ON MOTION FOR REHEARING
GUITTARD, Chief Justice.Defendant now raises for the first time the contention that the Deceptive Trade Practices Act cannot be properly applied to this case because it violates the Fourteenth Amendment to the United States Constitution and article I, sections 13 and 19, of the Texas Constitution. In particular, he argues (1) that section 17.46(a) of the Act is unconstitutionally vague because it has no definition of “false, misleading or deceptive acts or practices,” and (2) that the provision for treble damages, particularly for a seller who has not been guilty of bad faith, is an excessive fine or punishment.
Although the members of the court adhere to their respective views on the question presented on original submission as *375expressed in the majority and dissenting opinions, and we do not withdraw those opinions, we are unanimous in our decision on the questions raised by the motion for rehearing. We hold that insofar as this case is concerned, the Act is not unconstitutionally vague, and neither does it impose an excessive fine or punishment, because it is reasonably susceptible to the construction that it applies to statements concerning the need for repair service such as those made by defendant on the occasion in question only if made knowingly and with intent to deceive. We give it that construction in order to avoid holding it unconstitutionally vague. Since the trial court found, however, that defendant did not know that the statements were false, we conclude that the court erred in holding that such statements were in violation of the Act. Consequently, we grant the motion for rehearing, set aside our former judgment, reverse the judgment of the trial court, and render judgment that plaintiff take nothing.
1. Raising the Constitutional Question
Before considering the questions raised by the motion for rehearing, we must determine whether they are properly presented in this case. The record fails to show that any attack on the Deceptive Trade Practices Act was made on constitutional grounds in the trial court. There is a line of cases holding that the unconstitutionality of the statute is an affirmative defense-under rule 94 of the Texas Rules of Civil Procedure, and is waived if not pleaded. Mobile America Sales Corp. v. Rivers, 556 S.W.2d 878, 382 (Tex.Civ.App.—San Antonio 1977, no writ); Van Wart v. Van Wart, 501 S.W.2d 359, 361 (Tex.Civ.App.—Austin 1973, no writ); City of South Houston v. Sears, 488 S.W.2d 169, 174 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). In this case, we cannot hold that appellant waived the unconstitutionality of the statute by failing to plead it as a defense, since appellee’s petition did not mention the Act or plead for any relief under it. Although this omission in the petition has not been raised here, it does tend to explain why the only reference to the Act in the record before us is in the trial court’s findings and conclusions. Moreover, there is another line of cases holding that the validity of a statute of general application is a matter of such public importance as to be proper for decision on appeal, though not assigned as error. Sanders v. State Department of Public Welfare, 472 S.W.2d 179, 181 (Tex. Civ.App.—Corpus Christi 1971, writ dism’d); Houston Lighting & Power Co. v. Jenkins, 5 S.W.2d 1030, 1032 (Tex.Civ.App.—Austin 1928, no writ); and cf. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957) (discussing scope of “fundamental error” in appellate courts).
Of course, appellate courts should not decide questions of constitutional law that have not been properly raised and briefed by the parties. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959). Here, however, the question of constitutionality is raised by appellant in his motion for rehearing and has been briefed by both appellant and appellee. In addition, a number of amicus curiae arguments have been filed in support of the motion for rehearing, and the Attorney General has filed an amicus curiae brief in opposition. These briefs provide thorough discussion of the constitutional questions and the applicable authorities from the points of view of both sides. The validity of the Act is a question of great public importance, since many persons are affected by it in their daily activities, and the lack of case authority on these questions may be explained by the severity of the treble-damage penalty, which few can afford to risk for the purpose of constitutional test. Since the validity of the Act is a matter that goes to the basis of the partial recovery of treble damages, which the trial court allowed, we conclude that the constitutional questions are properly before us.
2. Penal Nature of Treble Damages
Defendant contends that the Act must be tested by the same standards as penal statutes because of the provision for treble damages in section 17.50(b)(1). Here *376the trial court did not actually award treble damages, but rather awarded $500 in addition to actual damages because the parties had stipulated that if any exemplary damages were recovered, they should be limited to $500. This amount, however, was not awarded as exemplary damages, because the trial court found that defendant did not know that the statements were false and did not make them recklessly. The findings show that the trial court considered the award of $500 as a recovery of statutory treble damages partially waived by the stipulation. Consequently, the case must be treated as one in which treble damages were recovered.
Plaintiff argues that recovery of treble damages, like other remedies provided by the Act, is remedial rather than punitive. The purpose of the Act, he says, is to reduce the occasion for legal action by the Attorney General and other public law-enforcement authorities by giving the individual consumer sufficient incentive to take legal action on his own behalf, which would not be worthwhile if recovery were limited to actual damages as recognized in Woods v. Littleton, 554 S.W.2d 662, 670 (Tex.1977). Consequently, the argument runs, treble damages may be imposed on any violator of the Act simply as a matter of providing a remedy for the consumer, without any determination of whether the seller’s conduct was sufficiently reprehensible to deserve punishment over and above the obligation to respond in compensatory damages for any actual loss, and regardless of whether the Act by its terms gave him reasonable notice at the time of the transaction in question that his conduct was prohibited.
These considerations of expediency do not, in our opinion, satisfy the requirements of due process. From the point of view of the seller, any exaction over and above that necessary to compensate the buyer for his loss is punitive. In this case, the actual loss was $481.68 and the seller was required to pay an additional $500 because of conduct which the trial court found to be entirely innocent of wrongful intent. Treble damages, if not limited here by stipulation, would have amounted to $1,445.04 of which $963.36 would have been over and above the amount of the buyer’s loss.
Although this case involves a relatively small amount, the Act is not limited to small purchases. Business consumers, as well as individuals, may claim its benefits, and thus the amount of treble damages recoverable in a particular case is unlimited. Moreover, since the limitation of recovery in class actions to actual damages has now been repealed, and treble damages have been held mandatory in Woods v. Littleton, supra, the amount of treble damages in a class action could easily bring financial ruin to a merchant found by a court or jury to have been guilty of a technical, but unwitting violation.1 These considerations convince us that treble damages is indeed a sufficiently severe exaction as to be within the due process requirement applicable to criminal penalties. See Wayne County v. Steele, 121 Neb. 438, 237 N.W. 288, 292 (1931); Zuest v. Ingra, 134 N.J.L. 15, 45 A.2d 810, 813 (1946); Cleveland C.C. & St. L. Ry. Co. v. Wells, 65 Ohio St. 313, 62 N.E. 332, 334 (1901); Blake v. Grant, 65 Wash.2d 410, 397 P.2d 843, 844 (1964); Gardner v. Lovegren, 27 Wash. 356, 67 P. 615, 617 (1902); and cf. Helwig v. United States, 188 U.S. 605, 23 S.Ct. 427, 47 L.Ed. 614 (1903) (holding imposition of “a further sum” for excess of value of imported goods over declared value to be a “penalty” within jurisdiction of the federal district court, though not expressly so declared). Accordingly, we must determine whether section 17.46(a) of the Act, when considered as a ground for imposition of the penalty of treble damages provided by section 17.50(b)(1), is unconstitutionally vague because the Act contains no definition of “false, misleading or deceptive acts or practices.”
*377 3.Certainty Requirement of Due Process
Defendant’s contention that the Act is unconstitutionally vague is based on the recognized test of the certainty required of penal statutes stated in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 as follows:
[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Defendant cites also A. B. Small & Co. v. American Sugar Refining Co., 267 U.S. 233, 297, 45 S.Ct. 295, 69 L.Ed. 589 (1925), which applies the same test in determining civil liability and holds unconstitutional a statute prohibiting “unjust or unreasonable rates or charges” for necessaries in time of war. Defendant also relies on the rule stated in Lone Star Gas Co. v. Kelly, 140 Tex. 15,165 S.W.2d 446, 448 (1942) as follows:
“When the State . . . promulgates a rule of conduct for the citizen, it must speak in specific and definite terms so that he may clearly understand what is required of him.”
Another statement of the same rule by the Supreme Court of the United States is the following from Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367 (1952):
A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation.
Likewise, in United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963), the court said:
Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.
Other cases applying this rule include the following: Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Giaccio v. State of Pennsylvania, 382 U.S.'399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).
4.Application of Due Process Requirement to Section 17.46(a)
Applying the same test here, we conclude that at the time of the transaction in question defendant would have had great difficulty in determining whether the penalties of the Act applied to his statements. According to the trial court’s findings, defendant stated that the boat and motor “had just had $500 worth of work done on it, making the boat and motor in ‘excellent condition,’ ‘perfect condition,’ and ‘just like new.’ ” The court found further that these statements were false, since the repairs were inadequate, but that defendant did not know that they were false and did not make them recklessly because he had not experienced any difficulties with the motor after it had been repaired. A fair construction of these findings is that defendant truthfully told plaintiff that he had spent $500 for repairing the motor, but that he was mistaken in stating that these repairs made it “just like new.” The question is, did the language of the Act give defendant fair notice, at the time of the transaction, that his statements concerning the boat and motor would be made at his peril and would subject him to the penalty of treble damages if facts should later be discovered that they were inaccurate?
We conclude that section 17.46(a) did not give fair notice that he would be subject to such a penalty. The expression “false, misleading or deceptive acts or practices” in section 17.46(a) is extremely broad. It is similar to the legal and equitable concept of fraud, which is said to be an elusive term, so multiform as to admit to no rules or definitions. Yamini v. Gentle, 488 S.W.2d 839, 843 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.); Kinard v. Sims, 53 S.W.2d 803, 805 (Tex.Civ.App.—Amarillo 1932, writ ref’d). Yet common-law fraud has limitations not found in the Deceptive Trade *378Practices Act. A fraudulent representation is one that the speaker knew to be false, or made recklessly without knowledge of the truth. Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138, 143 (Tex.1974). A statement of opinion, judgment, probability, or expectation is ordinarily not considered actionable fraud unless the speaker himself did not believe it. Jeff coat v. Phillips, 534 S.W.2d 168, 171 (Tex.Civ. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). A promise of future action is not fraud unless the promisor did not intend to perform. Friedman v. Powell Electric Manufacturing Company, Inc., 456 S.W.2d 758, 763 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ); cf. Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex.1971). Nondisclosure is not in itself fraudulent in the absence of special circumstances imposing a duty to disclose. Moore & Moore Drilling Co. v. White, 345 S.W.2d 550, 55 (Tex.Civ.App.—Dallas 1961, writ ref’d n.r.e.); Howard v. County of Nolan, 319 S.W.2d 947, 950 (Tex. Civ.App.—Eastland 1959, no writ). In order to recover punitive damages at common law, the defrauded party must establish an intentional misrepresentation for the pur pose of causing injury. Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803, 805 (Tex.1966).
It is not clear whether any of these limitations apply to a claim under the Deceptive Trade Practices Act. The concept of “false, misleading, or deceptive acts or practices” in section 17.46(a) may be interpreted as even broader and more nebulous than common-law fraud, as shown by the article by David F. Bragg, Now We’re All Consumers! The 1975 Amendments to the Consumer Protection Act, 28 Baylor L.Rev. 1,10-14 (1976). Mr. Bragg, who has filed a brief in this case on behalf of the Attorney General as amicus curiae, explains in his article that one of the purposes of the Act is to extend the scope of a consumer’s recovery beyond that allowed for common-law fraud in a number of respects. He points out that the interpretation of the Federal Trade Commission Act by the federal courts, which is expressly adopted in section 17.46(c), extends the concept of “deception” to false advertising and “puffing” (beyond permissible limits) to representations of opinion as distinguished from representations of fact, to failure to disclose a material fact by telling less than the whole truth, and even to failure to fill orders promptly. He declares that the concept of deception is “fluid, and purposefully so, to enable the courts to enlarge or diminish its meaning according to the needs of the times.” Id. at 11. Mr. Bragg refers for guidance to the federal decisions interpreting the Federal Trade Commission Act, as expressly authorized by section 17.46(c), and he cites a federal case holding that if a word in an advertisement is ambiguous, and one meaning is false, the word may be deceptive. Id. at 13, citing Carter Products, Inc. v. Federal Trade Commission, 186 F.2d 821 (7th Cir. 1951). He suggests that the question of whether a particular act or practice is “false, misleading or deceptive” may properly be submitted to a jury, since juries “normally would reflect the community’s evolving standards of honesty and fair dealings which the broad language of the phrase is intended to reach.”
Mr. Bragg also points out in his article that the Act does not expressly require intent to deceive, and he mentions the possibility that- the courts may require a showing of intent if treble damages are sought. Id. at 20. In his opinion, however, since the statute is silent on this requirement, the better approach is to construe section 17.50(b)(1) as a mandatory treble damages provision regardless of intent requiring only that plaintiff prove a violation of the statute in order to recover three times his actual damages. Id. at 21. The supreme court has adopted the view that the treble damages penalty, if applicable in the particular case, is mandatory. Woods v. Littleton, 554 S.W.2d 662 (Tex.1977). Thus, Mr. Bragg is correct in saying that if a violation of the Act is found, the trial court has no discretion to require proof of intent to deceive as a condition for recovery of treble damages.
If Mr. Bragg’s interpretation of the Act is correct, the phrase “false, misleading, or *379deceptive” is not limited to common-law fraud, does not require intent to deceive, and is neither defined in the Act nor fairly capable of definition. So interpreted, the Act provides a choice of statutory remedies in a broad and indeterminate range of cases in which the expectations of consumers are disappointed. The “fluid” character of this concept may be admirably adapted to flexibility of interpretation according to the endless variety of circumstances in which consumers may be victimized, but it raises a serious problem of due process insofar as it allows recovery of treble damages under the standard of reasonable notice set out in Connally v. General Construction Co., supra, and the other authorities above cited.
Moreover, we cannot hold that the Act is made certain enough to save its penal provisions by its adoption in section 17.46(c) of the decisions of the federal courts interpreting the Federal Trade Commission Act. Mr. Bragg acknowledges in his article that the federal decisions concerning “deception” have established “no hard and fast rules,” and that as a result “attempting to determine whether the facts of a particular case fall within the general prohibition is not an easy task.” Bragg, supra, at 12. With respect to the “laundry list,” section 17.-46(b) expressly provides: “The term ‘false, misleading or deceptive acts or practices’ includes, but is not limited to,” the acts enumerated. Thus, that term is left without definition and embraces unenumerated acts and practices.
5. Relevance of Intent to Deceive
In the present case, we do not determine whether the Act is impermissibly vague as applied to situations not before us. As applied to the transaction here in question, the problem is whether section 17.46(a) unequivocally puts defendant on notice that he was subject to the penalties of the Act, even if his statements were made in good faith. If the Act were so clear and unequivocal on this point as to leave no room for interpretation, then the Act, though perhaps harsh, would not be subject to a vagueness challenge. Section 17.46(a) is not that clear, however, as Mr. Bragg himself recognizes. We conclude that it is reasonably subject also to a contrary interpretation in view of the provisions of subsections (b) and (c). Although the expression “false, misleading, or deceptive” in subsection (a) is not defined, section 17.46(c) provides in part:
“It is the intent of the legislature that in construing Subsection (a) of this section . the courts to the extent possible will be guided by Subsection (b) of this section . . ..” Tex.Laws 1973, Ch. 143, at 324.
Subsection (b) is the “laundry list” of twenty “false, deceptive or misleading acts or practices.” Examination of this list reveals that intent to deceive is expressly required in some, but not in others, and thus an uncertainty arises as to whether such intent is required under subsection (a). Subdivision (9) specifies “advertising goods or services with intent not to sell them as advertised,” and subdivision (10) specifies “advertising goods or services with intent not to supply a reasonably expectable public demand” (emphasis added). Subdivision (17) uses the word “fraudulently,” which may be taken to apply to representations either made with knowledge of falsity or made recklessly without knowledge of the truth. See Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138, 143 (Tex.1974). More pertinent here is subdivision (13), which specifies “knowingly making false or misleading facts concerning the need for parts, replacements, or repair services.”
If a seller in the position of the defendant, undertaking to sell a boat and motor on which repair work had been done, were to read the Act and undertake to apply the instruction in subsection (c) that “courts to the extent possible will be guided by subsection (b),” he would logically look over the “laundry list” for the purpose of determining which of the subdivisions of subsection (b) would most nearly fit his circumstances. It seems to us that subdivision (13), which refers to “statements of fact concerning the need for parts, replacement, or repair service” would be the most obviously pertinent. Although subdivision (13) may have *380been intended to apply to statements that repair service is needed when it is not, this subdivision by its terms is equally applicable to statements that repair service is not needed when it is. See Woods v. Littleton, 554 S.W.2d 662, 665 (Tex.1977). Subdivision (13) explicitly provides that false or misleading statements concerning the need for repair service are within the Act if made “knowingly.” Thus it would have been reasonable for a seller in defendant’s position to regard this subdivision as exclusive and to conclude that he was not subjecting himself to the penalties of the Act if he made a good faith statement that he had just had $500 worth of repair work done, making the boat and motor “just like new.” At least, he would not be in a position to determine with any degree of certainty that such a statement would be in violation of the Act.
We recognize that the opening paragraph of subsection (b) provides that “the term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to” the acts enumerated in the list which follows. This language, however, must be reconciled with the provision in subsection (c) that in construing subsection (a) the courts must be guided by subsection (b) “to the extent possible.” A good-faith, but mistaken, statement concerning the need for repair service cannot be considered to be within subsection (a) without ignoring subsection (c) and its reference to subsection (b). Subsection (c) may be reconciled with the “not limited” clause in the opening paragraph of subsection (b) by interpreting that clause as meaning that other acts of a sort not referred to in any of the subdivisions of subsection (b) may still be held to be “false, misleading, or deceptive acts or practices” within subsection (a). For example, if a seller misrepresents the amount of the manufacturer’s suggested retail price, such a representation would not fall within any of the acts or practices listed in subsection (b), but it might nevertheless constitute a “false, misleading, or deceptive” act within subsection (a). See Spradling v. Williams, Tex., 566 S.W.2d 561 (1978). On the other hand, if the alleged deceptive act in question falls within the type of conduct described in any of the subdivisions of subsection (b), disregarding any requirement of intent therein, then it is reasonable to conclude that the language of that subdivision controls. If that subdivision requires an intent to deceive, then the alleged deceptive act is not in violation of the Act unless the specified intent to deceive is shown. By this construction, full effect and meaning is given to each of the three subdivisions of section 17.46.
This construction of section 17.46 is at least reasonable. If a contrary construction is adopted, then in our opinion, the Act does not give reasonable notice to a seller in the position of the defendant that intent to deceive is not required and, consequently, in this respect, the Act would be so vague so as to deny due process under the authorities above cited. We must construe the Act in a manner that would uphold its validity if it is reasonably susceptible to such a construction. United States v. National Diary Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); State v. Hogg, 123 Tex. 568, 72 S.W.2d 593 (1934). Consequently, we construe section 17.46 as excluding from the penalties of the Act any “false, misleading, or deceptive” statements concerning the need for repair service unless such statement was made “knowingly.” As so construed, section 17.46(a), though possibly capable of constitutional application to other cases, particularly if wrongful intent is shown, does not apply to this case under the findings of the trial court.
In this connection it is pertinent to consider cases in which the Supreme Court of the United States has relied on the requirement of intent or willfulness to uphold, as against due-process attacks, statutes which would otherwise be considered impermissi-bly vague. In United States v. National Dairy Products Corp., 372 U.S. 29, 33-35, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963), the Robinson-Patman Act, making it a crime to sell goods “ ‘at unreasonably low prices for the purpose of destroying competition or eliminating a competitor,’ ” was held to give reasonable notice to potential violators *381because the requirement of predatory intent provided further definition of the prohibited conduct. See also Boyce Motor Lines v. United States, 342 U.S. 337, 342, 72 5.Ct. 329, 96 L.Ed. 367 (1952) (I.C.C. regulation requiring motor carriers of explosives to avoid “congested thoroughfares”); Screws v. United States, 325 U.S. 91, 101-03, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (Civil Rights Act forbidding acts intended to deprive citizens of “constitutional rights”). Under these cases we hold that insofar as section 17.46(a) requires a showing of intent to deceive, it is not unconstitutionally vague.
6. Other Subdivisions of Section 17.46(b)
In the present case plaintiff has made no allegation or contention that defendant’s statements fall within any of the acts or practices listed in section 17.46(b). The Attorney General, as amicus curiae, suggests that they may fall within subdivisions (5) and (7) of subsection(b) and that these subdivisions overlap subdivision (13). Subdivision (5) prohibits a representation that “goods or services have sponsorship, approvals, characteristics, ingredients, uses, benefits or quantities which they do not have.” Subdivision (7) prohibits any representation that “goods or services are of a particular standard, quality, or grade . if they are of another.” Neither of these subdivisions expressly requires intent to deceive, as do subdivisions (9), (10), (13), and possibly (17).
We conclude that neither subdivision (5) nor subdivision (7) applies to the present case. The terms in subdivision (5), such as “characteristics” or “benefits,” seem to refer to particular characteristics or benefits of the goods when in proper condition or good working order rather than to their need for repair work. Likewise, the terms “standard, quality, or grade” in subdivision (7) seem to apply to goods available in more than one recognized “standard, quality, or grade,” as in the case of milk or meat.2 Of course, a product of poor quality or low grade may nevertheless be “in perfect condition” or “just like new.” Although these statements, when considered by themselves, may be broader than a representation concerning the need for repairs, their context so limits them here because, as the trial court found, defendant’s statement was that the boat and motor “had just had $500 worth of work done on it, making the boat and motor in ‘excellent condition,’ ‘perfect condition,’ and ‘just like new’ ” (emphasis added).
Moreover, even though these statements might be considered broader than a specific statement that the boat and motor needed no repairs, only in this respect were the statements found to be false or misleading. The court found that they were false and misleading because the repairs were inadequate and further repairs were required. Consequently, no violation of the Act can be based on subdivision (5) or subdivision (7).
7.“Unconscionable Result”
An alternative ground for recovery of treble damages is suggested by the trial court’s findings of fact. The court found that the seller’s statements were not only “false” and “misleading,” but that they “caused an unconscionable result.” This finding raises the question of applicability of section 17.50(a)(3) of the Deceptive Trade Practices Act, which provides that a consumer may maintain an action if he has been adversely affected by “any unconscionable action or course of action by any person.” If this provision requires intent on the part of the seller to take advantage of the buyer, it has no application here in view of the court’s findings that defendant did not know that the statements were *382false and did not make them recklessly. On the other hand, if we should hold that no such intent is required, this holding also would make the Act vulnerable to a due-process attack when considered as a ground for treble damages. Mr. Bragg, in the article above referred to, discusses the lack of definition of the term “any unconscionable action or course of action” and suggests that this question must be decided on a case-by-case basis. Bragg, supra, at 16, 17. Thus a seller in the position of the defendant would not have reasonable notice that his conduct is subject to the penalties of the Act. No such problem arises if the term “unconscionable” is construed to imply wrongful intent to take advantage of the buyer. See United States v. National Dairy Products Corp., 372 U.S. 29, 33-35, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), supra, and the other similar cases above cited. Consequently, we so construe the Act and hold that subsection 17.50(a)(3) provides no support for the recovery of partial treble damages in this case.
Since we hold that the Deceptive Trade Practices Act does not apply to the facts of this case as found by the trial court, appellant’s motion for rehearing is granted, our former judgment is set aside, the judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing.
. Since this case arose before the 1977 amendments to the Deceptive Trade Practices Act, we do not consider the effect of section 17.50A(1) (Vernon Supp. 1977), which limits recovery to actual damages and attorney’s fees if the defendant “proves that the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid the error.”
. The statement in the present case is similar to the statement in Spradling v. Williams, Tex., 566 S.W.2d 561 (1978), that the boat in question was “in the same condition as a new boat except for thirty hours of use of the engine.” The court seems to hold that this statement did not fall within any of the subdivisions of section 17.46(b), and, therefore, required a finding that it was a “deceptive trade practice,” although the Chief Justice expressed doubt as to whether any act not specified in subsection (b) could constitutionally be made the basis of treble damage penalties.