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 * * * * *