Texas 2019 - 86th Regular

Texas Senate Bill SB1643 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R3582 TSR-D
2	2	By: Miles S.B. No. 1643
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the deceptive trade practice of charging exorbitant or
8	8	excessive prices for necessities during a declared disaster.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 17.46(b), Business & Commerce Code, as
11	11	amended by Chapters 324 (S.B. 1488), 858 (H.B. 2552), and 967 (S.B.
12	12	2065), Acts of the 85th Legislature, Regular Session, 2017, is
13	13	reenacted and amended to read as follows:
14	14	(b) Except as provided in Subsection (d) of this section,
15	15	the term "false, misleading, or deceptive acts or practices"
16	16	includes, but is not limited to, the following acts:
17	17	(1) passing off goods or services as those of another;
18	18	(2) causing confusion or misunderstanding as to the
19	19	source, sponsorship, approval, or certification of goods or
20	20	services;
21	21	(3) causing confusion or misunderstanding as to
22	22	affiliation, connection, or association with, or certification by,
23	23	another;
24	24	(4) using deceptive representations or designations
25	25	of geographic origin in connection with goods or services;
26	26	(5) representing that goods or services have
27	27	sponsorship, approval, characteristics, ingredients, uses,
28	28	benefits, or quantities which they do not have or that a person has
29	29	a sponsorship, approval, status, affiliation, or connection which
30	30	the person does not;
31	31	(6) representing that goods are original or new if
32	32	they are deteriorated, reconditioned, reclaimed, used, or
33	33	secondhand;
34	34	(7) representing that goods or services are of a
35	35	particular standard, quality, or grade, or that goods are of a
36	36	particular style or model, if they are of another;
37	37	(8) disparaging the goods, services, or business of
38	38	another by false or misleading representation of facts;
39	39	(9) advertising goods or services with intent not to
40	40	sell them as advertised;
41	41	(10) advertising goods or services with intent not to
42	42	supply a reasonable expectable public demand, unless the
43	43	advertisements disclosed a limitation of quantity;
44	44	(11) making false or misleading statements of fact
45	45	concerning the reasons for, existence of, or amount of price
46	46	reductions;
47	47	(12) representing that an agreement confers or
48	48	involves rights, remedies, or obligations which it does not have or
49	49	involve, or which are prohibited by law;
50	50	(13) knowingly making false or misleading statements
51	51	of fact concerning the need for parts, replacement, or repair
52	52	service;
53	53	(14) misrepresenting the authority of a salesman,
54	54	representative or agent to negotiate the final terms of a consumer
55	55	transaction;
56	56	(15) basing a charge for the repair of any item in
57	57	whole or in part on a guaranty or warranty instead of on the value of
58	58	the actual repairs made or work to be performed on the item without
59	59	stating separately the charges for the work and the charge for the
60	60	warranty or guaranty, if any;
61	61	(16) disconnecting, turning back, or resetting the
62	62	odometer of any motor vehicle so as to reduce the number of miles
63	63	indicated on the odometer gauge;
64	64	(17) advertising of any sale by fraudulently
65	65	representing that a person is going out of business;
66	66	(18) advertising, selling, or distributing a card
67	67	which purports to be a prescription drug identification card issued
68	68	under Section 4151.152, Insurance Code, in accordance with rules
69	69	adopted by the commissioner of insurance, which offers a discount
70	70	on the purchase of health care goods or services from a third party
71	71	provider, and which is not evidence of insurance coverage, unless:
72	72	(A) the discount is authorized under an agreement
73	73	between the seller of the card and the provider of those goods and
74	74	services or the discount or card is offered to members of the
75	75	seller;
76	76	(B) the seller does not represent that the card
77	77	provides insurance coverage of any kind; and
78	78	(C) the discount is not false, misleading, or
79	79	deceptive;
80	80	(19) using or employing a chain referral sales plan in
81	81	connection with the sale or offer to sell of goods, merchandise, or
82	82	anything of value, which uses the sales technique, plan,
83	83	arrangement, or agreement in which the buyer or prospective buyer
84	84	is offered the opportunity to purchase merchandise or goods and in
85	85	connection with the purchase receives the seller's promise or
86	86	representation that the buyer shall have the right to receive
87	87	compensation or consideration in any form for furnishing to the
88	88	seller the names of other prospective buyers if receipt of the
89	89	compensation or consideration is contingent upon the occurrence of
90	90	an event subsequent to the time the buyer purchases the merchandise
91	91	or goods;
92	92	(20) representing that a guaranty or warranty confers
93	93	or involves rights or remedies which it does not have or involve,
94	94	provided, however, that nothing in this subchapter shall be
95	95	construed to expand the implied warranty of merchantability as
96	96	defined in Sections 2.314 through 2.318 and Sections 2A.212 through
97	97	2A.216 to involve obligations in excess of those which are
98	98	appropriate to the goods;
99	99	(21) promoting a pyramid promotional scheme, as
100	100	defined by Section 17.461;
101	101	(22) representing that work or services have been
102	102	performed on, or parts replaced in, goods when the work or services
103	103	were not performed or the parts replaced;
104	104	(23) filing suit founded upon a written contractual
105	105	obligation of and signed by the defendant to pay money arising out
106	106	of or based on a consumer transaction for goods, services, loans, or
107	107	extensions of credit intended primarily for personal, family,
108	108	household, or agricultural use in any county other than in the
109	109	county in which the defendant resides at the time of the
110	110	commencement of the action or in the county in which the defendant
111	111	in fact signed the contract; provided, however, that a violation of
112	112	this subsection shall not occur where it is shown by the person
113	113	filing such suit that the person neither knew or had reason to know
114	114	that the county in which such suit was filed was neither the county
115	115	in which the defendant resides at the commencement of the suit nor
116	116	the county in which the defendant in fact signed the contract;
117	117	(24) failing to disclose information concerning goods
118	118	or services which was known at the time of the transaction if such
119	119	failure to disclose such information was intended to induce the
120	120	consumer into a transaction into which the consumer would not have
121	121	entered had the information been disclosed;
122	122	(25) using the term "corporation," "incorporated," or
123	123	an abbreviation of either of those terms in the name of a business
124	124	entity that is not incorporated under the laws of this state or
125	125	another jurisdiction;
126	126	(26) selling, offering to sell, or illegally promoting
127	127	an annuity contract under Chapter 22, Acts of the 57th Legislature,
128	128	3rd Called Session, 1962 (Article 6228a-5, Vernon's Texas Civil
129	129	Statutes), with the intent that the annuity contract will be the
130	130	subject of a salary reduction agreement, as defined by that Act, if
131	131	the annuity contract is not an eligible qualified investment under
132	132	that Act or is not registered with the Teacher Retirement System of
133	133	Texas as required by Section 8A of that Act;
134	134	(27) subject to Section 17.4625, taking advantage of a
135	135	disaster declared by the governor under Chapter 418, Government
136	136	Code, by:
137	137	(A) selling or leasing fuel, food, medicine, or
138	138	another necessity at an exorbitant or excessive price; or
139	139	(B) demanding an exorbitant or excessive price in
140	140	connection with the sale or lease of fuel, food, medicine, or
141	141	another necessity;
142	142	(28) using the translation into a foreign language of
143	143	a title or other word, including "attorney," "immigration
144	144	consultant," "immigration expert," "lawyer," "licensed," "notary,"
145	145	and "notary public," in any written or electronic material,
146	146	including an advertisement, a business card, a letterhead,
147	147	stationery, a website, or an online video, in reference to a person
148	148	who is not an attorney in order to imply that the person is
149	149	authorized to practice law in the United States;
150	150	(29) delivering or distributing a solicitation in
151	151	connection with a good or service that:
152	152	(A) represents that the solicitation is sent on
153	153	behalf of a governmental entity when it is not; or
154	154	(B) resembles a governmental notice or form that
155	155	represents or implies that a criminal penalty may be imposed if the
156	156	recipient does not remit payment for the good or service;
157	157	(30) delivering or distributing a solicitation in
158	158	connection with a good or service that resembles a check or other
159	159	negotiable instrument or invoice, unless the portion of the
160	160	solicitation that resembles a check or other negotiable instrument
161	161	or invoice includes the following notice, clearly and conspicuously
162	162	printed in at least 18-point type:
163	163	"SPECIMEN-NON-NEGOTIABLE";
164	164	(31) in the production, sale, distribution, or
165	165	promotion of a synthetic substance that produces and is intended to
166	166	produce an effect when consumed or ingested similar to, or in excess
167	167	of, the effect of a controlled substance or controlled substance
168	168	analogue, as those terms are defined by Section 481.002, Health and
169	169	Safety Code:
170	170	(A) making a deceptive representation or
171	171	designation about the synthetic substance; or
172	172	(B) causing confusion or misunderstanding as to
173	173	the effects the synthetic substance causes when consumed or
174	174	ingested;
175	175	(32) a licensed public insurance adjuster directly or
176	176	indirectly soliciting employment, as defined by Section 38.01,
177	177	Penal Code, for an attorney, or a licensed public insurance
178	178	adjuster entering into a contract with an insured for the primary
179	179	purpose of referring the insured to an attorney without the intent
180	180	to actually perform the services customarily provided by a licensed
181	181	public insurance adjuster, provided that this subdivision may not
182	182	be construed to prohibit a licensed public insurance adjuster from
183	183	recommending a particular attorney to an insured; [or]
184	184	(33) owning, operating, maintaining, or advertising a
185	185	massage establishment, as defined by Section 455.001, Occupations
186	186	Code, that:
187	187	(A) is not appropriately licensed under Chapter
188	188	455, Occupations Code, or is not in compliance with the applicable
189	189	licensing and other requirements of that chapter; or
190	190	(B) is not in compliance with an applicable local
191	191	ordinance relating to the licensing or regulation of massage
192	192	establishments; or
193	193	(34) [(33)] a warrantor of a vehicle protection
194	194	product warranty using, in connection with the product, a name that
195	195	includes "casualty," "surety," "insurance," "mutual," or any other
196	196	word descriptive of an insurance business, including property or
197	197	casualty insurance, or a surety business.
198	198	SECTION 2. Subchapter E, Chapter 17, Business & Commerce
199	199	Code, is amended by adding Section 17.4625 to read as follows:
200	200	Sec. 17.4625. PRICE GOUGING DURING DECLARED DISASTER. (a)
201	201	For purposes of Section 17.46(b)(27), the price of a necessity is
202	202	considered exorbitant or excessive if the price is 20 percent or
203	203	more than:
204	204	(1) the average price at which the necessity is sold or
205	205	leased, or offered for sale or lease, by the seller or lessor in the
206	206	usual course of business during the 60 days immediately before the
207	207	date of the proclamation or executive order of the governor
208	208	declaring the disaster; or
209	209	(2) the price at which the necessity is generally
210	210	available in the trade area in the 60 days immediately before the
211	211	date of the declared disaster if the seller or lessor did not sell
212	212	or offer the necessity before that date.
213	213	(b) Notwithstanding Subsection (a), the price of a
214	214	necessity is not considered exorbitant or excessive for purposes of
215	215	Section 17.46(b)(27) if:
216	216	(1) the increase in price is directly attributable to
217	217	an increase in the cost of the necessity imposed on the seller or
218	218	lessor by a supplier of the necessity; and
219	219	(2) the price is not more than 20 percent above the
220	220	total of the cost to the seller or lessor plus the markup
221	221	customarily applied by that seller or lessor for the necessity.
222	222	SECTION 3. To the extent of any conflict, this Act prevails
223	223	over another Act of the 86th Legislature, Regular Session, 2019,
224	224	relating to nonsubstantive additions to and corrections in enacted
225	225	codes.
226	226	SECTION 4. The changes in law made by this Act apply only to
227	227	an act or practice that occurs on or after the effective date of
228	228	this Act. An act or practice that occurs before the effective date
229	229	of this Act is governed by the law in effect on the date the act or
230	230	practice occurred, and the former law is continued in effect for
231	231	that purpose.
232	232	SECTION 5. This Act takes effect September 1, 2019.