88R4733 JES-D
By: Meza H.B. No. 1606
A BILL TO BE ENTITLED
AN ACT
relating to the diagnosis, maintenance, and repair of digital
electronic 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 122 to read as follows:
CHAPTER 122. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL
ELECTRONIC EQUIPMENT
Sec. 122.001. 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 digital electronic equipment under the name of the
original equipment manufacturer; or
(B) to offer diagnosis, maintenance, or repair
for digital electronic equipment services on behalf of the original
equipment manufacturer.
(2) "Digital electronic equipment" means any product
that, to function, depends wholly or partly on digital electronics
embedded in or attached to the product.
(3) "Documentation" means any manual, diagram,
reporting output, service code description, schematic, or other
guidance or information provided to an authorized repair provider
used in the diagnosis, maintenance, or repair of digital electronic
equipment.
(4) "Embedded software" means any programmable
instructions provided on firmware that is delivered with digital
electronic 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 digital electronic equipment or replacement part for that
purpose.
(5) "Fair and reasonable terms" means:
(A) with respect to making available a
replacement part or a tool that is not software, making the part or
tool available:
(i) under costs and terms equivalent to the
most favorable net 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,
means of enabling fully restored and updated functionality, rights
of use, convenience of delivery, or other incentive program offered
to the authorized repair provider, or any additional cost, burden,
or impediment the manufacturer imposes on an independent repair
provider;
(ii) without any condition, substantial
obligation, or restriction that is not reasonably necessary to
allow the owner or independent repair provider to engage in the
diagnosis, maintenance, or repair of the manufacturer's digital
electronic equipment; and
(iii) without conditioning that
availability on the recipient being an authorized repair provider;
and
(B) with respect to making available a tool that
is software, making the tool available at no charge, without
requiring authorization or Internet access, and without imposing
any other impediment to access or use of the tool in a manner that
impairs the efficient and cost-effective diagnosis, maintenance,
or repair of the equipment; or
(C) with respect to making available
documentation, including any relevant updates to the
documentation, making the 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 digital electronic 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) "Independent repair provider" means an individual
or business entity operating in this state:
(A) who does not, on the individual 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 digital
electronic equipment; or
(B) that is an original equipment manufacturer,
or who is an individual or business entity who has an arrangement
with that original equipment manufacturer as described by
Subdivision (1), only with respect to diagnosis, maintenance, or
repair of digital electronic equipment not manufactured by or sold
under the name of that original equipment manufacturer.
(8) "Manufacturer of motor vehicle equipment" means a
business entity engaged in the business of manufacturing or
supplying components that are used in the manufacture, maintenance,
or repair of a motor vehicle.
(9) "Motor vehicle" means a vehicle that is designed
for transporting individuals or property on a street or highway and
is certified by the vehicle's manufacturer under all applicable
federal safety and emissions standards and requirements for
distribution and sale in the United States. The term does not
include:
(A) a motorcycle; or
(B) a recreational vehicle or manufactured home
equipped for habitation.
(10) "Motor vehicle dealer" means an individual or
business entity who in the ordinary course of business:
(A) sells or leases new motor vehicles under a
franchise agreement;
(B) holds a license issued under Chapter 2301,
Occupations Code, and a general distinguishing number issued under
Chapter 503, Transportation Code; and
(C) is engaged in the diagnosis, maintenance, or
repair of motor vehicles or motor vehicle engines under the
franchise agreement.
(11) "Motor vehicle manufacturer" means a business
entity that manufactures or assembles new motor vehicles.
(12) "Original equipment manufacturer" means a
business entity that sells, leases, or supplies new digital
electronic equipment manufactured by or on behalf of the business
entity.
(13) "Owner" means an individual or business entity
who owns or leases digital electronic equipment purchased or used
in this state.
(14) "Replacement part" means a new or used
replacement part made available by the original equipment
manufacturer for the purpose of maintenance or repair of digital
electronic equipment manufactured, sold, or supplied by the
original equipment manufacturer.
(15) "Tool" means any software program, hardware
implement, or other apparatus used for diagnosis, maintenance, or
repair of digital electronic 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.
(16) "Trade secret" has the meaning assigned by 18
U.S.C. Section 1839, as that section existed on January 1, 2023.
Sec. 122.002. INAPPLICABILITY OF CHAPTER. This chapter
does not apply to:
(1) a manufacturer of motor vehicle equipment;
(2) a motor vehicle manufacturer;
(3) a motor vehicle dealer acting in that capacity; or
(4) a product or service of an entity described by
Subdivisions (1) through (3).
Sec. 122.003. REQUIREMENTS FOR ORIGINAL EQUIPMENT
MANUFACTURERS. (a) For digital electronic 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 digital electronic equipment
manufactured by or on behalf of, sold by, or supplied by the
original equipment manufacturer:
(1) documentation, replacement parts, and tools,
including any updates to information or embedded software, for that
equipment or replacement part; 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.
(c) Notwithstanding Subsection (a), if an original
equipment manufacturer provides an express warranty with respect to
digital electronic equipment and the wholesale price of that
equipment is at least $100, the manufacturer shall provide any
replacement part, tool, or documentation to enable repair of that
equipment during the manufacturer's warranty period at an equitable
price, including convenience of delivery and enabling
functionality, that takes into consideration:
(1) the actual cost to the manufacturer to prepare and
distribute the part, tool, or documentation, without considering
research and development costs;
(2) the ability of owners and independent repair
providers to afford the part, tool, or documentation; and
(3) the means by which the part, tool, or
documentation is distributed.
(d) This section does not require an original equipment
manufacturer to make available a replacement part if the part is no
longer available to the original equipment manufacturer.
(e) An original equipment manufacturer who offers the
services of diagnosis, maintenance, or repair of the manufacturer's
own digital electronic equipment, and who does not have an
authorized repair arrangement with an individual or business entity
that is not an affiliate, is considered to be an authorized repair
provider with respect to that equipment.
Sec. 122.004. CONSTRUCTION OF CHAPTER. (a) Nothing in this
chapter may be construed to 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.
(b) Nothing in this chapter may be construed to alter the
terms of an arrangement described by Section 122.001(1) between an
authorized repair provider and original equipment manufacturer,
including the performance or provision of warranty or recall repair
work by the authorized repair provider on behalf of the original
equipment manufacturer under an arrangement described by Section
122.001(1), 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.
Sec. 122.005. 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 122,
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, 2023.