This article provides information on the Texas Deceptive Trade Practices Act (“DTPA”). The Act gives consumers a way to sue sellers for false, misleading and deceptive business practices.
Special thanks to the Houston Bar Association. This article excerpts from and summarizes the Deceptive Trade Practices Act section of the Consumer Law Handbook.
To be able to sue under the DTPA, you must be a “consumer.”
A “consumer” is defined as any individual, partnership, corporation, or governmental entity that seeks to acquire, by purchase or lease, any goods or services.
No. When you are ready to file a DTPA lawsuit, you cannot go straight to court and file your claim. The DTPA requires that you give written notice of your problem to the merchant or seller at least 60 days before you can file suit in court.
Generally, DTPA violations include deceptive or fraudulent business practices, including passing off goods or services as those of another, causing confusion about the source or sponsorship of goods or services, using false or misleading statements to sell goods or services, and taking advantage of disasters by charging exorbitant prices for necessities.
See Texas Business and Commerce Code 17.46(b) for a complete list of DTPA violations.
The DTPA is a broad consumer protection law that allows individuals to sue anyone who makes false, misleading, or deceptive statements in the course of business. This includes partnerships and corporations, as well as individuals. It is a violation of the DTPA to not disclose known defects if the reason for failing to disclose was to lure the consumer into the transaction. In this situation, silence can result in a violation of the DTPA.
The DTPA also protects against any act that would be considered unconscionable. Bear in mind that “unconscionability” is a difficult standard to meet. It is defined as an act or practice that, to a consumer’s detriment, takes advantage of a person's lack of knowledge, ability, experience, or capacity to a grossly unfair degree. Unconscionability sometimes arises when a savvy seller manipulates an unsophisticated buyer into purchasing an item the buyer does not really want or need.
The breach of an express or implied warranty is actionable under the DTPA. Warranties include:
You do not necessarily need a lawyer to use the Deceptive Trade Practices Act. If your damages are less than $20,000.00, you may represent yourself in justice court. However, suppose the damages you claim (up to three times your economic damages and court costs plus attorney’s fees) are greater than $20,000. In that case, the suit will go to district or county court, where a lawyer’s expertise will probably be needed.
You cannot go straight to court and file your claim. The DTPA requires that you give written notice of your problem to the merchant or seller at least 60 days before you can file suit in court.
Basically, this entails writing the seller specifying the situation and how you were damaged. Many times, once sellers are reminded that ultimately they may be liable for three times economic damages, court costs, and attorney’s fees for their misrepresentations, they will move very quickly to resolve the complaint. Thus, the written notice gives the consumer and the seller a chance to resolve the dispute without expensive and time-consuming litigation. Furthermore, be sure to send this written notice of claim by certified mail, return receipt requested. By sending it this way, you will have proof that you sent it and exactly who received it.
The written notice letter should include the following:
Consider making a settlement offer in the letter, or you can request that they fix the problem.