Consumer protection is an important concept in the framework of Texas law. In 1973, the Texas legislature enacted the Deceptive Trade Practices—Consumer Protection Law. Known as the Texas DTPA, its original form has been amended several times to restrict the availability of plaintiff recovery. Nevertheless, the DTPA remains an enviable option to vindicate the rights of plaintiffs who are subject to the law’s reach. This post will describe the basics of the DTPA. Of course, not every transaction is subject to the DTPA and this post is not an exclusive list of each and every transaction that could be litigated, rather this post is simply informational to provide you with a starting point for understanding this law and how it might impact you and your transactions as a consumer. If you would like a better understanding of whether or not your claim might qualify for DTPA relief, we strongly encourage you to contact our office. We will gladly review your claim to determine the necessity of initiating court proceedings to vindicate your consumer rights. Now, lets begin with the basics.
- The DTPA is contained in Chapter 17 of the Texas Business and Commerce Code, beginning at section 17.41. This information is available publicly and can be accessed with a simple Internet search including the term “Texas DTPA.”
- The DTPA prohibits the following conduct: False, misleading, or deceptive acts or practices in the conduct of any trade or commerce. The statute further defines what activities are considered “false, misleading, or deceptive acts or practices.” The following list is not exclusive, but a condensed listing of some of the most relevant provisions to consumers. “False, misleading, or deceptive acts or practices” include:
- Passing off goods or services as those of another;
- Causing confusion or misunderstanding regarding the source of the goods or services;
- Lying about the geographic origin of goods or services;
- Indicating that goods or services have a quality for which they actually do not;
- Saying that used or secondhand goods are “original” or “new”;
- Telling the consumer that goods or services are of a particular standard or quality when they are of another;
- Advertising goods or services with the intent to not sell them as advertised;
- Providing the consumer with a false reason for a price reduction;
- Knowingly and falsely telling a consumer that there is a need for parts, replacement, or repair services;
- Disconnecting, turning back, or resetting the odometer of any motor vehicle to reduce the number of miles shown on the odometer gauge;
- Advertising a “going out business” sale when in fact the entity is not going out of business; and/or
- Indicating that work or services were performed, or parts replaced, when in fact that work or service never occurred.
This listing is quite generous in terms of the liability imposed on those providing goods or services. There are, however, some limitations. Let’s now discuss some of the basic limitations that apply.
- The statute broadly defines the terms “person” and “consumer,” and practically anyone qualifies as a potential plaintiff. While there are some exclusions, we suggest consulting our firm to determine your individual eligibility. Additionally, the statute defines “knowingly,” which is the required mental state for some of the provisions asserting liability. It means an actual awareness, at the time of the act, of the falsity, deception, or unfairness of the act. The defendant might also act with another mental state, that is “intentionally.” This is defined as actual awareness of the falsity, deception, or unfairness of the act, coupled with the specific intent that the consumer rely on that falsity or deception.
- To obtain relief under the DTPA, the consumer must provide written notice to the person who engaged in the unlawful act at least 60 days before filing suit under this statute. The written notice must include, in reasonable detail, the specific complaint, the amount of economic damages, damages for any mental anguish, and expenses, including attorney’s fees, if appropriate. Please let us assist you with this notice as it contains several detailed requirements that must be met to prosecute an actionable claim in court. To avoid dismissal based on failure to provide proper written notice, we can draft this notice on your behalf and serve it on the intended party.
- Finally, to what damages are consumers’ entitled to upon successful litigation under the DTPA? A prevailing consumer may obtain the amount of economic damages found by the court. Often this is the price paid by the consumer for the goods or services. Also, if the court determines that the defendant acted knowingly, the consumer may also recover damages for mental anguish (the amount determined by the court), and the court may triple the award of economic damages. If the court determines that the defendant acted intentionally, the court may award mental anguish damages (again, the amount determined by the court), and may triple both the mental anguish damages and the economic damages. Additionally, the prevailing consumer is entitled to recover court costs and reasonable and necessary attorneys’ fees.
The DTPA provides serious remedies for wronged consumers. We want to help you recover for the misconduct of a seller or service provider. We can examine your claim and determine its viability. If you think you qualify for relief, give us a call.
Suggested tags: Texas DTPA, Consumer Protection, DTPA, Texas Consumer, Consumer Protection Law, Misleading, Deceptive, Deceptive Trade Practices Act