Capriglione Repair Bill Exempts Makers Who Keep Repairs “Solely In-House”

The text as introduced · 2,906 words

89R14269 SRA-F

By: Capriglione
H.B. No. 2963

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.