Law:Title 11. Regulation Of Sales And Solicitation (Texas)

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Contents

Chapter 1801. Commission Merchants

Subchapter A. General Provisions

Section  1801.001.  Definitions.

In this chapter:

(1)  "Commission merchant" means a person engaged in the business of selling any goods on consignment and for a commission.

(2)  "Goods" includes produce, wares, merchandise, sugar, and cotton.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.002.  Application Of Chapter.

A commission merchant shall meet the requirements of this chapter except to the extent that the person's business as a commission merchant is regulated by another provision of law.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Subchapter B. Bond

Section  1801.051.  Bond Required.

A commission merchant shall file a bond with the county judge of each county in which the commission merchant maintains an office.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.052.  Bond Terms And Conditions.

(a) A bond filed under this subchapter must:

(1)  be in the amount of $3,000;

(2)  be conditioned on the commission merchant performing duties required by Subchapter C, except Sections 1801.103(a), (c), and (d); and

(3)  be payable to the county judge of each county in which the commission merchant maintains an office as trustee for any person who may be entitled to recover under the bond.

(b)  The bond must be made with:

(1)  a solvent surety company doing business in this state; or

(2)  two or more good and sufficient sureties, each of whom:

(A)  is a resident of this state; and

(B)  makes an affidavit stating that the surety has assets, not subject to exemption, that are at least equal to the amount of the bond.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.053.  Bond Approval.

The bond must be approved by the county judge of each county in which the commission merchant maintains an office.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.054.  Recording Of Bond.

The county judge shall file the bond with the county clerk in the same manner as an instrument to perfect a security interest under Chapter 9, Business & Commerce Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.055.  Suit On Bond.

(a) A person damaged by a breach of a condition of the bond may bring suit and recover under the bond.

(b)  The suit shall be filed in the county in which the bond is filed.

(c)  A bond is not void on first recovery and may be sued on until the total amount is exhausted.

(d)  If the amount of the bond is reduced to $1,500 or less, the commission merchant shall file a new bond in an amount equal to $3,000. The new bond is liable for all future contracts entered into by the commission merchant and a consignor.

(e)  A commission merchant who does not file a new bond under Subsection (d) may not do business in this state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Subchapter C. Commission Merchant Duties

Section  1801.101.  Contract Performance.

A commission merchant shall perform all contracts with a consignor of goods.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.102.  Sale Of Goods.

On shipment of a consignment, a commission merchant shall promptly receive and sell the goods under the terms of the consignment contract.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.103.  Statements And Receipts Regarding Consignment.

(a) A person who consigns goods to a commission merchant shall send to the commission merchant a written statement stating the quantity, the quality or class, and the condition of the consigned goods.

(b)  On receipt of the statement, the commission merchant shall promptly notify the consignor of any objection the commission merchant has to the stated class, quality, or quantity and the condition of the consigned goods. If the commission merchant fails to object, the statement is prima facie evidence of the class, quality, or quantity and the condition of the consigned goods.

(c)  On receipt by the commission merchant of the goods, the commission merchant shall give to the agent of the carrier delivering the goods a receipt for the goods. The receipt must state the quality, quantity, grade, and condition of the goods.

(d)  The agent of the carrier shall keep the receipt on file in the carrier's office for six months from the date of receiving the receipt. The receipt may be inspected by a person interested in the shipment.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.104.  Accounting.

(a) As soon as the goods are sold, the commission merchant shall send to the consignor a complete itemized account of the sale.

(b)  The itemized account must include the price received and the date of the sale.

(c)  If the commission merchant sells cotton, sugar, or other produce by weight, the itemized account must:

(1)  include the weight of the cotton, sugar, or other produce in gross and the tare allowed; and

(2)  be accompanied by the certificate or memorandum of the weight and condition of the cotton, sugar, or other produce required by law, signed by the weigher who weighed the cotton, sugar, or other produce.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.105.  Remittance Of Sale Proceeds.

Not later than the fifth day after the date of the sale of consigned goods, a commission merchant shall send to the consignor the total amount received from the sale less the commission merchant's commission.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Subchapter D. Actions Against Commission Merchants

Section  1801.151.  Requirement To Obtain Written License.

(a) A commission merchant must obtain the express written license from the owner or consignor of goods, or a person authorized by the owner or consignor, before the commission merchant may, directly or indirectly, purchase or reserve an interest in the consigned goods in the merchant's name or in the name or through the instrumentality of another, for the merchant's benefit or for the benefit of another, or as an agent of any other person.

(b)  On violation by a commission merchant of Subsection (a), the owner of the goods is entitled to recover from the commission merchant a penalty in an amount equal to half of the value of the goods.

(c)  An action for a penalty under Subsection (b) must be brought in the county in which:

(1)  the sale took place; or

(2)  the commission merchant resides.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.152.  False Charges.

(a) A commission merchant may not charge for mending or patching, roping bales, cooperage or repairing bales, labor, hauling, cartage, storage, or marking or weighing unless the work is actually done.

(b)  A charge specifically describing work performed must be made on a bill regardless of any contrary usage or custom to make the charge by rate or average.

(c)  A person who violates this section is subject to a penalty of not less than $100 or more than $500. The owner or consignor may recover the penalty by filing suit.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.153.  Sale Without Bond.

A person who sells any consigned goods for commission without first making and filing the bond required by Section 1801.051 shall be fined not less than $100 or more than $500.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1801.154.  Consignor's Remedies.

(a) If a commission merchant fails to comply with a provision of Subchapter C, except Section 1801.103(a), (c), or (d), the commission merchant and the surety company or sureties required by Section 1801.052 are:

(1)  liable for all actual damages incurred by the consignor resulting from the failure; and

(2)  subject to a penalty of not less than $100 or more than $500.

(b)  The consignor may recover the damages and penalty by filing suit for the actual damages and penalty.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Chapter 1802. Auctioneers

Subchapter A. General Provisions

Section  1802.001.  Definitions.

In this chapter:

(1)  "Advisory board" means the Auctioneer Education Advisory Board.

(2)  "Associate auctioneer" means an individual who, for compensation, is employed by and under the direct supervision of a licensed auctioneer to sell or offer to sell property at an auction.

(3)  "Auction" means the sale of property by competitive bid.

(4)  "Auction company" means a person who engages in the business of arranging, managing, sponsoring, advertising, or conducting auctions.

(5)  "Auctioneer" means an individual who sells or offers to sell property at auction, with or without receiving valuable consideration, as a bid caller.

(6)  "Commission" means the Texas Commission of Licensing and Regulation.

(7)  Repealed by Acts 2003, 78th Leg., ch. 816, Sec. 4.019(1); Acts 2003, 78th Leg., ch. 1276, Sec. 14A.351(a).

(8)  "Department" means the Texas Department of Licensing and Regulation.

(8-a)  "Executive director" means the executive director of the department.

(9)  "Fund" means the auctioneer education and recovery fund.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.001, 4.019(1), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14.010, 14A.351, eff. Sept. 1, 2003.



Section 1802.002.  Applicability.

This chapter does not apply to:

(1)  a sale conducted by order of a United States court under Title 11, United States Code;

(2)  a sale conducted by an employee of the United States, this state, or a political subdivision of this state in the course and scope of employment;

(3)  a sale conducted by a charitable, religious, or civic organization, including an organization having a tax exempt status under Section 501(c), Internal Revenue Code of 1986, or organized as a nonprofit entity, if the person organizing, arranging, or conducting the auction receives no compensation;

(4)  a sale conducted by an individual of the individual's property if the individual is not engaged in the business of selling property as an auctioneer on a recurring basis;

(5)  a foreclosure sale of real property personally conducted by a trustee under a deed of trust;

(6)  a foreclosure sale of personal property personally conducted by:

(A)  a person who holds a security interest in the property, including a mortgage;  or

(B)  an employee or agent of a person described by Paragraph (A) acting in the course and scope of employment, if:

(i)  the employee or agent is not otherwise engaged in the auction business;  and

(ii)  all property for sale in the auction is subject to a security agreement;

(7)  a sale conducted by sealed bid;

(8)  an auction conducted only for student training purposes as part of a course of study approved by the executive director for auctioneers;

(9)  an auction conducted by a posted stockyard or market agency as defined by the federal Packers and Stockyards Act (7 U.S.C. Section 181 et seq.), as amended;

(10)  an auction of livestock conducted by a nonprofit livestock trade association chartered in this state, if the auction involves only the sale of livestock owned by members of the trade association;  or

(11)  an auction conducted by a charitable or nonprofit organization chartered in this state, if the auction:

(A)  is part of a fair that is organized under state, county, or municipal authority;  and

(B)  involves only the sale of property owned by the organization's members.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.044, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.352, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 201, Sec. 1, eff. May 24, 2007.



Section  1802.003.  Preemption.

A political subdivision of this state may not levy on or collect from an auctioneer or associate auctioneer a license tax or fee as a regulatory or revenue measure or require the licensing of an auctioneer or associate auctioneer, if the auctioneer or associate auctioneer holds a license under this chapter and is in compliance with this chapter.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Subchapter B. License Requirements

Section  1802.051.  License Required.

(a) A person may not act as an auctioneer or associate auctioneer in an auction held in this state unless the person is an individual who holds a license issued by the executive director under this chapter.

(b)  An auctioneer who advertises to conduct an auction in this state shall provide the auctioneer's name and license number in the advertisement.

(c)  A person who is licensed under this chapter may not act as an auctioneer for an auction company unless the company is owned or operated by a person who is licensed under this chapter.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.045, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.353, eff. Sept. 1, 2003.



Section  1802.052.  Eligibility For Auctioneer's License.

(a) An individual is eligible for an auctioneer's license if the individual:

(1)  is at least 18 years of age;

(2)  is a citizen of the United States or a legal alien;

(3)  either:

(A)  passes a written or oral examination demonstrating knowledge of the auction business and of the laws of this state relating to the auction business; or

(B)  shows proof of employment by a licensed auctioneer for at least two years during which the applicant participated in at least 10 auctions;

(4)  holds a high school diploma or a high school equivalency certificate;

(5)  has not been convicted of a felony during the five years preceding the date of application; and

(6)  has completed at least 80 hours of classroom instruction at an auction school with a curriculum approved by the department in accordance with the standards and procedures established by rule adopted under this chapter.

(b)  The department, as provided by rule, may charge an auction school a reasonable fee for approving the curriculum as required under Subsection (a)(6).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 395, Sec. 1, eff. Sept. 1, 2003.



Section  1802.053.  Eligibility For Associate Auctioneer's License.

An individual is eligible for an associate auctioneer's license if the individual:

(1)  is a citizen of the United States or a legal alien; and

(2)  is employed under the direct supervision of a licensed auctioneer.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.054.  Application For License.

An applicant for a license must apply to the executive director on a form provided by the executive director that establishes the applicant's eligibility for the license. The application must be accompanied by:

(1)  the required bond;

(2)  the required license fee; and

(3)  either:

(A)  the permit number of a sales tax permit issued to the applicant by the comptroller under Subchapter F, Chapter 151, Tax Code; or

(B)  proof of exemption from the tax permit requirement under Chapter 151, Tax Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.046, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.354, eff. Sept. 1, 2003.



Section  1802.055.  Application For Examination.

(a) An individual who establishes that the individual is eligible for an auctioneer's license may apply to the executive director to take the license examination. The application must be accompanied by the examination fee.

(b)  On receipt of an examination application and fee, the executive director shall furnish the applicant with:

(1)  study materials and references on which the examination will be based; and

(2)  a schedule specifying the dates and places the examination will be offered.

(c)  The applicant may take the examination at any scheduled offering not later than the 90th day after the date the applicant receives the study materials.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.047, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.355, eff. Sept. 1, 2003.



Section  1802.056.  License Examination.

(a) The license examination must be designed to establish:

(1)  an applicant's general knowledge of the auction business;

(2)  the principles of conducting an auction; and

(3)  the laws of this state relating to auctioneers.

(b)  The license examination shall be offered at least four times each year at locations designated by the executive director.

(c)  The executive director shall prepare:

(1)  examinations for an auctioneer's license; and

(2)  study and reference materials on which the examinations are based.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.048, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.356, eff. Sept. 1, 2003.



Section  1802.058.  Reexamination.

An applicant who fails the license examination may reapply to take the examination. If the applicant fails the examination twice during a one-year period, the applicant may not reapply for one year.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.059.  Licensing By Reciprocity.

(a) An applicant for an auctioneer's license who is not a resident of this state but is licensed as an auctioneer in another state must submit to the executive director:

(1)  a license application;

(2)  a certified copy of the auctioneer's license issued to the applicant by the state or political subdivision in which the applicant resides; and

(3)  proof that the state or political subdivision in which the applicant is licensed has competency standards equivalent to or stricter than those of this state.

(b)  The executive director shall accept the applicant's auctioneer's license submitted under Subsection (a)(2) as proof of the applicant's professional competence and waive the examination and training requirements of Section 1802.052 if the state or political subdivision that issued the nonresident a license extends similar recognition and courtesies to this state.

(c)  A nonresident applicant must comply with all other application requirements prescribed by this chapter.

(d)  A nonresident applicant must submit with the application a written irrevocable consent to service of process. The consent must be in the form and supported by additional information that the commission by rule requires. The consent must:

(1)  provide that an action relating to any transaction subject to this chapter may be commenced against the license holder in the proper court of any county of this state in which the cause of action may arise or in which the plaintiff may reside by service of process on the executive director as the license holder's agent; and

(2)  include a statement stipulating and agreeing that service provided by this section is as valid and binding as if service had been made on the person according to the laws of this or any other state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.002, eff. Sept. 1, 2003.



Section  1802.060.  Term Of License.

A license issued under this chapter shall be issued for the period prescribed by the commission.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.062.  License Not Required For Certain Employees.

An employee of an auction company who does not act as a bid caller at any auction in this state is not required to hold a license under this chapter.

Added by Acts 2003, 78th Leg., ch. 395, Sec. 2, eff. Sept. 1, 2003.



Subchapter C. Auctioneer Education Advisory Board

Section  1802.101.  Auctioneer Education Advisory Board.

The advisory board shall advise the commission on educational matters.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.003, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.359, eff. Sept. 1, 2003.



Section  1802.102.  Appointment Of Advisory Board; Membership; Eligibility.

(a) The advisory board consists of seven members appointed as follows:

(1)  three members who are licensed auctioneers appointed by the presiding officer of the commission, with the commission's approval;

(2)  the executive director of the Texas Economic Development and Tourism Office or the director's designee;

(3)  the commissioner of education or the commissioner's designee; and

(4)  two public members.

(b)  In appointing advisory board members under Subsection (a)(1), the presiding officer of the commission may not appoint members who reside in contiguous senatorial districts.

(c)  Appointments to the advisory board shall be made without regard to the race, color, handicap, sex, religion, age, or national origin of the appointees.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.004, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 457, Sec. 5, eff. September 1, 2009.



Section  1802.103.  Terms; Vacancies.

(a) The members appointed under Section 1802.102(a)(1) serve two-year terms that expire on September 1. If a vacancy occurs during the term of such a member, the presiding officer of the commission, with the commission's approval, shall appoint a replacement to serve for the remainder of the term.

(b)  The remaining members are ex officio members. Each ex officio member shall continue to serve during the time the member holds office.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.005, eff. Sept. 1, 2003.



Section  1802.104.  Presiding Officer.

The presiding officer of the commission, with the commission's approval, shall appoint a member of the advisory board to serve as presiding officer of the board. The presiding officer serves for two years.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.006, eff. Sept. 1, 2003.



Section 1802.105.  Removal.

A member appointed under Section 1802.102(a)(1) may be removed by a six-sevenths vote of the advisory board.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 457, Sec. 6, eff. September 1, 2009.



Section  1802.106.  Compensation.

A member appointed under Section 1802.102(a)(1) may not receive:

(1)  compensation for serving on the advisory board; or

(2)  reimbursement for expenses.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.107.  Meetings.

(a) The advisory board shall meet at least quarterly each calendar year.

(b)  The advisory board may meet at other times at the call of the presiding officer.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.108.  Civil Liability.

A member of the advisory board is not liable in a civil action for an act performed in good faith while performing duties as an advisory board member.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.109.  Auctioneer Education Programs.

(a) The advisory board shall:

(1)  evaluate educational programs, seminars, and training projects; and

(2)  make recommendations to the commission on their usefulness and merit as continuing education tools.

(b)  On the recommendation of the advisory board, the commission may fund or underwrite specific classes, seminars, or events for the education and advancement of the auctioneering profession in this state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.007, eff. Sept. 1, 2003.



Subchapter D. Auctioneer Education And Recovery Fund

Section  1802.151.  Fund.

The auctioneer education and recovery fund is a trust fund with the comptroller for the payment of claims against auctioneers licensed under this chapter.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.152.  Management Of Fund.

(a) The department is the manager of the fund and shall:

(1)  administer the fund without appropriation;

(2)  maintain books and records as required by the executive director;

(3)  appear at hearings or judicial proceedings; and

(4)  invest and reinvest the fund's assets as instructed by the executive director.

(b)  The department, as manager, is entitled to compensation for reasonable and necessary costs and expenses for the management of the fund. The department shall be compensated from the earnings from the fund.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.049, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.363, eff. Sept. 1, 2003.



Section  1802.153.  Additional Fees.

(a) In addition to any other fees required by this chapter, an applicant entitled to receive a license under this chapter must pay a fee before the executive director issues the license.

(b)  If the balance in the fund on December 31 of a year is less than $300,000, each license holder at the next license renewal shall pay, in addition to the renewal fee, a fee that is equal to the greater of $50 or a pro rata share of the amount necessary to obtain a balance in the fund of $300,000.

(c)  The fees paid under this section shall be deposited in the fund.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.008, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.364, eff. Sept. 1, 2003.



Section  1802.154.  Investment Of Fund.

(a) Amounts deposited in the fund may be invested and reinvested in the same manner as funds of the Employees Retirement System of Texas, and income from the investments shall be deposited to the credit of the fund.

(b)  The department may not make an investment that would impair the liquidity required to satisfy payments made from the fund.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.155.  Liability.

(a) The fund or the department is not liable to a consumer for a recovery from the fund if the assets of the fund are insufficient to pay the amount awarded.

(b)  If the fund contains insufficient assets to pay the consumer:

(1)  the department shall record the time and date an order for payment to a consumer was received; and

(2)  the executive director shall pay consumers for whom an order is recorded under Subdivision (1) as funds become available in the order of the recorded time and date of the order.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.050, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.365, eff. Sept. 1, 2003.



Section  1802.156.  Education Expenditures Permitted.

The executive director may use amounts in excess of $250,000 in the fund to:

(1)  advance education and research in the auctioneering profession for the benefit of license holders and to improve and increase the efficiency of the industry;

(2)  underwrite educational seminars, training centers, and other educational projects for the use and benefit of license holders;

(3)  sponsor, contract, and underwrite other educational and research projects that advance the auctioneering profession in this state; and

(4)  cooperate with associations of auctioneers and other groups for the education and advancement of the auctioneering profession in this state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.051, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.366, eff. Sept. 1, 2003.



Subchapter E. Complaint Procedures

Section  1802.201.  Investigation Of Complaints.

The executive director may, on the executive director's motion, and shall, on the written complaint of a person aggrieved by the actions of an auctioneer in an auction, investigate an alleged violation of this chapter by a licensed or unlicensed auctioneer or an applicant.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.009, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.366, eff. Sept. 1, 2003.



Section  1802.202.  Consumer Claims.

(a) A person who deals with an auctioneer licensed under this chapter and who is aggrieved by an action of the auctioneer as a result of a violation of a contract made with the auctioneer may initiate a claim against the fund by filing with the department a complaint against the auctioneer.

(b)  The executive director may not pay a claim against an auctioneer who was not licensed at the time of the transaction on which the claim is based.

(c)  The department shall investigate a complaint filed under this section and determine the amount owed to the aggrieved party.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.010, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.367, eff. Sept. 1, 2003.



Text of section as amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.011.

Section  1802.203.  Hearing.

(a) If the amount determined by the department under Section 1802.202 is disputed by the auctioneer or the aggrieved party, the department's hearings examiner shall:

(1)  conduct a hearing on the claim in accordance with department rules; and

(2)  determine the amount owed to the aggrieved party.

(b)  A hearing on a claim may be conducted at the department's Austin office or at another location as provided by department rule.

(c)  After the hearing, the hearings examiner shall prepare a proposal for decision for the commission.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.011, eff. Sept. 1, 2003.



Text of section as amended by Acts 2003, 78th Leg., ch. 1215, Sec. 13

Section  1802.203.  Hearing.

If the amount determined by the department under Section 1802.202 is disputed by the auctioneer or the aggrieved party, the department shall refer the matter to the State Office of Administrative Hearings for a hearing on the disputed claim.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1215, Sec. 13, eff. Sept. 1, 2003.



Section  1802.204.  Appeal.

A party may appeal a decision of the commission in the manner provided for a contested case under Chapter 2001, Government Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.012, eff. Sept. 1, 2003.



Section  1802.205.  Payment Of Claim. (a)

If the department's determination under Section 1802.202 is not disputed by the auctioneer or the aggrieved party, the executive director shall pay the claim from the fund, subject to Section 1802.206.

(b)  If a hearing is held on the department's determination, the executive director shall pay to the aggrieved party the amount of actual damages determined by the executive director.

(c)  The amount of actual damages may not include attorney's fees, speculative damages, or lost profits.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.052, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.370, eff. Sept. 1, 2003.



Section  1802.206.  Payment Limits.

(a) The executive director may not pay a single aggrieved party more than $10,000.

(b)  The total payment of all claims by more than one aggrieved party arising from one auction at one location, regardless of the length of the auction, may not exceed $20,000.

(c)  The total payment of claims against a single auctioneer may not exceed $20,000.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.053, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.371, eff. Sept. 1, 2003.



Section  1802.207.  Reimbursement; Interest.

(a) If the executive director pays a claim against an auctioneer, the auctioneer shall:

(1)  reimburse the fund immediately or agree in writing to reimburse the fund on a schedule to be determined by rule of the commission; and

(2)  immediately pay the aggrieved party any amount due to that party or agree in writing to pay the party on a schedule to be determined by rule of the commission.

(b)  Payments made by an auctioneer to the fund or to an aggrieved party under this section include interest accruing at the rate of eight percent a year beginning on the date the executive director pays the claim.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.013, eff. Sept. 1, 2003.



Section  1802.208.  Subrogation.

If the executive director pays a claim against an auctioneer, the department is subrogated to all rights of the aggrieved party against the auctioneer to the extent of the amount paid to the aggrieved party.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 26.054, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.372, eff. Sept. 1, 2003.



Section  1802.209.  Effect On Disciplinary Proceedings.

(a) This subchapter and Section 1802.252 do not limit the commission's authority to take disciplinary action against a license holder for a violation of this chapter or a rule adopted under this chapter.

(b)  A license holder's repayment of all amounts owed to the fund does not nullify or modify the effect of another disciplinary proceeding brought under this chapter.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.014, eff. Sept. 1, 2003.



Subchapter F. Denial Of License And Disciplinary Procedures

Section  1802.251.  Denial Of Application; Suspension Or Revocation Of License.

The commission may deny an application for a license or suspend or revoke the license of any auctioneer for:

(1)  violating this chapter or a rule adopted under this chapter;

(2)  obtaining a license through false or fraudulent representation;

(3)  making a substantial misrepresentation in an application for an auctioneer's license;

(4)  engaging in a continued and flagrant course of misrepresentation or making false promises through an agent, advertising, or otherwise;

(5)  failing to account for or remit, within a reasonable time, money belonging to another that is in the auctioneer's possession and commingling funds of another with the auctioneer's funds or failing to keep the funds of another in an escrow or trust account; or violating the Business & Commerce Code in conducting an auction.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.015, eff. Sept. 1, 2003.



Section  1802.252.  Revocation For Claim On Fund.

(a) The commission may revoke a license issued under this chapter if the executive director makes a payment from the fund as the result of an action of the license holder.

(b)  The commission may probate an order revoking a license.

(c)  An auctioneer is not eligible for a new license until the auctioneer has repaid in full the amount paid from the fund on the auctioneer's account, including interest, unless:

(1)  a hearing is held; and

(2)  the executive director issues a new probated license.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.016, eff. Sept. 1, 2003.



Section  1802.253.  Hearing By State Office Of Administrative Hearings.  

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Text of subsec. (a) as amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.017

 

(a)  Before denying an application for a license, the commission shall:

(1)  set the matter for a hearing; and

(2)  before the hearing date, notify the applicant in writing of:

(A)  the charges alleged or the question to be determined at the hearing; and

(B)  the date and location of the hearing.

 

Text of subsec. (a) as amended by Acts 2003, 78th Leg., ch. 1215, Sec. 15

 

(a)  Before denying an application for a license or suspending or revoking a license, the commissioner shall:

(1)  set the matter for a hearing to be conducted by the State Office of Administrative Hearings; and

(2)  before the 30th day before the hearing date, notify the applicant or license holder in writing of:

(A)  the charges alleged or the question to be determined at the hearing; and

(B)  the date and location of the hearing.

(b)  At a hearing under this section, the applicant may:

(1)  be present and be heard in person or by counsel; and

(2)  have an opportunity to offer evidence by oral testimony, affidavit, or deposition.

(c)  Written notice may be served by personal delivery to the applicant or by certified mail to the last known mailing address of the applicant.

(d)  If the applicant who is the subject of the hearing is an associate auctioneer, the commission shall provide written notice to the auctioneer who employs the associate auctioneer or who has agreed to employ the associate auctioneer by mailing the notice by certified mail to the auctioneer's last known mailing address.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.017, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1215, Secs. 14, 15, eff. Sept. 1, 2003.



Subchapter G. Criminal Penalties

Section  1802.301.  Practicing Without License; Offense.

(a) A person commits an offense if the person acts as an auctioneer without a license.

(b)  An offense under this section is a Class B misdemeanor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.302.  Frivolous Claim; Offense.

(a) A person commits an offense if the person intends to benefit personally or to harm another and the person:

(1)  institutes under this chapter a claim in which the person knows the person has no interest; or

(2)  institutes under this chapter a frivolous suit or a claim that the person knows is false.

(b)  An offense under this section is a Class B misdemeanor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



Section  1802.303.  General Criminal Penalty.

(a) A person commits an offense if the person violates a provision of this chapter or a rule adopted by the commission under this chapter for which a penalty is not provided.

(b)  An offense under this section is a Class C misdemeanor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 816, Sec. 4.018, eff. Sept. 1, 2003.


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