MBN S.B. 665 75(R)BILL ANALYSIS


ENERGY RESOURCES
S.B. 665
By: Haywood (Horn)
5-14-97
Committee Report (Amended)


BACKGROUND 

Currently, the Federal Trade Commission (FTC) has the authority to test
fuel for octane content and bring enforcement actions against those
retailers selling sub-octane fuel.  However, because of budgetary
concerns, the FTC rarely tests fuel and instead limits enforcement to the
investigation of complaints. S.B. 665 would allow the Texas Department of
Agriculture to test motor fuel for octane content when it tests fuel
dispensers for accurate calibration. 

PURPOSE

As proposed, S.B. 665 outlines provisions and provides criminal,
administrative and civil penalties regarding the sale and delivery of
certain motor fuel. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the commissioner of agriculture under
SECTIONS 2, 4, 5, and 10 (Sections 2, 4(c), 5(b), and 9(a), Article 8614,
V.T.C.S.), of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 1,  Article 8614, V.T.C.S., to define
"automotive fuel rating."  Makes conforming changes. 

SECTION 2. Amends Section 2, Article 8614, V.T.C.S., to authorize the
commissioner of agriculture (commissioner), rather than the comptroller of
public accounts (comptroller), or an authorized representative of the
commissioner, rather than the comptroller, any law enforcement officer at
the direction of a prosecuting attorney, or the attorney general, to test
any motor fuel sold in this state in order to determine compliance with
the standards and for the enforcement of rules adopted under Sections 3,
3A, 3B, 4, and 5 of this Act.  Provides that nothing under this section
shall prohibit the commissioner from adopting rules relating to the
frequency of testing motor fuels. Requires the commissioner to consider
the nature of the violation, history of past violations, and funds
available as provided by Section 9(e) of this Act in adopting such rules. 

SECTION 3. Amends Article 8614, V.T.C.S., by adding Sections 3A and 3B, as
follows: 

Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING LOWER THAN RATING
POSTED ON PUMP LABEL. Prohibits a motor fuel dealer in this state from
selling or offering for sale motor fuel from a motor fuel pump if the
motor fuel contains an automotive fuel rating that is lower than the
automotive fuel rating for that motor fuel posted on the motor fuel pump. 

Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING LOWER THAN
RATING CERTIFIED BY TRANSFER. Prohibits a distributor or supplier of motor
fuel, as those persons are defined by Section 153.001, Tax Code, from
delivering or transferring motor fuel to a motor fuel dealer in this state
if the fuel contains an automotive fuel rating that is lower than the
certification made to the fuel dealer. 

SECTION 4. Amends Sections 4(c)-(e), Article 8614, V.T.C.S., to make
conforming changes. 

 SECTION 5. Amends Section 5, Article 8614, V.T.C.S., to require each
motor dealer in this state to keep for one year, rather than four years, a
copy of certain documents.  Makes conforming changes. 

SECTION 6. Amends Article 8614, V.T.C.S., by adding Section 5A, as follows:

Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF AUTOMOTIVE
FUEL RATINGS. Requires each motor fuel dealer in this state to keep a copy
of certain records for at least one year.  Requires each distributor or
supplier to keep, for at least one year at the principal place of
business, a copy of each delivery ticket or letter of certification
required to be delivered by the distributor or supplier to a motor fuel
dealer in this state under 16 C.F.R. Part 306.  Provides that a document
required to be kept under this section is subject to inspection by the
commissioner or an authorized representative of the commissioner. 

SECTION 7. Amends Section 6, Article 8614, V.T.C.S., to authorize any
motor fuel user who has purchased fuel and who has suffered damages or has
a complaint about the product obtained from a motor fuel dealer or a
distributer, supplier, wholesaler, or jobber of motor fuel in violation of
Section 3, 3A, 3B, 4, 5, or 5A to maintain a civil action against the
individual in violation.  Requires the trier of fact to award not more
than three times the amount of actual damages if the trier of fact finds
that a violation of Section 3, 4, or 5 of this Act was committed wilfully
or knowingly by the defendant.  Makes conforming changes. 

SECTION 8. Amends Section 7, Article 8614, V.T.C.S., to set forth
penalties for a violation of a provision of Section 3, 3A, 3B, 4, 5, or 5A
of this Act. 

SECTION 9. Amends Sections 8(a), (b), and (e), Article 8614, V.T.C.S., to
set forth instances in which a person commits an offense.  Authorizes the
commissioner, rather than the comptroller, or the authorized
representative of the commissioner, rather than the comptroller's
representative, to request the appropriate prosecuting attorney to
prosecute a violation of a provision of this Act, rather than authorizing
any law enforcement officer, or the attorney general to file a complaint
under this section.  Makes conforming changes. 

SECTION 10. Amends Sections 9(a)-(c), (e), and (f), Article 8614,
V.T.C.S., to authorize the comptroller, by rule, to impose fees for the
performance of services provided as determined necessary by the
commissioner in the administration of this Act.  Outlines provisions
regarding the fees collected under this section.  Deletes text authorizing
the fees collected under this section to be used only for the
administration and enforcement of this Act by the comptroller and
requiring the fees to be deposited in the Comptroller's Operating Fund
062.  Gives rulemaking authority to commissioner to regulate ethanol and
methanol while removing such authority from the Comptroller. Makes
conforming changes. 

SECTION 11. Amends Section 10, Article 8614, V.T.C.S., to make conforming
changes. 

SECTION 12. Amends Article 8614, V.T.C.S., by adding Section 11, as
follows: 

Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. Outlines provisions
regarding the duplication and delivery of certain documents to the federal
government. 

SECTION 13. Amends Section 12.020(c), Agriculture Code, to provide that
provisions of this code are subject to this section and to set forth
applicable penalty amounts.  

SECTION 14. Makes application of this Act prospective.

SECTION 15. Makes application of this Act prospective. 

SECTION 16. Effective date: September 1, 1997.
  Makes application of this Act prospective.
 
SECTION 17. Emergency clause.

EXPLANATION OF AMENDMENTS

Committee Amendment #1 adds new Sec. 7A. ADMINISTRATIVE PENALTY to SECTION
8 of the bill (page 7, between line 9 and 10).   

(1) 
 (a) states that the commissioner of agriculture  (commissioner) may
impose an administrative  penalty against a person licensed or regulated
under  this Act or a rule or order under this Act.  
 (b) states that the penalty shall not exceed $500 and each day a
violation continues is  considered a separate violation for purposes of
imposing a penalty.  

 (c)  provides that the amount of the penalty shall be based on the
seriousness of the violation,  the economic harm, history of violations,
amount necessary to deter future violations, efforts  to correct
violations, and any other matter justice may require. 

 (d)  allows the commissioner to designate a department of agriculture
employee to act under  this section and issue reports, including
recommendations on the amount of the penalty. 

 (e) states that within 14 days after a report is issued the designated
employee shall give  written notice of the report to the person.  Provides
that the notice be sent certified mail and  include a brief summary of the
alleged violation, the recommended penalty, and inform the  person of
right of hearing. 
  
 (f) states that within 20 days after the person receives notice, the
person may, by writing,  accept the determination and penalty or request a
hearing. 

 (g) provides that the commissioner shall approve the determination and
penalty if the person  accepts. 
 
 (h) states that the designated employee shall set a hearing if the person
requests one or fails  to respond timely to a notice.  The hearing shall
be held by an administrative law judge to  determine  findings of fact and
conclusions of law.  States that based on the findings and  conclusions of
the law judge, the commission shall by order determine whether or not a
violation has occurred. 

 (i) states that the commissioner's order given under Chapter 2001,
Government Code, must  include a statement of the right of the person to
judicial review. 


 (j) provides that within 30 days after the commissioner's order becomes
final the person shall  pay the penalty, pay the penalty and file for
judicial review, or file for judicial review without  paying the penalty.  
 
 (k) provides the a person acting under subsection (j)(3) within the 30
day period may: 
  (1) stay enforcement of the penalty by paying the amount of the penalty
to remain in   an escrow account with the court or by giving the court a
supersedeas bond, or; 

  (2) request the court to stay enforcement of the penalty by filing with
a court a sworn   affidavit stating  inability to pay and  giving a copy
of the affidavit to the designated   employee through certified mail. 

 (l) states that the designated employee may file a contest to the
affidavit under subsection  (k)(2) within 5 days of receipt.  States that
the court shall hold a hearing on the facts alleged  in the affidavit as
soon as practical. 

 (m) allows the designated employee to refer the matter to the attorney
general for collection  if the person fails to pay the amount of the
penalty or the enforcement of the penalty is not  stayed. 

 (n) provides that judicial review of a commissioner's order is instituted
by filing a petition  as provided by Subchapter G, Chapter 2001,
Government Code, and is under the substantial  evidence rule. 
 
 (o) states that if the court sustained the violation the court may uphold
or reduce the amount  of the penalty.  If the court does not sustain the
violation the court shall order that no penalty  is owed. 

 (p) states that when the judgment of the court becomes final, the court
shall proceed under  this subsection.  Provides that the person shall be
remitted the appropriate amount of penalty  paid and any accrued interest
if the court orders the penalty amount reduced or the penalty  is not
upheld.  States that if the person gave a supersedeas bond and the court
reduces the  amount the court shall release  the bond upon the person's
paying the penalty.  If the court  does not uphold the penalty then the
bond shall be released. 

 (q) states that a penalty collected under this section shall be remitted
to the comptroller for  deposit in the general revenue fund. 

 (r) states that all proceedings under this section are subject to Chapter
2001, Government  Code, except as provided by subsections (s) and (t). 

 (s) allows the commissioner to change the finding of  fact or conclusion
of law made by an  administrative law judge if the commissioner
determines: 

  (1)  the judge did not properly apply or interpret applicable law, rule
or policies or   prior administrative decisions or issue a finding of fact
not supported by     preponderance of the evidence, or; 
  
  (2) that a department policy or prior administrative decision on which
the judge relied   is incorrect or should be changed. 

 (t) states that the commissioner shall state in writing the specific
reason and legal basis for  a determination under subsection (s). 

(2) deletes SECTION 13 of the bill in its entirety.