85R2641 GRM-F     By: Wu H.B. No. 1435       A BILL TO BE ENTITLED   AN ACT   relating to the commencement and prosecution of certain actions by   county and district attorneys under the Deceptive Trade   Practices-Consumer Protection Act.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 17.42(e), Business & Commerce Code, is   amended to read as follows:          (e)  The fact that a consumer has signed a waiver under this   section is not a defense to an action brought by a prosecuting [the]   attorney [general] under Section 17.47.          SECTION 2.  Section 17.45, Business & Commerce Code, is   amended by adding Subdivision (14) to read as follows:                (14)  "Prosecuting attorney" means:                      (A)  the consumer protection division of the   attorney general's office;                      (B)  a district attorney; or                      (C)  a county attorney.           SECTION 3.  Section 17.46(a), Business & Commerce Code, is   amended to read as follows:          (a)  False, misleading, or deceptive acts or practices in the   conduct of any trade or commerce are hereby declared unlawful and   are subject to action by the consumer protection division or other   prosecuting attorney, as applicable, under Sections 17.47, 17.58,   17.60, and 17.61 of this code.          SECTION 4.  Sections 17.47(a), (c), (d), (e), and (h),   Business & Commerce Code, are amended to read as follows:          (a)  Subject to Section 17.48, whenever a prosecuting   attorney [Whenever the consumer protection division] has reason to   believe that any person is engaging in, has engaged in, or is about   to engage in any act or practice declared to be unlawful by this   subchapter, and that proceedings would be in the public interest,   the prosecuting attorney [division] may bring an action in the name   of the state against the person to restrain by temporary   restraining order, temporary injunction, or permanent injunction   the use of such method, act, or practice.          Nothing herein shall require the prosecuting attorney   [consumer protection division] to notify such person that court   action is or may be under consideration. Provided, however, the   prosecuting attorney [consumer protection division] shall, at   least seven days prior to instituting such court action, contact   such person to inform him in general of the alleged unlawful   conduct. Cessation of unlawful conduct after such prior contact   shall not render such court action moot under any circumstances,   and such injunctive relief shall lie even if such person has ceased   such unlawful conduct after such prior contact. Such prior contact   shall not be required if, in the opinion of the prosecuting attorney    [consumer protection division], there is good cause to believe that   such person would evade service of process if prior contact were   made or that such person would destroy relevant records if prior   contact were made, or that such an emergency exists that immediate   and irreparable injury, loss, or damage would occur as a result of   such delay in obtaining a temporary restraining order.          (c)  In addition to the request for a temporary restraining   order, or permanent injunction in a proceeding brought under   Subsection (a) of this section, a prosecuting attorney [the   consumer protection division] may request, and the trier of fact   may award, a civil penalty to be paid to the state or county, as   appropriate, in an amount of:                (1)  not more than $20,000 per violation; and                (2)  if the act or practice that is the subject of the   proceeding was calculated to acquire or deprive money or other   property from a consumer who was 65 years of age or older when the   act or practice occurred, an additional amount of not more than   $250,000.          (d)  The court may make such additional orders or judgments   as are necessary to compensate identifiable persons for actual   damages or to restore money or property, real or personal, which may   have been acquired by means of any unlawful act or practice.   Damages may not include any damages incurred beyond a point two   years prior to the institution of the action by a prosecuting   attorney [the consumer protection division]. Orders of the court   may also include the appointment of a receiver or a sequestration of   assets if a person who has been ordered by a court to make   restitution under this section has failed to do so within three   months after the order to make restitution has become final and   nonappealable.          (e)  Any person who violates the terms of an injunction under   this section shall forfeit and pay to the state or county, as   appropriate, a civil penalty of not more than $10,000 per   violation, not to exceed $50,000. In determining whether or not an   injunction has been violated the court shall take into   consideration the maintenance of procedures reasonably adapted to   insure compliance with the injunction. For the purposes of this   section, the district court issuing the injunction shall retain   jurisdiction, and the cause shall be continued, and in these cases,   the prosecuting [consumer protection division, or the district or   county] attorney [with prior notice to the consumer protection   division, acting in the name of the state,] may petition for   recovery of civil penalties under this section.          (h)  In bringing or participating in an action under this   subchapter, the prosecuting attorney [consumer protection   division] acts in the name of the state and does not establish an   attorney-client relationship with another person, including a   person to whom the prosecuting attorney [consumer protection   division] requests that the court award relief.          SECTION 5.  Sections 17.48(b) and (d), Business & Commerce   Code, are amended to read as follows:          (b)  A district or county attorney[, with prior written   notice to the consumer protection division,] may institute and   prosecute actions seeking injunctive relief and civil penalties   under this subchapter, after complying with the prior contact   provisions of Subsection (a) of Section 17.47 of this subchapter.   On request, the consumer protection division shall assist the   district or county attorney in any action taken under this   subchapter. If an action is prosecuted by a district or county   attorney alone, he shall make a full report to the consumer   protection division including the final disposition of the matter.   No district or county attorney may bring an action under this   section against any licensed insurer or licensed insurance agent   transacting business under the authority and jurisdiction of the   State Board of Insurance unless first requested in writing to do so   by the State Board of Insurance, the commissioner of insurance, or   the consumer protection division pursuant to a request by the State   Board of Insurance or commissioner of insurance.          (d)  A district or county attorney is not required to obtain   the permission of the consumer protection division to prosecute an   action under this subchapter [for a violation of Section   17.46(b)(28), if the district or county attorney provides prior   written notice to the division as required by Subsection (b)].          SECTION 6.  The heading to Section 304.252, Business &   Commerce Code, is amended to read as follows:          Sec. 304.252.  ENFORCEMENT BY CERTAIN PROSECUTING ATTORNEYS   [ATTORNEY GENERAL].          SECTION 7.  Section 304.252(c), Business & Commerce Code, is   amended to read as follows:          (c)  A violation of Subchapter B, C, or D is subject to   enforcement action [by the attorney general's consumer protection   division] under Sections 17.47, 17.58, 17.60, and 17.61.          SECTION 8.  Section 306.053, Business & Commerce Code, is   amended to read as follows:          Sec. 306.053.  DECEPTIVE TRADE PRACTICE; ENFORCEMENT.  A   violation of this chapter is a false, misleading, or deceptive act   or practice under Section 17.46 and is subject to action [only by   the consumer protection division of the attorney general's office]   as provided by Section 17.46(a).          SECTION 9.  Section 17.48(c), Business & Commerce Code, is   repealed.          SECTION 10.  The changes in law made by this Act apply only   to a cause of action that accrues on or after the effective date of   this Act. A cause of action that accrued before the effective date   of this Act is governed by the law in effect immediately before the   effective date of this Act, and that law is continued in effect for   that purpose.          SECTION 11.  This Act takes effect September 1, 2017.