87R9784 JES-D
By: Meza H.B. No. 4063
A BILL TO BE ENTITLED
AN ACT
relating to the diagnosis, maintenance, and repair of
electronics-enabled heavy equipment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 113 to read as follows:
CHAPTER 113. DIAGNOSIS, MAINTENANCE, AND REPAIR OF
ELECTRONICS-ENABLED HEAVY EQUIPMENT
Sec. 113.001. DEFINITIONS. In this chapter:
(1) "Authorized repair provider" means an individual
or business entity that is not an affiliate of but has an
arrangement with an original equipment manufacturer:
(A) under which the original equipment
manufacturer grants to the individual or business entity a license
to use a trade name, service mark, or other proprietary identifier
for the purpose of offering diagnosis, maintenance, or repair
services for electronics-enabled heavy equipment under the name of
the original equipment manufacturer; or
(B) to offer diagnosis, maintenance, or repair
for electronics-enabled heavy equipment on behalf of the original
equipment manufacturer.
(2) "Documentation" means any manual, diagram,
reporting output, service code description, schematic, or other
guidance or information used in the diagnosis, maintenance, or
repair of electronics-enabled heavy equipment.
(3) "Electronics-enabled heavy equipment" means heavy
equipment that, to function, depends wholly or partly on digital
electronics embedded in or attached to the equipment.
(4) "Embedded software" means any programmable
instructions provided on firmware that is delivered with
electronics-enabled heavy equipment or with a replacement part for
that equipment for the purpose of equipment operation, including
all relevant patches and fixes made by the original equipment
manufacturer of the equipment or replacement part for that purpose.
(5) "Fair and reasonable terms" means:
(A) making a part or tool available under costs
and terms equivalent to the most favorable cost and terms offered
to an original equipment manufacturer's authorized repair provider
for obtaining an equivalent part or tool, accounting for any
discounts, rebates, or other incentive program offered to the
authorized repair provider; and
(B) making documentation available at no cost,
except that an original equipment manufacturer may charge the
reasonable actual cost of preparing and sending a copy of the
documentation when the documentation is requested in physical
printed form.
(6) "Firmware" means a software program or set of
instructions programmed on electronics-enabled heavy equipment or
on a replacement part for the equipment that allows the equipment or
replacement part to communicate with itself or other computer
hardware.
(7) "Heavy equipment" has the meaning assigned by
Section 23.1241, Tax Code.
(8) "Independent repair provider" means an individual
or business entity operating in this state who does not, on the
individual's or entity's own behalf or through an affiliate, have an
arrangement with an original equipment manufacturer as described by
Subdivision (1) and who is engaged in diagnosis, maintenance, or
repair of electronics-enabled heavy equipment.
(9) "Original equipment manufacturer" means a
business entity that sells, leases, or supplies new
electronics-enabled heavy equipment.
(10) "Owner" means an individual or business entity
who owns or leases electronics-enabled heavy equipment purchased or
used in this state.
(11) "Replacement part" means a new or used
replacement part made available by the original equipment
manufacturer for the purpose of maintenance or repair of
electronics-enabled heavy equipment manufactured, sold, or
supplied by the original equipment manufacturer.
(12) "Tool" means any software program, including
embedded software, hardware implement, or other apparatus used for
diagnosis, maintenance, or repair of electronics-enabled heavy
equipment, including software or another mechanism that:
(A) provisions, programs, or pairs a new part;
(B) calibrates functionality; or
(C) performs any other function required to
restore the equipment to fully functional condition.
(13) "Trade secret" has the meaning assigned by 18
U.S.C. Section 1839, as that section existed on January 1, 2021.
Sec. 113.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT
MANUFACTURERS. (a) For electronics-enabled heavy equipment,
including parts for that equipment, sold or used in this state, the
original equipment manufacturer of the equipment or part shall make
available on fair and reasonable terms to any independent repair
provider or to an owner of electronics-enabled heavy equipment
manufactured by or on behalf of, sold by, or supplied by the
original equipment manufacturer:
(1) documentation, replacement parts, and tools; and
(2) for equipment containing an electronic security
lock or other security-related function, any special
documentation, replacement part, or tool needed to disable and
reset the lock or function when disabled in the course of diagnosis,
maintenance, or repair of the equipment.
(b) An original equipment manufacturer may make available
the documentation, replacement part, or tool under Subsection
(a)(2) through an appropriate secure release system.
Sec. 113.003. CONSTRUCTION OF CHAPTER. Nothing in this
chapter may be construed to:
(1) require an original equipment manufacturer to
divulge a trade secret to an owner or an independent service
provider except as necessary to provide documentation, replacement
parts, and tools on fair and reasonable terms as provided by this
chapter;
(2) alter the terms of an arrangement described by
Section 113.001(1) between an authorized repair provider and
original equipment manufacturer, except that any provision in an
agreement between an authorized repair provider and original
equipment manufacturer that purports to waive, avoid, restrict, or
limit the original equipment manufacturer's obligation to comply
with this chapter is void and unenforceable;
(3) require an authorized repair provider to make
documentation, parts, or tools available on fair and reasonable
terms; or
(4) allow:
(A) modifications to electronics-enabled heavy
equipment that deactivate safety notification systems; or
(B) noncompliance with applicable law, including
federal emissions laws, copyright laws, and occupational safety
laws prohibiting certain modifications to heavy equipment.
Sec. 113.004. DECEPTIVE TRADE PRACTICE. A violation of
this chapter is a deceptive trade practice in addition to the
practices described by Subchapter E, Chapter 17, and is actionable
under that subchapter.
SECTION 2. To the extent of a conflict between Chapter 113,
Business & Commerce Code, as added by this Act, and a provision of
an agreement between an authorized repair provider and original
equipment manufacturer entered into before the effective date of
this Act, the provision of the agreement prevails.
SECTION 3. This Act takes effect September 1, 2021.