I. Why Do We Need the Deceptive Trade Practices Act?

A. How Widespread Is Fraud in the United States and Does It Show Any Sign of Stopping?

Fraud, scams, deception, and other equivalent predatory behaviors have plagued society throughout history.[1] When self-interested individuals are given the opportunity, they will prey on the trusting and the vulnerable. Currently, deceptive acts show no signs of stopping, and the monetary loss to consumers is instead growing.[2] From 2023 to 2024, the Federal Trade Commission (FTC) reported a growth in consumer losses of over 20%, resulting in $12 billion lost from scams in 2024.[3]

The top types of frauds reported in 2024 were: (1) imposters; (2) online shopping; (3) business and job opportunities; (4) investments; and (5) internet services.[4] Nearly twenty years ago, in 2006, the risks of technological advances making consumer fraud easier to do at a large scale were explored.[5] With online shopping being the second largest perpetuator of fraud, and the other categories also being exploitable through the internet, the risk of technological advancement increasing fraud is an ever increasing concern.[6] Fraud cannot be perpetrated absent consumers to target, and as access to and use of the internet increases, so too does the pool of vulnerable consumers. Unfortunately, the FTC has not released new numbers showing what percent of the population has been victim to consumer fraud since 2017, so it is difficult to tell if the number of individuals impacted is growing or just the money lost to fraud each year.[7] The FTC’s 2017 study found that nearly 16% of the adult population had been a victim of some form of consumer fraud.[8]

Although the risks of fraud increase as technology improves, our ability to prevent this fraud improves as well.[9] Many aspects of consumer fraud have been addressed including “consumers’ ability to perceive defects, characteristics of victims, and criminal justice system responses.”[10] Nonetheless, the fraudsters appear to be winning this war as evidenced by the increasing losses year to year.[11] Although understanding how the crimes occur is an important part of the equation, implementing systems to deter crimes and protect victims from those crimes is equally important.

A good example for what the law should do to protect consumers is shown from what Professor Kristy Holtfreter—an internationally recognized expert in criminology—suggests is done by criminologists.[12] Professor Holtfreter suggests that instead of solely focusing on the individuals who are victimized, research efforts should focus on what failings in governmental agencies are allowing these individuals to be targeted.[13] Although Professor Holtfreter has a point in focusing on the governmental failings that allow certain demographics to be targeted, these failings cannot be identified without first studying which groups are in fact most targeted.

B. What Groups Are Most Affected by Fraud and How Is Texas Impacted in Particular?

As of 2017, minority groups were disproportionately targeted by consumer fraud.[14] When comparing African-Americans, Hispanics, Asians, and others to whites, the relative victimization was 128.9%, 116.1%, 63.1%, and 154.4%, respectively.[15] Age is a surprisingly negligible risk factor despite the common assumption that elderly individuals are much more likely to be victims of scams.[16] The ages most likely to be victimized were those between the ages of thirty-five and thirty-four.[17] Looking at income, those making between $36,000 and $59,999 a year were most at risk, with those making between $60,000 and $89,999 a year following closely behind.[18] Shockingly, when compared to college graduates, people who never graduated high school fare better than those who graduated high school or had some amount of higher education.[19]

These statistics were all computed with sample sizes above, but near, 3,500 individuals.[20] As such, the numbers should be considered with this limitation in mind. Furthermore, as of 2021, people sixty years or older are 34% less likely to report consumer fraud to the FTC than their younger counterparts, which could result in deflated numbers.[21] The FTC has not published any data suggesting whether poorer individuals or minorities are also less likely to report fraud, but that possibility could affect the data.

Considering that combating fraud in Texas is the focus of this Comment, you might be asking, how does Texas fare in all these statistics? Although the data shows that fraud is a major nationwide problem, does that problem extend to Texas in particular? With 462,667 reports of fraud in 2024, Texas is ranked as the sixth most targeted state nationwide on a per capita basis—about 1,561 reports per 100,000 people.[22] This means those living in Texas have about a 1 in 100 chance of experiencing some sort of fraud, not even accounting for those who don’t report fraud.[23] The monetary loss of Texans in 2024 comes out to $897.9 million, with the median amount per loss being around $500.[24] Texas still has a long way to go to eliminate fraud considering these numbers, and one of the best tools available to do that is the Deceptive Trade Practices Act (DTPA).[25] However, if the DTPA is to be effective, there must be careful consideration of the data discussed so far to ensure potential remedies serve all groups affected, not just the wealthy.

C. How Should the Groups Affected by Fraud Inform a Proper Construction of the DTPA?

The DTPA must consider who is likely to be a victim of fraud to inform which legal remedies will be the most effective for the majority of people. For example, a 2017 study “shows that approximately 80 percent of low-income individuals cannot afford legal assistance.”[26] Similarly, about 40% to 60% of the middle class cannot afford assistance either.[27] Viewing this lack of representation in tandem with the disproportionate fraud on groups making between $36,000 and $59,999 a year, a serious problem is revealed.[28] Not only are these groups disproportionately targeted, but they cannot afford legal representation to pursue a remedy for the fraud. As a result, the remedies created under the DTPA for individual enforcement do not provide adequate protection for a substantial portion of consumers.[29]

Another problem with individual or private action under the DTPA is that many scams are profitable by casting a very wide net and scamming many individuals for smaller amounts of money.[30] In 2024, the median loss was only $500 despite the total loss being nearly $900 million.[31] The tool normally used to help a class of people that all incur small losses is a class action.[32] So, not only can a substantial number of people impacted by fraud not afford legal assistance, but even if they could, the on-average small loss sustained would make legal action untenable.

Where private enforcement fails, public enforcement should step in. The drafters of the DTPA accounted for the importance of creating a public enforcement mechanism through sections 17.47 and 17.48 of the DTPA.[33] Section 17.47 enables the Consumer Protection Division (CPD) of the attorney general’s office to pursue action against fraudsters.[34] Section 17.48 is similar; however, it deals with a district or county attorney’s ability to enforce the DTPA.[35] Before getting too deep into each of these sections, and how they can potentially act as pseudo class actions to advocate for those who cannot do so for themselves, a general understanding of how the DTPA was enforced in the past and is enforced now is essential.

II. The Evolution of the DTPA

A. The DTPA in Its Infancy

The DTPA was originally enacted in 1973 and in large part was a response to bribery allegations levied against elected officials after the public discovered some suspect stock exchanges.[36] This became known as the “Sharpstown Scandal” because the bribery allegations—later shown to be more than simple allegations—were financed by an individual named Frank Sharp.[37] A series of lawsuits arose from this scandal, and when the dust settled after the 1972 election, there were major changes to the representative body.[38] The changes included a new attorney general who would become an important advocate for adopting the original DTPA.[39]

With the inception of the DTPA being from such a serious public scandal, the original Act was aggressively aimed at preventing fraud. This aggressive purpose led to a retrospectively damaging Texas Supreme Court decision, Woods v. Littleton.[40] In Woods, the court held that actual damages awarded under the DTPA should automatically be trebled pursuant to the purpose of the DTPA.[41] Considering the number of businesses potentially exposed by the DTPA and the substantial damages being awarded after this decision, businesses started to lobby against the DTPA.[42] The result of this pressure was a revision to the DTPA in 1979, which reversed the decision in Woods to automatically treble damages under the DTPA.[43]

While an automatic trebling of damages is excessive and a revision was wise, a focus on preventing fraud was arguably replaced with a concern for businesses.[44] After these changes, treble damages were still available if the fraudster knowingly deceived the consumers.[45] Co-author of the DTPA, Joe K. Longley claims that “even with its numerous amendments, the DTPA has remained a viable and effective consumer remedy over the past 50 years.”[46] Longley similarly states that “[a]lthough today’s reported DTPA cases are fewer in number, there are no indications that the DTPA has outlived its usefulness.”[47]

Although Longley is correct that the DTPA has not outlived its usefulness, it is by no means sufficient. The diminishing number of DTPA cases paired with increasing fraud and vulnerable groups’ inability to seek legal aid leaves many Texans helpless victims to fraud.[48] There remains an open question on whether this “failure of the DTPA” should be ascribed to the Act itself or the current enforcement of the act by the CPD of the attorney general’s office.[49]

B. Public Enforcement of the DTPA Today

Although much of the DTPA is focused on private individuals pursuing action, that is not the focus of this Comment.[50] Private remedies leave behind the individuals who cannot afford legal action and let the fraudsters who steal smaller sums of money continue to wreak havoc on large populations.[51] Public remedies, which consist of actions instituted and pursued by the government rather than individuals, are necessary to fill this void.

Currently, public enforcement is done through a combination of sections 17.46 through 17.48 of the DTPA.[52] Section 17.46 outlines the specific types of deceptive practices that are covered by the DTPA.[53] Section 17.47 discusses the remedies that the CPD can pursue.[54] Despite the language in Section 17.47 that the CPD can bring an action “in the name of the state,” Section 17.47 largely functions as a pseudo class action.[55] Essentially, one lawsuit is filed to produce remedies for many individuals who were harmed by a single entity.[56] Section 17.48 ropes county attorneys into the DTPA as an additional way to pursue public remedies.[57] County attorneys are given the authority to use Section 17.47 through Section 17.48, though arguably only parts of Section 17.47.[58]

By understanding Section 17.48 to only allow a limited use of Section 17.47, namely the injunctive provisions, county attorneys do not have proper incentives to utilize the DTPA.[59] If county attorneys cannot collect civil penalties like the CPD can through Section 17.47, the cost of litigation is simply not worth the fines levied towards the fraudsters.[60] Using injunctive relief only, the fines are limited to a maximum of $10,000 per violation—not to exceed $50,000.[61] This amount has not been changed since at least 2003, despite a slight amount of inflation since then.[62] Not only is this penalty tiny compared to the level of fraud we see today, but the penalty only occurs if an injunction is violated.[63] A county attorney would have to go through the entire litigation process, get an injunction granted, and then the offender would again have to violate that injunction to have any monetary penalty for the fraudster.[64] As a result, Section 17.48 is almost never used.[65]

Section 17.48(a), which allows the CPD to request county attorneys to assist them in litigation, is the most used provision in the section.[66] Even still, the CPD rarely requests this, and usually handles actions alone under Section 17.47.[67] Conversely, county attorneys can request that the CPD give them assistance in these actions, but there is no evidence of any county attorneys doing this.[68] Two issues with this provision make it go unused. The first is that it is untested. No available case law shows district or county attorneys requesting assistance, and there is only one case where the CPD pursued action and requested the assistance of district or county attorneys.[69] The second issue is that the CPD is very small, with only sixty-five employees as of 2022.[70] They do not have the resources to handle nearly any, let alone a substantial amount, of these fraud cases. It is unclear why staffing is this minimal, but more help is needed.

From 2016 to 2021 there have been over 150,000 complaints submitted to the CPD.[71] The CPD has managed to secure $60.4 million worth of restitution from 2017 to 2021; however, this is a small fraction of the reported fraud in 2024 alone.[72] The documented loss from fraud in Texas for 2024 was $897.9 million, making the $60.4 million in restitution over a five-year period under 7% of a single year’s losses.[73] While $60.4 million is a substantial amount of money—and likely shows that the CPD is targeting the largest fraudsters they can—the majority of the consumers in Texas are still left to fend for themselves.[74] This issue is best summarized in the words of former chief of the CPD, Paul Singer, who when asked about the issue stated, “There’s always more work to be done than anyone can possibly do.”[75]

The trend of consumers being left behind is born out not only in data, but through the frustrations expressed by the public. One individual, Cheryl Tarver, encountered severe price gouging in 2021 as COVID issues were near their peak.[76] Tarver wanted to buy hand sanitizer and after being met with absurd prices decided to file a complaint with the attorney general’s office; Tarver never heard back.[77] This problem was explored extensively by Ted Oberg and Sarah Rafique with ABC.[78] In an attempt to find out what happened to complaints like Ms. Tarver’s, Oberg repeatedly tried to request an interview with the CPD and eventually had to send open records requests to gather the information.[79] A failure to respond, though speculative, could be an indication of the CPD’s own knowledge that they could be serving consumers better; it is, at the very least, an indication that the office is stretched too thin.

Within the last five years, Oberg found that consumer complaints have gone up by 26%; however, most people receive no help on the issues reported.[80] Out of a forty-five consumer sample in Houston, filing complaints rarely resulted in help for the consumer’s problem, with forty-one people receiving no help, and only two people receiving help from the CPD directly.[81] Surprisingly, the CPD itself does not track, and is unaware of, how many people who filed complaints have been helped.[82] Defrauded consumers much like Tarver are left feeling like “[t]hey’re just going to give you the runaround . . . . They’re not going to call you back. They’re not going to help.”[83] Since 2019, there have only been ninety cases that resulted in either a judgment or settlement, despite there being over 100,000 individual complaints filed in that period.[84]

The attorney general’s office has stated that “some of [its] most notable work on behalf of consumers . . . cannot be directly tied to consumer complaints.”[85] A $1.7 billion settlement concerning opioid manufacturers was given as one example.[86] While the attorney general’s office has tried to steer clear of representing defrauded individuals, someone must fill this role, and the DTPA recognizes that need.[87] Through the CPD’s citation to restitution granted in touting their success, there is at least some acknowledgement that helping individuals is the underlying goal. Nonetheless, the CPD currently fails to help most defrauded consumers—and as a result—the current public enforcement of the DTPA must be reexamined.

III. Public Enforcement of the DTPA in the Future

While there are a multitude of potential solutions to afford greater protection to consumers, many likely cannot be implemented without burdensome action.[88] Rather than exploring these, the most tenable solution is the one that has arguably been available and sitting on the sidelines since the DTPA was enacted—the county attorney. With 254 counties in Texas, there are nearly four times as many counties (and thus county attorneys) than there are employees in the CPD.[89] As previously mentioned, the current use of county attorneys is highly limited.[90] However, with a proper reading of the DTPA, the county attorney should have far more power than they have utilized in the past. Most importantly, county attorneys should be able to step in for the CPD under Section 17.47 and utilize the civil penalties provision, making litigation worthwhile.[91]

When considering the arguments below, keep in mind section 17.47 is the source of the CPD’s authority in the DTPA.[92] Section 17.48 on the other hand is the source of authority for the county attorneys.[93] Similarly, note that Section 17.47 plainly supports that county attorneys can request penalties for violations of injunctions.[94] The arguments below are in support of county attorneys being able to request non-injunctive civil penalties as well. However, to argue county attorneys should be able to request non-injunctive civil penalties, they must be given the authority for such requests. Upon a plain reading of the statute, this seems to be restricted to the CPD only.[95] Thus, all constructions showing that the county attorney and the CPD should be interpreted as one entity indicate that county attorneys may request non-injunctive civil penalties, and all constructions separating the two say otherwise.

A. Why Should the DTPA Be Construed to Allow County Attorneys to Step in for the CPD Under Section 17.47?

Section 17.48(b) states that “[county attorneys] may institute and prosecute actions seeking injunctive relief under [Subchapter E], after complying with the prior contact provision of Subsection (a) of Section 17.47 of this subchapter.”[96] Looking at this provision alone, the statute seems very clear; county attorneys may only seek injunctive relief.[97] Despite the statutory interpretation principle to interpret a statute according to its “plain meaning,” doing so in this case would result in an untenable statute and entirely defeat the purpose of the DTPA.[98] Interpreting the DTPA to allow county attorneys to request civil penalties is founded in reading section 17.48(b) to give county attorneys the full power of section 17.47, essentially merging the CPD and county attorneys as one.[99]

Reading the CPD and county attorneys as having the same authority under Section 17.47 is proper because (1) the Texas Legislature intended the language “Consumer Protection Division” in Section 17.47 to include county attorneys; (2) the Texas Legislature intended “injunctive relief” under Section 17.48 to include non-injunctive civil penalties; and (3) the State’s legislative history from the DTPA’s enactment shows legislative intent to allow county attorneys to request civil penalties.[100]

While county attorneys being able to pursue civil penalties against future fraudsters is valuable, the over 150,000 individuals defrauded since 2016 should not be forgotten.[101] Luckily, if valid, this interpretation is both forward and backward looking because of a very favorable statute of limitations for government entities.[102]

1. The Texas Legislature Intended the Language of “Consumer Protection Division” in Section 17.47 to Include County Attorneys

County attorneys are explicitly designated authority to institute actions seeking injunctive relief under Section 17.48(b) so long as they provide “prior written notice to the consumer protection division.”[103] Similarly, if a county attorney files a suit on their own, they must provide the CPD a full report afterwards.[104] Along with the notice requirement in Section 17.48(b), subsections (a) and (b) impose mutual requirements on the CPD and county attorneys to lend each other assistance in any suits under Subchapter E of the DTPA—if requested by either party.[105] The county attorneys’ power is colored by its requirement to report and give support to the CPD. If the CPD and county attorneys were intended to be wholly separate, county attorneys would likely not function as an extension of the CPD in this way. Both the CPD and county attorneys are arms of the government charged with serving the general public’s interests. It is counterintuitive to ask an entity to serve the public without providing the proper tools to do so.[106]

The Texas Legislature’s intent to equate county attorneys and the CPD under Section 17.47 is further shown by a series of connections between Section 17.47 and 17.48. Section 17.48(b)'s authorization to seek injunctive relief is limited to relief “under [Subchapter E].”[107] Other than Section 17.48(b) itself, injunctive relief is only mentioned in Section 17.47(a), making the subsection the definitive source of this relief.[108] Section 17.48 is also connected with Section 17.47 because Section 17.48(b) states that injunctive relief within Subchapter E is only available after complying with Section 17.47(a)'s prior contact provisions.[109] By Section 17.48(b) granting access to “injunctive relief,” Section 17.47(a) must be implicated; the question that remains is what other parts of Section 17.47 are accessible by the county attorney, if any.

Along with subsection (a), Section 17.47 has subsection (b), which describes the jurisdictional limitations on actions brought under subsection (a); (c), which gives the CPD authority to request non-injunctive civil penalties; (d), which gives the court authority to grant additional orders or judgments as needed for compensating consumers; (e) and (f), which together define what civil penalties should be levied when an injunction is violated; (g), which defines how to calculate civil penalties under subsection (c); and (h), which describes the CPD as acting in the name of the state and does not establish any attorney–client relationships when taking action under this subchapter.[110]

Section 17.47(b) should be available to—and necessary for—the county attorney because it defines limits on actions brought under subsection (a), which the county attorney must utilize when acting under the DTPA. While subsection (a) could function without the limitations of subsection (b), that would give the county attorneys more power than the CPD, which is nonsensical.[111] A similar issue is seen in subsection (d), which, while primarily about relief from the court, also restricts damages to offenses that occurred no earlier than two years before the institution of the suit by the CPD.[112] Would the Texas Legislature really want to subject the CPD to this statute of limitations and not county attorneys?[113] These one-sided restrictions when reading the CPD and county attorneys as separate entities are also found in other portions of Subchapter E, namely, Section 17.464. Section 17.464 is a special provision created to deal with the deceptive act of charging unconscionable prices for care at emergency facilities.[114] Section 17.464(c) states that “[t]he consumer protection division may not bring an action under Section 17.47,” along with specific limitations on the CPD’s ability to utilize Section 17.464.[115] County attorneys are permitted to seek any injunctive relief under Subchapter E.[116] As such, if county attorneys and the CPD were not treated synonymously in Section 17.47 and throughout Subchapter E, they would have fewer restrictions when acting under Section 17.464.

Transitioning back to Section 17.47, county attorneys should also be able to utilize subsection (d) the same as the CPD because its primary purpose deals with the courts, not the plaintiff of the action.[117] Subsection (d) affords the court specific powers for any actions brought under Section 17.47.[118] Considering subsection (d) affords no rights to the party bringing the action, there is no reason to think its application changes based on that party, and thus, subsection (d) should apply whether the CPD or a county attorney files a suit.[119]

Subsections (e) and (f) should similarly both be available to the county attorney because they deal with the penalties for violating an injunction, and are therefore part of the injunctive relief afforded in Section 17.48(b).[120] Furthermore, subsection (e) references county attorneys when it states “in these cases, the consumer protection division, or the district or county attorney with prior notice to the [CPD], acting in the name of the state, may petition for recovery of civil penalties [for violating an injunction] under this section.”[121]

Subsection (h) states that “[i]n bringing or participating in an action under this subchapter, the consumer protection division acts in the name of the state and does not establish an attorney–client relationship with another person.”[122] At first glance, this provision would seem to only apply to the CPD, but based on subsection (e) stating “the district or county attorney with prior notice to the consumer protection division, acting in the name of the state,” that cannot be the case.[123] Would county attorneys act in the name of the state in subsection (e) for injunctive penalties, but when it comes to establishing an attorney–client relationship in subsection (h), they would not? Probably not. Instead, the Texas Legislature likely intended the CPD and the county attorney to be read as one in subsection (h). So far, all the subsections in Section 17.47 discussed likely apply to county attorneys despite Section 17.48(b)'s language simply affording access to “injunctive relief.”[124] The remaining two subsections to be addressed are (c) and (g), which deal with non-injunctive civil penalties.[125]

Subsection (g)'s applicability is entirely determined by subsection (c), so only the latter section needs to be analyzed.[126] Under subsection (c), it states that only the CPD may request civil penalties.[127] However, as can be shown through the other sections, this is not novel. Subsection (a), which is irrefutably available to county attorneys by the language of Section 17.48(b), states injunctive relief is only available “[w]henever the consumer protection division has reason to believe that [a] person is engaging in . . . any act or practice declared to be unlawful by [Subchapter E].”[128] The legislature gave county attorneys the authority to pursue an injunction, and per the language of Section 17.47(a), it is equating county attorneys and the CPD.

A similar indication of the legislature’s intent is shown by Section 17.47(a)'s prior contact provision referenced in Section 17.48(b).[129] The contact provision states that the “consumer protection division shall, at least seven days prior to instituting such court action, contact such person to inform him in general of the alleged unlawful conduct.”[130] While Section 17.47(a) explicitly refers to the CPD, Section 17.48(b) requires that Section 17.47(a) is followed before a county attorney institutes an action, therefore necessitating that county attorneys are read as the CPD.[131]

Although subsections (a), (b), (d), (e), (f), and (h) all seem to apply to county attorneys despite Section 17.48(b) only referring to “injunctive relief,” the explicit reference to county attorneys in subsection (e) raises the question why the same would not be done in subsection (c) for non-injunctive civil penalties.[132] When subsection (e) states that “the district or county attorney with prior notice to the consumer protection division, acting in the name of the state, may petition for recovery of civil penalties under this section,” much more is stated than a declaration that county attorneys may use subsection (e).[133] County attorneys are already required to give prior notice to the CPD when they institute an action under Section 17.48(b).[134] Why would they have to give notice to then pursue and collect penalties once a previously granted injunction is violated? Instead, county attorneys appear to be explicitly referenced in subsection (e) for a special case where the CPD conducted the initial suit, and a county attorney then steps in to collect the civil penalties for the violation of that injunction.[135]

The last major indication of the legislature’s intent to equate the CPD and county attorneys together under Section 17.47 comes from Section 17.48(c), which provides that “three-fourths of any civil penalty awarded” in actions brought by county attorneys for a violation of Section 17.46(b)(28) go to the county where the court is located.[136] Section 17.48(c) would likely be mere surplusage if county attorneys could not take advantage of Section 17.47(c).[137] The most viable counterargument to this is to hold the civil penalties Section 17.48(c) awards as restricted to penalties for violating an injunction under Section 17.47(e).[138] The issue with this interpretation is twofold. First, the language of the statute directs “three-fourths of any civil penalty awarded by a court” to “be paid to the county.”[139] Second, Section 17.46(b)(28) deals with the highly predatory and deceptive act of “Notario fraud.”[140] The legislature found Notario fraud significant enough to create a new incentive to get county attorneys to act, giving them three-fourths of any civil penalties.[141] For an illicit act that the legislature deems exceptionally damaging, restricting civil penalties to the $50,000 maximum from violating civil injunctions would defeat the purpose of the new incentive altogether.[142]

When utilizing all subsections of Sections 17.464, 17.47, and 17.48 together, reading Section 17.48 to only allow county attorneys to request civil penalties for violations of injunctions would result in an untenable and contradictory piece of legislation.

2. The Texas Legislature Intended “Injunctive Relief” Under Section 17.48 to Include Civil Penalties

In Section 17.47(b) the court is given permission to issue “temporary restraining orders, temporary or permanent injunctions to restrain and prevent violations of this subchapter and such injunctive relief shall be issued without bond.”[143] Here, the legislature defined “temporary restraining orders” as something encompassed by “injunctive relief.” This is important because the title of Section 17.47 is “RESTRAINING ORDERS,” which, being essentially the same as “temporary restraining orders,” should also fall under “injunctive relief.”[144] Thus, by giving county attorneys access to “injunctive relief” in Section 17.48(b), the legislature has given access to restraining orders, i.e., all of Section 17.47.[145]

Injunctive relief should also be read to include all of Section 17.47 because the non-injunctive civil penalties are included in a subsection of Section 17.47, implying that the remedies are meant to be used together, and that the legislature thought of civil penalties as a restraining order.[146] Section 17.47(c) further supports this point by stating that the CPD may request civil penalties “[i]n addition to the request for a temporary restraining order, or permanent injunction in a proceeding brought under Subsection (a) of this section.”[147] By grouping civil penalties with temporary restraining orders and permanent injunctions, the legislature is treating the penalty as a restraining order. This is likewise affirmed by civil penalties being called “[a]n order of the court” in Section 17.47(f).[148]

Subchapter E of the DTPA has both public and private remedies, with county attorneys and the CPD focusing on public remedies.[149] The private remedies afforded in Section 17.50 give consumers the chance to get damages for the harm done to them.[150] The legislature has placed county attorneys in the position of enforcing public remedies, and it would be difficult to do so without having access to non-injunctive civil penalties as well.

The plain meaning of Section 17.48 and the practical application of Sections 17.47 through 17.48 seem to clash; it is hard to be certain what the legislature’s intent was from these statutory provisions alone. The legislative history to follow removes any ambiguity in the legislature’s intent and shows that the language, which seemingly restricts non-injunctive civil penalties to the CPD, was not intentional and rather the result of poor drafting.[151]

3. What Does the State’s Legislative History and the Stated Purpose of the DTPA Say on the Interaction Between Sections 17.47 and 17.48?

The DTPA greatly expanded after the 63rd Legislature’s House Bill 417 (H.B. 417) was updated and added many sections, including section 17.48.[152] Any ambiguity in what parts of Section 17.47 the county attorney has access to is cleared by reviewing a joint committee report for the bill.[153] In the report, the attorney general at the time stated:

[Section 17.47] means that if you have gone in as the Attorney General or as a district or county attorney in a suit where you are simply [seeking an] injunction with penalties that you are authorized to request the court to also with that action give relief to the identifiable consumers that—I stress—identifiable consumers who were clearly wronged about what you are enjoining for which you received the penalties.[154]

The attorney general is stating that county attorneys are supposed to be able to request civil penalties, clearing the ambiguity.[155] The attorney general solidifies this interpretation when stating:

Now, [H.B. 417] is necessary in this state because . . . all we can [currently] do, is seek an injunction where the offender who may have done a great deal of harm to a lot of innocent, deceived consumers, can only be told [to] sin no more. In other words, there’s no relief, there’s no recompence, there’s no tangible exchange, there’s no restitution, it’s just a temporary injunction. And it’s only when, if that injunction is violated later on that some penalty, civil penalty could be assessed. [H.B. 417] takes care of that defect.[156]

If county attorneys were unable to request non-injunctive civil penalties, the issue that H.B. 417 intended to fix would still be plaguing the DTPA.

The attorney general finishes by saying, “we have the district and county attorney built into the bill as you will notice, because I think they must play a very definite rol[e], and they are in there to give the aid and assistance that I know that people will need on the local level.”[157] Would the county attorney really serve this “definite role” if their power is capitulated by not allowing them to request civil penalties?

It is worth acknowledging that legislative history is generally fairly weak evidence.[158] Despite that, it does have its place. When interpreting Sections 17.47 and 17.48, there are things that do not sit quite right regardless of whether county attorneys are construed to have access to non-injunctive civil penalties.[159] Legislative history can establish which way to lean in this state of ambiguity. With the DTPA, this history is especially important because section 17.44 states the act must “be liberally construed and applied to promote its underlying purposes.”[160] The attorney general fleshed out this purpose, establishing a desire to punish those who deceive and do a great deal of harm to the innocent.[161] This goal cannot be achieved without allowing county attorneys to request non-injunctive civil penalties.[162]

IV. Conclusion

Fraud has only gone up year-to-year, and without implementing actual change, there is no reason to expect that trend to reverse. This Comment acknowledges that there are many ways to implement such changes, and this is only one path to do so. In some ways, by having to overcome the plain meaning limiting a remedy to “injunctive relief,” this argument starts on its back foot. Nonetheless, statutes are interpreted against their plain meaning when such construction is incongruent with the rest of the statute. The arguments discussed here show patent incongruencies and make litigation using this interpretation promising even if ultimately uncertain.

While ideally the Texas Legislature would amend the DTPA to make the role of the county attorney clearly encompassing non-injunctive civil penalties, passing such legislation could be challenging. With county attorneys representing constituents on more of a local level, garnering support to lobby county attorneys to utilize the DTPA in this manner will likely be easier than passing legislation. The hope of this Comment is to (1) expose how pervasive fraud is in Texas, and (2) provide a currently available method to put a dent in it.

This hope is currently being achieved in part by Harris County Attorney Christian Menefee’s office who has filed suit against Patriot Title, a predatory title company in the Houston area.[163] County Attorney Menefee’s office is pursuing non-injunctive civil penalties under Section 17.47.[164] The initiation of this action will hopefully encourage other county attorneys to seek similar suits and, whether successful or not, will place more attention on fraud in general.

Kyle Henk

  1. See generally Emily Kadens, The Persistent Limits of Fraud Prevention in Historical Perspective, 118 Nw. U. L. Rev. 167 (2023) (analyzing fraud and fraud prevention through a historical perspective with a focus on medieval and early modern England).

  2. See Fed. Trade Comm’n, Consumer Sentinel Network Data Book 2024, at 4, 6 (2025), https://www.ftc.gov/system/files/ftc_gov/pdf/csn-annual-data-book-2024.pdf [https://perma.cc/JKR7-ZWV3] [hereinafter FTC Consumer Data 2024].

  3. Id. at 4.

  4. Id. at 8.

  5. Kristy Holtfreter et al., Sociolegal Change in Consumer Fraud: From Victim-Offender Interactions to Global Networks, 44 Crime, L. & Soc. Change 251, 266 (2006).

  6. Id. at 265–66.

  7. See Keith B. Anderson, Fed. Trade Comm’n, Mass-Market Consumer Fraud in the United States: A 2017 Update 25 (2019), https://www.ftc.gov/system/files/documents/reports/mass-market-consumer-fraud-united-states-2017-update/p105502massmarketconsumerfraud2017report.pdf [https://perma.cc/NZ2R-J883] [hereinafter FTC Fraud Survey 2017]. Although the FTC has continued to publish the reported fraud each year—which has generally maintained growth from year to year—this data cannot be used to show the total population victimized by fraud. See FTC Consumer Data 2024, supra note 2, at 6. Multiple variables including the population each year and the number of people that actually report fraud versus those defrauded need to be controlled to get an accurate percentage of Americans impacted by fraudsters.

  8. . FTC Fraud Survey 2017, supra note 7, at 25. The statistical significance of this estimate was at 5%. The reported number was 15.9%, where the actual number is somewhere between 14.3% and 17.5%. See id. at 25–26. You want your statistical significance (or p value) to be as low as possible. This indicates that your values are not random, and ergo, significant. Any values greater than 10% are generally not considered significant. See Level of Significance, BYJU’S, https://byjus.com/maths/level-of-significance/ [https://perma.cc/XQ2Q-WPZ5] (last visited Nov. 18, 2023) (providing background on statistical significance).

  9. See Holtfreter et al., supra note 5, at 266 (discussing how fraud studies are increasingly precise with the advent of new technology).

  10. Id.

  11. See FTC Consumer Data 2024, supra note 2, at 4 (showing greater monetary loss from fraud in 2024 than 2023); see also Fed. Trade Comm’n, Consumer Sentinel Network Data Book 2023, at 4 (2024), https://www.ftc.gov/system/files/ftc_gov/pdf/CSN-Annual-Data-Book-2023.pdf [https://perma.cc/CQ7W-FZFM] [hereinafter FTC Consumer Data 2023] (showing greater monetary loss from fraud in 2023 than 2022).

  12. . Kristy Holtfreter, Ariz. St. Univ., https://search.asu.edu/profile/1246761 [https://perma.cc/F8NH-KBYQ] (last visited Feb. 1, 2024) (providing background on Professor Holtfreter); see Holtfreter et al., supra note 5, at 267–68.

  13. See Holtfreter et al., supra note 5, at 267–68.

  14. FTC Fraud Survey 2017, supra note 7, at 69.

  15. Id. at 69. The Author calculated relative victimization (or risk) by dividing the percentage of fraud victims for each demographic by the percentage of fraud victims for whites provided in the survey. See id. at 70 for what demographics are contained in the “Other” group. The statistical significance of the fraud victimization percentages is 4%. Id. at 69.

  16. Id. at 77 (showing people seventy-five and older have the lowest likelihood of being victim to fraud); Who Experiences Scams? A Story for All Ages, Fed. Trade. Comm’n (Dec. 8, 2022), https://www.ftc.gov/news-events/data-visualizations/data-spotlight/2022/12/who-experiences-scams-story-all-ages [https://perma.cc/N25D-32U7].

  17. FTC Fraud Survey 2017, supra note 7, at 77.

  18. Id. at 117 (showing the percentage of people in the above income ranges victim to fraud was 19.7% and 17.7%, respectively).

  19. Id. at 80 (where the relative victimization rates compared to college graduates are 103.7%, 119.3%, and 140% for high school dropouts, high school graduates, and those with some higher education, respectively).

  20. See id. at 69, 77, 80, 117.

  21. See Who Experiences Scams?, supra note 16.

  22. FTC Consumer Data 2024, supra note 2, at 20. Texas moved from tenth in 2023 to sixth in 2024, additionally, the number of reports went up by over 130,000. Compare id. (finding 462,667 total reports), with FTC Consumer Data 2023, supra note 11, at 20 (finding 327,936 total reports).

  23. Specifically, 1.561 out of 100 people will encounter fraud in Texas. See FTC Consumer Data 2024, supra note 2, at 20.

  24. Id. at 66.

  25. Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (West 2023) (The Deceptive Trade Practices-Consumer Protection Act).

  26. Leonard Wills, Access to Justice: Mitigating the Justice Gap, Am. Bar Ass’n (Dec. 3, 2017), https://www.americanbar.org/groups/litigation/resources/newsletters/minority-trial/access-justice-mitigating-justice-gap/ [https://perma.cc/2CHQ-U9NG].

  27. Id.

  28. FTC Fraud Survey 2017, supra note 7, at 117.

  29. Bus. & Com. § 17.50 (providing a private right of action under the DTPA). Note that upon prevailing in a suit under Section 17.50, consumers are to be awarded “court costs and reasonable and necessary attorneys’ fees.” Id. § 17.50(d). While this could alleviate some of the issues of poorer individuals being targeted, attorneys likely will not take a case (even with fees being covered) unless there are substantial damages.

  30. FTC Consumer Data 2024, supra note 2, at 66 (showing a median loss of only $500); Mass Marketing Fraud, U.S. Dep’t of Just., https://www.justice.gov/criminal/criminal-fraud/mass-marketing-fraud [https://perma.cc/UK9D-ZQ9X] (last updated Aug. 11, 2023).

  31. FTC Consumer Data 2024, supra note 2, at 66.

  32. See John Bronsteen & Owen Fiss, The Class Action Rule, 78 Notre Dame L. Rev. 1419, 1423 (2003) (discussing class actions and their use in remedying a series of small losses).

  33. Bus. & Com. §§ 17.47–.48.

  34. Id. § 17.47.

  35. Id. § 17.48.

  36. Joe K. Longley, The DTPA Turns 50: A Look at Its History, 86 Tex. Bar J. 322, 322 (2023).

  37. Id.

  38. Id.

  39. Id. See infra Section III.A.3 for the legislative history showing the attorney general’s importance in enacting the DTPA.

  40. See Longley, supra note 36, at 323.

  41. Id. In making this seemingly extreme decision to automatically treble damages, the Woods court relied on the purpose of the DTPA in section 17.44 which stated that the DTPA “shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.” Woods v. Littleton, 554 S.W.2d 662, 665 (Tex. 1977). Section 17.44 states the very same today, meaning the DTPA purportedly has the same strong purpose as it did at its inception in 1973. See Tex. Bus. & Com. Code Ann. § 17.44 (West 2023).

  42. See Longley, supra note 36, at 323.

  43. Id.

  44. Id. Originally, “the remedy of treble damages . . . which was a justifiable incentive to litigation for plaintiffs involved in relatively small consumer purchases, was extended to large commercial transactions where the treble sanction had no readily discernible justification.” Id. Instead of just excluding large commercial transactions, the revision nearly removed treble damages altogether. Id.

  45. Id.

  46. Id.

  47. Id.

  48. See id.; supra Section I.C; supra Section II.B.

  49. See supra Section II.B.

  50. See Tex. Bus. & Com. Code Ann. § 17.50 (West 2023).

  51. See supra Section I.C.

  52. See Bus. & Com. §§ 17.46–.48.

  53. Id. § 17.46. The current list of deceptive acts is up to thirty-four different acts. Id. This breadth makes Section 17.46 one of the most pro-consumer portions of the DTPA. See id. The wide array of acts covered gives both public and private individuals jurisdiction to pursue an action on almost any type of fraud. See id. §§ 17.47, 17.50 (enabling public and private enforcement of Section 17.46, respectively).

  54. Id. § 17.47 (covering injunctions, civil penalties, restitution by the court, and different damage models based on the individual victimized).

  55. Id.; see, e.g., Plaintiff’s Original Petition & Application for Temporary & Permanent Injunction at ¶ 2.1, Texas v. Liberty Publishers Serv., Inc., No. D-1-GN-15-001265 (345th Dist., Travis County, Tex. Mar. 31, 2015).

  56. Bus. & Com. § 17.47(d).

  57. Id. § 17.48(a)–(b).

  58. Id. §§ 17.46–.48. An initial reading of Section 17.48(b) provides a county attorney authority to seek injunctive relief under Section 17.47, but that leaves out civil penalties and other remedies available. See id. §§ 17.47–.48.

  59. Id. §§ 17.47–.48.

  60. Id. § 17.47.

  61. Id. § 17.47(e).

  62. Id. Note the “slight” inflation makes $100 in 2003 worth $175 today. See Inflation Calculator, Smart Asset, https://smartasset.com/investing/inflation-calculator [https://perma.cc/F579-X5NK] (last visited Jan. 2, 2025).

  63. See Bus. & Com. § 17.47(e); Texas Consumers Reported Losing More than $636 Million to Scams Last Year, Focus Daily News (Feb. 12, 2024), https://www.focusdailynews.com/texas-consumers-reported-losing-more-than-636-million-to-scams-last-year/ [https://perma.cc/4GJR-YG3T].

  64. See Bus. & Com. §§ 17.47–.48.

  65. Citing References for Tex. Bus. & Com. §§ 17.47 and 17.48, Westlaw, https://1.next.westlaw.com/Search/Home.html?transitionType=Default&contextData=(sc.Default)&bhcp= [https://perma.cc/F29K-6DQE] (last visited Jan. 22, 2025) (go to Westlaw and after accessing Sections 17.47 and 17.48, click on the “Citing References” tab). As of January 6, 2025, only one case is listed, and there are only sixteen court documents referencing this provision in general. In comparison, when looking at the CPD’s authority under Section 17.47, there are sixty cited cases and over 260 court documents. Although this search likely does not yield a complete account of all Section 17.48 cases, the disparity with the number of CPD cases shows incentives are inadequate.

  66. See Bus. & Com. § 17.48(a); Citing References for Tex. Bus. & Com. §§ 17.47 and 17.48, supra note 65 (the only case shown where the attorney general utilizes a district attorney is United States v. Evans); see also United States v. Evans, 572 F.2d 455, 485, 487 (5th Cir. 1978).

  67. See Bus. & Com. §§ 17.47–.48; Citing References for Tex. Bus. & Com. §§ 17.47 and 17.48, supra note 65 (only one case involved a district or county attorney, leaving fifty-nine cases without county attorneys).

  68. See Bus. & Com. § 17.48(b). The only case using Section 17.48 was Evans and the district attorney did not request the CPD in that suit. Citing References for Tex. Bus. & Com. §§ 17.47 and 17.48, supra note 65; see also Evans, 572 F.2d at 487.

  69. See Evans, 572 F.2d at 487.

  70. Ted Oberg & Sarah Rafique, Ted Oberg Investigates: ‘Never Heard Back,’ ABC (May 16, 2022), https://web.archive.org/web/20220517181940/https://view.ceros.com/abc/ag-complaints/p/1 [https://perma.cc/8324-ZDT6].

  71. Id.

  72. See id.; FTC Consumer Data 2024, supra note 2, at 66 (showing $897.9 million lost from fraud).

  73. See FTC Consumer Data 2024, supra note 2, at 66; Oberg & Rafique, supra note 70.

  74. Oberg & Rafique, supra note 70.

  75. Id.

  76. Id.

  77. Id.

  78. Id.

  79. Id.

  80. Id.

  81. Id.

  82. Id. (“(We do) not have a report that tracks the total number of complaints that were opened for investigation or resolution, and the number of complaints that are still open and closed and if any settlements were reached and the amount recovered.” (alteration in original)).

  83. Id.

  84. Id.

  85. Id.

  86. Id.

  87. Id. (“The [CPD] does not represent individual consumers in personal civil matters but takes action on behalf of the collective legal interests of the people of the state. We rely on consumers providing information in complaints to help us enforce the [DTPA] . . . .”); see also Tex. Bus. & Com. Code Ann. § 17.48(b) (West 2023) (showing county attorneys can institute DTPA actions).

  88. A couple of these potential solutions worth investigating include greater education on potential scams, using bots to find ongoing scams and notify either the CPD or the public, expanding the CPD, and reforming the DTPA itself to impose greater penalties or lessen the burden of litigation.

  89. . What Do Counties Do?, Tex. Cntys. Deliver, https://texascountiesdeliver.org/county-services/ [https://perma.cc/QYN2-DTRS] (last visited Jan. 20, 2025); see also Oberg & Rafique, supra note 70. The suspicious reader might ask whether all these counties actually have a county attorney, and the answer, while being no, is essentially yes. Although some counties only have a criminal district attorney rather than a combination of county and district attorneys, in those counties the criminal district attorney fills the role of county attorney as well. See County and District Attorney, Tex. Cntys. Deliver, https://texascountiesdeliver.org/county-officials/county-and-district-attorney/ [https://perma.cc/C7VW-6E9Z] (last visited Jan. 14, 2024). Utilizing county attorneys to enforce the DTPA in counties where one official does both criminal and civil work would be less effective; however, 221 out of 254 counties have distinct civil and criminal roles. See County Attorney, Dallam Cnty. On-Line Cmty., http://www.dallam.org/county/atty.shtml [https://perma.cc/MS7C-ZHB5] (last visited Jan. 14, 2024).

  90. See supra Section II.B.

  91. See Bus. & Com. § 17.47(c), (e) (where the CPD can request either up to a $10,000 civil penalty per violation or, in limited circumstances, an additional penalty of $250,000, which should serve as a sufficient incentive for utilizing the DTPA).

  92. See id. § 17.47(a).

  93. See id. § 17.48(b).

  94. See id. § 17.47(e).

  95. See id. § 17.48 (explicitly stating that county attorneys can seek an injunction with prior written notice to the CPD).

  96. Id. § 17.48(b).

  97. Id.

  98. See generally William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539 (2017) (for background on plain ordinary meaning).

  99. See Bus. & Com. §§ 17.47(c), 17.48(b).

  100. See supra Section III.A.1; infra Sections III.A.2, III.A.3.

  101. Oberg & Rafique, supra note 70.

  102. See Thomas v. State, 226 S.W.3d 697, 708, 710 (Tex. App.—Corpus Christi–Edinburg 2007, no pet.) (where the CPD was awarded civil penalties despite the offenses being outside of the two-year statute of limitations in Section 17.47(d), which was held to apply “only to damages, and not to restitution”).

  103. Bus. & Com. § 17.48(b).

  104. Id.

  105. Id. § 17.48(a)–(b).

  106. See supra Section II.B (discussing incentives for county attorneys to initiate DTPA proceedings being insufficient absent civil penalties).

  107. Bus. & Com. §§ 17.47(a), 17.48(b).

  108. Id. §§ 17.47(a), 17.48(b).

  109. Id. § 17.48(b).

  110. Id. § 17.47. Understanding what each of these subsections do gives the seemingly simple meaning of “injunctive relief” under Section 17.48(b) a whole new meaning. Id. § 17.48(b).

  111. The whole argument against the county attorney being able to levy civil penalties is that the counties are subservient to the state (i.e. the CPD) and should, therefore, have limited remedies available to them. Subsection (b) requires actions to be instituted in the county where the defendant “resides, has his principal place of business, has done business, or in the district court of the county where the transaction occurred.” Id. § 17.47(b). If subsection (b) did not apply to county attorneys, they would have more power than the CPD and could sue individuals who were not connected to their county, which would be odd, to say the least.

  112. Id. § 17.47(d).

  113. See supra note 111. Note that the limitation of damages in Section 17.47(d) is referring to actual damages restored by the court. Bus. & Com. § 17.47(d). This is important because it means the damages are not referring to the non-injunctive civil penalties that could arguably only be available to the CPD. Id. § 17.47(c)–(d). Instead, it is referring to the court making harmed individuals whole, which, if restricted to actions brought by the CPD, only would greatly undermine the DTPA’s purpose and the court’s power. See id.

  114. Bus. & Com. § 17.464.

  115. Id. § 17.464(c) (where the limitations are primarily about how unconscionable the pricing must be for the government to take action).

  116. Id. § 17.48(b).

  117. Id. § 17.47(d).

  118. Id. (granting the court authority to make additional judgments as necessary for restitution of any identifiable victims).

  119. Id.

  120. Id. §§ 17.47(e)–(f), 17.48(b).

  121. Id. § 17.47(e) (emphasis added). Note that although subsection (f) does not directly mention county attorneys like subsection (e), subsection (f) applies to any actions under subsection (e), and therefore, applies to county attorneys just the same. Id. § 17.47(e)–(f). While the specific inclusion of the “county attorney” helps with the argument that all the subsections in Section 17.47 seem to apply to both the CPD and county attorney, it is also the basis for a counterargument. Id. § 17.47(e). By including county attorneys in subsection (e), the Texas Legislature has shown its propensity to specify the county attorney when it wants to include hem in Section 17.47. See id. This implies provisions like subsection (c) should be inaccessible to county attorneys because the section does not mention county attorneys explicitly. See id. § 17.47(c).

  122. Id. § 17.47(h).

  123. Id. § 17.47(e), (h) (emphasis added).

  124. Id. § 17.48(b).

  125. Id. § 17.47(c), (g).

  126. Id. § 17.47(g). Subsection (g) lays out what should be considered when penalties are “imposed under Subsection (c),” and therefore applies any time subsection (c) does. Id.

  127. Id. § 17.47(c) (“[I]n a proceeding brought under Subsection (a) of this section, the consumer protection division may request . . . a civil penalty . . . .”).

  128. Id. §§ 17.47(a), 17.48(b) (emphasis added).

  129. Id. § 17.48(b) (stating the county attorney must comply with the prior contact provision in § 17.47(a)).

  130. Id. § 17.47(a).

  131. Id. §§ 17.47(a), 17.48(b).

  132. Id. §§ 17.47, 17.48(b). Recall the argument posed supra note 121.

  133. Bus. & Com. § 17.47(e).

  134. Id. § 17.48(b). Note the statutory canon of construction against surplusage (which redundantly requiring permission would result in). See Chris Micheli, Canon of Statutory Construction — Rule Against Surplusage, Cal. Globe (Oct. 24, 2022, 6:55 AM), https://californiaglobe.com/articles/canon-of-statutory-construction-rule-against-surplusage/ [https://perma.cc/URN8-Z6C2]. One could argue that it is not redundant because it is a “new action,” however, subsection (e) states that “the cause shall be continued.” Bus. & Com. § 17.47(e). If it is the same cause in the eyes of the court, it would be odd for the legislature to make a distinction in the eyes of the CPD.

  135. See Bus. & Com. § 17.47(e). This argument is bolstered by subsection (f), which states, “Second or subsequent violations of an injunction issued under this section are subject to the same penalties set out in Subsection (e) of this section.” Id. § 17.47(f). If the notice provision in subsection (e) required county attorneys to give notice whenever pursuing penalties for an injunction, subsection (f) likely would have referenced the penalty and notice provisions of subsection (e). See id. § 17.47(e)–(f).

  136. Bus. & Com. §§ 17.46(b), 17.48(c) (recall that Section 17.46 defines what acts are prohibited under Subchapter E).

  137. If county attorneys cannot request civil penalties under Section 17.47(c), what use is being awarded three-fourths of the civil penalty? A contrary argument is that Section 17.48(c) gives county attorneys the authority to request civil penalties only for Section 17.46(b)(28) violations; however, the statute grants no special authority to request civil penalties, and instead just designates where the penalties go. Id. § 17.48(c). One could also argue that the penalties should only be awarded in cases where the county attorney was requested to help the CPD; however, Section 17.48(c) only applies to “action[s] prosecuted by a district or county attorney.” Id. Furthering this point, per Section 17.48(d), county attorneys need not even obtain permission from the CPD to prosecute an action for a violation of Section 17.46(b)(28)—meaning civil penalties would be awarded in actions brought solely by county attorneys. Id. § 17.48(d).

  138. Id. §§ 17.47(e), 17.48(c).

  139. Id. § 17.48(c) (emphasis added). Specifically noting “any” civil penalties implies more than one specific type are available. If the legislature was looking to restrict the award to exclusively civil penalties from violating injunctions, “any” would be an unlikely word to use.

  140. Id. § 17.46(b)(28). Notario fraud occurs when someone fraudulently represents themselves as someone qualified to give legal advice, generally on immigration issues. See About Notario Fraud, Am. Bar Ass’n (Dec. 12, 2024), https://www.americanbar.org/groups/public_interest/immigration/projects_initiatives/fightnotariofraud/about_notario_fraud/ [https://perma.cc/7HZV-KLCZ] (overview on Notario fraud). Considering the sensitive timelines for many immigration issues, victims of Notario fraud can face serious consequences. See id.

  141. See Bus. & Com. § 17.48(c).

  142. Id. § 17.47(e) (where civil penalties are restricted to a maximum of $50,000 and are only awarded after an injunction is violated).

  143. Id. § 17.47(b) (emphasis added).

  144. Id. § 17.47.

  145. Id. §§ 17.47, 17.48(b). This argument is particularly vulnerable to the point that the legislature could have just written “Section 17.47” if that is what it meant. The purpose of these smaller points is how strong they make the argument when read together, not necessarily that they are all unassailable on their own.

  146. Id. § 17.47. At first, this might seem negligible, however, the legislature can and has separated civil penalty provisions when giving the attorney general power to act. See Tex. Ins. Code Ann. §§ 541.201–.207 (West 2023); Tex. Transp. Code Ann. §§ 21.154–.155 (West 2023) (also note the county attorney has equal authority to request civil penalties as the attorney general here); see also Tex. Nat. Res. Code Ann. § 61.018 (West 2023) (where the county attorney and attorney general again have the same authority—indicating this is not novel). If the legislature wanted to give county attorneys limited access to Section 17.47, they could have made separate sections as they have done in these other statutes.

  147. Bus. & Com. § 17.47(c).

  148. See id. § 17.47(f).

  149. Id. §§ 17.47–.48, 17.50.

  150. Id. § 17.50.

  151. See supra Section III.A.3.

  152. See H.B. 417, 63d Leg., Reg. Sess. (Tex. 1973).

  153. See J. Comm. on Deceptive Trade Pracs., Report of the Joint Committee on Deceptive Trade Practices, 000275 (1988), https://lrl.texas.gov/scanned/LegisCmteMinutes/JointCmtes/70-0/Deceptive_Trade_Practices/L1836.70_D355_Volume_I.pdf [https://perma.cc/H2FS-H5G2] (showing the legislative history of H.B. 417, which was passed in 1973).

  154. See id.

  155. See id. Initially there could be concern that the attorney general is referring to the civil penalties from violating an injunction, but through his language, that cannot be the case. He states “for which you received the penalties” at the end, meaning the penalties were given at the same time as the relief to identifiable consumers. Id. If the penalties he was referring to here were for violating an injunction, they would not be “received” until after the relief was given to identifiable consumers. See Bus. & Com § 17.47.

  156. See J. Comm. Rep. on Deceptive Trade Pracs., supra note 153, at 000391.

  157. Id. at 000407.

  158. Baude & Doerfler, supra note 98, at 547.

  159. Why would the legislature not make it more clear by having Section 17.48(b) state that all of Section 17.47’s penalties are available? If it is not all available why would the legislature put more restrictions on the CPD’s authority than county attorneys? See supra Section III.A.1 (discussing these restrictions).

  160. Bus. & Com. § 17.44.

  161. See J. Comm. Rep. on Deceptive Trade Pracs., supra note 153, at 000391.

  162. See supra Section II.B (discussing how the DTPA is failing to achieve this purpose under the current interpretation).

  163. Plaintiff’s Original Petition & Application for Permanent Injunction at 1–2, 22, Harris County v. Patriot Title, No. 2023-88866 (269th Dist. Ct., Harris County, Tex. Dec. 29, 2023).

  164. Michelle Homer, 'Enough Is Enough’: Harris County Is Suing Houston Title Company Accused of Fraud, KHOU 11, https://www.khou.com/article/news/local/patriot-title-sued-fraud-scams/285-b00b4203-1ed0-429b-a42d-599495b4d018 [https://perma.cc/JQB8-TZ83] (last updated June 28, 2023, 5:42 PM); Plaintiff’s Original Petition & Application for Permanent Injunction, supra note 163, at 1–3 (case is ongoing but the original petition discusses Harris County requesting civil penalties).