Bill not drafted by TLC or Senate E&E.

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      By Horn                                         H.B. No. 1681

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the sale and delivery of certain motor fuel; providing

 1-3     criminal and civil penalties.

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

 1-5           SECTION 1.   Section 1, Chapter 1033, Acts of the 71st

 1-6     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

 1-7     Civil Statutes), is amended to read as follows:

 1-8           Sec. 1.  DEFINITIONS.  In this Act:

 1-9                 (1)  "Automotive fuel rating" has the meaning assigned

1-10     by 15 U.S.C.  Section 2821.

1-11                 (2)  "Dealer" means a person who is the operator of a

1-12     service station or other retail outlet and who delivers motor fuel

1-13     into the fuel tanks of motor vehicles or motor boats.

1-14                 (3) [(2)]  "Motor fuel" has the meaning given that term

1-15     by Section 153.001, Tax Code.

1-16           SECTION 2.   Section 2, Chapter 1033, Acts of the 71st

1-17     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

1-18     Civil Statutes), is amended to read as follows:

1-19           Sec. 2.  TESTING.  In order to determine compliance with the

1-20     standards and for the enforcement of rules adopted under Sections

1-21     3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture

1-22     [comptroller of public accounts] or an authorized representative of

1-23     the commissioner [comptroller], any law enforcement officer at the

1-24     direction of a prosecuting attorney, or the attorney general may

 2-1     test any motor fuel sold in this state, with or without a complaint

 2-2     about the fuel.

 2-3           SECTION 3.   Chapter 1033, Acts of the 71st Legislature,

 2-4     Regular Session, 1989 (Article 8614, Vernon's Texas Civil

 2-5     Statutes), is amended by adding Sections 3A and 3B to read as

 2-6     follows:

 2-7           Sec. 3A.  SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING

 2-8     LOWER THAN RATING POSTED ON PUMP LABEL.  A motor fuel dealer in

 2-9     this state may not sell or offer for sale motor fuel from a motor

2-10     fuel pump if the motor fuel contains an automotive fuel rating that

2-11     is lower than the automotive fuel rating for that motor fuel posted

2-12     on the motor fuel pump.

2-13           Sec. 3B.  DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING

2-14     LOWER THAN RATING CERTIFIED BY TRANSFER.  A distributor or supplier

2-15     of motor fuel, as those persons are defined by Section 153.001, Tax

2-16     Code, may not deliver or transfer motor fuel to a motor fuel dealer

2-17     in this state if the fuel contains an automotive fuel rating that

2-18     is lower than the certification of the automotive fuel rating the

2-19     distributor or supplier is required to make to the motor fuel

2-20     dealer under federal law.

2-21           SECTION 4.   Subsections (c), (d), and (e), Section 4,

2-22     Chapter 1033, Acts of the 71st Legislature, Regular Session, 1989

2-23     (Article 8614, Vernon's Texas Civil Statutes), are amended to read

2-24     as follows:

2-25           (c)  The commissioner of agriculture [comptroller] by rule

2-26     may prescribe the form of the statement required by Subsection (a)

2-27     of this section.

2-28           (d)  The signs required to be posted by a motor fuel dealer

2-29     under Section 3 of this Act and delivered to a motor fuel dealer

2-30     under this section shall be obtained from the commissioner of

 3-1     agriculture [comptroller].

 3-2           (e)  If the commissioner of agriculture [comptroller]

 3-3     determines that certain types of motor fuel, such as diesel or

 3-4     liquefied petroleum gas, are not sold in this state as mixtures

 3-5     with alcohol in sufficient quantities to warrant regulation of

 3-6     those deliveries under this Act, the commissioner [comptroller] may

 3-7     limit the application of Section 3 of this Act and this section to

 3-8     motor fuels sold in sufficient quantity to warrant regulation.

 3-9           SECTION 5.   Section 5, Chapter 1033, Acts of the 71st

3-10     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

3-11     Civil Statutes), is amended to read as follows:

3-12           Sec. 5.  Dealer and delivery documents.  (a)  Each motor fuel

3-13     dealer in this state shall keep for four years a copy of each

3-14     manifest, bill of sale, bill of lading, or any other document

3-15     required to be delivered to the dealer by Section 4 of this Act.

3-16     During the first 60 days following delivery of a fuel mixture

3-17     covered by this Act, the dealer shall keep at the station or retail

3-18     outlet where the motor fuel was delivered a copy of each manifest,

3-19     bill of sale, bill of lading, or any other document required to be

3-20     delivered to the dealer by Section 4 of this Act.  Each

3-21     distributor, supplier, wholesaler, or jobber of motor fuel shall

3-22     keep for four years at the principal place of business a copy of

3-23     each manifest, bill of sale, bill of lading, or any other document

3-24     required to be delivered to the dealer by Section 4 of this Act.

3-25     The documents are subject to inspection by the commissioner of

3-26     agriculture [comptroller] or an authorized representative of the

3-27     commissioner [comptroller], any law enforcement officer, or the

3-28     attorney general.

3-29           (b)  The commissioner of agriculture [comptroller] by rule

3-30     may prescribe the manner of filing documents required to be kept

 4-1     under Subsection (a) of this section, and the time, place, and

 4-2     manner of inspection of the documents.

 4-3           SECTION 6.   Chapter 1033, Acts of the 71st Legislature,

 4-4     Regular Session, 1989 (Article 8614, Vernon's Texas Civil

 4-5     Statutes), is amended by adding Section 5A to read as follows:

 4-6           Sec. 5A.  DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF

 4-7     AUTOMOTIVE FUEL RATINGS.  (a)  Each motor fuel dealer in this state

 4-8     shall keep for at least one year a copy of:

 4-9                 (1)  each delivery ticket or letter of certification on

4-10     which the motor fuel dealer based a posting of the automotive fuel

4-11     rating of motor fuel contained in a motor fuel pump;

4-12                 (2)  records of any automotive fuel rating

4-13     determination made by the motor fuel dealer under 16 C.F.R. Part

4-14     306, as amended; and

4-15                 (3)  each delivery ticket or letter of certification

4-16     that is required to be delivered to the dealer under 16 C.F.R. Part

4-17     306.

4-18           (b)  Each distributor or supplier shall keep for at least one

4-19     year at the principal place of business a copy of each delivery

4-20     ticket or letter of certification required to be delivered by the

4-21     distributor or supplier to a motor fuel dealer in this state under

4-22     16 C.F.R. Part 306.

4-23           (c)  A document required to be kept under this section is

4-24     subject to inspection by the commissioner of agriculture or an

4-25     authorized representative of the commissioner, any law enforcement

4-26     officer, or the attorney general.

4-27           SECTION 7.   Section 6, Chapter 1033, Acts of the 71st

4-28     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

4-29     Civil Statutes), is amended to read as follows:

4-30           Sec. 6.  Civil action.  (a)  If a motor fuel dealer or a

 5-1     distributor, supplier, wholesaler, or jobber of motor fuel violates

 5-2     Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has

 5-3     purchased the fuel and who has suffered damages or has a complaint

 5-4     about the product may maintain a civil action against the motor

 5-5     fuel dealer or the distributor, supplier, wholesaler, or jobber of

 5-6     motor fuel.  The action may be brought, without regard to any

 5-7     specific amount in damages, in the district court in any county in

 5-8     which the motor fuel dealer, distributor, supplier, wholesaler, or

 5-9     jobber is doing business or in which the motor fuel user resides.

5-10           (b)  In any action under this section, the court shall award

5-11     to the motor fuel user who prevails the amount of actual damages

5-12     and grant such equitable relief as the court determines is

5-13     necessary to remedy the effects of the motor fuel dealer's

5-14     violation or the distributor, supplier, wholesaler, or jobber's

5-15     violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this

5-16     Act, including declaratory judgment, permanent injunctive relief,

5-17     and temporary injunctive relief.  In addition, the court shall

5-18     award to the motor fuel user who prevails in an action brought

5-19     hereunder court costs and attorney's fees that are reasonable in

5-20     relation to the amount of work expended.

5-21           (c)  In addition to the remedies provided in Subsection (b)

5-22     of this section, if the trier of fact finds that a [the] violation

5-23     of Section 3, 4, or 5 of this Act was committed wilfully or

5-24     knowingly by the defendant, the trier of fact shall award not more

5-25     than three times the amount of actual damages.

5-26           (d)  A violation of Section 3, 3A, 3B, 4, or 5 of this Act is

5-27     also a deceptive trade practice under Subchapter E, Chapter 17,

5-28     Business & Commerce Code.

5-29           (e)  Any action alleging a violation of Section 3, 3A, 3B, 4,

5-30     or 5 of this Act shall be commenced and prosecuted within two years

 6-1     after the date the cause of action accrued.

 6-2           SECTION 8.   Section 7, Chapter 1033, Acts of the 71st

 6-3     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

 6-4     Civil Statutes), is amended to read as follows:

 6-5           Sec. 7.  Civil penalty.  A motor fuel dealer or a

 6-6     distributor, supplier, wholesaler, or jobber of motor fuel who

 6-7     violates a provision of Section 3, 3A, 3B, 4, or 5 of this Act

 6-8     forfeits to the state a civil penalty of not less than $200 [$25]

 6-9     nor more than $10,000 [$200].

6-10           SECTION 9.   Subsections (a), (b), and (e), Section 8,

6-11     Chapter 1033, Acts of the 71st Legislature, Regular Session, 1989

6-12     (Article 8614, Vernon's Texas Civil Statutes), are amended to read

6-13     as follows:

6-14           (a)  A person commits an offense if the person intentionally

6-15     or knowingly violates Section 3, 3A, 3B, 4, or 5 of this Act or any

6-16     rule of the commissioner of agriculture [comptroller] prescribed to

6-17     enforce or implement those sections of this Act.

6-18           (b)  A person commits an offense if the person intentionally

6-19     or knowingly:

6-20                 (1)  refuses to permit a person authorized by Section 2

6-21     of this Act to test any motor fuel sold or held for sale in this

6-22     state;

6-23                 (2)  refuses to permit inspection of any document

6-24     required to be kept or delivered by this Act upon request of a

6-25     person authorized to inspect such documents by Section 5 or 5A of

6-26     this Act; or

6-27                 (3)  mutilates, destroys, secretes, forges, or

6-28     falsifies any document, record, report, or sign required to be

6-29     delivered, kept, filed, or posted by this Act or any rule

6-30     prescribed by the comptroller for the enforcement of this Act.

 7-1           (e)  A user, the commissioner of agriculture [comptroller] or

 7-2     the [comptroller's] authorized representative of the commissioner,

 7-3     any law enforcement officer, or the attorney general may file a

 7-4     complaint under this section.

 7-5           SECTION 10.   Subsections (a), (b), (c), (e), and (f),

 7-6     Section 9, Chapter 1033, Acts of the 71st Legislature, Regular

 7-7     Session, 1989 (Article 8614, Vernon's Texas Civil Statutes), are

 7-8     amended to read as follows:

 7-9           (a)  The commissioner of agriculture [comptroller] may adopt

7-10     rules not inconsistent with this Act for the regulation of the sale

7-11     of motor fuels containing ethanol and methanol.

7-12           (b)  The comptroller by rule may impose fees for testing,

7-13     inspection, statement or record forms, sale of signs, or the

7-14     performance of other services provided as determined necessary by

7-15     the commissioner of agriculture in the administration of this Act.

7-16           (c)  In addition to the fees authorized by Subsection (b) of

7-17     this section, the comptroller by rule may impose a fee to be

7-18     collected on a periodic basis determined by the comptroller from

7-19     each distributor, supplier, wholesaler, and jobber who deals in a

7-20     motor fuel, without regard to whether the motor fuel is subject to

7-21     regulation under this Act, as determined necessary by the

7-22     commissioner of agriculture.  The comptroller by rule shall

7-23     prescribe the form for reporting and remitting the fees imposed by

7-24     and under this section.

7-25           (e)  The total amount of the fees collected annually under

7-26     this Act may not exceed the lesser of:

7-27                 (1)  the costs of administering and enforcing the

7-28     provisions of this Act as determined necessary by the commissioner

7-29     of agriculture; or

7-30                 (2)  $500,000.

 8-1           (f)  The fees collected under this section may be used only:

 8-2                 (1)   by the comptroller to defray the cost of

 8-3     collecting the fees and penalties imposed by this Act but may not

 8-4     exceed $25,000 annually; or

 8-5                 (2)  by the commissioner of agriculture for the

 8-6     administration and enforcement of this Act [by the comptroller and

 8-7     shall be deposited in the Comptroller's Operating Fund 062].

 8-8           SECTION 11.   Section 10, Chapter 1033, Acts of the 71st

 8-9     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

8-10     Civil Statutes), is amended to read as follows:

8-11           Sec. 10.  CONTRACTING FOR ENFORCEMENT.  The commissioner of

8-12     agriculture [comptroller] may contract for the enforcement of this

8-13     Act after due notice.

8-14           SECTION 12.   Chapter 1033, Acts of the 71st Legislature,

8-15     Regular Session, 1989 (Article 8614, Vernon's Texas Civil

8-16     Statutes), is amended by adding Section 11 to read as follows:

8-17           Sec. 11.  DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT.  The

8-18     commissioner of agriculture, an authorized representative of the

8-19     commissioner, or the attorney general may make a copy of any

8-20     manifest, bill of sale, bill of lading, delivery ticket, letter of

8-21     certification, or other document the commissioner or attorney

8-22     general is entitled to inspect under this Act.  The commissioner,

8-23     an authorized representative of the commissioner, or the attorney

8-24     general may deliver the copy of a document described by this

8-25     section to the federal government for purposes of prosecuting

8-26     persons for violations of federal law relating to the sale or

8-27     transfer of motor fuel.

8-28           SECTION 13.   The changes in law made by this Act relating to

8-29     a penalty that may be imposed apply only to a violation that occurs

8-30     on or after the effective date of this Act.  A violation occurs on

 9-1     or after the effective date of this Act if each element of the

 9-2     violation occurs on or after that date.  A violation that occurs

 9-3     before the effective date of this Act is covered by the law in

 9-4     effect when the violation occurred, and the former law is continued

 9-5     in effect for that purpose.

 9-6           SECTION 14.   All rules adopted by the comptroller of public

 9-7     accounts of the State of Texas specifically for the administration

 9-8     of Chapter 1033, Acts of the 71st Legislature, Regular Session,

 9-9     1989 (Article 8614, Vernon's Texas Civil Statutes), in effect on

9-10     the effective date of this Act remain in effect until amended or

9-11     repealed by the commissioner of agriculture under authority granted

9-12     to the commissioner by a change in law made by this Act or other

9-13     law.

9-14           SECTION 15.   This Act takes effect September 1, 1997, and

9-15     applies only to deliveries, transfers, or sales of motor fuel that

9-16     occur on or after that date.

9-17           SECTION 16.   The importance of this legislation and the

9-18     crowded condition of the calendars in both houses create an

9-19     emergency and an imperative public necessity that the

9-20     constitutional rule requiring bills to be read on three several

9-21     days in each house be suspended, and this rule is hereby suspended.