Vernon's Texas Civil Statutes

(1) "Person" means an individual, partnership, association, corporation, legal representative, trustee in bankruptcy, or receiver.

(2) "Fee" means anything of value. The term includes money or other valuable consideration or services or the promise of money or other valuable consideration or services received directly or indirectly by a personnel service from a person seeking employment in payment for a service.

(4) "Applicant" means a person engaging the services of a personnel service for the purpose of securing employment or a person placed by a personnel service with an employer.

(5) "Personnel service" means a person who for a fee or without a fee offers or attempts to procure directly or indirectly permanent employment for an employee or procures or attempts to procure a permanent employee for an employer. The term does not include a newspaper of general circulation or other publication that primarily communicates information other than information relating to employment positions and that does not purport to adapt the information provided to the needs or desires of an individual applicant. The term includes a person who offers the facilities of or advertises as:

(F) a resume service that provides job market investigation, research, or evaluation.

(6) "Counselor" means an individual who interviews and refers an applicant to a prospective employer or who solicits job orders from an employer.

(7) "Owner" means a person possessing a proprietary interest in a personnel service.

(8) "Service file" means a job order, resume, application, workpaper, or other record containing any information relating to an applicant, employer, or position or the operations of a personnel service.

(9) "Job order" means a verbal or written notification from an employer of a job opening.

(10) "Principal location" means the place at which the day-to-day business of the personnel service is operated. An owner may have more than one principal location.

(11) "Management search consultant" means a personnel service that is retained by, acts solely on behalf of, and is compensated only by an employer and that does not collect directly or indirectly any fee from an applicant on account of any service performed by the personnel service.

Sec. 1(5) amended by Acts 1987, 70th Leg., ch. 839, � 1, eff. Sept. 1, 1987; Sec. 1(12) amended by Acts 1989, 71st Leg., ch. 1039, � 2.01, eff. Sept. 1, 1989.

(1) a personnel service operated by this state, the United States government, or any municipal government of this state;

(2) a personnel service operated without assessment of a fee by a person in conjunction with the person's own business for the exclusive purpose of employing help for use in that business;

(4) a professional counselor licensed under the Licensed Professional Counselor Act (Article 4512g, Vernon's Texas Civil Statutes).

Sec. 2(a) amended by Acts 1987, 70th Leg., ch. 839, � 2, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1039, � 2.02, eff. Sept. 1, 1989.

Sec. 3. (a) A person who acts as a personnel service in the capacity of an owner, operator of the service, counselor, or agent or employee of the service may not:

(1) notwithstanding any refund policy, impose any fee on an applicant for employment until the applicant has accepted an offer of employment resulting from an employment referral made by the personnel service;

(2) engage or attempt to engage in splitting or sharing with an employer, an agent or other employee of an employer, or other person to whom the personnel service has furnished services a payment received by a personnel service from a person seeking employment or from an employer;

(3) make, give, or cause to be made or given to any applicant for employment any false promise, misrepresentation, or misleading statement or information;

(4) refer any applicant for employment except on a valid job order for the referral;

(5) advertise a position without there first being a valid job order verifiable by the employer;

(6) procure or attempt to procure the discharge of a person from his or her current employment;

(7) induce, solicit, or attempt to induce or solicit an employee to terminate his or her employment in order to obtain new employment if the employee's present employment was obtained by the efforts of the inducing or soliciting personnel service or any other personnel service having a common ownership with the inducing or soliciting personnel service unless the employee initiates the new contact;

(8) deliver, disclose, distribute, receive, or otherwise communicate any service file or any information contained in a service file to or from a person except as authorized by the personnel service owning the file;

(9) advertise in any medium, including a newspaper, trade publication, billboard, radio, television, card, printed notice, circular, contract, letterhead, and any other material made for public distribution, except an envelope, without clearly stating that the advertisement is by a firm providing a private personnel service;

(10) refer an applicant to a place where a strike or lockout exists without first furnishing the applicant a written statement of the existence of the strike or lockout if the personnel service has knowledge of the fact of the strike or lockout;

(11) refer an applicant to employment deleterious to his or her health or morals if the personnel service has knowledge of the deleterious condition of the employment; or

(12) charge a fee to an applicant of more than 20 percent of the applicant's gross wages if the position that the applicant accepted as a result of a referral by a personnel service lasts less than 30 calendar days and if the applicant leaves the position with good cause.

(1) make any false statement or conceal any material fact for the purpose of obtaining employees or employment by or through a personnel service; or

(2) engage or attempt to engage in the splitting or sharing of fees or payments for services of a personnel service with any person to whom this Act is applicable.

Sec. 4. A service file and its contents are trade secrets as defined by Section 31.05 of the Penal Code.

Sec. 5. A person who knowingly or intentionally violates or fails to comply with a provision of this Act commits an offense. An offense under this section is a Class A misdemeanor.

Sec. 6. (a) A person who violates a provision of this Act is liable to a person adversely affected by the violation for the amount of all actual damages produced by the violation. In the event a person adversely affected establishes that a violation was committed knowingly, the person shall be awarded three times the amount of actual damages. In this subsection, "knowingly" means actual awareness of the act or practice that is the alleged violation, but actual awareness may be inferred if objective manifestations indicate that a person acted with actual awareness.

(b) In an action filed under this section, a plaintiff who prevails shall receive court costs and attorney's fees reasonable in relationship to the amount of reasonably necessary work expended.

(2) any order necessary to restore to the person any property acquired by the defendant in the suit in violation of this Act; or

(3) other relief that the court considers proper, including the appointment of a receiver if the court's judgment against the defendant in the suit is not satisfied within three months after the date of the final judgment, the revocation of a certificate authorizing the defendant in the suit to engage in business in this state, or an order enjoining the defendant in the suit from acting as a personnel service.

(d) If a court finds that a civil action filed under this section is groundless and brought in bad faith or for the purpose of harassment, the court may award court costs and reasonable attorney's fees to the defendant.

(e) A violation of this Act is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code. A public or private right or remedy authorized by the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) may be used to enforce this Act.

(f) This Act does not affect any public or private remedy or enforcement power available under other laws.

Sec. 6A. (a) The commissioner shall enforce Section 3(a)(1) of this Act and may investigate any personnel service as necessary to enforce that prohibition. On request the attorney general shall assist the commissioner.

(b) A person by sworn affidavit may file a complaint alleging a violation of Section 3(a)(1) of this Act with the commissioner. The commissioner shall investigate the alleged violation on receipt of the complaint. On receipt of a complaint, the commissioner may inspect any records relevant to the complaint and may subpoena those records and any necessary witnesses.

(c) If, as a result of an investigation, the commissioner determines that a violation may have occurred, the commissioner shall hold a hearing in the manner provided for a contested case under the Administrative Procedure and Texas Register Act (Article 6252�13a, Vernon's Texas Civil Statutes). The hearing must be held not later than the 45th day after the date on which the complaint is filed with the commissioner. The commissioner shall render a decision on the alleged violation not later than the eighth day after the date on which the hearing ends.

(d) If, after the hearing, the commissioner determines that the personnel service has violated Section 3(a)(1) of this Act, the commissioner may, as appropriate:

(2) suspend or revoke the certificate of authority issued to the personnel service under Section 7 of this Act.

(e) Repealed by Acts 1989, 71st Leg., ch. 1039, � 5.01(7), eff. Sept. 1, 1989.

Sec. 6B. (a) If, after a hearing conducted under Section 6A of this Act, the commissioner determines that a personnel service has violated Section 3(a)(1) of this Act, the commissioner may award the complainant damages in an amount equal to the amount of the fee charged by the personnel service. The commissioner may also impose a penalty on the personnel service equal to twice that amount, which shall be deposited in the state treasury to the credit of the general revenue fund.

(b) A penalty imposed under this section is in lieu of a criminal penalty provided under this Act for a violation of Section 3(a)(1) of this Act. Damages otherwise recoverable in a suit under Section 6 of this Act are subject to reduction by the amount of any damage award under this section based on the same conduct.

Sec. 7. (a) Any person desiring to own a personnel service that is to operate in this state shall file notification of that fact with the commissioner. The notice shall be filed by the owner of the personnel service not later than the 30th day before the commencement of the operation. The notice shall include the principal location of the personnel service, the name and residence address of each owner, the assumed name, if any, under which the personnel service is to operate, and a statement that each owner has read and is familiar with the provisions of this Act. The notice shall be signed and sworn to by the owner before a notary public or other officer authorized to administer oaths.

(b) The notice shall be accepted by the commissioner, and on payment of a filing fee, the commissioner shall issue to the owner a certificate of authority to do business as a personnel service in this state not later than the 15th day after the day of the filing.

(c) The owner shall file with each notification or renewal a good and sufficient bond executed by the applicant with a good and sufficient surety in the sum of $5,000 payable to the State of Texas, conditioned that the obligor will not violate any of the provisions of this Act. The bond shall recite that any person injured or aggrieved by any violation of this Act by the principal or his or her agents or representatives is entitled to bring suit on the bond. One bond is sufficient if an owner has more than one principal location. The commissioner may not issue the certificate of authority until the bond is filed. An owner may deposit $5,000 in cash in lieu of the bond.

(d) The certificate of authority shall be valid for the period set by the commission. It shall be displayed in a prominent place in the principal location of the personnel service.

(e) Renewals of the certificate of authority shall be issued by the commissioner on the filing by an owner of a notice containing the same information specified in Subsection (a) of this section and on the receipt by the commissioner of the renewal fee.

(f) If the commissioner revokes a certificate of authority under Section 6A of this Act, the personnel service whose certificate is revoked and any owner of that personnel service are not eligible to apply for a new certificate until the expiration of three years from the date of the revocation.

Sec. 7(b), (e), (f) amended by Acts 1987, 70th Leg., ch. 839, � 6, eff. Sept. 1, 1987; Sec. 7(b), (d), (e) amended by Acts 1989, 71st Leg., ch. 1039, � 2.03, eff. Sept. 1, 1989.

Sec. 7A. The commissioner may recognize, prepare, or administer continuing education programs for persons regulated under this Act. Participation in the programs is voluntary.

Sec. 8. The commissioner shall deposit all money received by him or her from fees under this Act in the State Treasury to the credit of the General Revenue Fund.

Acts 1979, 66th Leg., p. 570, ch. 263, �� 1 to 8, eff. Aug. 27, 1979. Amended by Acts 1983, 68th Leg., p. 377, ch. 81, � 11(a), eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 239, � 36, eff. Sept. 1, 1985.

(1) "Career counseling service" means a person who, for compensation, provides a service designed to assist a client in the development or marketing of the client's career, including:

(B) the assessment of the marketability or income potential of a proposed career;

(2) "Client" means an individual who contracts to use the services of a career counseling service.

(6) "Person" means an individual, association, corporation, or other legal entity.

(1) a person regulated by Chapter 263, Acts of the 66th Legislature, Regular Session, 1979 (Article 5221a�7, Vernon's Texas Civil Statutes);

(2) a personnel service operated by the United States, this state, any political subdivision of this state, or any organization receiving appropriated funds from or under contract with those governmental entities;

(3) a professional counselor licensed under the Licensed Professional Counselor Act (Article 4512g, Vernon's Texas Civil Statutes);

(4) a nonprofit organization qualifying under Section 501(c)(3) of the Internal Revenue Code of 1986, providing a service described in this Act as part of its charitable purposes; or

(5) a person licensed as a psychologist under the Psychologists' Certification and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes) when practicing within the scope of the license.

Sec. 3. (a) A person may not own or operate a career counseling service in this state unless the person holds a certificate of authority issued under this Act. To obtain a certificate of authority, the owner must file a sworn application with the commissioner accompanied by the required application fee. The application must be in the form prescribed by the commissioner and must state:

(3) the assumed name, if any, under which the career counseling service is to operate.

(b) The application must also include a statement indicating that the owner has read and is familiar with the provisions of this Act. If the applicant is a corporation, the statement must be signed by each officer. If the applicant is an association or partnership, the statement must be signed by each associate or partner.

(c) Before a certificate of authority is issued, the owner must obtain and file with the department a bond in the amount of $10,000, executed by a surety company authorized to do business in this state, payable to the state, and conditioned on the faithful performance of the owner's obligations under this Act. The owner must file a separate bond for each business location. The commissioner may not issue a certificate of authority until the bond is filed. Instead of the bond, an owner may deposit for each business location $10,000 in cash.

(d) The commissioner shall issue a certificate of authority to do business as a career counseling service to an applicant who meets the requirements of this section. The commissioner shall process a certificate application not later than the 15th day after the date on which the application is filed. The commissioner may adopt rules relating to the administration and enforcement of the certificate of authority program created under this Act.

(e) A certificate of authority is valid for the period set by the commission. The owner shall display the certificate in a prominent place in the principal location of the career counseling service.

Sec. 4. Each career counseling service must file an annual financial statement with the department.

Sec. 5. (a) Each career counseling service must adopt a program for consumer complaint resolution. The service must respond to each complaint within 48 hours from its receipt in writing and must resolve the complaint not later than the 10th day after the date on which the complaint is received. If the complaint cannot be resolved by the service within that period, the service must refer the complaint to outside arbitration with a qualified arbitration organization recognized by the department and must resolve the complaint not later than the 30th day after the date on which the complaint is referred for arbitration. An arbitrator may recommend a refund on a pro-rata basis if it is determined that a consumer's complaint is valid.

(b) Each career counseling service must display a notice in the main office of the service that states the telephone number of the department and indicates that a complaint may be referred to the department.

(c) Each career counseling service must provide information to a consumer on request relating to the credentials of each consultant employed by the service and the number of consultants available in the immediate area through the service.

Sec. 6. (a) A career counseling service must be able to prove the truth of every claim made by the service in any form of literature offered by the service, any medium of advertising, or in an interview. Literature and other advertising must state the length of time that the career counseling service has been in business.

(b) A career counseling service must state its certificate of authority number in any advertising.

Sec. 7. (a) An owner of a career counseling service or an agent or employee of the owner may not offer or imply any guarantee, either in advertising or in interviews, that a consumer will obtain a job through the service.

(b) A career counseling service must provide a copy of the service contract to the consumer at the first interview. A career counseling service must hold at least two interviews with a consumer before entering a contract with that consumer.

Sec. 8. (a) A career counseling service must provide a completed copy of a proposed written contract to a client before the contract is signed. The written contract constitutes the entire agreement between the service and the client. The contract must be signed by the client. The contract must be written in clear language and must specify the terms and time schedule for payment for services, as well as what services are included for the payment.

(c) Each contract must include the following statement printed in a least 10�point type that is boldfaced, capitalized, underlined, or otherwise set out from surrounding written material so as to be conspicuous:

(1) DO NOT SIGN THIS CONTRACT UNTIL YOU HAVE READ IT OR IF IT CONTAINS BLANK SPACES.

(2) IF YOU DECIDE THAT YOU DO NOT WISH TO PURCHASE THE SERVICES OF THIS CAREER COUNSELING SERVICE, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE SERVICE BY MIDNIGHT NOT LATER THAN THE THIRD BUSINESS DAY AFTER THE DATE ON WHICH YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THE CONTRACT. THE WRITTEN NOTICE MUST BE SENT BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:

(3) IF YOUR COMPLAINT IS NOT RESOLVED TO YOUR SATISFACTION BY THE SERVICE, YOU MAY RESOLVE YOUR COMPLAINT THROUGH ARBITRATION BY CONTACTING THE FOLLOWING ASSOCIATION:

Sec. 9. (a) A client may cancel a contract before the fourth business day after the date on which the contract is signed by notifying the career counseling service of the cancellation in writing. Written notification is considered given if the notification is mailed by certified mail to the home office of the career counseling service and postmarked not later than midnight of the third business day. The career counseling service shall refund all money paid by the client exercising the right to cancel.

(b) A client may cancel a contract if the client decides not to use the services or determines that the career counseling service is not offering suitable services under the contract. The client is liable for an amount equal to the value of services received under the contract up to the day on which the contract is canceled.

(c) A career counseling service shall make a refund required under this section not later than the 31st day after the date the service receives the notice of cancellation.

Sec. 9A. The commissioner may recognize, prepare, or administer continuing education programs for persons regulated under this Act. Participation in the programs is voluntary.

Sec. 10. A violation of this Act is a false, misleading, or deceptive act or practice within the meaning of Section 17.46, Business & Commerce Code. A public or private right or remedy authorized by the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) may be used to enforce this Act.

Sec. 11. (a) The commissioner shall enforce this Act and may investigate any career counseling service as necessary. On request the attorney general shall assist the commissioner.

(b) A person by sworn affidavit may file a complaint alleging a violation of this Act with the commissioner. The commissioner shall investigate the alleged violation on receipt of the complaint. On receipt of a complaint, the commissioner may inspect any records relevant to the complaint and may subpoena those records and any necessary witnesses.

(d) If, after the hearing, the commissioner determines that the career counseling service has violated this Act, the commissioner may, as appropriate:

(2) suspend or revoke the certificate of authority issued to the service under Section 3 of this Act.

(e) Repealed by Acts 1989, 71st Leg., ch. 1039, � 5.01(8), eff. Sept. 1, 1989.

Sec. 12. If, after a hearing conducted under Section 11 of this Act, the commissioner determines that a career counseling service has violated this Act, the commissioner may award the complainant damages in an amount equal to the amount of the fee charged by the service. The commissioner may also impose a penalty on the service equal to twice that amount, which shall be deposited in the State Treasury to the credit of the General Revenue Fund.

Sec. 13. If the commissioner revokes a certificate of authority under Section 11 of this Act, the career counseling service whose certificate is revoked and any owner of that service is not eligible to apply for a new certificate until the expiration of three years from the date of the revocation.

Acts 1987, 70th Leg., ch. 222, �� 1 to 13, eff. Sept. 1, 1987. Sec. 1(3), (4) amended by Acts 1989, 71st Leg., ch. 1039, � 2.05, eff. Sept. 1, 1989; Sec. 3(e) amended by Acts 1989, 71st Leg., ch. 1039, � 2.06, eff. Sept. 1, 1989; Sec. 8(c) amended by Acts 1989, 71st Leg., ch. 622, � 5, eff. Sept. 1, 1989; Sec. 9A added by Acts 1989, 71st Leg., ch. 1039, � 2.07, eff. Sept. 1, 1989; Sec. 11(e) amended by Acts 1989, 71st Leg., ch. 1039, � 5.01(8), eff. Sept. 1, 1989. Sec. 2 amended by Acts 1993, 73rd Leg., ch. 469, � 1, eff. June 9, 1993.