87R7954 JES-D
	By: Meza	H.B. No. 3198

	A BILL TO BE ENTITLED
	AN ACT
	relating to the diagnosis, maintenance, and repair of 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 113 to read as follows:
	CHAPTER 113. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL
	ELECTRONIC EQUIPMENT
	Sec. 113.001.  DEFINITIONS. In this chapter:
	(1)  "Authorized repair provider" means an individual
	or business entity that is not an affiliate of but has an
	arrangement with an original equipment manufacturer:
	(A)  under which the original equipment
	manufacturer grants to the individual or business entity 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)  to offer diagnosis, maintenance, or repair
	for digital electronic equipment services on behalf of the original
	equipment manufacturer.
	(2)  "Digital electronic equipment" means any product
	that, to function, depends wholly or partly on digital electronics
	embedded in or attached to the product.
	(3)  "Documentation" means any manual, diagram,
	reporting output, service code description, schematic, or other
	guidance or information provided to an authorized repair provider
	used in the diagnosis, maintenance, or repair of digital electronic
	equipment.
	(4)  "Embedded software" means any programmable
	instructions provided on firmware that is delivered with digital
	electronic equipment or with a replacement part for that equipment
	for the purpose of equipment operation, including all relevant
	patches and fixes made by the original equipment manufacturer of
	the digital electronic equipment or replacement part for that
	purpose.
	(5)  "Fair and reasonable terms" means:
	(A)  with respect to making available a
	replacement part or a tool that is not software, making the part or
	tool available:
	(i)  under costs and terms equivalent to the
	most favorable net cost and terms offered to an original equipment
	manufacturer's authorized repair provider for obtaining an
	equivalent part or tool, accounting for any discounts, rebates,
	means of enabling fully restored and updated functionality, rights
	of use, convenience of delivery, or other incentive program offered
	to the authorized repair provider, or any additional cost, burden,
	or impediment the manufacturer imposes on an independent repair
	provider;
	(ii)  without any condition, substantial
	obligation, or restriction that is not reasonably necessary to
	allow the owner or independent repair provider to engage in the
	diagnosis, maintenance, or repair of the manufacturer's digital
	electronic equipment; and
	(iii)  without conditioning that
	availability on the recipient being an authorized repair provider;
	and
	(B)  with respect to making available a tool that
	is software, making the tool available at no charge, without
	requiring authorization or Internet access, and without imposing
	any other impediment to access or use of the tool in a manner that
	impairs the efficient and cost-effective diagnosis, maintenance,
	or repair of the equipment; or
	(C)  with respect to making available
	documentation, including any relevant updates to the
	documentation, making the documentation available 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.
	(6)  "Firmware" means a software program or set of
	instructions programmed on digital electronic equipment or on a
	replacement part for the equipment that allows the equipment or
	replacement part to communicate with itself or other computer
	hardware.
	(7)  "Independent repair provider" means an individual
	or business entity operating in this state:
	(A)  who does not, on the individual or entity's
	own behalf or through an affiliate, have an arrangement with an
	original equipment manufacturer as described by Subdivision (1) and
	who is engaged in diagnosis, maintenance, or repair of digital
	electronic equipment; or
	(B)  that is an original equipment manufacturer,
	or who is an individual or business entity who has an arrangement
	with that original equipment manufacturer as described by
	Subdivision (1), only with respect to diagnosis, maintenance, or
	repair of digital electronic equipment not manufactured by or sold
	under the name of that original equipment manufacturer.
	(8)  "Manufacturer of motor vehicle equipment" means a
	business entity engaged in the business of manufacturing or
	supplying components that are used in the manufacture, maintenance,
	or repair of a motor vehicle.
	(9)  "Motor vehicle" means a vehicle that is designed
	for transporting individuals or property on a street or highway and
	is certified by the vehicle's manufacturer under all applicable
	federal safety and emissions standards and requirements for
	distribution and sale in the United States. The term does not
	include:
	(A)  a motorcycle; or
	(B)  a recreational vehicle or manufactured home
	equipped for habitation.
	(10)  "Motor vehicle dealer" means an individual or
	business entity who in the ordinary course of business:
	(A)  sells or leases new motor vehicles under a
	franchise agreement;
	(B)  holds a license issued under Chapter 2301,
	Occupations Code, and a general distinguishing number issued under
	Chapter 503, Transportation Code; and
	(C)  is engaged in the diagnosis, maintenance, or
	repair of motor vehicles or motor vehicle engines under the
	franchise agreement.
	(11)  "Motor vehicle manufacturer" means a business
	entity that manufactures or assembles new motor vehicles.
	(12)  "Original equipment manufacturer" means a
	business entity that sells, leases, or supplies new digital
	electronic equipment manufactured by or on behalf of the business
	entity.
	(13)  "Owner" means an individual or business entity
	who owns or leases digital electronic equipment purchased or used
	in this state.
	(14)  "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.
	(15)  "Tool" means any software program, hardware
	implement, or other apparatus used for diagnosis, maintenance, or
	repair of digital electronic equipment, including software or
	another mechanism that:
	(A)  provisions, programs, or pairs a new part;
	(B)  calibrates functionality; or
	(C)  performs any other function required to
	restore the equipment to fully functional condition.
	(16)  "Trade secret" has the meaning assigned by 18
	U.S.C. Section 1839, as that section existed on January 1, 2021.
	Sec. 113.002.  INAPPLICABILITY OF CHAPTER. This chapter
	does not apply to:
	(1)  a manufacturer of motor vehicle equipment;
	(2)  a motor vehicle manufacturer;
	(3)  a motor vehicle dealer acting in that capacity; or
	(4)  a product or service of an entity described by
	Subdivisions (1) through (3).
	Sec. 113.003.  REQUIREMENTS FOR ORIGINAL EQUIPMENT
	MANUFACTURERS. (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 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:
	(1)  documentation, replacement parts, and tools,
	including any updates to information or embedded software, for that
	equipment or replacement part; and
	(2)  for equipment containing an electronic security
	lock or other security-related function, any special
	documentation, replacement part, or tool needed to disable and
	reset the lock or function when disabled in the course of diagnosis,
	maintenance, or repair of the equipment.
	(b)  An original equipment manufacturer may make available
	the documentation, replacement part, or tool under Subsection
	(a)(2) through an appropriate secure release system.
	(c)  Notwithstanding Subsection (a), if an original
	equipment manufacturer provides an express warranty with respect to
	digital electronic equipment and the wholesale price of that
	equipment is at least $100, the manufacturer shall provide any
	replacement part, tool, or documentation to enable repair of that
	equipment during the manufacturer's warranty period at an equitable
	price, including convenience of delivery and enabling
	functionality, that takes into consideration:
	(1)  the actual cost to the manufacturer to prepare and
	distribute the part, tool, or documentation, without considering
	research and development costs;
	(2)  the ability of owners and independent repair
	providers to afford the part, tool, or documentation; and
	(3)  the means by which the part, tool, or
	documentation is distributed.
	(d)  This section does not require an original equipment
	manufacturer to make available a replacement part if the part is no
	longer available to the original equipment manufacturer.
	(e)  An original equipment manufacturer who offers the
	services of diagnosis, maintenance, or repair of the manufacturer's
	own digital electronic equipment, and who does not have an
	authorized repair arrangement with an individual or business entity
	that is not an affiliate, is considered to be an authorized repair
	provider with respect to that equipment.
	Sec. 113.004.  CONSTRUCTION OF CHAPTER. (a) Nothing in this
	chapter may be construed to require an original equipment
	manufacturer to divulge a trade secret to an owner or an independent
	service provider except as necessary to provide documentation,
	replacement parts, and tools on fair and reasonable terms as
	provided by this chapter.
	(b)  Nothing in this chapter may be construed to alter the
	terms of an arrangement described by Section 113.001(1) between an
	authorized repair provider and original equipment manufacturer,
	including the performance or provision of warranty or recall repair
	work by the authorized repair provider on behalf of the original
	equipment manufacturer under an arrangement described by Section
	113.001(1), except that any provision in 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.
	Sec. 113.005.  DECEPTIVE TRADE PRACTICE. A violation of
	this chapter is a deceptive trade practice in addition to the
	practices described by Subchapter E, Chapter 17, and is actionable
	under that subchapter.
	SECTION 2.  To the extent of a conflict between Chapter 113,
	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 3.  This Act takes effect September 1, 2021.