Consumer protection, leases, foreclosure, HOAs and other Texas topics

Texas Deceptive Trade Practices and Consumer Protection

Texas law protects buyers and tenants through the Deceptive Trade Practices-Consumer Protection Act. Under this statute, goods means tangible chattels or real property purchased or leased for use (Tex. Bus. & Com. Code §17.45(1)). Services means work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods (Tex. Bus. & Com. Code §17.45(2)). Trade and commerce include advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value (Tex. Bus. & Com. Code §17.45(6)). False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are unlawful under Texas law (Tex. Bus. & Com. Code §17.46(a)). Specific violations include passing off goods or services as those of another (Tex. Bus. & Com. Code §17.46(b)(1)) and causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services (Tex. Bus. & Com. Code §17.46(b)(2)).

A consumer is an individual, partnership, corporation, this state, or a subdivision or agency of this state that seeks or acquires goods or services by purchase or lease, except for a business consumer with assets of $25 million or more or one owned or controlled by an entity with assets of $25 million or more (Tex. Bus. & Com. Code §17.45(4)). A business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more, is excluded from the definition of a consumer (Tex. Bus. & Com. Code §17.45(4)). A business consumer is defined as an individual, partnership, or corporation who seeks or acquires by purchase or lease any goods or services for commercial or business use, excluding this state or its subdivisions or agencies (Tex. Bus. & Com. Code §17.45(10)). For example, if Carlos purchases an office warehouse for his small local repair shop, he may qualify as a consumer if his assets are below $25 million and he is not owned or controlled by a corporation or entity with assets of $25 million or more.

Texas law also addresses unconscionable conduct and specifies degrees of intent. An unconscionable action or course of action is an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree (Tex. Bus. & Com. Code §17.45(5)). Knowingly generally means actual awareness, at the time of the act or practice, of its falsity, deception, or unfairness; for a claim under §17.50(a)(2), it means actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, and actual awareness may be inferred from objective manifestations (Tex. Bus. & Com. Code §17.45(9)). Intentionally means actual awareness of the falsity, deception, or unfairness of an act or practice, or of the condition, defect, or failure constituting a breach of warranty, coupled with specific intent that the consumer act in detrimental reliance or detrimental ignorance as specified by the statute; intention may be inferred as the statute provides (Tex. Bus. & Com. Code §17.45(13)). When a consumer prevails, economic damages means compensatory damages for pecuniary loss, including costs of repair and replacement, but does not include exemplary damages or damages for physical pain and mental anguish (Tex. Bus. & Com. Code §17.45(11)).