Note: This background on Texas DTPA is intended to be general and informational only. Please do not rely on it in evaluating your situation or representing yourself. Before you venture into the Courts system, or become involved with any litigation, you should consult an attorney. Please do not think that this document means that Bivin & McNamara, L.L.P. is your attorney or represents you. We only represent people who have signed an agreement to employ us.
Texas Deceptive Trade Practices Consumer Protection Act (DTPA)
The underlying purpose of this Act is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection. This Act is intended to be liberally construed and applied. A consumer is defined as one who seeks or acquires by purchase or lease any goods or services.
UNLAWFUL ACTS UNDER THE DTPA:
* BREACH OF WARRANTY -
- Express Warranty: Written or verbal warranty.
- Merchantable: Good can do what good is ordinarily used for.
- Fitness: Good can do what the sales person said it would do.
* UNCONSCIONABLE ACTS -
- Seller takes advantage of "consumers" lack of knowledge, ability, experience, or capacity to a grossly unfair degree.
* ANY FALSE, MISLEADING OR DECEPTIVE ACT -
The following acts must also be relied on by a consumer to the consumer's detriment:
- Passing off goods or services as those of another;
- Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
- Causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
- Using deceptive representations or designations of geographic origin in connection with goods and services;
- Explicit or implicit representation that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
- Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
- Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
- Disparaging the goods, services, or business of another by false or misleading representation of facts;
- Advertising goods or services with intent not to sell them as advertised;
- Advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;
- Making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;
- Representing that an agreement confers or involve rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
- Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service;
- Misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
- Basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual repairs made or work to be performed on the item without stating separately the charges for the work and the charge for the warranty or guaranty, if any;
- Disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;
- Advertising of any sale by fraudulently representing that a person is going out of business;
- Using or employing a chain referral sales plan in connection with the sale or offer to sell of goods, merchandise, or anything of value, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods and in connection with the purchase receives the seller's promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods;
- Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 of the Business & Commerce Code to involve obligations in excess of those which are appropriate to the goods;
- Promoting a pyramid promotional scheme, as defined by Section 17.461;
- Representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced;
- Filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural used in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit he neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract;
- The failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
- Using the term "corporation," "incorporated," or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction; or
- Taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:
(A). Selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or
(B). Demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.
TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT GUIDELINES
- As a prerequisite to filing a suit seeking damages under this Act, the consumer must send a registered or certified letter of written notice telling the seller what is wrong and asking for the amount of your damages. The notice must advise the seller in reasonable detail of the consumer's specific complaint and the amount of damages.
- If the seller fails to send you the amount requested within 60 days of receiving your letter, a suit can be filed.
- If a suit is filed, ask for the all of the damages incurred as a result of this deceptive trade practice. The possible remedies include:
- Economic and mental anguish damages;
- Additional damages**;
- An injunction;
- A restoration order;
- The appointment of a receiver;
- Revocation of a defendant's license or certificate to do business;
- Court costs and attorney's fees;
- Interest; or
- Any other relief that the court deems proper.
** ADDITIONAL DAMAGES
If a court finds that the conduct of the seller was committed "knowingly," a court may also award not more than three times the amount of economic damages.
If a court finds the conduct of the seller was committed "intentionally," a court may also award not more than three times the amount of damages for mental anguish and economic damages.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.