(1) fill the container for sale or other commercial purpose; (2) deface, cover up, or remove the proprietary mark from the container; or. 4.001(b), eff. 242, Sec. Acts 2007, 80th Leg., R.S., Ch. DEFINITIONS. 17.91. 414, Sec. Sec. (4) "State function" means a state governmental activity authorized or required by law. September 1, 2009. (6) any other matter that justice may require. (a) A person may not conduct a sale advertised with the phrase "going out of business," "closing out," "shutting doors forever," or "bankruptcy sale"; the word "foreclosure" or "bankruptcy"; or a similar phrase or word indicating that an enterprise is ceasing business unless the business is closing all of its operations in a county and in all of the counties immediately adjacent to that county and follows the procedures required by this subchapter. During the 60-day period a written request to inspect, in a reasonable manner and at a reasonable time and place, the goods that are the subject of the consumer's action or claim may be presented to the consumer. Cal. (c) In addition to the request for a temporary restraining order, or permanent injunction in a proceeding brought under Subsection (a) of this section, the consumer protection division may request, and the trier of fact may award, a civil penalty to be paid to the state in an amount of: (1) not more than $10,000 per violation; and. psilberman November 15, 2021. (c) The order appointing a receiver must clearly state whether the receiver will have general power to manage and operate the defendant's business or have power to manage only a defendant's finances. An offense under this section is a Class B misdemeanor. May 23, 1977; Acts 1979, 66th Leg., p. 1332, ch. (2) "Services" means work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods. Added by Acts 1973, 63rd Leg., p. 322, ch. 143, Sec. (a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code. Sec. First enacted in 1973 and last amended in 1995, the Texas Deceptive When an action is pending in Travis County on the consent of the parties a subpoena may be issued for any witness or witnesses who may be represented to reside within 100 miles of the courthouse of a county in which the suit could otherwise have been brought or who may be found within such distance at the time of the trial. An offense under this subchapter is punishable by the fine imposed for an offense under Section 17.12(d). To be eligible for relief under the Texas DTPA, you must be a consumer. 776), Sec. (g) Chapter 41, Civil Practice and Remedies Code, does not apply to a cause of action brought under this subchapter. Sec. 603, Sec. If the trier of fact finds that the conduct of the defendant was committed knowingly, the consumer may also recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of economic damages; or if the trier of fact finds the conduct was committed intentionally, the consumer may recover damages for mental anguish, as found by the trier of fact, and the trier of fact may award not more than three times the amount of damages for mental anguish and economic damages; (2) an order enjoining such acts or failure to act; (3) orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter; and. CONSTRUCTION AND APPLICATION. (b) No person may wilfully misrepresent the nature of his business by using in selling or advertising the word manufacturer, wholesaler, retailer, or other word of similar meaning. 2, eff. (b) For purposes of Section 17.46(a), the term "false, misleading, or deceptive acts or practices" includes an emergency facility that: (1) provides emergency care at an unconscionable price; or. (a) To conduct a going out of business sale, a person must file an original inventory with the chief appraiser of the appraisal district in which the person's principal place of business in the state is located. 28, eff. 2, eff. Broadly prohibits unfair or unconscionable acts Strong Alaska Stat. (b) A district or county attorney, with prior written notice to the consumer protection division, may institute and prosecute actions seeking injunctive relief under this subchapter, after complying with the prior contact provisions of Subsection (a) of Section 17.47 of this subchapter. 17.29. Sec. 17.41. 17.5051. May 23, 1977. 414, Sec. Sec. 143, Sec. Sept. 1, 1985. Intention may be inferred from objective manifestations that indicate that the person acted intentionally or from facts showing that a defendant acted with flagrant disregard of prudent and fair business practices to the extent that the defendant should be treated as having acted intentionally. (a) In this section: (1) "Commercial purpose" means a purpose that is intended to result in a profit or other tangible benefit but does not include: (A) official use of the state seal or a representation of the state seal in a state function; (B) use of the state seal or a representation of the state seal for a political purpose by an elected official of this state; (C) use of the state seal or a representation of the state seal in an encyclopedia, dictionary, book, journal, pamphlet, periodical, magazine, or newspaper incident to a description or history of seals, coats of arms, heraldry, or this state; (D) use of the state seal or a representation of the state seal in a library, museum, or educational facility incident to descriptions or exhibits relating to seals, coats of arms, heraldry, or this state; (E) use of the state seal or a representation of the state seal in a theatrical, motion-picture, television, or similar production for a historical, educational, or newsworthy purpose; or. (c) A person may place a listing for a business described by Subsection (a) the name of which indicates that it is located in a geographical area that is different from the geographical area in which the business is located if a conspicuous notice in the listing states the municipality and state in which the business is located. 1.002, eff. 728 (H.B. 17.926. 1, eff. Sec. Text of section as amended by Acts 1995, 74th Leg., ch. Sept. 1, 1995. (6) "Trade" and "commerce" mean the advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state. (d) If the for-profit entity or individual pays to a charitable organization a flat fee that is not contingent on the proceeds generated from the sale of the donated items and the for-profit entity or individual retains a percentage of the proceeds from the sale, the solicitor must state: "SOLICITATIONS FOR DONATIONS ARE MADE BY (NAME OF FOR-PROFIT ENTITY OR INDIVIDUAL) ON BEHALF OF (NAME OF CHARITABLE ORGANIZATION). An act or practice is not specifically authorized if no rule or regulation has been issued on the act or practice. A district or county attorney may institute a suit described by this section on or after the 90th day after the date the attorney general receives the notice required by Section 17.48 unless before the 90th day after the date the notice is received the attorney general responds that it is actively investigating or litigating at least one of the alleged violations set forth in the notice. LATER SALES. (a) In this section: (1) "Compensation" means payment of money, a financial benefit, or another thing of value. Sec. 17.12. (4) "Restaurant" means a place where food is sold for on-premises consumption. This subchapter does not apply to: (1) a sale conducted by a public officer as part of the officer's official duties; (2) a sale for which an accounting must be made to a court of law; (3) a sale conducted pursuant to an order of a court; or. SUBCHAPTER D. COUNTERFEITING OR CHANGING A REQUIRED MARK; MISUSE OF CONTAINER BEARING MARK. INJUNCTION; RESTITUTION. Amended by Acts 1995, 74th Leg., ch. September 1, 2007. Before the end of each 30-day period during the going out of business sale the permit holder shall file with the chief appraiser a sale inventory containing a complete and detailed list of the goods, wares, and merchandise listed in the original inventory that have not been sold before the date that the sale inventory is filed. Amended by Acts 1969, 61st Leg., p. 2045, ch. 5, eff. (4) "Indian handcrafted" means the skillful and expert use of the hands in making products solely by Indians within the United States, including the use of findings and hand tools and equipment for buffing, polishing, grinding, drilling, or sewing. 1, eff. 2, eff. (e) A person who violates a provision of Subsection (b) or (c) of this section is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $10 nor more than $100. Added by Acts 1973, 63rd Leg., p. 322, ch. WebJob Description. (f) This section does not create a private cause of action for a false, misleading, or deceptive act or practice described by Subsection (b). (4) pursuant to an order of the appropriate court, impound any sample of merchandise that is produced in accordance with this subchapter and retain it in the possession of the division until the completion of all proceedings in connection with which the merchandise is produced. The Consumer Protection Division works to protect Texas consumers and the legitimate business and charitable nonprofit communities by investigating breaches of fiduciary duties, fraud, misrepresentations, and deceptive advertising; filing civil lawsuits to enforce state and federal consumer protection and charitable trust laws; and educating June 1, 2002; Acts 2003, 78th Leg., ch. 45(a)(1)]. Added by Acts 1973, 63rd Leg., p. 322, ch. NOTICE; INSPECTION. 17.953. (d) It is not a defense to prosecution for an offense under this section that the pyramid promotional scheme involved both a franchise to sell a product and the authority to sell additional franchises if the emphasis of the scheme is on the sale of additional franchises. 6, eff. 167, Sec. 17.951. 2552), Sec. 17.822. September 1, 2019. (d) In an action brought under Section 17.50 of this subchapter, it is a defense to a cause of action if the defendant proves that he received notice from the consumer advising the defendant of the nature of the consumer's specific complaint and of the amount of economic damages, damages for mental anguish, and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant, and that within 30 days after the day on which the defendant received the notice the defendant tendered to the consumer: (1) the amount of economic damages and damages for mental anguish claimed; and. INQUIRY AS TO PRODUCER. Added by Acts 1973, 63rd Leg., p. 322, ch. Amended by Acts 1981, 67th Leg., p. 863, ch. 7, eff. 216, Sec. SUBCHAPTER L. BAD FAITH CLAIMS OF PATENT INFRINGEMENT. 414, Sec. Acts 2015, 84th Leg., R.S., Ch. 1, eff. 1082, Sec. (16) "Loss of or damage to the vehicle," for purposes of Subdivision (14)(A)(ii), may also include unreimbursed incidental expenses that may be incurred by the warrantor, including expenses for a replacement vehicle, temporary vehicle rental expenses, and registration expenses for replacement vehicles. (g) In determining the amount of penalty imposed under Subsection (c), the trier of fact shall consider: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited act or practice; (3) the amount necessary to deter future violations; (4) the economic effect on the person against whom the penalty is to be assessed; (5) knowledge of the illegality of the act or practice; and. INDEMNITY. ORIGINAL INVENTORY. The Deceptive Trade Practices Act (sec. (4) "Consumer" means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more. (2) additional damages under Subsection (b). 143, Sec. The statute, which adopts the Uniform Deceptive Trade Practices Act, addresses general consumer protection provisions and also provides UNLAWFUL ACTS. Sec. (2) if the act or practice that is the subject of the proceeding was calculated to acquire or deprive money or other property from a consumer who was 65 years of age or older when the act or practice occurred, an additional amount of not more than $250,000. DUTY OF DISTRICT AND COUNTY ATTORNEY. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. SUBCHAPTER E. DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION. (f) Nothing in the subchapter shall apply to a claim arising out of a written contract if: (1) the contract relates to a transaction, a project, or a set of transactions related to the same project involving total consideration by the consumer of more than $100,000; (2) in negotiating the contract the consumer is represented by legal counsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and. 727 East Dean Keeton St. Austin, Texas 78705 (512) 471-5151. (9) "Knowingly" means actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's claim or, in an action brought under Subdivision (2) of Subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. Any final order entered is subject to appeal to the Texas Supreme Court. Damages may not include any damages incurred beyond a point two years prior to the institution of the action by the consumer protection division. 1, eff. The underlying purpose of the statute is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty in an economical and efficient manner. September 1, 2015. (d) A district or county attorney is not required to obtain the permission of the consumer protection division to prosecute an action under this subchapter for a violation of Section 17.46(b)(28), if the district or county attorney provides prior written notice to the division as required by Subsection (b). 603, Sec. Sec. 380, Sec. 1, eff. (b) The prosecuting attorney in the county in which a violation of Section 17.902 occurs, with prior written notice to the attorney general, may institute and prosecute an action seeking injunctive relief under this section. The Texas Deceptive Trade Practices Consumer Protection Act. Sept. 1, 2003. Each performance that violates Section 17.902 constitutes a separate violation. (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion. The Act gives consumers a way to sue September 1, 2017. Sept. 1, 1989; Acts 1995, 74th Leg., ch. GENERAL DESCRIPTION. May 23, 1977. 6, eff. 1488), Sec. 883, Sec. 1023 (H.B. 17.462. September 1, 2005. Short Title. Added by Acts 1973, 63rd Leg., p. 322, ch. 9. If you have been misled or deceived in a commercial transaction, the Texas consumer fraud attorneys at Tauler Smith LLP can help you file a DTPA claim. SALE INVENTORY. If the person transacts business in more than one county, the petition shall be filed in the county in which the person maintains his principal place of business, or in another county agreed on by the parties to the petition. September 1, 2017. May 21, 1973. (C) time and effort spent in pursuit of a sale or in a recruiting activity. 564, Sec. An action brought under this subchapter may be brought: (1) in any county in which venue is proper under Chapter 15, Civil Practice and Remedies Code; or. 1.001, eff. 17.883. It protects consumers by making it unlawful to misrepresent a product that is sold in the state. (A) reconstituted turquoise, which is turquoise dust or particles that are mixed with plastic resins and are compressed into a solid form so as to resemble natural turquoise; or. 17.63. Acts 2005, 79th Leg., Ch. (a) It is the duty of the district and county attorneys to lend to the consumer protection division any assistance requested in the commencement and prosecutions of action under this subchapter. Aug. 26, 1985; Acts 1989, 71st Leg., ch. Sec. (h) A person who violates Section 17.46(b)(26) is jointly and severally liable under that subdivision for actual damages, court costs, and attorney's fees. Sept. 1, 1991. 324 (S.B. (3) the consumer is represented by legal counsel in seeking or acquiring the goods or services. September 1, 2005. 17.60. 2) ' 75-32. 5, eff. RELIEF FOR CONSUMERS. 138, Sec. Bus. CIVIL PENALTY. PRODUCTION, SALE, DISTRIBUTION, OR PROMOTION OF CERTAIN SYNTHETIC SUBSTANCES. (a) A person who receives notice under Section 17.505 may tender an offer of settlement at any time during the period beginning on the date the notice is received and ending on the 60th day after that date. Prof. Code 17200 et seq. 17.01. (3) "Household goods" mean furniture, furnishings, or personal effects used or for use in a dwelling. If damages or civil penalties are assessed against the seller of goods or services for advertisements or promotional material in a suit filed under Section 17.47, 17.48, 17.50, or 17.51 of this subchapter, the seller of the goods or services has a cause of action against a third party for the amount of damages or civil penalties assessed against the seller plus attorneys' fees on a showing that: (1) the seller received the advertisements or promotional material from the third party; (2) the seller's only action with regard to the advertisements or promotional material was to disseminate the material; and. 861 (H.B. 603, Sec. consumer, employee Students also viewed APPLICATION. 291, Sec. 2612), Sec. PROMOTIONAL MATERIAL. Added by Acts 1973, 63rd Leg., p. 322, ch. (d) If the for-profit entity or individual pays to a charitable organization a flat fee that is not contingent on the proceeds generated from the sale of the donated items and the for-profit entity or individual retains a percentage of the proceeds from the sale, the disclosure required by Subsection (a)(4) must state: "THIS DONATION RECEPTACLE IS OPERATED BY (NAME OF FOR-PROFIT ENTITY OR INDIVIDUAL) ON BEHALF OF (NAME OF CHARITABLE ORGANIZATION). Sec. (a) As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 60 days before filing the suit advising the person in reasonable detail of the consumer's specific complaint and the amount of economic damages, damages for mental anguish, and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant. Texas Deceptive Trade Practices Consumer Protection Act Guidelines. 11.19, eff. Text of section as amended by Acts 1995, 74th Leg., ch. 17.463. May 21, 1973. EXCEPTIONS. Sept. 1, 2003. SALE OF NONHALAL FOOD. (a) In Subsection (b) of this section, unless the context requires a different definition, "wholesaler" means a person who sells for the purpose of resale and not directly to a consuming purchaser. (3) "Sound recording" means musical, spoken, or other sounds recorded on a tangible medium, including a disc, tape, or phonograph record. The consumer protection division shall file its motion for intervention with the court before which the action is pending and serve a copy of the motion on each party to the action. A consumer aggrieved by a violation of this chapter may maintain a cause of action for damages in accordance with Section 17.50 of this code. (2) "proprietary mark" includes word, name, symbol, device, and any combination of them in any form or arrangement, used by a person to identify his tangible personal property and distinguish it from the tangible personal property of another. 17.46. May 21, 1973. Added by Acts 1985, 69th Leg., ch. WebThis course deals with the Texas Deceptive Trade Practices - Consumer Protection Act (DTPA), which is the primary consumer protection statute in Texas. 216, Sec. Sec. 17.43. May 21, 1973. This subsection does not apply if Subsection (b) applies. DEFINITIONS. 17.955. 595 (H.B. Renumbered from Bus. SUBCHAPTER F. GOING OUT OF BUSINESS SALES. 1, eff. (1) use for any purpose outside the premises of the owner or an adjacent parking area, a container of another that is identified with or by any name or mark unless the use is authorized by the owner; (2) sell or offer for sale a container of another that is identified with or by a name or mark unless the sale is authorized by the owner; or. (e) In computing additional damages under Subsection (b), attorneys' fees, costs, and prejudgment interest may not be considered. September 1, 2019. Added by Acts 1977, 65th Leg., p. 604, ch. Deceptive Wholesale and Going-out-of-business Advertising 17.12. (b) If a person fails to comply with a directive of the consumer protection division under Section 17.60 of this subchapter or with a civil investigative demand for documentary material served on him under Section 17.61 of this subchapter, or if satisfactory copying or reproduction of the material cannot be done and the person refuses to surrender the material, the consumer protection division may file in the district court in the county in which the person resides, is found, or transacts business, and serve on the person, a petition for an order of the court for enforcement of Sections 17.60 and 17.61 of this subchapter. 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