85R2641 GRM-F
By: Wu H.B. No. 1435
A BILL TO BE ENTITLED
AN ACT
relating to the commencement and prosecution of certain actions by
county and district attorneys under the Deceptive Trade
Practices-Consumer Protection Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 17.42(e), Business & Commerce Code, is
amended to read as follows:
(e) The fact that a consumer has signed a waiver under this
section is not a defense to an action brought by a prosecuting [the]
attorney [general] under Section 17.47.
SECTION 2. Section 17.45, Business & Commerce Code, is
amended by adding Subdivision (14) to read as follows:
(14) "Prosecuting attorney" means:
(A) the consumer protection division of the
attorney general's office;
(B) a district attorney; or
(C) a county attorney.
SECTION 3. Section 17.46(a), Business & Commerce Code, is
amended to read as follows:
(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 or other
prosecuting attorney, as applicable, under Sections 17.47, 17.58,
17.60, and 17.61 of this code.
SECTION 4. Sections 17.47(a), (c), (d), (e), and (h),
Business & Commerce Code, are amended to read as follows:
(a) Subject to Section 17.48, whenever a prosecuting
attorney [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 prosecuting attorney [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 prosecuting attorney
[consumer protection division] to notify such person that court
action is or may be under consideration. Provided, however, the
prosecuting attorney [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 prosecuting attorney
[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.
(c) In addition to the request for a temporary restraining
order, or permanent injunction in a proceeding brought under
Subsection (a) of this section, a prosecuting attorney [the
consumer protection division] may request, and the trier of fact
may award, a civil penalty to be paid to the state or county, as
appropriate, 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 a prosecuting
attorney [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 or county, as
appropriate, 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 prosecuting [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.
(h) In bringing or participating in an action under this
subchapter, the prosecuting attorney [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 prosecuting attorney [consumer protection
division] requests that the court award relief.
SECTION 5. Sections 17.48(b) and (d), Business & Commerce
Code, are amended to read as follows:
(b) A district or county attorney[, with prior written
notice to the consumer protection division,] may institute and
prosecute actions seeking injunctive relief and civil penalties
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.
(d) A district or county attorney is not required to obtain
the permission of the consumer protection division to prosecute an
action under this subchapter [for a violation of Section
17.46(b)(28), if the district or county attorney provides prior
written notice to the division as required by Subsection (b)].
SECTION 6. The heading to Section 304.252, Business &
Commerce Code, is amended to read as follows:
Sec. 304.252. ENFORCEMENT BY CERTAIN PROSECUTING ATTORNEYS
[ATTORNEY GENERAL].
SECTION 7. Section 304.252(c), Business & Commerce Code, is
amended to read as follows:
(c) A violation of Subchapter B, C, or D is subject to
enforcement action [by the attorney general's consumer protection
division] under Sections 17.47, 17.58, 17.60, and 17.61.
SECTION 8. Section 306.053, Business & Commerce Code, is
amended to read as follows:
Sec. 306.053. DECEPTIVE TRADE PRACTICE; ENFORCEMENT. A
violation of this chapter is a false, misleading, or deceptive act
or practice under Section 17.46 and is subject to action [only by
the consumer protection division of the attorney general's office]
as provided by Section 17.46(a).
SECTION 9. Section 17.48(c), Business & Commerce Code, is
repealed.
SECTION 10. The changes in law made by this Act apply only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrued before the effective date
of this Act is governed by the law in effect immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 11. This Act takes effect September 1, 2017.