1-1  By:  Cain                                              S.B. No. 921
    1-2        (In the Senate - Filed March 6, 1995; March 6, 1995, read
    1-3  first time and referred to Committee on Economic Development;
    1-4  April 5, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 10, Nays 0; April 5, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 921                    By:  Madla
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the regulation of certain persons engaged in the
   1-11  business of motor vehicle leasing.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Section 1.03, Texas Motor Vehicle Commission Code
   1-14  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   1-15  read as follows:
   1-16        Sec. 1.03.  Definitions.  In this Act:
   1-17              (1)  "Motor vehicle" means:
   1-18                    (A)  every fully self-propelled vehicle which has
   1-19  as its primary purpose the transport of a person or persons, or
   1-20  property, on a public highway, and having two or more wheels;
   1-21                    (B)  every two or more wheeled fully
   1-22  self-propelled, titled vehicle which has as its primary purpose the
   1-23  transport of a person or persons or property and is not
   1-24  manufactured for use on public streets, roads, or highways; or
   1-25                    (C)  an engine, transmission, or rear axle
   1-26  manufactured for installation in a vehicle having as its primary
   1-27  purpose the transport of a person or persons or property on a
   1-28  public highway and having a gross vehicle weight rating of more
   1-29  than 16,000 pounds, whether or not attached to a vehicle chassis.
   1-30              (2)  "New motor vehicle" means a motor vehicle which
   1-31  has not been the subject of a "retail sale" without regard to the
   1-32  mileage of the vehicle.
   1-33              (3)  "Person" means a natural person, partnership,
   1-34  corporation, association, trust, estate, or any other legal entity.
   1-35              (4)  "Dealer" means any person engaged in the business
   1-36  of buying, selling or exchanging new motor vehicles at an
   1-37  established and permanent place of business pursuant to a franchise
   1-38  in effect with a manufacturer or distributor.
   1-39              (5)  "Manufacturer" means any person who manufactures
   1-40  or assembles new motor vehicles either within or without this
   1-41  State.
   1-42              (6)  "Distributor" means any person who distributes
   1-43  and/or sells new motor vehicles to dealers and who is not a
   1-44  manufacturer.
   1-45              (7)  "Representative" means any person who is or acts
   1-46  as an agent, employee or representative of a manufacturer,
   1-47  distributor, or converter who performs any duties in this State
   1-48  relating to promoting the distribution and/or sale of new motor
   1-49  vehicles or contacts dealers in this State on behalf of a
   1-50  manufacturer, distributor, or converter.
   1-51              (8)  "Franchise" means one or more contracts between a
   1-52  dealer as franchisee, and either a manufacturer or a distributor as
   1-53  franchisor under which (A) the franchisee is granted the right to
   1-54  sell new motor vehicles manufactured or distributed by the
   1-55  franchisor; (B) the franchisee as an independent business is a
   1-56  component of franchisor's distribution system; (C) the franchisee
   1-57  is substantially associated with franchisor's trademark, tradename
   1-58  and commercial symbol; (D) the franchisee's business is
   1-59  substantially reliant on franchisor for a continued supply of motor
   1-60  vehicles, parts, and accessories for the conduct of its business;
   1-61  or (E) any right, duty, or obligation granted or imposed by this
   1-62  Act is affected.  The term includes a written communication from a
   1-63  franchisor to a franchisee by which a duty is imposed on the
   1-64  franchisee.
   1-65              (10)  "Broker" means a person who, for a fee,
   1-66  commission, or other valuable consideration, arranges or offers to
   1-67  arrange a transaction involving the sale, for purposes other than
   1-68  resale, of a new motor vehicle, and who is not:
    2-1                    (A)  a dealer or bona fide employee of a dealer
    2-2  when acting on behalf of a dealer;
    2-3                    (B)  a representative or bona fide employee of a
    2-4  representative when acting on behalf of a representative;
    2-5                    (C)  a distributor or bona fide employee of a
    2-6  distributor when acting on behalf of a distributor; or
    2-7                    (D)  at any point in the transaction the bona
    2-8  fide owner of the vehicle involved in the transaction.
    2-9              (11)  "Motor home" means a motor vehicle which is
   2-10  designed to provide temporary living quarters and which:
   2-11                    (A)  is built onto as an integral part of, or is
   2-12  permanently attached to, a motor vehicle chassis; and
   2-13                    (B)  contains at least four of the following
   2-14  independent life support systems if each is permanently installed
   2-15  and designed to be removed only for purposes of repair or
   2-16  replacement and meets the standards of the American National
   2-17  Standards Institute, Standards for Recreational Vehicles:
   2-18                          (i)  a cooking facility with an on-board
   2-19  fuel source;
   2-20                          (ii)  a gas or electric refrigerator;
   2-21                          (iii)  a toilet with exterior evacuation;
   2-22                          (iv)  a heating or air conditioning system
   2-23  with an on-board power or fuel source separate from the vehicle
   2-24  engine;
   2-25                          (v)  a potable water supply system that
   2-26  includes at least a sink, a faucet, and a water tank with an
   2-27  exterior service supply connection;
   2-28                          (vi)  a 110-125 volt electric power supply.
   2-29              (12)  "Conversion" means a motor vehicle, other than a
   2-30  motor home, which has been substantially modified by a person other
   2-31  than the manufacturer or distributor of the chassis of the motor
   2-32  vehicle and which has not been the subject of a retail sale.
   2-33              (13)  "Motor home manufacturer" means a person other
   2-34  than the manufacturer of the chassis of a motor vehicle who, prior
   2-35  to the retail sale of the motor vehicle, performs modifications on
   2-36  the chassis that result in the finished product being classified as
   2-37  a motor home.
   2-38              (14)  "Chassis manufacturer" means a person who
   2-39  manufactures and produces the frame upon which is mounted the body
   2-40  of a motor vehicle.
   2-41              (15)  "Converter" means a person who prior to the
   2-42  retail sale of a motor vehicle, assembles, installs, or affixes a
   2-43  body, cab, or special equipment to a chassis, or who substantially
   2-44  adds, subtracts from, or modifies a previously assembled or
   2-45  manufactured motor vehicle.
   2-46              (16)  "Rule" means a statement by the Commission of
   2-47  general and future applicability that implements, interprets, or
   2-48  prescribes law or policy or describes the organization or
   2-49  procedural practice requirements of the Commission.  The term
   2-50  includes the amendment or repeal of a prior rule, but does not
   2-51  include statements concerning only the internal management of the
   2-52  Commission which do not affect the rights of a person not connected
   2-53  with the Commission.
   2-54              (17)  "Party" means each person or agency named or
   2-55  admitted as a party and whose legal rights, duties, or privileges
   2-56  are to be determined by the Commission after an opportunity for
   2-57  adjudicative hearing.
   2-58              (18)  "Relocation" means the transfer of an existing
   2-59  dealership operation to facilities at a different location,
   2-60  including a transfer which results in a consolidation or dualing of
   2-61  an existing dealer's operation.
   2-62              (19)  "Retail sale" means the sale of a motor vehicle
   2-63  except:
   2-64                    (A)  a sale in which the purchaser acquires a
   2-65  vehicle for the purpose of resale; or
   2-66                    (B)  a sale of a vehicle that is operated under
   2-67  and in accordance with Article 6686, Revised Statutes.
   2-68              (20)  "Warranty work" means parts, labor, and any other
   2-69  expenses incurred by a dealer in complying with the terms of a
   2-70  manufacturer's or distributor's warranty.
    3-1              (21)  "Department" means the Texas Department of
    3-2  Transportation.
    3-3              (22)  "Transportation Commission" means the Texas
    3-4  Transportation Commission of the Texas Department of
    3-5  Transportation.
    3-6              (23)  "Lease" means a transfer of the right to
    3-7  possession and use of a motor vehicle for a term in excess of 180
    3-8  days in return for consideration.
    3-9              (24)  "Lessor" means a person who acquires title to a
   3-10  new motor vehicle for the purpose of leasing the vehicle to another
   3-11  person.
   3-12              (25)  "Lease facilitator" means a person, other than a
   3-13  dealer or a bona fide employee of a dealer, or a vehicle lessor or
   3-14  a bona fide employee of a vehicle lessor, who:
   3-15                    (A)  holds himself out to any person as a "motor
   3-16  vehicle leasing company" or "motor vehicle leasing agent" or uses a
   3-17  similar title, for the purpose of soliciting or procuring a person
   3-18  to enter into a contract or agreement to become the lessee of a
   3-19  vehicle that is not, and will not be, titled in the name of and
   3-20  registered to the lease facilitator; or
   3-21                    (B)  otherwise solicits a person to enter into a
   3-22  contract or agreement to become a lessee of a vehicle that is not,
   3-23  and will not be, titled in the name of and registered to the lease
   3-24  facilitator, or who is otherwise engaged in the business of
   3-25  securing lessees or prospective lessees of motor vehicles that are
   3-26  not, and will not be, titled in the name of and registered to the
   3-27  facilitator.
   3-28              (26)  "Manufacturer's statement of origin" means a
   3-29  certificate on a form prescribed by the Department showing the
   3-30  original transfer of a new motor vehicle from the manufacturer to
   3-31  the original purchaser.
   3-32        SECTION 2.  Subsection (a), Section 3.01, Texas Motor Vehicle
   3-33  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   3-34  is amended to read as follows:
   3-35        (a)  The Commission has <is hereby delegated and vested with,
   3-36  in the exercise of the State's police power,> the general and
   3-37  original power and jurisdiction to regulate all aspects of the
   3-38  distribution, <and> sale, and leasing of new motor vehicles and to
   3-39  do all things, whether specifically designated in this Act or
   3-40  implied herein, or necessary or convenient to the exercise of this
   3-41  power and jurisdiction, including the original jurisdiction to
   3-42  determine questions of its own jurisdiction.
   3-43        SECTION 3.  Subsection (a), Section 3.02, Texas Motor Vehicle
   3-44  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   3-45  is amended to read as follows:
   3-46        (a)  The Commission shall, in accordance with this Act,
   3-47  administer the provisions of this Act, establish the qualifications
   3-48  of licensees <manufacturers, distributors, converters, and
   3-49  dealers>, ensure that the distribution, <and> sale, and leasing of
   3-50  motor vehicles is conducted as provided herein and under the
   3-51  Commission's rules, provide for compliance with warranties, and
   3-52  otherwise prevent fraud, unfair practices, discriminations,
   3-53  impositions, and other abuses in connection with the distribution
   3-54  and sale of new motor vehicles.
   3-55        SECTION 4.  Section 4.01, Texas Motor Vehicle Commission Code
   3-56  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   3-57  read as follows:
   3-58        Sec. 4.01.  License Required.  Except as provided by this
   3-59  Section, no <No> person shall engage in business as, serve in the
   3-60  capacity of, or act as a dealer, manufacturer, distributor,
   3-61  converter, <or> representative, lessor, or lease facilitator in
   3-62  this State without obtaining a license therefor as provided in this
   3-63  Act and the rules of the Commission.  All new license applications
   3-64  shall be reviewed and, in the discretion of the Commission,
   3-65  investigated to determine compliance with the provisions of this
   3-66  Act.  License renewals may be administratively granted unless
   3-67  protested.  Licenses issued by the Commission shall expire one year
   3-68  from date of issuance.  Notwithstanding the effective date of any
   3-69  franchise agreement, all licenses and renewals thereof are issued
   3-70  subject to all provisions of this Act and rules of the Commission
    4-1  in effect upon the date of issuance as well as all future
    4-2  provisions of this Act and rules which may become effective during
    4-3  the term of the license.  A lessor or lease facilitator is not
    4-4  required to obtain a lessor or lease facilitator license or pay a
    4-5  license fee under this code if the lessor or lease facilitator is a
    4-6  state or federally chartered financial institution or a regulated
    4-7  subsidiary of a state or federally chartered financial institution.
    4-8  A trust or other entity that owns an interest in a lease and the
    4-9  vehicle that is the subject of the lease is not required to obtain
   4-10  a lessor license or lease facilitator license or pay a license fee
   4-11  with respect to a lease initiated, managed, serviced, and
   4-12  administered by a licensed lessor.
   4-13        SECTION 5.  The Texas Motor Vehicle Commission Code (Article
   4-14  4413(36), Vernon's Texas Civil Statutes), is amended by adding
   4-15  Sections 4.03A and 4.03B to read as follows:
   4-16        Sec. 4.03A.  LESSOR APPLICATION.  An application for a lessor
   4-17  license shall be on a form prescribed by the Commission and shall
   4-18  contain evidence of compliance with Article 6686, Revised Statutes,
   4-19  if applicable, and other information prescribed by the Commission.
   4-20  This Act does not require a separate license for each individual
   4-21  employee of a lessor.
   4-22        Sec. 4.03B.  LEASE FACILITATOR APPLICATION.  An application
   4-23  of a lease facilitator license shall be on a form prescribed by the
   4-24  Commission and shall contain the information prescribed by the
   4-25  Commission.  This Act does not require a separate license for each
   4-26  individual employee of a lease facilitator.
   4-27        SECTION 6.  Subsection (a), Section 4.05, Texas Motor Vehicle
   4-28  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   4-29  is amended to read as follows:
   4-30        (a)  The annual license fees for licenses issued hereunder
   4-31  shall be as follows:
   4-32              (1)  For each manufacturer and distributor, $825.
   4-33              (2)  For each dealer who sold 200 or fewer new motor
   4-34  vehicles during the preceding calendar year, $165.
   4-35              (3)  For each dealer who sold more than 200, but not
   4-36  more than 500, new motor vehicles during the preceding calendar
   4-37  year, $275.
   4-38              (4)  For each dealer who sold more than 500, but not
   4-39  more than 1,000, new motor vehicles during the preceding calendar
   4-40  year, $385.
   4-41              (5)  For each dealer who sold more than 1,000 new motor
   4-42  vehicles during the preceding calendar year, $495.
   4-43              (6)  For each representative, $85.
   4-44              (7)  For each converter, $275.
   4-45              (8)  For each amendment to a dealer's license, $25.
   4-46              (9)  For each lessor who leased 200 or fewer motor
   4-47  vehicles during the preceding calendar year, $175.
   4-48              (10)  For each lessor who leased more than 200 but not
   4-49  more than 400 motor vehicles during the preceding calendar year,
   4-50  $275.
   4-51              (11)  For each lessor who leased more than 400 but not
   4-52  more than 800 motor vehicles during the preceding calendar year,
   4-53  $400.
   4-54              (12)  For each lessor who leased more than 800 but not
   4-55  more than 1,200 motor vehicles during the preceding calendar year,
   4-56  $500.
   4-57              (13)  For each lessor who leased more than 1,200 but
   4-58  not more than 1,600 motor vehicles during the preceding calendar
   4-59  year, $625.
   4-60              (14)  For each lessor who leased more than 1,600 motor
   4-61  vehicles during the preceding calendar year, $750.
   4-62              (15)  For each lease facilitator, $375.
   4-63        SECTION 7.  Section 5.01, Texas Motor Vehicle Commission Code
   4-64  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   4-65  read as follows:
   4-66        Sec. 5.01.  Dealers.  It shall be unlawful for any dealer to:
   4-67              (1)  Require a retail purchaser of a new motor vehicle
   4-68  as a condition of sale and delivery thereof to purchase special
   4-69  features, equipment, parts, or accessories not ordered or desired
   4-70  by the purchaser, provided such features, equipment, parts, or
    5-1  accessories are not already installed on the new motor vehicle at
    5-2  the time of sale.
    5-3              (2)  Use false, deceptive, or misleading advertising.
    5-4              (3)  Fail to perform the obligations placed on the
    5-5  selling dealer in connection with the delivery and preparation of a
    5-6  new motor vehicle for retail sale as provided in the manufacturer's
    5-7  preparation and delivery agreements on file with the Commission and
    5-8  applicable to such vehicle.
    5-9              (4)  Fail to perform the obligations placed on the
   5-10  dealer in connection with the manufacturer's warranty agreements on
   5-11  file with the Commission.
   5-12              (5)  Operate as a dealer without a currently valid
   5-13  license from the Commission or otherwise violate this Act or rules
   5-14  promulgated by the Commission hereunder.
   5-15              (6)  Operate without appropriate signs readily and
   5-16  easily visible to the public, identifying the dealer's place of
   5-17  business and the products the dealer offers for sale.  In the event
   5-18  of a conflict with another law or ordinance, this Subdivision
   5-19  prevails, and in the event of a dispute, the Board has exclusive
   5-20  jurisdiction to determine whether a sign or signs are in compliance
   5-21  with the terms of this Subdivision.  In the event of a dispute, the
   5-22  Board shall uphold local ordinances of a home-rule city and protect
   5-23  dealers from retribution by manufacturers for having complied with
   5-24  local ordinances.
   5-25              (7)  Directly or indirectly pay a fee to a lessor or
   5-26  lease facilitator.
   5-27        SECTION 8.  The Texas Motor Vehicle Commission Code (Article
   5-28  4413(36), Vernon's Texas Civil Statutes), is amended by adding
   5-29  Sections 5.03A and 5.03B to read as follows:
   5-30        Sec. 5.03A.  LESSORS.  (a)  A lessor may not directly or
   5-31  indirectly accept a fee from a dealer.
   5-32        (b)  A lessor may not pay a fee to any person in return for
   5-33  the solicitation, procurement, or production by that person of
   5-34  prospective lessees of motor vehicles unless the person receiving
   5-35  the fee is a lease facilitator who holds a valid license as
   5-36  provided by this code and a valid appointment from the lessor as
   5-37  provided by this section.
   5-38        (c)  A lessor may appoint one or more lease facilitators
   5-39  licensed pursuant to the terms of this code to represent the lessor
   5-40  in obtaining prospective lease customers.  An appointment complies
   5-41  with the requirements of this subsection if it is in writing,
   5-42  discloses its terms, and otherwise complies with rules of the
   5-43  Commission.
   5-44        (d)  In a lease contract or agreement between a lessor and a
   5-45  lessee solicited, procured, or produced by a lease facilitator, the
   5-46  lessor shall disclose to the lessee that a fee was paid, or will be
   5-47  paid to the lease facilitator for the solicitation, procurement, or
   5-48  production of the lessee or the lease.  The lessor shall include
   5-49  the disclosure required by this subsection in a prominent position
   5-50  either:
   5-51              (1)  on the face of the written memorandum of the lease
   5-52  contract or agreement; or
   5-53              (2)  on a separate instrument signed by the lessee at
   5-54  the same time as the signing of the lease contract or agreement.
   5-55        (e)  Except as provided by this subsection or by law of the
   5-56  United States or a rule duly promulgated by an agency of the United
   5-57  States, a lessor may not, and the terms of a lease agreement may
   5-58  not, prohibit the lessee from taking the vehicle that is the
   5-59  subject of the lease agreement into a specific foreign nation
   5-60  unless the lease agreement prohibits the lessee from taking the
   5-61  vehicle into all foreign nations.  In the interests of justice and
   5-62  giving deference to standard national business practices, the
   5-63  Commission may adopt a rule by which a lease agreement may prohibit
   5-64  the lessee from taking the leased vehicle into a foreign nation
   5-65  whether or not it prohibits the lessee from taking the vehicle into
   5-66  another foreign nation.  In adopting a rule under this subsection
   5-67  the Commission shall give due consideration to the proximity of
   5-68  international borders to prospective Texas lessees.
   5-69        Sec. 5.03B.  LEASE FACILITATORS.  (a)  No person may hold
   5-70  himself out to any person as a "leasing company," "leasing agent,"
    6-1  "lease facilitator," or similar title, directly or indirectly
    6-2  engaged in the business of lease facilitator, or otherwise engage
    6-3  in the solicitation or procurement of prospective lessees for motor
    6-4  vehicles not titled in the name of and registered to the person,
    6-5  unless the person holds a valid lease facilitator license and is in
    6-6  compliance with the terms of this code.
    6-7        (b)  A lease facilitator may not:
    6-8              (1)  sell or offer to sell a new motor vehicle;
    6-9              (2)  accept a fee from a dealer;
   6-10              (3)  sign a motor vehicle manufacturer's statement of
   6-11  origin to a vehicle, accept an assignment of a manufacturer's
   6-12  statement of origin to a vehicle, or otherwise assume any element
   6-13  of title to a new motor vehicle;
   6-14              (4)  procure or solicit prospective lessees for or on
   6-15  behalf of any person other than a lessor; or
   6-16              (5)  act in the capacity of or engage in the business
   6-17  of lease facilitator without a valid license issued as provided by
   6-18  this code and a valid appointment from a lessor to act on behalf of
   6-19  the lessor in soliciting prospective lease clients or customers as
   6-20  provided by this code.
   6-21        (c)  Except as provided by Subsection (b)(2) of this section,
   6-22  a lease facilitator may accept a fee for procuring a vehicle lessee
   6-23  or prospective vehicle lessee for or on behalf of a lessor.
   6-24        (d)  This section does not limit the ability of a lease
   6-25  facilitator to accept an appointment from more than one lessor.
   6-26        (e)  This section does not prohibit a lease facilitator from
   6-27  representing a lessor or lessee in the acquisition of a motor
   6-28  vehicle for the purpose of leasing the vehicle to another person.
   6-29        SECTION 9.  Except as specifically provided by state law, the
   6-30  Texas Motor Vehicle Commission may not impose regulations on the
   6-31  contents of a motor vehicle lease contract that are more stringent
   6-32  or more comprehensive than the minimum standards imposed by a law
   6-33  of the United States or regulation promulgated by an agency of the
   6-34  United States.
   6-35        SECTION 10.  The importance of this legislation and the
   6-36  crowded condition of the calendars in both houses create an
   6-37  emergency and an imperative public necessity that the
   6-38  constitutional rule requiring bills to be read on three several
   6-39  days in each house be suspended, and this rule is hereby suspended,
   6-40  and that this Act take effect and be in force from and after its
   6-41  passage, and it is so enacted.
   6-42                               * * * * *