TEXAS CONSUMERS: KNOW YOUR RIGHTS
Consumers in Texas are protected by the Texas Deceptive Trade Practices and Consumer Protection Act (hereinafter the “DTPA”). The purpose of the DTPA is to “protect consumers against false, misleading, and deceptive trade practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.” [DTPA §17.44] This means that Texas consumers are not limited to recourse under contract law or common law fraud, which often lead to insignificant remedies.
Are you a consumer? Yes, if you are “an individual, partnership, corporation, this state, or a subdivision of this state who seeks or acquires by purchase or lease any goods or services.” [DTPA §17.45(5)] However, you are not a consumer for purposes of the DTPA if you are a business consumer with assets of $25 million or more. It is important to be aware that the consumer does not have to be the one who actually pays for the the goods or services. Therefore, a child can be a consumer with respect to goods and/or services paid for by the parent, and an employee can be a consumer with respect to goods and/or services paid for by the employer.
“Goods” includes tangible property, inventory and real estate. “Services” excludes merely lending money as well as the rendering of a professional service, the essence of which is the providing of advice, judgment or opinion. However, the professional service exemption does not apply to express misrepresentations, breaches of express warranties, failures to disclose, or unconscionable actions or courses of action. Therefore, a plastic surgeon who tells his patient that, “his face will look exactly like George Clooney’s face after the operation” can be sued under the DTPA for breach of an express warranty, if after the surgery the patient does not look exactly like Mr. Clooney.
It should be noted that the DTPA does not apply to a cause of action arisng out of a transaction, a project, or a set of transactions relating to the same project that involves a total consideration provided by the consumer of more than $500,000. However, this does not apply to a residence, so the DTPA can apply to a home worth more than $500,000.
Keep in mind that there are some prerequisites to a DTPA claim. The consumer must give the defendant 60 days written notice before filing a claim, and the defendant must be given 60 days from receipt or 90 days after answering to propose a settlement offer to the consumer. Also, an action under the DTPA must be brought within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or should have discovered the occurrence. Therefore, it is important that consumers know their rights and act quickly.
There are many more nuances to the DTPA, too many to mention here. However, the most important point is that consumers need to be mindful that the Texas legislature has a very effective consumer protection act on the books, and legal counsel can assist consumers in protecting their rights under the DTPA. Keep in mind when deciding whether or not to contact an attorney that in addition to damages and equitable relief, the DTPA mandates the award of attorney’s fees if the consumer prevails. So, if you are a consumer and you feel that you have a claim under the DTPA, you should contact an attorney to explore your options.
*Disclaimer: 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.