By: Haywood S.B. No. 665
97S0413/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the sale and delivery of certain motor fuel; providing
1-2 criminal 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.
2-3 SECTION 3. Chapter 1033, Acts of the 71st Legislature,
2-4 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
2-5 Statutes), is amended by adding Sections 3A and 3B to read as
2-6 follows:
2-7 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
2-8 LOWER THAN RATING POSTED ON PUMP LABEL. A motor fuel dealer in
2-9 this state may not sell or offer for sale motor fuel from a motor
2-10 fuel pump if the motor fuel contains an automotive fuel rating that
2-11 is lower than the automotive fuel rating for that motor fuel posted
2-12 on the motor fuel pump.
2-13 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
2-14 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
2-15 of motor fuel, as those persons are defined by Section 153.001, Tax
2-16 Code, may not deliver or transfer motor fuel to a motor fuel dealer
2-17 in this state if the fuel contains an automotive fuel rating that
2-18 is lower than the certification of the automotive fuel rating the
2-19 distributor or supplier is required to make to the motor fuel
2-20 dealer under federal law.
2-21 SECTION 4. Subsections (c), (d), and (e), Section 4, Chapter
2-22 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
2-23 8614, Vernon's Texas Civil Statutes), are amended to read as
2-24 follows:
2-25 (c) The commissioner of agriculture [comptroller] by rule
3-1 may prescribe the form of the statement required by Subsection (a)
3-2 of this section.
3-3 (d) The signs required to be posted by a motor fuel dealer
3-4 under Section 3 of this Act and delivered to a motor fuel dealer
3-5 under this section shall be obtained from the commissioner of
3-6 agriculture [comptroller].
3-7 (e) If the commissioner of agriculture [comptroller]
3-8 determines that certain types of motor fuel, such as diesel or
3-9 liquefied petroleum gas, are not sold in this state as mixtures
3-10 with alcohol in sufficient quantities to warrant regulation of
3-11 those deliveries under this Act, the commissioner [comptroller] may
3-12 limit the application of Section 3 of this Act and this section to
3-13 motor fuels sold in sufficient quantity to warrant regulation.
3-14 SECTION 5. Section 5, Chapter 1033, Acts of the 71st
3-15 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
3-16 Civil Statutes), is amended to read as follows:
3-17 Sec. 5. Dealer and delivery documents. (a) Each motor fuel
3-18 dealer in this state shall keep for four years a copy of each
3-19 manifest, bill of sale, bill of lading, or any other document
3-20 required to be delivered to the dealer by Section 4 of this Act.
3-21 During the first 60 days following delivery of a fuel mixture
3-22 covered by this Act, the dealer shall keep at the station or retail
3-23 outlet where the motor fuel was delivered a copy of each manifest,
3-24 bill of sale, bill of lading, or any other document required to be
3-25 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 four years at the principal place of business a copy of
4-3 each manifest, bill of sale, bill of lading, or any other document
4-4 required to be delivered to the dealer by Section 4 of this Act.
4-5 The documents are subject to inspection by the commissioner of
4-6 agriculture [comptroller] or an authorized representative of the
4-7 commissioner [comptroller], any law enforcement officer, or the
4-8 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, as amended; and
4-25 (3) each delivery ticket or letter of certification
5-1 that is required to be delivered to the dealer under 16 C.F.R. Part
5-2 306.
5-3 (b) Each distributor or supplier shall keep for at least one
5-4 year at the principal place of business a copy of each delivery
5-5 ticket or letter of certification required to be delivered by the
5-6 distributor or supplier to a motor fuel dealer in this state under
5-7 16 C.F.R. Part 306.
5-8 (c) A document required to be kept under this section is
5-9 subject to inspection by the commissioner of agriculture or an
5-10 authorized representative of the commissioner, any law enforcement
5-11 officer, or the attorney general.
5-12 SECTION 7. Section 6, Chapter 1033, Acts of the 71st
5-13 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
5-14 Civil Statutes), is amended to read as follows:
5-15 Sec. 6. Civil action. (a) If a motor fuel dealer or a
5-16 distributor, supplier, wholesaler, or jobber of motor fuel violates
5-17 Section 3, 3A, 3B, 4, or 5 of this Act, any motor fuel user who has
5-18 purchased the fuel and who has suffered damages or has a complaint
5-19 about the product may maintain a civil action against the motor
5-20 fuel dealer or the distributor, supplier, wholesaler, or jobber of
5-21 motor fuel. The action may be brought, without regard to any
5-22 specific amount in damages, in the district court in any county in
5-23 which the motor fuel dealer, distributor, supplier, wholesaler, or
5-24 jobber is doing business or in which the motor fuel user resides.
5-25 (b) In any action under this section, the court shall award
6-1 to the motor fuel user who prevails the amount of actual damages
6-2 and grant such equitable relief as the court determines is
6-3 necessary to remedy the effects of the motor fuel dealer's
6-4 violation or the distributor, supplier, wholesaler, or jobber's
6-5 violation of the provisions of Section 3, 3A, 3B, 4, or 5 of this
6-6 Act, including declaratory judgment, permanent injunctive relief,
6-7 and temporary injunctive relief. In addition, the court shall
6-8 award to the motor fuel user who prevails in an action brought
6-9 hereunder court costs and attorney's fees that are reasonable in
6-10 relation to the amount of work expended.
6-11 (c) In addition to the remedies provided in Subsection (b)
6-12 of this section, if the trier of fact finds that a [the] violation
6-13 of Section 3, 4, or 5 of this Act was committed wilfully or
6-14 knowingly by the defendant, the trier of fact shall award not more
6-15 than three times the amount of actual damages.
6-16 (d) A violation of Section 3, 3A, 3B, 4, or 5 of this Act is
6-17 also a deceptive trade practice under Subchapter E, Chapter 17,
6-18 Business & Commerce Code.
6-19 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
6-20 or 5 of this Act shall be commenced and prosecuted within two years
6-21 after the date the cause of action accrued.
6-22 SECTION 8. Section 7, Chapter 1033, Acts of the 71st
6-23 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
6-24 Civil Statutes), is amended to read as follows:
6-25 Sec. 7. Civil penalty. A motor fuel dealer or a
7-1 distributor, supplier, wholesaler, or jobber of motor fuel who
7-2 violates a provision of Section 3, 3A, 3B, 4, or 5 of this Act
7-3 forfeits to the state a civil penalty of not less than $200 [$25]
7-4 nor more than $10,000 [$200].
7-5 SECTION 9. Subsections (a), (b), and (e), Section 8, Chapter
7-6 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
7-7 8614, Vernon's Texas Civil Statutes), are amended to read as
7-8 follows:
7-9 (a) A person commits an offense if the person intentionally
7-10 or knowingly violates Section 3, 3A, 3B, 4, or 5 of this Act or any
7-11 rule of the commissioner of agriculture [comptroller] prescribed to
7-12 enforce or implement those sections of this Act.
7-13 (b) A person commits an offense if the person intentionally
7-14 or knowingly:
7-15 (1) refuses to permit a person authorized by Section 2
7-16 of this Act to test any motor fuel sold or held for sale in this
7-17 state;
7-18 (2) refuses to permit inspection of any document
7-19 required to be kept or delivered by this Act upon request of a
7-20 person authorized to inspect such documents by Section 5 or 5A of
7-21 this Act; or
7-22 (3) mutilates, destroys, secretes, forges, or
7-23 falsifies any document, record, report, or sign required to be
7-24 delivered, kept, filed, or posted by this Act or any rule
7-25 prescribed by the comptroller for the enforcement of this Act.
8-1 (e) A user, the commissioner of agriculture [comptroller] or
8-2 the [comptroller's] authorized representative of the commissioner,
8-3 any law enforcement officer, or the attorney general may file a
8-4 complaint under this section.
8-5 SECTION 10. Subsections (a), (b), (c), (e), and (f), Section
8-6 9, Chapter 1033, Acts of the 71st Legislature, Regular Session,
8-7 1989 (Article 8614, Vernon's Texas Civil Statutes), are amended to
8-8 read as follows:
8-9 (a) The commissioner of agriculture [comptroller] may adopt
8-10 rules not inconsistent with this Act for the regulation of the sale
8-11 of motor fuels containing ethanol and methanol.
8-12 (b) The comptroller by rule may impose fees for testing,
8-13 inspection, statement or record forms, sale of signs, or the
8-14 performance of other services provided as determined necessary by
8-15 the commissioner of agriculture in the administration of this Act.
8-16 (c) In addition to the fees authorized by Subsection (b) of
8-17 this section, the comptroller by rule may impose a fee to be
8-18 collected on a periodic basis determined by the comptroller from
8-19 each distributor, supplier, wholesaler, and jobber who deals in a
8-20 motor fuel, without regard to whether the motor fuel is subject to
8-21 regulation under this Act, as determined necessary by the
8-22 commissioner of agriculture. The comptroller by rule shall
8-23 prescribe the form for reporting and remitting the fees imposed by
8-24 and under this section.
8-25 (e) The total amount of the fees collected annually under
9-1 this Act may not exceed the lesser of:
9-2 (1) the costs of administering and enforcing the
9-3 provisions of this Act as determined necessary by the commissioner
9-4 of agriculture; or
9-5 (2) $500,000.
9-6 (f) The fees collected under this section may be used only:
9-7 (1) by the comptroller to defray the cost of
9-8 collecting the fees and penalties imposed by this Act but may not
9-9 exceed $25,000 annually; or
9-10 (2) by the commissioner of agriculture for the
9-11 administration and enforcement of this Act [by the comptroller and
9-12 shall be deposited in the Comptroller's Operating Fund 062].
9-13 SECTION 11. Section 10, Chapter 1033, Acts of the 71st
9-14 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
9-15 Civil Statutes), is amended to read as follows:
9-16 Sec. 10. CONTRACTING FOR ENFORCEMENT. The commissioner of
9-17 agriculture [comptroller] may contract for the enforcement of this
9-18 Act after due notice.
9-19 SECTION 12. Chapter 1033, Acts of the 71st Legislature,
9-20 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
9-21 Statutes), is amended by adding Section 11 to read as follows:
9-22 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
9-23 commissioner of agriculture, an authorized representative of the
9-24 commissioner, or the attorney general may make a copy of any
9-25 manifest, bill of sale, bill of lading, delivery ticket, letter of
10-1 certification, or other document the commissioner or attorney
10-2 general is entitled to inspect under this Act. The commissioner,
10-3 an authorized representative of the commissioner, or the attorney
10-4 general may deliver the copy of a document described by this
10-5 section to the federal government for purposes of prosecuting
10-6 persons for violations of federal law relating to the sale or
10-7 transfer of motor fuel.
10-8 SECTION 13. The changes in law made by this Act relating to
10-9 a penalty that may be imposed apply only to a violation that occurs
10-10 on or after the effective date of this Act. A violation occurs on
10-11 or after the effective date of this Act if each element of the
10-12 violation occurs on or after that date. A violation that occurs
10-13 before the effective date of this Act is covered by the law in
10-14 effect when the violation occurred, and the former law is continued
10-15 in effect for that purpose.
10-16 SECTION 14. All rules adopted by the comptroller of public
10-17 accounts of the State of Texas specifically for the administration
10-18 of Chapter 1033, Acts of the 71st Legislature, Regular Session,
10-19 1989 (Article 8614, Vernon's Texas Civil Statutes), in effect on
10-20 the effective date of this Act remain in effect until amended or
10-21 repealed by the commissioner of agriculture under authority granted
10-22 to the commissioner by a change in law made by this Act or other
10-23 law.
10-24 SECTION 15. This Act takes effect September 1, 1997, and
10-25 applies only to deliveries, transfers, or sales of motor fuel that
11-1 occur on or after that date.
11-2 SECTION 16. The importance of this legislation and the
11-3 crowded condition of the calendars in both houses create an
11-4 emergency and an imperative public necessity that the
11-5 constitutional rule requiring bills to be read on three several
11-6 days in each house be suspended, and this rule is hereby suspended.