By:  Cain                                             S.B. No. 1139
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to duties and responsibilities of the Motor Vehicle Board
    1-2  of the Texas Department of Transportation.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 1.02, Texas Motor Vehicle Commission Code
    1-5  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
    1-6  read as follows:
    1-7        Sec. 1.02.  Policy and purpose.  The distribution and sale of
    1-8  <new> motor vehicles in this State vitally affects the general
    1-9  economy of the State and the public interest and welfare of its
   1-10  citizens.  It is the policy of this State and the purpose of this
   1-11  Act to exercise the State's police power to insure a sound system
   1-12  of distributing and selling <new> motor vehicles through licensing
   1-13  and regulating manufacturers, distributors, converters, and dealers
   1-14  of those vehicles, and enforcing this Act as to other persons, in
   1-15  order to provide for compliance with manufacturer's warranties, and
   1-16  to prevent frauds, unfair practices, discriminations, impositions,
   1-17  and other abuses of our citizens.
   1-18        SECTION 2.  Section 1.03, Texas Motor Vehicle Commission Code
   1-19  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   1-20  read as follows:
   1-21        Sec. 1.03.  Definitions.  In this Act:
   1-22              (1)  "Motor vehicle" means:
   1-23                    (A)  every fully self-propelled vehicle which has
    2-1  as its primary purpose the transport of a person or persons, or
    2-2  property, on a public highway, and having two or more wheels;
    2-3                    (B)  every two or more wheeled fully
    2-4  self-propelled, titled vehicle which has as its primary purpose the
    2-5  transport of a person or persons or property and is not
    2-6  manufactured for use on public streets, roads, or highways; or
    2-7                    (C)  an engine, transmission, or rear axle
    2-8  manufactured for installation in a vehicle having as its primary
    2-9  purpose the transport of a person or persons or property on a
   2-10  public highway and having a gross vehicle weight rating of more
   2-11  than 16,000 pounds, whether or not attached to a vehicle chassis.
   2-12              (2)  "New motor vehicle" means a motor vehicle which
   2-13  has not been the subject of a "retail sale" without regard to the
   2-14  mileage of the vehicle.
   2-15              (3)  "Person" means a natural person, partnership,
   2-16  corporation, association, trust, estate, or any other legal entity.
   2-17              (4)  "Franchised Dealer" means any person who holds a
   2-18  general distinguishing number issued by the Department pursuant to
   2-19  the terms of Article 6686, Revised Statutes, and who is engaged in
   2-20  the business of buying, selling or exchanging new motor vehicles,
   2-21  and servicing or repairing motor vehicles pursuant to the terms of
   2-22  a manufacturer's warranty,  at an established and permanent place
   2-23  of business pursuant to a franchise in effect with a manufacturer
   2-24  or distributor.
   2-25              (5)  "Manufacturer" means any person who manufactures
    3-1  or assembles new motor vehicles either within or without this
    3-2  State.
    3-3              (6)  "Distributor" means any person who distributes
    3-4  and/or sells new motor vehicles to franchised dealers and who is
    3-5  not a manufacturer.
    3-6              (7)  "Representative" means any person who is or acts
    3-7  as an agent, employee or representative of a manufacturer,
    3-8  distributor, or converter who performs any duties in this State
    3-9  relating to promoting the distribution and/or sale of new motor
   3-10  vehicles or contacts dealers in this State on behalf of a
   3-11  manufacturer, distributor, or converter.
   3-12              (8)  "Franchise" means one or more contracts between a
   3-13  franchised dealer as franchisee, and either a manufacturer or a
   3-14  distributor as franchisor under which (A) the franchisee is granted
   3-15  the right to sell and service new motor vehicles manufactured or
   3-16  distributed by the franchisor, or only service motor vehicles
   3-17  pursuant to the terms of a manufacturer's warranty; (B) the
   3-18  franchisee as an independent business is a component of
   3-19  franchisor's distribution system; (C) the franchisee is
   3-20  substantially associated with franchisor's trademark, tradename and
   3-21  commercial symbol; (D) the franchisee's business is substantially
   3-22  reliant on franchisor for a continued supply of motor vehicles,
   3-23  parts, and accessories for the conduct of its business; or (E) any
   3-24  right, duty, or obligation granted or imposed by this Act is
   3-25  affected.  The term includes a written communication from a
    4-1  franchisor to a franchisee by which a duty is imposed on the
    4-2  franchisee.
    4-3              (9)
    4-4              (10)  "Broker" means a person who, for a fee,
    4-5  commission, or other valuable consideration, solicits or refers
    4-6  prospective buyers or arranges or offers to arrange a transaction
    4-7  involving the sale, for purposes other than resale, of a new motor
    4-8  vehicle, and who is not:
    4-9                    (A)  a franchised dealer or bona fide employee of
   4-10  a franchised dealer when acting on behalf of a franchised dealer;
   4-11                    (B)  a representative or bona fide employee of a
   4-12  representative when acting on behalf of a representative;
   4-13                    (C)  a distributor or bona fide employee of a
   4-14  distributor when acting on behalf of a distributor; or
   4-15                    (D)  at any point in the transaction the bona
   4-16  fide owner of the vehicle involved in the transaction.
   4-17              (11)  "Motor home" means a motor vehicle which is
   4-18  designed to provide temporary living quarters and which:
   4-19                    (A)  is built onto as an integral part of, or is
   4-20  permanently attached to, a motor vehicle chassis; and
   4-21                    (B)  contains at least four of the following
   4-22  independent life support systems if each is permanently installed
   4-23  and designed to be removed only for purposes of repair or
   4-24  replacement and meets the standards of the American National
   4-25  Standards Institute, Standards for Recreational Vehicles:
    5-1                          (i)  a cooking facility with an on-board
    5-2  fuel source;
    5-3                          (ii)  a gas or electric refrigerator;
    5-4                          (iii)  a toilet with exterior evacuation;
    5-5                          (iv)  a heating or air conditioning system
    5-6  with an on-board power or fuel source separate from the vehicle
    5-7  engine;
    5-8                          (v)  a potable water supply system that
    5-9  includes at least a sink, a faucet, and a water tank with an
   5-10  exterior service supply connection;
   5-11                          (vi)  a 110-125 volt electric power supply.
   5-12              (12)  "Conversion" means a motor vehicle, other than a
   5-13  motor home, which has been substantially modified by a person other
   5-14  than the manufacturer or distributor of the chassis of the motor
   5-15  vehicle and which has not been the subject of a retail sale.
   5-16              (13)  "Motor home manufacturer" means a person other
   5-17  than the manufacturer of the chassis of a motor vehicle who, prior
   5-18  to the retail sale of the motor vehicle, performs modifications on
   5-19  the chassis that result in the finished product being classified as
   5-20  a motor home.
   5-21              (14)  "Chassis manufacturer" means a person who
   5-22  manufactures and produces the frame upon which is mounted the body
   5-23  of a motor vehicle.
   5-24              (15)  "Converter" means a person who prior to the
   5-25  retail sale of a motor vehicle, assembles, installs, or affixes a
    6-1  body, cab, or special equipment to a chassis, or who substantially
    6-2  adds, subtracts from, or modifies a previously assembled or
    6-3  manufactured motor vehicle.
    6-4              (16)  "Rule" means a statement by the Commission of
    6-5  general and future applicability that implements, interprets, or
    6-6  prescribes law or policy or describes the organization or
    6-7  procedural practice requirements of the Commission.  The term
    6-8  includes the amendment or repeal of a prior rule, but does not
    6-9  include statements concerning only the internal management of the
   6-10  Commission which do not affect the rights of a person not connected
   6-11  with the Commission.
   6-12              (17)  "Party" means each person or agency named or
   6-13  admitted as a party and whose legal rights, duties, or privileges
   6-14  are to be determined by the Commission after an opportunity for
   6-15  adjudicative hearing.
   6-16              (18)  "Relocation" means the transfer of an existing
   6-17  dealership operation to facilities at a different location,
   6-18  including a transfer which results in a consolidation or dualing of
   6-19  an existing dealer's operation.
   6-20              (19)  "Retail sale" means the sale of a motor vehicle
   6-21  except:
   6-22                    (A)  a sale in which the purchaser acquires a
   6-23  vehicle for the purpose of resale; or
   6-24                    (B)  a sale of a vehicle that is operated under
   6-25  and in accordance with Article 6686, Revised Statutes.
    7-1              (20)  "Warranty work" means parts, labor, and any other
    7-2  expenses incurred by a franchised dealer in complying with the
    7-3  terms of a manufacturer's or distributor's warranty.
    7-4              (21)  "Department" means the Texas Department of
    7-5  Transportation.
    7-6              (22)  "Transportation Commission" means the Texas
    7-7  Transportation Commission of the Texas Department of
    7-8  Transportation.
    7-9              (23)  "Non-franchised dealer" means a person, other
   7-10  than a franchised dealer, who holds a general distinguishing number
   7-11  issued by the Department pursuant to the terms of Article 6686,
   7-12  Revised Statutes.
   7-13              (24)  "Dealer" means a person who holds a general
   7-14  distinguishing number issued by the Department pursuant to the
   7-15  terms of Article 6686, Revised Statutes.
   7-16              (25)  "Dealership" means the physical premises and
   7-17  business facilities upon which a franchised dealer operates his
   7-18  business, including the sale and repair of motor vehicles.  The
   7-19  term includes premises or facilities at which a person engages only
   7-20  in the repair of motor vehicles if repairs are performed pursuant
   7-21  to the terms of a motor vehicle manufacturer's warranty.
   7-22              (26)  "Licensee" means a person who holds a license
   7-23  issued by the Board under the terms of this Act or a general
   7-24  distinguishing number issued by the Department pursuant to the
   7-25  terms of Article 6686, Revised Statutes.
    8-1        SECTION 3.  Section 2.10(a), Texas Motor Vehicle Commission
    8-2  code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
    8-3  to read as follows:
    8-4        (a)  Notwithstanding a law to the contrary, including without
    8-5  limitation the provisions of the Government Code Section
    8-6  403.094(h), all <All> money paid to the Commission under this Act
    8-7  shall be deposited in the State Treasury to the credit of the state
    8-8  highway fund.
    8-9        SECTION 4.  Section 3.01, Texas Motor Vehicle Commission Code
   8-10  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   8-11  read as follows:
   8-12        Sec. 3.01.  Jurisdiction.  (a)  The Commission is hereby
   8-13  delegated and vested with, in the exercise of the State's police
   8-14  power, the general and original power and jurisdiction to regulate
   8-15  all aspects of the distribution and sale of <new> motor vehicles
   8-16  and to do all things, whether specifically designated in this Act
   8-17  or implied herein, or necessary or convenient to the exercise of
   8-18  this power and jurisdiction, including the original jurisdiction to
   8-19  determine questions of its own jurisdiction.  In addition to the
   8-20  other duties placed on the Commission by this code, the Commission
   8-21  shall enforce and administer the terms of Article 6686, Revised
   8-22  Statutes.
   8-23        (b)  Unless otherwise specifically provided by Texas law not
   8-24  in conflict with the terms of this Act, all aspects of the
   8-25  distribution and sale of <new> motor vehicles shall be governed
    9-1  exclusively by the provisions of this Act.
    9-2        SECTION 5.  Section 3.02(a), Texas Motor Vehicle Commission
    9-3  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
    9-4  to read as follows:
    9-5        (a)  The Commission shall, in accordance with this Act,
    9-6  administer the provisions of this Act, establish the qualifications
    9-7  of manufacturers, distributors, converters, and dealers, ensure
    9-8  that the distribution and sale of motor vehicles is conducted as
    9-9  provided herein and under the Commission's rules, provide for
   9-10  compliance with warranties, and otherwise prevent fraud, unfair
   9-11  practices, discriminations, impositions, and other abuses in
   9-12  connection with the distribution and sale of <new> motor vehicles.
   9-13        SECTION 6.  Section 3.03(a), Texas Motor Vehicle Commission
   9-14  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
   9-15  to read as follows:
   9-16        (a)  The Commission shall have and may, in its discretion and
   9-17  notwithstanding any other provision of law that is inconsistent
   9-18  with this Act, exercise the powers set forth in this Act, and shall
   9-19  have all other powers necessary, incidental, or convenient to carry
   9-20  out its duties and effectuate its express powers and duties.  These
   9-21  powers and duties include the power to initiate and conduct
   9-22  proceedings, investigations, and hearings, administer oaths,
   9-23  receive evidence and pleadings, issue subpoenas to compel the
   9-24  attendance of any person, order the production of any tangible
   9-25  property, including papers, records, and documents, make findings
   10-1  of fact on all factual issues arising out of any proceeding
   10-2  initiated under this Act, specify, govern, and control appearance,
   10-3  practice, and procedure before the Commission, issue rules,
   10-4  conclusions of law, decisions, including declaratory decisions or
   10-5  orders, enter into contracts or execute instruments, retain
   10-6  counsel, utilize the services of the Attorney General of the State
   10-7  of Texas and thereafter institute and direct the conduct of legal
   10-8  proceedings in any forum or obtain other professional services as
   10-9  may be necessary and convenient, sanction for contempt, assess and
  10-10  collect fees and costs including attorney's fees, issue, suspend,
  10-11  and revoke licenses, prohibit and regulate acts and practices in
  10-12  connection with the distribution and sale of <new> motor vehicles
  10-13  and warranty performance obligations, issue cease and desist orders
  10-14  in the nature of temporary and permanent injunctions, and levy
  10-15  civil penalties.
  10-16        SECTION 7.  Section 3.08(j), Texas Motor Vehicle Commission
  10-17  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  10-18  to read as follows:
  10-19        (j)  On motion of any party, and as provided by this section,
  10-20  the Commission may, by final order, dismiss a complaint, protest or
  10-21  response without holding a contested case hearing.  In deciding
  10-22  whether a disputed issue of material fact exists, the Commission
  10-23  shall accept as true the evidence offered by the non-moving party
  10-24  and shall indulge every reasonable inference, and resolve any
  10-25  doubt, in favor of the non-moving party.  The Commission may not
   11-1  dismiss an action under this section unless the Commission
   11-2  determines that:
   11-3              (1)  based on pleadings, affidavits, documentary
   11-4  evidence and other discovery, no genuine issue of material fact
   11-5  exists and the moving party is entitled to judgment as a matter of
   11-6  law; or
   11-7              (2)  the Commission lacks jurisdiction of the parties
   11-8  or the subject matter <The Commission may dismiss a complaint or
   11-9  protest if it determines that the complaint or protest is frivolous
  11-10  or was made for purposes of harassment>.
  11-11        SECTION 8.  Section 4.01, Texas Motor Vehicle Commission Code
  11-12  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
  11-13  read as follows:
  11-14        Sec. 4.01.  License Required.  (a)  No person shall engage in
  11-15  business as, serve in the capacity of, or act as a dealer,
  11-16  manufacturer, distributor, converter, or representative in this
  11-17  State, or perform or offer to perform repair services on a motor
  11-18  vehicle pursuant to the terms of a motor vehicle manufacturer's
  11-19  warranty, whether or not the person sells or offers to sell motor
  11-20  vehicles at the same location, without obtaining a license therefor
  11-21  as provided in this Act and the rules of the Commission.  All new
  11-22  license applications shall be reviewed and, in the discretion of
  11-23  the Commission, investigated to determine compliance with the
  11-24  provisions of this Act.  License renewals may be administratively
  11-25  granted unless protested.  Licenses issued by the Commission shall
   12-1  expire one year from date of issuance.  All <Notwithstanding the
   12-2  effective date of any franchise agreement, all> licenses and
   12-3  renewals thereof are issued subject to all provisions of this Act
   12-4  and rules of the Commission in effect upon the date of issuance as
   12-5  well as all future provisions of this Act and rules which may
   12-6  become effective during the term of the license.
   12-7        (b)  In the case of a non-franchised dealer, the term
   12-8  "license" in this Act means a general distinguishing number issued
   12-9  by the Department pursuant to the authority of Article 6686,
  12-10  Revised Statutes.  A non-franchised dealer may not operate as a
  12-11  dealer without a valid general distinguishing number, but is not
  12-12  required to obtain an additional license under the terms of this
  12-13  Act.  A franchised dealer shall have both a general distinguishing
  12-14  number and a separate license issued under the terms of this Act.
  12-15        SECTION 9.  Section 4.02(a), Texas Motor Vehicle Commission
  12-16  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  12-17  to read as follows:
  12-18        (a)  An application for a dealer license shall be on a form
  12-19  prescribed by the Commission which shall include the information
  12-20  required by Article 6686, Revised Statutes, and information on the
  12-21  applicant's financial resources, business integrity, business
  12-22  ability and experience, franchise agreement if applicable, physical
  12-23  facilities, <for sales and service, parts and accessories
  12-24  inventory, new> vehicle inventory and other factors the Commission
  12-25  considers necessary to determine an applicant's qualifications to
   13-1  adequately serve the motoring public.
   13-2        SECTION 10.  Section 4.02(c)(1), and (d) Texas Motor Vehicle
   13-3  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   13-4  is amended to read as follows:
   13-5        (c)(1)  A franchised dealer may carry on the business of his
   13-6  dealership at more than one location; however, a separate location
   13-7  for the display and sale of new motor vehicles may not be
   13-8  established and maintained by a franchised dealer unless expressly
   13-9  authorized by the franchised dealer's franchise and license.  An
  13-10  application for a franchised dealer's license or to amend a
  13-11  franchised dealer's license which proposes the establishment of a
  13-12  separate display and sales location is subject to all of the
  13-13  provisions of this Act.  A separate license shall be required for
  13-14  each separate and distinct dealership as determined by the
  13-15  Commission.
  13-16        (d)  A dealer licensed hereunder shall promptly notify the
  13-17  Commission of any proposed change in its ownership, location,
  13-18  franchise, or any other matters the Commission may require by rule.
  13-19  Prior to a change in a dealer's location <of a dealership>, a
  13-20  dealer shall obtain a new license for that location.
  13-21        SECTION 11.  Section 4.03(a), (b), (c) and (d), Texas Motor
  13-22  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
  13-23  Statutes), is amended to read as follows:
  13-24        (a)  An application for a manufacturer's, distributor's,
  13-25  converter's, or representative's license shall be on a form
   14-1  prescribed by the Commission which form shall contain such
   14-2  information as the Commission deems necessary to fully determine
   14-3  the qualifications of an applicant for a license, including
   14-4  financial resources, business integrity and experience, facilities
   14-5  and personnel for serving franchised dealers and such other
   14-6  information as the Commission considers to be pertinent to
   14-7  safeguard the public interest and welfare.
   14-8        (b)  An applicant for a manufacturer's license shall furnish
   14-9  a list of all distributors, representatives acting for applicant,
  14-10  and all dealers franchised to sell the applicant's products in this
  14-11  State and their respective locations.  All applicants for
  14-12  manufacturer's licenses and all licensed manufacturers shall
  14-13  thereafter advise the Commission within 15 days of any change in
  14-14  their list of distributors, representatives, and franchised
  14-15  dealers.  This information shall become part of the application.
  14-16        (c)  Each application for a manufacturer's license shall
  14-17  include an instrument setting forth the terms and conditions of all
  14-18  warranty agreements in force and effect on the products it sells in
  14-19  this State so that the Commission may ascertain the degree of
  14-20  protection afforded the retail purchasers of its products and the
  14-21  obligations of its franchised dealers in connection therewith as
  14-22  well as the basis for compensating its franchised dealers for
  14-23  labor, parts and other expenses incurred in connection with such
  14-24  manufacturer's warranty agreements.  Each application shall include
  14-25  a statement regarding the manufacturer's compliance with Section
   15-1  5.02 of this Act.  In addition, each manufacturer's license
   15-2  application shall specify the delivery and preparation obligations
   15-3  of its franchised dealers prior to delivery of a new motor vehicle
   15-4  to a retail purchaser and the schedule of compensation to be paid
   15-5  to its franchised dealers for the work and service performed by
   15-6  them in connection with such delivery.
   15-7        (d)  An application for a distributor's license shall
   15-8  disclose the manufacturer for whom the distributor will act,
   15-9  whether the manufacturer is licensed in this State, the warranty
  15-10  covering the vehicles to be sold, the persons in this State who
  15-11  will be responsible for compliance with that warranty, and the
  15-12  terms of the contract under which the distributor will act for a
  15-13  manufacturer.  A distributor's license application must disclose
  15-14  the franchised dealers with whom the distributor will do business.
  15-15  If the distributor is to have any responsibility for warranties,
  15-16  the distributor shall furnish the same information pertaining
  15-17  thereto as is required of a manufacturer.  The Commission shall be
  15-18  advised of any change in any such information within 15 days from
  15-19  the date thereof and any such new information shall become part of
  15-20  the application.
  15-21        SECTION 12.  Section 4.04(b), Texas Motor Vehicle Commission
  15-22  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  15-23  to read as follows:
  15-24        (b)  A manufacturer whose products are offered for sale in
  15-25  this State pursuant to a franchise entered into between its
   16-1  distributor or representative and a franchised dealer is bound by
   16-2  the terms of the franchise agreement and the provisions of this Act
   16-3  as if it had executed the franchise agreement.  A manufacturer that
   16-4  changes its distributor or the method of distribution of its
   16-5  products in this State in a manner that results in unlawful
   16-6  termination or noncontinuance of a franchise may not directly or
   16-7  indirectly distribute its products in this State.
   16-8        SECTION 13.  Section 4.05(a), Texas Motor Vehicle Commission
   16-9  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  16-10  to read as follows:
  16-11        (a)  The annual license fees for licenses issued hereunder
  16-12  shall be as follows:
  16-13              (1)  For each manufacturer and distributor, $825.
  16-14              (2)  For each franchised dealer who sold 200 or fewer
  16-15  new motor vehicles during the preceding calendar year, $165.
  16-16              (3)  For each franchised dealer who sold more than 200,
  16-17  but not more than 500, new motor vehicles during the preceding
  16-18  calendar year, $275.
  16-19              (4)  For each franchised dealer who sold more than 500,
  16-20  but not more than 1,000, new motor vehicles during the preceding
  16-21  calendar year, $385.
  16-22              (5)  For each franchised dealer who sold more than
  16-23  1,000 new motor vehicles during the preceding calendar year, $495.
  16-24              (6)  For each representative, $85.
  16-25              (7)  For each converter, $275.
   17-1              (8)  For each amendment to a dealer's license, $25.
   17-2        SECTION 14.  Section 4.06(a), (c), (d), and (e), Texas Motor
   17-3  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
   17-4  Statutes), is amended to read as follows:
   17-5        (a)  The Commission may deny an application for a license,
   17-6  revoke or suspend an outstanding license, or place on probation a
   17-7  person whose license has been suspended, or reprimand a licensee,
   17-8  for any of the following reasons:
   17-9              (1)  Unfitness of an applicant or licensee under
  17-10  standards set out in this Act or in Commission rules.
  17-11              (2)  Material misrepresentation in any application or
  17-12  other information filed under this Act or Commission rules.
  17-13              (3)  Failure to comply with this Act or any Commission
  17-14  rule or order promulgated by the Commission.
  17-15              (4)  Failure to maintain the qualifications for a
  17-16  license.
  17-17              (5)  Willfully defrauding any retail buyer.
  17-18              (6)  Violation of any law relating to the sale,
  17-19  distribution, financing, or insuring of <new> motor vehicles.
  17-20              (7)  Any act or omission by an officer, director,
  17-21  partner, trustee, or other person acting in a representative
  17-22  capacity for a licensee which act or omission would be cause for
  17-23  denying, revoking, or suspending a license to an individual
  17-24  licensee.
  17-25              (8)  Failure to fulfill written agreements between the
   18-1  licensee and a retail buyer of a <new> motor vehicle.
   18-2        (c)  The Commission may deny an <a dealer> application to
   18-3  establish a dealership if, after protest, the applicant fails to
   18-4  establish good cause therefor.  In determining good cause, the
   18-5  Commission shall consider:
   18-6              (1)  whether the manufacturer or distributor of the
   18-7  same line-make of new motor vehicle is being adequately represented
   18-8  as to sales and service;
   18-9              (2)  whether the protesting franchised dealer
  18-10  representing the same line-make of new motor vehicle is in
  18-11  substantial compliance with his franchise agreement;
  18-12              (3)  the desirability of a competitive marketplace;
  18-13              (4)  any harm to the protesting franchised dealer; and
  18-14              (5)  the public interest.
  18-15        (d)  A franchised dealer <person> shall have standing under
  18-16  Subsection (c) of this section to protest an <a dealer's>
  18-17  application to establish or relocate a dealership if the person
  18-18  filing the protest:
  18-19              (1)  <it> is a franchised dealer of the same line-make
  18-20  whose dealership is located in the county in which the proposed
  18-21  dealership site is to be located; or
  18-22              (2)  <it> is a franchised dealer of the same line-make
  18-23  whose dealership is located within a 15 mile radius of the proposed
  18-24  dealership site.
  18-25        (e)  The revocation or suspension of a manufacturer's or
   19-1  distributor's license may be limited to one or more municipalities
   19-2  or counties or any other defined area, or may be revoked or
   19-3  suspended in a defined area only as to certain aspects of its
   19-4  business, or as to a specified franchised dealer or franchised
   19-5  dealers.
   19-6        SECTION 15.  Section 4.07(a), Texas Motor Vehicle Commission
   19-7  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
   19-8  to read as follows:
   19-9        (a)  A franchised dealer licensed under this Act shall
  19-10  provide notice of the complaint procedures provided by Sections
  19-11  3.08(i) and 6.07 of this Act to each person to whom the franchised
  19-12  dealer sells a new motor vehicle.
  19-13        SECTION 16.  Section 5.01.  FRANCHISED DEALERS.  It is <shall
  19-14  be> unlawful for any franchised dealer to:
  19-15              (1)  Require a retail purchaser of a new motor vehicle
  19-16  as a condition of sale and delivery thereof to purchase special
  19-17  features, equipment, parts, or accessories not ordered or desired
  19-18  by the purchaser, provided such features, equipment, parts, or
  19-19  accessories are not already installed on the new motor vehicle at
  19-20  the time of sale.
  19-21              (2)  <Use false, deceptive, or misleading advertising.>
  19-22              <(3)>  Fail to perform the obligations placed on the
  19-23  selling franchised dealer in connection with the delivery and
  19-24  preparation of a new motor vehicle for retail sale as provided in
  19-25  the manufacturer's preparation and delivery agreements on file with
   20-1  the Commission and applicable to such vehicle.
   20-2              (3) <(4)>  Fail to perform the obligations placed on
   20-3  the franchised dealer in connection with the manufacturer's
   20-4  warranty agreements on file with the Commission.
   20-5              <(5)  Operate as a dealer without a currently valid
   20-6  license from the Commission or otherwise violate this Act or rules
   20-7  promulgated by the Commission hereunder.>
   20-8              (4) <(6)>  Operate without appropriate signs readily
   20-9  and easily visible to the public, identifying the franchised
  20-10  dealer's place of business and the products the franchised dealer
  20-11  offers for sale.  In the event of a conflict with another law or
  20-12  ordinance, this Subdivision prevails, and in the event of a
  20-13  dispute, the Board has exclusive jurisdiction to determine whether
  20-14  a sign or signs are in compliance with the terms of this
  20-15  Subdivision.  In the event of a dispute, the Board shall uphold
  20-16  local ordinances of a home-rule city and protect franchised dealers
  20-17  from retribution by manufacturers or distributors for having
  20-18  complied with local ordinances.
  20-19        SECTION 17.  The Texas Motor Vehicle Commission Code (Article
  20-20  4413(36), Vernon's Texas Civil Statutes) is amended by adding
  20-21  Section 5.01A to read as follows:
  20-22        Sec. 5.01A.  DEALERS.  No dealer may:
  20-23              (1)  use false, deceptive, or misleading advertising;
  20-24              (2)  operate as a dealer without a currently valid
  20-25  license or general distinguishing number issued by the Board;
   21-1              (3)  violate a rule of the Board; or
   21-2              (4)  aid or abet a person who violates this code.
   21-3        SECTION 18.  Section 5.02, Texas Motor Vehicle Commission
   21-4  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
   21-5  to read as follows:
   21-6        Sec. 5.02.  Manufacturers; Distributors; Representatives.
   21-7  (a)  In this section "dealer" means franchised dealer.
   21-8        (b)  It is <shall be> unlawful for any manufacturer,
   21-9  distributor, or representative to:
  21-10              (1)  Require or attempt to require any dealer to order,
  21-11  accept delivery of or pay anything of value, directly or
  21-12  indirectly, for any motor vehicle, appliance, part, accessory or
  21-13  any other commodity unless voluntarily ordered or contracted for by
  21-14  such dealer.
  21-15              (2)  Refuse or fail to deliver, in reasonable
  21-16  quantities and within a reasonable time, to a dealer having a
  21-17  franchise agreement for the retail sale of any motor vehicles sold
  21-18  or distributed by such manufacturer, distributor, or
  21-19  representative, any new motor vehicle or parts or accessories to
  21-20  new motor vehicles as are covered by such franchise if such
  21-21  vehicle, parts or accessories are publicly advertised as being
  21-22  available for delivery or are actually being delivered; provided,
  21-23  however, this provision is not violated if such failure is caused
  21-24  by acts of God, work stoppage or delays due to strikes or labor
  21-25  disputes, freight embargoes or other causes beyond the control of
   22-1  the manufacturer, distributor, or representative.
   22-2              (3)  Notwithstanding the terms of any franchise
   22-3  agreement:
   22-4                    (A)  Terminate or refuse to continue any
   22-5  franchise with a dealer unless all of the following conditions are
   22-6  met:
   22-7                          (i)  the dealer and the Commission have
   22-8  received written notice by registered or certified mail from the
   22-9  manufacturer, distributor, or representative not less than 60 days
  22-10  before the effective date of termination or noncontinuance setting
  22-11  forth the specific grounds for termination or noncontinuance; and
  22-12                          (ii)  the written notice contains on the
  22-13  first page thereof a conspicuous statement which reads as follows:
  22-14  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE
  22-15  TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE A HEARING
  22-16  IN WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR NONCONTINUANCE
  22-17  OF YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR VEHICLE
  22-18  COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and
  22-19                          (iii)  the manufacturer, distributor, or
  22-20  representative has received the informed, written consent of the
  22-21  affected dealer or the appropriate period for the affected dealer
  22-22  to protest the proposed franchise termination or noncontinuance has
  22-23  lapsed; or
  22-24                          (iv)  if the affected dealer files a
  22-25  protest with the Commission within the greater of (1) 60 days after
   23-1  receiving its 60-day notice of proposed termination or
   23-2  noncontinuance or (2) the time specified in such notice, the
   23-3  Commission determines that the party seeking to terminate or not
   23-4  continue a dealer's franchise has established by a preponderance of
   23-5  the evidence, at a hearing called by the Commission, that there is
   23-6  good cause for the proposed termination or noncontinuance.
   23-7                          (v)  Notwithstanding Subdivisions (3)(A)(i)
   23-8  and (3)(A)(iv) of this section, notice may be made not less than 15
   23-9  days prior to the effective date of termination or noncontinuance
  23-10  if a licensed  dealer fails to conduct its customary sales and
  23-11  service operations during its customary business hours for seven
  23-12  consecutive business days unless such failure is caused by an act
  23-13  of God, work stoppage or delays due to strikes or labor disputes,
  23-14  an order of the Commission, or other causes beyond the control of
  23-15  the dealer.
  23-16                    (B)  Whenever a dealer files a timely protest to
  23-17  a proposed franchise termination or noncontinuance, the Commission
  23-18  shall notify the party seeking to terminate or to not continue the
  23-19  protesting  dealer's franchise that a timely protest has been
  23-20  filed, that a hearing is required in accordance with this Act, and
  23-21  that the party who gave the dealer notice of termination or
  23-22  noncontinuance of the franchise may not terminate or refuse to
  23-23  continue the franchise until the Commission issues its final
  23-24  decision or order.
  23-25                    (C)  If a franchise is terminated or not
   24-1  continued, another franchise in the same line-make will be
   24-2  established within a reasonable time unless it is shown to the
   24-3  Commission by a preponderance of the evidence that the community or
   24-4  trade area cannot reasonably support such a dealership.  If this
   24-5  showing is made, no dealer license shall be thereafter issued in
   24-6  the same area unless a change in circumstances is established.
   24-7              (4)  Notwithstanding the terms of any franchise
   24-8  agreement, modify or replace a franchise with a succeeding
   24-9  franchise if the modification or replacement would adversely
  24-10  affect, to a substantial degree, the dealer's sales, investment, or
  24-11  obligations to provide service to the public, unless the
  24-12  manufacturer, distributor, or representative has first given the
  24-13  Commission and each affected  dealer written notice by registered
  24-14  or certified mail of any such action 60 days in advance of the
  24-15  modification or replacement.  The written notice shall contain on
  24-16  the first page thereof a conspicuous statement which reads as
  24-17  follows:  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST
  24-18  WITH THE TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE
  24-19  A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED MODIFICATION OR
  24-20  REPLACEMENT OF YOUR FRANCHISE WITH A SUCCEEDING FRANCHISE UNDER THE
  24-21  TERMS OF THE TEXAS MOTOR VEHICLE COMMISSION CODE IF YOU OPPOSE THIS
  24-22  ACTION."  Within the greater of (1) 60 days after receipt of such
  24-23  notice or (2) the time specified in such notice, a dealer may file
  24-24  a protest with the Commission and the modification or replacement
  24-25  shall not become effective unless and until the Commission
   25-1  determines that the party seeking to modify or replace a franchise
   25-2  with a succeeding franchise has demonstrated by a preponderance of
   25-3  the evidence that there is good cause for the modification or
   25-4  replacement.  The prior franchise shall continue in effect until
   25-5  the protest is resolved by the Commission.
   25-6              (5)  Notwithstanding the terms of any franchise
   25-7  agreement, in determining whether good cause has been established
   25-8  for modifying, replacing, terminating, or refusing to continue a
   25-9  franchise, the Commission shall consider all the existing
  25-10  circumstances including, without limitation by the enumeration
  25-11  herein, all the following:
  25-12                    (A)  the dealer's sales in relation to the sales
  25-13  in the market;
  25-14                    (B)  the dealer's investment and obligations;
  25-15                    (C)  injury to the public welfare;
  25-16                    (D)  the adequacy of the dealer's service
  25-17  facilities, equipment, parts, and personnel in relation to those of
  25-18  other  dealers of new motor vehicles of the same line-make;
  25-19                    (E)  whether warranties are being honored by the
  25-20  dealer;
  25-21                    (F)  the parties' compliance with their franchise
  25-22  agreement; and
  25-23                    (G)  the enforceability of the franchise
  25-24  agreement from a public policy standpoint, including, without
  25-25  limitation, issues of the reasonableness of the franchise
   26-1  agreement's terms, oppression, adhesion, and the relative
   26-2  bargaining power of the parties.
   26-3        Good cause shall not be shown solely by the desire of a
   26-4  manufacturer, distributor, or representative for market
   26-5  penetration.
   26-6              (6)  Use any false, deceptive or misleading
   26-7  advertising.
   26-8              (7)  Notwithstanding the terms of any franchise
   26-9  agreement, prevent any dealer from reasonably changing the capital
  26-10  structure of his dealership or the means by or through which he
  26-11  finances the operation thereof, provided that the dealer meets
  26-12  reasonable capital requirements.
  26-13              (8)  Notwithstanding the terms of any franchise
  26-14  agreement, deny or withhold approval of a <fail to give effect to
  26-15  or attempt to prevent any> sale or transfer of a dealer, dealership
  26-16  or franchise or interest therein or management thereof unless,
  26-17  within 60 days after receipt by the manufacturer or distributor
  26-18  from the dealer of the dealer's notice of intent to sell or
  26-19  transfer, the dealer receives from the manufacturer or distributor,
  26-20  written notice of the denial or withholding of approval of the
  26-21  transfer.  The dealer or another party to the transaction may
  26-22  protest a denial or withholding of approval in the manner provided
  26-23  by this code.  <after complaint or protest,>  The Commission may
  26-24  approve the denial or withholding if it is demonstrated to the
  26-25  Commission after hearing that the result of any such sale or
   27-1  transfer will be detrimental to the public or the representation of
   27-2  the manufacturer or distributor.
   27-3              (9)  Notwithstanding the terms of any franchise
   27-4  agreement, require or attempt to require that a dealer assign to or
   27-5  act as an agent for any manufacturer, distributor or representative
   27-6  in the securing of promissory notes and security agreements given
   27-7  in connection with the sale or purchase of new motor vehicles or
   27-8  the securing of policies of insurance on or having to do with the
   27-9  operation of vehicles sold.
  27-10              (10)  Notwithstanding the terms of any franchise
  27-11  agreement, fail or refuse, after complaint and hearing, to perform
  27-12  the obligations placed on the manufacturer in connection with the
  27-13  delivery, preparation and warranty of a new motor vehicle as
  27-14  provided in the manufacturer's warranty, preparation, and delivery
  27-15  agreements on file with the Commission.
  27-16              (11)  Notwithstanding the terms of any franchise
  27-17  agreement, fail to compensate its dealers for the work and services
  27-18  they are required to perform in connection with the dealer's
  27-19  delivery and preparation obligations according to the agreements on
  27-20  file with the Commission which must be found by the Commission to
  27-21  be reasonable, or fail to adequately and fairly compensate its
  27-22  dealers for labor, parts and other expenses incurred by such dealer
  27-23  to perform under and comply with a manufacturer's or a
  27-24  distributor's warranty agreement, or require, as a prerequisite to
  27-25  the manufacturer's or distributor's payment of a claim for
   28-1  reimbursement as required by this section, that a dealer file with
   28-2  the manufacturer or distributor the actual time spent in the
   28-3  performance of labor unless actual time is the basis for
   28-4  reimbursement.  In no event shall any manufacturer or distributor
   28-5  pay its dealers an amount of money for warranty work that is less
   28-6  than that charged by the dealer to the retail customers of the
   28-7  dealer for nonwarranty work of like kind.  All claims made by
   28-8  dealers for compensation for delivery, preparation, and warranty
   28-9  work shall be paid within 30 days after approval and shall be
  28-10  approved or disapproved within 30 days after receipt.  When any
  28-11  claim is disapproved, the dealer shall be notified in writing of
  28-12  the grounds for disapproval.  No claim which has been approved and
  28-13  paid may be charged back to the dealer unless it can be shown that
  28-14  the claim was false or fraudulent, that the repairs were not
  28-15  properly made or were unnecessary to correct the defective
  28-16  condition, or that the dealer failed to reasonably substantiate the
  28-17  claim in accordance with reasonable written requirements of the
  28-18  manufacturer or distributor, if the dealer has been notified of the
  28-19  requirements prior to the time the claim arose, and if the
  28-20  requirements were in effect at the time the claim arose.  A
  28-21  manufacturer or distributor may not audit a claim after the
  28-22  expiration of two years following the submission of the claim
  28-23  unless the manufacturer or distributor has reasonable grounds to
  28-24  suspect that a claim was fraudulent.  Notwithstanding the terms of
  28-25  a franchise agreement or provision of law in conflict with this
   29-1  section, the dealer's delivery, preparation, and warranty
   29-2  obligations as filed with the Commission shall constitute the
   29-3  dealer's sole responsibility for product liability as between the
   29-4  dealer and manufacturer or distributor, and, except for a loss
   29-5  caused by the dealer's failure to adhere to these obligations, a
   29-6  loss caused by the dealer's negligence or intentional misconduct,
   29-7  or a loss caused by the dealer's modification of a product without
   29-8  manufacturer or distributor authorization, the manufacturer or
   29-9  distributor shall reimburse the dealer for all loss incurred by the
  29-10  dealer, including legal fees, court costs, and damages, as a result
  29-11  of the dealer having been named a party in a product liability
  29-12  action.
  29-13              (12)  Operate as a manufacturer, distributor, or
  29-14  representative without a currently valid license from the
  29-15  Commission or otherwise violate this Act or rules promulgated by
  29-16  the Commission hereunder.
  29-17              (13)  Notwithstanding the terms of any franchise
  29-18  agreement, to prevent or refuse to honor the succession to a
  29-19  dealership by any legal heir or devisee under the will of a dealer
  29-20  or under the laws of descent and distribution of this State unless
  29-21  it is shown to the Commission, after notice and hearing, that the
  29-22  result of such succession will be detrimental to the public
  29-23  interest and to the representation of the manufacturer or
  29-24  distributor; provided, however, nothing herein shall prevent a
  29-25  dealer, during his lifetime, from designating any person as his
   30-1  successor dealer, by written instrument filed with the manufacturer
   30-2  or distributor.
   30-3              (14)  Notwithstanding the terms of any franchise
   30-4  agreement, require that a dealer pay or assume, directly or
   30-5  indirectly, any part of any refund, rebate, discount, or other
   30-6  financial adjustment made by the manufacturer, distributor, or
   30-7  representative to, or in favor of, any customer of a dealer, unless
   30-8  voluntarily agreed to by such dealer.
   30-9              (15)  Notwithstanding the terms of any franchise
  30-10  agreement, deny or withhold approval of a written application to
  30-11  relocate a franchise unless (A) the applicant has received written
  30-12  notice of the denial or withholding of approval within 90 days
  30-13  after receipt of the application containing information reasonably
  30-14  necessary to enable the manufacturer or distributor to adequately
  30-15  evaluate the application, and if (B) the applicant files a protest
  30-16  with the Commission and establishes by a preponderance of the
  30-17  evidence at a hearing called by the Commission that the grounds
  30-18  for, and distance of, the relocation are reasonable.
  30-19              (16)  Notwithstanding the terms of any franchise
  30-20  agreement, fail to pay to a dealer or any lienholder in accordance
  30-21  with their respective interest after the termination of a
  30-22  franchise:
  30-23                    (A)  the dealer cost of each new motor vehicle in
  30-24  the dealer's inventory with mileage of 6,000 miles or less, reduced
  30-25  by the net discount value of each, where "net discount value" is
   31-1  determined according to the following formula:  net cost multiplied
   31-2  by total mileage divided by 100,000, and where "net cost" equals
   31-3  the dealer cost plus any charges by the manufacturer, distributor,
   31-4  or representative for distribution, delivery, and taxes, less all
   31-5  allowances paid to the dealer by the manufacturer, distributor, or
   31-6  representative for new, unsold, undamaged, and complete motor
   31-7  vehicles of current model year or one year prior model year in the
   31-8  dealer's inventory, except that if a vehicle cannot be reduced by
   31-9  the net discount value, the manufacturer or distributor shall pay
  31-10  the dealer the net cost of the vehicle;
  31-11                    (B)  the dealer cost of each new, unused,
  31-12  undamaged, and unsold part or accessory if the part or accessory is
  31-13  in the current parts catalogue and is still in the original,
  31-14  resalable merchandising package and in unbroken lots, except that
  31-15  in the case of sheet metal, a comparable substitute for the
  31-16  original package may be used, and if the part or accessory was
  31-17  purchased by the dealer either directly from the manufacturer or
  31-18  distributor or from an outgoing authorized dealer as a part of the
  31-19  dealer's initial inventory;
  31-20                    (C)  the fair market value of each undamaged sign
  31-21  owned by the dealer which bears a trademark or tradename used or
  31-22  claimed by the manufacturer, distributor, or representative if the
  31-23  sign was purchased from or purchased at the request of the
  31-24  manufacturer, distributor, or representative;
  31-25                    (D)  the fair market value of all special tools,
   32-1  data processing equipment, and automotive service equipment owned
   32-2  by the dealer which were recommended in writing and designated as
   32-3  special tools and equipment and purchased from or purchased at the
   32-4  request of the manufacturer, distributor, or representative, if the
   32-5  tools and equipment are in usable and good condition except for
   32-6  reasonable wear and tear;
   32-7                    (E)  the cost of transporting, handling, packing,
   32-8  storing, and loading of any property subject to repurchase under
   32-9  this section;
  32-10                    (F)  except as provided by this subdivision, any
  32-11  sums due as provided by Paragraph (A) of this subdivision within 60
  32-12  days after termination of a franchise and any sums due as provided
  32-13  by Paragraphs (B) through (E) of this subdivision within 90 days
  32-14  after termination of a franchise.  As a condition of payment, the
  32-15  dealer is to comply with reasonable requirements with respect to
  32-16  the return of inventory as are set out in the terms of the
  32-17  franchise agreement.  A manufacturer or distributor shall reimburse
  32-18  a dealer for the dealer's cost for storing any property covered by
  32-19  this subdivision beginning 90 days following termination.  A
  32-20  manufacturer or distributor shall reimburse a dealer for the
  32-21  dealer's cost of storing any property covered by this subdivision
  32-22  before the expiration of 90 days from the date of termination if
  32-23  the dealer notifies the manufacturer or distributor of the
  32-24  commencement of storage charges within that period.  On receipt of
  32-25  notice of the commencement of storage charges, a manufacturer or
   33-1  distributor may immediately take possession of the property in
   33-2  question by repurchasing the property as provided by this
   33-3  subdivision.  A manufacturer, distributor, or representative who
   33-4  fails to pay those sums within the prescribed time or at such time
   33-5  as the dealer and lienholder, if any, proffer good title prior to
   33-6  the prescribed time for payment, is liable to the dealer for:
   33-7                          (i) <(1)>  the greatest of dealer cost,
   33-8  fair market value, or current price of the inventory;
   33-9                          (ii) <(2)>  interest on the amount due
  33-10  calculated at the rate applicable to a judgment of a court; and
  33-11                          (iii) <(3)>  reasonable attorney's fees and
  33-12  costs.
  33-13              (17)  Notwithstanding the terms of any franchise
  33-14  agreement, change its distributor, its method of distribution of
  33-15  its products in this state, or its business structure or ownership
  33-16  in a manner that results in the termination or noncontinuance of a
  33-17  franchise without good cause.  The manufacturer, distributor, or
  33-18  representative shall issue the same notice to the dealer and to the
  33-19  Commission as is provided in Subdivisions (3)(A) and (B) of this
  33-20  section and said same procedures shall apply to the parties.
  33-21              (18)  Notwithstanding the terms of any franchise
  33-22  agreement, require a dealer to submit to arbitration on any issue
  33-23  unless the dealer and the manufacturer, distributor, or
  33-24  representative and their respective counsel agree to arbitrate
  33-25  after a controversy arises.  The arbitrator shall apply the
   34-1  provisions of this Act in resolving the pertinent controversy.
   34-2  Either party may appeal to the Commission a decision of an
   34-3  arbitrator on the ground that the arbitrator failed to apply this
   34-4  Act.
   34-5              (19)  Notwithstanding the terms of any franchise
   34-6  agreement, require that a dealer join, contribute to, or affiliate
   34-7  with, directly or indirectly, any advertising association.
   34-8              (20)  Notwithstanding the terms of a franchise
   34-9  agreement:
  34-10                    (A)  require adherence to unreasonable sales or
  34-11  service standards;
  34-12                    (B)  directly or indirectly, discriminate against
  34-13  a dealer or otherwise treat dealers differently as a result of a
  34-14  formula or other calculation or process intended to gauge the
  34-15  performance of a dealership, except a sales contest or other
  34-16  recognition program based on reasonable sales and service criteria;
  34-17                    (C)  unreasonably require that a dealer purchase
  34-18  special tools or equipment; or
  34-19                    (D)  fail to compensate a dealer for all costs
  34-20  incurred by the dealer as required by the manufacturer in complying
  34-21  with the terms of a product recall by the manufacturer or
  34-22  distributor, including the costs, if any, incurred by the dealer in
  34-23  notifying vehicle owners of the existence of the recall.
  34-24              (21)  Discriminate unreasonably between or among
  34-25  franchisees in the sale of a motor vehicle owned by the
   35-1  manufacturer or distributor.
   35-2              (22)  Directly or indirectly, or through a subsidiary
   35-3  or agent, require, as a condition for obtaining financing for a
   35-4  motor vehicle, the purchaser of a vehicle to purchase any product
   35-5  other than the motor vehicle from the manufacturer or distributor,
   35-6  or from an entity owned or controlled by the manufacturer or
   35-7  distributor.
   35-8              (23)  Directly or indirectly, or through a subsidiary
   35-9  or agent, require, as a condition of its or its subsidiary's
  35-10  agreement to provide financing for a motor vehicle, that any
  35-11  insurance policy or service contract purchased by the motor vehicle
  35-12  purchaser be purchased from a specific source.
  35-13              (24)  Compel a dealer through a financing subsidiary of
  35-14  the manufacturer or distributor to agree to unreasonable operating
  35-15  requirements or directly or indirectly to terminate a dealer
  35-16  through the actions of a financing subsidiary of the manufacturer
  35-17  or distributor.  This subdivision does not limit the right of a
  35-18  financing entity to engage in business practices in accordance with
  35-19  the usage of trade in retail and wholesale motor vehicle financing.
  35-20              (25)  Operate as a dealer except on a temporary basis
  35-21  and only if:
  35-22                    (A)  the dealership was previously owned by a
  35-23  franchised dealer and is currently for sale at a reasonable price;
  35-24  or
  35-25                    (B)  the manufacturer, distributor or
   36-1  representative operates the dealership in a bona fide relationship
   36-2  with a franchised dealer who has made a significant investment in
   36-3  the dealership, subject to loss, and who reasonably expects to
   36-4  acquire full ownership of the dealership under reasonable terms and
   36-5  conditions.
   36-6              (26)  Prevent a dealer from selling and servicing new
   36-7  motor vehicles of any line-make, or parts or products related to
   36-8  those vehicles at a dealership approved for the sale and service of
   36-9  new motor vehicles by any other manufacturer or distributor
  36-10  licensed pursuant to the terms of this Act, if the dealership is
  36-11  sufficient to enable competitive selling and servicing of all new
  36-12  motor vehicles, parts, and other products sold and serviced at that
  36-13  dealership.
  36-14        SECTION 19.  Section 5.04(a), Texas Motor Vehicle Commission
  36-15  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  36-16  to read as follows:
  36-17        (a)  No person may engage in the business of buying, selling,
  36-18  or exchanging new motor vehicles unless that person:
  36-19              (1)  holds a valid franchised dealer's license issued
  36-20  by the Commission for the make or makes of new motor vehicles being
  36-21  bought, sold, or exchanged; or
  36-22              (2)  is acting as a bona fide employee of the licensee.
  36-23        SECTION 20.  Section 6.01(a), Texas Motor Vehicle Commission
  36-24  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  36-25  to read as follows:
   37-1        (a)  In the event the Commission determines, after a
   37-2  proceeding conducted in accordance with this Act and the rules of
   37-3  the Commission, that any person is violating or has violated any
   37-4  provision of this Act or any rule or order of the Commission issued
   37-5  pursuant to this Act, the Commission may levy a civil penalty not
   37-6  to exceed $10,000.00 for each day of violation and for each act of
   37-7  violation.  Notwithstanding a law to the contrary, including
   37-8  without limitation the provisions of Government Code Section
   37-9  403.094(h), all <All> civil penalties recovered under this Act
  37-10  shall be deposited in the State Treasury to the credit of the State
  37-11  Highway Fund <paid to the General Revenue Fund of the State of
  37-12  Texas>.
  37-13        SECTION 21.  Section 6.06, Texas Motor Vehicle Commission
  37-14  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  37-15  by amending Subsection (a) and adding Subsection (f) to read as
  37-16  follows:
  37-17        (a)  Notwithstanding any other provision of law, including
  37-18  the terms of Subchapter E, Chapter 17, Business and Commerce Code,
  37-19  in addition to the other remedies provided by this subchapter, a
  37-20  person, including a licensee, who has sustained actual damages as a
  37-21  result of a violation of Section 5.01, Section 5.01A or Section
  37-22  5.02 of this Act, or a violation of Subchapter E, Chapter 17,
  37-23  Business and Commerce Code, may maintain an action pursuant to the
  37-24  terms of Subchapter E, Chapter 17, Business and Commerce Code  or
  37-25  any successor statute thereto and shall be entitled to all
   38-1  procedures and remedies provided for therein.  In any action
   38-2  brought under this section, and in the interest of judicial economy
   38-3  and efficiency, a judgment rendered pursuant to this section shall
   38-4  pay due deference to the findings of fact and conclusions of law of
   38-5  the Commission contained in a final order which forms the basis of
   38-6  the action.
   38-7        (f)  A reference in other law to a dealer licensed by the
   38-8  Texas Motor Vehicle Commission or a dealer licensed by the Motor
   38-9  Vehicle Board of the Texas Department of Transportation means a
  38-10  franchised dealer.
  38-11        SECTION 22.  Section 6.07(b), (d), (g), and (j), Texas Motor
  38-12  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
  38-13  Statutes), is amended to read as follows:
  38-14        (b)  If a new motor vehicle does not conform to all
  38-15  applicable manufacturer's, converter's, or distributor's express
  38-16  warranties, the manufacturer, converter, or distributor shall make
  38-17  the repairs necessary to conform the vehicle to the applicable
  38-18  express warranties, notwithstanding that the repairs are made after
  38-19  the expiration of the warranties, if:  (1) the owner or the owner's
  38-20  designated agent reported the nonconformity to the manufacturer,
  38-21  converter, or distributor, its agent, or its franchised
  38-22  <authorized> dealer during the term of such express warranties; or
  38-23  (2) a rebuttable presumption relating to the vehicle was created
  38-24  under Subsection (d) of this section.  This section does not in any
  38-25  way limit the remedies available to an owner under a new motor
   39-1  vehicle warranty that extends beyond the provisions of this
   39-2  section.
   39-3        (d)  There is a rebuttable presumption that a reasonable
   39-4  number of attempts have been undertaken to conform a motor vehicle
   39-5  to the applicable express warranties if (1) the same nonconformity
   39-6  has been subject to repair four or more times by the manufacturer,
   39-7  converter, or distributor, its agent, or its franchised
   39-8  <authorized> dealer and two of the repair attempts have been made
   39-9  within a period of 12 months following the date of original
  39-10  delivery to an owner, or 12,000 miles, whichever occurs first, and
  39-11  the other two repair attempts occur within the 12 months or 12,000
  39-12  miles immediately following the date of the second repair attempt,
  39-13  whichever occurs first, but such nonconformity continues to exist;
  39-14  (2) the same nonconformity creates a serious safety hazard and has
  39-15  caused the vehicle to have been subject to repair two or more times
  39-16  by the manufacturer, converter, or distributor, or an authorized
  39-17  agent or franchised dealer, and at least one attempt to repair the
  39-18  nonconformity was made in the period of 12 months or 12,000 miles,
  39-19  whichever occurs first, and at least one other attempt made in the
  39-20  period of 12 months or 12,000 miles after the first repair attempt,
  39-21  whichever occurs first, but the nonconformity continues to exist;
  39-22  or (3) the vehicle is out of service for repair for a cumulative
  39-23  total of 30 or more days in the 24 months or 24,000 miles,
  39-24  whichever occurs first, and at least two repair attempts were made
  39-25  in the first 12 months or 12,000 miles immediately following the
   40-1  date of original delivery to an owner and a nonconformity still
   40-2  exists that substantially impairs the vehicle's use or market
   40-3  value.  The initial 12-month period or 12,000 mile limit, the
   40-4  subsequent 12-month period or 12,000 mile limit, and the 30-day
   40-5  period shall be extended by any period of time during which repair
   40-6  services are not available to the owner because of a war, invasion,
   40-7  strike or fire, flood, or other natural disaster.  During any
   40-8  period of time that the manufacturer or distributor lends a
   40-9  comparable motor vehicle to the owner during the time the vehicle
  40-10  is being repaired by a <an> franchised <authorized> dealer, the
  40-11  30-day period provided for in this subsection is tolled.
  40-12        (g)  In a hearing under this section, the Executive Director
  40-13  shall make its order with respect to responsibility for payment of
  40-14  the cost of any refund or replacement and no manufacturer,
  40-15  converter, or distributor may cause any franchised dealer to pay
  40-16  directly or indirectly any sum not specifically so ordered by the
  40-17  Executive Director. If the Executive Director orders a
  40-18  manufacturer, converter, or distributor to refund or replace a
  40-19  motor vehicle because it meets the criteria set forth in this
  40-20  section, the Executive Director may order the franchised dealer to
  40-21  reimburse the owner, lienholder, manufacturer, converter, or
  40-22  distributor only for items or options added to the vehicle by the
  40-23  franchised dealer and only to the extent that one or more of such
  40-24  items or options contributed to the defect that served as the basis
  40-25  for the Executive Director's order of refund or replacement.  In a
   41-1  case involving a leased vehicle, the Executive Director may
   41-2  terminate the lease and apportion the allowance for use and other
   41-3  allowances or refunds between the lessee and lessor of the vehicle.
   41-4        (j)(1)  A manufacturer, distributor, or converter that has
   41-5  been ordered to repurchase or replace a vehicle shall, through its
   41-6  franchised <representative> dealer, issue a disclosure statement
   41-7  stating that the vehicle was repurchased or replaced by the
   41-8  manufacturer, distributor, or converter under this section.  The
   41-9  disclosure statement must accompany the vehicle through the first
  41-10  retail purchase.  The manufacturer, distributor, or converter must
  41-11  restore the cause of the repurchase or replacement to factory
  41-12  specifications and issue a new 12-month, 12,000-mile warranty on
  41-13  the vehicle.  The disclosure statement must include a toll-free
  41-14  telephone number of the Commission that will enable a purchaser of
  41-15  a repurchased or replaced vehicle to obtain information about the
  41-16  condition or defect that was the basis of the order for repurchase
  41-17  or replacement.  The Commission shall adopt rules for the
  41-18  enforcement of this subdivision.
  41-19              (2)  The Commission shall provide a toll-free telephone
  41-20  number for providing information to persons who request information
  41-21  about a condition or defect that was the basis for repurchase or
  41-22  replacement by an order of the Executive Director.  The Commission
  41-23  shall maintain an effective method of providing information to
  41-24  persons who make the requests.
  41-25        (l)  Information filed with the Board under this section is
   42-1  not a public record and is not subject to release under Chapter
   42-2  552, Government Code.
   42-3        SECTION 24.  CONSTRUCTION; TRANSITION.  (a)  In the event of
   42-4  a conflict between the terms of this Act and Article 6686, Revised
   42-5  Statutes, the terms of this Act prevail.
   42-6        (b)  The Executive Director of the Motor Vehicle Board of the
   42-7  Texas Department of Transportation shall oversee the transition of
   42-8  duties and responsibilities provided by this Act.
   42-9        SECTION 25.  EFFECTIVE DATE:  This Act takes effect
  42-10  January 1, 1996.
  42-11        SECTION 26.  The importance of this legislation and the
  42-12  crowded condition of the calendars in both houses create an
  42-13  emergency and an imperative public necessity that the
  42-14  constitutional rule requiring bills to be read on three several
  42-15  days in each house be suspended, and this rule is hereby suspended,
  42-16  and that this Act take effect and be in force according to its
  42-17  terms, and it is so enacted.