BUSINESS & COMMERCE CODE
CHAPTER 37. TELEPHONE SOLICITATION
§ 37.01. DEFINITIONS. In this chapter:
(1) "Automated dialing announcing device" means
automated equipment used for telephone solicitation or collection
that is capable:
(A) of storing telephone numbers to be called or
has a random or sequential number generator capable of producing
numbers to be called; and
(B) alone or in conjunction with other equipment,
of conveying a prerecorded or synthesized voice message to the
number called without the use of a live operator.
(2) "Consumer" means a person who is solicited to
purchase, lease, or receive a consumer good or service.
(3) "Consumer good or service" means:
(A) real property or tangible or intangible
personal property that is normally used for personal, family, or
household purposes, including personal property intended to be
attached to or installed in any real property;
(B) a cemetery lot;
(C) a time-share estate; and
(D) a service related to real or personal
property.
(4) "Consumer telephone call" means an unsolicited
call made to a residential telephone number by a telephone
solicitor to:
(A) solicit a sale of a consumer good or service;
(B) solicit an extension of credit for a consumer
good or service; or
(C) obtain information that will or may be used
to directly solicit a sale of a consumer good or service or to
extend credit for the sale.
(5) "Telephone solicitor" means a person who makes or
causes to be made a consumer telephone call, including a call made
by an automated dialing device.
Added by Acts 1991, 72nd Leg., ch. 494, § 1, eff. Jan. 1, 1992.
§ 37.02. SOLICITOR IDENTITY; PERMISSIBLE HOURS;
DISCONNECT. (a) A telephone solicitor may not make a consumer
telephone call to a consumer unless:
(1) the telephone solicitor identifies himself or
herself by name and identifies the business on whose behalf the
telephone solicitor is calling and the purpose of the call
immediately after making contact with the consumer to whom the call
is made;
(2) the telephone solicitor makes the call after 12
noon or before 9 p.m. on a Sunday or after 9 a.m. and before 9 p.m.
on a weekday or a Saturday; and
(3) for those calls in which an automated dial
announcing device is used, the device must disconnect the
consumer's telephone line within the period provided by Section
55.126, Utilities Code, after termination of the call by either the
telephone solicitor or the consumer.
(b) A consumer telephone call is not subject to the
provisions of Subsection (a) of this section if the call is made:
(1) in response to the express request of the
consumer;
(2) primarily in connection with an existing debt or
contract for which payment or performance has not been completed at
the time of the call; or
(3) to a consumer with whom the telephone solicitor
has a prior or existing business relationship.
Added by Acts 1991, 72nd Leg., ch. 494, § 1, eff. Jan. 1, 1992.
Amended by Acts 1999, 76th Leg., ch. 667, § 1, eff. Sept. 1,
1999.
§ 37.03. CHARGES TO CONSUMER CREDIT ACCOUNT. A person
who sells consumer goods and services through the use of a telephone
solicitor may not make or submit a charge to a consumer's credit
card account unless:
(1) the seller provides that the consumer may receive
a full refund for the return of undamaged and unused goods or a
cancellation of services by providing notice to the seller not
later than the seventh day after the date the consumer receives the
goods or services and in which the seller will process:
(A) a refund not later than the 30th day after the
date the seller receives the returned merchandise from the
consumer;
(B) a full refund not later than the 30th day
after the purchaser of services cancels an order for the purchase of
services not performed or a pro rata refund for any services not yet
performed for the consumer;
(2) the seller provides to the consumer a written
contract fully describing the goods or services being offered, the
total price to be charged, the name, address, and business phone of
the seller, and any terms or conditions affecting the sale and
receives from the consumer a signed copy of such contract; or
(3) the seller is an organization that qualifies for
and has obtained an exemption from federal income tax from the
Internal Revenue Service under Section 501(c)(3), Internal Revenue
Code of 1986 (26 U.S.C. Section 501(c)(3)).
Added by Acts 1991, 72nd Leg., ch. 494, § 1, eff. Jan. 1, 1992.
§ 37.04. ENFORCEMENT. (a) The attorney general's
office shall investigate a complaint relating to a violation of
this chapter and may petition a district court for a temporary
restraining order to restrain a continuing violation of this
chapter and for the assessment of a civil penalty as provided by
Section 37.05 of this code.
(b) A district court, on petition of the attorney general's
office and on a finding by the court that a person is violating this
chapter may, by injunction, prohibit a person from continuing a
violation of this chapter or grant any other injunctive relief
warranted by the facts.
(c) Venue for a suit brought under this chapter is in:
(1) the county in which the consumer telephone call
originated;
(2) the county in which the consumer telephone call
was received; or
(3) Travis County.
Added by Acts 1991, 72nd Leg., ch. 494, § 1, eff. Jan. 1, 1992.
§ 37.05. CIVIL PENALTY. (a) A person who knowingly
violates this chapter is liable for a civil penalty of not more than
$10,000 for each violation.
(b) In addition to bringing an action for injunctive relief,
the attorney general may also seek restitution and civil penalties
as provided herein.
(c) A consumer injured by a violation of this chapter may
bring any action for recovery of damages. The damages awarded may
not be less than the amount paid by the buyer to the telephone
solicitor, plus reasonable attorney fees and court costs.
Added by Acts 1991, 72nd Leg., ch. 494, § 1, eff. Jan. 1, 1992.
