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
1-24 test any motor fuel sold in this state, with or without a complaint
2-1 about the fuel. Nothing under this section shall prohibit the
2-2 commissioner from adopting rules relating to the frequency of
2-3 testing motor fuels. In adopting such rules the commissioner shall
2-4 consider the nature of the violation, history of past violations,
2-5 and funds available as provided by Subsection (e), Section 9 of
2-6 this Act.
2-7 SECTION 3. Chapter 1033, Acts of the 71st Legislature,
2-8 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
2-9 Statutes), is amended by adding Sections 3A and 3B to read as
2-10 follows:
2-11 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
2-12 LOWER THAN RATING POSTED ON PUMP LABEL. A motor fuel dealer in
2-13 this state may not sell or offer for sale motor fuel from a motor
2-14 fuel pump if the motor fuel contains an automotive fuel rating that
2-15 is lower than the automotive fuel rating for that motor fuel posted
2-16 on the motor fuel pump.
2-17 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
2-18 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
2-19 of motor fuel, as those persons are defined by Section 153.001, Tax
2-20 Code, may not deliver or transfer motor fuel to a motor fuel dealer
2-21 in this state if the fuel contains an automotive fuel rating that
2-22 is lower than the certification of the automotive fuel rating the
2-23 distributor or supplier is required to make to the motor fuel
2-24 dealer under federal law.
2-25 SECTION 4. Subsections (c), (d), and (e), Section 4, Chapter
2-26 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
2-27 8614, Vernon's Texas Civil Statutes), are amended to read as
3-1 follows:
3-2 (c) The commissioner of agriculture [comptroller] by rule
3-3 may prescribe the form of the statement required by Subsection (a)
3-4 of this section.
3-5 (d) The signs required to be posted by a motor fuel dealer
3-6 under Section 3 of this Act and delivered to a motor fuel dealer
3-7 under this section shall be obtained from the commissioner of
3-8 agriculture [comptroller].
3-9 (e) If the commissioner of agriculture [comptroller]
3-10 determines that certain types of motor fuel, such as diesel or
3-11 liquefied petroleum gas, are not sold in this state as mixtures
3-12 with alcohol in sufficient quantities to warrant regulation of
3-13 those deliveries under this Act, the commissioner [comptroller] may
3-14 limit the application of Section 3 of this Act and this section to
3-15 motor fuels sold in sufficient quantity to warrant regulation.
3-16 SECTION 5. Section 5, Chapter 1033, Acts of the 71st
3-17 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
3-18 Civil Statutes), is amended to read as follows:
3-19 Sec. 5. Dealer and delivery documents. (a) Each motor fuel
3-20 dealer in this state shall keep for one year [four years] a copy of
3-21 each manifest, bill of sale, bill of lading, or any other document
3-22 required to be delivered to the dealer by Section 4 of this Act.
3-23 During the first 60 days following delivery of a fuel mixture
3-24 covered by this Act, the dealer shall keep at the station or retail
3-25 outlet where the motor fuel was delivered a copy of each manifest,
3-26 bill of sale, bill of lading, or any other document required to be
3-27 delivered to the dealer by Section 4 of this Act. Each
4-1 distributor, supplier, wholesaler, or jobber of motor fuel shall
4-2 keep for one year [four years] at the principal place of business a
4-3 copy of each manifest, bill of sale, bill of lading, or any other
4-4 document required to be delivered to the dealer by Section 4 of
4-5 this Act. The documents are subject to inspection by the
4-6 commissioner of agriculture [comptroller] or an authorized
4-7 representative of the commissioner [comptroller, any law
4-8 enforcement officer, or the attorney general].
4-9 (b) The commissioner of agriculture [comptroller] by rule
4-10 may prescribe the manner of filing documents required to be kept
4-11 under Subsection (a) of this section, and the time, place, and
4-12 manner of inspection of the documents.
4-13 SECTION 6. Chapter 1033, Acts of the 71st Legislature,
4-14 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
4-15 Statutes), is amended by adding Section 5A to read as follows:
4-16 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
4-17 AUTOMOTIVE FUEL RATINGS. (a) Each motor fuel dealer in this state
4-18 shall keep for at least one year a copy of:
4-19 (1) each delivery ticket or letter of certification on
4-20 which the motor fuel dealer based a posting of the automotive fuel
4-21 rating of motor fuel contained in a motor fuel pump;
4-22 (2) records of any automotive fuel rating
4-23 determination made by the motor fuel dealer under 16 C.F.R. Part
4-24 306; and
4-25 (3) each delivery ticket or letter of certification
4-26 that is required to be delivered to the dealer under 16 C.F.R. Part
4-27 306.
5-1 (b) Each distributor or supplier shall keep for at least one
5-2 year at the principal place of business a copy of each delivery
5-3 ticket or letter of certification required to be delivered by the
5-4 distributor or supplier to a motor fuel dealer in this state under
5-5 16 C.F.R. Part 306.
5-6 (c) A document required to be kept under this section is
5-7 subject to inspection by the commissioner of agriculture or an
5-8 authorized representative of the commissioner.
5-9 SECTION 7. Section 6, Chapter 1033, Acts of the 71st
5-10 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
5-11 Civil Statutes), is amended to read as follows:
5-12 Sec. 6. Civil action. (a) If a motor fuel dealer or a
5-13 distributor, supplier, wholesaler, or jobber of motor fuel violates
5-14 Section 3, 3A, 3B, 4, [or] 5, or 5A of this Act, any motor fuel
5-15 user who has purchased the fuel and who has suffered damages or has
5-16 a complaint about the product may maintain a civil action against
5-17 the motor fuel dealer or the distributor, supplier, wholesaler, or
5-18 jobber of motor fuel. The action may be brought, without regard to
5-19 any specific amount in damages, in the district court in any county
5-20 in which the motor fuel dealer, distributor, supplier, wholesaler,
5-21 or jobber is doing business or in which the motor fuel dealer
5-22 [user] resides.
5-23 (b) In any action under this section, the court shall award
5-24 to the motor fuel user who prevails the amount of actual damages
5-25 and grant such equitable relief as the court determines is
5-26 necessary to remedy the effects of the motor fuel dealer's
5-27 violation or the distributor, supplier, wholesaler, or jobber's
6-1 violation of the provisions of Section 3, 3A, 3B, 4, [or] 5, or 5A
6-2 of this Act, including declaratory judgment, permanent injunctive
6-3 relief, and temporary injunctive relief. In addition, the court
6-4 shall award to the motor fuel user who prevails in an action
6-5 brought hereunder court costs and attorney's fees that are
6-6 reasonable in relation to the amount of work expended.
6-7 (c) In addition to the remedies provided in Subsection (b)
6-8 of this section, if the trier of fact finds that a [the] violation
6-9 of Section 3, 4, or 5 of this Act was committed wilfully or
6-10 knowingly by the defendant, the trier of fact shall award not more
6-11 than three times the amount of actual damages.
6-12 (d) A violation of Section 3, 3A, 3B, 4, [or] 5, or 5A of
6-13 this Act is also a deceptive trade practice under Subchapter E,
6-14 Chapter 17, Business & Commerce Code.
6-15 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
6-16 [or] 5, or 5A of this Act shall be commenced and prosecuted within
6-17 two years after the date the cause of action accrued.
6-18 SECTION 8. Section 7, Chapter 1033, Acts of the 71st
6-19 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
6-20 Civil Statutes), is amended to read as follows:
6-21 Sec. 7. Civil penalty. A motor fuel dealer or a
6-22 distributor, supplier, wholesaler, or jobber of motor fuel who
6-23 violates a provision of Section 3, 3A, 3B, 4, [or] 5, or 5A of this
6-24 Act forfeits to the state a civil penalty of not less than $200
6-25 [$25] nor more than $10,000 [$200].
6-26 SECTION 9. Subsections (a), (b), and (e), Section 8, Chapter
6-27 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
7-1 8614, Vernon's Texas Civil Statutes), are amended to read as
7-2 follows:
7-3 (a) A person commits an offense if the person intentionally
7-4 or knowingly violates Section 3, 3A, 3B, 4, [or] 5, or 5A of this
7-5 Act or any rule of the commissioner of agriculture [comptroller]
7-6 prescribed to enforce or implement those sections of this Act.
7-7 (b) A person commits an offense if the person intentionally
7-8 or knowingly:
7-9 (1) refuses to permit a person authorized by Section 2
7-10 of this Act to test any motor fuel sold or held for sale in this
7-11 state;
7-12 (2) refuses to permit inspection of any document
7-13 required to be kept or delivered by this Act upon request of a
7-14 person authorized to inspect such documents by Section 5 or 5A of
7-15 this Act; or
7-16 (3) mutilates, destroys, secretes, forges, or
7-17 falsifies any document, record, report, or sign required to be
7-18 delivered, kept, filed, or posted by this Act or any rule
7-19 prescribed by the commissioner of agriculture [comptroller] for the
7-20 enforcement of this Act.
7-21 (e) The commissioner of agriculture [A user, the
7-22 comptroller] or the [comptroller's] authorized representative of
7-23 the commissioner may request the appropriate prosecuting attorney
7-24 to prosecute a violation of a provision of this Act[, any law
7-25 enforcement officer, or the attorney general may file a complaint
7-26 under this section].
7-27 SECTION 10. Subsections (a), (b), (c), (e), and (f), Section
8-1 9, Chapter 1033, Acts of the 71st Legislature, Regular Session,
8-2 1989 (Article 8614, Vernon's Texas Civil Statutes), are amended to
8-3 read as follows:
8-4 (a) The commissioner of agriculture [comptroller] may adopt
8-5 rules not inconsistent with this Act for the regulation of the sale
8-6 of motor fuels containing ethanol and methanol.
8-7 (b) The comptroller by rule may impose fees for testing,
8-8 inspection, statement or record forms, sale of signs, or the
8-9 performance of other services provided as determined necessary by
8-10 the commissioner of agriculture in the administration of this Act.
8-11 (c) In addition to the fees authorized by Subsection (b) of
8-12 this section, the comptroller by rule may impose a fee to be
8-13 collected on a periodic basis determined by the comptroller from
8-14 each distributor, supplier, wholesaler, and jobber who deals in a
8-15 motor fuel, without regard to whether the motor fuel is subject to
8-16 regulation under this Act, as determined necessary by the
8-17 commissioner of agriculture. The comptroller by rule shall
8-18 prescribe the form for reporting and remitting the fees imposed by
8-19 and under this section.
8-20 (e) The total amount of the fees collected annually under
8-21 this Act may not exceed the lesser of:
8-22 (1) the costs of administering and enforcing the
8-23 provisions of this Act as determined necessary by the commissioner
8-24 of agriculture; or
8-25 (2) $500,000.
8-26 (f) The fees collected under this section may be used only:
8-27 (1) by the comptroller to defray the cost of
9-1 collecting the fees and penalties imposed by this Act but may not
9-2 exceed $25,000 annually; or
9-3 (2) by the commissioner of agriculture for the
9-4 administration and enforcement of this Act [by the comptroller and
9-5 shall be deposited in the Comptroller's Operating Fund 062].
9-6 SECTION 11. Section 10, Chapter 1033, Acts of the 71st
9-7 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
9-8 Civil Statutes), is amended to read as follows:
9-9 Sec. 10. CONTRACTING FOR ENFORCEMENT. The commissioner of
9-10 agriculture [comptroller] may contract for the enforcement of this
9-11 Act after due notice.
9-12 SECTION 12. Chapter 1033, Acts of the 71st Legislature,
9-13 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
9-14 Statutes), is amended by adding Section 11 to read as follows:
9-15 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
9-16 commissioner of agriculture, an authorized representative of the
9-17 commissioner, or the attorney general may make a copy of any
9-18 manifest, bill of sale, bill of lading, delivery ticket, letter of
9-19 certification, or other document the commissioner or attorney
9-20 general is entitled to inspect under this Act. The commissioner,
9-21 an authorized representative of the commissioner, or the attorney
9-22 general may deliver the copy of a document described by this
9-23 section to the federal government for purposes of prosecuting
9-24 persons for violations of federal law relating to the sale or
9-25 transfer of motor fuel.
9-26 SECTION 13. Subsection (c), Section 12.020, Agriculture
9-27 Code, is amended to read as follows:
10-1 (c) The provisions of this code subject to this section and
10-2 the applicable penalty amounts are as follows:
10-3 Provision Maximum Penalty
10-4 Chapters 13, 14, 18, 61, 94, 95,
10-5 101, 102, 103, 121, 125, 132, [and]
10-6 134, and Chapter 1033, Acts of the $ 500
10-7 71st Legislature, Regular Session,
10-8 1989 (Article 8614, Vernon's Texas
10-9 Civil Statutes)
10-10 Subchapter B, Chapter 71
10-11 Chapter 19 $2,000
10-12 Chapters 75 and 76
10-13 Subchapters A and C, Chapter 71
10-14 Chapters 72, 73, and 74 $5,000.
10-15 SECTION 14. The changes in law made by this Act relating to
10-16 a penalty that may be imposed apply only to a violation that occurs
10-17 on or after the effective date of this Act. A violation occurs on
10-18 or after the effective date of this Act if each element of the
10-19 violation occurs on or after that date. A violation that occurs
10-20 before the effective date of this Act is covered by the law in
10-21 effect when the violation occurred, and the former law is continued
10-22 in effect for that purpose.
10-23 SECTION 15. All rules adopted by the comptroller of public
10-24 accounts specifically for the administration of Chapter 1033, Acts
10-25 of the 71st Legislature, Regular Session, 1989 (Article 8614,
10-26 Vernon's Texas Civil Statutes), in effect on the effective date of
10-27 this Act remain in effect until amended or repealed by the
11-1 commissioner of agriculture under authority granted to the
11-2 commissioner by a change in law made by this Act or other law.
11-3 SECTION 16. This Act takes effect September 1, 1997, and
11-4 applies only to deliveries, transfers, or sales of motor fuel that
11-5 occur on or after that date.
11-6 SECTION 17. The importance of this legislation and the
11-7 crowded condition of the calendars in both houses create an
11-8 emergency and an imperative public necessity that the
11-9 constitutional rule requiring bills to be read on three several
11-10 days in each house be suspended, and this rule is hereby suspended.
11-11 COMMITTEE AMENDMENT NO. 1
11-12 Amend S.B. 665 as follows:
11-13 (1) On page 7, between lines 9 and 10, add a new Sec. 7A to
11-14 read as follows:
11-15 "Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
11-16 agriculture may impose an administrative penalty against a person
11-17 licensed or regulated under this Act who violates this Act or a
11-18 rule or order adopted under this Act.
11-19 (b) The penalty for a violation may be in an amount not to
11-20 exceed $500. Each day a violation continues or occurs is a
11-21 separate violation for purposes of imposing a penalty.
11-22 (c) The amount of the penalty shall be based on:
11-23 (1) the seriousness of the violation, including the
11-24 nature, circumstances, extent, and gravity of any prohibited acts,
11-25 and the hazard or potential hazard created to the health, safety,
11-26 or economic welfare of the public;
11-27 (2) the economic harm to property or the environment
12-1 caused by the violation;
12-2 (3) the history of previous violations;
12-3 (4) the amount necessary to deter future violations;
12-4 (5) efforts to correct the violation; and
12-5 (6) any other matter that justice may require.
12-6 (d) An employee of the Department of Agriculture designated
12-7 by the commissioner to act under this section who determines that a
12-8 violation has occurred may issue to the commissioner of agriculture
12-9 a report that states the facts on which the determination is based
12-10 and the designated employee's recommendation on the imposition of a
12-11 penalty, including a recommendation on the amount of the penalty.
12-12 (e) Within 14 days after the date the report is issued, the
12-13 designated employee shall give written notice of the report to the
12-14 person. The notice may be given by certified mail. The notice
12-15 must include a brief summary of the alleged violation and a
12-16 statement of the amount of the recommended penalty and must inform
12-17 the person that the person has a right to a hearing on the
12-18 occurrence of the violation, the amount of the penalty, or both the
12-19 occurrence of the violation and the amount of the penalty.
12-20 (f) Within 20 days after the date the person receives the
12-21 notice, the person in writing may accept the determination and
12-22 recommended penalty of the designated employee or may make a
12-23 written request for a hearing on the occurrence of the violation,
12-24 the amount of the penalty, or both the occurrence of the violation
12-25 and the amount of the penalty.
12-26 (g) If the person accepts the determination and recommended
12-27 penalty of the designated employee, the commissioner of agriculture
13-1 by order shall approve the determination and impose the recommended
13-2 penalty.
13-3 (h) If the person requests a hearing or fails to respond
13-4 timely to the notice, the designated employee shall set a hearing
13-5 and give notice of the hearing to the person. The hearing shall be
13-6 held by an administrative law judge of the State Office of
13-7 Administrative Hearings. The administrative law judge shall make
13-8 findings of fact and conclusions of law and promptly issue to the
13-9 commissioner of agriculture a proposal for a decision about the
13-10 occurrence of the violation and the amount of a proposed penalty.
13-11 Based on the findings of fact, conclusions of law, and proposal for
13-12 a decision, the commissioner of agriculture by order may find that
13-13 a violation has occurred and impose a penalty or may find that no
13-14 violation occurred.
13-15 (i) The notice of the commissioner of agriculture's order
13-16 given to the person under Chapter 2001, Government Code, must
13-17 include a statement of the right of the person to judicial review
13-18 of the order.
13-19 (j) Within 30 days after the date the commissioner of
13-20 agriculture's order becomes final as provided by Section 2001.144,
13-21 Government Code, the person shall:
13-22 (1) pay the amount of the penalty;
13-23 (2) pay the amount of the penalty and file a petition
13-24 for judicial review contesting the occurrence of the violation, the
13-25 amount of the penalty, or both the occurrence of the violation and
13-26 the amount of the penalty; or
13-27 (3) without paying the amount of the penalty, file a
14-1 petition for judicial review contesting the occurrence of the
14-2 violation, the amount of the penalty, or both the occurrence of the
14-3 violation and the amount of the penalty.
14-4 (k) Within the 30-day period, a person who acts under
14-5 Subsection (j)(3) of this section may:
14-6 (1) stay enforcement of the penalty by:
14-7 (A) paying the amount of the penalty to the
14-8 court for placement in an escrow account; or
14-9 (B) giving to the court a supersedeas bond that
14-10 is approved by the court for the amount of the penalty and that is
14-11 effective until all judicial review of the commissioner of
14-12 agriculture's order is final; or
14-13 (2) request the court to stay enforcement of the
14-14 penalty by:
14-15 (A) filing with the court a sworn affidavit of
14-16 the person stating that the person is financially unable to pay the
14-17 amount of the penalty and is financially unable to give the
14-18 supersedeas bond; and
14-19 (B) giving a copy of the affidavit to the
14-20 designated employee by certified mail.
14-21 (l) A designated employee who receives a copy of an
14-22 affidavit under Subsection (k)(2) of this section may file with the
14-23 court, within five days after the date the copy is received, a
14-24 contest to the affidavit. The court shall hold a hearing on the
14-25 facts alleged in the affidavit as soon as practicable and shall
14-26 stay the enforcement of the penalty on finding that the alleged
14-27 facts are true. The person who files an affidavit has the burden
15-1 of proving that the person is financially unable to pay the amount
15-2 of the penalty and to give a supersedeas bond.
15-3 (m) If the person does not pay the amount of the penalty and
15-4 the enforcement of the penalty is not stayed, the designated
15-5 employee may refer the matter to the attorney general for
15-6 collection of the amount of the penalty.
15-7 (n) Judicial review of the order of the commissioner of
15-8 agriculture:
15-9 (1) is instituted by filing a petition as provided by
15-10 Subchapter G, Chapter 2001, Government Code; and
15-11 (2) is under the substantial evidence rule.
15-12 (o) If the court sustains the occurrence of the violation,
15-13 the court may uphold or reduce the amount of the penalty and order
15-14 the person to pay the full or reduced amount of the penalty. If
15-15 the court does not sustain the occurrence of the violation, the
15-16 court shall order that no penalty is owed.
15-17 (p) When the judgment of the court becomes final, the court
15-18 shall proceed under this subsection. If the person paid the amount
15-19 of the penalty and if that amount is reduced or is not upheld by
15-20 the court, the court shall order that the appropriate amount plus
15-21 accrued interest be remitted to the person. The rate of the
15-22 interest is the rate charged on loans to depository institutions by
15-23 the New York Federal Reserve Bank, and the interest shall be paid
15-24 for the period beginning on the date the penalty was paid and
15-25 ending on the date the penalty is remitted. If the person gave a
15-26 supersedeas bond and if the amount of the penalty is not upheld by
15-27 the court, the court shall order the release of the bond. If the
16-1 person gave a supersedeas bond and if the amount of the penalty is
16-2 reduced, the court shall order the release of the bond after the
16-3 person pays the amount.
16-4 (q) A penalty collected under this section shall be remitted
16-5 to the comptroller for deposit in the general revenue fund.
16-6 (r) All proceedings under this section are subject to
16-7 Chapter 2001, Government Code, except as provided by Subsections
16-8 (s) and (t).
16-9 (s) Notwithstanding Section 2001.058, Government Code, the
16-10 commissioner of agriculture may change a finding of fact or
16-11 conclusion of law made by the administrative law judge if the
16-12 commissioner of agriculture:
16-13 (1) determines that the administrative law judge:
16-14 (A) did not properly apply or interpret
16-15 applicable law, department rules or policies, or prior
16-16 administrative decisions; or
16-17 (B) issued a finding of fact that is not
16-18 supported by a preponderance of the evidence; or
16-19 (2) determines that a department policy or a prior
16-20 administrative decision on which the administrative law judge
16-21 relied is incorrect or should be changed.
16-22 (t) The commissioner of agriculture shall state in writing
16-23 the specific reason and legal basis for a determination under
16-24 Subsection (s)." (2) Delete SECTION 13 in its entirety and
16-25 renumber sections accordingly.
16-26 Hawley