QUESTION: There’s a restaurant I frequent on the Loop. They charged me a 3% transaction fee for using a credit card. I’m wondering if that’s legal in the state of Texas. I don’t know of any other restaurant or any other business that charges a transaction fee for using a credit card.
ANSWER: After a 2018 court ruling, it appears to be legal for businesses in Texas to pass along the credit card swipe fees they are assessed. But it seems this situation could stand some legislative clarity.
Here’s what I know: The Texas Finance Code still says, “in a sale of goods or services, a seller may not impose a surcharge on a buyer who uses a credit card for an extension of credit instead of cash, a check, or a similar means of payment.”
However, a federal court judge’s August 2018 ruling determined the law violated the rights to commercial free speech of several businesses that originally filed a lawsuit on the issue. The judge ordered the state attorney general’s office that it couldn’t enforce the law against the complaining businesses. It appears the ruling struck down the state law.
In June, Attorney General Ken Paxton provided an opinion in response to a county’s auditor’s inquiry that clarifies how the ruling should be applied.
“When a court determines that a statute is unconstitutional as applied, it normally invalidates the statute only as applied to the litigant in question and does not render the statute unenforceable with regard to other litigants or different factual circumstances. ... In holding (the state law) unconstitutional as applied, the district court noted that the merchants in question did not seek ‘to extract additional profits by imposing surcharges in excess of the cost of accepting each credit card,” the opinion says. “Thus, the court concluded that the speech at issue was not deceptive or misleading. ... However, the court acknowledged that the State is ‘free to prevent the dissemination of commercial speech that is false, deceptive, or misleading,’ and suggested that the First Amendment analysis would be different if the merchants sought to impose higher surcharges than the swipe fees charged to the merchants by credit card companies. ... Thus, circumstances may still exist where, as applied, (state law) operates to prohibit a credit card surcharge fee.”
The attorney general’s office did not provide more specific direction when I inquired.
I found a 2018 Dallas Morning News story that offered this guidance and explained this doesn’t apply to debit card, cash or check use because it’s money that’s pulled directly from your account:
“A merchant is now allowed to show you at least two prices: what it costs with a credit card, and what it costs with a cash or debit card payment. The surcharge must reflect what the actual swipe fee is. The maximum allowed is 4%. If a merchant charges more, file a complaint with the Texas AG’s office.”
Paxton’s office provides a few ways for people to file complaints: “Anyone who believes they encountered an illegal credit card surcharge is welcome to file a complaint with our Consumer Protection Division by filling out an online form here: txoag.force.com/CPDOnlineForm ; they may also call our Consumer Protection Hotline at 512-463-2185 (toll-free at 800-621-0508). Any photos, documents, etc. that a complainant can provide are helpful to our investigations. To learn more about the consumer complaint process, visit our website here: https://www.texasattorneygeneral.gov/consumer-protection/file-consumer-complaint.”
GREETING CARD FOLLOW UP: I was happy to hear from the ladies of Texas Cards for Troops regarding the question about what people can do with old greeting cards. The group is an auxiliary of the American Legion Auxiliary Richard A. Holloway Memorial Unit 131 in Longview, but they have a sister group in Gilmer.
The Longview group meets once a week to make original cards and other gifts to send in care packages to members of the U.S. military. While the Longview group makes new cards, member Linda O’Hart told me they have a sister group, the Rockin’ Grannies in Gilmer, who re-use old greeting cards for any occasion and recycle them into new cards.
The Longview group will collect used cards to get to the Gilmer group, O’Hart said. The group accepts new, unused cards and cards that have been written on, and the women use the front page of the card to make new cards.
Contact O’Hart at (903) 931-1312.