TWT H.B. 2202 75(R)BILL ANALYSIS TRANSPORTATION H.B. 2202 By: Bosse 4-11-97 Committee Report (Substituted) BACKGROUND While the Texas Department of Transportation (TXDOT) may regulate and assess fines against licensed vehicle storage facility (VSF) operators, the Vehicle Storage Facility Act does not permit assessment of administrative penalties against unlicensed operators who violate this act. Responsibility for enforcing the Vehicle Storage Facilities Act was transferred from the Texas Railroad Commission to the TXDOT in September 1995. PURPOSE To provide for the assessment of administrative penalties for unlicensed vehicle storage facilities; allow the TXDOT Executive Director to revoke or deny a license instead of the Transportation Commission; omit reference to a minimum fee that may be charged by an operator of a vehicle storage facility, and remove restraints on a judges' ability to waive fees. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes), by updating the definitions of (1) Commission, (5) Vehicle and (6) Owner of a vehicle and creates definitions for (2) Department, (3) Director and (7) Person. Substitutes (9) Impoundment for Preservation. SECTION 2. Amends Section 4 (a) and (c), Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes), by clarifying the authority of the department and the commission. SECTION 3. Amends Section 5, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by substituting department for commission. SECTION 4. Amends Section 7, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by substituting department for commission. SECTION 5. Amends Section 8, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by substituting department for commission. SECTION 6. Amends Section 9 (a) and (b), Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by substituting department for commission. SECTION 7. Amends Section 10 (a), (b), and (c), Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by substituting department for commission. SECTION 8. Amends the Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) by adding Sec. 10A. (a) Provides for the assessment of administrative penalties for unlicensed facilities. (b) When the TXDOT determines a penalty it shall consider: (1) the seriousness of the violation and the potential hazard created to the health, safety or economic welfare of the public; (2) the economic harm to property or the environment; (3) previous history of violations; (4) amount which would be a deterrent to future violations; (5) efforts to correct the violation; and (6) any other matter justice may require. (c) An administrative penalty can only be given after charges are filed and an opportunity for a hearing. (d) Requires the TXDOT to hold a hearing with an administrative law judge (ALJ), who shall make a finding of fact, conclusions of law, and issue a proposal for a decision. (e) Based on the ALJ's rulings, the TXDOT director may impose a penalty. (f) If the person charged does not appear for the hearing, the TXDOT director may assess a penalty and issue an order that the penalty be paid for a violation. (g) An appeal from an hearing is to the district court in Travis County. (h) 30 days after the order becomes final, the person charged must pay the penalty; forward an amount into an escrow account pending judicial review; post a supersedeas bond for the amount of the penalty until judicial review is final; or request the court to stay enforcement because the person files an affidavit stating they are unable to pay the penalty. Requires the affidavit to be sent to the TXDOT by certified mail. (i) The TXDOT can contest the affidavit within five days. Requires the court to hold a hearing on the facts and places the burden of proof on the applicant. (j) Failure to comply with (h) waives the right to contest the order. (k) If a court determines no violation occurred or reduces or eliminates the penalty, the TXDOT must remit the amount back to the person with interest or release the bond. (l) An administrative penalty owed may be recovered in a civil action by the attorney general. SECTION 9. Amends Section 11, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes) to allow the Director to revoke or deny a license instead of the Transportation Commission. Requires an ALJ from the State Office of Administrative Hearings (SOAH) to conduct a hearing. The ALJ must make findings of fact, conclusions of law and issue a proposed decision. An appeal from an hearing is to the district court in Travis County. SECTION 10. Amends Section 14, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes), as follows: (d) A VSF operator may charge a fee under Subsection (c): (1) for not more than five days before the date notice described by Section 13 of this article is mailed; and (2) after the date notice is mailed, for each day the vehicle is in storage until it is removed and all accrued charges are paid. Re-letters remaining sections accordingly. SECTION 11. Amends Section 15, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes), by substituting department for commission. Deletes reference to State Treasury. SECTION 12. Repeals Section 16, Vehicle Storage Facility Act (Article 6687-9a, Revised Statutes), which removes restraints on a judges' ability to waive fees. SECTION 13. Emergency Clause. Effective upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 1. The substitute replaces the word "preservation," contained in the in Subsection (9) of the original, with "impoundment." SECTION 8. The substitute removes language dealing with Administrative Penalties in the original which might be considered unconstitutional. Other substantive changes made in the substitute to this section are as follows. In Subsection (h), Subsection 3(A) and (B) are added which allow a sworn affidavit to be filed by a person who is financially unable to pay the penalty. The affidavit must be sent to the TXDOT by certified mail. The substitute adds Subsection (i) which allows the TXDOT to contest the affidavit through a court hearing. Renumbers remaining subsections accordingly. SECTION 10. Subsection (c) of the original contained a provision deleting the five dollar minimum charge for vehicle storage. The substitute retains current law on vehicle storage charges of no less than five dollars or more than $15 for each day or part of a day. In Subsection (e) of the substitute, the word "preservation" is replaced with "impoundment" to be consistent with changes made in Section 1 of the bill.