Bill not drafted by TLC or Senate E&E.

      Line and page numbers may not match official copy.

      By Alexander                                    H.B. No. 1595

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the regulation of motor vehicle dealers and

 1-3     manufacturers.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 1.03, Texas Motor Vehicle Commission Code

 1-6     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

 1-7     read as follows:

 1-8           Section 1.03.  Definitions.  In this Act:

 1-9                 (1) [(26)]  "Ambulance" means a vehicle used

1-10     exclusively for providing emergency medical care to an injured or

1-11     ill person or transporting an injured or ill person, if the vehicle

1-12     provides:

1-13                       (A)  a driver's compartment;

1-14                       (B)  a compartment to accommodate an emergency

1-15     medical care technician or paramedic and two injured or ill persons

1-16     so positioned that one of the injured or ill persons can be given

1-17     intensive life-support during transit;

1-18                       (C)  equipment and supplies for emergency care of

1-19     an injured or ill person where the ill person is located or at the

1-20     scene of an injury-producing incident as well as in transit;

1-21                       (D)  two-way radio communication capability; and

1-22                       (E)  equipment for light rescue or extrication

1-23     procedures.

1-24                 (2)  "Board" means the Motor Vehicle Board of the Texas

 2-1     Department of Transportation.

 2-2                 (3) [(9)]  "Broker" means a person who, for a fee,

 2-3     commission, or other valuable consideration, arranges or offers to

 2-4     arrange a transaction involving the sale, for purposes other than

 2-5     resale, of a new motor vehicle, and who is not:

 2-6                       (A)  a franchised dealer or bona fide employee of

 2-7     a franchised dealer when acting on behalf of a franchised dealer;

 2-8                       (B)  a representative or bona fide employee of a

 2-9     representative when acting on behalf of a representative;

2-10                       (C)  a distributor or bona fide employee of a

2-11     distributor when acting on behalf of a distributor; or

2-12                       (D)  at any point in the transaction the bona

2-13     fide owner of the vehicle involved in the transaction.

2-14                 (4) [(13)]  "Chassis manufacturer" means a person who

2-15     manufactures and produces the frame upon which is mounted the body

2-16     of a motor vehicle.

2-17                 (5) [(11)]  "Conversion" means a motor vehicle, other

2-18     than a motor home, ambulance, or fire-fighting vehicle, which has

2-19     been substantially modified by a person other than the manufacturer

2-20     or distributor of the chassis of the motor vehicle and which has

2-21     not been the subject of a retail sale.

2-22                 (6) [(14)]  "Converter" means a person who prior to the

2-23     retail sale of a motor vehicle, assembles, installs, or affixes a

2-24     body, cab, or special equipment to a chassis, or who substantially

2-25     adds, subtracts from, or modifies a previously assembled or

2-26     manufactured motor vehicle.

2-27                 (7) [(23)]  "Dealer" means a person who holds a general

2-28     distinguishing number issued by the Department pursuant to the

2-29     terms of Chapter 503, Transportation Code [Article 6686, Revised

2-30     Statutes].

 3-1                 (8) [(24)]  "Dealership" means the physical premises

 3-2     and business facilities on which a franchised dealer operates his

 3-3     business, including the sale and repair of motor vehicles.  The

 3-4     term includes premises or facilities at which a person engages only

 3-5     in the repair of motor vehicles if repairs are performed pursuant

 3-6     to the terms of a franchise and a motor vehicle manufacturer's

 3-7     warranty.

 3-8                 (9) [(20)]  "Department" means the Texas Department of

 3-9     Transportation.

3-10                 (10)  "Director" means the director of the board.

3-11                 (11) [(6)]  "Distributor" means any person who

3-12     distributes and/or sells new motor vehicles to franchised dealers

3-13     and who is not a manufacturer.

3-14                 (12)  "Executive Director" means the Executive Director

3-15     of the Texas Department of Transportation.

3-16                 (13) [(27)]  "Fire-fighting vehicle" means a motor

3-17     vehicle which has as its sole purpose transporting fire fighters to

3-18     the scene of a fire and providing equipment to fight the fire, if

3-19     the vehicle is built on a truck chassis with a gross carrying

3-20     capacity of at least 10,000 pounds, to which the following have

3-21     been permanently affixed or mounted:

3-22                       (A)  a water tank with a minimum combined

3-23     capacity of 500 gallons; and

3-24                       (B)  a centrifugal water pump with a minimum

3-25     capacity of not less than 750 gallons per minute at 150 pounds per

3-26     square inch net pump pressure.

3-27                 (14) [(8)]  "Franchise" means one or more contracts

3-28     between a franchised dealer as franchisee, and either a

3-29     manufacturer or a distributor as franchisor under which (A) the

3-30     franchisee is granted the right to sell and service new motor

 4-1     vehicles manufactured or distributed by the franchisor or only

 4-2     service motor vehicles pursuant to the terms of a franchise and a

 4-3     manufacturer's warranty; (B) the franchisee as an independent

 4-4     business is a component of franchisor's distribution system; (C)

 4-5     the franchisee is substantially associated with franchisor's

 4-6     trademark, tradename and commercial symbol; (D) the franchisee's

 4-7     business is substantially reliant on franchisor for a continued

 4-8     supply of motor vehicles, parts, and accessories for the conduct of

 4-9     its business; or (E) any right, duty, or obligation granted or

4-10     imposed by this Act is affected.  The term includes a written

4-11     communication from a franchisor to a franchisee by which a duty is

4-12     imposed on the franchisee.

4-13                 (15) [(4)]  "Franchised dealer " means any person who

4-14     holds a franchised motor vehicle dealer's general distinguishing

4-15     number issued by the Department pursuant to the terms of Chapter

4-16     503, Transportation Code [Article 6686, Revised Statutes], and who

4-17     is engaged in the business of buying, selling, or exchanging new

4-18     motor vehicles and servicing or repairing motor vehicles pursuant

4-19     to the terms of a franchise and a manufacturer's warranty at an

4-20     established and permanent place of business pursuant to a franchise

4-21     in effect with a manufacturer or distributor.

4-22                 (16)  "General distinguishing number" means a dealer

4-23     license issued by the Department pursuant to the terms of Chapter

4-24     503, Transportation Code.

4-25                 (17) [(23)]  "Lease" means a transfer of the right to

4-26     possession and use of a motor vehicle for a term in excess of 180

4-27     days in return for consideration.

4-28                 (18) [(25)]  "Lease facilitator" means a person, other

4-29     than a dealer or a bona fide employee of a dealer, or a vehicle

4-30     lessor or a bona fide employee of a vehicle lessor, who:

 5-1                       (A)  holds himself out to any person as a "motor

 5-2     vehicle leasing company" or "motor vehicle leasing agent" or uses a

 5-3     similar title, for the purpose of soliciting or procuring a person

 5-4     to enter into a contract or agreement to become the lessee of a

 5-5     vehicle that is not, and will not be, titled in the name of and

 5-6     registered to the lease facilitator; or

 5-7                       (B)  otherwise solicits a person to enter into a

 5-8     contract or agreement to become a lessee of a vehicle that is not,

 5-9     and will not be, titled in the name of and registered to the lease

5-10     facilitator, or who is otherwise engaged in the business of

5-11     securing lessees or prospective lessees of motor vehicles that are

5-12     not, and will not be, titled in the name of and registered to the

5-13     facilitator.

5-14                 (19) [(24)]  "Lessor" means a person who acquires title

5-15     to a [new] motor vehicle for the purpose of leasing the vehicle to

5-16     another person.

5-17                 (20) [(25)]  "Licensee" means a person who holds a

5-18     license or general distinguishing number issued by the Board under

5-19     the terms of this Act or Chapter 503, Transportation Code [a

5-20     general distinguishing number issued by the Department pursuant to

5-21     the terms of Article 6686, Revised Statutes].

5-22                 (21) [(5)]  "Manufacturer" means any person who

5-23     manufactures or assembles new motor vehicles either within or

5-24     without this State.

5-25                 (22) [(26)]  "Manufacturer's statement of origin" means

5-26     a certificate on a form prescribed by the Department showing the

5-27     original transfer of a new motor vehicle from the manufacturer to

5-28     the original purchaser.

5-29                 (23) [(10)]  "Motor home" means a motor vehicle which

5-30     is designed to provide temporary living quarters and which:

 6-1                       (A)  is built onto as an integral part of, or is

 6-2     permanently attached to, a motor vehicle chassis; and

 6-3                       (B)  contains at least four of the following

 6-4     independent life support systems if each is permanently installed

 6-5     and designed to be removed only for purposes of repair or

 6-6     replacement and meets the standards of the American National

 6-7     Standards Institute, Standards for Recreational Vehicles:

 6-8                             (i)  a cooking facility with an on-board

 6-9     fuel source;

6-10                             (ii)  a gas or electric refrigerator;

6-11                             (iii)  a toilet with exterior evacuation;

6-12                             (iv)  a heating or air conditioning system

6-13     with an on-board power or fuel source separate from the vehicle

6-14     engine;

6-15                             (v)  a potable water supply system that

6-16     includes at least a sink, a faucet, and a water tank with an

6-17     exterior service supply connection;

6-18                             (vi)  a 110-125 volt electric power supply.

6-19                 (24) [(12)]  "Motor home manufacturer" means a person

6-20     other than the manufacturer of the chassis of a motor vehicle who,

6-21     prior to the retail sale of the motor vehicle, performs

6-22     modifications on the chassis that result in the finished product

6-23     being classified as a motor home.

6-24                 (25) [(1)]  "Motor vehicle" means:

6-25                       (A)  every fully self-propelled vehicle which has

6-26     as its primary purpose the transport of a person or persons, or

6-27     property, on a public highway, and having two or more wheels;

6-28                       (B)  every two or more wheeled fully

6-29     self-propelled, titled vehicle which has as its primary purpose the

6-30     transport of a person or persons or property and is not

 7-1     manufactured for use on public streets, roads, or highways; or

 7-2                       (C)  an engine, transmission, or rear axle

 7-3     manufactured for installation in a vehicle having as its primary

 7-4     purpose the transport of a person or persons or property on a

 7-5     public highway and having a gross vehicle weight rating of more

 7-6     than 16,000 pounds, whether or not attached to a vehicle chassis.

 7-7                 (26) [(2)]  "New motor vehicle" means a motor vehicle

 7-8     which has not been the subject of a "retail sale" without regard to

 7-9     the mileage of the vehicle.

7-10                 (27) [(22)]  "Nonfranchised dealer" means a person[,

7-11     other than a franchised dealer,] who holds an independent motor

7-12     vehicle dealer's general distinguishing number or a wholesale motor

7-13     vehicle dealer's general distinguishing number issued by the

7-14     Department pursuant to the terms of Chapter 503, Transportation

7-15     Code [Article 6686, Revised Statutes].

7-16                 (28) [(16)]  "Party" means each person or agency named

7-17     or admitted as a party and whose legal rights, duties, or

7-18     privileges are to be determined by the Commission after an

7-19     opportunity for adjudicative hearing.

7-20                 (29) [(3)]  "Person" means a natural person,

7-21     partnership, corporation, association, trust, estate, or any other

7-22     legal entity.

7-23                 (30) [(17)]  "Relocation" means the transfer of an

7-24     existing dealership operation to facilities at a different

7-25     location, including a transfer which results in a consolidation or

7-26     dualing of an existing dealer's operation.

7-27                 (31) [(7)]  "Representative" means any person who is or

7-28     acts as an agent, employee or representative of a manufacturer,

7-29     distributor, or converter who performs any duties in this State

7-30     relating to promoting the distribution and/or sale of new motor

 8-1     vehicles or contacts dealers in this State on behalf of a

 8-2     manufacturer, distributor, or converter.

 8-3                 (32) [(18)]  "Retail sale" means the sale of a motor

 8-4     vehicle except:

 8-5                       (A)  a sale in which the purchaser acquires a

 8-6     vehicle for the purpose of resale; or

 8-7                       (B)  a sale of a vehicle that is operated under

 8-8     and in accordance with Section 503.061, Transportation Code

 8-9     [Article 6686, Revised Statutes].

8-10                 (33) [(15)]  "Rule" means a statement by the Commission

8-11     of general and future applicability that implements, interprets, or

8-12     prescribes law or policy or describes the organization or

8-13     procedural practice requirements of the Commission.  The term

8-14     includes the amendment or repeal of a prior rule, but does not

8-15     include statements concerning only the internal management of the

8-16     Commission which do not affect the rights of a person not connected

8-17     with the Commission.

8-18                 (34) [(21)]  "Transportation Commission" means the

8-19     Texas Transportation Commission of the Texas Department of

8-20     Transportation.

8-21                 (35) [(19)]  "Warranty work" means parts, labor, and

8-22     any other expenses incurred by a franchised dealer in complying

8-23     with the terms of a manufacturer's or distributor's warranty.

8-24           SECTION 2.  Section 2.01, Texas Motor Vehicle Commission Code

8-25     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

8-26     read as follows:

8-27           Sec. 2.01.  TEXAS MOTOR VEHICLE BOARD [COMMISSION].  (a)  The

8-28     board is an independent agency within the department.  The board

8-29     [Texas Motor Vehicle Commission] shall carry out the functions and

8-30     duties conferred upon it by this Act and by other provision of law.

 9-1           (b)  A reference in this Act to the "commission" or the Texas

 9-2     Motor Vehicle Commission means the board [Motor Vehicle Board of

 9-3     the Texas Department of Transportation].  A reference in other law,

 9-4     rule or regulation to the Texas Motor Vehicle Commission means the

 9-5     board [Motor Vehicle Board of the Texas Department of

 9-6     Transportation].

 9-7           (c)  [A reference in this Act to the "Executive Director" or

 9-8     the Executive Director of the Texas Motor Vehicle Commission means

 9-9     the Director of the Motor Vehicle Division of the Texas Department

9-10     of Transportation.]  A reference in other law, rule or regulation

9-11     to the Executive Director of the Texas Motor Vehicle Commission

9-12     means the Director [of the Motor Vehicle Division of the Texas

9-13     Department of Transportation].

9-14           (d)  A reference in law, rule or regulation to the Texas

9-15     Motor Vehicle Commission Code means this Act.

9-16           SECTION 3.  Section 2.07, Texas Motor Vehicle Commission code

9-17     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

9-18     read as follows:

9-19           Sec. 2.07.  Per diem; expenses.  Each member of the board

9-20     [Commission] shall be entitled to $50.00 per day for each day

9-21     actually engaged in the duties of the office, including time spent

9-22     in necessary travel to and from meetings and otherwise, together

9-23     with all travel and other necessary expenses incurred while

9-24     performing official duties.

9-25           SECTION 4.  Section 2.08A.(c), Texas Motor Vehicle Commission

9-26     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

9-27     to read as follows:

9-28           (c)  If the [Executive] Director has knowledge that a

9-29     potential ground for removal exists, the [Executive] Director shall

9-30     notify the Chairman of the Commission of the ground.  The Chairman

 10-1    shall then notify the Governor that a potential ground for removal

 10-2    exists.

 10-3          SECTION 5.  Section 2.09, Texas Motor Vehicle Commission Code

 10-4    (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

 10-5    read as follows:

 10-6          Section 2.09.  [EXECUTIVE] DIRECTOR; STAFF; CONTRACTS;

 10-7    INDEMNITY.  (a)  The Executive Director [of the Texas Department of

 10-8    Transportation] shall appoint the Director [of the Motor Vehicle

 10-9    Division] who is [shall be] the board's [division's] chief

10-10    executive and administrative officer.  The Director, who shall be

10-11    an attorney licensed to practice law in this state, is charged with

10-12    administering, enforcing, and carrying out the provisions of this

10-13    Act.  The Director serves at the pleasure of the Executive Director

10-14    [of the Texas Department of Transportation].

10-15          (b)  The [Executive] Director or his designated

10-16    representative shall meet with the board [Commissioners] in an

10-17    advisory capacity without vote in all proceedings of the board

10-18    [Commission].  The [Executive] Director shall submit the reports to

10-19    the board [Commission] as may be required by the board's

10-20    [Commission's] rules or by this Act.

10-21          (c)  The [Executive] Director or his designee shall maintain

10-22    all minutes of board [Commission] proceedings and shall serve as

10-23    the custodian of the files and records of the board [Commission].

10-24          (d)  The [Executive] Director, on behalf of the board

10-25    [Commission], may negotiate with and, with the consent of a

10-26    majority of the board [Commissioners], enter into contracts or

10-27    other agreements with the United States or any of its agencies,

10-28    with states and political subdivisions thereof, or any other entity

10-29    for the purpose of carrying out the powers, duties, and

10-30    responsibilities of the board [Commission].

 11-1          (e)  The [Executive] Director shall appoint and employ such

 11-2    board [Commission] staff as are necessary to carry out the duties

 11-3    and functions of the [Executive] Director and the board

 11-4    [Commission] under this Act. The board [Commission] shall develop

 11-5    and implement policies that clearly define the respective

 11-6    responsibilities of the board [Commission] and the staff of the

 11-7    board [Commission].

 11-8          (f)  An employee of the board [Commission] is subject to

 11-9    dismissal who has an interest in or is related within the first

11-10    degree by consanguinity or affinity, as determined under Article

11-11    5996h, Revised Statutes, to a person who has an interest in a

11-12    business that manufactures, distributes, converts, [or] sells, or

11-13    leases motor vehicles.

11-14          (g) [(h)]  Notwithstanding any other provision of law, the

11-15    [Executive] Director, each member of the board [Texas Motor Vehicle

11-16    Commission], each Hearing Examiner and all other employees of the

11-17    board [Texas Motor Vehicle Commission] are not personally liable

11-18    for damages occasioned by their official acts or omissions except

11-19    when such acts or omissions constitute intentional or malicious

11-20    malfeasance.  The Attorney General shall defend any action brought

11-21    against a member or employee of the board [Commission] in

11-22    connection with an official act or omission, whether or not at the

11-23    time of the institution of the action the defendant has previously

11-24    ceased to serve the Commission in any capacity, and the State of

11-25    Texas shall indemnify any such person from and against a judgment

11-26    entered against the person in any such actions though the State may

11-27    seek contribution if liability is otherwise permitted by this

11-28    subsection.

11-29          (h) [(i)]  Unless otherwise provided by this Act or by board

11-30    [Commission] rules, all applications, petitions, or other documents

 12-1    requiring action by the board [Commission] shall be directed to the

 12-2    [Executive] Director.

 12-3          (i) [(j)]  The board [Commission] shall provide to its

 12-4    members and employees, as often as necessary, information regarding

 12-5    their qualifications for office or employment under this Act and

 12-6    their responsibilities under applicable laws relating to standards

 12-7    of conduct for state officers or employees.

 12-8          SECTION 6.  Section 2.13, Texas Motor Vehicle Commission Code

 12-9    (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

12-10    read as follows:

12-11          Section 2.13.  Intraagency career ladder program; annual

12-12    performance evaluations; information; equal opportunity

12-13    implementation plan; public information.  (a)  The [Executive]

12-14    Director or his designee shall develop an intraagency career ladder

12-15    program.  The program shall require intraagency postings of all

12-16    nonentry level positions concurrently with any public posting.

12-17          (b)  The [Executive] Director or his designee shall develop a

12-18    system of annual performance evaluations. All merit pay for board

12-19    [Commission] employees must be based on the system established

12-20    under this subsection.

12-21          (c)  The [Executive] Director or his designee shall prepare

12-22    information describing the functions of the [Commission] and

12-23    describing the procedures by which complaints or protests are filed

12-24    with and resolved by the board [Commission].  The board

12-25    [Commission] shall make the information available to the general

12-26    public and appropriate state agencies.

12-27          (d)  The [Executive] Director or his designee shall prepare

12-28    and maintain a written policy statement to assure implementation of

12-29    a program of equal employment opportunity under which all personnel

12-30    transactions are made without regard to race, color, handicap, sex,

 13-1    religion, age, or national origin.  The policy statement must

 13-2    include:

 13-3                (1)  personnel policies, including policies relating to

 13-4    recruitment, evaluation, selection, appointment, training, and

 13-5    promotion of personnel;

 13-6                (2)  a comprehensive analysis of the board [Commission]

 13-7    work force that meets federal and state guidelines;

 13-8                (3)  procedures by which a determination can be made of

 13-9    significant underuse in the board [Commission] work force of all

13-10    persons for whom federal or state guidelines encourage a more

13-11    equitable balance; and

13-12                (4)  reasonable methods to appropriately address those

13-13    areas of significant underuse.

13-14          A policy statement prepared under this subsection must cover

13-15    an annual period, be updated at least annually, and be filed with

13-16    the Governor's office.

13-17          The Governor's office shall deliver a biennial report to the

13-18    legislature based on the information received under this

13-19    subsection.  The report may be made separately or as a part of

13-20    other biennial reports made to the legislature.

13-21          (e)  The board [Commission] shall comply with Chapter 2001,

13-22    Government Code [Section 4(a)(2), Administrative Procedure and

13-23    Texas Register Act (Article 6252-13a, Vernon's Texas Civil

13-24    Statutes),] by indexing and making available for public inspection

13-25    all rules and all other written statements of policy or

13-26    interpretations formulated, adopted, or used by the board

13-27    [Commission] in the discharge of its functions.

13-28          (f)  The board [Commission] shall comply with Chapter 2001,

13-29    Government Code [Section 4(a)(3), Administrative Procedure and

13-30    Texas Register Act (Article 6252-13a, Vernon's Texas Civil

 14-1    Statutes),] by indexing and making available for public inspection

 14-2    all of the board [Commission's] final orders, decisions, and

 14-3    opinions.

 14-4          SECTION 7.  Section 3.01(a), Texas Motor Vehicle Commission

 14-5    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

 14-6    to read as follows:

 14-7          (a)  The board [Commission] has the general and original

 14-8    power and jurisdiction to regulate all aspects of the distribution,

 14-9    sale, and leasing of motor vehicles and to do all things, whether

14-10    specifically designated in this Act or implied herein, or necessary

14-11    or convenient to the exercise of this power and jurisdiction,

14-12    including the original jurisdiction to determine questions of its

14-13    own jurisdiction.  In addition to the other duties placed on the

14-14    board [Commission] by this Act, the board [Commission] shall

14-15    enforce and administer the terms of Chapter 503, Transportation

14-16    Code [Article 6686, Revised Statutes].

14-17          SECTION 8.  Section 3.03(b), Texas Motor Vehicle Commission

14-18    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

14-19    to read as follows:

14-20          (b)  The board [commission] may conduct hearings in contested

14-21    cases brought pursuant to, and as provided by Chapter 503,

14-22    Transportation Code [, Article 6686, Revised Statutes].  The

14-23    procedures applicable to a hearing conducted under this Subsection,

14-24    and the disposition of a final order after a hearing conducted

14-25    under this Subsection, are those applicable to a hearing conducted

14-26    as provided by Section 6.07(e)(2) of this Act.  A decision or final

14-27    order issued under this Subsection is final, and no appeal may, as

14-28    a matter of right, be made to the Texas Transportation Commission.

14-29    The department may adopt rules applicable to procedures, hearings,

14-30    and enforcement proceedings in an action brought pursuant to this

 15-1    Subsection.

 15-2          SECTION 9.  Section 3.04, Texas Motor Vehicle Commission Code

 15-3    (Article 4413(36), Vernon's Texas Civil Statutes), is amended to

 15-4    read as follows:

 15-5          Section 3.04.  DELEGATION OF BOARD [COMMISSION] POWERS.  The

 15-6    board [Commission] may delegate any power which it holds or derives

 15-7    under this Act to:

 15-8                (1)  one or more of its members [of the Commission];

 15-9                (2)  the [Executive] Director; or

15-10                (3)  one or more of its employees [of the Commission].

15-11          SECTION 10.  Section 3.06, Texas Motor Vehicle Commission

15-12    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

15-13    to read as follows:

15-14          Section 3.06.  Rules.  The authority to issue rules pursuant

15-15    to this Act shall be vested in the board [Commission].  After

15-16    notice and hearing conducted by the board [Commission] or by the

15-17    [Executive] Director or his delegee in accordance with Chapter

15-18    2001, Government Code [the Administrative Procedure and Texas

15-19    Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)] and

15-20    in compliance with this Act and the rules, decisions, and orders of

15-21    the board [Commission], the board [Commission] shall adopt such

15-22    rules and amendments thereto and deletions therefrom as may be

15-23    necessary or convenient to effectuate the provisions of this Act

15-24    and to govern practice and procedure before the board [Commission].

15-25    Such rules shall become effective as soon as the board

15-26    [Commission], acting by and through its [Executive] Director,

15-27    complies with the requirements of Chapter 2001, Government Code

15-28    [the Administrative Procedure and Texas Register Act] regarding

15-29    publication of official agency rules.

15-30          SECTION 11.  Section 3.07, Texas Motor Vehicle Commission

 16-1    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

 16-2    to read as follows:

 16-3          Section 3.07.  Orders and decisions.  (a)  An order or

 16-4    decision shall:

 16-5                (1)  include a separate finding of fact with respect to

 16-6    each specific issue the board is required by law to consider in

 16-7    reaching a decision;

 16-8                (2)  set forth additional [the] findings of fact and

 16-9    conclusions of law on which the order or decision is based; and

16-10                (3)  [shall] give the reasons for the particular

16-11    actions taken.

16-12          (b)  Except as provided by Section 6.07 of this Act, all

16-13    orders and decisions shall be signed on behalf of the board

16-14    [Commission] by the Chairman or Vice-chairman and attested by the

16-15    [Executive] Director and shall have the seal affixed.

16-16          SECTION 12.  Section 3.08, Texas Motor Vehicle Commission

16-17    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

16-18    to read as follows:

16-19          Section 3.08.  Hearings; notice; hearing procedures;

16-20    complaints.  (a)  In this section, the term "contested case" has

16-21    the meaning given it in Chapter 2001, Government Code.  A hearing

16-22    shall be conducted in all contested cases[, as defined in the

16-23    Administrative Procedure and Texas Register Act (Article 6252-13a,

16-24    Vernon's Texas Civil Statutes),] which arise in connection with

16-25    this Act or any rule of the board [Commission].  All hearings shall

16-26    be conducted in accordance with this Act, the orders, decisions, or

16-27    rules of the board [Commission], and Chapter 2001, Government Code

16-28    [the Administrative Procedure and Texas Register Act] to the extent

16-29    that Chapter 2001, Government Code [the Administrative Procedure

16-30    and Texas Register Act] does not conflict with this Act.  A hearing

 17-1    may be informally disposed of in accordance with Chapter 2001,

 17-2    Government Code [the Administrative Procedure and Texas Register

 17-3    Act].  Any hearing held under this section shall be conducted by

 17-4    the [Executive] Director or any Hearing Examiner, each of whom may

 17-5    be referred to in this Act as the "Examiner."  The person or

 17-6    persons serving as Examiner in any contested case hearing are

 17-7    hereby delegated all the power and authority which the board

 17-8    [Commission] has under this Act regarding the conduct of hearings,

 17-9    including, without limitation, the power to hold hearings,

17-10    administer oaths, receive pleadings and evidence, issue subpoenas

17-11    to compel the attendance of witnesses, compel the production of

17-12    papers and documents, issue interlocutory orders, including cease

17-13    and desist orders in the nature of temporary restraining orders and

17-14    temporary injunctions, make findings of fact and conclusions of

17-15    law, and issue proposals for decision and recommended final orders.

17-16          (b)  Notice of a hearing shall describe in summary form the

17-17    purpose of the hearing and its date, time, and place.

17-18          (c)  Notice of a rulemaking hearing shall be given in

17-19    accordance with Chapter 2001, Government Code [the Administrative

17-20    Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas

17-21    Civil Statutes)] and the rules of the board [Commission] not less

17-22    than 30 days before the hearing date.  Notice of a contested case

17-23    hearing involving a licensee [license] shall be given in accordance

17-24    with this Act and the rules of the board [Commission].

17-25          (d)  Notice of a contested case hearing shall be deemed to

17-26    have been received by any person if notice of the hearing was

17-27    mailed to the last known address, of any person known to have legal

17-28    rights, duties, or privileges that could be determined at the

17-29    hearing, not less than 10 days before the hearing date.  Notice of

17-30    a hearing shall be given by certified mail, return receipt

 18-1    requested.  Notice may be given to any officer, agent, employee,

 18-2    legal representative, or attorney of any person.  Notice of any

 18-3    hearing may be waived by any person.

 18-4          (e)  A hearing shall be convened [conducted] at the time and

 18-5    place stated in the hearing notice [or the hearing shall be

 18-6    rescheduled and an amended notice given].   Any hearing may be

 18-7    recessed until a time and place certain without further notice if

 18-8    the time and place is [continued from time to time and place to

 18-9    place as] announced openly before the hearing is recessed.  [,

18-10    without further notice, or otherwise,]  If the time and place

18-11    determined for the resumption of the hearing is not announced

18-12    openly before the hearing is recessed, the hearing may be recessed

18-13    to a time and place certain by giving advance notice as required by

18-14    Chapter 2001, Government Code [the Administrative Procedure and

18-15    Texas Register Act (Article 6252-13a, Vernon's Texas Civil

18-16    Statutes)].

18-17          (f)  Unless otherwise limited by this Act, any person whose

18-18    legal rights, duties, or privileges are to be determined at any

18-19    hearing shall have the right to appear personally and by counsel,

18-20    to cross-examine adverse witnesses, and to produce evidence and

18-21    witnesses in the person's own behalf.

18-22          (g)  In all contested cases the examiner shall serve on all

18-23    parties a copy of the examiner's proposal for decision and

18-24    recommended order containing findings of fact and conclusions of

18-25    law [shall be served on all parties and each].  A party may file

18-26    exceptions and replies to the board [Commission.  After replies and

18-27    exceptions have been timely filed, the] In its review of the case,

18-28    the board may [Commission shall] consider only the materials timely

18-29    submitted [by all parties].  The board [Commission] may receive

18-30    such oral argument from any party as the board [Commission] may

 19-1    allow.  The board [Commission] shall take such further actions as

 19-2    are conducive to the issuance of a final order and shall thereafter

 19-3    issue a written final decision or order.  The board's

 19-4    [Commission's] written final decision or order shall be signed on

 19-5    behalf of the board [Commission] by the [Executive] Director.  A

 19-6    majority vote of a quorum of the board [Commissioners] shall be

 19-7    required to adopt final decisions or orders of the board

 19-8    [Commission].

 19-9          (h)  A party who seeks a rehearing of an order shall do so in

19-10    accordance with the terms of Chapter 2001, Government Code [the

19-11    Administrative Procedure and Texas Register Act (Article 6252-13a,

19-12    Vernon's Texas Civil Statutes)].

19-13          (i)  The owner of a motor vehicle or the owner's designated

19-14    agent may make a complaint concerning defects in a motor vehicle

19-15    which are covered by a manufacturer's, converter's, or

19-16    distributor's warranty agreement applicable to the vehicle.  Any

19-17    such complaint must be made in writing to the applicable dealer,

19-18    manufacturer, converter, or distributor and must specify the

19-19    defects in the vehicle which are covered by the warranty.  The

19-20    owner may also invoke the board's [Commission's] jurisdiction by

19-21    sending the board [Commission] a copy of the complaint.  A hearing

19-22    may be scheduled on all complaints arising under this subsection

19-23    which are not privately resolved between the owner and the dealer,

19-24    manufacturer, converter, or distributor.

19-25          (j)  On motion of any party the board [Commission] may, by

19-26    final order, and in accordance with the terms and procedures set

19-27    forth in Rule 166a, Texas Rules of Civil Procedure, dismiss a

19-28    complaint, protest, or response without holding a contested case

19-29    hearing.

19-30          SECTION 13.  Section 3.09, Texas Motor Vehicle Commission

 20-1    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

 20-2    to read as follows:

 20-3          Sec. 3.09.  PROCEDURAL SUPREMACY [EFFECT ON ADMINISTRATIVE

 20-4    PROCEDURE AND TEXAS REGISTER ACT].  In the event of any conflict

 20-5    between Chapter 2001, Government Code [the Administrative Procedure

 20-6    and Texas Register Act (Article 6252-13a, Vernon's Texas Civil

 20-7    Statutes)] and this Act, the provisions of this Act shall prevail.

 20-8          SECTION 14.  Section 4.01, Texas Motor Vehicle Commission

 20-9    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

20-10    by amending Subsection (b) and by adding Subsections (c), and (d)

20-11    to read as follows:

20-12          (b)  In the case of a nonfranchised dealer, the term

20-13    "license" in this Act means a general distinguishing number [issued

20-14    by the Department pursuant to the authority of Article 6686,

20-15    Revised Statutes].  A nonfranchised dealer may not operate as a

20-16    dealer without a valid general distinguishing number but is not

20-17    required to obtain an additional license under the terms of this

20-18    Act.  A franchised dealer shall have both a general distinguishing

20-19    number and a separate license issued under the terms of this Act.

20-20          (c)  Notwithstanding the terms of this Act, a franchised

20-21    dealer is not required to have a lessor license or lease

20-22    facilitator license to engage in any capacity in the business of

20-23    leasing motor vehicles that the dealer owns and is licensed by this

20-24    Act to sell.

20-25          (d)  A manufacturer or distributor that directly or

20-26    indirectly reimburses another person to perform warranty repair

20-27    services on a vehicle is engaged in business in this state whether

20-28    or not the manufacturer sells or offers for sale new motor vehicles

20-29    in this state.

20-30          SECTION 15.  Section 4.02(a), Texas Motor Vehicle Commission

 21-1    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

 21-2    to read as follows:

 21-3          (a)  An application for a dealer license shall be on a form

 21-4    prescribed by the board [Commission] which shall include the

 21-5    information required by Chapter 503, Transportation Code [Article

 21-6    6686, Revised Statutes,] and information on the applicant's

 21-7    financial resources, business integrity, business ability and

 21-8    experience, franchise agreement if applicable, physical facilities,

 21-9    vehicle inventory, and other factors the board [Commission]

21-10    considers necessary to determine an applicant's qualifications to

21-11    adequately serve the motoring public.

21-12          SECTION 16.  Section 4.03A, Texas Motor Vehicle Commission

21-13    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

21-14    to read as follows:

21-15          Section 4.03A.  Lessor Application.  An application for a

21-16    lessor license shall be on a form prescribed by the board

21-17    [Commission] and shall contain evidence of compliance with Chapter

21-18    503, Transportation Code [Article 6686, Revised Statutes], if

21-19    applicable, and other information prescribed by the board

21-20    [Commission].  This Act does not require a separate license for

21-21    each individual employee of a lessor.

21-22          SECTION 17.  Section 4.05(a), Texas Motor Vehicle Commission

21-23    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

21-24    to read as follows:

21-25          (a)  The annual license fees for licenses issued hereunder

21-26    shall be as follows:

21-27                (1)  For each manufacturer and distributor, $900 plus

21-28    $20 for each individual dealer franchised by the manufacturer or

21-29    distributor.

21-30                (2)  For each franchised dealer who sold 200 or fewer

 22-1    new motor vehicles during the preceding calendar year, $175.

 22-2                (3)  For each franchised dealer who sold more than 200,

 22-3    but not more than 400, new motor vehicles during the preceding

 22-4    calendar year, $275.

 22-5                (4)  For each franchised dealer who sold more than 400,

 22-6    but not more than 800, new motor vehicles during the preceding

 22-7    calendar year, $400.

 22-8                (5)  For each franchised dealer who sold more than 800

 22-9    but not more than 1,200 new motor vehicles during the preceding

22-10    calendar year, $500.

22-11                (6)  For each franchised dealer who sold more than

22-12    1,200 but not more than 1,600 new motor vehicles during the

22-13    preceding calendar year, $625.

22-14                (7)  For each franchised dealer who sold more than

22-15    1,600 new motor vehicles during the preceding calendar year, $750.

22-16                (8)  For each location separate from his dealership at

22-17    which a franchised dealer offers no motor vehicle for sale, but

22-18    performs warranty service on vehicles the dealer is franchised and

22-19    licensed to sell, $100.

22-20                (9) [(10)]  For each amendment to a dealer's license,

22-21    $25.

22-22                (10) [(8)]  For each representative, $100.

22-23                (11) [(9)]  For each converter, $375.

22-24                (12) [(9)]  For each lessor who leased 200 or fewer

22-25    motor vehicles during the preceding calendar year, $175.

22-26                (13) [(10)]  For each lessor who leased more than 200

22-27    but not more than 400 motor vehicles during the preceding calendar

22-28    year, $275.

22-29                (14) [(11)]  For each lessor who leased more than 400

22-30    but not more than 800 motor vehicles during the preceding calendar

 23-1    year, $400.

 23-2                (15) [(12)]  For each lessor who leased more than 800

 23-3    but not more than 1,200 motor vehicles during the preceding

 23-4    calendar year, $500.

 23-5                (16) [(13)]  For each lessor who leased more than 1,200

 23-6    but not more than 1,600 motor vehicles during the preceding

 23-7    calendar year, $625.

 23-8                (17) [(14)]  For each lessor who leased more than 1,600

 23-9    motor vehicles during the preceding calendar year, $750.

23-10                (18) [(15)]  For each lease facilitator, $375.

23-11          SECTION 18.  Section 5.01, Texas Motor Vehicle Commission

23-12    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

23-13    to read as follows:

23-14          Sec. 5.01.  FRANCHISED DEALERS.  It is unlawful for any

23-15    franchised dealer to:

23-16                (1)  Require a retail purchaser of a new motor vehicle

23-17    as a condition of sale and delivery thereof to purchase special

23-18    features, equipment, parts, or accessories not ordered or desired

23-19    by the purchaser, provided such features, equipment, parts, or

23-20    accessories are not already installed on the new motor vehicle at

23-21    the time of sale.

23-22                (2)  Fail to perform the obligations placed on the

23-23    selling franchised dealer in connection with the delivery and

23-24    preparation of a new motor vehicle for retail sale as provided in

23-25    the manufacturer's preparation and delivery agreements on file with

23-26    the Commission and applicable to such vehicle.

23-27                (3)  Fail to perform the obligations placed on the

23-28    franchised dealer in connection with the manufacturer's warranty

23-29    agreements on file with the Commission.

23-30                (4)  Operate without appropriate signs readily and

 24-1    easily visible to the public, identifying the franchised dealer's

 24-2    place of business and the products the franchised dealer offers for

 24-3    sale.  In the event of a conflict with another law or ordinance,

 24-4    this Subdivision prevails, and in the event of a dispute, the Board

 24-5    has exclusive jurisdiction to determine whether a sign or signs are

 24-6    in compliance with the terms of this Subdivision.  In the event of

 24-7    a dispute, the Board shall uphold local ordinances of a home-rule

 24-8    city and protect franchised dealers from retribution by

 24-9    manufacturers or distributors for having complied with local

24-10    ordinances.

24-11                (5) [(7)]  Directly or indirectly pay a fee to a lessor

24-12    or lease facilitator.

24-13          SECTION 19.  Section 5.01A, Texas Motor Vehicle Commission

24-14    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

24-15    to read as follows:

24-16          Sec. 5.01A.  Dealers.  No dealer may:

24-17                (1)  use false, deceptive, or misleading advertising;

24-18                (2)  [operate as a dealer without a currently valid

24-19    license or general distinguishing number issued by the Board;]

24-20                [(3)]  violate a rule of the Board; or

24-21                (3) [(4)]  aid or abet a person who violates this Act.

24-22          SECTION 20.  Section 5.02(b), Texas Motor Vehicle Commission

24-23    Code, (Article 4413(36), Vernon's Texas Civil Statutes), is amended

24-24    to read as follows:

24-25          (b)  It is unlawful for any manufacturer, distributor, or

24-26    representative to:

24-27                (1)  Require or attempt to require any dealer to order,

24-28    accept delivery of or pay anything of value, directly or

24-29    indirectly, for any motor vehicle, appliance, part, accessory or

24-30    any other commodity unless voluntarily ordered or contracted for by

 25-1    such dealer.

 25-2                (2)  Refuse or fail to deliver, in reasonable

 25-3    quantities and within a reasonable time, to a dealer having a

 25-4    franchise agreement for the retail sale of any motor vehicles sold

 25-5    or distributed by such manufacturer, distributor, or

 25-6    representative, any new motor vehicle or parts or accessories to

 25-7    new motor vehicles as are covered by such franchise if such

 25-8    vehicle, parts or accessories are publicly advertised as being

 25-9    available for delivery or are actually being delivered; provided,

25-10    however, this provision is not violated if such failure is caused

25-11    by acts of God, work stoppage or delays due to strikes or labor

25-12    disputes, freight embargoes or other causes beyond the control of

25-13    the manufacturer, distributor, or representative.

25-14                (3)  Notwithstanding the terms of any franchise

25-15    agreement:

25-16                      (A)  Terminate or refuse to continue any

25-17    franchise with a dealer or directly or indirectly force or attempt

25-18    to force a dealer to discontinue a line-make or parts or products

25-19    related to that line-make unless all of the following conditions

25-20    are met:

25-21                            (i)  the dealer and the board [Commission]

25-22    have received written notice by registered or certified mail from

25-23    the manufacturer, distributor, or representative not less than 60

25-24    days before the effective date of termination or noncontinuance

25-25    setting forth the specific grounds for termination or

25-26    noncontinuance; and

25-27                            (ii)  the written notice contains on the

25-28    first page thereof a conspicuous statement which reads as follows:

25-29    "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE

25-30    TEXAS MOTOR VEHICLE BOARD [COMMISSION] IN AUSTIN, TEXAS, AND HAVE A

 26-1    HEARING IN WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR

 26-2    NONCONTINUANCE OF YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR

 26-3    VEHICLE COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and

 26-4                            (iii)  the manufacturer, distributor, or

 26-5    representative has received the informed, written consent of the

 26-6    affected dealer or the appropriate period for the affected dealer

 26-7    to protest the proposed franchise termination or noncontinuance has

 26-8    lapsed; or

 26-9                            (iv)  if the affected dealer files a

26-10    protest with the board [Commission] within the greater of (1) 60

26-11    days after receiving its 60-day notice of proposed termination or

26-12    noncontinuance or (2) the time specified in such notice, the board

26-13    [Commission] determines that the party seeking to terminate or not

26-14    continue a dealer's franchise has established by a preponderance of

26-15    the evidence, at a hearing called by the board [Commission], that

26-16    there is good cause for the proposed termination or noncontinuance.

26-17                            (v)  Notwithstanding Subdivisions (3)(A)(i)

26-18    and (3)(A)(iv) of this section, notice may be made not less than 15

26-19    days prior to the effective date of termination or noncontinuance

26-20    if a licensed dealer fails to conduct its customary sales and

26-21    service operations during its customary business hours for seven

26-22    consecutive business days unless such failure is caused by an act

26-23    of God, work stoppage or delays due to strikes or labor disputes,

26-24    an order of the board [Commission], or other causes beyond the

26-25    control of the dealer.

26-26                      (B)  Whenever a dealer files a timely protest to

26-27    a proposed franchise termination or noncontinuance, the board

26-28    [Commission] shall notify the party seeking to terminate or to not

26-29    continue the protesting dealer's franchise that a timely protest

26-30    has been filed, that a hearing is required in accordance with this

 27-1    Act, and that the party who gave the dealer notice of termination

 27-2    or noncontinuance of the franchise may not terminate or refuse to

 27-3    continue the franchise until the board [Commission] issues its

 27-4    final decision or order.

 27-5                      (C)  If a franchise is terminated or not

 27-6    continued, another franchise in the same line-make will be

 27-7    established within a reasonable time unless it is shown to the

 27-8    board [Commission] by a preponderance of the evidence that the

 27-9    community or trade area cannot reasonably support such a

27-10    dealership.  If this showing is made, no dealer license shall be

27-11    thereafter issued in the same area unless a change in circumstances

27-12    is established.

27-13                (4)  Notwithstanding the terms of any franchise

27-14    agreement, modify or replace a franchise with a succeeding

27-15    franchise if the modification or replacement would adversely

27-16    affect, to a substantial degree, the dealer's sales, investment, or

27-17    obligations to provide service to the public, unless the

27-18    manufacturer, distributor, or representative has first given the

27-19    board [Commission] and each affected dealer written notice by

27-20    registered or certified mail of any such action 60 days in advance

27-21    of the modification or replacement.  The written notice shall

27-22    contain on the first page thereof a conspicuous statement which

27-23    reads as follows:  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE

27-24    A PROTEST WITH THE TEXAS MOTOR VEHICLE BOARD [COMMISSION] IN

27-25    AUSTIN, TEXAS, AND HAVE A HEARING IN WHICH YOU MAY PROTEST THE

27-26    PROPOSED MODIFICATION OR REPLACEMENT OF YOUR FRANCHISE WITH A

27-27    SUCCEEDING FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR VEHICLE

27-28    COMMISSION CODE IF YOU OPPOSE THIS ACTION."  Within the greater of

27-29    (1) 60 days after receipt of such notice or (2) the time specified

27-30    in such notice, a dealer may file a protest with the board

 28-1    [Commission] and the modification or replacement shall not become

 28-2    effective unless and until the board [Commission] determines that

 28-3    the party seeking to modify or replace a franchise with a

 28-4    succeeding franchise has demonstrated by a preponderance of the

 28-5    evidence that there is good cause for the modification or

 28-6    replacement.  The prior franchise shall continue in effect until

 28-7    the protest is resolved by the board [Commission].

 28-8                (5)  Notwithstanding the terms of any franchise

 28-9    agreement, in determining whether good cause has been established

28-10    for modifying, replacing, terminating, or refusing to continue a

28-11    franchise, or for forcing or attempting to force a dealer to

28-12    discontinue a line-make or parts or products related to that

28-13    line-make, the board [Commission] shall consider all the existing

28-14    circumstances including, without limitation by the enumeration

28-15    herein, all the following:

28-16                      (A)  the dealer's sales in relation to the sales

28-17    in the market;

28-18                      (B)  the dealer's investment and obligations;

28-19                      (C)  injury to the public welfare;

28-20                      (D)  the adequacy of the dealer's service

28-21    facilities, equipment, parts, and personnel in relation to those of

28-22    other dealers of new motor vehicles of the same line-make;

28-23                      (E)  whether warranties are being honored by the

28-24    dealer;

28-25                      (F)  the parties' compliance with their franchise

28-26    agreement; and

28-27                      (G)  the enforceability of the franchise

28-28    agreement from a public policy standpoint, including, without

28-29    limitation, issues of the reasonableness of the franchise

28-30    agreement's terms, oppression, adhesion, and the relative

 29-1    bargaining power of the parties.

 29-2          Good cause shall not be shown solely by the desire of a

 29-3    manufacturer, distributor, or representative for market

 29-4    penetration.

 29-5                (6)  Use any false, deceptive or misleading

 29-6    advertising.

 29-7                (7)  Notwithstanding the terms of any franchise

 29-8    agreement, prevent any dealer from reasonably changing the capital

 29-9    structure of his dealership or the means by or through which he

29-10    finances the operation thereof, provided that the dealer meets

29-11    reasonable capital requirements.

29-12                (8)  Notwithstanding the terms of any franchise

29-13    agreement, fail to give effect to or attempt to prevent any sale or

29-14    transfer of a dealer, dealership or franchise or interest therein

29-15    or management thereof unless, after complaint or protest, it is

29-16    demonstrated to the board [Commission] after hearing that the

29-17    result of any such sale or transfer will be detrimental to the

29-18    public or the representation of the manufacturer or distributor.

29-19                (9)  Notwithstanding the terms of any franchise

29-20    agreement, require or attempt to require that a dealer assign to or

29-21    act as an agent for any manufacturer, distributor or representative

29-22    in the securing of promissory notes and security agreements given

29-23    in connection with the sale or purchase of new motor vehicles or

29-24    the securing of policies of insurance on or having to do with the

29-25    operation of vehicles sold.

29-26                (10)  Notwithstanding the terms of any franchise

29-27    agreement, fail or refuse, after complaint and hearing, to perform

29-28    the obligations placed on the manufacturer in connection with the

29-29    delivery, preparation and warranty of a new motor vehicle as

29-30    provided in the manufacturer's warranty, preparation, and delivery

 30-1    agreements on file with the board [Commission].

 30-2                (11)  Notwithstanding the terms of any franchise

 30-3    agreement, fail to compensate its dealers for the work and services

 30-4    they are required to perform in connection with the dealer's

 30-5    delivery and preparation obligations according to the agreements on

 30-6    file with the board [Commission] which must be found by the board

 30-7    [Commission] to be reasonable, or fail to adequately and fairly

 30-8    compensate its dealers for labor, parts and other expenses incurred

 30-9    by such dealer to perform under and comply with a manufacturer's or

30-10    a distributor's warranty agreement, or require, as a prerequisite

30-11    to the manufacturer's or distributor's payment of a claim for

30-12    reimbursement as required by this section, that a dealer file with

30-13    the manufacturer or distributor the actual time spent in the

30-14    performance of labor unless actual time is the basis for

30-15    reimbursement.  In no event shall any manufacturer or distributor

30-16    pay its dealers an amount of money for warranty work that is less

30-17    than that charged by the dealer to the retail customers of the

30-18    dealer for nonwarranty work of like kind.  All claims made by

30-19    dealers for compensation for delivery, preparation, and warranty

30-20    work shall be paid within 30 days after approval and shall be

30-21    approved or disapproved within 30 days after receipt.  When any

30-22    claim is disapproved, the dealer shall be notified in writing of

30-23    the grounds for disapproval.  No claim which has been approved and

30-24    paid may be charged back to the dealer unless it can be shown that

30-25    the claim was false or fraudulent, that the repairs were not

30-26    properly made or were unnecessary to correct the defective

30-27    condition, or that the dealer failed to reasonably substantiate the

30-28    claim in accordance with reasonable written requirements of the

30-29    manufacturer or distributor, if the dealer has been notified of the

30-30    requirements prior to the time the claim arose, and if the

 31-1    requirements were in effect at the time the claim arose.  A

 31-2    manufacturer or distributor may not audit a claim after the

 31-3    expiration of two years following the submission of the claim

 31-4    unless the manufacturer or distributor has reasonable grounds to

 31-5    suspect that a claim was fraudulent.  Notwithstanding the terms of

 31-6    a franchise agreement or provision of law in conflict with this

 31-7    section, the dealer's delivery, preparation, and warranty

 31-8    obligations as filed with the board [Commission] shall constitute

 31-9    the dealer's sole responsibility for product liability as between

31-10    the dealer and manufacturer or distributor, and, except for a loss

31-11    caused by the dealer's failure to adhere to these obligations, a

31-12    loss caused by the dealer's negligence or intentional misconduct,

31-13    or a loss caused by the dealer's modification of a product without

31-14    manufacturer or distributor authorization, the manufacturer or

31-15    distributor shall reimburse the dealer for all loss incurred by the

31-16    dealer, including legal fees, court costs, and damages, as a result

31-17    of the dealer having been named a party in a product liability

31-18    action.

31-19                (12)  Operate as a manufacturer, distributor, or

31-20    representative without a currently valid license from the board

31-21    [Commission] or otherwise violate this Act or rules promulgated by

31-22    the board [Commission] hereunder.

31-23                (13)  Notwithstanding the terms of any franchise

31-24    agreement, to prevent or refuse to honor the succession to a

31-25    dealership by any legal heir or devisee under the will of a dealer

31-26    or under the laws of descent and distribution of this State unless

31-27    it is shown to the board [Commission], after notice and hearing,

31-28    that the result of such succession will be detrimental to the

31-29    public interest and to the representation of the manufacturer or

31-30    distributor; provided, however, nothing herein shall prevent a

 32-1    dealer, during his lifetime, from designating any person as his

 32-2    successor dealer, by written instrument filed with the manufacturer

 32-3    or distributor.

 32-4                (14)  Notwithstanding the terms of any franchise

 32-5    agreement, require that a dealer pay or assume, directly or

 32-6    indirectly, any part of any refund, rebate, discount, or other

 32-7    financial adjustment made by the manufacturer, distributor, or

 32-8    representative to, or in favor of, any customer of a dealer, unless

 32-9    voluntarily agreed to by such dealer.

32-10                (15)  Notwithstanding the terms of any franchise

32-11    agreement, deny or withhold approval of a written application to

32-12    relocate a franchise unless (A) the applicant has received written

32-13    notice of the denial or withholding of approval within 60 days

32-14    after receipt of the application containing information reasonably

32-15    necessary to enable the manufacturer or distributor to adequately

32-16    evaluate the application, and if (B) the applicant files a protest

32-17    with the board [Commission] and the manufacturer or distributor

32-18    establishes by a preponderance of the evidence at a hearing called

32-19    by the board [Commission] that the grounds for the denial or

32-20    withholding of approval of the relocation are reasonable.

32-21                (16)  Notwithstanding the terms of any franchise

32-22    agreement, fail to pay to a dealer or any lienholder in accordance

32-23    with their respective interest after the termination of a

32-24    franchise:

32-25                      (A)  the dealer cost of each new motor vehicle in

32-26    the dealer's inventory with mileage of 6,000 miles or less, reduced

32-27    by the net discount value of each, where "net discount value" is

32-28    determined according to the following formula:  net cost multiplied

32-29    by total mileage divided by 100,000, and where "net cost" equals

32-30    the dealer cost plus any charges by the manufacturer, distributor,

 33-1    or representative for distribution, delivery, and taxes, less all

 33-2    allowances paid to the dealer by the manufacturer, distributor, or

 33-3    representative for new, unsold, undamaged, and complete motor

 33-4    vehicles of current model year or one year prior model year in the

 33-5    dealer's inventory, except that if a vehicle cannot be reduced by

 33-6    the net discount value, the manufacturer or distributor shall pay

 33-7    the dealer the net cost of the vehicle;

 33-8                      (B)  the dealer cost of each new, unused,

 33-9    undamaged, and unsold part or accessory if the part or accessory is

33-10    in the current parts catalogue and is still in the original,

33-11    resalable merchandising package and in unbroken lots, except that

33-12    in the case of sheet metal, a comparable substitute for the

33-13    original package may be used, and if the part or accessory was

33-14    purchased by the dealer either directly from the manufacturer or

33-15    distributor or from an outgoing authorized dealer as a part of the

33-16    dealer's initial inventory;

33-17                      (C)  the fair market value of each undamaged sign

33-18    owned by the dealer which bears a trademark or tradename used or

33-19    claimed by the manufacturer, distributor, or representative if the

33-20    sign was purchased from or purchased at the request of the

33-21    manufacturer, distributor, or representative;

33-22                      (D)  the fair market value of all special tools,

33-23    data processing equipment, and automotive service equipment owned

33-24    by the dealer which were recommended in writing and designated as

33-25    special tools and equipment and purchased from or purchased at the

33-26    request of the manufacturer, distributor, or representative, if the

33-27    tools and equipment are in usable and good condition except for

33-28    reasonable wear and tear;

33-29                      (E)  the cost of transporting, handling, packing,

33-30    storing, and loading of any property subject to repurchase under

 34-1    this section;

 34-2                      (F)  except as provided by this subdivision, any

 34-3    sums due as provided by Paragraph (A) of this subdivision within 60

 34-4    days after termination of a franchise and any sums due as provided

 34-5    by Paragraphs (B) through (E) of this subdivision within 90 days

 34-6    after termination of a franchise.  As a condition of payment, the

 34-7    dealer is to comply with reasonable requirements with respect to

 34-8    the return of inventory as are set out in the terms of the

 34-9    franchise agreement.   A manufacturer or distributor shall

34-10    reimburse a dealer for the dealer's cost for storing any property

34-11    covered by this subdivision beginning 90 days following

34-12    termination.  A manufacturer or distributor shall reimburse a

34-13    dealer for the dealer's cost of storing any property covered by

34-14    this subdivision before the expiration of 90 days from the date of

34-15    termination if the dealer notifies the manufacturer or distributor

34-16    of the commencement of storage charges within that period.  On

34-17    receipt of notice of the commencement of storage charges, a

34-18    manufacturer or distributor may immediately take possession of the

34-19    property in question by repurchasing the property as provided by

34-20    this subdivision.  A manufacturer, distributor, or representative

34-21    who fails to pay those sums within the prescribed time or at such

34-22    time as the dealer and lienholder, if any, proffer good title prior

34-23    to the prescribed time for payment, is liable to the dealer for:

34-24                            (i)  the greatest of dealer cost, fair

34-25    market value, or current price of the inventory;

34-26                            (ii)  interest on the amount due calculated

34-27    at the rate applicable to a judgment of a court; and

34-28                            (iii)  reasonable attorney's fees and

34-29    costs.

34-30                (17)  Notwithstanding the terms of any franchise

 35-1    agreement, change its distributor, its method of distribution of

 35-2    its products in this state, or its business structure or ownership

 35-3    in a manner that results in the termination or noncontinuance of a

 35-4    franchise without good cause.  The manufacturer, distributor, or

 35-5    representative shall issue the same notice to the dealer and to the

 35-6    board [Commission] as is provided in Subdivisions (3)(A) and (B) of

 35-7    this section and said same procedures shall apply to the parties.

 35-8                (18)  Notwithstanding the terms of any franchise

 35-9    agreement, require a dealer to submit to arbitration on any issue

35-10    unless the dealer and the manufacturer, distributor, or

35-11    representative and their respective counsel agree to arbitrate

35-12    after a controversy arises.  The arbitrator shall apply the

35-13    provisions of this  Act in resolving the pertinent controversy.

35-14    Either party may appeal to the board [Commission] a decision of an

35-15    arbitrator on the ground that the arbitrator failed to apply this

35-16    Act.

35-17                (19)  Notwithstanding the terms of any franchise

35-18    agreement, require that a dealer join, contribute to, or affiliate

35-19    with, directly or indirectly, any advertising association.

35-20                (20)  Notwithstanding the terms of a franchise

35-21    agreement:

35-22                      (A)  require adherence to unreasonable sales or

35-23    service standards;

35-24                      (B)  directly or indirectly, discriminate against

35-25    a dealer or otherwise treat dealers differently as a result of a

35-26    formula or other calculation or process intended to gauge the

35-27    performance of a dealership, except a sales contest or other

35-28    recognition program based on reasonable sales and service criteria;

35-29                      (C)  unreasonably require that a dealer purchase

35-30    special tools or equipment; or

 36-1                      (D)  fail to compensate a dealer for all costs

 36-2    incurred by the dealer as required by the manufacturer in complying

 36-3    with the terms of a product recall by the manufacturer or

 36-4    distributor, including the costs, if any, incurred by the dealer in

 36-5    notifying vehicle owners of the existence of the recall.

 36-6                (21)  Discriminate unreasonably between or among

 36-7    franchisees in the sale of a motor vehicle owned by the

 36-8    manufacturer or distributor.

 36-9                (22)  Directly or indirectly, or through a subsidiary

36-10    or agent, require, as a condition for obtaining financing for a

36-11    motor vehicle, the purchaser of a vehicle to purchase any product

36-12    other than the motor vehicle from the manufacturer or distributor,

36-13    or from an entity owned or controlled by the manufacturer or

36-14    distributor.

36-15                (23)  Directly or indirectly, or through a subsidiary

36-16    or agent, require, as a condition of its or its subsidiary's

36-17    agreement to provide financing for a motor vehicle, that any

36-18    insurance policy or service contract purchased by the motor vehicle

36-19    purchaser be purchased from a specific source.

36-20                (24)  Compel a dealer through a financing subsidiary of

36-21    the manufacturer or distributor to agree to unreasonable operating

36-22    requirements or directly or indirectly to terminate a dealer

36-23    through the actions of a financing subsidiary of the manufacturer

36-24    or distributor.  This subdivision does not limit the right of a

36-25    financing entity to engage in business practices in accordance with

36-26    the usage of trade in retail and wholesale motor vehicle financing.

36-27                (25)  Operate as a dealer except on a temporary basis

36-28    and only if:

36-29                      (A)  the dealership was previously owned by a

36-30    franchised dealer and is currently for sale at a reasonable price;

 37-1    or

 37-2                      (B)  the manufacturer, distributor, or

 37-3    representative operates the dealership in a bona fide relationship

 37-4    with a franchised dealer who is required to make a significant

 37-5    investment in the dealership, subject to loss, and who reasonably

 37-6    expects to acquire full ownership of the dealership under

 37-7    reasonable terms and conditions.

 37-8                (26)  Notwithstanding the terms of a franchise

 37-9    agreement, deny or withhold approval of a dealer's application to

37-10    add a line-make or parts or products related to that line-make

37-11    unless, within 60 days of receipt of the dealer's written

37-12    application to add the line-make, the manufacturer or distributor

37-13    gives the dealer written notice of the denial or withholding of

37-14    approval.  After receipt of notice, the dealer may file a protest

37-15    with the board [Commission].  If the dealer files a protest as

37-16    provided by this subdivision, the board [Commission] may uphold the

37-17    manufacturer's or distributor's decision to deny or withhold

37-18    approval of the addition of the line-make only if the manufacturer

37-19    or distributor proves by a preponderance of the evidence that the

37-20    denial or withholding of approval was reasonable.  In determining

37-21    whether or not the manufacturer or distributor has met its burden

37-22    to show that its denial or withholding of approval is reasonable,

37-23    the board [Commission] shall consider all existing circumstances,

37-24    including, without limitation, the following:

37-25                      (A)  the dealer's sales in relation to the sales

37-26    in the market;

37-27                      (B)  the dealer's investment and obligations;

37-28                      (C)  injury to the public welfare;

37-29                      (D)  the adequacy of the dealer's sales and

37-30    service facilities, equipment, parts, and personnel in relation to

 38-1    those of other dealers of new motor vehicles of the same line-make;

 38-2                      (E)  whether warranties are being honored by the

 38-3    dealer agreement;

 38-4                      (F)  the parties' compliance with their franchise

 38-5    agreement;

 38-6                      (G)  the enforceability of the franchise

 38-7    agreement from a public policy standpoint, including without

 38-8    limitation, issues of the reasonableness of the franchise

 38-9    agreement's terms, oppression, adhesion, and the relative

38-10    bargaining power of the parties;

38-11                      (H)  whether the dealer complies with reasonable

38-12    capitalization requirements or will be able to comply with

38-13    reasonable capitalization requirements within a reasonable time;

38-14                      (I)  the harm, if any, to the manufacturer if the

38-15    denial or withholding of approval is not upheld; and

38-16                      (J)  the harm, if any, to the dealer if the

38-17    denial or withholding of approval is upheld.

38-18          SECTION 21.  Section 6.02, Texas Motor Vehicle Commission

38-19    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

38-20    to read as follows:

38-21          Sec. 6.02.  Injunction.  Whenever it appears that a person

38-22    has violated, is violating, or is threatening to violate any

38-23    provision of this Act or of any rule or order of the board

38-24    [Commission] issued pursuant to this Act [then] the board

38-25    [Commission], or the [Executive] Director when authorized by the

38-26    board [Commission], may cause a suit to be instituted in any court

38-27    for injunctive relief to restrain any such person from continuing

38-28    the violation or threat of violation or for the assessment and

38-29    recovery of a civil penalty as provided for in this Act or for both

38-30    injunctive relief and a civil penalty.

 39-1          SECTION 22.  Section 6.03, Texas Motor Vehicle Commission

 39-2    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended

 39-3    to read as follows:

 39-4          Sec. 6.03.  Suit.  At the request of the board [Commission,]

 39-5    or the [Executive] Director when authorized by the board

 39-6    [Commission], the Attorney General shall institute and conduct a

 39-7    suit in the name of the State of Texas for injunctive relief or to

 39-8    recover a civil penalty or for both injunctive relief and penalty.

 39-9          SECTION 23.  Subsections (e), (g), and (j), Section 6.07,

39-10    Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's

39-11    Texas Civil Statutes), are amended to read as follows:

39-12          (e)(1)  The board [Commission] shall adopt rules for the

39-13    enforcement and implementation of this section.

39-14                (2)  The [Executive] Director shall, in accordance with

39-15    rules adopted by the board [Commission], conduct hearings and issue

39-16    final orders for the enforcement and implementation of this

39-17    section.  Orders issued by the [Executive] Director under this

39-18    section are considered final orders of the board [Commission].

39-19                (3)  Except as provided by Subdivision (6) of this

39-20    subsection, the provisions of this section are not available to an

39-21    owner in an action seeking a refund or replacement based upon the

39-22    alleged nonconformity of a motor vehicle to an express warranty

39-23    applicable to the motor vehicle unless the owner has first

39-24    exhausted the administrative remedies provided herein.

39-25                (4)  The provisions of this section are not available

39-26    to a party in an action against a seller under Chapter 2 or Chapter

39-27    17, Business & Commerce Code, as amended.

39-28                (5)  Except as provided by Subdivision (6) of this

39-29    subsection, the provisions of this section are available in an

39-30    action against a manufacturer, converter, or distributor brought

 40-1    under Chapter 17, Business & Commerce Code, after the owner has

 40-2    exhausted the administrative remedies provided by this section.

 40-3                (6)  If, after a complaint has been filed under this

 40-4    section, the Hearing Examiner has not issued a proposal for

 40-5    decision and recommended to the [Executive] Director a final order

 40-6    before the expiration of the 150th day after the date the complaint

 40-7    was filed, the [Executive] Director shall, in writing sent by

 40-8    certified mail, so inform the complainant and the manufacturer,

 40-9    converter, or distributor of the expiration of the 150-day period

40-10    and of the complainant's right to file a civil action.  The board

40-11    [Commission] shall extend the 150-day period if a delay is

40-12    requested or is caused by the complainant.

40-13                (7)  After receipt of the notice of the right to file a

40-14    civil action, the complainant may file a civil action against one

40-15    or more of the persons complained of in the complaint.

40-16                (8)  A failure by the [Commission] to issue a notice of

40-17    the right to file a civil action does not affect a complainant's

40-18    right to bring an action under this Act.

40-19                (9)  Any party to a proceeding under this section

40-20    before the [Executive] Director that is affected by a final order

40-21    of the [Executive] Director is entitled to judicial review of the

40-22    order under the substantial evidence rule in a District Court of

40-23    Travis County, Texas.  The judicial review is subject to Chapter

40-24    2001, Government Code [the Administrative Procedure and Texas

40-25    Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)]

40-26    except to the extent that that Act is inconsistent with this Act.

40-27          (g)  In a hearing under this section, the [Executive]

40-28    Director shall make its order with respect to responsibility for

40-29    payment of the cost of any refund or replacement and no

40-30    manufacturer, converter, or distributor may cause any franchised

 41-1    dealer to pay directly or indirectly any sum not specifically so

 41-2    ordered by the [Executive] Director.  If the [Executive] Director

 41-3    orders a manufacturer, converter, or distributor to refund or

 41-4    replace a motor vehicle because it meets the criteria set forth in

 41-5    this section, the [Executive] Director may order the franchised

 41-6    dealer to reimburse the owner, lienholder, manufacturer, converter,

 41-7    or distributor only for items or options added to the vehicle by

 41-8    the franchised dealer and only to the extent that one or more of

 41-9    such items or options contributed to the defect that served as the

41-10    basis for the [Executive] Director's order of refund or

41-11    replacement.  In a case involving a leased vehicle, the [Executive]

41-12    Director may terminate the lease and apportion the allowance for

41-13    use and other allowances or refunds between the lessee and lessor

41-14    of the vehicle.

41-15          (j) (1)  A manufacturer, distributor, or converter that has

41-16    been ordered to repurchase or replace a vehicle shall, through its

41-17    franchised dealer, issue a disclosure statement stating that the

41-18    vehicle was repurchased or replaced by the manufacturer,

41-19    distributor, or converter under this section.  The disclosure

41-20    statement must accompany the vehicle through the first retail

41-21    purchase.  The manufacturer, distributor, or converter must restore

41-22    the cause of the repurchase or replacement to factory

41-23    specifications and issue a new 12-month, 12,000-mile warranty on

41-24    the vehicle.  The disclosure statement must include a toll-free

41-25    telephone number of the board [Commission] that will enable a

41-26    purchaser of a repurchased or replaced vehicle to obtain

41-27    information about the condition or defect that was the basis of the

41-28    order for repurchase or replacement.  The board [Commission] shall

41-29    adopt rules for the enforcement of this subdivision.

41-30                (2)  The board [Commission] shall provide a toll-free

 42-1    telephone number for providing information to persons who request

 42-2    information about a condition or defect that was the basis for

 42-3    repurchase or replacement by an order of the [Executive] Director.

 42-4    The board [Commission] shall maintain an effective method of

 42-5    providing information to persons who make the requests.

 42-6          SECTION 24.  Subsections (a), (c), and (d), Sections 7.01,

 42-7    Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's

 42-8    Texas Civil Statutes), are amended to read as follows:

 42-9          (a)  Any party to a proceeding before the board [Commission]

42-10    that is affected by a final order, rule, decision, or other final

42-11    action of the board [Commission] is entitled to judicial review of

42-12    any such final board [Commission] action, under the substantial

42-13    evidence rule, in a District Court of Travis County, Texas, or in

42-14    the Court of Appeals for the Third Court of Appeals District, and

42-15    to the extent not inconsistent herewith, pursuant to Chapter 2001,

42-16    Government Code [the Administrative Procedure and Texas Register

42-17    Act (Article 6252-13a, Vernon's Texas Civil Statutes)].  Except as

42-18    otherwise provided by this Act, an appeal [Appeals] initiated in

42-19    the District Courts of Travis County shall be removable to the

42-20    Court of Appeals upon notice of removal to any such district court

42-21    by any party at any time prior to trial in the district court.

42-22    Appeals initiated in or removed to the Court of Appeals shall be

42-23    initiated under Chapter 2001, Government Code [the Administrative

42-24    Procedure and Texas Register Act] as if initiated in a Travis

42-25    County District Court and shall, upon the filing thereof, be

42-26    thereafter governed by the Texas Rules of Appellate Procedure.

42-27          (c)  Citation must be served on the [Executive] Director.

42-28    Citation must also be served on all other parties of record before

42-29    the board [Commission].  For appeals initiated in the Court of

42-30    Appeals, the court shall cause citation to be issued.

 43-1          (d)  Appeals in which evidence outside the board's

 43-2    [Commission's] record is to be taken under Chapter 2001, Government

 43-3    Code [Section 19(d)(3), Administrative Procedure and Texas Register

 43-4    Act (Article 6252-13a, Vernon's Texas Civil Statutes)], or

 43-5    otherwise, shall be initiated in a Travis County District Court, or

 43-6    having been initiated in the Court of Appeals, shall be subject to

 43-7    remand to a Travis County District Court for proceedings in

 43-8    accordance with instructions from the Court of Appeals.

 43-9          SECTION 25.  EMERGENCY.  The importance of this legislation

43-10    and the crowded condition of the calendars in both houses create an

43-11    emergency and an imperative public necessity that the

43-12    constitutional rule requiring bills to be read on three several

43-13    days in each house be suspended, and this rule is hereby suspended,

43-14    and that this Act take effect and be in force from and after its

43-15    passage, and it is so enacted.