By:  Haywood                                           S.B. No. 665

                                A BILL TO BE ENTITLED

                                       AN ACT

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

 1-2     criminal, administrative, and civil penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 1, Chapter 1033, Acts of the 71st

 1-5     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

 1-6     Civil Statutes), is amended to read as follows:

 1-7           Sec. 1.  Definitions.  In this Act:

 1-8                 (1)  "Automotive fuel rating" has the meaning assigned

 1-9     by 15 U.S.C. Section 2821.

1-10                 (2)  "Dealer" means a person who is the operator of a

1-11     service station or other retail outlet and who delivers motor fuel

1-12     into the fuel tanks of motor vehicles or motor boats.

1-13                 (3) [(2)]  "Motor fuel" has the meaning given that term

1-14     by Section 153.001, Tax Code.

1-15           SECTION 2.  Section 2, Chapter 1033, Acts of the 71st

1-16     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

1-17     Civil Statutes), is amended to read as follows:

1-18           Sec. 2.  Testing.  In order to determine compliance with the

1-19     standards and for the enforcement of rules adopted under Sections

1-20     3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture

1-21     [comptroller of public accounts] or an authorized representative of

1-22     the commissioner [comptroller, any law enforcement officer at the

1-23     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.  Nothing under this section shall prohibit the

 2-3     commissioner from adopting rules relating to the frequency of

 2-4     testing motor fuels.  In adopting such rules the commissioner shall

 2-5     consider the nature of the violation, history of past violations,

 2-6     and funds available as provided by Subsection (e), Section 9 of

 2-7     this Act.

 2-8           SECTION 3.  Chapter 1033, Acts of the 71st Legislature,

 2-9     Regular Session, 1989 (Article 8614, Vernon's Texas Civil

2-10     Statutes), is amended by adding Sections 3A and 3B to read as

2-11     follows:

2-12           Sec. 3A.  SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING

2-13     LOWER THAN RATING POSTED ON PUMP LABEL.  A motor fuel dealer in

2-14     this state may not sell or offer for sale motor fuel from a motor

2-15     fuel pump if the motor fuel contains an automotive fuel rating that

2-16     is lower than the automotive fuel rating for that motor fuel posted

2-17     on the motor fuel pump.

2-18           Sec. 3B.  DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING

2-19     LOWER THAN RATING CERTIFIED BY TRANSFER.  A distributor or supplier

2-20     of motor fuel, as those persons are defined by Section 153.001, Tax

2-21     Code, may not deliver or transfer motor fuel to a motor fuel dealer

2-22     in this state if the fuel contains an automotive fuel rating that

2-23     is lower than the certification of the automotive fuel rating the

2-24     distributor or supplier is required to make to the motor fuel

2-25     dealer under federal law.

 3-1           SECTION 4.  Subsections (c), (d), and (e), Section 4, Chapter

 3-2     1033, Acts of the 71st Legislature, Regular Session, 1989 (Article

 3-3     8614, Vernon's Texas Civil Statutes), are amended to read as

 3-4     follows:

 3-5           (c)  The commissioner of agriculture [comptroller] by rule

 3-6     may prescribe the form of the statement required by Subsection (a)

 3-7     of this section.

 3-8           (d)  The signs required to be posted by a motor fuel dealer

 3-9     under Section 3 of this Act and delivered to a motor fuel dealer

3-10     under this section shall be obtained from the commissioner of

3-11     agriculture [comptroller].

3-12           (e)  If the commissioner of agriculture [comptroller]

3-13     determines that certain types of motor fuel, such as diesel or

3-14     liquefied petroleum gas, are not sold in this state as mixtures

3-15     with alcohol in sufficient quantities to warrant regulation of

3-16     those deliveries under this Act, the commissioner [comptroller] may

3-17     limit the application of Section 3 of this Act and this section to

3-18     motor fuels sold in sufficient quantity to warrant regulation.

3-19           SECTION 5.  Section 5, Chapter 1033, Acts of the 71st

3-20     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

3-21     Civil Statutes), is amended to read as follows:

3-22           Sec. 5.  Dealer and delivery documents.  (a)  Each motor fuel

3-23     dealer in this state shall keep for one year [four years] a copy of

3-24     each manifest, bill of sale, bill of lading, or any other document

3-25     required to be delivered to the dealer by Section 4 of this Act.

 4-1     During the first 60 days following delivery of a fuel mixture

 4-2     covered by this Act, the dealer shall keep at the station or retail

 4-3     outlet where the motor fuel was delivered a copy of each manifest,

 4-4     bill of sale, bill of lading, or any other document required to be

 4-5     delivered to the dealer by Section 4 of this Act.  Each

 4-6     distributor, supplier, wholesaler, or jobber of motor fuel shall

 4-7     keep for one year [four years] at the principal place of business a

 4-8     copy of each manifest, bill of sale, bill of lading, or any other

 4-9     document required to be delivered to the dealer by Section 4 of

4-10     this Act.  The documents are subject to inspection by the

4-11     commissioner of agriculture [comptroller] or an authorized

4-12     representative of the commissioner [comptroller, any law

4-13     enforcement officer, or the attorney general].

4-14           (b)  The commissioner of agriculture [comptroller] by rule

4-15     may prescribe the manner of filing documents required to be kept

4-16     under Subsection (a) of this section, and the time, place, and

4-17     manner of inspection of the documents.

4-18           SECTION 6.  Chapter 1033, Acts of the 71st Legislature,

4-19     Regular Session, 1989 (Article 8614, Vernon's Texas Civil

4-20     Statutes), is amended by adding Section 5A to read as follows:

4-21           Sec. 5A.  DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF

4-22     AUTOMOTIVE FUEL RATINGS.  (a)  Each motor fuel dealer in this state

4-23     shall keep for at least one year a copy of:

4-24                 (1)  each delivery ticket or letter of certification on

4-25     which the motor fuel dealer based a posting of the automotive fuel

 5-1     rating of motor fuel contained in a motor fuel pump;

 5-2                 (2)  records of any automotive fuel rating

 5-3     determination made by the motor fuel dealer under 16 C.F.R. Part

 5-4     306; and

 5-5                 (3)  each delivery ticket or letter of certification

 5-6     that is required to be delivered to the dealer under 16 C.F.R. Part

 5-7     306.

 5-8           (b)  Each distributor or supplier shall keep for at least one

 5-9     year at the principal place of business a copy of each delivery

5-10     ticket or letter of certification required to be delivered by the

5-11     distributor or supplier to a motor fuel dealer in this state under

5-12     16 C.F.R. Part 306.

5-13           (c)  A document required to be kept under this section is

5-14     subject to inspection by the commissioner of agriculture or an

5-15     authorized representative of the commissioner.

5-16           SECTION 7.  Section 6, Chapter 1033, Acts of the 71st

5-17     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

5-18     Civil Statutes), is amended to read as follows:

5-19           Sec. 6.  Civil action.  (a)  If a motor fuel dealer or a

5-20     distributor, supplier, wholesaler, or jobber of motor fuel violates

5-21     Section 3, 3A, 3B, 4, [or] 5, or 5A of this Act, any motor fuel

5-22     user who has purchased the fuel and who has suffered damages or has

5-23     a complaint about the product may maintain a civil action against

5-24     the motor fuel dealer or the distributor, supplier, wholesaler, or

5-25     jobber of motor fuel.  The action may be brought, without regard to

 6-1     any specific amount in damages, in the district court in any county

 6-2     in which the motor fuel dealer, distributor, supplier, wholesaler,

 6-3     or jobber is doing business or in which the motor fuel dealer

 6-4     [user] resides.

 6-5           (b)  In any action under this section, the court shall award

 6-6     to the motor fuel user who prevails the amount of actual damages

 6-7     and grant such equitable relief as the court determines is

 6-8     necessary to remedy the effects of the motor fuel dealer's

 6-9     violation or the distributor, supplier, wholesaler, or jobber's

6-10     violation of the provisions of Section 3, 3A, 3B, 4, [or] 5, or 5A

6-11     of this Act, including declaratory judgment, permanent injunctive

6-12     relief, and temporary injunctive relief.  In addition, the court

6-13     shall award to the motor fuel user who prevails in an action

6-14     brought hereunder court costs and attorney's fees that are

6-15     reasonable in relation to the amount of work expended.

6-16           (c)  In addition to the remedies provided in Subsection (b)

6-17     of this section, if the trier of fact finds that a [the] violation

6-18     of Section 3, 4, or 5 of this Act was committed wilfully or

6-19     knowingly by the defendant, the trier of fact shall award not more

6-20     than three times the amount of actual damages.

6-21           (d)  A violation of Section 3, 3A, 3B, 4, [or] 5, or 5A of

6-22     this Act is also a deceptive trade practice under Subchapter E,

6-23     Chapter 17, Business & Commerce Code.

6-24           (e)  Any action alleging a violation of Section 3, 3A, 3B, 4,

6-25     [or] 5, or 5A of this Act shall be commenced and prosecuted within

 7-1     two years after the date the cause of action accrued.

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

 7-3     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

 7-4     Civil Statutes), is amended to read as follows:

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

 7-6     distributor, supplier, wholesaler, or jobber of motor fuel who

 7-7     violates a provision of Section 3, 3A, 3B, 4, [or] 5, or 5A of this

 7-8     Act forfeits to the state a civil penalty of not less than $200

 7-9     [$25] nor more than $10,000 [$200].

7-10           SECTION 9.  Subsections (a), (b), and (e), Section 8, Chapter

7-11     1033, Acts of the 71st Legislature, Regular Session, 1989 (Article

7-12     8614, Vernon's Texas Civil Statutes), are amended to read as

7-13     follows:

7-14           (a)  A person commits an offense if the person intentionally

7-15     or knowingly violates Section 3, 3A, 3B, 4, [or] 5, or 5A of this

7-16     Act or any rule of the commissioner of agriculture [comptroller]

7-17     prescribed to enforce or implement those sections of this Act.

7-18           (b)  A person commits an offense if the person intentionally

7-19     or knowingly:

7-20                 (1)  refuses to permit a person authorized by Section 2

7-21     of this Act to test any motor fuel sold or held for sale in this

7-22     state;

7-23                 (2)  refuses to permit inspection of any document

7-24     required to be kept or delivered by this Act upon request of a

7-25     person authorized to inspect such documents by Section 5 or 5A of

 8-1     this Act; or

 8-2                 (3)  mutilates, destroys, secretes, forges, or

 8-3     falsifies any document, record, report, or sign required to be

 8-4     delivered, kept, filed, or posted by this Act or any rule

 8-5     prescribed by the commissioner of agriculture [comptroller] for the

 8-6     enforcement of this Act.

 8-7           (e)  The commissioner of agriculture [A user, the

 8-8     comptroller] or the [comptroller's] authorized representative of

 8-9     the commissioner may request the appropriate prosecuting attorney

8-10     to prosecute a violation of a provision of this Act[, any law

8-11     enforcement officer, or the attorney general may file a complaint

8-12     under this section].

8-13           SECTION 10.  Subsections (a), (b), (c), (e), and (f), Section

8-14     9, Chapter 1033, Acts of the 71st Legislature, Regular Session,

8-15     1989 (Article 8614, Vernon's Texas Civil Statutes), are amended to

8-16     read as follows:

8-17           (a)  The commissioner of agriculture [comptroller] may adopt

8-18     rules not inconsistent with this Act for the regulation of the sale

8-19     of motor fuels containing ethanol and methanol.

8-20           (b)  The comptroller by rule may impose fees for testing,

8-21     inspection, statement or record forms, sale of signs, or the

8-22     performance of other services provided as determined necessary by

8-23     the commissioner of agriculture in the administration of this Act.

8-24           (c)  In addition to the fees authorized by Subsection (b) of

8-25     this section, the comptroller by rule may impose a fee to be

 9-1     collected on a periodic basis determined by the comptroller from

 9-2     each distributor, supplier, wholesaler, and jobber who deals in a

 9-3     motor fuel, without regard to whether the motor fuel is subject to

 9-4     regulation under this Act, as determined necessary by the

 9-5     commissioner of agriculture.  The comptroller by rule shall

 9-6     prescribe the form for reporting and remitting the fees imposed by

 9-7     and under this section.

 9-8           (e)  The total amount of the fees collected annually under

 9-9     this Act may not exceed the lesser of:

9-10                 (1)  the costs of administering and enforcing the

9-11     provisions of this Act as determined necessary by the commissioner

9-12     of agriculture; or

9-13                 (2)  $500,000.

9-14           (f)  The fees collected under this section may be used only:

9-15                 (1)  by the comptroller to defray the cost of

9-16     collecting the fees and penalties imposed by this Act but may not

9-17     exceed $25,000 annually; or

9-18                 (2)  by the commissioner of agriculture for the

9-19     administration and enforcement of this Act [by the comptroller and

9-20     shall be deposited in the Comptroller's Operating Fund 062].

9-21           SECTION 11.  Section 10, Chapter 1033, Acts of the 71st

9-22     Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas

9-23     Civil Statutes), is amended to read as follows:

9-24           Sec. 10.  CONTRACTING FOR ENFORCEMENT.  The commissioner of

9-25     agriculture [comptroller] may contract for the enforcement of this

 10-1    Act after due notice.

 10-2          SECTION 12.  Chapter 1033, Acts of the 71st Legislature,

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

 10-4    Statutes), is amended by adding Section 11 to read as follows:

 10-5          Sec. 11.  DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT.  The

 10-6    commissioner of agriculture, an authorized representative of the

 10-7    commissioner, or the attorney general may make a copy of any

 10-8    manifest, bill of sale, bill of lading, delivery ticket, letter of

 10-9    certification, or other document the commissioner or attorney

10-10    general is entitled to inspect under this Act.  The commissioner,

10-11    an authorized representative of the commissioner, or the attorney

10-12    general may deliver the copy of a document described by this

10-13    section to the federal government for purposes of prosecuting

10-14    persons for violations of federal law relating to the sale or

10-15    transfer of motor fuel.

10-16          SECTION 13.  Subsection (c), Section 12.020, Agriculture

10-17    Code, is amended to read as follows:

10-18          (c)  The provisions of this code subject to this section and

10-19    the applicable penalty amounts are as follows:

 11-1                     Provision                   Maximum Penalty

 11-2        Chapters 13, 14, 18, 61, 94, 95,

 11-3        101, 102, 103, 121, 125, 132, [and]

 11-4        134, and Chapter 1033, Acts of the            $  500

 11-5        71st Legislature, Regular Session,

 11-6        1989 (Article 8614, Vernon's Texas

 11-7        Civil Statutes)

 11-8        Subchapter B, Chapter 71

 11-9        Chapter 19                                    $2,000

11-10        Chapters 75 and 76

11-11        Subchapters A and C, Chapter 71

11-12        Chapters 72, 73, and 74                       $5,000.

11-13          SECTION 14.  The changes in law made by this Act relating to

11-14    a penalty that may be imposed apply only to a violation that occurs

11-15    on or after the effective date of this Act.  A violation occurs on

11-16    or after the effective date of this Act if each element of the

11-17    violation occurs on or after that date.  A violation that occurs

11-18    before the effective date of this Act is covered by the law in

11-19    effect when the violation occurred, and the former law is continued

11-20    in effect for that purpose.

11-21          SECTION 15.  All rules adopted by the comptroller of public

11-22    accounts specifically for the administration of Chapter 1033, Acts

11-23    of the 71st Legislature, Regular Session, 1989 (Article 8614,

11-24    Vernon's Texas Civil Statutes), in effect on the effective date of

11-25    this Act remain in effect until amended or repealed by the

 12-1    commissioner of agriculture under authority granted to the

 12-2    commissioner by a change in law made by this Act or other law.

 12-3          SECTION 16.  This Act takes effect September 1, 1997, and

 12-4    applies only to deliveries, transfers, or sales of motor fuel that

 12-5    occur on or after that date.

 12-6          SECTION 17.  The importance of this legislation and the

 12-7    crowded condition of the calendars in both houses create an

 12-8    emergency and an imperative public necessity that the

 12-9    constitutional rule requiring bills to be read on three several

12-10    days in each house be suspended, and this rule is hereby suspended.