By Bosse H.B. No. 2202
75R10832 BEM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of vehicle storage facilities; providing
1-3 a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 2, Vehicle Storage Facility Act (Article
1-6 6687-9a, Revised Statutes), is amended to read as follows:
1-7 Sec. 2. DEFINITIONS. In this article:
1-8 (1) "Commission" means the Texas [Department of]
1-9 Transportation Commission.
1-10 (2) "Department" means the Texas Department of
1-11 Transportation.
1-12 (3) "Director" means the executive director of the
1-13 department or a person designated by the executive director who is
1-14 not below the rank of division or special office director.
1-15 (4) "Vehicle storage facility" means a garage, parking
1-16 lot, or any type of facility owned by a person other than a
1-17 governmental entity, except as provided by Section 14(f) of this
1-18 article, for storing or parking 10 or more vehicles a year.
1-19 (5) [(4)] "Vehicle" means a motor vehicle subject to
1-20 registration under Chapter 501, Transportation Code, [the
1-21 Certificate of Title Act (Article 6687-1, Vernon's Texas Civil
1-22 Statutes)] or any other device designed to be self-propelled or
1-23 transported on a public highway.
1-24 (6) [(5)] "Owner of a vehicle" means:
2-1 (A) a person in whose name the vehicle is
2-2 registered under Chapter 501, Transportation Code [the Certificate
2-3 of Title Act (Article 6687-1, Vernon's Texas Civil Statutes)];
2-4 (B) a person in whose name the vehicle is
2-5 registered under Chapter 502, Transportation Code [Section 2,
2-6 Chapter 88, General Laws, Acts of the 41st Legislature, 2nd Called
2-7 Session, 1929 (Article 6675a-2, Vernon's Texas Civil Statutes)], or
2-8 a member of the person's immediate family;
2-9 (C) a person who holds the vehicle through a
2-10 valid lease agreement; or
2-11 (D) an unrecorded lienholder whose right to
2-12 possess the vehicle exists through a chattel mortgage.
2-13 (7) "Person" means an individual, corporation,
2-14 organization, business trust, estate, trust, partnership,
2-15 association, or other legal entity.
2-16 (8) [(6)] "Principal" means an individual who:
2-17 (A) holds personally or as a beneficiary of a
2-18 trust or by other constructive method:
2-19 (i) 10 percent of a corporation's
2-20 outstanding stock; or
2-21 (ii) more than $25,000 of the fair market
2-22 value of a business;
2-23 (B) has the controlling interest in a business;
2-24 (C) has a participating interest of more than 10
2-25 percent in the profits, proceeds, or capital gains of a business,
2-26 regardless of whether the interest is direct or indirect, is
2-27 through shares, stock, or any other manner, or includes voting
3-1 rights;
3-2 (D) is a member of the board of directors or
3-3 other governing body of a business; or
3-4 (E) serves as an elected officer of a business.
3-5 (9) "Impoundment" [(7) "Preservation"] means an
3-6 action taken by or at the direction of the owner or operator of a
3-7 vehicle storage facility that is necessary to preserve, protect, or
3-8 service a vehicle stored or parked at the facility.
3-9 SECTION 2. Sections 4(a) and (c), Vehicle Storage Facility
3-10 Act (Article 6687-9a, Revised Statutes), are amended to read as
3-11 follows:
3-12 (a) The department [commission] may issue licenses to
3-13 operate vehicle storage facilities.
3-14 (c) The department [commission] may impose and collect a fee
3-15 for a license in an amount sufficient to recover the department's
3-16 [commission's] costs of administering this Act. Fees collected
3-17 under this subsection shall be deposited in the general revenue
3-18 fund. The commission [department] may adopt rules regarding the
3-19 method of payment of a fee under this Act. The rules may authorize
3-20 the use of electronic funds transfer or a valid credit card issued
3-21 by a financial institution chartered by a state or the federal
3-22 government or by a nationally recognized credit organization
3-23 approved by the department. The rules may require the payment of a
3-24 discount or a service charge for a credit card payment in addition
3-25 to the fee.
3-26 SECTION 3. Section 5, Vehicle Storage Facility Act (Article
3-27 6687-9a, Revised Statutes), is amended to read as follows:
4-1 Sec. 5. PROHIBITION. A person may not operate a vehicle
4-2 storage facility unless the person holds a current license to
4-3 operate a vehicle storage facility issued to the person by the
4-4 department [commission].
4-5 SECTION 4. Section 7, Vehicle Storage Facility Act (Article
4-6 6687-9a, Revised Statutes), is amended to read as follows:
4-7 Sec. 7. APPROVAL. The department [commission] shall approve
4-8 an application that is submitted as provided by Section 6 of this
4-9 article for a license to operate a vehicle storage facility unless
4-10 the department [commission] determines that:
4-11 (1) the applicant knowingly supplied false or
4-12 incomplete information on the application;
4-13 (2) the applicant, one of the applicant's partners, a
4-14 principal or the general manager of the applicant, or one of the
4-15 applicant's officers has been convicted of a felony, or a
4-16 misdemeanor for which the maximum punishment is by confinement in
4-17 jail or by a fine exceeding $500, in the three years preceding the
4-18 date of the application; or
4-19 (3) the vehicle storage facility for which the license
4-20 is sought does not meet the standards for storage facilities
4-21 established by the rules of the commission.
4-22 SECTION 5. Section 8, Vehicle Storage Facility Act (Article
4-23 6687-9a, Revised Statutes), is amended to read as follows:
4-24 Sec. 8. NOTICE OF DENIAL. If the department [commission]
4-25 denies an application for a license under this article, the
4-26 department [commission] shall send written notice of the decision
4-27 to the applicant, at the address shown on the application, by
5-1 certified mail, return receipt requested. The notice shall state
5-2 the reason for the department's [commission's] decision and that
5-3 the applicant is entitled to a hearing before the department
5-4 [commission] under Section 11 of this article. The notice may
5-5 state that the decision is temporary pending compliance by the
5-6 applicant. If the decision is temporary and the applicant complies
5-7 with the requirements of this article and rules of the commission
5-8 before the 15th day after the date the applicant receives the
5-9 notice, the department [commission] shall then approve the
5-10 application.
5-11 SECTION 6. Sections 9(a) and (b), Vehicle Storage Facility
5-12 Act (Article 6687-9a, Revised Statutes), are amended to read as
5-13 follows:
5-14 (a) A license issued under this article is valid for the
5-15 period set by the department [commission].
5-16 (b) A person may apply to the department [commission] to
5-17 renew the license on an application form approved by the department
5-18 [commission]. An application for renewal of a license must be
5-19 accompanied by a nonrefundable fee.
5-20 SECTION 7. Sections 10(a), (b), and (c), Vehicle Storage
5-21 Facility Act (Article 6687-9a, Revised Statutes), are amended to
5-22 read as follows:
5-23 (a) The commission shall adopt rules relating to the
5-24 administrative sanctions that may be enforced against a licensee.
5-25 If a licensee, a partner of a licensee, a principal in the
5-26 licensee's business, or an employee of the licensee violates, with
5-27 the knowledge of the licensee, this article or a rule or order
6-1 adopted under this article, the department [commission] may:
6-2 (1) issue a written warning to the licensee specifying
6-3 the violations;
6-4 (2) deny, revoke, or suspend an application or license
6-5 under this article;
6-6 (3) place on probation a person whose license has been
6-7 suspended; or
6-8 (4) assess an administrative penalty in an amount not
6-9 to exceed $1,000 for each violation, with each violation considered
6-10 a separate offense.
6-11 (b) The department [commission] may revoke or suspend a
6-12 license issued under this article or place on probation a person
6-13 whose license has been suspended if the department [commission]
6-14 determines that a licensee, a partner of the licensee, a principal
6-15 in the licensee's business, or an employee of the licensee has been
6-16 finally convicted of:
6-17 (1) a felony; or
6-18 (2) a misdemeanor that:
6-19 (A) is punishable by confinement or by a fine
6-20 that exceeds $500; and
6-21 (B) directly relates to a duty or responsibility
6-22 of an operator of a vehicle storage facility.
6-23 (c) If it appears that a person is in violation of or is
6-24 threatening to violate this article or a rule or order adopted
6-25 under this article, the department [commission] or the attorney
6-26 general at the department's [commission's] request may institute an
6-27 action for injunctive relief, to recover a civil penalty not to
7-1 exceed $1,000 for each violation, or for both injunctive relief and
7-2 the civil penalty. If the department [commission] or the attorney
7-3 general prevails in an action under this subsection, the department
7-4 [commission] or the attorney general is entitled to recover
7-5 reasonable attorney's fees and court costs.
7-6 SECTION 8. The Vehicle Storage Facility Act (Article
7-7 6687-9a, Revised Statutes) is amended by adding Section 10A to read
7-8 as follows:
7-9 Sec. 10A. ADMINISTRATIVE PENALTIES. (a) In addition to
7-10 sanctions that may be imposed under Sections 10(c) and 17 of this
7-11 article, a person who violates Section 5 of this article may be
7-12 assessed by the department an administrative penalty in an amount
7-13 not to exceed $10,000 for each violation. Each day a violation
7-14 continues or occurs is a separate violation for purposes of
7-15 imposing a penalty.
7-16 (b) In determining the amount of the penalty, the department
7-17 shall consider:
7-18 (1) the seriousness of the violation, including the
7-19 nature, circumstances, extent, and gravity of any prohibited acts,
7-20 and the hazard or potential hazard created to the health, safety,
7-21 or economic welfare of the public;
7-22 (2) the economic harm to property or the environment
7-23 caused by the violation;
7-24 (3) the history of previous violations;
7-25 (4) the amount necessary to deter future violations;
7-26 (5) efforts to correct the violation; and
7-27 (6) any other matter that justice may require.
8-1 (c) An administrative penalty may be assessed under this
8-2 section only after the person charged with a violation has been
8-3 given an opportunity for an administrative hearing.
8-4 (d) If the person charged requests a hearing or fails to
8-5 respond timely to notice, the department shall set a hearing and
8-6 give notice of the hearing to the person charged. The hearing
8-7 shall be held by an administrative law judge of the State Office of
8-8 Administrative Hearings. The administrative law judge shall make
8-9 findings of fact and conclusions of law and issue to the director a
8-10 proposal for a decision as to the occurrence of the violation.
8-11 (e) Based on the findings of fact, conclusions of law, and
8-12 proposal for a decision, the director by order may find that a
8-13 violation has occurred and impose a penalty or may find that a
8-14 violation has not occurred. The director may increase or decrease
8-15 the amount of the penalty recommended by the administrative law
8-16 judge.
8-17 (f) If the person charged with a violation does not appear
8-18 for the hearing, the director may assess a penalty and issue an
8-19 order that the penalty be paid after the department has determined
8-20 that a violation occurred.
8-21 (g) A hearing under this section is an exhaustion of
8-22 administrative remedies, and an appeal from a hearing is to the
8-23 district court in Travis County.
8-24 (h) Within 30 days after the date the director's order
8-25 becomes final as provided by Section 2001.144, Government Code, the
8-26 person charged with the penalty shall:
8-27 (1) pay the penalty in full;
9-1 (2) stay enforcement of the penalty by:
9-2 (A) forwarding the amount of the penalty to the
9-3 department for placement in an escrow account pending judicial
9-4 review of the matter; or
9-5 (B) posting with the department a supersedeas
9-6 bond for the amount of the penalty until judicial review is final;
9-7 or
9-8 (3) request the court to stay enforcement of the
9-9 penalty by:
9-10 (A) filing with the court a sworn affidavit of
9-11 the person stating that the person is financially unable to pay the
9-12 amount of the penalty and is financially unable to give the
9-13 supersedeas bond; and
9-14 (B) giving a copy of the affidavit to the
9-15 department by certified mail.
9-16 (i) If the department receives a copy of an affidavit under
9-17 Subsection (h)(3) of this section, the department may file with the
9-18 court, within five days after the date the copy is received, a
9-19 contest to the affidavit. The court shall hold a hearing on the
9-20 facts alleged in the affidavit as soon as practicable and shall
9-21 stay the enforcement of the penalty on finding that the alleged
9-22 facts are true. The person who files an affidavit has the burden
9-23 of proving that the person is financially unable to pay the penalty
9-24 and to give a supersedeas bond.
9-25 (j) Failure to comply with Subsection (h) of this section is
9-26 a waiver of the right to contest the order.
9-27 (k) If a court determines that a violation has not occurred
10-1 or that the amount of the penalty should be reduced or not
10-2 assessed, the department shall remit the appropriate amount to the
10-3 person with interest or execute release of the bond.
10-4 (l) An administrative penalty owed under this section may be
10-5 recovered in a civil action brought by the attorney general at the
10-6 request of the department.
10-7 SECTION 9. Section 11, Vehicle Storage Facility Act (Article
10-8 6687-9a, Revised Statutes), is amended to read as follows:
10-9 Sec. 11. HEARING. (a) A person whose application for a
10-10 license to operate a storage facility has been denied, whose
10-11 license has been revoked, or whose application to renew a license
10-12 has been denied may, before the 15th day after the date the person
10-13 receives notice of the revocation or denial, request in writing an
10-14 administrative [a] hearing [before the commission] on the
10-15 revocation or denial.
10-16 (b) The provisions of Chapter 2001, Government Code [the
10-17 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-18 Vernon's Texas Civil Statutes)], relating to notice and hearings on
10-19 contested cases, apply to notice and hearings on denial,
10-20 revocation, and renewal of licenses under this article.
10-21 (c) A hearing under this section shall be held by an
10-22 administrative law judge of the State Office of Administrative
10-23 Hearings. The administrative law judge shall make findings of fact
10-24 and conclusions of law and promptly issue to the director a
10-25 proposal for a decision about revocation or denial. Based on the
10-26 findings of fact, conclusions of law, and proposal for a decision,
10-27 the director by order may revoke or deny a license.
11-1 (d) A hearing under this section is an exhaustion of
11-2 administrative remedies, and an appeal from a hearing is to the
11-3 district court in Travis County [having jurisdiction over the
11-4 applicant or licensee].
11-5 SECTION 10. Sections 14(d)-(f), Vehicle Storage Facility Act
11-6 (Article 6687-9a, Revised Statutes), are amended to read as
11-7 follows:
11-8 (d) The operator of a vehicle storage facility may charge a
11-9 fee under Subsection (c):
11-10 (1) for not more than five days before the date notice
11-11 described by Section 13 of this article is mailed; and
11-12 (2) after the date notice is mailed, for each day the
11-13 vehicle is in storage until the vehicle is removed and all accrued
11-14 charges are paid.
11-15 (e) The operator of a vehicle storage facility may not
11-16 charge any additional fees that are similar to notification,
11-17 impoundment [preservation], or administrative fees.
11-18 (f) [(e)] This section controls over any conflicting
11-19 municipal ordinance or charter provision.
11-20 (g) [(f)] For the purposes of this section, "vehicle storage
11-21 facility" includes a garage, parking lot, or any type of facility
11-22 owned by a governmental entity for storing or parking 10 or more
11-23 vehicles.
11-24 SECTION 11. Section 15, Vehicle Storage Facility Act
11-25 (Article 6687-9a, Revised Statutes), is amended to read as follows:
11-26 Sec. 15. USE OF FEES. The department [commission] shall
11-27 remit all fees collected under this article [to the State
12-1 Treasurer] for deposit in the [State Treasury to the credit of the]
12-2 general revenue fund.
12-3 SECTION 12. Section 16, Vehicle Storage Facility Act
12-4 (Article 6687-9a, Revised Statutes), is repealed.
12-5 SECTION 13. The importance of this legislation and the
12-6 crowded condition of the calendars in both houses create an
12-7 emergency and an imperative public necessity that the
12-8 constitutional rule requiring bills to be read on three several
12-9 days in each house be suspended, and this rule is hereby suspended,
12-10 and that this Act take effect and be in force from and after its
12-11 passage, and it is so enacted.