Written by attorney R. Stephen Ferrell

The Texas Deceptive Trade Practices Act

What Is The “ Deceptive Trade Practices Act?"

The Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA") was enacted on May 21, 1973. 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.

Because the DTPA is very broad and is constantly being interpreted by the courts, it is impossible to explain its complete meaning and impact in this short description. If you believe that you are the victim of a deceptive trade practice, you should consult an attorney immediately.

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. “For example, an accountant can probably not be held liable for violating the DTPA if they give the wrong opinion. However, professionals can violate the DTPA by making misrepresentations of fact or breaches of warranty. For example, if an accountant lies about his qualifications to attract business, a customer probably has a DTPA claim."

The term “unconscionable" appears frequently in the DTPA, and in this handbook. The DTPA defines an “unconscionable action" as one that “takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree."

So what does this all mean?

The DTPA has a very broad application. The DTPA can be used by someone that is charged for an unnecessary $50 car repair; it can be used by someone buying a used car; it can be used by a homeowner buying a home; it can be used by a small business purchasing materials; it can be used by a business buying a $400,000 franchise; and it can be used in all transactions in between. Simply put, the DTPA was enacted to protect consumers in small transactions and businesses in rather large transactions.

Who Is Entitled To Protection Under the DTPA?

Other than the Texas Attorney General, only consumers are allowed to file under the DTPA. The phrase “consumer" means an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease any goods or services. It does not cover a business consumer that has assets of $25 million or more or that is owned or controlled by a corporation or entity with assets of $25 million or more.

Private Remedies

When consumers suffer actual damages, they may sue under the DTPA for any of the following:

  1. violations contained in the “laundry list", so long as the consumer relied on the act to his or her detriment;
  2. breach of an expressed or implied warranty;
  3. unconscionable action; and
  4. certain violations of the Texas Insurance Code.

What may you as a consumer expect to recover in the event you are successful in a DTPA lawsuit? First, the DTPA provides for recovery of economic damages. If the court finds the wrongful conduct was “knowingly" committed, it may award up to three times the amount of economic damages, in addition to damages for mental anguish. If the act was committed “intentionally," up to three times the mental anguish damages may be awarded. The question of whether a violation was “knowing" or “intentionally" is determined by the court or jury, after considering all the facts and circumstances relating to the transaction. Also, a consumer who prevails “shall be awarded court costs and reasonable and necessary attorney fees."

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.

Questions regarding the statute of limitations or time limit for filing suit are often difficult and confusing. Consulting an attorney is strongly advised. Remember that you should make your demands for correction of the problem or violation right after you discover it. If you do not get your complaint satisfied within a reasonable period of time, and after giving the alleged violator a good faith opportunity to make good, you should promptly contact a lawyer to protect your legal rights. In general, two years is the absolute maximum allowed for filing suit, but you should never wait to take action until the last minute, because you might be wrong, and thereby lose your legal rights.

When Should You Consult a Lawyer to Protect Your Rights?

The safest and simplest answer to this question normally is “as soon as possible." If you wait too long, you can lose all of your legal rights.

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