Texas 2023 - 88th Regular

Texas House Bill HB1606 Compare Versions

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1	1	88R4733 JES-D
2	2	By: Meza H.B. No. 1606
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 digital
8	8	electronic 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 122 to read as follows:
12	12	CHAPTER 122. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL
13	13	ELECTRONIC EQUIPMENT
14	14	Sec. 122.001. 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 digital electronic equipment under the name of the
23	23	original equipment manufacturer; or
24	24	(B) to offer diagnosis, maintenance, or repair
25	25	for digital electronic equipment services on behalf of the original
26	26	equipment manufacturer.
27	27	(2) "Digital electronic equipment" means any product
28	28	that, to function, depends wholly or partly on digital electronics
29	29	embedded in or attached to the product.
30	30	(3) "Documentation" means any manual, diagram,
31	31	reporting output, service code description, schematic, or other
32	32	guidance or information provided to an authorized repair provider
33	33	used in the diagnosis, maintenance, or repair of digital electronic
34	34	equipment.
35	35	(4) "Embedded software" means any programmable
36	36	instructions provided on firmware that is delivered with digital
37	37	electronic equipment or with a replacement part for that equipment
38	38	for the purpose of equipment operation, including all relevant
39	39	patches and fixes made by the original equipment manufacturer of
40	40	the digital electronic equipment or replacement part for that
41	41	purpose.
42	42	(5) "Fair and reasonable terms" means:
43	43	(A) with respect to making available a
44	44	replacement part or a tool that is not software, making the part or
45	45	tool available:
46	46	(i) under costs and terms equivalent to the
47	47	most favorable net cost and terms offered to an original equipment
48	48	manufacturer's authorized repair provider for obtaining an
49	49	equivalent part or tool, accounting for any discounts, rebates,
50	50	means of enabling fully restored and updated functionality, rights
51	51	of use, convenience of delivery, or other incentive program offered
52	52	to the authorized repair provider, or any additional cost, burden,
53	53	or impediment the manufacturer imposes on an independent repair
54	54	provider;
55	55	(ii) without any condition, substantial
56	56	obligation, or restriction that is not reasonably necessary to
57	57	allow the owner or independent repair provider to engage in the
58	58	diagnosis, maintenance, or repair of the manufacturer's digital
59	59	electronic equipment; and
60	60	(iii) without conditioning that
61	61	availability on the recipient being an authorized repair provider;
62	62	and
63	63	(B) with respect to making available a tool that
64	64	is software, making the tool available at no charge, without
65	65	requiring authorization or Internet access, and without imposing
66	66	any other impediment to access or use of the tool in a manner that
67	67	impairs the efficient and cost-effective diagnosis, maintenance,
68	68	or repair of the equipment; or
69	69	(C) with respect to making available
70	70	documentation, including any relevant updates to the
71	71	documentation, making the documentation available at no cost,
72	72	except that an original equipment manufacturer may charge the
73	73	reasonable actual cost of preparing and sending a copy of the
74	74	documentation when the documentation is requested in physical
75	75	printed form.
76	76	(6) "Firmware" means a software program or set of
77	77	instructions programmed on digital electronic equipment or on a
78	78	replacement part for the equipment that allows the equipment or
79	79	replacement part to communicate with itself or other computer
80	80	hardware.
81	81	(7) "Independent repair provider" means an individual
82	82	or business entity operating in this state:
83	83	(A) who does not, on the individual or entity's
84	84	own behalf or through an affiliate, have an arrangement with an
85	85	original equipment manufacturer as described by Subdivision (1) and
86	86	who is engaged in diagnosis, maintenance, or repair of digital
87	87	electronic equipment; or
88	88	(B) that is an original equipment manufacturer,
89	89	or who is an individual or business entity who has an arrangement
90	90	with that original equipment manufacturer as described by
91	91	Subdivision (1), only with respect to diagnosis, maintenance, or
92	92	repair of digital electronic equipment not manufactured by or sold
93	93	under the name of that original equipment manufacturer.
94	94	(8) "Manufacturer of motor vehicle equipment" means a
95	95	business entity engaged in the business of manufacturing or
96	96	supplying components that are used in the manufacture, maintenance,
97	97	or repair of a motor vehicle.
98	98	(9) "Motor vehicle" means a vehicle that is designed
99	99	for transporting individuals or property on a street or highway and
100	100	is certified by the vehicle's manufacturer under all applicable
101	101	federal safety and emissions standards and requirements for
102	102	distribution and sale in the United States. The term does not
103	103	include:
104	104	(A) a motorcycle; or
105	105	(B) a recreational vehicle or manufactured home
106	106	equipped for habitation.
107	107	(10) "Motor vehicle dealer" means an individual or
108	108	business entity who in the ordinary course of business:
109	109	(A) sells or leases new motor vehicles under a
110	110	franchise agreement;
111	111	(B) holds a license issued under Chapter 2301,
112	112	Occupations Code, and a general distinguishing number issued under
113	113	Chapter 503, Transportation Code; and
114	114	(C) is engaged in the diagnosis, maintenance, or
115	115	repair of motor vehicles or motor vehicle engines under the
116	116	franchise agreement.
117	117	(11) "Motor vehicle manufacturer" means a business
118	118	entity that manufactures or assembles new motor vehicles.
119	119	(12) "Original equipment manufacturer" means a
120	120	business entity that sells, leases, or supplies new digital
121	121	electronic equipment manufactured by or on behalf of the business
122	122	entity.
123	123	(13) "Owner" means an individual or business entity
124	124	who owns or leases digital electronic equipment purchased or used
125	125	in this state.
126	126	(14) "Replacement part" means a new or used
127	127	replacement part made available by the original equipment
128	128	manufacturer for the purpose of maintenance or repair of digital
129	129	electronic equipment manufactured, sold, or supplied by the
130	130	original equipment manufacturer.
131	131	(15) "Tool" means any software program, hardware
132	132	implement, or other apparatus used for diagnosis, maintenance, or
133	133	repair of digital electronic equipment, including software or
134	134	another mechanism that:
135	135	(A) provisions, programs, or pairs a new part;
136	136	(B) calibrates functionality; or
137	137	(C) performs any other function required to
138	138	restore the equipment to fully functional condition.
139	139	(16) "Trade secret" has the meaning assigned by 18
140	140	U.S.C. Section 1839, as that section existed on January 1, 2023.
141	141	Sec. 122.002. INAPPLICABILITY OF CHAPTER. This chapter
142	142	does not apply to:
143	143	(1) a manufacturer of motor vehicle equipment;
144	144	(2) a motor vehicle manufacturer;
145	145	(3) a motor vehicle dealer acting in that capacity; or
146	146	(4) a product or service of an entity described by
147	147	Subdivisions (1) through (3).
148	148	Sec. 122.003. REQUIREMENTS FOR ORIGINAL EQUIPMENT
149	149	MANUFACTURERS. (a) For digital electronic equipment, including
150	150	parts for that equipment, sold or used in this state, the original
151	151	equipment manufacturer of the equipment or part shall make
152	152	available on fair and reasonable terms to any independent repair
153	153	provider or to an owner of digital electronic equipment
154	154	manufactured by or on behalf of, sold by, or supplied by the
155	155	original equipment manufacturer:
156	156	(1) documentation, replacement parts, and tools,
157	157	including any updates to information or embedded software, for that
158	158	equipment or replacement part; and
159	159	(2) for equipment containing an electronic security
160	160	lock or other security-related function, any special
161	161	documentation, replacement part, or tool needed to disable and
162	162	reset the lock or function when disabled in the course of diagnosis,
163	163	maintenance, or repair of the equipment.
164	164	(b) An original equipment manufacturer may make available
165	165	the documentation, replacement part, or tool under Subsection
166	166	(a)(2) through an appropriate secure release system.
167	167	(c) Notwithstanding Subsection (a), if an original
168	168	equipment manufacturer provides an express warranty with respect to
169	169	digital electronic equipment and the wholesale price of that
170	170	equipment is at least $100, the manufacturer shall provide any
171	171	replacement part, tool, or documentation to enable repair of that
172	172	equipment during the manufacturer's warranty period at an equitable
173	173	price, including convenience of delivery and enabling
174	174	functionality, that takes into consideration:
175	175	(1) the actual cost to the manufacturer to prepare and
176	176	distribute the part, tool, or documentation, without considering
177	177	research and development costs;
178	178	(2) the ability of owners and independent repair
179	179	providers to afford the part, tool, or documentation; and
180	180	(3) the means by which the part, tool, or
181	181	documentation is distributed.
182	182	(d) This section does not require an original equipment
183	183	manufacturer to make available a replacement part if the part is no
184	184	longer available to the original equipment manufacturer.
185	185	(e) An original equipment manufacturer who offers the
186	186	services of diagnosis, maintenance, or repair of the manufacturer's
187	187	own digital electronic equipment, and who does not have an
188	188	authorized repair arrangement with an individual or business entity
189	189	that is not an affiliate, is considered to be an authorized repair
190	190	provider with respect to that equipment.
191	191	Sec. 122.004. CONSTRUCTION OF CHAPTER. (a) Nothing in this
192	192	chapter may be construed to require an original equipment
193	193	manufacturer to divulge a trade secret to an owner or an independent
194	194	service provider except as necessary to provide documentation,
195	195	replacement parts, and tools on fair and reasonable terms as
196	196	provided by this chapter.
197	197	(b) Nothing in this chapter may be construed to alter the
198	198	terms of an arrangement described by Section 122.001(1) between an
199	199	authorized repair provider and original equipment manufacturer,
200	200	including the performance or provision of warranty or recall repair
201	201	work by the authorized repair provider on behalf of the original
202	202	equipment manufacturer under an arrangement described by Section
203	203	122.001(1), except that any provision in an agreement between an
204	204	authorized repair provider and original equipment manufacturer
205	205	that purports to waive, avoid, restrict, or limit the original
206	206	equipment manufacturer's obligation to comply with this chapter is
207	207	void and unenforceable.
208	208	Sec. 122.005. DECEPTIVE TRADE PRACTICE. A violation of
209	209	this chapter is a deceptive trade practice in addition to the
210	210	practices described by Subchapter E, Chapter 17, and is actionable
211	211	under that subchapter.
212	212	SECTION 2. To the extent of a conflict between Chapter 122,
213	213	Business & Commerce Code, as added by this Act, and a provision of
214	214	an agreement between an authorized repair provider and original
215	215	equipment manufacturer entered into before the effective date of
216	216	this Act, the provision of the agreement prevails.
217	217	SECTION 3. This Act takes effect September 1, 2023.