By:  Parker                                           S.B. No. 1412
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to motor fuel marketing and prohibited business practices,
    1-2  providing exemptions.
    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 refiner
   1-10  in acquiring motor fuel for purposes of sale at the refiner's
   1-11  retail facility, computed on a per gallon basis, plus:
   1-12                    (A)  applicable taxes and fees paid per gallon by
   1-13  the refiner to the state, the United States, or another
   1-14  governmental agency or instrumentality; and
   1-15                    (B)  transportation costs paid by the refiner per
   1-16  gallon for the motor fuel sold.
   1-17              (2)  "Affiliate" means any person who (by means of
   1-18  direct or indirect authority of a person to vote more than 50% of
   1-19  the voting stock or a partnership interest in any other person)
   1-20  controls, is controlled by or is under common control with any
   1-21  other person.
   1-22              (3)  "Distribution point" means a facility at which
   1-23  petroleum products are sold or transferred to distributors for
    2-1  further distribution by transport vehicle or cargo tanker.  The
    2-2  term includes a pipeline or barge terminal, refinery, and railcar
    2-3  loading rack.
    2-4              (4)  "Distributor" means a person engaged in the sale
    2-5  of motor fuel to a retailer at wholesale, a commercial end-user in
    2-6  bulk quantities, or another person who engages in those sales.  The
    2-7  term does not include a refinery selling directly or through a
    2-8  broker to a person who sells the motor fuel to the public at a
    2-9  retail facility.
   2-10              (5)  "Motor fuel" means gasoline and diesel fuel of a
   2-11  type distributed for use as a fuel in self-propelled vehicles
   2-12  designed primarily for use on public streets, roads, and highways.
   2-13              (6)  "Refiner" means any person engaged in the refining
   2-14  of crude oil to produce motor fuel and includes any affiliate of
   2-15  such person.
   2-16              (7)  "Retail price" means the price per gallon at which
   2-17  motor fuel is sold to the public at a retail facility.  If the
   2-18  motor fuel is sold or offered at different prices for a cash
   2-19  transaction than for a credit transaction, the retail price is the
   2-20  lower of the prices, adjusted for the cost of consumer credit.  If
   2-21  the motor fuel is sold with another item or service at a combined
   2-22  price, the retail price is the price per gallon adjusted to include
   2-23  an amount that reflects the price per gallon of the other item or
   2-24  service less the cost per gallon of the item or service.
   2-25              (8)  "Sale" includes a transfer, gift, product
    3-1  exchange, and offer or advertisement for sale made in any manner or
    3-2  by any means.
    3-3              (9)  "Retail facility" means a facility at which motor
    3-4  fuel is sold to the public, including motorists or other end-users.
    3-5              (10)  "Transfer price" means a price equal to:
    3-6                    (A)  the price a refiner charges for motor fuel
    3-7  sold to a distributor at the distribution point nearest to the
    3-8  refiner's retail facility; or
    3-9                    (B)  if a refiner does not sell motor fuel to
   3-10  distributors, the average selling price for motor fuel sold to
   3-11  distributors at the distribution point nearest to the refiner's
   3-12  retail facility, computed without including the highest and lowest
   3-13  selling price for distributors at that distribution point.
   3-14              (11)  "Transportation cost" means the cost of
   3-15  transporting motor fuel by a highway vehicle as prescribed by a
   3-16  common carrier tariff of the Railroad Commission of Texas.
   3-17        Sec. 20.02.  PRESUMED COST.  (a)  The presumed cost per
   3-18  gallon of motor fuel is an amount equal to:
   3-19              (1)  the transfer price per gallon of motor fuel of the
   3-20  same or similar grade or quality as the motor fuel for which the
   3-21  presumption is made at the distribution point closest to the retail
   3-22  facility from which, and on the date that, the motor fuel for which
   3-23  the presumption is made was sold;
   3-24              (2)  applicable taxes and fees paid per gallon required
   3-25  to be paid to the state, the United States, or another governmental
    4-1  agency or instrumentality; and
    4-2              (3)  the transportation cost per gallon for the motor
    4-3  fuel.
    4-4        (b)  For the purpose of this section, motor fuel is of the
    4-5  same or similar grade or quality if one motor fuel contains an
    4-6  additive that does not change its octane or cetane rating to more
    4-7  than one point above the rating of the other.
    4-8        Sec. 20.03.  LIBERAL CONSTRUCTION.  This chapter is remedial
    4-9  legislation and shall be liberally construed to promote its purpose
   4-10  of enhancing competition in motor fuel markets in the State of
   4-11  Texas by making unlawful certain sales below cost.
   4-12             (Sections 20.04-20.10 reserved for expansion
   4-13                  SUBCHAPTER B.  PROHIBITED MARKETING
   4-14                        PRACTICES; ENFORCEMENT
   4-15        Sec.  20.11.  PROHIBITED MARKETING PRACTICES; DEFENSES.
   4-16  (a)  A refiner may not engage in the sale of motor fuel at a retail
   4-17  facility operated by such refiner at a retail price that is less
   4-18  than the refiner's presumed cost if the refiner's intent or the
   4-19  effect of the sale is to injure a competitor or destroy
   4-20  competition.
   4-21        (b)  It is a defense to an action brought under this chapter
   4-22  that the sale was made:
   4-23              (1)  as part of a promotional activity ending not later
   4-24  than the 30th day after the date of the refiner's initial market
   4-25  area entry;
    5-1              (2)  in an isolated transaction and not in the usual
    5-2  course of business;
    5-3              (3)  as part of a complete final liquidation of a
    5-4  business;
    5-5              (4)  for charitable purposes;
    5-6              (5)  in a good faith effort to meet the equally low or
    5-7  lower legal price of a competitor; or
    5-8              (6)  at a retail price greater than the refiner's
    5-9  actual cost.
   5-10        (c)  A refiner asserting a defense set forth in Subsection
   5-11  (b)(5) of this section shall bear the burden of establishing by a
   5-12  preponderance of the evidence that any other person is a competitor
   5-13  for purposes of the defense.  Where, however, the refiner asserting
   5-14  the defense establishes that it sold motor fuel at a price
   5-15  established to meet the equally low or lower retail price of a
   5-16  retail facility located within a radius of two miles of such sale,
   5-17  the defense set forth in Subsection (b)(5) of this section shall be
   5-18  conclusively established as a matter of law.
   5-19        Sec. 20.12.  PRIVATE ACTION FOR DAMAGES.  A refiner who
   5-20  violates this chapter is liable to a person, including a
   5-21  competitor, injured in the person's business or property for:
   5-22              (1)  actual damages;
   5-23              (2)  an amount equal to three times the actual damages
   5-24  sustained by the claimant for willful violations;
   5-25              (3)  court costs; and
    6-1              (4)  reasonable attorney's fees and expert witness
    6-2  fees.
    6-3        Sec. 20.13.  ADDITIONAL EQUITABLE RELIEF.  A person
    6-4  threatened with loss or damage by a violation of this chapter may
    6-5  sue for and obtain injunctive relief under this chapter.  The court
    6-6  may grant equitable relief as the court determines necessary to
    6-7  remedy the effects of a violation, including a declaratory
    6-8  judgment, mandatory or prohibitive injunctive relief, and interim
    6-9  equitable relief.
   6-10        SECTION 2.  This Act applies only to sales of motor fuel that
   6-11  occur on or after the effective date of this Act.
   6-12        SECTION 3.  The importance of this legislation and the
   6-13  crowded condition of the calendars in both houses create an
   6-14  emergency and an imperative public necessity that the
   6-15  constitutional rule requiring bills to be read on three several
   6-16  days in each house be suspended, and this rule is hereby suspended,
   6-17  and that this Act take effect and be in force from and after its
   6-18  passage, and it is so enacted.