88R18894 MLH-F     By: Meyer, Plesa H.B. No. 4641     Substitute the following for H.B. No. 4641:     By:  Capriglione C.S.H.B. No. 4641       A BILL TO BE ENTITLED   AN ACT   relating to the collection of consumer debt incurred by certain   individuals as a result of identity theft.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subchapter D, Chapter 392, Finance Code, is   amended by adding Section 392.308 to read as follows:          Sec. 392.308.  CONSUMER VICTIM OF IDENTITY THEFT. (a)  In   this section:                (1)  "Family violence" has the meaning assigned by   Section 71.004, Family Code.                (2)  "Human trafficking" means conduct that   constitutes an offense under Section 20A.02, Penal Code.                (3)  "Identity theft" means:                      (A)  a violation of Section 521.051, Business &   Commerce Code, or a substantially similar federal law or law in   another state; or                      (B)  a criminal offense described by Section   32.51, Penal Code, or a substantially similar federal law or law in   another state.                (4)  "Person with a disability" has the meaning   assigned by Section 48.002, Human Resources Code.          (b)  This section does not apply to consumer debt that is a   home loan, as defined by Chapter 343.          (c)  A creditor, debt collector, or third-party debt   collector may not attempt to collect a consumer debt or a portion of   a consumer debt if the consumer provides:                (1)  a criminal complaint alleging the commission of an   offense under Section 32.51, Penal Code, or a substantially similar   federal law or law in another state, for which the consumer was a   victim, accompanied by a statement identifying the consumer debt or   the portion of consumer debt that resulted from the offense;                (2)  a court order issued under Section 521.103,   Business & Commerce Code, or a substantially similar federal law or   law in another state, declaring the consumer a victim of identity   theft; or                (3)  if the consumer is a victim of family violence, a   victim of human trafficking, or a person with a disability, an   affidavit or unsworn declaration under Chapter 132, Civil Practice   and Remedies Code, declaring the consumer a victim of identity   theft.          (d)  An affidavit or unsworn declaration under Subsection   (c)(3) must include:                (1)  a statement that the consumer is a victim of   identity theft;                (2)  documentation verifying the consumer's identity,   which may include a copy of the consumer's passport or a copy of a   driver's license or state identification card issued to the   consumer by the Department of Public Safety;                (3)  a copy of a Federal Trade Commission identity   theft victim's report, completed, signed, and filed by the   consumer:                      (A)  affirming that the consumer is a victim of   identity theft; and                      (B)  identifying the consumer debt or affected   portion of the consumer debt incurred as a result of identity theft;   and                (4)  supporting documentation that the consumer is:                      (A)  a victim of family violence, as demonstrated   by:                            (i)  a copy of one or more of the following   orders protecting the tenant or an occupant from family violence:                                  (a)  a temporary ex parte order issued   under Chapter 83, Family Code;                                  (b)  a protective order issued under   Chapter 85, Family Code; or                                  (c)  an order of emergency protection   under Article 17.292, Code of Criminal Procedure; or                            (ii)  a copy of documentation of the family   violence against the tenant or an occupant from:                                  (a)  a licensed health care services   provider who examined the victim;                                  (b)  a licensed mental health services   provider who examined or evaluated the victim; or                                  (c)  an advocate as defined by Section   93.001, Family Code, who assisted the victim;                      (B)  a victim of human trafficking, as   demonstrated by:                            (i)  a determination from a federal, state,   or tribal governmental entity;                            (ii)  a determination from a nongovernmental   organization authorized to make a determination that a consumer is   a victim of human trafficking by a governmental entity under   Subparagraph (i);                            (iii)  a determination from members of a   human trafficking task force, including a victim service provider   affiliated with a nongovernmental organization or task force that   is authorized to make a determination that a consumer is a victim of   human trafficking by a governmental entity described by   Subparagraph (i);                            (iv)  a determination that the consumer is a   victim of human trafficking from a court of competent jurisdiction   in a case where the issue of whether the consumer is a victim of   human trafficking is a central issue of the case; or                            (v)  a statement attesting that the consumer   is a victim of human trafficking, signed or certified by the   consumer and a person described by Subparagraph (i), (ii), (iii),   or (iv); or                      (C)  a person with a disability.          (e)  A creditor, debt collector, or third-party debt   collector who receives notice that a consumer debt is a result of   identity theft from a victim of identity theft in accordance with   Subsection (c):                (1)  shall immediately cease efforts to collect the   disputed debt or disputed portion of the debt from the victim of   identity theft;                (2)  shall send to each person who has previously   received a report relating to that debt from the creditor, debt   collector, or third-party debt collector notice that the debt is   disputed under this section and not collectable from the victim of   identity theft;                (3)  may not sell the debt or transfer it for   consideration, except to collect the debt from a responsible person   other than the victim of identity theft; and                (4)  may, if the disputed debt or disputed portion of   the debt is secured by tangible personal property, enforce the   security interest under Chapter 9, Business & Commerce Code, but   may not collect or seek to collect any deficiency from the victim of   identity theft.          (f)  If a creditor, debt collector, or third-party debt   collector has a good faith reason to believe that a consumer has   disputed a consumer debt or portion of a consumer debt under this   section based on a material misrepresentation that the consumer is   a victim of identity theft, the creditor, debt collector, or   third-party debt collector may file suit in a court of competent   jurisdiction to collect the debt from the consumer, unless the   alleged perpetrator of identity theft is named in documentation   provided by the consumer under Subsection (c).          (g)  In a suit under Subsection (f), the creditor, debt   collector, or third-party debt collector must:                (1)  show by clear and convincing evidence that the   consumer is not a victim of identity theft; and                (2)  if the consumer prevails in the suit, pay the   consumer's court costs, attorney's fees, and damages.          SECTION 2.  This Act takes effect September 1, 2023.