By:  Junell                                            H.B. No. 863
       73R2542 LJD-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the marketing of motor fuel; providing penalties.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Title 2, Business & Commerce Code, is amended by
    1-5  adding Chapter 20 to read as follows:
    1-6                   CHAPTER 20.  MOTOR FUEL MARKETING
    1-7                   SUBCHAPTER A.  GENERAL PROVISIONS
    1-8        Sec. 20.01.  DEFINITIONS.  In this chapter:
    1-9              (1)  "Actual cost" means the cost incurred by a person
   1-10  in acquiring motor fuel for purposes of sale at the person's
   1-11  service facility, computed on a per gallon basis, plus:
   1-12                    (A)  applicable taxes and fees paid per gallon by
   1-13  the person to the state, the United States, or another governmental
   1-14  agency or instrumentality; and
   1-15                    (B)  transportation costs paid by the person per
   1-16  gallon for the motor fuel sold.
   1-17              (2)  "Distribution point" means a facility at which
   1-18  petroleum products are sold or transferred to distributors for
   1-19  further distribution by transport vehicle or cargo tanker.  The
   1-20  term includes a pipeline or barge terminal, refinery, and railcar
   1-21  loading rack.
   1-22              (3)  "Distributor" means a person engaged in the sale
   1-23  of motor fuel to a retailer at wholesale, a commercial end-user in
   1-24  bulk quantities, or another person who engages in those sales.  The
    2-1  term does not include a refinery selling directly or through a
    2-2  broker to a person who sells the motor fuel to the public at a
    2-3  service facility.
    2-4              (4)  "Motor fuel" means gasoline and diesel fuel of a
    2-5  type distributed for use as a fuel in self-propelled vehicles
    2-6  designed primarily for use on public streets, roads, and highways.
    2-7              (5)  "Retail price" means the price per gallon at which
    2-8  motor fuel is sold to the public at a service facility.  If the
    2-9  motor fuel is sold or offered at different prices for a cash
   2-10  transaction than for a credit transaction, the retail price is the
   2-11  lower of the prices, adjusted for the cost of consumer credit.  If
   2-12  the motor fuel is sold with another item or service at a combined
   2-13  price, the retail price is the price per gallon adjusted to include
   2-14  an amount that reflects the price per gallon of the other item or
   2-15  service less the cost per gallon of the item or service.
   2-16              (6)  "Sale" includes a transfer, gift, product
   2-17  exchange, and offer or advertisement for sale made in any manner or
   2-18  by any means.
   2-19              (7)  "Service facility" means a facility at which motor
   2-20  fuel is sold to the public, including motorists or other end-users.
   2-21              (8)  "Transfer price" means a price equal to:
   2-22                    (A)  the price a person charges for motor fuel
   2-23  sold to a distributor at the distribution point nearest to the
   2-24  person's service facility; or
   2-25                    (B)  if a person does not sell motor fuel to
   2-26  distributors, the average selling price for motor fuel sold to
   2-27  distributors at the distribution point nearest to the person's
    3-1  service facility, computed without including the highest and lowest
    3-2  selling price for distributors at that distribution point.
    3-3              (9)  "Transportation cost" means the cost of
    3-4  transporting motor fuel by a highway vehicle as prescribed by a
    3-5  common carrier tariff of the Railroad Commission of Texas.
    3-6        Sec. 20.02.  PRESUMED COST.  (a)  The presumed cost per
    3-7  gallon of motor fuel is an amount equal to:
    3-8              (1)  the transfer price per gallon of motor fuel of the
    3-9  same or similar grade or quality as the motor fuel for which the
   3-10  presumption is made at the distribution point closest to the
   3-11  service facility from which, and on the date that, the motor fuel
   3-12  for which the presumption is made was sold;
   3-13              (2)  applicable taxes and fees paid per gallon required
   3-14  to be paid to the state, the United States, or another governmental
   3-15  agency or instrumentality; and
   3-16              (3)  the transportation cost per gallon for the motor
   3-17  fuel.
   3-18        (b)  For the purpose of this section, motor fuel is of the
   3-19  same or similar grade or quality if one motor fuel contains an
   3-20  additive that does not change its octane or cetane rating to more
   3-21  than one point above the rating of the other.
   3-22        Sec. 20.03.  LIBERAL CONSTRUCTION.  This chapter is remedial
   3-23  legislation and shall be liberally construed.
   3-24             (Sections 20.04-20.10 reserved for expansion
   3-25                  SUBCHAPTER B.  PROHIBITED MARKETING
   3-26                        PRACTICES; ENFORCEMENT
   3-27        Sec. 20.11.  PROHIBITED MARKETING PRACTICES; DEFENSES.  (a)
    4-1  A person may not engage in the sale of motor fuel at a service
    4-2  facility at a retail price that is less than the person's presumed
    4-3  cost if the person's intent or the effect of the sale is to injure
    4-4  a competitor or destroy competition.
    4-5        (b)  It is a defense to an action brought under this chapter
    4-6  that the sale was made:
    4-7              (1)  as part of a promotional activity ending not later
    4-8  than the 30th day after the date of the seller's initial market
    4-9  area entry;
   4-10              (2)  in an isolated transaction and not in the usual
   4-11  course of business;
   4-12              (3)  as part of a complete final liquidation of a
   4-13  business;
   4-14              (4)  for charitable purposes;
   4-15              (5)  in a good faith effort to meet the equally low or
   4-16  lower legal price of a competitor; or
   4-17              (6)  at a retail price greater than the defendant's
   4-18  actual cost.
   4-19        (c)  A person is presumed to be a competitor for purposes of
   4-20  Subsection (b)(5) of this section if the person sells motor fuel at
   4-21  a service facility located within a radius of one mile from the
   4-22  service facility at which a sale in violation of Subsection (a) of
   4-23  this section is alleged to have been made.  This presumption may be
   4-24  rebutted by clear and convincing evidence of a larger relevant
   4-25  competitive market for motor fuel than the one described by this
   4-26  subsection.
   4-27        Sec. 20.12.  CIVIL PENALTY.  A person who violates this
    5-1  chapter is liable to the state for a civil penalty of not more than
    5-2  $5,000 for each sale in violation.  The attorney general may sue to
    5-3  collect the penalty.
    5-4        Sec. 20.13.  PRIVATE ACTION FOR DAMAGES.  A person who
    5-5  violates this chapter is liable to a person, including a
    5-6  competitor, injured in the person's business or property for:
    5-7              (1)  actual damages;
    5-8              (2)  an amount equal to the greater of:
    5-9                    (A)  three times the actual damages sustained by
   5-10  the claimant; or
   5-11                    (B)  the sum of $5,000 for each sale in violation
   5-12  of this chapter;
   5-13              (3)  court costs; and
   5-14              (4)  reasonable attorney's fees and expert witness
   5-15  fees.
   5-16        Sec. 20.14.  ADDITIONAL EQUITABLE RELIEF.  The attorney
   5-17  general or a person threatened with loss or damage by a violation
   5-18  of this chapter may sue for and obtain injunctive relief under this
   5-19  chapter.  The court may grant equitable relief as the court
   5-20  determines necessary to remedy the effects of a violation,
   5-21  including a declaratory judgment, mandatory or prohibitive
   5-22  injunctive relief, and interim equitable relief.
   5-23        SECTION 2.  This Act applies only to sales of motor fuel that
   5-24  occur on or after the effective date of this Act.
   5-25        SECTION 3.  The importance of this legislation and the
   5-26  crowded condition of the calendars in both houses create an
   5-27  emergency and an imperative public necessity that the
    6-1  constitutional rule requiring bills to be read on three several
    6-2  days in each house be suspended, and this rule is hereby suspended,
    6-3  and that this Act take effect and be in force from and after its
    6-4  passage, and it is so enacted.