89R14269 SRA-F     By: Hall S.B. No. 2428       A BILL TO BE ENTITLED   AN ACT   relating to diagnosis, maintenance, and repair of certain digital   electronic equipment.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle C, Title 5, Business & Commerce Code, is   amended by adding Chapter 121 to read as follows:   CHAPTER 121. DIAGNOSIS, MAINTENANCE, AND REPAIR OF CERTAIN DIGITAL   ELECTRONIC EQUIPMENT   SUBCHAPTER A.  GENERAL PROVISIONS          Sec. 121.001.  DEFINITIONS. In this chapter:                (1)  "Authorized repair provider" means an individual   or business entity who has an arrangement with the original   equipment manufacturer for a definite or indefinite period under   which the original equipment manufacturer grants to the individual   or business entity:                      (A)  a license to use a trade name, service mark,   or other proprietary identifier for the purpose of offering   diagnosis, maintenance, or repair services for digital electronic   equipment under the name of the original equipment manufacturer; or                      (B)  other authority to offer diagnosis,   maintenance, or repair services for digital electronic equipment on   behalf of the original equipment manufacturer.                (2)  "Consumer" means an individual who enters into a   transaction primarily for personal, family, or household purposes.                (3)  "Diagnosis" means the process of identifying the   issue or issues that cause digital electronic equipment to not be in   full working order.                (4)  "Digital electronic equipment" or "equipment"    means any product that depends, wholly or partly, on digital   electronics embedded in or attached to the product to function.                (5)  "Documentation" means any manual, diagram,   reporting output, service code description, or other guidance or   information provided or made available by the original equipment   manufacturer to an authorized repair provider for the purpose of   diagnosing, maintaining, or repairing digital electronic equipment   manufactured or sold by the original equipment manufacturer.                (6)  "Fair and reasonable terms" means:                      (A)  with respect to an original equipment   manufacturer making available a tool, making the tool available:                            (i)  without conditioning that availability   on the recipient being an authorized repair provider;                            (ii)  at no cost to use or operate the tool   or at a cost that is equivalent to the lowest actual cost at which   the original equipment manufacturer offers the tool to an   authorized repair provider, taking into account any discounts,   rebates, or other financial incentives offered by the original   equipment manufacturer to the authorized repair provider; and                            (iii)  if the tool is requested in physical   form, for a charge equal to the actual cost of procuring, preparing,   and sending the tool;                      (B)  with respect to an original equipment   manufacturer making available a replacement part, making the part   available either directly or through an authorized distributor or   repair provider, subject to Section 121.052(7)(B):                            (i)  without conditioning that availability   on the recipient being an authorized repair provider; and                            (ii)  at costs and terms that are equivalent   to the costs and terms under which the part is offered to an   authorized repair provider;                      (C)  with respect to an original equipment   manufacturer making available documentation, including any   relevant updates to the documentation, making the documentation   available:                            (i)  without conditioning that availability   on the recipient being an authorized repair provider; and                            (ii)  at no cost, except that an original   equipment manufacturer may charge the reasonable actual cost of   preparing and sending a copy of the documentation when the   documentation is requested in physical printed form; and                      (D)  with respect to documentation, replacement   parts, or tools, terms that are fair to all parties, including the   original equipment manufacturer and authorized repair providers.                (7)  "Independent repair provider" means an individual   or business entity operating in this state that:                      (A)  with respect to an original equipment   manufacturer:                            (i)  is not an authorized repair provider;   and                            (ii)  is not affiliated with an individual   or business entity that is an authorized repair provider; and                      (B)  is engaged in the diagnosis, maintenance, or   repair of digital electronic equipment.                (8)  "Maintenance" means any act necessary to keep   currently working digital electronic equipment in full working   order.                (9)  "Medical device" means a device, as defined by 21   U.S.C. Section 321(h)(1), intended for use in the diagnosis of   disease or other conditions, or in the cure, mitigation, treatment,   or prevention of disease, in humans or other animals.                (10)  "Modification" or "modify" means any alteration   to digital electronic equipment that is not maintenance and not a   repair.                (11)  "Motor vehicle" means a vehicle that is designed   for transporting individuals or property on a street or highway and   is certified by the manufacturer under all applicable motor vehicle   federal safety and emissions standards and requirements for   distribution and sale in the United States.                (12)  "Motor vehicle manufacturer" means a business   engaged in the manufacturing or assembling of motor vehicles.                (13)  "Original equipment manufacturer" means a   business entity that, in the normal course of business, is engaged   in the business of selling, leasing, or otherwise supplying new   digital electronic equipment manufactured by or on behalf of the   business entity.                (14)  "Owner" means an individual or business entity   that owns digital electronic equipment.                (15)  "Repair" means any act necessary to restore   digital electronic equipment or equipment to full working order.   The term does not include post-sale modifications that alter the   originally intended functioning of the digital electronic   equipment.                (16)  "Replacement part" means a new or used   replacement part made available by the original equipment   manufacturer for the purpose of maintenance or repair of digital   electronic equipment manufactured, sold, or supplied by the   original equipment manufacturer.  The term does not include printed   circuit board assemblies that may allow device cloning in violation   of 18 U.S.C. Section 1029 or other applicable law.                (17)  "Tool" means any software program, hardware   implement, or other apparatus used for the diagnosis, maintenance,   or repair of digital electronic equipment, including software or   another mechanism that:                      (A)  provides, programs, or pairs a part;                      (B)  calibrates functionality; or                      (C)  performs any other function required to   restore the equipment to full working order.                (18)  "Trade secret" means anything tangible or   intangible or electronically stored or kept that constitutes,   represents, evidences, or records intellectual property, including   secret or confidentially held designs, processes, procedures,   formulas, inventions, or improvements, or secret or confidentially   held scientific, technical, merchandising, production, financial,   business, or management information, or that falls within the   meaning of a trade secret given in 18 U.S.C. Section 1839.          Sec. 121.002.  APPLICABILITY OF CHAPTER. (a)  Except as   provided by Subsection (b), this chapter applies only to digital   electronic equipment:                (1)  sold at retail to a consumer in this state;                (2)  that has a wholesale price of at least $50; and                (3)  that is in need of a repair not covered under the   original equipment manufacturer's warranty.          (b)  This chapter does not apply to:                (1)  information technology equipment that is intended   for use in critical infrastructure as defined by 42 U.S.C. Section   5195c(e);                (2)  a motor vehicle manufacturer who complies with a   memorandum of understanding or any other industry-recognized   agreement relating to the diagnosis, maintenance, or repair of   digital electronic equipment;                (3)  a medical device or product:                      (A)  found in a medical setting, including   diagnostic, monitoring, or control equipment; or                      (B)  offered for purchase or prescribed by a   health care provider;                (4)  a manufacturer of farm equipment who complies with   a memorandum of understanding or any other industry-recognized   agreement relating to the diagnosis, maintenance, or repair of   digital electronic equipment;                (5)  aerospace, airplane, or train equipment;                (6)  commercial and industrial electrical equipment,   including power distribution equipment, such as telecommunications   network infrastructure, commercial visual display equipment,   medium/low voltage switchgear and transformers, power control   equipment, such as medium/low voltage motor control and drives,   power quality equipment, such as uninterruptible power supplies,   remote power panels, power distribution units and static/transfer   switches, and any tools, technology, attachments, accessories,   components, and repair parts for any of the equipment described by   this subdivision;                (7)  a home appliance that has digital electronic   equipment embedded within it, including refrigerators, ovens,   microwaves, air conditioning units, heating units, motorized   shades, lighting control systems, and security devices or alarm   systems, including any related software and components;                 (8)  safety communications equipment, the intended use   of which is for emergency response or prevention purposes by an   emergency service organization, such as a police, fire, or medical   and emergency rescue services agency; or                (9)  digital electronic equipment sold in a transaction   involving only business or governmental entities.          Sec. 121.003.  WAIVER OF CHAPTER VOID AND UNENFORCEABLE. A   provision in a contract, including an agreement between an   authorized repair provider and original equipment manufacturer,   that purports to waive, avoid, restrict, or limit the original   equipment manufacturer's obligation to comply with this chapter is   void and unenforceable.   SUBCHAPTER B.  ORIGINAL EQUIPMENT MANUFACTURER REQUIREMENTS          Sec. 121.051.  ORIGINAL EQUIPMENT MANUFACTURER   REQUIREMENTS. (a) For digital electronic equipment, including   parts for that equipment sold or used in this state, the original   equipment manufacturer of the equipment or part shall, not later   than one year after the date of the first sale of the digital   electronic equipment in this state, make available on fair and   reasonable terms to any independent repair provider or to an owner   of digital electronic equipment manufactured by or on behalf of,   sold by, or supplied by the original equipment manufacturer   documentation, replacement parts, and tools, or their equivalents,   that are required for the diagnosis, maintenance, or repair of the   digital electronic equipment.          (b)  The documentation, replacement parts, and tools   described by Subsection (a) may be made available:                (1)  directly by an original equipment manufacturer or   through an authorized repair provider or an authorized third-party   provider; or                (2)  by an authorized repair provider to any   independent repair provider or owner, provided that the authorized   repair provider is contractually and practically permitted by the   original equipment manufacturer to sell the documentation, parts,   or tools, to an independent repair provider or owner.          (c)  Subsection (b) may not be construed to require a   third-party provider, including an authorized repair provider, to   make available documentation, replacement parts, or tools   independent of an original equipment manufacturer.          Sec. 121.052.  CONSTRUCTION OF SUBCHAPTER. Notwithstanding   any other provision of this subchapter, nothing in this subchapter:                (1)  requires an original equipment manufacturer to   provide or make available documentation, a replacement part, or a   tool to a repair provider or owner, if:                      (A)  the documentation, part, or tool is not, or   is no longer, provided by the original equipment manufacturer or   made available to authorized repair providers of the original   equipment manufacturer, including where the original equipment   manufacturer performs related repairs solely in-house or through a   corporate affiliate;                      (B)  the documentation, part, or tool, is no   longer available to the original equipment manufacturer; or                      (C)  the documentation or tool is used by the   original manufacturer only to perform, at no cost, diagnostic   services virtually through telephone, Internet, chat, e-mail, or   other similar means that do not involve the manufacturer physically   handling the consumer's equipment, unless the manufacturer also   makes the documentation or tool available to an individual or   business that is unaffiliated with the manufacturer;                (2)  requires an original equipment manufacturer to   divulge any trade secret to any independent repair provider or   owner, except as necessary for the diagnosis, maintenance, or   repair of digital electronic equipment in accordance with this   chapter;                (3)  requires an original equipment manufacturer or an   authorized repair provider to provide an independent repair   provider or owner any information other than documentation that is   provided by the original equipment manufacturer to an authorized   repair provider;                (4)  requires an original equipment manufacturer or   authorized repair provider to make available any documentation,   part, or tool for the purposes of modifying digital electronic   equipment;                (5)  requires any original equipment manufacturer or   authorized repair provider to make available any documentation,   part, or tool in a manner that is inconsistent with or in violation   of any state or federal law;                (6)  requires an original equipment manufacturer to   make available any documentation, part, or tool to an independent   repair provider or owner that would disable, reset, or override   electronic security locks or other security-related measures or   functions, or disable or override anti-theft security measures set   by the owner of the digital electronic equipment;                (7)  prevents an original equipment manufacturer from:                      (A)  requiring remote authorization or an   Internet connection before an independent repair provider or owner   may use a part or tool; or                      (B)  providing parts, such as integrated   batteries, to an independent repair provider or owner preassembled   with other parts rather than as individual components, provided   that those preassembled parts or their equivalents are also   available to an authorized repair provider or owner; or                (8)  requires an original equipment manufacturer to:                      (A)  provide documentation, a part, or a tool for   a product where reconditioning or repair of the product is   prohibited by a law or regulation;                      (B)  provide or make available source code;                      (C)  make available a special document, a part, or   a tool that would disable or override an anti-theft security   measure set by the owner of the digital electronic equipment   without the owner's authorization;                      (D)  provide documentation, a part, or a tool for   repair of digital electronic equipment critical to the safety of   life or health of individuals, or for repairs that could threaten   the safety of life or health of individuals, including repairs to   digital electronic equipment with internal switch-mode power   supplies; or                      (E)  provide documentation or a tool used   exclusively by the original equipment manufacturer for diagnosis,   maintenance, or repairs completed by machines that operate on   several digital electronic equipment products simultaneously or   otherwise for purposes of large scale efficiency, provided the   original equipment manufacturer makes available to an independent   repair provider or owner a sufficient alternative documentation or   tool to effect the diagnosis, maintenance, or repair of the digital   electronic equipment.          Sec. 121.053.  ALTERNATIVE RELIEF FOR ORIGINAL PURCHASERS.   Instead of making documentation, replacement parts, or tools   available under this subchapter, the original equipment   manufacturer may provide an owner who is the original purchaser:                (1)  a reimbursement in the amount of the purchase   price the purchaser paid for the digital electronic equipment; or                (2)  an equivalent or better, readily available   replacement for the digital electronic equipment at a price that   has a value that is equal to or less than the total cost of the sum   of the replacement parts.          Sec. 121.054.  LIMITATION OF LIABILITY. (a) An original   equipment manufacturer or authorized repair provider is not liable   for any damage or injury to any digital electronic equipment,   individual, or property that occurs as a result of the repair,   diagnosis, maintenance, or modification performed by an   independent repair provider or owner, or any other use of   documentation, replacement parts, or tools made available by an   original equipment manufacturer, including:                (1)  indirect, incidental, special, or consequential   damages;                 (2)  loss of data, privacy, or profits; or                 (3)  inability to use or reduced functionality of the   digital electronic equipment.          (b)  An original equipment manufacturer is not liable under   this chapter for any act that is reasonably necessary to protect   user privacy, security, or digital safety.          (c)  An original equipment manufacturer is not liable for   improper use of personal data or any data privacy or security breach   in connection with the repair, diagnosis, maintenance, or   modification performed by an independent repair provider or owner.   SUBCHAPTER C.  ENFORCEMENT          Sec. 121.101.  NOTICE OF VIOLATION; OPPORTUNITY TO CURE.   (a) The attorney general has exclusive authority to enforce this   chapter.          (b)  Before bringing an action under Section 121.102 or   121.103, the attorney general shall notify a person in writing at   least 30 days before the date the attorney general brings the   action. The notice must identify the specific provisions of this   chapter that the attorney general alleges have been or are being   violated.          (c)  The attorney general may not bring an action against a   person if:                (1)  within the 30-day period described by Subsection   (b), the person cures the violation; and                (2)  the person provides the attorney general a written   statement that:                      (A)  the person cured the alleged violation; and                      (B)  it is the person's intent that no further   violations of this chapter will occur.          (d)  Written notice by the attorney general shall be   delivered by:                (1)  certified mail, return receipt requested; or                (2)  first-class mail with proof of delivery.          Sec. 121.102.  DECEPTIVE TRADE PRACTICE. A violation of   this chapter following the cure period described by Section 121.101   is a deceptive trade practice in addition to the practices   described by Subchapter E, Chapter 17, and is actionable under that   subchapter.          Sec. 121.103.  INJUNCTION. (a) The attorney general may   bring an action in the name of the state following the cure period   described by Section 121.101 to restrain or enjoin a person from   violating this chapter.          (b)  The attorney general may recover reasonable attorney's   fees and other reasonable expenses incurred in investigating and   bringing an action under this section.          Sec. 121.104.  NO PRIVATE RIGHT OF ACTION. This chapter may   not be construed to create, provide a basis for, or be subject to a   private right of action for a violation of this chapter or any other   law.          SECTION 2.  Chapter 121, Business & Commerce Code, as added   by this Act, applies only to digital electronic equipment that was   originally made available for sale in this state by an original   equipment manufacturer on or after the effective date of this Act.          SECTION 3.  Notwithstanding Section 121.003, Business &   Commerce Code, as added by this Act, to the extent of a conflict   between Chapter 121, Business & Commerce Code, as added by this Act,   and a provision of an agreement between an authorized repair   provider and original equipment manufacturer entered into before   the effective date of this Act, the provision of the agreement   prevails.          SECTION 4.  This Act takes effect September 1, 2026.