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2005 Texas Business & Commerce Code CHAPTER 35. MISCELLANEOUS
BUSINESS & COMMERCE CODE CHAPTER 35. MISCELLANEOUS SUBCHAPTER A. FILING OF UTILITY SECURITY INSTRUMENTS § 35.01. DEFINITIONS. (a) In Sections 35.02-35.08 of this code, unless the context requires a different definition, (1) "Security instrument" means a mortgage, deed of trust, security agreement or other instrument executed to secure the payment of a bond, note, or other obligation of a utility, or instruments supplementary or amendatory thereto (including any signed copy thereof); and (2) "Utility" means a person engaged in this state in the (A) generation, transmission, or distribution and sale of electric power; (B) transportation, distribution and sale through a local distribution system of natural or other gas for domestic, commercial, industrial, or other use; (C) ownership or operation of a pipeline for the transmission or sale of natural or other gas, natural gas liquids, crude oil or petroleum products to other pipeline companies, refineries, local distribution systems, municipalities, or industrial consumers; (D) provision of telephone or telegraph service to others; (E) production, transmission, or distribution and sale of steam or water; (F) operation of a railroad; and (G) the provision of sewer service to others. (b) The definitions in Chapters 1 and 9 of this code also apply to this subchapter. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1967, 60th Leg., p. 1987, ch. 735, § 10; Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974; Acts 1989, 71st Leg., ch. 49, § 1, eff. May 3, 1989. § 35.015. ELECTION TO BE TREATED AS A UTILITY. In this chapter: (1) Any person who is a utility under the definition contained in Subdivision (2) of Subsection (a) of Section 35.01 above shall nevertheless not be considered to be a utility and subject to the requirements and benefits of Subchapter A of this chapter, unless and until such person files a security instrument with the secretary of state which states conspicuously on its title page: "This Instrument Grants A Security Interest By A Utility." (2) An election by a utility to be covered by this subchapter shall only be effective for the collateral covered by the security instrument upon which the election is made and shall not be effective for other collateral unless a similar election is made for such collateral. (3) Any person who executes a security instrument with respect to which no election is made to be treated as a utility as provided in Subsection (a) of this section shall be subject to other applicable requirements of law pertaining to the perfection of a lien or security interest in the collateral covered by such security instrument. Added by Acts 1981, 67th Leg., p. 2935, ch. 778, § 1, eff. Aug. 31, 1981. Renumbered from § 35.01A by Acts 1987, 70th Leg., ch. 167, § 5.02(8), eff. Sept. 1, 1987. § 35.02. FILING UTILITY SECURITY INSTRUMENTS WITH SECRETARY OF STATE; PERFECTION; NOTICE. (a) Payment of the statutory filing fee and deposit for filing in the office of the Secretary of State of a security instrument executed by a utility which states conspicuously on its title page: "This Instrument Grants A Security Interest By A Utility" shall, subject to the provisions of Subsection (b) of this section (1) constitute perfection of a security interest created by the security instrument in any personal property (including goods which are, or are to become, fixtures) in which a security interest may be perfected by filing under Chapter 9 of this code, located in this state, and owned by the utility when the security instrument was executed or to be acquired by the utility after execution of the security instrument; and (2) be taken and held as notice to all persons of the existence of such security instrument and the interest granted therein, as security, in any real property (or fixtures thereon, or to be placed thereon) located in this state and owned by the utility when the security instrument was executed or to be acquired by the utility after the execution of the security instrument; provided that the security instrument shall first be proven, acknowledged or certified as otherwise required by law for the recording of real property mortgages. (b) For perfection or notice to be effective as to a particular item of property, the filed security instrument must (1) identify the property by type, character, or description if it is presently owned personal property (including fixtures); provided that for such purposes, any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described; (2) provide a description of the property if it is presently owned real property; and (3) state conspicuously on its title page: "This Instrument Contains After-Acquired Property Provisions" if the property is to be acquired after the execution of the security instrument. (c) Filing under this section satisfies any requirement of (1) filing of the security instrument or a financing statement in the office of a county clerk where such would otherwise be necessary to perfect a security interest; and (2) recording of the security instrument in the office of a county clerk where such would otherwise cause the security instrument to be effective and valid as to all creditors and subsequent purchasers for valuable consideration without notice. (d) The provisions in Chapter 9 of this code pertaining to priorities and remedies shall apply to security interests in personal property (including fixtures) perfected under this section. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974. § 35.03. DURATION OF NOTICE. The perfection or notice provided by any security instrument filed under Section 35.02 of this code is effective from the date of deposit for filing until the interest granted as security is released by the filing of a termination statement, or a release of all or a part of the property, signed by the secured party, and no renewal, refiling or continuation statement shall be required to continue such effectiveness. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974. § 35.04. NOTICE OF NAME CHANGE, MERGER OR CONSOLIDATION. (a) Where a utility changes its name or merges or consolidates with another person after the deposit for filing of a security instrument executed by it, a written statement of the name change, merger or consolidation shall promptly be deposited for filing in the office of the Secretary of State. Any such statement must be signed by the secured party and the utility, identify the appropriate security instrument by file number, and state the name of the utility after the name change, merger or consolidation. (b) A security instrument deposited for filing before the name change, merger or consolidation is not effective to provide perfection or notice of interests granted as security under Section 35.02 of this Chapter in property acquired by the utility more than four months after the name change, merger or consolidation, unless the written statement is deposited for filing as required by Subsection (a) before the expiration of that time. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974. § 35.05. FILING OF SECURITY INSTRUMENTS AND STATEMENT OF NAME CHANGE, MERGER OR CONSOLIDATION BY SECRETARY OF STATE; FEES. (a) The Secretary of State shall endorse upon any security instrument and any statement of name change, merger, or consolidation deposited for filing in his office, the day and hour of receipt and the file number assigned to it. Such endorsement shall, in the absence of other evidence, be conclusive proof of the time and fact of deposit for filing. (b) The Secretary of State shall retain in his office all security instruments and statements of name change, merger, or consolidation deposited in his office and shall file such in adequate filing devices. (c) The uniform fee for filing and indexing a security instrument, or an instrument supplementary or amendatory thereto, and a statement of name change, merger, or consolidation and for stamping a copy of such documents, furnished by the secured party or the utility, to show the date and place of filing shall be $25. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974; Acts 1987, 70th Leg., ch. 1007, § 7, eff. June 19, 1987. § 35.06. INFORMATION FROM SECRETARY OF STATE. Upon the request of any person, the Secretary of State shall issue his certificate showing whether there is on file on the date and hour stated therein, any presently effective security instrument naming a particular utility, and if there is, giving the date and hour of filing of such instrument and the names and addresses of each secured party therein. The uniform fee for such a certificate shall be $10.00 if the request for the certificate is in the standard form prescribed by the Secretary of State, and otherwise shall be $25.00. Upon request the Secretary of State shall furnish a copy of any filed security instrument for a uniform fee of $1.50 per page, but not less than $5.00 nor more than $100.00 per request concerning a particular utility. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974; Acts 1989, 71st Leg., ch. 398, § 3, eff. Sept. 1, 1989. § 35.07. RECORDING OF NOTICE IN COUNTY OF REAL PROPERTY; SEPARATE INDEX BY COUNTY CLERK OF SECURITY INSTRUMENTS AND CONTINUATION STATEMENTS. (a) If any security instrument filed with the office of the Secretary of State under Section 35.02 of this code grants an interest, as security, in any real property owned by the utility, a notice of utility security instrument affecting real property shall be recorded in the office of the county clerk in the county where the real property is located, stating (1) the name of the utility which executed the security instrument; (2) that a security instrument affecting real property in the county has been executed by the utility; and (3) that such security instrument was filed, and other security instruments may be on file, in the office of the Secretary of State. (b) It shall not be necessary to record a notice regarding other security instruments executed by the utility, and the notice recorded under Subsection (a) of this section shall be sufficient to provide notice of any and all other security instruments (1) executed by the utility; (2) filed in the office of the Secretary of State; and (3) granting an interest, as security, in any real property, and fixtures thereto, located in the county where such notice was recorded. (c) Notices recorded under Subsection (a) of this section shall be recorded and indexed by the county clerk in the same records and indices as are mortgages on real property. (d) The county clerk shall maintain a separate index of utility security instruments and continuation statements recorded under prior law. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974. § 35.08. PRIOR PERFECTED LIENS; REFILING WITH SECRETARY OF STATE. The perfection or notice provided by any security instrument covering any real or personal property located in this state which was heretofore filed or recorded in the office of the Secretary of State or the office of the county clerk of any county in this state continues effective until it would have lapsed under prior law or January 1, 1978, whichever occurs first; but it may be filed or refiled prior to such time in the office of the Secretary of State as provided in Section 35.02 of this code, and such filing or refiling shall continue the effectiveness as provided in Sections 35.02 and 35.03 of this code. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. Amended by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974. § 35.09. REPEALER. The following act and all other acts and parts of acts inconsistent herewith are hereby repealed: Article 6645, Revised Civil Statutes of Texas, 1925, as amended. Added by Acts 1973, 63rd Leg., p. 1032, ch. 400, § 7, eff. Jan. 1, 1974.SUBCHAPTER B. DUTIES OF RAILROAD COMMISSION AND CRIMINAL OFFENSES INVOLVING BILLS OF LADING § 35.14. DEFINITIONS. In Sections 35.15-35.21 of this code, unless the context requires a different definition, (1) "agent" includes officer, employee, and receiver; (2) "airbill" means a document serving for air transportation as a bill of lading does for marine or rail transportation, and includes an air consignment note or air waybill; (3) "bill of lading" means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods, and includes an airbill; (4) "common carrier" in Sections 35.15-35.17 of this code does not include a pipeline company or express company; and (5) "goods" means all things which are treated as movable for the purposes of a contract of storage or transportation. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.15. DUTIES OF RAILROAD COMMISSION. (a) The railroad commission shall (1) prescribe forms, terms, and conditions for authenticating, certifying, or validating bills of lading issued by a common carrier; (2) regulate the manner of issuing bills of lading by a common carrier; and (3) take other action necessary to carry out the purposes of Chapter 7 of this code. (b) After giving reasonable notice to interested common carriers and to the public, the railroad commission may amend a rule promulgated under Subsection (a) of this section. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.16. AGENT WRONGFULLY FAILING TO ISSUE BILL OF LADING. (a) An agent of a common carrier may not after lawful demand fail or refuse to issue a bill of lading in accordance with Chapter 7 of this code or a rule of the railroad commission. (b) An agent who violates a provision of Subsection (a) of this section is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail for not more than six months or by a fine of not more than $200 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.17. AGENT ISSUING FRAUDULENT BILL OF LADING. (a) An agent of a common carrier may not with intent to defraud a person (1) issue a bill of lading; (2) misdescribe in a bill of lading goods or their quantity described in the bill of lading; or (3) issue a bill of lading without authority. (b) An agent who violates a provision of Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than 2 nor more than 10 years. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.18. AGENT ISSUING DUPLICATE ORDER BILL OF LADING. (a) Except where customary in overseas transportation, an agent of a common carrier may not knowingly issue or aid in issuing an order bill of lading in duplicate or in a set of parts. (b) An agent who violates a provision of Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not more than five years and by a fine of not more than $5,000. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.20. INDUCING ISSUANCE OF FRAUDULENT BILL OF LADING. (a) A person may not with intent to defraud induce an agent of a common carrier to (1) issue to him a bill of lading; or (2) materially misrepresent in a bill of lading issued on behalf of the common carrier the quantity of goods described in the bill of lading. (b) A person who violates a provision of Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than two nor more than five years. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.21. NEGOTIATING FRAUDULENT BILL OF LADING. (a) A person may not with intent to defraud negotiate or transfer a bill of lading (1) issued in violation of Chapter 7 of this code; or (2) containing a false, material statement of fact. (b) A person who violates a provision of Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not more than 10 years. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.SUBCHAPTER C. CRIMINAL OFFENSES INVOLVING WAREHOUSE RECEIPTS § 35.27. DEFINITIONS. In Sections 35.28-35.33 of this code, unless the context requires a different definition, (1) "goods" means all things which are treated as movable for the purposes of a contract of storage or transportation; (2) "issue" includes aiding in the issue of; (3) "warehouseman" means a person engaged in the business of storing goods for hire; and (4) "warehouse receipt" means a receipt issued by a person engaged in the business of storing goods for hire. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.28. WAREHOUSEMAN ISSUING FRAUDULENT WAREHOUSE RECEIPT. (a) A warehouseman, his officer, agent, or employee, may not with intent to defraud issue a warehouse receipt which contains a false statement of fact. (b) A warehouseman, his officer, agent, or employee, who violates Subsection (a) of this section is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.29. WAREHOUSEMAN FAILING TO STATE HIS OWNERSHIP OF GOODS ON RECEIPT. (a) A warehouseman, his officer, agent, or employee, may not knowingly issue a negotiable warehouse receipt describing goods the warehouseman owns and is storing (whether the warehouseman owns them solely, jointly, or in common) unless he states the warehouseman's ownership on the receipt. (b) A warehouseman, his officer, agent, or employee, who violates Subsection (a) of this section is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.30. WAREHOUSEMAN ISSUING WAREHOUSE RECEIPT WITHOUT GOODS. (a) A warehouseman, his officer, agent, or employee, may not issue a warehouse receipt if he knows at the time of issuance that the goods described in the warehouse receipt are not under his actual control. (b) A warehouseman, his officer, agent, or employee, who violates Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not more than five years or by a fine of not more than $5,000 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.31. WAREHOUSEMAN ISSUING DUPLICATE WAREHOUSE RECEIPT. (a) A warehouseman, his officer, agent, or employee, may not issue a duplicate or additional negotiable warehouse receipt for goods if he knows at the time of issuance that a previously issued negotiable warehouse receipt describing those goods is outstanding and uncancelled. (b) Subsection (a) of this section does not apply if (1) the word "Duplicate" is plainly placed on the duplicate or additional negotiable warehouse receipt; or (2) goods described in the outstanding and uncancelled negotiable warehouse receipt were delivered pursuant to court order on proof that the receipt was lost or destroyed. (c) A warehouseman, his officer, agent, or employee, who violates Subsection (a) of this section is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not more than five years or by a fine of not more than $5,000 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.32. WAREHOUSEMAN WRONGFULLY DELIVERING GOODS. (a) A warehouseman, his officer, agent, or employee, may not knowingly deliver goods described in a negotiable warehouse receipt and stored with him unless the receipt is surrendered to him at or before the time he delivers the goods. (b) Subsection (a) of this section does not apply if the goods are (1) delivered pursuant to court order on proof that the negotiable warehouse receipt describing them was lost or destroyed; (2) lawfully sold to satisfy a warehouseman's lien; or (3) disposed of because of their perishable or hazardous nature. (c) A warehouseman, his officer, agent, or employee, who violates Subsection (a) of this section is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.33. FAILING TO DISCLOSE OWNERSHIP OF GOODS. (a) A person who obtains a negotiable warehouse receipt describing goods he does not own, or goods subject to a lien, may not with intent to defraud negotiate the receipt for value without disclosing his lack of ownership or the lien's existence. (b) A person who violates a provision of Subsection (a) of this section is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000 or by both. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1.SUBCHAPTER D. MISCELLANEOUS § 35.39. DAMAGES ON PROTESTED, OUT-OF-STATE DRAFT. The holder of a protested draft is entitled to damages equalling 10 percent of the amount of the draft, plus interest and costs of suit, if the (1) draft was drawn by a merchant in this state on his agent or factor outside this state; and (2) drawer's or indorser's liability on the draft has been fixed. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.395. DELIVERY OF CHECK FORM. (a) In this section: (1) "Addressee" means a person to whom a check form is sent. (2) "Check form" means a device for the transmission or payment of money that: (A) is not a negotiable instrument under Section 3.104; (B) if completed would be a check as that term is described by Section 3.104; and (C) is printed with information relating to the financial institution on which the completed check may be drawn. (3) "Courier" means any entity that delivers parcels for a fee. (4) "Check form provider" means a business that provides check forms to a customer for a personal or business account. (b) When an addressee requests of a check form provider, courier delivery of a check form with signature required, and such service is available in the delivery area of the addressee, the entity making the arrangement for courier delivery pursuant to the request of the addressee must provide the addressee with the option to require that a signature of the addressee, or the representative of the addressee, be obtained on delivery. The option to require such a signature may be provided on a printed check form order form, on an electronic check form order form where check form orders are offered on the Internet, to an electronic mail address established for such purpose by the entity making the offer, or by another method reasonably calculated to effectively communicate the addressee's intent. (c) An entity making the arrangement for the courier delivery of a check form to an addressee pursuant to the provisions of Subsection (b) shall notify the courier of the check form that the signature of the addressee is required for delivery under Subsection (b). (d) If the addressee suffers a pecuniary loss through the use of check forms stolen at the time of delivery to the addressee, a civil penalty of up to a maximum amount of $1,000 per delivery may be levied upon: (1) an entity that violates Subsection (b) or (c); or (2) a courier who is properly notified under Subsection (c) that a signature is required for delivery, and delivers the check form without obtaining a signature of the addressee or a representative of the addressee. (e) The attorney general may bring suit to recover a civil penalty imposed under this section. The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this subsection, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses. Added by Acts 2005, 79th Leg., ch. 1202, § 1, eff. June 1, 2006. § 35.40. IDENTIFICATION OF PATENT RIGHT NOTE OR LIEN. (a) A note or lien evidencing or securing the purchase price for a patent right or patent right territory must contain on its face a statement that it was given for a patent right or patent right territory. (b) The statement required by Subsection (a) of this section (1) is notice to a subsequent purchaser of the note or lien of all equities between the original parties to the note or lien; and (2) subjects a subsequent holder of the note or lien to all defenses available against the original parties to the note or lien. (c) A person selling a patent right or patent right territory may not take a note or lien evidencing or securing the purchase price for it without placing on the face of the note or lien the statement required by Subsection (a) of this section. (d) A person who violates Subsection (c) of this section is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $25 nor more than $200. Acts 1967, 60th Leg., p. 2343, ch. 785, § 1. § 35.41. DESTRUCTION OF DIE, MOLD, OR FORM. (a) In this Act: (1) "Owner" means an individual, firm, or corporation that holds title to a die, mold, or form. (2) "Molder" means an individual, firm, or corporation that makes a die, mold, or form, or that uses a die, mold, or form to make another product. (b) After the three-year period beginning on the day on which a die, mold, or form was last used or, if never used, on the day on which it was made, a molder in possession of the die, mold, or form may send notice to its owner of the molder's intent to destroy the die, mold, or form. Notice must be sent by registered mail, return receipt requested, to the last known address of the owner. (c) If, before the 121st day after the day that the notice sent in accordance with Subsection (b) of this section is received, the owner does not take possession of the die, mold, or form or make arrangements with the molder for its removal or continued storage, the molder may destroy the die, mold, or form. (d) On destruction of a die, mold, or form in accordance with this section, the owner's title to it ends. (e) If a molder satisfies the requirements of this section, the molder may not be held criminally or civilly liable for the destruction of the die, mold, or form. (f) This section does not prevent a molder that holds title to a die, mold or form from destroying it at any time. Added by Acts 1983, 68th Leg., p. 4598, ch. 778, § 1, eff. Aug. 29, 1983. § 35.42. REDUCTION OF VALUE OR EXPIRATION OF STORED VALUE CARD. (a) In this section: (1) "Record" has the meaning assigned by Section 43.002, and includes a record that contains a microprocessor chip, magnetic strip, or other means of storing information. (2) "Stored value card" means a record that evidences a promise made for monetary consideration by the seller or issuer of the record that goods or services will be provided to the owner of the record in the value shown in the record, that is prefunded, and the value of which is reduced on redemption. The term includes a gift card or gift certificate. (3) "Use" of a stored value card includes a whole or partial redemption of or adding value to the card. (b) This section does not apply to a stored value card that: (1) is distributed by the issuer to a person under an awards, rewards, loyalty, incentive, rebate or promotional program and not issued or reloaded in exchange for money tendered by the cardholder; (2) is sold below face value or donated to: (A) an employee of the seller or issuer; (B) a nonprofit or charitable organization; or (C) an educational institution, for fund-raising purposes; (3) is issued by a financial institution acting as a financial agent of the United States or this state; (4) is issued as a prepaid calling card by a prepaid calling card company regulated under Section 55.253, Utilities Code; (5) does not expire and for which the seller does not charge a fee other than a fee described in Subsection (d); or (6) is issued by an air carrier holding a certificate of public convenience and necessity under Title 49, United States Code. (c) This section does not apply to a stored value card issued by a federally insured financial institution, as defined by Section 201.101, Finance Code, for which the financial institution is primarily liable as the issuing principal. (d) If disclosed as provided by Subsection (f), the issuer of a stored value card may impose and collect a reasonable handling fee in connection with the issuance of or adding of value to the card, a reasonable access fee for a card transaction conducted at an unmanned teller machine, as defined by Section 59.301, Finance Code, and a reasonable reissue or replacement charge if a lost or expired card is reissued or replaced. (e) The issuer of a stored value card may impose or collect a periodic fee or other charge that causes the unredeemed balance of the card to decrease over time only if the fee is reasonable, is not assessed until after the first anniversary of the date the card is sold or issued, and is disclosed as provided by Subsection (f). (f) An expiration date or policy, fee, or other material restriction or contract term applicable to a stored value card must be clearly and conspicuously disclosed to a person at the time the card is sold or issued to the person to enable the person to make an informed decision before the person purchases the card. A disclosure regarding expiration or a periodic fee that reduces the unredeemed value of the stored value card must also be legibly printed on the card. A stored value card that is sold without the disclosure as required by this section of an expiration date or policy, fee, or other material restriction or contract term applicable to the card is valid until redeemed or replaced. (g) This section does not create a cause of action against a person who issues or sells a stored value card. Added by Acts 2005, 79th Leg., ch. 81, § 1, eff. Sept. 1, 2005. § 35.44. STORE LEASE CONTRACTS. (a) A provision of a lease contract that requires a store to be open when another store located in the same shopping center is open does not apply on Sunday unless the provision specifically states that it applies on Sunday. (b) This section applies to a contract regardless of whether it was executed before or after this section took effect. Added by Acts 1985, 69th Leg., ch. 220, § 4, eff. Sept. 1, 1985. Renumbered from § 35.42 by Acts 1987, 70th Leg., ch. 167, § 5.01(a)(3), eff. Sept. 1, 1987. § 35.45. DELIVERY OF UNSOLICITED GOODS. (a) Unless otherwise agreed, if unsolicited goods are delivered to a person, the person: (1) is entitled to refuse to accept delivery of the goods; and (2) is not required to return the goods to the sender. (b) If unsolicited goods are either addressed to or intended for the recipient, the goods are considered a gift to the recipient, who may use them or dispose of them in any manner without obligation to the sender. (c) Unsolicited goods received due to a bona fide mistake must be returned, but the burden of proof of the error is on the sender. (d) This section does not apply to goods substituted for goods ordered or solicited by the recipient. Added by Acts 1985, 69th Leg., ch. 959, § 7, eff. Sept. 1, 1985. Renumbered from § 35.42 by Acts 1987, 70th Leg., ch. 167, § 5.01(a)(3), eff. Sept. 1, 1987. § 35.455. DISCLOSURES REQUIRED FOR CERTAIN CONSUMER CONTRACTS SOLICITED BY MAIL. (a) Unless the context requires a different definition, the definitions of Chapter 3 apply to this section. (b) This section applies only to a person that solicits business in this state by mailing an individual a check or draft payable to the individual. This section does not apply to a financial institution as defined in Section 201.101, Finance Code, or an authorized lender as defined in Section 341.001, Finance Code, that sends a check or draft to an existing or prospective account holder authorizing the existing or prospective account holder to access an extension of credit. (c) A person that makes an offer that the recipient may accept by endorsing and negotiating the check or draft shall clearly and conspicuously disclose on the check or draft, next to the place for endorsement, that by signing and negotiating the document the depositor agrees to pay for future goods or services as a result of this contract. (d) If a person makes an offer under Subsection (c) that includes a free membership period, trial period, or other incentive with a time limit, and if the offer results in a contract unless the recipient cancels, rescinds, or revokes the offer by the end of the time period, the offeror shall send notice to the recipient, at least two weeks before debiting any account, of the recipient's obligation to cancel, rescind, revoke, or otherwise terminate the recipient's acceptance. The notice must be clear and conspicuous. If the offeror bills the consumer by mailing an invoice, notice may be included with the invoice. (e) An offer is void if the offeror: (1) does not make the disclosure required by Subsection (c); (2) does not give notice as required by Subsection (d), if applicable; or (3) provides an incentive with a time limit, including a free trial or membership period, that is less than two weeks. (f) If an offer described by Subsection (c) does not contain the required disclosure, or is not followed by any notice required by Subsection (d), or if the offeror fails to honor the recipient's request to cancel made under the terms of the offer or as required by Subsection (d), the delivery of any goods or services to the recipient does not operate to form a contract between the offeror and the recipient. (g) A violation of this section is a deceptive trade practice in addition to the practices described by Subchapter E, Chapter 17, and is actionable under that subchapter. Added by Acts 2005, 79th Leg., ch. 596, § 1, eff. Sept. 1, 2005. § 35.46. ATTACHING MOTOR VEHICLE DEALER'S NAME TO VEHICLE. (a) In this section: (1) "Motor vehicle" has the meaning assigned by Section 541.201, Transportation Code. (2) "Center high-mounted stop lamp" means a device that is mounted on the rear center line of a motor vehicle either in or on the rear window or within six inches from the rear window of the vehicle for the purpose of emitting a light when the vehicle's brakes are applied. (3) "Overlay" means a transparent or semi-transparent covering placed over a center high-mounted stop lamp on which is impressed or imprinted a name, trade name, logotype, or other message that can be read by a person behind the vehicle when the lamp is illuminated. (b) A person in the business of selling motor vehicles may not sell a motor vehicle with a center high-mounted stop lamp over which an overlay has been placed. (c) A person who violates this section commits an offense. An offense under this section is a Class C misdemeanor. Added by Acts 1987, 70th Leg., ch. 858, § 1, eff. Sept. 1, 1987. Amended by Acts 1997, 75th Leg., ch. 165, § 30.178, eff. Sept. 1, 1997. § 35.47. CERTAIN ELECTRONIC COMMUNICATIONS MADE FOR PURPOSE OF SALES. (a) A person may not make a telephone call or use an automatic dial announcing device to make a telephone call for the purpose of making a sale if: (1) the person making the call or using the device knows or should have known that the called number is a mobile telephone for which the called person will be charged for that specific call; and (2) the called person has not given consent to make such a call to the person calling or using the device or to the business enterprise for which the person is calling or using the device. (b) A person may not make or cause to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device or other telecopier for which the person or entity receiving the transmission will be charged for the transmission, unless the person or entity receiving the transmission has given, prior to the transmission, consent to make or cause to be made the transmission. (c) A person may not make or cause to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device after 11 p.m. and before 7 a.m. (d) On complaint of a called person that Subsection (a), (b), or (c) of this section has been violated, the county or district attorney of the county in which the person resides shall investigate the complaint and file charges if appropriate. A telephone company serving the caller or called person is not responsible for investigating a complaint or keeping records relating to this section. (e) A person who violates Subsection (a), (b), or (c) of this section commits an offense. An offense under this section is a Class C misdemeanor. (f) A person who receives a communication that violates 47 U.S.C. Section 227, a regulation adopted under that provision, or this section may bring an action against the person who originates the communication in a court of this state for an injunction, damages in the amount provided by this subsection, or both. A plaintiff prevailing in an action for damages under this subsection is entitled to the greater of $500 for each violation or the person's actual damages, except that the court may increase the amount of the award to not more than the greater of $1,500 for each violation or three times the person's actual damages if the court finds that the defendant committed the violation knowingly or intentionally. Added by Acts 1989, 71st Leg., ch. 783, § 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 635, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1429, § 2, eff. Jan. 1, 2002. § 35.48. RETENTION AND DISPOSAL OF BUSINESS RECORDS. (a) In this section: (1) "Business record" means letters, words, sounds, or numbers, or the equivalent of letters, words, sounds, or numbers, recorded in the operation of a business by: (A) handwriting; (B) typewriting; (C) printing; (D) photostat; (E) photograph; (F) magnetic impulse; (G) mechanical or electronic recording; (H) digitized optical image; or (I) another form of data compilation. (1-a) "Personal identifying information" means an individual's first name or initial and last name in combination with any one or more of the following items: (A) date of birth; (B) social security number or other government-issued identification number; (C) mother's maiden name; (D) unique biometric data, including the individual's fingerprint, voice print, and retina or iris image; (E) unique electronic identification number, address, or routing code; (F) telecommunication access device, including debit and credit card information; or (G) financial institution account number or any other financial information. (2) "Reproduction" means a counterpart of an original business record produced by: (A) production from the same impression or the same matrix as the original; (B) photograph, including an enlargement or miniature; (C) mechanical or electronic rerecording; (D) chemical reproduction; (E) digitized optical image; or (F) another technique that accurately reproduces the original. (3) "Telecommunication access device" has the meaning assigned by Section 32.51, Penal Code. (b) A business record required to be kept by state law may be destroyed at any time after the third anniversary of the date the record was created unless a law or regulation applicable to the business record prescribes a different retention period or procedure for disposal. (c) A state law requiring retention of a business record is satisfied by retention of a reproduction of the business record. (d) When a business disposes of a business record that contains personal identifying information of a customer of the business, the business shall modify, by shredding, erasing, or other means, the personal identifying information to make it unreadable or undecipherable. (e) A business is considered to comply with Subsection (d) if the business contracts with a person engaged in the business of disposing of records for the modification of personal identifying information on behalf of the business in accordance with Subsection (d). (f) A business that does not dispose of a business record of a customer in the manner required by Subsection (d) is liable for a civil penalty of up to $500 for each record. The attorney general may bring an action against the business to: (1) recover the civil penalty; (2) obtain any other remedy, including injunctive relief; and (3) recover costs and reasonable attorney's fees incurred in bringing the action. (g) A business that modifies a record as required by Subsection (d) in good faith is not liable for a civil penalty under Subsection (f) if the record is reconstructed, in whole or in part, through extraordinary means. (h) Subsection (d) does not require a business to modify a record if: (1) the business is required to retain the record under other law; or (2) the record is historically significant and: (A) there is no potential for identity theft or fraud while the record is in the custody of the business; or (B) the record is transferred to a professionally managed historical repository. (i) Subsection (d) does not apply to: (1) a financial institution as defined by 15 U.S.C. Section 6809; or (2) a covered entity as defined by Section 601.001 or 602.001, Insurance Code. Added by Acts 1989, 71st Leg., ch. 955, § 1, eff. June 15, 1989. Renumbered from § 35.47 by Acts 1990, 71st Leg., 6th C.S., ch. 12, § 2(2), eff. Sept. 6, 1990. Amended by Acts 1991, 72nd Leg., ch. 472, § 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 735, § 3, eff. Sept. 1, 1995; Acts 2005, 79th Leg., ch. 935, § 1 to 3, eff. Sept. 1, 2005. § 35.49. OTHER REMEDIES. (a) A person who sells, distributes, or manufactures cigarettes and who sustains direct economic or commercial injury as a result of a violation of Section 154.0415, Tax Code, or Section 48.015, Penal Code, may bring an action in good faith for appropriate injunctive relief. (b) The remedy provided by this section is in addition to any other remedy provided by law. Added by Acts 2001, 77th Leg., ch. 1104, § 5, eff. Sept. 1, 2001. § 35.50. BIOMETRIC IDENTIFIER. (a) In this section, "biometric identifier" means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry. (b) A person may not capture a biometric identifier of an individual for a commercial purpose unless the person: (1) informs the individual before capturing the biometric identifier; and (2) receives the individual's consent to capture the biometric identifier. (c) A person who possesses a biometric identifier of an individual: (1) may not sell, lease, or otherwise disclose the biometric identifier to another person unless: (A) the individual consents to the disclosure; (B) the disclosure completes a financial transaction requested or authorized by the individual; (C) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552, Government Code; or (D) the disclosure is made by or to a law enforcement agency for a law enforcement purpose; and (2) shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the person stores, transmits, and protects the person's other confidential information. (d) A person who violates this section is subject to a civil penalty of not more than $25,000 for each violation. The attorney general may institute an action to recover the civil penalty. Added by Acts 2001, 77th Leg., ch. 634, § 1, eff. Sept. 1, 2001. § 35.51. RIGHTS OF PARTIES TO CHOOSE LAW APPLICABLE TO CERTAIN TRANSACTIONS. (a) In this section: (1) "Transaction" includes more than one substantially similar or related transaction entered into contemporaneously and having at least one common party. (2) "Qualified transaction" means a transaction under which a party: (A) pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate value of at least $1,000,000; or (B) lends, advances, borrows, or receives, or is obligated to lend or advance or is entitled to borrow or receive, funds or credit with an aggregate value of at least $1,000,000. (b) Except as provided by Subsection (e) or (f) of this section or Section 35.52 of this code, if the parties to a qualified transaction agree in writing that the law of a particular jurisdiction governs an issue relating to the transaction, including the validity or enforceability of an agreement relating to the transaction or a provision of the agreement, and the transaction bears a reasonable relation to that jurisdiction, the law, other than conflict of laws rules, of that jurisdiction governs the issue regardless of whether the application of that law is contrary to a fundamental or public policy of this state or of any other jurisdiction. (c) Except as provided by Subsection (f) of this section and Section 35.52 of this code, if the parties to a qualified transaction agree in writing that the law of a particular jurisdiction governs the interpretation or construction of an agreement relating to the transaction or a provision of the agreement, the law, other than conflict of laws rules, of that jurisdiction governs that issue regardless of whether the transaction bears a reasonable relation to that jurisdiction. (d) For purposes of this section, a transaction bears a reasonable relation to a particular jurisdiction if the transaction, the subject matter of the transaction, or a party to the transaction is reasonably related to that jurisdiction. A transaction bears a reasonable relation to a particular jurisdiction if: (1) a party to the transaction is a resident of that jurisdiction; (2) a party to the transaction has its place of business or, if that party has more than one place of business, its chief executive office or an office from which it conducts a substantial part of the negotiations relating to the transaction, in that jurisdiction; (3) all or part of the subject matter of the transaction is located in that jurisdiction; (4) a party to the transaction is required to perform a substantial part of its obligations relating to the transaction, such as delivering payments, in that jurisdiction; or (5) a substantial part of the negotiations relating to the transaction, and the signing of an agreement relating to the transaction by a party to the transaction, occurred in that jurisdiction. (e) Except as provided by Subsection (f) of this section or Section 35.52 of this code, if: (1) the parties to a qualified transaction agree in writing that the law of a particular jurisdiction governs the validity or enforceability of an agreement relating to the transaction or a provision of the agreement; (2) the transaction bears a reasonable relation to that jurisdiction; and (3) a term of the agreement or of that provision is invalid or unenforceable under the law, other than conflict of laws rules, of that jurisdiction but is valid or enforceable under the law, other than conflict of laws rules, of the jurisdiction that has the most significant relation to the transaction, the subject matter of the transaction, and the parties, then: (A) the law, other than conflict of laws rules, of the jurisdiction that has the most significant relation to the transaction, the subject matter of the transaction, and the parties governs the validity or enforceability of that term; and (B) the law, other than conflict of laws rules, of the jurisdiction that the parties agree would govern the validity or enforceability of that agreement or of that provision governs the validity or enforceability of the other terms of that agreement or provision. (f) Subsections (b)-(e) of this section do not apply to the determination of the law that governs: (1) whether a transaction transfers or creates an interest in real property for security purposes or otherwise, the nature of an interest in real property that is transferred or created by a transaction, the method for foreclosure of a lien on real property, the nature of an interest in real property that results from foreclosure, or the manner and effect of recording or failing to record evidence of a transaction that transfers or creates an interest in real property; (2) the validity of a marriage or an adoption, whether a marriage has been terminated, or the effect of a marriage on property owned by a spouse at the time of the marriage or acquired by either spouse during the marriage; (3) whether an instrument is a will, the rights of persons under a will, or the rights of persons in the absence of a will; or (4) an issue that another statute of this state, or a statute of the United States, provides is governed by the law of a particular jurisdiction. (g) Subsections (b)-(e) of this section apply to the determination of the law that governs an issue relating to a transaction involving real property other than those specified in Subsection (f)(1) of this section, including the validity or enforceability of an indebtedness incurred in consideration for the transfer of, or the payment of which is secured by a lien on, real property. Added by Acts 1993, 73rd Leg., ch. 570, § 13, eff. Sept. 1, 1993. § 35.52. LAW APPLICABLE TO CONSTRUCTION CONTRACTS. (a) If a contract is principally for the construction or repair of improvements to real property located in this state and the contract contains a provision that makes the contract or any conflict arising under it subject to the law of another state, to litigation in the courts of another state, or to arbitration in another state, that provision is voidable by the party that is obligated by the contract to perform the construction or repair. (b) A contract is principally for the construction or repair of improvements to real property located in this state if the contract obligates a party, as its principal obligation under the contract, to provide labor, or labor and materials, for the construction or repair of improvements to real property located in this state as a general contractor or subcontractor. (c) A contract is not principally for the construction or repair of improvements to real property located in this state if: (1) the contract is a partnership agreement or other agreement governing an entity or trust; (2) the contract provides for a loan or other extension of credit and the party promising to construct or repair improvements does so as part of its agreements with the lender or other extender of credit; or (3) the contract is for the management of real property or improvements and the obligation to construct or repair is part of that management. (d) Subsections (b) and (c) of this section are not an exclusive list of situations in which a contract is or is not principally for the construction or repair of improvements to real property located in this state. Added by Acts 1993, 73rd Leg., ch. 570, § 13, eff. Sept. 1, 1993. § 35.53. NOTICE OF LAW; DISPUTE RESOLUTION FORUM APPLICABLE TO CONTRACT. (a) This section applies to a contract only if: (1) the contract is for the sale, lease, exchange, or other disposition for value of goods for the price, rental, or other consideration of $50,000 or less; (2) any element of the execution of the contract occurred in this state and a party to the contract is: (A) an individual resident of this state; or (B) an association or corporation created under the laws of this state or having its principal place of business in this state; and (3) Section 1.301 of this code does not apply to the contract. (b) If a contract to which this section applies contains a provision making the contract or any conflict arising under the contract subject to the laws of another state, to litigation in the courts of another state, or to arbitration in another state, the provisions must be set out conspicuously in print, type, or other form of writing that is bold-faced, capitalized, underlined, or otherwise set out in such a manner that a reasonable person against whom the provision may operate would notice. If the provision is not set out as provided by this subsection, the provision is voidable by a party against whom it is sought to be enforced. (c) Repealed by Acts 1993, 73rd Leg., ch. 570, § 16(4), eff. Sept. 1, 1993. Added by Acts 1987, 70th Leg., ch. 812, § 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 622, § 2, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 772, § 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 840, § 1, eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 570, § 14, 16(4), eff. Sept. 1, 1993; Acts 2005, 79th Leg., ch. 728, § 2.001, eff. Sept. 1, 2005. § 35.531. LAW APPLICABLE TO CONTRACT MADE OVER INTERNET. (a) In this section, "Internet" means the largest nonproprietary nonprofit cooperative public computer network, popularly known as the Internet. (b) Subject to Subsection (e), this section applies only to a contract made solely over the Internet between a person located in this state and a person located outside this state who does not maintain an office or agent in this state for doing business in this state. (c) A contract to which this section applies is governed by the law of this state unless each party to the contract who is located in this state: (1) is given notice that the law of the state in which another party to the contract is located applies to the contract; and (2) agrees to the application of that state's law. (d) A person asserting that the law of another state applies to a contract has the burden of proving that notice was given and agreement was obtained as provided by Subsection (c). (e) Sections 1.301 and 35.53 do not apply to a contract to which this section applies. This section does not apply to a contract to which Section 35.51 applies. Added by Acts 1999, 76th Leg., ch. 977, § 1, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 728, § 2.002, eff. Sept. 1, 2005. § 35.54. USE OF CRIME VICTIM OR MOTOR VEHICLE ACCIDENT INFORMATION FOR CERTAIN PURPOSES PROHIBITED. (a) In this section: (1) "Crime victim information" means information that is collected or prepared by a law enforcement agency that identifies or serves to identify a person who, according to the records of the law enforcement agency, may have been the victim of a crime in which physical injury to the person occurred or was attempted or in which the offender entered or attempted to enter the dwelling of the person. (2) "Motor vehicle accident information" means information that is collected or prepared by a law enforcement agency that identifies or serves to identify a person who, according to the records of the law enforcement agency, may have been involved in a motor vehicle accident. (b) A person who has possession of crime victim or motor vehicle accident information that the person obtained or knows was obtained from a law enforcement agency may not use the information to contact directly a person who is a crime victim or who was involved in a motor vehicle accident or a member of the person's family for the purpose of soliciting business from the person or family member and may not sell the information to another person for financial gain. (c) The attorney general may bring an action against a person who violates Subsection (b) of this section pursuant to Section 17.47 of this code. (d) A person who violates Subsection (b) of this section commits an offense. An offense under this subsection is a Class C misdemeanor unless the defendant has been previously convicted under this subsection more than two times, in which event the offense is a felony of the third degree. Added by Acts 1989, 71st Leg., 1st C.S., ch. 4, § 1, eff. Jan. 1, 1990. Amended by Acts 1991, 72nd Leg., ch. 860, § 1, eff. Sept. 1, 1991. § 35.55. SALE OF ITEMS AT FLEA MARKET. (a) In this section, "flea market" means a location at which booths or similar spaces are rented or otherwise made available temporarily to two or more persons and at which the persons offer tangible personal property for sale. (b) In addition to any other sanctions provided by law, a person commits an offense if the person sells or offers for sale at a flea market: (1) infant formula or baby food of a type usually consumed by children younger than two years of age; (2) a drug, as defined by Section 431.002, Health and Safety Code; or (3) contact lenses, including disposable contact lenses. (c) A person does not commit an offense under this section solely because the person provides spaces at a flea market. (d) It is a defense to prosecution under Subsection (b) that: (1) the person selling the item: (A) is authorized in writing to sell the item at retail by the manufacturer of the item or the manufacturer's authorized distributor; (B) the authorization states the person's name; and (C) the person provides for examination the authorization to any person at the flea market who requests to see the authorization; or (2) only a sample of the item or a catalog or brochure displaying the item was available at the flea market and the item sold was not delivered to the buyer at the flea market. (e) A person commits an offense if the person provides to another person an authorization under Subsection (d)(1) and: (1) the authorization is forged or contains a false statement; or (2) the person displaying the authorization obtained the authorization by fraud. (f) An offense under this section is a misdemeanor punishable by a fine of not more than $100. (g) A law enforcement agency investigating a violation of this section shall maintain a record of the investigation. The record is public information. (h) This section does not apply to the sale or offer for sale of a nutritional supplement or vitamin. Added by Acts 1999, 76th Leg., ch. 694, § 1, eff. Sept. 1, 1999. § 35.56. OFFENSE: IMPROPERLY INDUCED APPRAISAL FOR MORTGAGE LOAN. (a) In this section: (1) "Lender" means a person who lends money for or invests money in mortgage loans. (2) "Mortgage loan" means a loan that is secured by a deed of trust, security deed, or other lien on real property. (b) A lender commits an offense if in connection with a mortgage loan transaction the lender pays or offers to pay a person, including an individual licensed or certified by the Texas Appraiser Licensing and Certification Board or the Texas Real Estate Commission, a fee or other consideration for appraisal services and the payment: (1) is contingent on a minimum, maximum, or pre-agreed estimate of value of property securing the loan; and (2) interferes with the person's ability or obligation to provide an independent and impartial opinion of the property's value. (c) An offense under this section is a Class A misdemeanor. (d) Instructions given by a lender to a real estate appraiser regarding legal or other regulatory requirements for the appraisal of property, or any other communications between a lender or real estate appraiser necessary or appropriate under a law, regulation, or underwriting standard applicable to a real estate appraisal, do not constitute interference by a lender for purposes of Subsection (b)(2). Added by Acts 2001, 77th Leg., ch. 839, § 1, eff. Sept. 1, 2001. § 35.57. SHIPPING ARTICLES WITHOUT INSPECTION. (a) A person commits an offense if the person: (1) exports from this state, or ships for the purpose of exportation to a state other than this state or to a foreign port, an article of commerce that by law of this state is required to be inspected by a public inspector; and (2) does not have the article inspected as provided by law. (b) An offense under this section is a misdemeanor punishable by a fine of not more than $100. Added by Acts 2001, 77th Leg., ch. 1420, § 2.002(a), eff. Sept. 1, 2001. Renumbered from V.T.C.A., Bus. & C. Code § 35.49 by Acts 2003, 78th Leg., ch. 1275, § 2(2), eff. Sept. 1, 2003. § 35.58. CONFIDENTIALITY OF SOCIAL SECURITY NUMBER.Text of section as added by Acts 2003, 78th Leg., ch. 341, § 1 (a) A person may not print an individual's social security number on a card or other device required to access a product or service provided by the person unless the individual has requested in writing such printing. A person may not require a request for such printing as a condition to receipt of or access to a product or service provided by the person. (b) A person who violates this section is liable to the state for a civil penalty in an amount not to exceed $500 for each violation. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating this section. (c) This section does not apply to: (1) the collection, use, or release of a social security number that is required by state or federal law, including Chapter 552, Government Code; or (2) the use of a social security number for internal verification or administrative purposes. Added by Acts 2003, 78th Leg., ch. 341, § 1, eff. March 1, 2005. For text of section as added by Acts 2003, 78th Leg., ch. 1326, § 6, see V.T.C.A., Bus. & C. Code § 35.58, post. § 35.58. CONFIDENTIALITY OF SOCIAL SECURITY NUMBER.Text of section as added by Acts 2003, 78th Leg., ch. 1326, § 6 (a) A person, other than government or a governmental subdivision or agency, may not: (1) intentionally communicate or otherwise make available to the general public an individual's social security number; (2) display an individual's social security number on a card or other device required to access a product or service provided by the person; (3) require an individual to transmit the individual's social security number over the Internet unless the connection with the Internet is secure or the number is encrypted; (4) require an individual's social security number for access to an Internet website, unless a password or unique personal identification number or other authentication device is also required for access; or (5) print an individual's social security number on any materials, except as provided by Subsection (f), that are sent by mail, unless state or federal law requires that the individual's social security number be included in the materials. (b) A person that is using an individual's social security number before January 1, 2005, in a manner prohibited by Subsection (a) may continue that use if: (1) the use is continuous; and (2) the person provides annual disclosure to the individual, beginning January 1, 2006, stating that on written request from the individual the person will cease to use the individual's social security number in a manner prohibited by Subsection (a). (c) A person, other than government or a governmental subdivision or agency, may not deny services to an individual because the individual makes a written request under Subsection (b). (d) If a person receives a written request from an individual directing the person to stop using the individual's social security number in a manner prohibited by Subsection (a), the person shall comply with the request not later than the 30th day after the date the request is received. The person may not impose a fee or charge for complying with the request. (e) This section does not apply to: (1) the collection, use, or release of a social security number that is required by state or federal law, including Chapter 552, Government Code; (2) the use of a social security number for internal verification or administrative purposes; (3) documents that are recorded or required to be open to the public under Chapter 552, Government Code; (4) court records; or (5) an institution of higher education if the use of a social security number by the institution is regulated by Chapter 51, Education Code, or another provision of the Education Code. (f) Subsection (a)(5) does not apply to an application or form sent by mail, including a document sent: (1) as part of an application or enrollment process; (2) to establish, amend, or terminate an account, contract, or policy; or (3) to confirm the accuracy of a social security number. Added by Acts 2003, 78th Leg., ch. 1326, § 6, eff. Jan. 1, 2005. For text of section as added by Acts 2003, 78th Leg., ch. 341, § 1, see V.T.C.A., Bus. & C. Code § 35.58, ante. § 35.581. PRIVACY POLICY NECESSARY TO REQUIRE DISCLOSURE OF SOCIAL SECURITY NUMBER.Text of section as added by Acts 2005, 79th Leg., ch. 198, § 1 (a) A person may not require an individual to disclose the individual's social security number to obtain goods or services from or enter into a business transaction with the person, unless the person: (1) adopts a privacy policy; (2) makes the privacy policy available to the individual; and (3) maintains under the privacy policy the confidentiality and security of a social security number disclosed to the person. (b) A privacy policy adopted under this section must include how personal information is collected, how and when the personal information is used, how the personal information is protected, who has access to the personal information, and how the personal information is disposed. (c) This section does not apply to: (1) a person who is required to maintain and disseminate a privacy policy under the Gramm-Leach-Bliley Act (15 U.S.C. Sections 6801 to 6809), the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g), or the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.); (2) a covered entity under rules adopted by the commissioner of insurance relating to insurance consumer health information privacy or insurance consumer financial information privacy; (3) a governmental body, as defined by Section 552.003, Government Code, other than a municipally owned utility; or (4) a person with respect to a loan transaction, if the person is not engaged in the business of making loans. (d) A person who violates Subsection (a) is liable to the state for a civil penalty in an amount not to exceed $500 for each calendar month during which a violation occurs. The civil penalty may not be imposed for more than one violation that occurs in a month. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. (e) The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating Subsection (a). Added by Acts 2005, 79th Leg., ch. 198, § 1, eff. Sept. 1, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 946, § 1, see § 35.581, post. § 35.581. MERCHANT OR THIRD PARTY USE OF CONSUMER DRIVER'S LICENSE OR SOCIAL SECURITY NUMBERS; RESTRICTIONS; ACTIONS; CIVIL PENALTY.Text of section as added by Acts 2005, 79th Leg., ch. 946, § 1 (a) A merchant or a third party under contract with a merchant who requires a consumer returning an item of merchandise to provide the consumer's driver's license or social security number may use the number or numbers provided by the consumer solely for identification purposes if the consumer does not have a valid receipt for the item being returned and is seeking a cash, credit, or store credit refund. (b) A merchant or third party under contract with a merchant may not disclose a consumer's driver's license or social security number to any other merchant or third party not involved in the initial transaction. (c) A merchant or third party under contract with a merchant may only use a consumer's driver's license or social security number to monitor, investigate, or prosecute fraudulent return of merchandise. (d) A merchant or third party under contract with a merchant shall destroy or arrange for the destruction of records containing the consumer's driver's license or social security number at the expiration of six months from the date of the last transaction. (e) A person who violates this section is liable to the state for a civil penalty in an amount not to exceed $500 for each violation. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. (f) The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating this section. Added by Acts 2005, 79th Leg., ch. 946, § 1, eff. Sept. 1, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 198, § 1, see § 35.581, ante. § 35.585. EXTENSION OF CREDIT TO VICTIM OF IDENTITY THEFT. (a) In this section, "victim of identity theft" means an individual who has filed a criminal complaint alleging the commission of an offense under Section 32.51, Penal Code, other than a person who is convicted of an offense under Section 37.08, Penal Code, with respect to that complaint. A person who has been notified that an individual who has the capacity to contract has been the victim of identity theft may not deny the individual an extension of credit, including a loan, in the individual's name or restrict or limit the credit extended solely because the individual has been a victim of identity theft. This subsection does not prohibit a person from denying an individual an extension of credit for a reason other than because the individual has been a victim of identity theft. (b) A license issued under Subtitle B, Title 4, Finance Code, that is held by a person who violates this section is subject to revocation or suspension under that subtitle. Added by Acts 2005, 79th Leg., ch. 102, § 1, eff. Sept. 1, 2005. § 35.59. VERIFICATION OF CONSUMER IDENTITY. (a) In this section: (1) "Consumer report" has the meaning assigned by Section 20.01. (2) "Extension of credit" does not include an increase in the dollar limit of an existing open-end credit plan as defined by Regulation Z (12 C.F. R. Section 226.2), as amended, or any change to, or review of, an existing credit account. (3) "Security alert" has the meaning assigned by Section 20.01. (b) A person who receives notification of a security alert under Section 20.032 in connection with a request for a consumer report for the approval of a credit-based application, including an application for an extension of credit, a purchase, lease, or rental agreement for goods, or for an application for a noncredit-related service, may not lend money, extend credit, or authorize an application without taking reasonable steps to verify the consumer's identity. (c) If a consumer has included with a security alert a specified telephone number to be used for identity verification purposes, a person who receives that number with a security alert must take reasonable steps to contact the consumer using that number before lending money, extending credit, or completing any purchase, lease, or rental of goods, or approving any noncredit-related services. (d) If a person uses a consumer report to facilitate the extension of credit or for any other transaction on behalf of a subsidiary, affiliate, agent, assignee, or prospective assignee, that person, rather than the subsidiary, affiliate, agent, assignee, or prospective assignee, may verify the consumer's identity. Added by Acts 2003, 78th Leg., ch. 1326, § 7, eff. Sept. 1, 2003. § 35.591. NOTATION OF FORGED CHECK. (a) In this section, "victim of identify theft" means a person who has filed with an appropriate law enforcement agency a criminal complaint alleging commission of an offense under Section 32.51, Penal Code. (b) If a victim of identity theft closes an account at a financial institution as a result of the identity theft, notifies the financial institution that the identity theft is the reason for closing the account, provides the financial institution with a copy of the criminal complaint described by Subsection (a), and requests that the financial institution return checks with the notation "forgery," the financial institution shall process as forgeries the checks received after the customer takes those actions, in accordance with the financial institution's customary procedures. (c) A victim of identity theft who requests that a financial institution return checks with the notation "forgery" as provided by Subsection (b): (1) may not assert that the financial institution is liable under Section 4.402 for wrongfully dishonoring a check returned after the victim makes the request; and (2) shall hold the financial institution harmless for acting in accordance with the victim's request. Added by Acts 2005, 79th Leg., ch. 615, § 1, eff. Sept. 1, 2005. § 35.60. IDENTITY THEFT BY ELECTRONIC DEVICE.Text of section as added by Acts 2005, 79th Leg., ch. 649, § 1, and renumbered from V.T.C.A., Bus. & C. Code § 35.58 by Acts 2005, 79th Leg., ch. 728, § 23.001(3). (a) In this section: (1) "Payment card" means a credit card, a debit card, a check card, or any other card that is issued to an authorized user to purchase or obtain goods, services, money, or any other thing of value. (2) "Re-encoder" means an electronic device that can be used to transfer encoded information from a magnetic strip on a payment card onto the magnetic strip of a different payment card. (3) "Scanning device" means an electronic device used to access, read, scan, or store information encoded on the magnetic strip of a payment card. (b) A person commits an offense if the person uses a scanning device or re-encoder to access, read, scan, store, or transfer information encoded on the magnetic strip of a payment card without the consent of an authorized user of the payment card and with intent to harm or defraud another. (c) An offense under this section is a Class B misdemeanor. (d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law. Added by Acts 2003, 78th Leg., ch. 649, § 1, eff. Sept. 1, 2003. Renumbered from V.T.C.A., Bus. & C. Code § 35.58 by Acts 2005, 79th Leg., ch. 728, § 23.001(3), eff. Sept. 1, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 195, § 1, see § 35.60, post § 35.60. WARNING SIGN ABOUT IDENTITY THEFT FOR RESTAURANT OR BAR EMPLOYEES.Text of section as added by Acts 2005, 79th Leg., ch. 195, § 1 (a) In this section: (1) "Credit card" means an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to obtain property or service on credit. (2) "Debit card" means an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to communicate a request to an unmanned teller machine or a customer convenience terminal or obtain property or services by debit to an account at a financial institution. (b) This section applies only to a restaurant or bar that accepts credit cards or debit cards from customers in the ordinary course of business. (c) A restaurant or bar owner shall display in a prominent place on the premises of the restaurant or bar a sign stating in letters at least 1/2 inch high: "UNDER SECTION 32.51, PENAL CODE, IT IS A STATE JAIL FELONY (PUNISHABLE BY CONFINEMENT IN A STATE JAIL FOR NOT MORE THAN TWO YEARS) TO OBTAIN, POSSESS, TRANSFER, OR USE A CUSTOMER'S DEBIT CARD OR CREDIT CARD NUMBER WITHOUT THE CUSTOMER'S CONSENT." (d) A restaurant or bar owner shall display the sign in English and in another language spoken by a substantial portion of the employees of the restaurant or bar as their familiar language. (e) A restaurant or bar owner who fails to comply with this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine of not more than $25. (f) It is a defense to prosecution under this section that the person charged produces to the court satisfactory evidence that the person displayed a sign as required by Subsection (c) not later than 48 hours after the person received a citation for an offense under Subsection (e). If the court is satisfied with the evidence produced by the person, the court shall dismiss the charge. Added by Acts 2005, 79th Leg., ch. 195, § 1, eff. Sept. 1, 2005. For text of section as added by Acts 2005, 79th Leg., ch. 649, § 1, and renumbered from V.T.C.A., Bus. & C. Code § 35.58 by Acts 2005, 79th Leg., ch. 728, § 23.001(3), see § 35.60, ante. § 35.61. BUSINESS RECEIPT CONTAINING CREDIT CARD OR DEBIT CARD INFORMATION. (a) This section does not apply to a transaction in which the sole means of recording a person's credit card or debit card account number on a receipt or other document evidencing the transaction is by handwriting or by an imprint or copy of the credit card or debit card. (b) A person that accepts a credit card or debit card for the transaction of business may not print more than the last four digits of the credit card or debit card account number or the month and year of the credit card's or debit card's expiration date on a receipt or other document that evidences the transaction and that is provided to a cardholder. (c) A person who provides, leases, or sells a cash register or other machine used to print receipts or other documents evidencing credit card or debit card transactions shall provide notice of the requirements of this section to the recipient, lessee, or buyer, as applicable, of the machine. (d) A court may not certify an action brought under this section as a class action. (e) A person who violates Subsection (b) is liable to the state for a civil penalty in an amount not to exceed $500 for each calendar month during which a violation occurs. The civil penalty may not be imposed for more than one violation that occurs in a month. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. (f) The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating Subsection (b). Added by Acts 2003, 78th Leg., ch. 808, § 1, eff. Sept. 1, 2003. Renumbered from V.T.C.A., Bus. & C. Code § 35.58 by Acts 2005, 79th Leg., ch. 728, § 23.001(4), eff. Sept. 1, 2005. § 35.62. DELETION OF CERTAIN ELECTRONIC RECORDS CONCERNING A CUSTOMER WHO ISSUES A CHECK. (a) This section applies only to a business that accepts checks from customers in the ordinary course of business. (b) A business shall delete any electronic record indicating that a customer has issued a dishonored check or any other information except for the checking account number or bank routing transit number on which the business bases a refusal to accept a check from a customer not later than the 30th day after the date: (1) the customer and the business agree that the information contained in the electronic record is incorrect; or (2) the customer presents to the business: (A) a report filed by the customer with a law enforcement agency stating that the dishonored check was unauthorized; and (B) a written notice from the customer that the dishonored check was unauthorized. (c) A business that violates Subsection (b) is liable to the state for a civil penalty of up to $1,000. The attorney general may sue to collect the penalty. (d) The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under Subsection (c), including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses. (e) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure. (f) This section does not apply to a financial institution as defined by 31 U.S.C. Section 5312(a)(2), as amended. Added by Acts 2005, 79th Leg., ch. 984, § 1, eff. Sept. 1, 2005.SUBCHAPTER F. RENTAL-PURCHASE AGREEMENTS § 35.71. DEFINITIONS. In this subchapter: (1) "Advertisement" means a commercial message in any medium that directly or indirectly promotes or assists a rental-purchase agreement. (2) "Cash price" means the price for which the merchant would have sold the merchandise to the consumer for cash on the date of the rental-purchase agreement. (3) "Consumer" means an individual who leases personal property under a rental-purchase agreement. (3-a) "Loss damage waiver" means a merchant's agreement not to hold a consumer liable for loss from all or part of any damage to merchandise. (4) "Merchandise" means the personal property that is the subject of a rental-purchase agreement. (5) "Merchant" means a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of merchandise under a rental-purchase agreement, and includes a person who is assigned an interest in a rental-purchase agreement. (6) "Rental-purchase agreement" means an agreement for the use of merchandise by a consumer for personal, family, or household purposes, for an initial period of four months or less that is automatically renewable with each payment after the initial period, and that permits the consumer to become the owner of the merchandise. Added by Acts 1985, 69th Leg., ch. 209, § 1, eff. Sept. 1, 1985. Amended by Acts 2003, 78th Leg., ch. 816, § 24.001, eff. Sept. 1, 2003. § 35.72. FORM. (a) A rental-purchase agreement must be written in plain English and in any other language used by the merchant in an advertisement related to the rental-purchase agreement. Numerical amounts must be stated in figures. (b) Disclosures required by this subchapter must be printed or typed in each rental-purchase agreement in a size equal to at least 10-point bold-faced type. The attorney general shall provide a form agreement that may be used to satisfy the requirements of an agreement under this subchapter. (c) A rental-purchase agreement may not contain a provision: (1) requiring a confession of judgment; (2) authorizing a merchant or an agent of the merchant to commit a breach of the peace in the repossession of merchandise; (3) waiving a defense, counterclaim, or right the consumer may have against the merchant or an agent of the merchant; (4) requiring the purchase of insurance or a loss damage waiver from the merchant to cover the merchandise; (5) requiring the payment of a late charge or reinstatement fee unless a periodic payment is delinquent for more than seven days if the payment is due monthly, or is delinquent for more than three days if the payment is due more frequently than monthly, and the charge or fee is in an amount equal to not more than the lesser of 10 percent of the delinquent payment or $10, and not less than $5; or (6) requiring a payment at the end of the scheduled rental-purchase term in excess of or in addition to a regular periodic payment in order to acquire ownership of the merchandise. In no event shall the consumer be required to pay a sum greater than the total amount to be paid to acquire ownership, as disclosed in Subsection (g)(3) of this section. (d) Only one late charge or reinstatement fee may be collected on a payment regardless of the period during which it remains in default. (e) A rental-purchase agreement must provide that: (1) a charge in addition to periodic payments, if any, must be reasonably related to the service performed; and (2) a consumer who fails to make a timely payment may reinstate an agreement, without losing rights or options previously acquired, by taking the required action before the later of one week or half of the number of days in a regular payment period after the due date of the payment. (f) Notice of the right to reinstate an agreement must be disclosed in the agreement. This subchapter does not prevent a merchant from attempting repossession of merchandise during the reinstatement period, and the consumer's right to reinstate an agreement does not expire because of such a repossession. If the merchandise is returned during the applicable reinstatement period, other than through judicial process, the right to reinstate the agreement shall be extended for a period of not less than 30 days after the date of the return of the merchandise. On reinstatement, the merchant shall provide the consumer with the same merchandise or substitute merchandise of comparable quality and condition. If substitute merchandise is provided, the merchant shall provide the consumer with the disclosures required in Subsection (g) of this section. (g) A rental-purchase agreement must disclose: (1) whether the merchandise is new or used; (2) the amount and timing of payments; (3) the total number of payments necessary and the total amount to be paid to acquire ownership of the merchandise; (4) the amount and purpose of any payment, charge, or fee in addition to the regular periodic payments; (5) whether the consumer is liable for loss or damage to the merchandise, and if so the maximum amount for which the consumer may be liable; (6) that the consumer does not acquire ownership rights unless the consumer has complied with the ownership terms of the agreement; and (7) the cash price of the merchandise. Added by Acts 1985, 69th Leg., ch. 209, § 1, eff. Sept. 1, 1985. Amended by Acts 2003, 78th Leg., ch. 816, § 24.002, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 1346, § 1, eff. June 18, 2005. § 35.721. LOSS DAMAGE WAIVER. (a) In addition to other charges permitted by this subchapter, a consumer may contract for a loss damage waiver. A loss damage waiver is not insurance. (b) A merchant may not sell a loss damage waiver unless the consumer agrees to the waiver in writing. A merchant may not impose or require the purchase of a loss damage waiver as a mandatory charge. (c) A loss damage waiver may exclude loss or damage to the merchandise that is caused by an unexplained disappearance or abandonment of the merchandise, or any other damage that is intentionally caused by the consumer or that results from the consumer's wilful or wanton misconduct. (d) A loss damage waiver agreement must include a statement of the total charge for the loss damage waiver. (e) A merchant may charge a periodic fee for a loss damage waiver that may not exceed 10 percent of the periodic rental payment. (f) A contract that offers a loss damage waiver must include the following notice: "This contract offers an optional loss damage waiver for an additional charge to cover your responsibility for loss of or damage to the merchandise. You do not have to purchase this coverage. Before deciding whether or not to purchase this loss damage waiver, you may consider whether your homeowners' or casualty insurance policy affords you coverage for loss of or damage to rental merchandise and the amount of the deductible you would pay under your policy." (g) A merchant may not sell a loss damage waiver unless the form of the contract containing the waiver has been approved by the Texas Department of Licensing and Regulation. (h) The Texas Commission of Licensing and Regulation shall by rule: (1) provide the method for annual submission of all contracts, including amendments to a contract, that contain a loss damage waiver, for review by the Texas Department of Licensing and Regulation; and (2) set a reasonable fee to be paid by the merchant for the review of contract forms under Subdivision (1) and for the administration of this subchapter by the Texas Department of Licensing and Regulation. Added by Acts 2003, 78th Leg., ch. 816, § 24.003, eff. Sept. 1, 2003. § 35.722. ENFORCEMENT; INVESTIGATION; HEARING. (a) In this section: (1) "Commission" means the Texas Commission of Licensing and Regulation. (2) "Department" means the Texas Department of Licensing and Regulation. (b) The department shall enforce Section 35.721 and may, as necessary, investigate a merchant who has one or more contracts that include a loss damage waiver. (c) A person may file a complaint alleging a violation of Section 35.721 with the department. The department shall investigate the alleged violation on receipt of the complaint, and may inspect any record relevant to the complaint. (d) If, as a result of an investigation, the department determines that a violation may have occurred, the commission shall provide an opportunity for a hearing in the manner provided for a contested case under Chapter 2001, Government Code. (e) If, after opportunity for hearing, the commission determines that the merchant has violated Section 35.721, the commission may: (1) impose an administrative penalty under Chapter 51, Occupations Code; or (2) award the complainant damages in an amount up to the amount of the contract price for the merchandise. Added by Acts 2003, 78th Leg., ch. 816, § 24.003, eff. Sept. 1, 2003. § 35.73. ADVERTISEMENT. An advertisement for a rental-purchase agreement that refers to or states the amount of a payment or the right to acquire ownership of any one particular item under the agreement must clearly and conspicuously state: (1) that the transaction advertised is a rental-purchase agreement; (2) the total amount and number of payments necessary to acquire ownership; and (3) that the consumer does not acquire ownership rights unless the merchandise is rented for a specified number of payment periods. Added by Acts 1985, 69th Leg., ch. 209, § 1, eff. Sept. 1, 1985. § 35.74. ENFORCEMENT. (a) A consumer damaged by a violation of this subchapter by a merchant is entitled to recover from the merchant: (1) actual damages; (2) 25 percent of an amount equal to the total amount of payments required to obtain ownership of the merchandise involved, except that the amount recovered under this subdivision may not be less than $250 nor more than $1,000; and (3) reasonable attorney's fees and court costs. (b) A merchant is not liable under this section for a violation of this subchapter caused by the merchant's error if before the 31st day after the date the merchant discovers the error, and before an action under this section is filed or written notice of the error is received by the merchant from the consumer, the merchant gives the consumer written notice of the error and makes adjustments in the consumer's account as necessary to assure that the consumer will not be required to pay an amount in excess of the amount disclosed and that the agreement otherwise complies with this subchapter. (c) A violation of this subchapter is a deceptive trade practice under Subchapter E of Chapter 17, Business & Commerce Code. Added by Acts 1985, 69th Leg., ch. 209, § 1, eff. Sept. 1, 1985.SUBCHAPTER G. SALES REPRESENTATIVES § 35.81. DEFINITIONS. In this subchapter: (1) "Commission" means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal's product. (2) "Principal" means a person who: (A) manufactures, produces, imports, or distributes a product for sale; (B) uses a sales representative to solicit orders for the product; and (C) compensates the sales representative in whole or in part by commission. (3) "Sales representative" means an independent contractor who solicits on behalf of a principal orders for the purchase at wholesale of the principal's product. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 714, § 1, eff. Sept. 1, 1995. § 35.82. CONTRACT. A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing or in a computer-based medium and set forth the method by which the sales representative's commission is to be computed and paid. The principal shall provide the sales representative with a copy of the contract. A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 714, § 2, eff. Sept. 1, 1995. § 35.83. PAYMENT IN ABSENCE OF CONTRACT. If a compensation agreement between a sales representative and a principal that does not comply with Section 35.82 is terminated, the principal shall pay all commissions due the sales representative within thirty working days after the date of the termination. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 714, § 2, eff. Sept. 1, 1995. § 35.84. DAMAGES. A principal who fails to comply with a provision of a contract under Section 35.82 relating to payment of a commission or fails to pay a commission as required by Section 35.83 is liable to the sales representative in a civil action for three times the unpaid commission sustained by the sales representative plus reasonable attorney's fees and costs. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 714, § 2, eff. Sept. 1, 1995. § 35.85. JURISDICTION. A principal who is not a resident of this state and who enters into a contract subject to this subchapter is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987. § 35.86. WAIVER. A provision of this subchapter may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of this subchapter is void. Added by Acts 1987, 70th Leg., ch. 318, § 1, eff. Sept. 1, 1987.SUBCHAPTER H. PROTECTION OF SOUND OR IMAGE RECORDINGS OR PERFORMANCES § 35.91. DEFINITIONS. In this subchapter: (1) "Fixed" means embodied in a recording or other tangible medium of expression, by or under the authority of the author, so that the matter embodied is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. (2) "Live performance" means a recitation, rendering, or playing of a series of images, musical, spoken, or other sounds, or a combination of images and sounds, in an audible sequence. (3) "Owner" means a person who owns the sounds fixed in a master phonograph record, master disc, master tape, master film, or other recording on which sound is or can be recorded and from which the transferred recorded sounds are directly or indirectly derived. (4) "Recording" means a tangible medium on which sounds, images, or both are recorded or otherwise stored, including an original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now existing or developed later on which sounds, images, or both are or can be recorded or otherwise stored or a copy or reproduction that duplicates in whole or in part the original. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989. § 35.92. UNAUTHORIZED DUPLICATION. (a) A person commits an offense if the person: (1) knowingly reproduces for sale or causes to be transferred any recording with intent to sell it or cause it to be sold or use it or cause it to be used for commercial advantage or private financial gain through public performance without the consent of the owner; (2) transports within this state, for commercial advantage or private financial gain, a recording with the knowledge that the sounds have been reproduced or transferred without the consent of the owner; or (3) advertises, offers for sale, sells, or rents, causes the sale, resale, or rental of or possesses for one or more of these purposes any recording that the person knows has been reproduced or transferred without the consent of the owner. (b) An offense under this section is punishable by: (1) a fine of not more than $250,000, imprisonment for not more than five years, or both, if: (A) the offense involves at least 1,000 unauthorized recordings during a 180-day period; or (B) the defendant has been previously convicted under this section; (2) a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than 100 but less than 1,000 unauthorized recordings during a 180-day period; or (3) a fine of not more than $25,000, confinement in the county jail for not more than one year, or both, for any other offense. (c) This section does not affect the rights and remedies of a party in private litigation. (d) This section applies only to recordings that were initially fixed before February 15, 1972. This section does not apply to any fees due ASCAP. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989. § 35.93. UNAUTHORIZED RECORDING OF LIVE PERFORMANCE. (a) A person commits an offense if the person: (1) for commercial advantage or private financial gain advertises, offers for sale, sells, rents, transports, causes the sale, resale, rental, or transportation of or possesses for one or more of these purposes a recording containing sounds of a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner; or (2) with the intent to sell for commercial advantage or private financial gain records or fixes or causes to be recorded or fixed on a recording a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner. (b) An offense under this section is punishable by: (1) a fine of not more than $250,000, imprisonment for not more than five years, or both, if: (A) the offense involves at least 1,000 unauthorized recordings embodying sound or at least 65 unauthorized audiovisual recordings during a 180-day period; or (B) the defendant has been previously convicted under this section; (2) a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than 100 but less than 1,000 unauthorized recordings embodying sound or more than seven but less than 65 unauthorized audiovisual recordings during a 180-day period; or (3) a fine of not more than $25,000, confinement in the county jail for not more than one year, or both, for any other offense. (c) In the absence of a written agreement or law to the contrary, the performer or performers of a live performance are presumed to own the rights to record or fix those sounds. (d) For the purposes of this section, a person who is authorized to maintain custody and control over business records that reflect whether or not the owner of the live performance consented to having the live performance recorded or fixed is a proper witness in a proceeding regarding the issue of consent. A witness called pursuant to this section is subject to the rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered. (e) This section does not affect the rights and remedies of a party in private litigation. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989. § 35.935. UNAUTHORIZED OPERATION OF RECORDING DEVICE IN MOTION PICTURE THEATER. (a) In this section: (1) "Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology now known or later developed. (2) "Motion picture theater" means a movie theater, screening room, or other place primarily used to exhibit a motion picture. (b) A person commits an offense if the person, with the intent to record a motion picture, knowingly operates the audiovisual recording function of any device in a motion picture theater, while the motion picture is being exhibited, without the consent of the owner of the theater. (c) An offense under this section is a Class A misdemeanor, except that the offense is: (1) a state jail felony if the person has been previously convicted one time of an offense under this section; or (2) a felony of the third degree if the person has been previously convicted two or more times of an offense under this section. (d) It is a defense to prosecution under this section that the audiovisual recording function of the device was operated solely for official law enforcement purposes. (e) If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. (f) A person who reasonably believes that another has knowingly operated the audiovisual recording function of any device in a motion picture theater in violation of this section is privileged to detain that person in a reasonable manner and for a reasonable time to allow for the arrival of law enforcement authorities. Added by Acts 2005, 79th Leg., ch. 46, § 1, eff. Sept. 1, 2005. § 35.94. LABELING. (a) A person commits an offense if, for commercial advantage or private financial gain, the person knowingly advertises, offers for sale, sells, rents, or transports, causes the sale, resale, rental, or transportation of, or possesses for any of these purposes a recording if the outside cover, box, or jacket of the recording does not clearly and conspicuously disclose the actual name and address of the manufacturer and the name of the performer or group. (b) An offense under this section is punishable by: (1) a fine of not more than $250,000, imprisonment for not more than five years, or both, if: (A) the offense involves at least 65 unauthorized recordings during a 180-day period; or (B) the defendant has been previously convicted under this section; (2) a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than seven but less than 65 unauthorized recordings during a 180-day period; or (3) a fine of not more than $25,000, confinement in the county jail for not more than one year, or both for any other offense. (c) This section does not affect the rights and remedies of a party in private litigation. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989. § 35.95. FORFEITURE. If a person is convicted of a violation of this subchapter, the court in its judgment of conviction shall order the forfeiture and destruction or other disposition of: (1) all recordings on which the conviction is based; and (2) all implements, devices, and equipment used or intended to be used in the manufacture of the recordings on which the conviction is based. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989. § 35.96. REMEDIES CUMULATIVE. The penalties provided by this subchapter are in addition to any other penalties provided under any other law. Added by Acts 1989, 71st Leg., ch. 339, § 1, eff. Sept. 1, 1989.SUBCHAPTER I. PROVISION OF SOFTWARE OR SERVICES TO BLOCK OR SCREEN INTERNET MATERIAL § 35.101. DEFINITIONS. In this subchapter: (1) "Freeware" means software that is distributed to a person free of charge regardless of whether use of the software is subject to certain restrictions. (2) "Internet" means the largest nonproprietary nonprofit cooperative public computer network, popularly known as the Internet. (3) "Interactive computer service" means any information service or system that provides or enables computer access by multiple users to the Internet. (4) "Shareware" means copyrighted software in which the copyright owner sets certain conditions for its use and distribution, including requiring payment to the copyright owner after a person who has secured a copy of the software decides to use the software, regardless of whether the payment is for additional support or functionality for the software. Added by Acts 1997, 75th Leg., ch. 303, § 1, eff. Sept. 1, 1997. § 35.102. SOFTWARE OR SERVICES THAT RESTRICT ACCESS TO CERTAIN MATERIAL ON INTERNET. (a) A person who provides an interactive computer service to another person for a fee shall provide free of charge to each subscriber of the service in this state a link leading to fully functional shareware, freeware, or demonstration versions of software or to a service that, for at least one operating system, enables the subscriber to automatically block or screen material on the Internet. (b) A provider is considered to be in compliance with this section if the provider places, on the provider's first page of world wide web text information accessible to a subscriber, a link leading to the software or a service described by Subsection (a). The identity of the link or other on-screen depiction of the link must appear set out from surrounding written or graphical material so as to be conspicuous. (c) This section does not apply to the General Services Commission, in its capacity as the telecommunications provider for the state, and an institution of higher education, as that term is defined by Section 61.003, Education Code, that provides interactive computer service. (d) A person who provides a link that complies with this section is not liable to a subscriber for any temporary inoperability of the link or for the effectiveness of the software or service that the person links to. Added by Acts 1997, 75th Leg., ch. 303, § 1, eff. Sept. 1, 1997. § 35.103. CIVIL PENALTY. (a) A person is liable to the state for a civil penalty of $2,000 for each day on which the person provides an interactive computer service for a fee but fails to provide a link to software or a service as required by Section 35.102. The aggregate civil penalty may not exceed $60,000. (b) The attorney general may institute a suit to recover the civil penalty. Before filing suit, the attorney general shall give the person notice of the person's noncompliance and liability for a civil penalty. If the person complies with the requirements of Section 35.102 not later than the 30th day after the date of the notice, the violation is considered cured and the person is not liable for the civil penalty. Added by Acts 1997, 75th Leg., ch. 303, § 1, eff. Sept. 1, 1997.SUBCHAPTER J. WIRELESS COMMUNICATION FACILITY § 35.111. DEFINITION. In this subchapter, "wireless communication facility" means an equipment enclosure, antenna, antenna support structure, and any associated facility used for the reception or transmittal of a radio frequency, microwave, or other signal for a commercial communications purpose. Added by Acts 2003, 78th Leg., ch. 1222, § 2, eff. June 20, 2003. § 35.112. NOTICE OF CONSTRUCTION. (a) A person proposing to construct a wireless communication facility that is taller than 100 feet shall, on or before the 30th day before the date the construction begins, mail a letter to each of the following: (1) any airport located within three miles of the proposed facility location; and (2) the Texas Agricultural Aviation Association. (b) The letter must state: (1) the legal description of the proposed site of construction, including a graphic depiction showing the location, height, longitude, latitude, pad size, roadway access, and proposed use of the wireless communication facility and location of any guy wires; (2) at a minimum, the name, phone number, electronic mail address, if any, and mailing address of the person proposing construction of the wireless communication facility; and (3) a phone number that is operational 24 hours a day, seven days a week, for emergency purposes. Added by Acts 2003, 78th Leg., ch. 1222, § 2, eff. June 20, 2003. § 35.113. EXCEPTIONS. This subchapter does not apply to any structure whose main purpose is to provide electric service, a wireless communication facility used by an entity only for internal communications, a wireless communication facility constructed by a municipality, a wireless communication facility used for emergency communications, a radio or television reception antenna, a satellite or microwave parabolic antenna not used by a wireless communication service provider, a receive-only antenna, an antenna owned and operated by a federally licensed amateur radio station operator, a cable television company facility, a radio or television broadcasting facility, a colocation antenna, or a wireless communication facility installed for colocation purposes. Added by Acts 2003, 78th Leg., ch. 1222, § 2, eff. June 20, 2003. § 35.114. EFFECT ON CERTAIN ORDINANCES. This subchapter does not preempt a local ordinance regulating a wireless communication facility. Added by Acts 2003, 78th Leg., ch. 1222, § 2, eff. June 20, 2003.SUBCHAPTER K. INTERNATIONAL MATCHMAKING ORGANIZATIONS § 35.121. DEFINITIONS. In this subchapter: (1) "Basic rights information" means information applicable to a noncitizen, including information about human rights, immigration, and emergency assistance and resources. (2) "Client" means a person who is a resident of the United States and who contracts with an international matchmaking organization to meet recruits. (3) "Criminal history record information" means criminal history record information obtained from the Department of Public Safety under Subchapter F, Chapter 411, Government Code, and from the Federal Bureau of Investigation under Section 411.087, Government Code. (4) "International matchmaking organization" means a corporation, partnership, sole proprietorship, or other legal entity that does business in the United States and offers to Texas residents dating, matrimonial, or social referral services involving recruits by: (A) exchanging names, telephone numbers, addresses, or statistics; (B) selecting photographs; or (C) providing a social environment for introducing clients to recruits in a country other than the United States. (5) "Marital history information" means a declaration of a person's current marital status, the number of times the person has been married, and whether any marriage occurred as a result of receiving services from an international matchmaking organization. (6) "Recruit" means a person who is not a citizen or resident of the United States and who is recruited by an international matchmaking organization for the purpose of providing dating, matrimonial, or social referral services. Added by Acts 2005, 79th Leg., ch. 728, § 2.003(a), eff. Sept. 1, 2005. § 35.122. NOTICE OF AVAILABILITY OF CRIMINAL HISTORY, MARITAL HISTORY, AND BASIC RIGHTS INFORMATION. (a) An international matchmaking organization shall provide each recruit with the criminal history record information and marital history information of its clients and with basic rights information. (b) The information under Subsection (a) must be: (1) in the recruit's native language; and (2) displayed in a manner that: (A) separates the criminal history record information, the marital history information, and the basic rights information from any other information; and (B) is highly noticeable. Added by Acts 2005, 79th Leg., ch. 728, § 2.003(a), eff. Sept. 1, 2005. § 35.123. PROVIDING CRIMINAL HISTORY, MARITAL HISTORY, AND BASIC RIGHTS INFORMATION. (a) An international matchmaking organization shall disseminate to a recruit the criminal history record information and marital history information of a client and the basic rights information not later than the 30th day after the date the international matchmaking organization receives the criminal history record information and the marital history information from the client. (b) The international matchmaking organization shall provide the information to the recruit in the recruit's native language. The international matchmaking organization shall pay the costs incurred to translate the information. Added by Acts 2005, 79th Leg., ch. 728, § 2.003(a), eff. Sept. 1, 2005. § 35.124. OBTAINING CRIMINAL HISTORY RECORD INFORMATION AND MARITAL HISTORY INFORMATION. (a) The client shall: (1) obtain a copy of the person's own criminal history record information; (2) provide the criminal history record information to the international matchmaking organization; and (3) provide to the international matchmaking organization the person's own marital history information. (b) The international matchmaking organization shall require the client to affirm that the marital history information is complete and accurate and includes information regarding marriages, annulments, and dissolutions that occurred in another state or a foreign country. (c) The international matchmaking organization may not provide any further services to the client or the recruit until the organization has: (1) obtained the requested criminal history record information and marital history information; and (2) provided the information to the recruit. Added by Acts 2005, 79th Leg., ch. 728, § 2.003(a), eff. Sept. 1, 2005. § 35.125. CIVIL PENALTY. (a) An international matchmaking organization that violates this subchapter is subject to a civil penalty not to exceed $20,000 for each violation. (b) In determining the amount of the civil penalty, the court shall consider: (1) any previous violations of this subchapter by the international matchmaking organization; (2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation; (3) the demonstrated good faith of the international matchmaking organization; and (4) the amount necessary to deter future violations. (c) The attorney general or the appropriate district or county attorney may bring an action under this section in the name of the state in a district court of Travis County or of a county in which any part of the violation occurs. (d) A penalty collected under this section by the attorney general or a district or county attorney shall be deposited in the state treasury to the credit of the compensation to victims of crime fund under Article 56.34, Code of Criminal Procedure. Added by Acts 2005, 79th Leg., ch. 728, § 2.003(a), eff. Sept. 1, 2005.
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