1-1 By: Horn (Senate Sponsor - Armbrister) H.B. No. 2520
1-2 (In the Senate - Received from the House May 10, 1995;
1-3 May 11, 1995, read first time and referred to Committee on State
1-4 Affairs; May 25, 1995, reported favorably by the following vote:
1-5 Yeas 7, Nays 0; May 25, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the sale of certain motor fuel; providing criminal and
1-9 civil penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 1, Chapter 1033, Acts of the 71st
1-12 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
1-13 Civil Statutes), is amended by adding Subdivision (3) to read as
1-14 follows:
1-15 (3) "Automotive fuel rating" has the meaning assigned
1-16 by 15 U.S.C. Section 2821, as amended.
1-17 SECTION 2. Section 2, Chapter 1033, Acts of the 71st
1-18 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
1-19 Civil Statutes), is amended to read as follows:
1-20 Sec. 2. Testing. In order to determine compliance with the
1-21 standards and for the enforcement of rules adopted under Sections
1-22 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
1-23 <comptroller of public accounts> or an authorized representative of
1-24 the commissioner of agriculture <comptroller>, any law enforcement
1-25 officer at the direction of a prosecuting attorney, or the attorney
1-26 general may test any motor fuel sold in this state, with or without
1-27 a complaint about the fuel.
1-28 SECTION 3. Chapter 1033, Acts of the 71st Legislature,
1-29 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
1-30 Statutes), is amended by adding Sections 3A and 3B to read as
1-31 follows:
1-32 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
1-33 LOWER THAN RATING POSTED ON PUMP LABEL. A motor fuel dealer in
1-34 this state may not sell or offer for sale motor fuel from a motor
1-35 fuel pump if the motor fuel contains an automotive fuel rating that
1-36 is lower than the automotive fuel rating for that motor fuel posted
1-37 on the motor fuel pump.
1-38 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
1-39 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
1-40 of motor fuel, as those persons are defined by Section 153.001, Tax
1-41 Code, may not deliver or transfer motor fuel to a motor fuel dealer
1-42 in this state if the fuel contains an automotive fuel rating that
1-43 is lower than the certification of the automotive fuel rating the
1-44 distributor or supplier is required to make to the motor fuel
1-45 dealer under federal law.
1-46 SECTION 4. Sections 4(c), (d), and (e), Chapter 1033, Acts
1-47 of the 71st Legislature, Regular Session, 1989 (Article 8614,
1-48 Vernon's Texas Civil Statutes), are amended to read as follows:
1-49 (c) The commissioner of agriculture <comptroller> by rule
1-50 may prescribe the form of the statement required by Subsection (a)
1-51 of this section.
1-52 (d) The signs required to be posted by a motor fuel dealer
1-53 under Section 3 of this Act and delivered to a motor fuel dealer
1-54 under this section shall be obtained from the commissioner of
1-55 agriculture <comptroller>.
1-56 (e) If the commissioner of agriculture <comptroller>
1-57 determines that certain types of motor fuel, such as diesel or
1-58 liquefied petroleum gas, are not sold in this state as mixtures
1-59 with alcohol in sufficient quantities to warrant regulation of
1-60 those deliveries under this Act, the commissioner of agriculture
1-61 <comptroller> may limit the application of Section 3 of this Act
1-62 and this section to motor fuels sold in sufficient quantity to
1-63 warrant regulation.
1-64 SECTION 5. Section 5, Chapter 1033, Acts of the 71st
1-65 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
1-66 Civil Statutes), is amended to read as follows:
1-67 Sec. 5. Dealer and delivery documents. (a) Each motor fuel
1-68 dealer in this state shall keep for four years a copy of each
2-1 manifest, bill of sale, bill of lading, or any other document
2-2 required to be delivered to the dealer by Section 4 of this Act.
2-3 During the first 60 days following delivery of a fuel mixture
2-4 covered by this Act, the dealer shall keep at the station or retail
2-5 outlet where the motor fuel was delivered a copy of each manifest,
2-6 bill of sale, bill of lading, or any other document required to be
2-7 delivered to the dealer by Section 4 of this Act. Each
2-8 distributor, supplier, wholesaler, or jobber of motor fuel shall
2-9 keep for four years at the principal place of business a copy of
2-10 each manifest, bill of sale, bill of lading, or any other document
2-11 required to be delivered to the dealer by Section 4 of this Act.
2-12 The documents are subject to inspection by the commissioner of
2-13 agriculture <comptroller> or an authorized representative of the
2-14 commissioner of agriculture <comptroller>, any law enforcement
2-15 officer, or the attorney general.
2-16 (b) The commissioner of agriculture <comptroller> by rule
2-17 may prescribe the manner of filing documents required to be kept
2-18 under Subsection (a) of this section, and the time, place, and
2-19 manner of inspection of the documents.
2-20 SECTION 6. Chapter 1033, Acts of the 71st Legislature,
2-21 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
2-22 Statutes), is amended by adding Section 5A to read as follows:
2-23 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
2-24 AUTOMOTIVE FUEL RATINGS. (a) Each motor fuel dealer in this state
2-25 shall keep for at least one year a copy of:
2-26 (1) each delivery ticket or letter of certification on
2-27 which the motor fuel dealer based a posting of the automotive fuel
2-28 rating of motor fuel contained in a motor fuel pump;
2-29 (2) records of any automotive fuel rating
2-30 determination made by the motor fuel dealer under 16 CFR Part 306,
2-31 as amended; and
2-32 (3) each delivery ticket or letter of certification
2-33 that is required to be delivered to the dealer under 16 CFR Part
2-34 306.
2-35 (b) Each distributor or supplier shall keep for at least one
2-36 year at the principal place of business a copy of each delivery
2-37 ticket or letter of certification required to be delivered by the
2-38 distributor or supplier to a motor fuel dealer in this state under
2-39 16 CFR Part 306, as amended.
2-40 (c) A document required to be kept under this section is
2-41 subject to inspection by the commissioner of agriculture or an
2-42 authorized representative of the commissioner of agriculture, any
2-43 law enforcement officer, or the attorney general.
2-44 SECTION 7. Section 6, Chapter 1033, Acts of the 71st
2-45 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
2-46 Civil Statutes), is amended to read as follows:
2-47 Sec. 6. Civil action. (a) If a motor fuel dealer or a
2-48 distributor, supplier, wholesaler, or jobber of motor fuel violates
2-49 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
2-50 purchased the fuel and who has suffered damages or has a complaint
2-51 about the product may maintain a civil action against the motor
2-52 fuel dealer or the distributor, supplier, wholesaler, or jobber of
2-53 motor fuel. The action may be brought, without regard to any
2-54 specific amount in damages, in the district court in any county in
2-55 which the motor fuel dealer, distributor, supplier, wholesaler, or
2-56 jobber is doing business or in which the motor fuel user resides.
2-57 (b) In any action under this section, the court shall award
2-58 to the motor fuel user who prevails the amount of actual damages
2-59 and grant such equitable relief as the court determines is
2-60 necessary to remedy the effects of the motor fuel dealer's
2-61 violation or the distributor, supplier, wholesaler, or jobber's
2-62 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
2-63 Act, including declaratory judgment, permanent injunctive relief,
2-64 and temporary injunctive relief. In addition, the court shall
2-65 award to the motor fuel user who prevails in an action brought
2-66 hereunder court costs and attorney's fees that are reasonable in
2-67 relation to the amount of work expended.
2-68 (c) In addition to the remedies provided in Subsection (b)
2-69 of this section, if the trier of fact finds that the violation of
2-70 Section 3, 4, or 5 of this Act was committed wilfully or knowingly
3-1 by the defendant, the trier of fact shall award not more than three
3-2 times the amount of actual damages.
3-3 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
3-4 also a deceptive trade practice under Subchapter E, Chapter 17,
3-5 Business & Commerce Code.
3-6 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
3-7 or 5 of this Act shall be commenced and prosecuted within two years
3-8 after the date the cause of action accrued.
3-9 SECTION 8. Section 7, Chapter 1033, Acts of the 71st
3-10 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
3-11 Civil Statutes), is amended to read as follows:
3-12 Sec. 7. Civil penalty. A motor fuel dealer or a
3-13 distributor, supplier, wholesaler, or jobber of motor fuel who
3-14 violates a provision of Section 3, 3A, 3B, 4, or 5 of this Act
3-15 forfeits to the state a civil penalty of not less than $200 <$25>
3-16 nor more than $10,000 <$200>.
3-17 SECTION 9. Sections 8(a), (b), and (e), Chapter 1033, Acts
3-18 of the 71st Legislature, Regular Session, 1989 (Article 8614,
3-19 Vernon's Texas Civil Statutes), are amended to read as follows:
3-20 (a) A person commits an offense if the person intentionally
3-21 or knowingly violates Section 3, 3A, 3B, 4, or 5 of this Act or any
3-22 rule of the commissioner of agriculture <comptroller> prescribed to
3-23 enforce or implement those sections of this Act.
3-24 (b) A person commits an offense if the person intentionally
3-25 or knowingly:
3-26 (1) refuses to permit a person authorized by Section 2
3-27 of this Act to test any motor fuel sold or held for sale in this
3-28 state;
3-29 (2) refuses to permit inspection of any document
3-30 required to be kept or delivered by this Act upon request of a
3-31 person authorized to inspect such documents by Section 5 or 5A of
3-32 this Act; or
3-33 (3) mutilates, destroys, secretes, forges, or
3-34 falsifies any document, record, report, or sign required to be
3-35 delivered, kept, filed, or posted by this Act or any rule
3-36 prescribed by the comptroller for the enforcement of this Act.
3-37 (e) A user, the commissioner of agriculture <comptroller> or
3-38 the <comptroller's> authorized representative of the commissioner
3-39 of agriculture, any law enforcement officer, or the attorney
3-40 general may file a complaint under this section.
3-41 SECTION 10. Sections 9(a) and (f), Chapter 1033, Acts of the
3-42 71st Legislature, Regular Session, 1989 (Article 8614, Vernon's
3-43 Texas Civil Statutes), are amended to read as follows:
3-44 (a) The commissioner of agriculture <comptroller> may adopt
3-45 rules not inconsistent with this Act for the regulation of the sale
3-46 of motor fuels containing ethanol and methanol.
3-47 (f) The fees collected under this section may be used only:
3-48 (1) by the comptroller to defray the cost of
3-49 collecting the fees and penalties imposed by this Act and not to
3-50 exceed $25,000 annually; or
3-51 (2) by the commissioner of agriculture for the
3-52 administration and enforcement of this Act <by the comptroller and
3-53 shall be deposited in the Comptroller's Operating Fund 062>.
3-54 SECTION 11. Section 10, Chapter 1033, Acts of the 71st
3-55 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
3-56 Civil Statutes), is amended to read as follows:
3-57 Sec. 10. CONTRACTING FOR ENFORCEMENT. The commissioner of
3-58 agriculture <comptroller> may contract for the enforcement of this
3-59 Act after due notice.
3-60 SECTION 12. Chapter 1033, Acts of the 71st Legislature,
3-61 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
3-62 Statutes), is amended by adding Section 11 to read as follows:
3-63 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
3-64 commissioner of agriculture, an authorized representative of the
3-65 commissioner of agriculture, or the attorney general may make a
3-66 copy of any manifest, bill of sale, bill of lading, delivery
3-67 ticket, letter of certification, or other document the commissioner
3-68 or attorney general is entitled to inspect under this Act. The
3-69 commissioner of agriculture, an authorized representative of the
3-70 commissioner of agriculture, or the attorney general may deliver
4-1 the copy of a document described by this section to the federal
4-2 government for purposes of prosecuting persons for violations of
4-3 federal law relating to the sale or transfer of motor fuel.
4-4 SECTION 13. The changes in law made by this Act relating to
4-5 a penalty that may be imposed apply only to a violation that occurs
4-6 on or after the effective date of this Act. A violation occurs on
4-7 or after the effective date of this Act if each element of the
4-8 violation occurs on or after that date. A violation that occurs
4-9 before the effective date of this Act is covered by the law in
4-10 effect when the violation occurred, and the former law is continued
4-11 in effect for that purpose.
4-12 SECTION 14. All rules adopted by the comptroller
4-13 specifically for the administration of Chapter 1033, Acts of the
4-14 71st Legislature, Regular Session, 1989 (Article 8614, Vernon's
4-15 Texas Civil Statutes), in effect on the effective date of this Act
4-16 remain in effect until amended or repealed by the commissioner of
4-17 agriculture under authority granted to the commissioner of
4-18 agriculture by a change in law made by this Act or other law.
4-19 SECTION 15. This Act takes effect September 1, 1995, and
4-20 applies only to deliveries, transfers, or sales, as applicable, of
4-21 motor fuel that occur on or after that date.
4-22 SECTION 16. The importance of this legislation and the
4-23 crowded condition of the calendars in both houses create an
4-24 emergency and an imperative public necessity that the
4-25 constitutional rule requiring bills to be read on three several
4-26 days in each house be suspended, and this rule is hereby suspended.
4-27 * * * * *