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.