What Is The "Deceptive Trade Practices Act" The primary purpose of the DTPA is to protect consumers against false, misleading, and deceptive business and insurance practices, unconscionable actions, and breaches of warranty. It does so by prohibiting certain acts and practices that tend to deceive and mislead consumers
Which Transactions Does the DTPA Apply To? Most consumer transactions are covered by the DTPA. Although the DTPA does not cover every deceptive or unconscionable act or practice, it is quite broad. The DTPA provides that "false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."
The DTPA prohibits certain acts or practices "in the conduct of any trade or commerce." This is a very broad provision. "Trade and commerce" means "the advertising, offering for sale, lease, or distribution of any good or service, or any property, tangible or intangible, real, personal, or mixed, any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state." The term "goods" includes tangible things or real property purchased or leased for use. The word "service" includes work, labor, or services purchased or leased for use, including services furnished in connection with the sale or repair of goods. The DTPA does not apply to the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion or similar professional skill.
What Is Included Within the "Laundry List" of Acts and Practices Made Illegal by the DTPA? The DTPA contains a "laundry list" of specific practices that are prohibited. It contains 27 acts that violate the DTPA and for which consumers may sue, if the consumers relied on the act to their detriment.
- 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 representatives or designations of geographic origin in connection with goods or services.
- 5. Representing goods or services that claim to have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities but do not or a person claiming to have a sponsorship, approval, status, affiliation or connection but does not.
- 6. Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or second-hand.
- 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 representations 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 advertisement 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 salesperson, 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 the quantity 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 charges 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:
- a. the discount is authorized under an agreement between the seller of the card and the provider of those goods and services or the discount or card is offered to members of the seller;
- b. the seller does not represent that the card provides insurance coverage of any kind; and c. the discount is not false, misleading, or deceptive.
- 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 or merchantability as defined in Section 2.314 and 2.318 of the Business and Commerce Code to involve obligations in excess of those which are appropriate to the goods.
- 21. Promoting a pyramid promotional scheme, as defined by Section 17.461.
- 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 section shall not occur where it is shown by the person filing such suit he/she neither knew nor had reason to know that the county in which suit was filed was either 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. The failure to disclose information concerning goods or services known at the time of the transaction and was used to induce the consumer into a transaction whom otherwise 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 or is not registered with the Teacher Retirement System of Texas as required by Section 8A of the Act.
- 27. 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.
How Long Can You Wait to File a Suit? A DTPA lawsuit generally must be filed within two years after the date on which the false, misleading, or deceptive act or practice occurred. If the deceptive act took place over a period of time, then, to be safe, you should begin suit two years from the date of the first such action. Some violations of the DTPA, by their very nature are concealed or difficult to detect. In these cases, the consumer has a longer time within which to file suit; two years after he or she discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of the false, misleading, or deceptive act or practice. Finally, there is a special provision stating that, if the consumer proves that failure to begin the lawsuit within these time limits was caused by the defendant knowingly engaging in conduct solely calculated to induce the consumer to refrain from or postpone the commencement of the suit, the right to file suit may be extended for an additional 180 days. In other words, if a violator of the DTPA strings you along by promising to make good, and does this intending to make you wait past the two-year time limit, and then "changes his or her mind" once the time limit has passed, he or she may not be able to get away with the trickery.
This information is not intended to be a substitute for the legal advice of a licensed attorney. If you have any questions regarding a particular issue or topic we suggest you seek legal counsel. The above information is adapted from the brochure "A Guide to the Texas Deceptive Trade Practices Consumer Protection Act," published by the State Bar of Texas.