Texas 2021 - 87th Regular

Texas House Bill HB4063 Compare Versions

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

Old	New	Differences
1	1	87R9784 JES-D
2	2	By: Meza H.B. No. 4063
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the diagnosis, maintenance, and repair of
8	8	electronics-enabled heavy equipment.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is
11	11	amended by adding Chapter 113 to read as follows:
12	12	CHAPTER 113. DIAGNOSIS, MAINTENANCE, AND REPAIR OF
13	13	ELECTRONICS-ENABLED HEAVY EQUIPMENT
14	14	Sec. 113.001. DEFINITIONS. In this chapter:
15	15	(1) "Authorized repair provider" means an individual
16	16	or business entity that is not an affiliate of but has an
17	17	arrangement with an original equipment manufacturer:
18	18	(A) under which the original equipment
19	19	manufacturer grants to the individual or business entity a license
20	20	to use a trade name, service mark, or other proprietary identifier
21	21	for the purpose of offering diagnosis, maintenance, or repair
22	22	services for electronics-enabled heavy equipment under the name of
23	23	the original equipment manufacturer; or
24	24	(B) to offer diagnosis, maintenance, or repair
25	25	for electronics-enabled heavy equipment on behalf of the original
26	26	equipment manufacturer.
27	27	(2) "Documentation" means any manual, diagram,
28	28	reporting output, service code description, schematic, or other
29	29	guidance or information used in the diagnosis, maintenance, or
30	30	repair of electronics-enabled heavy equipment.
31	31	(3) "Electronics-enabled heavy equipment" means heavy
32	32	equipment that, to function, depends wholly or partly on digital
33	33	electronics embedded in or attached to the equipment.
34	34	(4) "Embedded software" means any programmable
35	35	instructions provided on firmware that is delivered with
36	36	electronics-enabled heavy equipment or with a replacement part for
37	37	that equipment for the purpose of equipment operation, including
38	38	all relevant patches and fixes made by the original equipment
39	39	manufacturer of the equipment or replacement part for that purpose.
40	40	(5) "Fair and reasonable terms" means:
41	41	(A) making a part or tool available under costs
42	42	and terms equivalent to the most favorable cost and terms offered
43	43	to an original equipment manufacturer's authorized repair provider
44	44	for obtaining an equivalent part or tool, accounting for any
45	45	discounts, rebates, or other incentive program offered to the
46	46	authorized repair provider; and
47	47	(B) making documentation available at no cost,
48	48	except that an original equipment manufacturer may charge the
49	49	reasonable actual cost of preparing and sending a copy of the
50	50	documentation when the documentation is requested in physical
51	51	printed form.
52	52	(6) "Firmware" means a software program or set of
53	53	instructions programmed on electronics-enabled heavy equipment or
54	54	on a replacement part for the equipment that allows the equipment or
55	55	replacement part to communicate with itself or other computer
56	56	hardware.
57	57	(7) "Heavy equipment" has the meaning assigned by
58	58	Section 23.1241, Tax Code.
59	59	(8) "Independent repair provider" means an individual
60	60	or business entity operating in this state who does not, on the
61	61	individual's or entity's own behalf or through an affiliate, have an
62	62	arrangement with an original equipment manufacturer as described by
63	63	Subdivision (1) and who is engaged in diagnosis, maintenance, or
64	64	repair of electronics-enabled heavy equipment.
65	65	(9) "Original equipment manufacturer" means a
66	66	business entity that sells, leases, or supplies new
67	67	electronics-enabled heavy equipment.
68	68	(10) "Owner" means an individual or business entity
69	69	who owns or leases electronics-enabled heavy equipment purchased or
70	70	used in this state.
71	71	(11) "Replacement part" means a new or used
72	72	replacement part made available by the original equipment
73	73	manufacturer for the purpose of maintenance or repair of
74	74	electronics-enabled heavy equipment manufactured, sold, or
75	75	supplied by the original equipment manufacturer.
76	76	(12) "Tool" means any software program, including
77	77	embedded software, hardware implement, or other apparatus used for
78	78	diagnosis, maintenance, or repair of electronics-enabled heavy
79	79	equipment, including software or another mechanism that:
80	80	(A) provisions, programs, or pairs a new part;
81	81	(B) calibrates functionality; or
82	82	(C) performs any other function required to
83	83	restore the equipment to fully functional condition.
84	84	(13) "Trade secret" has the meaning assigned by 18
85	85	U.S.C. Section 1839, as that section existed on January 1, 2021.
86	86	Sec. 113.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT
87	87	MANUFACTURERS. (a) For electronics-enabled heavy equipment,
88	88	including parts for that equipment, sold or used in this state, the
89	89	original equipment manufacturer of the equipment or part shall make
90	90	available on fair and reasonable terms to any independent repair
91	91	provider or to an owner of electronics-enabled heavy equipment
92	92	manufactured by or on behalf of, sold by, or supplied by the
93	93	original equipment manufacturer:
94	94	(1) documentation, replacement parts, and tools; and
95	95	(2) for equipment containing an electronic security
96	96	lock or other security-related function, any special
97	97	documentation, replacement part, or tool needed to disable and
98	98	reset the lock or function when disabled in the course of diagnosis,
99	99	maintenance, or repair of the equipment.
100	100	(b) An original equipment manufacturer may make available
101	101	the documentation, replacement part, or tool under Subsection
102	102	(a)(2) through an appropriate secure release system.
103	103	Sec. 113.003. CONSTRUCTION OF CHAPTER. Nothing in this
104	104	chapter may be construed to:
105	105	(1) require an original equipment manufacturer to
106	106	divulge a trade secret to an owner or an independent service
107	107	provider except as necessary to provide documentation, replacement
108	108	parts, and tools on fair and reasonable terms as provided by this
109	109	chapter;
110	110	(2) alter the terms of an arrangement described by
111	111	Section 113.001(1) between an authorized repair provider and
112	112	original equipment manufacturer, except that any provision in an
113	113	agreement between an authorized repair provider and original
114	114	equipment manufacturer that purports to waive, avoid, restrict, or
115	115	limit the original equipment manufacturer's obligation to comply
116	116	with this chapter is void and unenforceable;
117	117	(3) require an authorized repair provider to make
118	118	documentation, parts, or tools available on fair and reasonable
119	119	terms; or
120	120	(4) allow:
121	121	(A) modifications to electronics-enabled heavy
122	122	equipment that deactivate safety notification systems; or
123	123	(B) noncompliance with applicable law, including
124	124	federal emissions laws, copyright laws, and occupational safety
125	125	laws prohibiting certain modifications to heavy equipment.
126	126	Sec. 113.004. DECEPTIVE TRADE PRACTICE. A violation of
127	127	this chapter is a deceptive trade practice in addition to the
128	128	practices described by Subchapter E, Chapter 17, and is actionable
129	129	under that subchapter.
130	130	SECTION 2. To the extent of a conflict between Chapter 113,
131	131	Business & Commerce Code, as added by this Act, and a provision of
132	132	an agreement between an authorized repair provider and original
133	133	equipment manufacturer entered into before the effective date of
134	134	this Act, the provision of the agreement prevails.
135	135	SECTION 3. This Act takes effect September 1, 2021.