. 242, § 11.20, eff. Sept.
1, 1991.
§ 17.62. PENALTIES. (a) Any person who, with intent to
avoid, evade, or prevent compliance, in whole or in part, with
Section 17.60 or 17.61 of this subchapter, removes from any place,
conceals, withholds, or destroys, mutilates, alters, or by any
other means falsifies any documentary material or merchandise or
sample of merchandise is guilty of a misdemeanor and on conviction
is punishable by a fine of not more than $5,000 or by confinement in
the county jail for not more than one year, or both.
(b) If a person fails to comply with a directive of the
consumer protection division under Section 17.60 of this subchapter
or with a civil investigative demand for documentary material
served on him under Section 17.61 of this subchapter, or if
satisfactory copying or reproduction of the material cannot be done
and the person refuses to surrender the material, the consumer
protection division 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 Sections 17.60 and 17.61 of this subchapter. If the
person transacts business in more than one county, the petition
shall be filed in the county in which the person maintains his
principal place of business, or in another county agreed on by the
parties to the petition.
(c) When a petition is filed in the district court in any
county under this section, the court shall have jurisdiction to
hear and determine the matter presented and to enter any order
required to carry into effect the provisions of Sections 17.60 and
17.61 of this subchapter. Any final order entered is subject to
appeal to the Texas Supreme Court. Failure to comply with any final
order entered under this section is punishable by contempt.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
§ 17.63. APPLICATION. The provisions of this
subchapter apply only to acts or practices occurring after the
effective date of this subchapter, except a right of action or power
granted to the attorney general under Chapter 10, Title 79, Revised
Civil Statutes of Texas, 1925, as amended, prior to the effective
date of this subchapter.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21,
1973.
SUBCHAPTER F. GOING OUT OF BUSINESS SALES
§ 17.81. DEFINITION. In this chapter "going out of
business sale" means an offer to sell to the public, or the sale to
the public of, goods, wares, and merchandise on the implied or
direct representation by written or oral advertising that the sale
is in anticipation of the termination of all of the operations of a
business at all of its locations in a county and in all of the
counties immediately adjacent to that county.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.82. PROHIBITED CONDUCT. (a) A person may not
conduct a sale advertised with the phrase "going out of business,"
"closing out," "shutting doors forever," or "bankruptcy sale"; the
word "foreclosure" or "bankruptcy"; or a similar phrase or word
indicating that an enterprise is ceasing business unless the
business is closing all of its operations in a county and in all of
the counties immediately adjacent to that county and follows the
procedures required by this subchapter.
(b) A person may not fraudulently represent that the person
is conducting a going out of business sale.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.83. ORIGINAL INVENTORY. (a) To conduct a going
out of business sale, a person must file an original inventory with
the chief appraiser of the appraisal district in which the person's
principal place of business in the state is located. The original
inventory must be accompanied by a filing fee of $20.
(b) The original inventory must include:
(1) the name and address of the owner of the goods,
wares, or merchandise to be sold;
(2) the name and address of the owner of the defunct
business, the former stock in trade of which is to be offered for
sale, and the full name of the defunct business;
(3) a description of the place where the liquidation
sale is to be held;
(4) a statement of the beginning and ending dates of
the sale;
(5) a complete and detailed inventory of the goods,
wares, and merchandise to be offered on the beginning date of the
sale and the total cost of those items; and
(6) a complete and detailed list of the goods, wares,
and merchandise to be added to the inventory after the beginning
date of the sale and the total cost of those items.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
Amended by Acts 2001, 77th Leg., ch. 291, § 1, eff. Sept. 1,
2001.
§ 17.835. NOTICE OF FILING OF ORIGINAL INVENTORY. Not
later than the fifth business day after the date on which a person
files an original inventory under Section 17.83, the chief
appraiser shall send notice of the filing to the comptroller, the
county clerk of the county in which the person's principal place of
business in the state is located, and the tax collector for each of
the taxing units that tax the property described in the original
inventory.
Added by Acts 2001, 77th Leg., ch. 291, § 2, eff. Sept. 1, 2001.
§ 17.84. PERMIT. (a) After receiving an original
inventory, the chief appraiser shall issue to the applicant a
permit for a going out of business sale. The permit is valid for 120
days after the day that it is issued and is not renewable.
(b) The permit holder must post the permit in a conspicuous
place at the location of the going out of business sale.
(c) Before advertising a going out of business sale, the
permit holder shall deliver a copy of the permit to the person
publishing or broadcasting the advertisement.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
Amended by Acts 2001, 77th Leg., ch. 291, § 3, eff. Sept. 1,
2001.
§ 17.85. DEADLINE FOR ORDERS. A person may not sell an
item at a going out of business sale if the person ordered the item
after the beginning date of the sale.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.86. SALE INVENTORY. Before the end of each 30-day
period during the going out of business sale the permit holder shall
file with the chief appraiser a sale inventory containing a
complete and detailed list of the goods, wares, and merchandise
listed in the original inventory that have not been sold before the
date that the sale inventory is filed. A sale inventory must list
items offered on the beginning date of the sale separately from the
items added to the sale inventory after that date.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
Amended by Acts 2001, 77th Leg., ch. 291, § 4, eff. Sept. 1,
2001.
§ 17.87. FINAL INVENTORY. Within 30 days after the day
that the going out of business sale ends, the permit holder shall
file with the chief appraiser a final inventory. The final
inventory must include:
(1) the name and address of the permit holder;
(2) a statement of the disposition of the items listed
in the original inventory that were not sold during the going out of
business sale and the name and address of any person purchasing
those items after the ending date of the sale; and
(3) a description of the place where the sale was held.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
Amended by Acts 2001, 77th Leg., ch. 291, § 5, eff. Sept. 1,
2001.
§ 17.88. DISPOSITION OF SALE ITEMS. After a permit
expires, the permit holder may not sell at retail an item offered at
the sale covered by the permit.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.89. LATER SALES. A person may not conduct a going
out of business sale beginning within two years after the ending
date of the most recent going out of business sale conducted by the
person.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.90. FORM OF INVENTORY. An inventory filed under
this subchapter must be in the form of a sworn affidavit.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.91. EXCEPTIONS. This subchapter does not apply to:
(1) a sale conducted by a public officer as part of the
officer's official duties;
(2) a sale for which an accounting must be made to a
court of law;
(3) a sale conducted pursuant to an order of a court;
or
(4) a foreclosure sale pursuant to a deed of trust or
other lien.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.92. PENALTY. (a) A person commits an offense if
the person:
(1) conducts a sale in violation of Section 17.82 of
this code;
(2) conducts a going out of business sale without a
valid permit issued under Section 17.84 of this code;
(3) sells an item at a going out of business sale in
violation of Section 17.85 of this code;
(4) fails to file an inventory required by Section
17.86 or 17.87 of this code; or
(5) sells an item at retail in violation of Section
17.88 of this code.
(b) An offense under this section is a Class A misdemeanor.
(c) Each day of violation constitutes a separate offense.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
§ 17.93. INJUNCTION. The attorney general may bring an
action to enjoin a violation of this subchapter.
Added by Acts 1985, 69th Leg., ch. 172, § 1, eff. Sept. 1, 1985.
SUBCHAPTER G. LABELING, ADVERTISING, AND SALE OF KOSHER FOODS
§ 17.821. DEFINITIONS. In this chapter:
(1) "Kosher food" means food prepared and served in
conformity with orthodox Jewish religious requirements.
(2) "Label" means a display of written, printed, or
graphic matter on the immediate article or container of any food
product.
(3) "Person" includes an individual, corporation, or
association.
(4) "Restaurant" means a place where food is sold for
on-premises consumption.
(5) "Retail store" means any retail grocery store,
delicatessen, butcher shop, or other place where food is sold for
off-premises consumption.
(6) "Sell" means to offer for sale, expose for sale,
have in possession for sale, convey, exchange, barter, or trade.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
§ 17.822. MEAT LABELING. (a) If a person sells both
kosher meat and nonkosher meat in the same retail store, the person
shall clearly label each portion of kosher meat with the word
"kosher." If unwrapped or unpackaged meat products are displayed
for sale, the display case or container in which the meat is
displayed must be clearly labeled with the word "kosher" or
"nonkosher," as applicable.
(b) A person commits an offense if the person is required to
label meat in accordance with this section and the person knowingly
sells meat that is not labeled as provided in this section.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
§ 17.823. SALE OF NONKOSHER FOOD. A person commits an
offense if the person knowingly or intentionally sells at a
restaurant or a retail store a food product that is represented as
kosher food and is not kosher food and the person either knows the
food is not kosher food or was reckless about determining whether or
not the food is kosher food.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
§ 17.824. EXCEPTION. It is an exception to the
application of Subsection (b) of Section 17.822 or Section 17.823
of this code that a person describes or labels food as
"kosher-style," and, if the description is written, the words
"kosher" and "style" are of the same size type or script.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
§ 17.825. CIVIL REMEDY. A consumer aggrieved by a
violation of this chapter may maintain a cause of action for damages
in accordance with Section 17.50 of this code.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
§ 17.826. PENALTY. An offense under this chapter is
punishable by the fine imposed for an offense under Subsection (d)
of Section 17.12 of this code.
Added by Acts 1985, 69th Leg., ch. 117, § 8(a), eff. Sept. 1,
1985.
SUBCHAPTER H. SALE OF INDIAN ARTICLES
§ 17.851. DEFINITIONS. In this subchapter:
(1) "American Indian" or "Indian" means an individual
who is an enrolled member of a federally or state recognized
American Indian tribe, band, nation, rancheria, or pueblo or who is
an Alaska Native and a member of an Alaska Native village or
regional or village corporation as defined in or established under
the Alaska Native Claims Settlement Act (43 U.S.C. § 1601 et
seq.).
(2) "Authentic Indian arts and crafts" means any
product that:
(A) is Indian handcrafted; and
(B) is not made by machine or from unnatural
materials, except stabilized or treated turquoise.
(3) "Nonauthentic Indian arts and crafts" means any
product that is made to imitate or resemble authentic Indian arts
and crafts and that:
(A) is not Indian handcrafted; or
(B) is made by machine or from unnatural
materials, except stabilized or treated turquoise.
(4) "Indian handcrafted" means the skillful and expert
use of the hands in making products solely by Indians within the
United States, including the use of findings and hand tools and
equipment for buffing, polishing, grinding, drilling, or sewing.
(5) "Made by machine" means the producing or
reproducing of a product in mass production by mechanically
stamping, casting, blanking, or weaving.
(6) "Findings" means an ingredient that adapts the
product of which it is a part for wearing or display, including
ceramic, glass, or silver beads, leather backing, binding material,
bolo tie clips, tie bar clips, tie tac pins, earring pins, earring
clips, earring screw backs, cuff link toggles, money clips, pin
stems, combs, and chains.
(7) "Turquoise" means a hydrous copper sulphate
containing aluminum salts plus iron.
(8) "Natural turquoise" means turquoise, exclusive of
any backing material, the composition of which has not been
chemically or otherwise altered.
(9) "Stabilized turquoise" means turquoise, excluding
any backing material, that has been chemically hardened, but not
adulterated so as to change the color of the natural mineral.
(10) "Treated turquoise" means turquoise, excluding
any backing material, that has been altered to produce a change in
the coloration of the natural mineral.
(11) "Simulated turquoise" means:
(A) reconstituted turquoise, which is turquoise
dust or particles that are mixed with plastic resins and are
compressed into a solid form so as to resemble natural turquoise;
or
(B) imitation turquoise, which is any compound or
mineral that is manufactured or treated so as to closely
approximate turquoise in appearance.
Added by Acts 1989, 71st Leg., ch. 897, § 1, eff. Aug. 28, 1989.
§ 17.852. INQUIRY AS TO PRODUCER. (a) Each person
selling or offering for sale authentic or nonauthentic Indian arts
and crafts shall request the suppliers of those arts and crafts to
disclose the methods used in producing those arts and crafts and to
determine whether those arts and crafts are in fact authentic
Indian arts and crafts.
(b) Each person selling or offering for sale turquoise shall
request the suppliers of the turquoise to disclose the true nature
of the turquoise.
Added by Acts 1989, 71st Leg., ch. 897, § 1, eff. Aug. 28, 1989.
§ 17.853. UNLAWFUL ACTS. A person may not:
(1) sell or offer for sale a product represented to be
authentic Indian arts and crafts unless the product is in fact
authentic Indian arts and crafts;
(2) sell or offer for sale any authentic Indian arts
and crafts or nonauthentic Indian arts and crafts represented to be
made of silver unless the product is made of coin silver or sterling
silver;
(3) sell or offer for sale a product that is
nonauthentic Indian arts and crafts unless the product is clearly
labeled as to any characteristics that make it nonauthentic;
(4) sell or offer for sale any turquoise, mounted or
unmounted, without a disclosure of the true nature of the
turquoise; or
(5) sell or offer for sale art represented to be by an
American Indian unless it is in fact produced by an American Indian.
Added by Acts 1989, 71st Leg., ch. 897, § 1, eff. Aug. 28, 1989.
§ 17.854. PENALTY. A person who violates this
subchapter commits an offense. An offense under this section is a
Class B misdemeanor.
Added by Acts 1989, 71st Leg., ch. 897, § 1, eff. Aug. 28, 1989.
SUBCHAPTER I. LABELING, ADVERTISING, AND SALE OF HALAL FOODS
§ 17.881. DEFINITIONS. In this subchapter:
(1) "Halal," as applied to food, means food prepared
and served in conformity with Islamic religious requirements
according to a recognized Islamic authority.
(2) "Label" means a display of written, printed, or
graphic matter on the immediate article or container of any food
product.
(3) "Person" includes an individual, corporation, or
association.
(4) "Restaurant" means a place where food is sold for
on-premises consumption.
(5) "Retail store" means a retail grocery store,
delicatessen, butcher shop, or other place where food is sold for
off-premises consumption.
(6) "Sell" means to offer for sale, expose for sale,
have in possession for sale, convey, exchange, barter, or trade.
Added by Acts 2003, 78th Leg., ch. 1013, § 1, eff. Sept. 1, 2003.
§ 17.882. MEAT LABELING. (a) If a person sells both
halal meat and nonhalal meat in the same retail store, the person
shall clearly label each portion of halal meat with the word
"halal." If an unwrapped or unpackaged meat product is displayed
for sale, the display case or container in which the meat is
displayed must be clearly labeled with the word "halal" or
"nonhalal," as applicable.
(b) A person commits an offense if the person is required to
label meat in accordance with this section and the person knowingly
sells meat that is not labeled as provided in this section.
Added by Acts 2003, 78th Leg., ch. 1013, § 1, eff. Sept. 1, 2003.
§ 17.883. SALE OF NONHALAL FOOD. A person commits an
offense if the person knowingly or intentionally sells at a
restaurant or a retail store a food product that is represented as
halal food and is not halal food and the person either knows the
food is not halal food or was reckless about determining whether or
not the food is halal food.
Added by Acts 2003, 78th Leg., ch. 1013, § 1, eff. Sept. 1, 2003.
§ 17.884. CIVIL REMEDY. A consumer aggrieved by a
violation of this subchapter may maintain a cause of action for
damages in accordance with Section 17.50.
Added by Acts 2003, 78th Leg., ch. 1013, § 1, eff. Sept. 1, 2003.
§ 17.885. CRIMINAL PENALTY. An offense under this
subchapter is punishable by the fine imposed for an offense under
Section 17.12(d).
Added by Acts 2003, 78th Leg., ch. 1013, § 1, eff. Sept. 1, 2003.
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