1-1  By:  Cain                                             S.B. No. 1139
    1-2        (In the Senate - Filed March 9, 1995; March 15, 1995, read
    1-3  first time and referred to Committee on State Affairs;
    1-4  April 12, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 7, Nays 0; April 12, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 1139                    By:  Cain
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the duties and responsibilities of the Motor Vehicle
   1-11  Board of the Texas Department of Transportation and of persons
   1-12  under the board's authority; providing penalties.
   1-13        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-14        SECTION 1.  Section 1.02, Texas Motor Vehicle Commission Code
   1-15  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   1-16  read as follows:
   1-17        Sec. 1.02.  POLICY AND PURPOSE.  The distribution and sale of
   1-18  <new> motor vehicles in this State vitally affects the general
   1-19  economy of the State and the public interest and welfare of its
   1-20  citizens.  It is the policy of this State and the purpose of this
   1-21  Act to exercise the State's police power to insure a sound system
   1-22  of distributing and selling <new> motor vehicles through licensing
   1-23  and regulating manufacturers, distributors, converters, and dealers
   1-24  of those vehicles, and enforcing this Act as to other persons, in
   1-25  order to provide for compliance with manufacturer's warranties, and
   1-26  to prevent frauds, unfair practices, discriminations, impositions,
   1-27  and other abuses of our citizens.
   1-28        SECTION 2.  Section 1.03, Texas Motor Vehicle Commission Code
   1-29  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   1-30  read as follows:
   1-31        Sec. 1.03.  DEFINITIONS.  In this Act: (1)  "Motor vehicle"
   1-32  means:
   1-33                    (A)  every fully self-propelled vehicle which has
   1-34  as its primary purpose the transport of a person or persons, or
   1-35  property, on a public highway, and having two or more wheels;
   1-36                    (B)  every two or more wheeled fully
   1-37  self-propelled, titled vehicle which has as its primary purpose the
   1-38  transport of a person or persons or property and is not
   1-39  manufactured for use on public streets, roads, or highways; or
   1-40                    (C)  an engine, transmission, or rear axle
   1-41  manufactured for installation in a vehicle having as its primary
   1-42  purpose the transport of a person or persons or property on a
   1-43  public highway and having a gross vehicle weight rating of more
   1-44  than 16,000 pounds, whether or not attached to a vehicle chassis.
   1-45              (2)  "New motor vehicle" means a motor vehicle which
   1-46  has not been the subject of a "retail sale" without regard to the
   1-47  mileage of the vehicle.
   1-48              (3)  "Person" means a natural person, partnership,
   1-49  corporation, association, trust, estate, or any other legal entity.
   1-50              (4)  "Franchised dealer <Dealer>" means any person who
   1-51  holds a general distinguishing number issued by the Department
   1-52  pursuant to the terms of Article 6686, Revised Statutes, and who is
   1-53  engaged in the business of buying, selling, or exchanging new motor
   1-54  vehicles and servicing or repairing motor vehicles pursuant to the
   1-55  terms of a franchise and a manufacturer's warranty at an
   1-56  established and permanent place of business pursuant to a franchise
   1-57  in effect with a manufacturer or distributor.
   1-58              (5)  "Manufacturer" means any person who manufactures
   1-59  or assembles new motor vehicles either within or without this
   1-60  State.
   1-61              (6)  "Distributor" means any person who distributes
   1-62  and/or sells new motor vehicles to franchised dealers and who is
   1-63  not a manufacturer.
   1-64              (7)  "Representative" means any person who is or acts
   1-65  as an agent, employee or representative of a manufacturer,
   1-66  distributor, or converter who performs any duties in this State
   1-67  relating to promoting the distribution and/or sale of new motor
   1-68  vehicles or contacts dealers in this State on behalf of a
    2-1  manufacturer, distributor, or converter.
    2-2              (8)  "Franchise" means one or more contracts between a
    2-3  franchised dealer as franchisee, and either a manufacturer or a
    2-4  distributor as franchisor under which (A) the franchisee is granted
    2-5  the right to sell and service new motor vehicles manufactured or
    2-6  distributed by the franchisor or only service motor vehicles
    2-7  pursuant to the terms of a franchise and a manufacturer's warranty;
    2-8  (B) the franchisee as an independent business is a component of
    2-9  franchisor's distribution system; (C) the franchisee is
   2-10  substantially associated with franchisor's trademark, tradename and
   2-11  commercial symbol; (D) the franchisee's business is substantially
   2-12  reliant on franchisor for a continued supply of motor vehicles,
   2-13  parts, and accessories for the conduct of its business; or (E) any
   2-14  right, duty, or obligation granted or imposed by this Act is
   2-15  affected.  The term includes a written communication from a
   2-16  franchisor to a franchisee by which a duty is imposed on the
   2-17  franchisee.
   2-18              (9) <(10)>  "Broker" means a person who, for a fee,
   2-19  commission, or other valuable consideration, arranges or offers to
   2-20  arrange a transaction involving the sale, for purposes other than
   2-21  resale, of a new motor vehicle, and who is not:
   2-22                    (A)  a franchised dealer or bona fide employee of
   2-23  a franchised dealer when acting on behalf of a franchised dealer;
   2-24                    (B)  a representative or bona fide employee of a
   2-25  representative when acting on behalf of a representative;
   2-26                    (C)  a distributor or bona fide employee of a
   2-27  distributor when acting on behalf of a distributor; or
   2-28                    (D)  at any point in the transaction the bona
   2-29  fide owner of the vehicle involved in the transaction.
   2-30              (10) <(11)>  "Motor home" means a motor vehicle which
   2-31  is designed to provide temporary living quarters and which:
   2-32                    (A)  is built onto as an integral part of, or is
   2-33  permanently attached to, a motor vehicle chassis; and
   2-34                    (B)  contains at least four of the following
   2-35  independent life support systems if each is permanently installed
   2-36  and designed to be removed only for purposes of repair or
   2-37  replacement and meets the standards of the American National
   2-38  Standards Institute, Standards for Recreational Vehicles:
   2-39                          (i)  a cooking facility with an on-board
   2-40  fuel source;
   2-41                          (ii)  a gas or electric refrigerator;
   2-42                          (iii)  a toilet with exterior evacuation;
   2-43                          (iv)  a heating or air conditioning system
   2-44  with an on-board power or fuel source separate from the vehicle
   2-45  engine;
   2-46                          (v)  a potable water supply system that
   2-47  includes at least a sink, a faucet, and a water tank with an
   2-48  exterior service supply connection;
   2-49                          (vi)  a 110-125 volt electric power supply.
   2-50              (11) <(12)>  "Conversion" means a motor vehicle, other
   2-51  than a motor home, which has been substantially modified by a
   2-52  person other than the manufacturer or distributor of the chassis of
   2-53  the motor vehicle and which has not been the subject of a retail
   2-54  sale.
   2-55              (12) <(13)>  "Motor home manufacturer" means a person
   2-56  other than the manufacturer of the chassis of a motor vehicle who,
   2-57  prior to the retail sale of the motor vehicle, performs
   2-58  modifications on the chassis that result in the finished product
   2-59  being classified as a motor home.
   2-60              (13) <(14)>  "Chassis manufacturer" means a person who
   2-61  manufactures and produces the frame upon which is mounted the body
   2-62  of a motor vehicle.
   2-63              (14) <(15)>  "Converter" means a person who prior to
   2-64  the retail sale of a motor vehicle, assembles, installs, or affixes
   2-65  a body, cab, or special equipment to a chassis, or who
   2-66  substantially adds, subtracts from, or modifies a previously
   2-67  assembled or manufactured motor vehicle.
   2-68              (15) <(16)>  "Rule" means a statement by the Commission
   2-69  of general and future applicability that implements, interprets, or
   2-70  prescribes law or policy or describes the organization or
    3-1  procedural practice requirements of the Commission.  The term
    3-2  includes the amendment or repeal of a prior rule, but does not
    3-3  include statements concerning only the internal management of the
    3-4  Commission which do not affect the rights of a person not connected
    3-5  with the Commission.
    3-6              (16) <(17)>  "Party" means each person or agency named
    3-7  or admitted as a party and whose legal rights, duties, or
    3-8  privileges are to be determined by the Commission after an
    3-9  opportunity for adjudicative hearing.
   3-10              (17) <(18)>  "Relocation" means the transfer of an
   3-11  existing dealership operation to facilities at a different
   3-12  location, including a transfer which results in a consolidation or
   3-13  dualing of an existing dealer's operation.
   3-14              (18) <(19)>  "Retail sale" means the sale of a motor
   3-15  vehicle except:
   3-16                    (A)  a sale in which the purchaser acquires a
   3-17  vehicle for the purpose of resale; or
   3-18                    (B)  a sale of a vehicle that is operated under
   3-19  and in accordance with Article 6686, Revised Statutes.
   3-20              (19) <(20)>  "Warranty work" means parts, labor, and
   3-21  any other expenses incurred by a franchised dealer in complying
   3-22  with the terms of a manufacturer's or distributor's warranty.
   3-23              (20) <(21)>  "Department" means the Texas Department of
   3-24  Transportation.
   3-25              (21) <(22)>  "Transportation Commission" means the
   3-26  Texas Transportation Commission of the Texas Department of
   3-27  Transportation.
   3-28              (22)  "Nonfranchised dealer" means a person, other than
   3-29  a franchised dealer, who holds a general distinguishing number
   3-30  issued by the Department pursuant to the terms of Article 6686,
   3-31  Revised Statutes.
   3-32              (23)  "Dealer" means a person who holds a general
   3-33  distinguishing number issued by the Department pursuant to the
   3-34  terms of Article 6686, Revised Statutes.
   3-35              (24)  "Dealership" means the physical premises and
   3-36  business facilities on which a franchised dealer operates his
   3-37  business, including the sale and repair of motor vehicles.  The
   3-38  term includes premises or facilities at which a person engages only
   3-39  in the repair of motor vehicles if repairs are performed pursuant
   3-40  to the terms of a franchise and a motor vehicle manufacturer's
   3-41  warranty.
   3-42              (25)  "Licensee" means a person who holds a license
   3-43  issued by the Board under the terms of this Act or a general
   3-44  distinguishing number issued by the Department pursuant to the
   3-45  terms of Article 6686, Revised Statutes.
   3-46        SECTION 3.  Subsection (a), Section 2.10, Texas Motor Vehicle
   3-47  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   3-48  is amended to read as follows:
   3-49        (a)  Notwithstanding a law to the contrary, including without
   3-50  limitation the provisions of Section 403.094(h), Government Code,
   3-51  all <All> money paid to the Commission under this Act shall be
   3-52  deposited in the State Treasury to the credit of the state highway
   3-53  fund.
   3-54        SECTION 4.  Section 3.01, Texas Motor Vehicle Commission Code
   3-55  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   3-56  read as follows:
   3-57        Sec. 3.01.  JURISDICTION.  (a)  The Commission is hereby
   3-58  delegated and vested with, in the exercise of the State's police
   3-59  power, the general and original power and jurisdiction to regulate
   3-60  all aspects of the distribution and sale of <new> motor vehicles
   3-61  and to do all things, whether specifically designated in this Act
   3-62  or implied herein, or necessary or convenient to the exercise of
   3-63  this power and jurisdiction, including the original jurisdiction to
   3-64  determine questions of its own jurisdiction.  In addition to the
   3-65  other duties placed on the Commission by this Act, the Commission
   3-66  shall enforce and administer the terms of Article 6686, Revised
   3-67  Statutes.
   3-68        (b)  Unless otherwise specifically provided by Texas law not
   3-69  in conflict with the terms of this Act, all aspects of the
   3-70  distribution and sale of <new> motor vehicles shall be governed
    4-1  exclusively by the provisions of this Act.
    4-2        SECTION 5.  Subsection (a), Section 3.02, Texas Motor Vehicle
    4-3  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
    4-4  is amended to read as follows:
    4-5        (a)  The Commission shall, in accordance with this Act,
    4-6  administer the provisions of this Act, establish the qualifications
    4-7  of manufacturers, distributors, converters, and dealers, ensure
    4-8  that the distribution and sale of motor vehicles is conducted as
    4-9  provided herein and under the Commission's rules, provide for
   4-10  compliance with warranties, and otherwise prevent fraud, unfair
   4-11  practices, discriminations, impositions, and other abuses in
   4-12  connection with the distribution and sale of <new> motor vehicles.
   4-13        SECTION 6.  Subsection (a), Section 3.03, Texas Motor Vehicle
   4-14  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   4-15  is amended to read as follows:
   4-16        (a)  The Commission shall have and may, in its discretion and
   4-17  notwithstanding any other provision of law that is inconsistent
   4-18  with this Act, exercise the powers set forth in this Act, and shall
   4-19  have all other powers necessary, incidental, or convenient to carry
   4-20  out its duties and effectuate its express powers and duties.  These
   4-21  powers and duties include the power to initiate and conduct
   4-22  proceedings, investigations, and hearings, administer oaths,
   4-23  receive evidence and pleadings, issue subpoenas to compel the
   4-24  attendance of any person, order the production of any tangible
   4-25  property, including papers, records, and documents, make findings
   4-26  of fact on all factual issues arising out of any proceeding
   4-27  initiated under this Act, specify, govern, and control appearance,
   4-28  practice, and procedure before the Commission, issue rules,
   4-29  conclusions of law, decisions, including declaratory decisions or
   4-30  orders, enter into contracts or execute instruments, retain
   4-31  counsel, utilize the services of the Attorney General of the State
   4-32  of Texas and thereafter institute and direct the conduct of legal
   4-33  proceedings in any forum or obtain other professional services as
   4-34  may be necessary and convenient, sanction for contempt, assess and
   4-35  collect fees and costs including attorney's fees, issue, suspend,
   4-36  and revoke licenses, prohibit and regulate acts and practices in
   4-37  connection with the distribution and sale of <new> motor vehicles
   4-38  and warranty performance obligations, issue cease and desist orders
   4-39  in the nature of temporary and permanent injunctions, and levy
   4-40  civil penalties.
   4-41        SECTION 7.  Subsection (j), Section 3.08, Texas Motor Vehicle
   4-42  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   4-43  is amended to read as follows:
   4-44        (j)  On motion of any party the Commission may, by final
   4-45  order, and in accordance with the terms and procedures set forth in
   4-46  Rule 166a, Texas Rules of Civil Procedure, dismiss a complaint,
   4-47  protest, or response without holding a contested case hearing  <The
   4-48  Commission may dismiss a complaint or protest if it determines that
   4-49  the complaint or protest is frivolous or was made for purposes of
   4-50  harassment>.
   4-51        SECTION 8.  Section 4.01, Texas Motor Vehicle Commission Code
   4-52  (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
   4-53  read as follows:
   4-54        Sec. 4.01.  LICENSE REQUIRED.  (a)  No person shall engage in
   4-55  business as, serve in the capacity of, or act as a dealer,
   4-56  manufacturer, distributor, converter, or representative in this
   4-57  State or perform or offer to perform repair services on a motor
   4-58  vehicle pursuant to the terms of a franchise and a motor vehicle
   4-59  manufacturer's warranty, whether or not the person sells or offers
   4-60  to sell motor vehicles at the same location, without obtaining a
   4-61  license therefor as provided in this Act and the rules of the
   4-62  Commission.  All new license applications shall be reviewed and, in
   4-63  the discretion of the Commission, investigated to determine
   4-64  compliance with the provisions of this Act.  License renewals may
   4-65  be administratively granted unless protested.  Licenses issued by
   4-66  the Commission shall expire one year from date of issuance.  All
   4-67  <Notwithstanding the effective date of any franchise agreement,
   4-68  all> licenses and renewals thereof are issued subject to all
   4-69  provisions of this Act and rules of the Commission in effect upon
   4-70  the date of issuance as well as all future provisions of this Act
    5-1  and rules which may become effective during the term of the
    5-2  license.
    5-3        (b)  In the case of a nonfranchised dealer, the term
    5-4  "license" in this Act means a general distinguishing number issued
    5-5  by the Department pursuant to the authority of Article 6686,
    5-6  Revised Statutes.  A nonfranchised dealer may not operate as a
    5-7  dealer without a valid general distinguishing number but is not
    5-8  required to obtain an additional license under the terms of this
    5-9  Act.  A franchised dealer shall have both a general distinguishing
   5-10  number and a separate license issued under the terms of this Act.
   5-11        SECTION 9.  Subsection (a), Section 4.02, Texas Motor Vehicle
   5-12  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
   5-13  is amended to read as follows:
   5-14        (a)  An application for a dealer license shall be on a form
   5-15  prescribed by the Commission which shall include the information
   5-16  required by Article 6686, Revised Statutes, and information on the
   5-17  applicant's financial resources, business integrity, business
   5-18  ability and experience, franchise agreement if applicable, physical
   5-19  facilities, <for sales and service, parts and accessories
   5-20  inventory, new> vehicle inventory, and other factors the Commission
   5-21  considers necessary to determine an applicant's qualifications to
   5-22  adequately serve the motoring public.
   5-23        SECTION 10.  Subdivision (1), Subsection (c), and Subsection
   5-24  (d), Section 4.02, Texas Motor Vehicle Commission Code (Article
   5-25  4413(36), Vernon's Texas Civil Statutes), is amended to read as
   5-26  follows:
   5-27              (1)  A franchised dealer may carry on the business of
   5-28  his dealership at more than one location; however, a separate
   5-29  location for the display and sale of new motor vehicles may not be
   5-30  established and maintained by a franchised dealer unless expressly
   5-31  authorized by the franchised dealer's franchise and license.  An
   5-32  application for a franchised dealer's license or to amend a
   5-33  franchised dealer's license which proposes the establishment of a
   5-34  separate display and sales location is subject to all of the
   5-35  provisions of this Act.  A separate license shall be required for
   5-36  each separate and distinct dealership as determined by the
   5-37  Commission.
   5-38        (d)  A dealer licensed hereunder shall promptly notify the
   5-39  Commission of any proposed change in its ownership, location,
   5-40  franchise, or any other matters the Commission may require by rule.
   5-41  Prior to a change in a dealer's location <of a dealership>, a
   5-42  dealer shall obtain a new license for that location.
   5-43        SECTION 11.  Subsections (a), (b), (c), and (d), Section
   5-44  4.03, Texas Motor Vehicle Commission Code (Article 4413(36),
   5-45  Vernon's Texas Civil Statutes), is amended to read as follows:
   5-46        (a)  An application for a manufacturer's, distributor's,
   5-47  converter's, or representative's license shall be on a form
   5-48  prescribed by the Commission which form shall contain such
   5-49  information as the Commission deems necessary to fully determine
   5-50  the qualifications of an applicant for a license, including
   5-51  financial resources, business integrity and experience, facilities
   5-52  and personnel for serving franchised dealers and such other
   5-53  information as the Commission considers to be pertinent to
   5-54  safeguard the public interest and welfare.
   5-55        (b)  An applicant for a manufacturer's license shall furnish
   5-56  a list of all distributors, representatives acting for applicant,
   5-57  and all dealers franchised to sell the applicant's products in this
   5-58  State and their respective locations.  All applicants for
   5-59  manufacturer's licenses and all licensed manufacturers shall
   5-60  thereafter advise the Commission within 15 days of any change in
   5-61  their list of distributors, representatives, and franchised
   5-62  dealers.  This information shall become part of the application.
   5-63        (c)  Each application for a manufacturer's license shall
   5-64  include an instrument setting forth the terms and conditions of all
   5-65  warranty agreements in force and effect on the products it sells in
   5-66  this State so that the Commission may ascertain the degree of
   5-67  protection afforded the retail purchasers of its products and the
   5-68  obligations of its franchised dealers in connection therewith as
   5-69  well as the basis for compensating its franchised dealers for
   5-70  labor, parts and other expenses incurred in connection with such
    6-1  manufacturer's warranty agreements.  Each application shall include
    6-2  a statement regarding the manufacturer's compliance with Section
    6-3  5.02 of this Act.  In addition, each manufacturer's license
    6-4  application shall specify the delivery and preparation obligations
    6-5  of its franchised dealers prior to delivery of a new motor vehicle
    6-6  to a retail purchaser and the schedule of compensation to be paid
    6-7  to its franchised dealers for the work and service performed by
    6-8  them in connection with such delivery.
    6-9        (d)  An application for a distributor's license shall
   6-10  disclose the manufacturer for whom the distributor will act,
   6-11  whether the manufacturer is licensed in this State, the warranty
   6-12  covering the vehicles to be sold, the persons in this State who
   6-13  will be responsible for compliance with that warranty, and the
   6-14  terms of the contract under which the distributor will act for a
   6-15  manufacturer.  A  distributor's license application must disclose
   6-16  the franchised dealers with whom the distributor will do business.
   6-17  If the distributor is to have any responsibility for warranties,
   6-18  the distributor shall furnish the same information pertaining
   6-19  thereto as is required of a manufacturer.  The Commission shall be
   6-20  advised of any change in any such information within 15 days from
   6-21  the date thereof and any such new information shall become part of
   6-22  the application.
   6-23        SECTION 12.  Subsection (b), Section 4.04, Texas Motor
   6-24  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
   6-25  Statutes), is amended to read as follows:
   6-26        (b)  A manufacturer whose products are offered for sale in
   6-27  this State pursuant to a franchise entered into between its
   6-28  distributor or representative and a franchised dealer is bound by
   6-29  the terms of the franchise agreement and the provisions of this Act
   6-30  as if it had executed the franchise agreement.  A manufacturer that
   6-31  changes its distributor or the method of distribution of its
   6-32  products in this State in a manner that results in unlawful
   6-33  termination or noncontinuance of a franchise may not directly or
   6-34  indirectly distribute its products in this State.
   6-35        SECTION 13.  Subsection (a), Section 4.05, Texas Motor
   6-36  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
   6-37  Statutes), is amended to read as follows:
   6-38        (a)  The annual license fees for licenses issued hereunder
   6-39  shall be as follows:
   6-40              (1)  For each manufacturer and distributor, $900 plus
   6-41  $20 for each individual dealer franchised by the manufacturer or
   6-42  distributor <$825>.
   6-43              (2)  For each franchised dealer who sold 200 or fewer
   6-44  new motor vehicles during the preceding calendar year, $175 <$165>.
   6-45              (3)  For each franchised dealer who sold more than 200,
   6-46  but not more than 400 <500>, new motor vehicles during the
   6-47  preceding calendar year, $275.
   6-48              (4)  For each franchised dealer who sold more than 400
   6-49  <500>, but not more than 800 <1,000>, new motor vehicles during the
   6-50  preceding calendar year, $400 <$385>.
   6-51              (5)  For each franchised dealer who sold more than 800
   6-52  but not more than 1,200 <1,000> new motor vehicles during the
   6-53  preceding calendar year, $500 <$495>.
   6-54              (6)  For each franchised dealer who sold more than
   6-55  1,200 but not more than 1,600 new motor vehicles during the
   6-56  preceding calendar year, $625.
   6-57              (7)  For each franchised dealer who sold more than
   6-58  1,600 new motor vehicles during the preceding calendar year, $750.
   6-59              (8)  For each representative, $100 <$85>.
   6-60              (9) <(7)>  For each converter, $375 <$275>.
   6-61              (10) <(8)>  For each amendment to a dealer's license,
   6-62  $25.
   6-63        SECTION 14.  Section 4.06, Texas Motor Vehicle Commission
   6-64  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
   6-65  to read as follows:
   6-66        Sec. 4.06.  Sanctions, denial, revocation, or suspension of
   6-67  license.  (a)  The Commission may deny an application for a
   6-68  license, revoke or suspend an outstanding license, or place on
   6-69  probation a person whose license has been suspended, or reprimand a
   6-70  licensee, for any of the following reasons:
    7-1              (1)  Unfitness of an applicant or licensee under
    7-2  standards set out in this Act or in Commission rules.
    7-3              (2)  Material misrepresentation in any application or
    7-4  other information filed under this Act or Commission rules.
    7-5              (3)  Failure to comply with this Act or any Commission
    7-6  rule or order promulgated by the Commission.
    7-7              (4)  Failure to maintain the qualifications for a
    7-8  license.
    7-9              (5)  Willfully defrauding any retail buyer.
   7-10              (6)  Violation of any law relating to the sale,
   7-11  distribution, financing, or insuring of <new> motor vehicles.
   7-12              (7)  Any act or omission by an officer, director,
   7-13  partner, trustee, or other person acting in a representative
   7-14  capacity for a licensee which act or omission would be cause for
   7-15  denying, revoking, or suspending a license to an individual
   7-16  licensee.
   7-17              (8)  Failure to fulfill written agreements between the
   7-18  licensee and a retail buyer of a <new> motor vehicle.
   7-19        (b)  The revocation of a license previously held under this
   7-20  Act may be grounds for denying a subsequent application for a
   7-21  license.
   7-22        (c)  The Commission may deny an <a dealer> application to
   7-23  establish a dealership if, after protest, the applicant fails to
   7-24  establish good cause therefor.  In determining good cause, the
   7-25  Commission shall consider:
   7-26              (1)  whether the manufacturer or distributor of the
   7-27  same line-make of new motor vehicle is being adequately represented
   7-28  as to sales and service;
   7-29              (2)  whether the protesting franchised dealer
   7-30  representing the same line-make of new motor vehicle is in
   7-31  substantial compliance with his franchise agreement;
   7-32              (3)  the desirability of a competitive marketplace;
   7-33              (4)  any harm to the protesting franchised dealer; and
   7-34              (5)  the public interest.
   7-35        (d)  A franchised dealer <person> shall have standing under
   7-36  Subsection (c) of this section to protest an <a dealer's>
   7-37  application to establish or relocate a dealership if the person
   7-38  filing the protest:
   7-39              (1)  <it> is a franchised dealer of the same line-make
   7-40  whose dealership is located in the county in which the proposed
   7-41  dealership site is to be located; or
   7-42              (2)  <it> is a franchised dealer of the same line-make
   7-43  whose dealership is located within a 15 mile radius of the proposed
   7-44  dealership site.
   7-45        (e)  Notwithstanding the provisions of Subsection (d) of this
   7-46  section, the relocation of a dealership is not subject to protest
   7-47  by a franchised dealer whose dealership is not closer to the
   7-48  proposed location than it is to the location from which the
   7-49  relocated dealership is being relocated.
   7-50        (f)  The revocation or suspension of a manufacturer's or
   7-51  distributor's license may be limited to one or more municipalities
   7-52  or counties or any other defined area, or may be revoked or
   7-53  suspended in a defined area only as to certain aspects of its
   7-54  business, or as to a specified franchised dealer or franchised
   7-55  dealers.
   7-56        (g) <(f)>  No license shall be denied, revoked, or suspended,
   7-57  or disciplinary action taken under this section, except on order of
   7-58  the Commission after a hearing.  The Commission may inspect the
   7-59  books and records of a licensee in connection with the performance
   7-60  of its duties under this Act.
   7-61        (h) <(g)>  If a suspension of a license is probated, the
   7-62  Commission may:
   7-63              (1)  require the licensee to report regularly to the
   7-64  Commission on matters that are the basis of the probation; or
   7-65              (2)  limit activities to those prescribed by the
   7-66  Commission.
   7-67        SECTION 15.  Subsection (a), Section 4.07, Texas Motor
   7-68  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
   7-69  Statutes), is amended to read as follows:
   7-70        (a)  A franchised dealer licensed under this Act shall
    8-1  provide notice of the complaint procedures provided by Sections
    8-2  3.08(i) and 6.07 of this Act to each person to whom the franchised
    8-3  dealer sells a new motor vehicle.
    8-4        SECTION 16.  Section 5.01, Texas Motor Vehicle Commission
    8-5  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
    8-6  to read as follows:
    8-7        Sec. 5.01.  FRANCHISED DEALERS.  It is <shall be> unlawful
    8-8  for any franchised dealer to:
    8-9              (1)  Require a retail purchaser of a new motor vehicle
   8-10  as a condition of sale and delivery thereof to purchase special
   8-11  features, equipment, parts, or accessories not ordered or desired
   8-12  by the purchaser, provided such features, equipment, parts, or
   8-13  accessories are not already installed on the new motor vehicle at
   8-14  the time of sale.
   8-15              (2)  <Use false, deceptive, or misleading advertising.>
   8-16              <(3)>  Fail to perform the obligations placed on the
   8-17  selling franchised dealer in connection with the delivery and
   8-18  preparation of a new motor vehicle for retail sale as provided in
   8-19  the manufacturer's preparation and delivery agreements on file with
   8-20  the Commission and applicable to such vehicle.
   8-21              (3) <(4)>  Fail to perform the obligations placed on
   8-22  the franchised dealer in connection with the manufacturer's
   8-23  warranty agreements on file with the Commission.
   8-24              (4) <(5)  Operate as a dealer without a currently valid
   8-25  license from the Commission or otherwise violate this Act or rules
   8-26  promulgated by the Commission hereunder.>
   8-27              <(6)>  Operate without appropriate signs readily and
   8-28  easily visible to the public, identifying the franchised dealer's
   8-29  place of business and the products the franchised dealer offers for
   8-30  sale.  In the event of a conflict with another law or ordinance,
   8-31  this Subdivision prevails, and in the event of a dispute, the Board
   8-32  has exclusive jurisdiction to determine whether a sign or signs are
   8-33  in compliance with the terms of this Subdivision.  In the event of
   8-34  a dispute, the Board shall uphold local ordinances of a home-rule
   8-35  city and protect franchised dealers from retribution by
   8-36  manufacturers or distributors for having complied with local
   8-37  ordinances.
   8-38        SECTION 17.  The Texas Motor Vehicle Commission Code (Article
   8-39  4413(36), Vernon's Texas Civil Statutes) is amended by adding
   8-40  Section 5.01A to read as follows:
   8-41        Sec. 5.01A.  DEALERS.  No dealer may:
   8-42              (1)  use false, deceptive, or misleading advertising;
   8-43              (2)  operate as a dealer without a currently valid
   8-44  license or general distinguishing number issued by the Board;
   8-45              (3)  violate a rule of the Board; or
   8-46              (4)  aid or abet a person who violates this Act.
   8-47        SECTION 18.  Section 5.02, Texas Motor Vehicle Commission
   8-48  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
   8-49  to read as follows:
   8-50        Sec. 5.02.  MANUFACTURERS; DISTRIBUTORS; REPRESENTATIVES.
   8-51  (a)  In this section, "dealer" means franchised dealer.
   8-52        (b)  It is <shall be> unlawful for any manufacturer,
   8-53  distributor, or representative to:
   8-54              (1)  Require or attempt to require any dealer to order,
   8-55  accept delivery of or pay anything of value, directly or
   8-56  indirectly, for any motor vehicle, appliance, part, accessory or
   8-57  any other commodity unless voluntarily ordered or contracted for by
   8-58  such dealer.
   8-59              (2)  Refuse or fail to deliver, in reasonable
   8-60  quantities and within a reasonable time, to a dealer having a
   8-61  franchise agreement for the retail sale of any motor vehicles sold
   8-62  or distributed by such manufacturer, distributor, or
   8-63  representative, any new motor vehicle or parts or accessories to
   8-64  new motor vehicles as are covered by such franchise if such
   8-65  vehicle, parts or accessories are publicly advertised as being
   8-66  available for delivery or are actually being delivered; provided,
   8-67  however, this provision is not violated if such failure is caused
   8-68  by acts of God, work stoppage or delays due to strikes or labor
   8-69  disputes, freight embargoes or other causes beyond the control of
   8-70  the manufacturer, distributor, or representative.
    9-1              (3)  Notwithstanding the terms of any franchise
    9-2  agreement:
    9-3                    (A)  Terminate or refuse to continue any
    9-4  franchise with a dealer or directly or indirectly force or attempt
    9-5  to force a dealer to discontinue a line-make or parts or products
    9-6  related to that line-make unless all of the following conditions
    9-7  are met:
    9-8                          (i)  the dealer and the Commission have
    9-9  received written notice by registered or certified mail from the
   9-10  manufacturer, distributor, or representative not less than 60 days
   9-11  before the effective date of termination or noncontinuance setting
   9-12  forth the specific grounds for termination or noncontinuance; and
   9-13                          (ii)  the written notice contains on the
   9-14  first page thereof a conspicuous statement which reads as follows:
   9-15  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE
   9-16  TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE A HEARING
   9-17  IN WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR NONCONTINUANCE
   9-18  OF YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR VEHICLE
   9-19  COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and
   9-20                          (iii)  the manufacturer, distributor, or
   9-21  representative has received the informed, written consent of the
   9-22  affected dealer or the appropriate period for the affected dealer
   9-23  to protest the proposed franchise termination or noncontinuance has
   9-24  lapsed; or
   9-25                          (iv)  if the affected dealer files a
   9-26  protest with the Commission within the greater of (1) 60 days after
   9-27  receiving its 60-day notice of proposed termination or
   9-28  noncontinuance or (2) the time specified in such notice, the
   9-29  Commission determines that the party seeking to terminate or not
   9-30  continue a dealer's franchise has established by a preponderance of
   9-31  the evidence, at a hearing called by the Commission, that there is
   9-32  good cause for the proposed termination or noncontinuance.
   9-33                          (v)  Notwithstanding Subdivisions (3)(A)(i)
   9-34  and (3)(A)(iv) of this section, notice may be made not less than 15
   9-35  days prior to the effective date of termination or noncontinuance
   9-36  if a licensed dealer fails to conduct its customary sales and
   9-37  service operations during its customary business hours for seven
   9-38  consecutive business days unless such failure is caused by an act
   9-39  of God, work stoppage or delays due to strikes or labor disputes,
   9-40  an order of the Commission, or other causes beyond the control of
   9-41  the dealer.
   9-42                    (B)  Whenever a dealer files a timely protest to
   9-43  a proposed franchise termination or noncontinuance, the Commission
   9-44  shall notify the party seeking to terminate or to not continue the
   9-45  protesting dealer's franchise that a timely protest has been filed,
   9-46  that a hearing is required in accordance with this Act, and that
   9-47  the party who gave the dealer notice of termination or
   9-48  noncontinuance of the franchise may not terminate or refuse to
   9-49  continue the franchise until the Commission issues its final
   9-50  decision or order.
   9-51                    (C)  If a franchise is terminated or not
   9-52  continued, another franchise in the same line-make will be
   9-53  established within a reasonable time unless it is shown to the
   9-54  Commission by a preponderance of the evidence that the community or
   9-55  trade area cannot reasonably support such a dealership.  If this
   9-56  showing is made, no dealer license shall be thereafter issued in
   9-57  the same area unless a change in circumstances is established.
   9-58              (4)  Notwithstanding the terms of any franchise
   9-59  agreement, modify or replace a franchise with a succeeding
   9-60  franchise if the modification or replacement would adversely
   9-61  affect, to a substantial degree, the dealer's sales, investment, or
   9-62  obligations to provide service to the public, unless the
   9-63  manufacturer, distributor, or representative has first given the
   9-64  Commission and each affected dealer written notice by registered or
   9-65  certified mail of any such action 60 days in advance of the
   9-66  modification or replacement.  The written notice shall contain on
   9-67  the first page thereof a conspicuous statement which reads as
   9-68  follows:  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST
   9-69  WITH THE TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE
   9-70  A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED MODIFICATION OR
   10-1  REPLACEMENT OF YOUR FRANCHISE WITH A SUCCEEDING FRANCHISE UNDER THE
   10-2  TERMS OF THE TEXAS MOTOR VEHICLE COMMISSION CODE IF YOU OPPOSE THIS
   10-3  ACTION." Within the greater of (1) 60 days after receipt of such
   10-4  notice or (2) the time specified in such notice, a dealer may file
   10-5  a protest with the Commission and the modification or replacement
   10-6  shall not become effective unless and until the Commission
   10-7  determines that the party seeking to modify or replace a franchise
   10-8  with a succeeding franchise has demonstrated by a preponderance of
   10-9  the evidence that there is good cause for the modification or
  10-10  replacement.  The prior franchise shall continue in effect until
  10-11  the protest is resolved by the Commission.
  10-12              (5)  Notwithstanding the terms of any franchise
  10-13  agreement, in determining whether good cause has been established
  10-14  for modifying, replacing, terminating, or refusing to continue a
  10-15  franchise, or for forcing or attempting to force a dealer to
  10-16  discontinue a line-make or parts or products related to that
  10-17  line-make, the Commission shall consider all the existing
  10-18  circumstances including, without limitation by the enumeration
  10-19  herein, all the following:
  10-20                    (A)  the dealer's sales in relation to the sales
  10-21  in the market;
  10-22                    (B)  the dealer's investment and obligations;
  10-23                    (C)  injury to the public welfare;
  10-24                    (D)  the adequacy of the dealer's service
  10-25  facilities, equipment, parts, and personnel in relation to those of
  10-26  other dealers of new motor vehicles of the same line-make;
  10-27                    (E)  whether warranties are being honored by the
  10-28  dealer;
  10-29                    (F)  the parties' compliance with their franchise
  10-30  agreement; and
  10-31                    (G)  the enforceability of the franchise
  10-32  agreement from a public policy standpoint, including, without
  10-33  limitation, issues of the reasonableness of the franchise
  10-34  agreement's terms, oppression, adhesion, and the relative
  10-35  bargaining power of the parties.
  10-36        Good cause shall not be shown solely by the desire of a
  10-37  manufacturer, distributor, or representative for market
  10-38  penetration.
  10-39              (6)  Use any false, deceptive or misleading
  10-40  advertising.
  10-41              (7)  Notwithstanding the terms of any franchise
  10-42  agreement, prevent any dealer from reasonably changing the capital
  10-43  structure of his dealership or the means by or through which he
  10-44  finances the operation thereof, provided that the dealer meets
  10-45  reasonable capital requirements.
  10-46              (8)  Notwithstanding the terms of any franchise
  10-47  agreement, fail to give effect to or attempt to prevent any sale or
  10-48  transfer of a dealer, dealership or franchise or interest therein
  10-49  or management thereof unless, after complaint or protest, it is
  10-50  demonstrated to the Commission after hearing that the result of any
  10-51  such sale or transfer will be detrimental to the public or the
  10-52  representation of the manufacturer or distributor.
  10-53              (9)  Notwithstanding the terms of any franchise
  10-54  agreement, require or attempt to require that a dealer assign to or
  10-55  act as an agent for any manufacturer, distributor or representative
  10-56  in the securing of promissory notes and security agreements given
  10-57  in connection with the sale or purchase of new motor vehicles or
  10-58  the securing of policies of insurance on or having to do with the
  10-59  operation of vehicles sold.
  10-60              (10)  Notwithstanding the terms of any franchise
  10-61  agreement, fail or refuse, after complaint and hearing, to perform
  10-62  the obligations placed on the manufacturer in connection with the
  10-63  delivery, preparation and warranty of a new motor vehicle as
  10-64  provided in the manufacturer's warranty, preparation, and delivery
  10-65  agreements on file with the Commission.
  10-66              (11)  Notwithstanding the terms of any franchise
  10-67  agreement, fail to compensate its dealers for the work and services
  10-68  they are required to perform in connection with the dealer's
  10-69  delivery and preparation obligations according to the agreements on
  10-70  file with the Commission which must be found by the Commission to
   11-1  be reasonable, or fail to adequately and fairly compensate its
   11-2  dealers for labor, parts and other expenses incurred by such dealer
   11-3  to perform under and comply with a manufacturer's or a
   11-4  distributor's warranty agreement, or require, as a prerequisite to
   11-5  the manufacturer's or distributor's payment of a claim for
   11-6  reimbursement as required by this section, that a dealer file with
   11-7  the manufacturer or distributor the actual time spent in the
   11-8  performance of labor unless actual time is the basis for
   11-9  reimbursement.  In no event shall any manufacturer or distributor
  11-10  pay its dealers an amount of money for warranty work that is less
  11-11  than that charged by the dealer to the retail customers of the
  11-12  dealer for nonwarranty work of like kind.  All claims made by
  11-13  dealers for compensation for delivery, preparation, and warranty
  11-14  work shall be paid within 30 days after approval and shall be
  11-15  approved or disapproved within 30 days after receipt.  When any
  11-16  claim is disapproved, the dealer shall be notified in writing of
  11-17  the grounds for disapproval.  No claim which has been approved and
  11-18  paid may be charged back to the dealer unless it can be shown that
  11-19  the claim was false or fraudulent, that the repairs were not
  11-20  properly made or were unnecessary to correct the defective
  11-21  condition, or that the dealer failed to reasonably substantiate the
  11-22  claim in accordance with reasonable written requirements of the
  11-23  manufacturer or distributor, if the dealer has been notified of the
  11-24  requirements prior to the time the claim arose, and if the
  11-25  requirements were in effect at the time the claim arose.  A
  11-26  manufacturer or distributor may not audit a claim after the
  11-27  expiration of two years following the submission of the claim
  11-28  unless the manufacturer or distributor has reasonable grounds to
  11-29  suspect that a claim was fraudulent.  Notwithstanding the terms of
  11-30  a franchise agreement or provision of law in conflict with this
  11-31  section, the dealer's delivery, preparation, and warranty
  11-32  obligations as filed with the Commission shall constitute the
  11-33  dealer's sole responsibility for product liability as between the
  11-34  dealer and manufacturer or distributor, and, except for a loss
  11-35  caused by the dealer's failure to adhere to these obligations, a
  11-36  loss caused by the dealer's negligence or intentional misconduct,
  11-37  or a loss caused by the dealer's modification of a product without
  11-38  manufacturer or distributor authorization, the manufacturer or
  11-39  distributor shall reimburse the dealer for all loss incurred by the
  11-40  dealer, including legal fees, court costs, and damages, as a result
  11-41  of the dealer having been named a party in a product liability
  11-42  action.
  11-43              (12)  Operate as a manufacturer, distributor, or
  11-44  representative without a currently valid license from the
  11-45  Commission or otherwise violate this Act or rules promulgated by
  11-46  the Commission hereunder.
  11-47              (13)  Notwithstanding the terms of any franchise
  11-48  agreement, to prevent or refuse to honor the succession to a
  11-49  dealership by any legal heir or devisee under the will of a dealer
  11-50  or under the laws of descent and distribution of this State unless
  11-51  it is shown to the Commission, after notice and hearing, that the
  11-52  result of such succession will be detrimental to the public
  11-53  interest and to the representation of the manufacturer or
  11-54  distributor; provided, however, nothing herein shall prevent a
  11-55  dealer, during his lifetime, from designating any person as his
  11-56  successor dealer, by written instrument filed with the manufacturer
  11-57  or distributor.
  11-58              (14)  Notwithstanding the terms of any franchise
  11-59  agreement, require that a dealer pay or assume, directly or
  11-60  indirectly, any part of any refund, rebate, discount, or other
  11-61  financial adjustment made by the manufacturer, distributor, or
  11-62  representative to, or in favor of, any customer of a dealer, unless
  11-63  voluntarily agreed to by such dealer.
  11-64              (15)  Notwithstanding the terms of any franchise
  11-65  agreement, deny or withhold approval of a written application to
  11-66  relocate a franchise unless (A) the applicant has received written
  11-67  notice of the denial or withholding of approval within 60 <90> days
  11-68  after receipt of the application containing information reasonably
  11-69  necessary to enable the manufacturer or distributor to adequately
  11-70  evaluate the application, and if (B) the applicant files a protest
   12-1  with the Commission and the manufacturer or distributor establishes
   12-2  by a preponderance of the evidence at a hearing called by the
   12-3  Commission that the grounds for the denial or withholding of
   12-4  approval <, and distance> of<,> the relocation are reasonable.
   12-5              (16)  Notwithstanding the terms of any franchise
   12-6  agreement, fail to pay to a dealer or any lienholder in accordance
   12-7  with their respective interest after the termination of a
   12-8  franchise:
   12-9                    (A)  the dealer cost of each new motor vehicle in
  12-10  the dealer's inventory with mileage of 6,000 miles or less, reduced
  12-11  by the net discount value of each, where "net discount value" is
  12-12  determined according the following formula:  net cost multiplied by
  12-13  total mileage divided by 100,000, and where "net cost" equals the
  12-14  dealer cost plus any charges by the manufacturer, distributor, or
  12-15  representative for distribution, delivery, and taxes, less all
  12-16  allowances paid to the dealer by the manufacturer, distributor, or
  12-17  representative for new, unsold, undamaged, and complete motor
  12-18  vehicles of current model year or one year prior model year in the
  12-19  dealer's inventory, except that if a vehicle cannot be reduced by
  12-20  the net discount value, the manufacturer or distributor shall pay
  12-21  the dealer the net cost of the vehicle;
  12-22                    (B)  the dealer cost of each new, unused,
  12-23  undamaged, and unsold part or accessory if the part or accessory is
  12-24  in the current parts catalogue and is still in the original,
  12-25  resalable merchandising package and in unbroken lots, except that
  12-26  in the case of sheet metal, a comparable substitute for the
  12-27  original package may be used, and if the part or accessory was
  12-28  purchased by the dealer either directly from the manufacturer or
  12-29  distributor or from an outgoing authorized dealer as a part of the
  12-30  dealer's initial inventory;
  12-31                    (C)  the fair market value of each undamaged sign
  12-32  owned by the dealer which bears a trademark or tradename used or
  12-33  claimed by the manufacturer, distributor, or representative if the
  12-34  sign was purchased from or purchased at the request of the
  12-35  manufacturer, distributor, or representative;
  12-36                    (D)  the fair market value of all special tools,
  12-37  data processing equipment, and automotive service equipment owned
  12-38  by the dealer which were recommended in writing and designated as
  12-39  special tools and equipment and purchased from or purchased at the
  12-40  request of the manufacturer, distributor, or representative, if the
  12-41  tools and equipment are in usable and good condition except for
  12-42  reasonable wear and tear;
  12-43                    (E)  the cost of transporting, handling, packing,
  12-44  storing, and loading of any property subject to repurchase under
  12-45  this section;
  12-46                    (F)  except as provided by this subdivision, any
  12-47  sums due as provided by Paragraph (A) of this subdivision within 60
  12-48  days after termination of a franchise and any sums due as provided
  12-49  by Paragraphs (B) through (E) of this subdivision within 90 days
  12-50  after termination of a franchise.  As a condition of payment, the
  12-51  dealer is to comply with reasonable requirements with respect to
  12-52  the return of inventory as are set out in the terms of the
  12-53  franchise agreement.  A manufacturer or distributor shall reimburse
  12-54  a dealer for the dealer's cost for storing any property covered by
  12-55  this subdivision beginning 90 days following termination.  A
  12-56  manufacturer or distributor shall reimburse a dealer for the
  12-57  dealer's cost of storing any property covered by this subdivision
  12-58  before the expiration of 90 days from the date of termination if
  12-59  the dealer notifies the manufacturer or distributor of the
  12-60  commencement of storage charges within that period.  On receipt of
  12-61  notice of the commencement of storage charges, a manufacturer or
  12-62  distributor may immediately take possession of the property in
  12-63  question by repurchasing the property as provided by this
  12-64  subdivision.  A manufacturer, distributor, or representative who
  12-65  fails to pay those sums within the prescribed time or at such time
  12-66  as the dealer and lienholder, if any, proffer good title prior to
  12-67  the prescribed time for payment, is liable to the dealer for:
  12-68                          (i) <(1)>  the greatest of dealer cost,
  12-69  fair market value, or current price of the inventory;
  12-70                          (ii) <(2)>  interest on the amount due
   13-1  calculated at the rate applicable to a judgment of a court; and
   13-2                          (iii) <(3)>  reasonable attorney's fees and
   13-3  costs.
   13-4              (17)  Notwithstanding the terms of any franchise
   13-5  agreement, change its distributor, its method of distribution of
   13-6  its products in this state, or its business structure or ownership
   13-7  in a manner that results in the termination or noncontinuance of a
   13-8  franchise without good cause.  The manufacturer, distributor, or
   13-9  representative shall issue the same notice to the dealer and to the
  13-10  Commission as is provided in Subdivisions (3)(A) and (B) of this
  13-11  section and said same procedures shall apply to the parties.
  13-12              (18)  Notwithstanding the terms of any franchise
  13-13  agreement, require a dealer to submit to arbitration on any issue
  13-14  unless the dealer and the manufacturer, distributor, or
  13-15  representative and their respective counsel agree to arbitrate
  13-16  after a controversy arises.  The arbitrator shall apply the
  13-17  provisions of this Act in resolving the pertinent controversy.
  13-18  Either party may appeal to the Commission a decision of an
  13-19  arbitrator on the ground that the arbitrator failed to apply this
  13-20  Act.
  13-21              (19)  Notwithstanding the terms of any franchise
  13-22  agreement, require that a dealer join, contribute to, or affiliate
  13-23  with, directly or indirectly, any advertising association.
  13-24              (20)  Notwithstanding the terms of a franchise
  13-25  agreement:
  13-26                    (A)  require adherence to unreasonable sales or
  13-27  service standards;
  13-28                    (B)  directly or indirectly, discriminate against
  13-29  a dealer or otherwise treat dealers differently as a result of a
  13-30  formula or other calculation or process intended to gauge the
  13-31  performance of a dealership, except a sales contest or other
  13-32  recognition program based on reasonable sales and service criteria;
  13-33                    (C)  unreasonably require that a dealer purchase
  13-34  special tools or equipment; or
  13-35                    (D)  fail to compensate a dealer for all costs
  13-36  incurred by the dealer as required by the manufacturer in complying
  13-37  with the terms of a product recall by the manufacturer or
  13-38  distributor, including the costs, if any, incurred by the dealer in
  13-39  notifying vehicle owners of the existence of the recall.
  13-40              (21)  Discriminate unreasonably between or among
  13-41  franchisees in the sale of a motor vehicle owned by the
  13-42  manufacturer or distributor.
  13-43              (22)  Directly or indirectly, or through a subsidiary
  13-44  or agent, require, as a condition for obtaining financing for a
  13-45  motor vehicle, the purchaser of a vehicle to purchase any product
  13-46  other than the motor vehicle from the manufacturer or distributor,
  13-47  or from an entity owned or controlled by the manufacturer or
  13-48  distributor.
  13-49              (23)  Directly or indirectly, or through a subsidiary
  13-50  or agent, require, as a condition of its or its subsidiary's
  13-51  agreement to provide financing for a motor vehicle, that any
  13-52  insurance policy or service contract purchased by the motor vehicle
  13-53  purchaser be purchased from a specific source.
  13-54              (24)  Compel a dealer through a financing subsidiary of
  13-55  the manufacturer or distributor to agree to unreasonable operating
  13-56  requirements or directly or indirectly to terminate a dealer
  13-57  through the actions of a financing subsidiary of the manufacturer
  13-58  or distributor.  This subdivision does not limit the right of a
  13-59  financing entity to engage in business practices in accordance with
  13-60  the usage of trade in retail and wholesale motor vehicle financing.
  13-61              (25)  Operate as a dealer except on a temporary basis
  13-62  and only if:
  13-63                    (A)  the dealership was previously owned by a
  13-64  franchised dealer and is currently for sale at a reasonable price;
  13-65  or
  13-66                    (B)  the manufacturer, distributor, or
  13-67  representative operates the dealership in a bona fide relationship
  13-68  with a franchised dealer who is required to make a significant
  13-69  investment in the dealership, subject to loss, and who reasonably
  13-70  expects to acquire full ownership of the dealership under
   14-1  reasonable terms and conditions.
   14-2              (26)  Notwithstanding the terms of a franchise
   14-3  agreement, deny or withhold approval of a dealer's application to
   14-4  add a line-make or parts or products related to that line-make
   14-5  unless, within 60 days of receipt of the dealer's written
   14-6  application to add the line-make, the manufacturer or distributor
   14-7  gives the dealer written notice of the denial or withholding of
   14-8  approval.  After receipt of notice, the dealer may file a protest
   14-9  with the Commission.  If the dealer files a protest as provided by
  14-10  this subdivision, the Commission may uphold the manufacturer's or
  14-11  distributor's decision to deny or withhold approval of the addition
  14-12  of the line-make only if the manufacturer or distributor proves by
  14-13  a preponderance of the evidence that the denial or withholding of
  14-14  approval was reasonable.  In determining whether or not the
  14-15  manufacturer or distributor has met its burden to show that its
  14-16  denial or withholding of approval is reasonable, the Commission
  14-17  shall consider all existing circumstances, including, without
  14-18  limitation, the following:
  14-19                    (A)  the dealer's sales in relation to the sales
  14-20  in the market;
  14-21                    (B)  the dealer's investment and obligations;
  14-22                    (C)  injury to the public welfare;
  14-23                    (D)  the adequacy of the dealer's sales and
  14-24  service facilities, equipment, parts, and personnel in relation to
  14-25  those of other dealers of new motor vehicles of the same line-make;
  14-26                    (E)  whether warranties are being honored by the
  14-27  dealer agreement;
  14-28                    (F)  the parties' compliance with their franchise
  14-29  agreement;
  14-30                    (G)  the enforceability of the franchise
  14-31  agreement from a public policy standpoint, including without
  14-32  limitation, issues of the reasonableness of the franchise
  14-33  agreement's terms, oppression, adhesion, and the relative
  14-34  bargaining power of the parties;
  14-35                    (H)  whether the dealer complies with reasonable
  14-36  capitalization requirements or will be able to comply with
  14-37  reasonable capitalization requirements within a reasonable time;
  14-38                    (I)  the harm, if any, to the manufacturer if the
  14-39  denial or withholding of approval is not upheld; and
  14-40                    (J)  the harm, if any, to the dealer if the
  14-41  denial or withholding of approval is upheld.
  14-42        SECTION 19.  Subsection (a), Section 5.04, Texas Motor
  14-43  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
  14-44  Statutes), is amended to read as follows:
  14-45        (a)  No person may engage in the business of buying, selling,
  14-46  or exchanging new motor vehicles unless that person:
  14-47              (1)  holds a valid franchised dealer's license issued
  14-48  by the Commission for the make or makes of new motor vehicles being
  14-49  bought, sold, or exchanged; or
  14-50              (2)  is acting as a bona fide employee of the licensee.
  14-51        SECTION 20.  Subsection (a), Section 6.01, Texas Motor
  14-52  Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil
  14-53  Statutes), is amended to read as follows:
  14-54        (a)  In the event the Commission determines, after a
  14-55  proceeding conducted in accordance with this Act and the rules of
  14-56  the Commission, that any person is violating or has violated any
  14-57  provision of this Act or any rule or order of the Commission issued
  14-58  pursuant to this Act, the Commission may levy a civil penalty not
  14-59  to exceed $10,000.00 for each day of violation and for each act of
  14-60  violation.  Notwithstanding a law to the contrary, including
  14-61  without limitation the provisions of Section 403.094(h), Government
  14-62  Code, all <All> civil penalties recovered under this Act shall be
  14-63  deposited in the state treasury to the credit of the state highway
  14-64  fund <paid to the General Revenue Fund of the State of Texas>.
  14-65        SECTION 21.  Section 6.06, Texas Motor Vehicle Commission
  14-66  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  14-67  by amending Subsection (a) and by adding Subsection (f) to read as
  14-68  follows:
  14-69        (a)  Notwithstanding any other provision of law, including
  14-70  the terms of Subchapter E, Chapter 17, Business & Commerce Code, in
   15-1  addition to the other remedies provided by this subchapter, a
   15-2  person who has sustained actual damages as a result of a violation
   15-3  of Section 5.01 or Section 5.01A of this Act, or a franchised
   15-4  dealer who has sustained actual damages as a result of a violation
   15-5  of <or> Section 5.02 of this Act, or a violation of Subchapter E,
   15-6  Chapter 17, Business & Commerce Code, may maintain an action
   15-7  pursuant to the terms of Subchapter E, Chapter 17, Business & <and>
   15-8  Commerce Code  or any successor statute thereto and shall be
   15-9  entitled to all procedures and remedies provided for therein.  In
  15-10  any action brought under this section, and in the interest of
  15-11  judicial economy and efficiency, a judgment rendered pursuant to
  15-12  this section shall pay due deference to the findings of fact and
  15-13  conclusions of law of the Commission contained in a final order
  15-14  which forms the basis of the action.
  15-15        (f)  A reference in other law to a dealer licensed by the
  15-16  Texas Motor Vehicle Commission or a dealer licensed by the Motor
  15-17  Vehicle Board of the Texas Department of Transportation means a
  15-18  franchised dealer.
  15-19        SECTION 22.  Section 6.07, Texas Motor Vehicle Commission
  15-20  Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
  15-21  by amending Subsections (b), (d), (g), and (j) and by adding
  15-22  Subsection (l) to read as follows:
  15-23        (b)  If a new motor vehicle does not conform to all
  15-24  applicable manufacturer's, converter's, or distributor's express
  15-25  warranties, the manufacturer, converter, or distributor shall make
  15-26  the repairs necessary to conform the vehicle to the applicable
  15-27  express warranties, notwithstanding that the repairs are made after
  15-28  the expiration of the warranties, if:  (1) the owner or the owner's
  15-29  designated agent reported the nonconformity to the manufacturer,
  15-30  converter, or distributor, its agent, or its franchised
  15-31  <authorized> dealer during the term of such express warranties; or
  15-32  (2) a rebuttable presumption relating to the vehicle was created
  15-33  under Subsection (d) of this section.  This section does not in any
  15-34  way limit the remedies available to an owner under a new motor
  15-35  vehicle warranty that extends beyond the provisions of this
  15-36  section.
  15-37        (d)  There is a rebuttable presumption that a reasonable
  15-38  number of attempts have been undertaken to conform a motor vehicle
  15-39  to the applicable express warranties if (1) the same nonconformity
  15-40  has been subject to repair four or more times by the manufacturer,
  15-41  converter, or distributor, its agent, or its franchised
  15-42  <authorized> dealer and two of the repair attempts have been made
  15-43  within a period of 12 months following the date of original
  15-44  delivery to an owner, or 12,000 miles, whichever occurs first, and
  15-45  the other two repair attempts occur within the 12 months or 12,000
  15-46  miles immediately following the date of the second repair attempt,
  15-47  whichever occurs first, but such nonconformity continues to exist;
  15-48  (2) the same nonconformity creates a serious safety hazard and has
  15-49  caused the vehicle to have been subject to repair two or more times
  15-50  by the manufacturer, converter, or distributor, or an authorized
  15-51  agent or franchised dealer, and at least one attempt to repair the
  15-52  nonconformity was made in the period of 12 months or 12,000 miles,
  15-53  whichever occurs first, and at least one other attempt made in the
  15-54  period of 12 months or 12,000 miles after the first repair attempt,
  15-55  whichever occurs first, but the nonconformity continues to exist;
  15-56  or (3) the vehicle is out of service for repair for a cumulative
  15-57  total of 30 or more days in the 24 months or 24,000 miles,
  15-58  whichever occurs first, and at least two repair attempts were made
  15-59  in the first 12 months or 12,000 miles immediately following the
  15-60  date of original delivery to an owner and a nonconformity still
  15-61  exists that substantially impairs the vehicle's use or market
  15-62  value.  The initial 12-month period or 12,000 mile limit, the
  15-63  subsequent 12-month period or 12,000 mile limit, and the 30-day
  15-64  period shall be extended by any period of time during which repair
  15-65  services are not available to the owner because of a war, invasion,
  15-66  strike or fire, flood, or other natural disaster.  During any
  15-67  period of time that the manufacturer or distributor lends a
  15-68  comparable motor vehicle to the owner during the time the vehicle
  15-69  is being repaired by a franchised <an authorized> dealer, the
  15-70  30-day period provided for in this subsection is tolled.
   16-1        (g)  In a hearing under this section, the Executive Director
   16-2  shall make its order with respect to responsibility for payment of
   16-3  the cost of any refund or replacement and no manufacturer,
   16-4  converter, or distributor may cause any franchised dealer to pay
   16-5  directly or indirectly any sum not specifically so ordered by the
   16-6  Executive Director. If the Executive Director orders a
   16-7  manufacturer, converter, or distributor to refund or replace a
   16-8  motor vehicle because it meets the criteria set forth in this
   16-9  section, the Executive Director may order the franchised dealer to
  16-10  reimburse the owner, lienholder, manufacturer, converter, or
  16-11  distributor only for items or options added to the vehicle by the
  16-12  franchised dealer and only to the extent that one or more of such
  16-13  items or options contributed to the defect that served as the basis
  16-14  for the Executive Director's order of refund or replacement.  In a
  16-15  case involving a leased vehicle, the Executive Director may
  16-16  terminate the lease and apportion the allowance for use and other
  16-17  allowances or refunds between the lessee and lessor of the vehicle.
  16-18        (j)(1)  A manufacturer, distributor, or converter that has
  16-19  been ordered to repurchase or replace a vehicle shall, through its
  16-20  franchised <representative> dealer, issue a disclosure statement
  16-21  stating that the vehicle was repurchased or replaced by the
  16-22  manufacturer, distributor, or converter under this section.  The
  16-23  disclosure statement must accompany the vehicle through the first
  16-24  retail purchase.  The manufacturer, distributor, or converter must
  16-25  restore the cause of the repurchase or replacement to factory
  16-26  specifications and issue a new 12-month, 12,000-mile warranty on
  16-27  the vehicle.  The disclosure statement must include a toll-free
  16-28  telephone number of the Commission that will enable a purchaser of
  16-29  a repurchased or replaced vehicle to obtain information about the
  16-30  condition or defect that was the basis of the order for repurchase
  16-31  or replacement.  The Commission shall adopt rules for the
  16-32  enforcement of this subdivision.
  16-33              (2)  The Commission shall provide a toll-free telephone
  16-34  number for providing information to persons who request information
  16-35  about a condition or defect that was the basis for repurchase or
  16-36  replacement by an order of the Executive Director.  The Commission
  16-37  shall maintain an effective method of providing information to
  16-38  persons who make the requests.
  16-39        (l)  Information filed with the Board under this section is
  16-40  not a public record and is not subject to release under the open
  16-41  records law, Chapter 552, Government Code, until the complaint is
  16-42  finally resolved by order of the Board.
  16-43        SECTION 23.  (a)  In the event of a conflict between the
  16-44  terms of this Act and Article 6686, Revised Statutes, the terms of
  16-45  this Act prevail.
  16-46        (b)  The executive director of the Motor Vehicle Board of the
  16-47  Texas Department of Transportation shall oversee the transition of
  16-48  duties and responsibilities provided by this Act.
  16-49        (c)  Except as provided by this section, all general
  16-50  distinguishing numbers issued pursuant to Article 6686, Revised
  16-51  Statutes, expire one year from the date of issuance.  On or before
  16-52  March 31, 1996, the Motor Vehicle Board of the Texas Department of
  16-53  Transportation shall adopt a rule by which general distinguished
  16-54  numbers expire on various dates during the year.  For the year in
  16-55  which the expiration date is changed, a general distinguishing
  16-56  number may be issued for a term less than one year.  If a general
  16-57  distinguishing number is issued for a term of less than one year,
  16-58  the fee payable on the date of issuance shall be prorated on a
  16-59  monthly basis so that the licensee shall pay only that portion of
  16-60  the license fee which is allocable to the number of months during
  16-61  which the license is valid.  On renewal of the general
  16-62  distinguishing number on the new expiration date, the total fee is
  16-63  payable and the general distinguishing number is valid for a term
  16-64  of one year.
  16-65        SECTION 24.  This Act takes effect January 1, 1996.
  16-66        SECTION 25.  The importance of this legislation and the
  16-67  crowded condition of the calendars in both houses create an
  16-68  emergency and an imperative public necessity that the
  16-69  constitutional rule requiring bills to be read on three several
  16-70  days in each house be suspended, and this rule is hereby suspended,
   17-1  and that this Act take effect and be in force according to its
   17-2  terms, and it is so enacted.
   17-3                               * * * * *