1-1     By:  Bosse (Senate Sponsor - Duncan)                  H.B. No. 2202

 1-2           (In the Senate - Received from the House May 5, 1997;

 1-3     May 6, 1997, read first time and referred to Committee on State

 1-4     Affairs; May 18, 1997, reported favorably by the following vote:

 1-5     Yeas 13, Nays 0; May 18, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to the regulation of vehicle storage facilities; providing

 1-9     a penalty.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Section 2, Vehicle Storage Facility Act (Article

1-12     6687-9a, Revised Statutes), is amended to read as follows:

1-13           Sec. 2.  DEFINITIONS.  In this article:

1-14                 (1)  "Commission" means the Texas [Department of]

1-15     Transportation Commission.

1-16                 (2)  "Department" means the Texas Department of

1-17     Transportation.

1-18                 (3)  "Director" means the executive director of the

1-19     department or a person designated by the executive director who is

1-20     not below the rank of division or special office director.

1-21                 (4)  "Vehicle storage facility" means a garage, parking

1-22     lot, or any type of facility owned by a person other than a

1-23     governmental entity, except as provided by Section 14(f) of this

1-24     article, for storing or parking 10 or more vehicles a year.

1-25                 (5) [(4)]  "Vehicle" means a motor vehicle subject to

1-26     registration under Chapter 501, Transportation Code, [the

1-27     Certificate of Title Act (Article 6687-1, Vernon's Texas Civil

1-28     Statutes)] or any other device designed to be self-propelled or

1-29     transported on a public highway.

1-30                 (6) [(5)]  "Owner of a vehicle" means:

1-31                       (A)  a person in whose name the vehicle is

1-32     registered under Chapter 501, Transportation Code [the Certificate

1-33     of Title Act (Article 6687-1, Vernon's Texas Civil Statutes)];

1-34                       (B)  a person in whose name the vehicle is

1-35     registered under Chapter 502, Transportation Code [Section 2,

1-36     Chapter 88, General Laws, Acts of the 41st Legislature, 2nd Called

1-37     Session, 1929 (Article 6675a-2, Vernon's Texas Civil Statutes)], or

1-38     a member of the person's immediate family;

1-39                       (C)  a person who holds the vehicle through a

1-40     valid lease agreement; or

1-41                       (D)  an unrecorded lienholder whose right to

1-42     possess the vehicle exists through a chattel mortgage.

1-43                 (7)  "Person" means an individual, corporation,

1-44     organization, business trust, estate, trust, partnership,

1-45     association, or other legal entity.

1-46                 (8) [(6)]  "Principal" means an individual who:

1-47                       (A)  holds personally or as a beneficiary of a

1-48     trust or by other constructive method:

1-49                             (i)  10 percent of a corporation's

1-50     outstanding stock; or

1-51                             (ii)  more than $25,000 of the fair market

1-52     value of a business;

1-53                       (B)  has the controlling interest in a business;

1-54                       (C)  has a participating interest of more than 10

1-55     percent in the profits, proceeds, or capital gains of a business,

1-56     regardless of whether the interest is direct or indirect, is

1-57     through shares, stock, or any other manner, or includes voting

1-58     rights;

1-59                       (D)  is a member of the board of directors or

1-60     other governing body of a business; or

1-61                       (E)  serves as an elected officer of a business.

1-62                 (9)  "Impoundment" [(7)  "Preservation"] means an

1-63     action taken by or at the direction of the owner or operator of a

1-64     vehicle storage facility that is necessary to preserve, protect, or

 2-1     service a vehicle stored or parked at the facility.

 2-2           SECTION 2.  Sections 4(a) and (c), Vehicle Storage Facility

 2-3     Act (Article 6687-9a, Revised Statutes), are amended to read as

 2-4     follows:

 2-5           (a)  The department [commission] may issue licenses to

 2-6     operate vehicle storage facilities.

 2-7           (c)  The department [commission] may impose and collect a fee

 2-8     for a license in an amount sufficient to recover the department's

 2-9     [commission's] costs of administering this Act.  Fees collected

2-10     under this subsection shall be deposited in the general revenue

2-11     fund.  The commission [department] may adopt rules regarding the

2-12     method of payment of a fee under this Act.  The rules may authorize

2-13     the use of electronic funds transfer or a valid credit card issued

2-14     by a financial institution chartered by a state or the federal

2-15     government or by a nationally recognized credit organization

2-16     approved by the department.  The rules may require the payment of a

2-17     discount or a service charge for a credit card payment in addition

2-18     to the fee.

2-19           SECTION 3.  Section 5, Vehicle Storage Facility Act (Article

2-20     6687-9a, Revised Statutes), is amended to read as follows:

2-21           Sec. 5.  PROHIBITION.  A person may not operate a vehicle

2-22     storage facility unless the person holds a current license to

2-23     operate a vehicle storage facility issued to the person by the

2-24     department [commission].

2-25           SECTION 4.  Section 7, Vehicle Storage Facility Act (Article

2-26     6687-9a, Revised Statutes), is amended to read as follows:

2-27           Sec. 7.  APPROVAL.  The department [commission] shall approve

2-28     an application that is submitted as provided by Section 6 of this

2-29     article for a license to operate a vehicle storage facility unless

2-30     the department [commission] determines that:

2-31                 (1)  the applicant knowingly supplied false or

2-32     incomplete information on the application;

2-33                 (2)  the applicant, one of the applicant's partners, a

2-34     principal or the general manager of the applicant, or one of the

2-35     applicant's officers has been convicted of a felony, or a

2-36     misdemeanor for which the maximum punishment is by confinement in

2-37     jail or by a fine exceeding $500, in the three years preceding the

2-38     date of the application; or

2-39                 (3)  the vehicle storage facility for which the license

2-40     is sought does not meet the standards for storage facilities

2-41     established by the rules of the commission.

2-42           SECTION 5.  Section 8, Vehicle Storage Facility Act (Article

2-43     6687-9a, Revised Statutes), is amended to read as follows:

2-44           Sec. 8.  NOTICE OF DENIAL.  If the department [commission]

2-45     denies an application for a license under this article, the

2-46     department [commission] shall send written notice of the decision

2-47     to the applicant, at the address shown on the application, by

2-48     certified mail, return receipt requested.  The notice shall state

2-49     the reason for the department's [commission's] decision and that

2-50     the applicant is entitled to a hearing before the department

2-51     [commission] under Section 11 of this article.  The notice may

2-52     state that the decision is temporary pending compliance by the

2-53     applicant.  If the decision is temporary and the applicant complies

2-54     with the requirements of this article and rules of the commission

2-55     before the 15th day after the date the applicant receives the

2-56     notice, the department [commission] shall then approve the

2-57     application.

2-58           SECTION 6.  Sections 9(a) and (b), Vehicle Storage Facility

2-59     Act (Article 6687-9a, Revised Statutes), are amended to read as

2-60     follows:

2-61           (a)  A license issued under this article is valid for the

2-62     period set by the department [commission].

2-63           (b)  A person may apply to the department [commission] to

2-64     renew the license on an application form approved by the department

2-65     [commission].  An application for renewal of a license must be

2-66     accompanied by a nonrefundable fee.

2-67           SECTION 7.  Sections 10(a), (b), and (c), Vehicle Storage

2-68     Facility Act (Article 6687-9a, Revised Statutes), are amended to

2-69     read as follows:

 3-1           (a)  The commission shall adopt rules relating to the

 3-2     administrative sanctions that may be enforced against a licensee.

 3-3     If a licensee, a partner of a licensee, a principal in the

 3-4     licensee's business, or an employee of the licensee violates, with

 3-5     the knowledge of the licensee, this article or a rule or order

 3-6     adopted under this article, the department [commission] may:

 3-7                 (1)  issue a written warning to the licensee specifying

 3-8     the violations;

 3-9                 (2)  deny, revoke, or suspend an application or license

3-10     under this article;

3-11                 (3)  place on probation a person whose license has been

3-12     suspended; or

3-13                 (4)  assess an administrative penalty in an amount not

3-14     to exceed $1,000 for each violation, with each violation considered

3-15     a separate offense.

3-16           (b)  The department [commission] may revoke or suspend a

3-17     license issued under this article or place on probation a person

3-18     whose license has been suspended if the department [commission]

3-19     determines that a licensee, a partner of the licensee, a principal

3-20     in the licensee's business, or an employee of the licensee has been

3-21     finally convicted of:

3-22                 (1)  a felony; or

3-23                 (2)  a misdemeanor that:

3-24                       (A)  is punishable by confinement or by a fine

3-25     that exceeds $500; and

3-26                       (B)  directly relates to a duty or responsibility

3-27     of an operator of a vehicle storage facility.

3-28           (c)  If it appears that a person is in violation of or is

3-29     threatening to violate this article or a rule or order adopted

3-30     under this article, the department [commission] or the attorney

3-31     general at the department's [commission's] request may institute an

3-32     action for injunctive relief, to recover a civil penalty not to

3-33     exceed $1,000 for each violation, or for both injunctive relief and

3-34     the civil penalty.  If the department [commission] or the attorney

3-35     general prevails in an action under this subsection, the department

3-36     [commission] or the attorney general is entitled to recover

3-37     reasonable attorney's fees and court costs.

3-38           SECTION 8.  The Vehicle Storage Facility Act (Article

3-39     6687-9a, Revised Statutes) is amended by adding Section 10A to read

3-40     as follows:

3-41           Sec. 10A.  ADMINISTRATIVE PENALTIES.  (a)  In addition to

3-42     sanctions that may be imposed under Sections 10(c) and 17 of this

3-43     article, a person who violates Section 5 of this article may be

3-44     assessed by the department an administrative penalty in an amount

3-45     not to exceed $10,000 for each violation.  Each day a violation

3-46     continues or occurs is a separate violation for purposes of

3-47     imposing a penalty.

3-48           (b)  In determining the amount of the penalty, the department

3-49     shall consider:

3-50                 (1)  the seriousness of the violation, including the

3-51     nature, circumstances, extent, and gravity of any prohibited acts,

3-52     and the hazard or potential hazard created to the health, safety,

3-53     or economic welfare of the public;

3-54                 (2)  the economic harm to property or the environment

3-55     caused by the violation;

3-56                 (3)  the history of previous violations;

3-57                 (4)  the amount necessary to deter future violations;

3-58                 (5)  efforts to correct the violation; and

3-59                 (6)  any other matter that justice may require.

3-60           (c)  An administrative penalty may be assessed under this

3-61     section only after the person charged with a violation has been

3-62     given an opportunity for an administrative hearing.

3-63           (d)  If the person charged requests a hearing or fails to

3-64     respond timely to notice, the department shall set a hearing and

3-65     give notice of the hearing to the person charged.  The hearing

3-66     shall be held by an administrative law judge of the State Office of

3-67     Administrative Hearings.  The administrative law judge shall make

3-68     findings of fact and conclusions of law and issue to the director a

3-69     proposal for a decision as to the occurrence of the violation.

 4-1           (e)  Based on the findings of fact, conclusions of law, and

 4-2     proposal for a decision, the director by order may find that a

 4-3     violation has occurred and impose a penalty or may find that a

 4-4     violation has not occurred.  The director may increase or decrease

 4-5     the amount of the penalty recommended by the administrative law

 4-6     judge.

 4-7           (f)  If the person charged with a violation does not appear

 4-8     for the hearing, the director may assess a penalty and issue an

 4-9     order that the penalty be paid after the department has determined

4-10     that a violation occurred.

4-11           (g)  A hearing under this section is an exhaustion of

4-12     administrative remedies, and an appeal from a hearing is to the

4-13     district court in Travis County.

4-14           (h)  Within 30 days after the date the director's order

4-15     becomes final as provided by Section 2001.144, Government Code, the

4-16     person charged with the penalty shall:

4-17                 (1)  pay the penalty in full;

4-18                 (2)  stay enforcement of the penalty by:

4-19                       (A)  forwarding the amount of the penalty to the

4-20     department for placement in an escrow account pending judicial

4-21     review of the matter; or

4-22                       (B)  posting with the department a supersedeas

4-23     bond for the amount of the penalty until judicial review is final;

4-24     or

4-25                 (3)  request the court to stay enforcement of the

4-26     penalty by:

4-27                       (A)  filing with the court a sworn affidavit of

4-28     the person stating that the person is financially unable to pay the

4-29     amount of the penalty and is financially unable to give the

4-30     supersedeas bond; and

4-31                       (B)  giving a copy of the affidavit to the

4-32     department by certified mail.

4-33           (i)  If the department receives a copy of an affidavit under

4-34     Subsection (h)(3) of this section, the department may file with the

4-35     court, within five days after the date the copy is received, a

4-36     contest to the affidavit.  The court shall hold a hearing on the

4-37     facts alleged in the affidavit as soon as practicable and shall

4-38     stay the enforcement of the penalty on finding that the alleged

4-39     facts are true.  The person who files an affidavit has the burden

4-40     of proving that the person is financially unable to pay the penalty

4-41     and to give a supersedeas bond.

4-42           (j)  Failure to comply with Subsection (h) of this section is

4-43     a waiver of the right to contest the order.

4-44           (k)  If a court determines that a violation has not occurred

4-45     or that the amount of the penalty should be reduced or not

4-46     assessed, the department shall remit the appropriate amount to the

4-47     person with interest or execute release of the bond.

4-48           (l)  An administrative penalty owed under this section may be

4-49     recovered in a civil action brought by the attorney general at the

4-50     request of the department.

4-51           SECTION 9.  Section 11, Vehicle Storage Facility Act (Article

4-52     6687-9a, Revised Statutes), is amended to read as follows:

4-53           Sec. 11.  HEARING.  (a)  A person whose application for a

4-54     license to operate a storage facility has been denied, whose

4-55     license has been revoked, or whose application to renew a license

4-56     has been denied may, before the 15th day after the date the person

4-57     receives notice of the revocation or denial, request in writing an

4-58     administrative [a] hearing [before the commission] on the

4-59     revocation or denial.

4-60           (b)  The provisions of Chapter 2001, Government Code [the

4-61     Administrative Procedure and Texas Register Act (Article 6252-13a,

4-62     Vernon's Texas Civil Statutes)], relating to notice and hearings on

4-63     contested cases, apply to notice and hearings on denial,

4-64     revocation, and renewal of licenses under this article.

4-65           (c)  A hearing under this section shall be held by an

4-66     administrative law judge of the State Office of Administrative

4-67     Hearings.  The administrative law judge shall make findings of fact

4-68     and conclusions of law and promptly issue to the director a

4-69     proposal for a decision about revocation or denial.  Based on the

 5-1     findings of fact, conclusions of law, and proposal for a decision,

 5-2     the director by order may revoke or deny a license.

 5-3           (d)  A hearing under this section is an exhaustion of

 5-4     administrative remedies, and an appeal from a hearing is to the

 5-5     district court in Travis County [having jurisdiction over the

 5-6     applicant or licensee].

 5-7           SECTION 10.  Sections 14(d)-(f), Vehicle Storage Facility Act

 5-8     (Article 6687-9a, Revised Statutes), are amended to read as

 5-9     follows:

5-10           (d)  The operator of a vehicle storage facility may charge a

5-11     fee under Subsection (c):

5-12                 (1)  for not more than five days before the date notice

5-13     described by Section 13 of this article is mailed; and

5-14                 (2)  after the date notice is mailed, for each day the

5-15     vehicle is in storage until the vehicle is removed and all accrued

5-16     charges are paid.

5-17           (e)  The operator of a vehicle storage facility may not

5-18     charge any additional fees that are similar to notification,

5-19     impoundment [preservation], or administrative fees.

5-20           (f) [(e)]  This section controls over any conflicting

5-21     municipal ordinance or charter provision.

5-22           (g) [(f)]  For the purposes of this section, "vehicle storage

5-23     facility" includes a garage, parking lot, or any type of facility

5-24     owned by a governmental entity for storing or parking 10 or more

5-25     vehicles.

5-26           SECTION 11.  Section 15, Vehicle Storage Facility Act

5-27     (Article 6687-9a, Revised Statutes), is amended to read as follows:

5-28           Sec. 15.  USE OF FEES.  The department [commission] shall

5-29     remit all fees collected under this article [to the State

5-30     Treasurer] for deposit in the [State Treasury to the credit of the]

5-31     general revenue fund.

5-32           SECTION 12.  Section 16, Vehicle Storage Facility Act

5-33     (Article 6687-9a, Revised Statutes), is repealed.

5-34           SECTION 13.  The importance of this legislation and the

5-35     crowded condition of the calendars in both houses create an

5-36     emergency and an imperative public necessity that the

5-37     constitutional rule requiring bills to be read on three several

5-38     days in each house be suspended, and this rule is hereby suspended,

5-39     and that this Act take effect and be in force from and after its

5-40     passage, and it is so enacted.

5-41                                  * * * * *