In this Act:

(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.

(3) "Employer" means a person employing or seeking to employ an employee.

(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:

(A) an executive search or consulting service;

(B) an out-placement service;

(C) an overseas placement service;

(D) a job listing service;

(E) a personnel consulting service; or

(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.

(12) "Commissioner" means the commissioner of licensing and regulation.

(a) This Act does not apply to:

(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;

(3) a labor union; or

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

(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 orlockout 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.

(b) An employer seeking employees or a person seeking employment may not:

(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.

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

A person who knowingly or intentionally violates or fails to comply with a provision of this Act commits a Class A misdemeanor.

(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.

(c) In an action filed under this section, a plaintiff may seek and the court in its discretion may grant:

(1) an order enjoining the defendant in the suit from violating this Act;

(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.

(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 thanthe 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:

(1) issue a warning to the personnel service; or

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

(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) 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 $5,000payable 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.

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

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.