What is the Deceptive Trade Practices Act?

The Texas Deceptive Trade Practices Act (“DTPA”) is a statute which protects consumers who buy, seek to buy, goods or services, but are victimized by the sellers through marketing or sales techniques which amount to tricking those consumers.

Sellers who knowingly or intentionally commit such trickery can face serious penalties, including having to pay for up to three times the damages suffered by their victims, plus the attorney fees for pursuing those claims.

What are deceptive trade practices?

The DTPA prohibits unconscionable actions and courses of action, which are those that take advantage of the lack of knowledge, ability, experience, or capacity of a consumer to a grossly unfair degree.

In addition to to prohibition on unconscionable action, the DTPA contains a ‘laundry list’ of deceptive trade practices which are prohibited by law and for which a consumer may bring claims to be made whole and to deter those who prey on unsuspecting consumers.

The ‘laundry list’ specifically prohibits the commission of the following false, misleading, or deceptive act or practices:

1) passing off goods or services as those of another;

(2)  causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3)  causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4)  using deceptive representations or designations of geographic origin in connection with goods or services;

(5)  representing 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 the person does not;

(6)  representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;

(7)  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;

(8)  disparaging the goods, services, or business of another by false or misleading representation of facts;

(9)  advertising goods or services with intent not to sell them as advertised;

(10)  advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;

(11)  making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;

(12)  representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

(13)  knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service;

(14)  misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;

(15)  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;

(16)  disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;

(17)  advertising of any sale by fraudulently representing that a person is going out of business;

(18)  advertising, selling, or distributing a card which purports to be a prescription drug identification card issued under Section 4151.152, Insurance Code, in accordance with rules adopted by the commissioner of insurance, which offers a discount on the purchase of health care goods or services from a third party provider, and which is not evidence of insurance coverage, unless:

(19)  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;

(20)  representing that a guaranty 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 to involve obligations in excess of those which are appropriate to the goods;

(21)  promoting a pyramid promotional scheme, as defined by Section 14.461;

(22)  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;

(23)  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 use 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 that the person 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;

(24)  failing 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;

(25)  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;

(26)  selling, offering to sell, or illegally promoting an annuity contract under Chapter 22, Acts of the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-5, Vernon’s Texas Civil Statutes), with the intent that the annuity contract will be the subject of a salary reduction agreement, as defined by that Act, if the annuity contract is not an eligible qualified investment under that Act;

(27)  subject to Section 17.4625, taking advantage of a disaster declared by the governor under Chapter 418, Government Code, or by the president of the United States by:

• (A)  selling or leasing fuel, food, medicine, lodging, building materials, construction tools, 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, lodging, building materials, construction tools, or another necessity;

(28)  using the translation into a foreign language of a title or other word, including “attorney,” “immigration consultant,” “immigration expert,” “lawyer,” “licensed,” “notary,” and “notary public,” in any written or electronic material, including an advertisement, a business card, a letterhead, stationery, a website, or an online video, in reference to a person who is not an attorney in order to imply that the person is authorized to practice law in the United States;

(29)  delivering or distributing a solicitation in connection with a good or service that:

• (A)  represents that the solicitation is sent on behalf of a governmental entity when it is not; or
• (B)  resembles a governmental notice or form that represents or implies that a criminal penalty may be imposed if the recipient does not remit payment for the good or service;

(30)  delivering or distributing a solicitation in connection with a good or service that resembles a check or other negotiable instrument or invoice, unless the portion of the solicitation that resembles a check or other negotiable instrument or invoice includes the following notice, clearly and conspicuously printed in at least 18-point type:

“SPECIMEN-NON-NEGOTIABLE”;

(31)  in the production, sale, distribution, or promotion of a synthetic substance that produces and is intended to produce an effect when consumed or ingested similar to, or in excess of, the effect of a controlled substance or controlled substance analogue, as those terms are defined by Section 481.002, Health and Safety Code:

• (A)  making a deceptive representation or designation about the synthetic substance; or
• (B)  causing confusion or misunderstanding as to the effects the synthetic substance causes when consumed or ingested;

(32)  a licensed public insurance adjuster directly or indirectly soliciting employment, as defined by Section 38.01, Penal Code, for an attorney, or a licensed public insurance adjuster entering into a contract with an insured for the primary purpose of referring the insured to an attorney without the intent to actually perform the services customarily provided by a licensed public insurance adjuster, provided that this subdivision may not be construed to prohibit a licensed public insurance adjuster from recommending a particular attorney to an insured;

(33)  owning, operating, maintaining, or advertising a massage establishment, as defined by Section 455.001, Occupations Code, that:

• (A)  is not appropriately licensed under Chapter 455, Occupations Code, or is not in compliance with the applicable licensing and other requirements of that chapter; or
• (B)  is not in compliance with an applicable local ordinance relating to the licensing or regulation of massage establishments; or

(34)  a warrantor of a vehicle protection product warranty using, in connection with the product, a name that includes “casualty,” “surety,” “insurance,” “mutual,” or any other word descriptive of an insurance business, including property or casualty insurance, or a surety business.

There are a number of “tie-in” statutes, which are not listed in the text of the DTPA statute, but which have been identified as deceptive trade practices by the legislature and for which a DTPA claim can be brought.

These include:

Credit Services Organizations (Tex. Fin. Code Sec. 393.001 et seq.)
Health Spa Act (Tex. Occ. Code Sec. 702.001 et seq.)
Regulation of Consumer Credit Reporting Agencies (Tex. Bus. & Com. Code Sec. 20.01 et seq.)
Regulation of Telephone Solicitation (Tex. Bus. & Com. Code Sec. 302.001 et seq.)
Texas Timeshare Act (Tex. Prop. Code Sec. 221.001 et seq.)

Does Bower PLLC represent clients with DTPA claims?

Yes. Bower PLLC regularly represents victims of deceptive trade practices. The focus of our Plaintiff-side litigation practice is helping those who have been harmed by others. We’ve brought claims on behalf of these clients, securing numerous judgments with awards of multiples of damages for knowing and intentional conduct.

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