89R14269 SRA-F
By: Hall S.B. No. 2428
A BILL TO BE ENTITLED
AN ACT
relating to diagnosis, maintenance, and repair of certain 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 121 to read as follows:
CHAPTER 121. DIAGNOSIS, MAINTENANCE, AND REPAIR OF CERTAIN DIGITAL
ELECTRONIC EQUIPMENT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 121.001. DEFINITIONS. In this chapter:
(1) "Authorized repair provider" means an individual
or business entity who has an arrangement with the original
equipment manufacturer for a definite or indefinite period under
which the original equipment manufacturer grants to the individual
or business entity:
(A) 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) other authority to offer diagnosis,
maintenance, or repair services for digital electronic equipment on
behalf of the original equipment manufacturer.
(2) "Consumer" means an individual who enters into a
transaction primarily for personal, family, or household purposes.
(3) "Diagnosis" means the process of identifying the
issue or issues that cause digital electronic equipment to not be in
full working order.
(4) "Digital electronic equipment" or "equipment"
means any product that depends, wholly or partly, on digital
electronics embedded in or attached to the product to function.
(5) "Documentation" means any manual, diagram,
reporting output, service code description, or other guidance or
information provided or made available by the original equipment
manufacturer to an authorized repair provider for the purpose of
diagnosing, maintaining, or repairing digital electronic equipment
manufactured or sold by the original equipment manufacturer.
(6) "Fair and reasonable terms" means:
(A) with respect to an original equipment
manufacturer making available a tool, making the tool available:
(i) without conditioning that availability
on the recipient being an authorized repair provider;
(ii) at no cost to use or operate the tool
or at a cost that is equivalent to the lowest actual cost at which
the original equipment manufacturer offers the tool to an
authorized repair provider, taking into account any discounts,
rebates, or other financial incentives offered by the original
equipment manufacturer to the authorized repair provider; and
(iii) if the tool is requested in physical
form, for a charge equal to the actual cost of procuring, preparing,
and sending the tool;
(B) with respect to an original equipment
manufacturer making available a replacement part, making the part
available either directly or through an authorized distributor or
repair provider, subject to Section 121.052(7)(B):
(i) without conditioning that availability
on the recipient being an authorized repair provider; and
(ii) at costs and terms that are equivalent
to the costs and terms under which the part is offered to an
authorized repair provider;
(C) with respect to an original equipment
manufacturer making available documentation, including any
relevant updates to the documentation, making the documentation
available:
(i) without conditioning that availability
on the recipient being an authorized repair provider; and
(ii) 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; and
(D) with respect to documentation, replacement
parts, or tools, terms that are fair to all parties, including the
original equipment manufacturer and authorized repair providers.
(7) "Independent repair provider" means an individual
or business entity operating in this state that:
(A) with respect to an original equipment
manufacturer:
(i) is not an authorized repair provider;
and
(ii) is not affiliated with an individual
or business entity that is an authorized repair provider; and
(B) is engaged in the diagnosis, maintenance, or
repair of digital electronic equipment.
(8) "Maintenance" means any act necessary to keep
currently working digital electronic equipment in full working
order.
(9) "Medical device" means a device, as defined by 21
U.S.C. Section 321(h)(1), intended for use in the diagnosis of
disease or other conditions, or in the cure, mitigation, treatment,
or prevention of disease, in humans or other animals.
(10) "Modification" or "modify" means any alteration
to digital electronic equipment that is not maintenance and not a
repair.
(11) "Motor vehicle" means a vehicle that is designed
for transporting individuals or property on a street or highway and
is certified by the manufacturer under all applicable motor vehicle
federal safety and emissions standards and requirements for
distribution and sale in the United States.
(12) "Motor vehicle manufacturer" means a business
engaged in the manufacturing or assembling of motor vehicles.
(13) "Original equipment manufacturer" means a
business entity that, in the normal course of business, is engaged
in the business of selling, leasing, or otherwise supplying new
digital electronic equipment manufactured by or on behalf of the
business entity.
(14) "Owner" means an individual or business entity
that owns digital electronic equipment.
(15) "Repair" means any act necessary to restore
digital electronic equipment or equipment to full working order.
The term does not include post-sale modifications that alter the
originally intended functioning of the digital electronic
equipment.
(16) "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. The term does not include printed
circuit board assemblies that may allow device cloning in violation
of 18 U.S.C. Section 1029 or other applicable law.
(17) "Tool" means any software program, hardware
implement, or other apparatus used for the diagnosis, maintenance,
or repair of digital electronic equipment, including software or
another mechanism that:
(A) provides, programs, or pairs a part;
(B) calibrates functionality; or
(C) performs any other function required to
restore the equipment to full working order.
(18) "Trade secret" means anything tangible or
intangible or electronically stored or kept that constitutes,
represents, evidences, or records intellectual property, including
secret or confidentially held designs, processes, procedures,
formulas, inventions, or improvements, or secret or confidentially
held scientific, technical, merchandising, production, financial,
business, or management information, or that falls within the
meaning of a trade secret given in 18 U.S.C. Section 1839.
Sec. 121.002. APPLICABILITY OF CHAPTER. (a) Except as
provided by Subsection (b), this chapter applies only to digital
electronic equipment:
(1) sold at retail to a consumer in this state;
(2) that has a wholesale price of at least $50; and
(3) that is in need of a repair not covered under the
original equipment manufacturer's warranty.
(b) This chapter does not apply to:
(1) information technology equipment that is intended
for use in critical infrastructure as defined by 42 U.S.C. Section
5195c(e);
(2) a motor vehicle manufacturer who complies with a
memorandum of understanding or any other industry-recognized
agreement relating to the diagnosis, maintenance, or repair of
digital electronic equipment;
(3) a medical device or product:
(A) found in a medical setting, including
diagnostic, monitoring, or control equipment; or
(B) offered for purchase or prescribed by a
health care provider;
(4) a manufacturer of farm equipment who complies with
a memorandum of understanding or any other industry-recognized
agreement relating to the diagnosis, maintenance, or repair of
digital electronic equipment;
(5) aerospace, airplane, or train equipment;
(6) commercial and industrial electrical equipment,
including power distribution equipment, such as telecommunications
network infrastructure, commercial visual display equipment,
medium/low voltage switchgear and transformers, power control
equipment, such as medium/low voltage motor control and drives,
power quality equipment, such as uninterruptible power supplies,
remote power panels, power distribution units and static/transfer
switches, and any tools, technology, attachments, accessories,
components, and repair parts for any of the equipment described by
this subdivision;
(7) a home appliance that has digital electronic
equipment embedded within it, including refrigerators, ovens,
microwaves, air conditioning units, heating units, motorized
shades, lighting control systems, and security devices or alarm
systems, including any related software and components;
(8) safety communications equipment, the intended use
of which is for emergency response or prevention purposes by an
emergency service organization, such as a police, fire, or medical
and emergency rescue services agency; or
(9) digital electronic equipment sold in a transaction
involving only business or governmental entities.
Sec. 121.003. WAIVER OF CHAPTER VOID AND UNENFORCEABLE. A
provision in a contract, including 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.
SUBCHAPTER B. ORIGINAL EQUIPMENT MANUFACTURER REQUIREMENTS
Sec. 121.051. ORIGINAL EQUIPMENT MANUFACTURER
REQUIREMENTS. (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, not later
than one year after the date of the first sale of the digital
electronic equipment in this state, 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
documentation, replacement parts, and tools, or their equivalents,
that are required for the diagnosis, maintenance, or repair of the
digital electronic equipment.
(b) The documentation, replacement parts, and tools
described by Subsection (a) may be made available:
(1) directly by an original equipment manufacturer or
through an authorized repair provider or an authorized third-party
provider; or
(2) by an authorized repair provider to any
independent repair provider or owner, provided that the authorized
repair provider is contractually and practically permitted by the
original equipment manufacturer to sell the documentation, parts,
or tools, to an independent repair provider or owner.
(c) Subsection (b) may not be construed to require a
third-party provider, including an authorized repair provider, to
make available documentation, replacement parts, or tools
independent of an original equipment manufacturer.
Sec. 121.052. CONSTRUCTION OF SUBCHAPTER. Notwithstanding
any other provision of this subchapter, nothing in this subchapter:
(1) requires an original equipment manufacturer to
provide or make available documentation, a replacement part, or a
tool to a repair provider or owner, if:
(A) the documentation, part, or tool is not, or
is no longer, provided by the original equipment manufacturer or
made available to authorized repair providers of the original
equipment manufacturer, including where the original equipment
manufacturer performs related repairs solely in-house or through a
corporate affiliate;
(B) the documentation, part, or tool, is no
longer available to the original equipment manufacturer; or
(C) the documentation or tool is used by the
original manufacturer only to perform, at no cost, diagnostic
services virtually through telephone, Internet, chat, e-mail, or
other similar means that do not involve the manufacturer physically
handling the consumer's equipment, unless the manufacturer also
makes the documentation or tool available to an individual or
business that is unaffiliated with the manufacturer;
(2) requires an original equipment manufacturer to
divulge any trade secret to any independent repair provider or
owner, except as necessary for the diagnosis, maintenance, or
repair of digital electronic equipment in accordance with this
chapter;
(3) requires an original equipment manufacturer or an
authorized repair provider to provide an independent repair
provider or owner any information other than documentation that is
provided by the original equipment manufacturer to an authorized
repair provider;
(4) requires an original equipment manufacturer or
authorized repair provider to make available any documentation,
part, or tool for the purposes of modifying digital electronic
equipment;
(5) requires any original equipment manufacturer or
authorized repair provider to make available any documentation,
part, or tool in a manner that is inconsistent with or in violation
of any state or federal law;
(6) requires an original equipment manufacturer to
make available any documentation, part, or tool to an independent
repair provider or owner that would disable, reset, or override
electronic security locks or other security-related measures or
functions, or disable or override anti-theft security measures set
by the owner of the digital electronic equipment;
(7) prevents an original equipment manufacturer from:
(A) requiring remote authorization or an
Internet connection before an independent repair provider or owner
may use a part or tool; or
(B) providing parts, such as integrated
batteries, to an independent repair provider or owner preassembled
with other parts rather than as individual components, provided
that those preassembled parts or their equivalents are also
available to an authorized repair provider or owner; or
(8) requires an original equipment manufacturer to:
(A) provide documentation, a part, or a tool for
a product where reconditioning or repair of the product is
prohibited by a law or regulation;
(B) provide or make available source code;
(C) make available a special document, a part, or
a tool that would disable or override an anti-theft security
measure set by the owner of the digital electronic equipment
without the owner's authorization;
(D) provide documentation, a part, or a tool for
repair of digital electronic equipment critical to the safety of
life or health of individuals, or for repairs that could threaten
the safety of life or health of individuals, including repairs to
digital electronic equipment with internal switch-mode power
supplies; or
(E) provide documentation or a tool used
exclusively by the original equipment manufacturer for diagnosis,
maintenance, or repairs completed by machines that operate on
several digital electronic equipment products simultaneously or
otherwise for purposes of large scale efficiency, provided the
original equipment manufacturer makes available to an independent
repair provider or owner a sufficient alternative documentation or
tool to effect the diagnosis, maintenance, or repair of the digital
electronic equipment.
Sec. 121.053. ALTERNATIVE RELIEF FOR ORIGINAL PURCHASERS.
Instead of making documentation, replacement parts, or tools
available under this subchapter, the original equipment
manufacturer may provide an owner who is the original purchaser:
(1) a reimbursement in the amount of the purchase
price the purchaser paid for the digital electronic equipment; or
(2) an equivalent or better, readily available
replacement for the digital electronic equipment at a price that
has a value that is equal to or less than the total cost of the sum
of the replacement parts.
Sec. 121.054. LIMITATION OF LIABILITY. (a) An original
equipment manufacturer or authorized repair provider is not liable
for any damage or injury to any digital electronic equipment,
individual, or property that occurs as a result of the repair,
diagnosis, maintenance, or modification performed by an
independent repair provider or owner, or any other use of
documentation, replacement parts, or tools made available by an
original equipment manufacturer, including:
(1) indirect, incidental, special, or consequential
damages;
(2) loss of data, privacy, or profits; or
(3) inability to use or reduced functionality of the
digital electronic equipment.
(b) An original equipment manufacturer is not liable under
this chapter for any act that is reasonably necessary to protect
user privacy, security, or digital safety.
(c) An original equipment manufacturer is not liable for
improper use of personal data or any data privacy or security breach
in connection with the repair, diagnosis, maintenance, or
modification performed by an independent repair provider or owner.
SUBCHAPTER C. ENFORCEMENT
Sec. 121.101. NOTICE OF VIOLATION; OPPORTUNITY TO CURE.
(a) The attorney general has exclusive authority to enforce this
chapter.
(b) Before bringing an action under Section 121.102 or
121.103, the attorney general shall notify a person in writing at
least 30 days before the date the attorney general brings the
action. The notice must identify the specific provisions of this
chapter that the attorney general alleges have been or are being
violated.
(c) The attorney general may not bring an action against a
person if:
(1) within the 30-day period described by Subsection
(b), the person cures the violation; and
(2) the person provides the attorney general a written
statement that:
(A) the person cured the alleged violation; and
(B) it is the person's intent that no further
violations of this chapter will occur.
(d) Written notice by the attorney general shall be
delivered by:
(1) certified mail, return receipt requested; or
(2) first-class mail with proof of delivery.
Sec. 121.102. DECEPTIVE TRADE PRACTICE. A violation of
this chapter following the cure period described by Section 121.101
is a deceptive trade practice in addition to the practices
described by Subchapter E, Chapter 17, and is actionable under that
subchapter.
Sec. 121.103. INJUNCTION. (a) The attorney general may
bring an action in the name of the state following the cure period
described by Section 121.101 to restrain or enjoin a person from
violating this chapter.
(b) The attorney general may recover reasonable attorney's
fees and other reasonable expenses incurred in investigating and
bringing an action under this section.
Sec. 121.104. NO PRIVATE RIGHT OF ACTION. This chapter may
not be construed to create, provide a basis for, or be subject to a
private right of action for a violation of this chapter or any other
law.
SECTION 2. Chapter 121, Business & Commerce Code, as added
by this Act, applies only to digital electronic equipment that was
originally made available for sale in this state by an original
equipment manufacturer on or after the effective date of this Act.
SECTION 3. Notwithstanding Section 121.003, Business &
Commerce Code, as added by this Act, to the extent of a conflict
between Chapter 121, 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 4. This Act takes effect September 1, 2026.