1-1 By: Haywood S.B. No. 665
1-2 (In the Senate - Filed February 19, 1997; February 24, 1997,
1-3 read first time and referred to Committee on State Affairs;
1-4 April 2, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 12, Nays 0; April 2, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 665 By: Shapiro
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the sale and delivery of certain motor fuel; providing
1-11 criminal, administrative, and civil penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 1, Chapter 1033, Acts of the 71st
1-14 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
1-15 Civil Statutes), is amended to read as follows:
1-16 Sec. 1. Definitions. In this Act:
1-17 (1) "Automotive fuel rating" has the meaning assigned
1-18 by 15 U.S.C. Section 2821.
1-19 (2) "Dealer" means a person who is the operator of a
1-20 service station or other retail outlet and who delivers motor fuel
1-21 into the fuel tanks of motor vehicles or motor boats.
1-22 (3) [(2)] "Motor fuel" has the meaning given that term
1-23 by Section 153.001, Tax Code.
1-24 SECTION 2. Section 2, Chapter 1033, Acts of the 71st
1-25 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
1-26 Civil Statutes), is amended to read as follows:
1-27 Sec. 2. Testing. In order to determine compliance with the
1-28 standards and for the enforcement of rules adopted under Sections
1-29 3, 3A, 3B, 4, and 5 of this Act, the commissioner of agriculture
1-30 [comptroller of public accounts] or an authorized representative of
1-31 the commissioner [comptroller, any law enforcement officer at the
1-32 direction of a prosecuting attorney, or the attorney general] may
1-33 test any motor fuel sold in this state, with or without a complaint
1-34 about the fuel. Nothing under this section shall prohibit the
1-35 commissioner from adopting rules relating to the frequency of
1-36 testing motor fuels. In adopting such rules the commissioner shall
1-37 consider the nature of the violation, history of past violations,
1-38 and funds available as provided by Subsection (e), Section 9 of
1-39 this Act.
1-40 SECTION 3. Chapter 1033, Acts of the 71st Legislature,
1-41 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
1-42 Statutes), is amended by adding Sections 3A and 3B to read as
1-43 follows:
1-44 Sec. 3A. SALE OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
1-45 LOWER THAN RATING POSTED ON PUMP LABEL. A motor fuel dealer in
1-46 this state may not sell or offer for sale motor fuel from a motor
1-47 fuel pump if the motor fuel contains and automotive fuel rating
1-48 that is lower than the automotive fuel rating for that motor fuel
1-49 posted on the motor fuel pump.
1-50 Sec. 3B. DELIVERY OF MOTOR FUEL WITH AUTOMOTIVE FUEL RATING
1-51 LOWER THAN RATING CERTIFIED BY TRANSFER. A distributor or supplier
1-52 of motor fuel, as those persons are defined by Section 153.001, Tax
1-53 Code, may not deliver or transfer motor fuel to a motor fuel dealer
1-54 in this state if the fuel contains an automotive fuel rating that
1-55 is lower than the certification of the automotive fuel rating the
1-56 distributor or supplier is required to make to the motor fuel
1-57 dealer under federal law.
1-58 SECTION 4. Subsections (c), (d), and (e), Section 4, Chapter
1-59 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
1-60 8614, Vernon's Texas Civil Statutes), are amended to read as
1-61 follows:
1-62 (c) The commissioner of agriculture [comptroller] by rule
1-63 may prescribe the form of the statement required by Subsection (a)
1-64 of this section.
2-1 (d) The signs required to be posted by a motor fuel dealer
2-2 under Section 3 of this Act and delivered to a motor fuel dealer
2-3 under this section shall be obtained from the commissioner of
2-4 agriculture [comptroller].
2-5 (e) If the commissioner of agriculture [comptroller]
2-6 determines that certain types of motor fuel, such as diesel or
2-7 liquefied petroleum gas, are not sold in this state as mixtures
2-8 with alcohol in sufficient quantities to warrant regulation of
2-9 those deliveries under this Act, the commissioner [comptroller] may
2-10 limit the application of Section 3 of this Act and this section to
2-11 motor fuels sold in sufficient quantity to warrant regulation.
2-12 SECTION 5. Section 5, Chapter 1033, Acts of the 71st
2-13 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
2-14 Civil Statutes), is amended to read as follows:
2-15 Sec. 5. Dealer and delivery documents. (a) Each motor fuel
2-16 dealer in this state shall keep for one year [four years] a copy of
2-17 each manifest, bill of sale, bill of lading, or any other document
2-18 required to be delivered to the dealer by Section 4 of this Act.
2-19 During the first 60 days following delivery of a fuel mixture
2-20 covered by this Act, the dealer shall keep at the station or retail
2-21 outlet where the motor fuel was delivered a copy of each manifest,
2-22 bill of sale, bill of lading, or any other document required to be
2-23 delivered to the dealer by Section 4 of this Act. Each
2-24 distributor, supplier, wholesaler, or jobber of motor fuel shall
2-25 keep for one year [four years] at the principal place of business a
2-26 copy of each manifest, bill of sale, bill of lading, or any other
2-27 document required to be delivered to the dealer by Section 4 of
2-28 this Act. The documents are subject to inspection by the
2-29 commissioner of agriculture [comptroller] or an authorized
2-30 representative of the commissioner [comptroller, any law
2-31 enforcement officer, or the attorney general].
2-32 (b) The commissioner of agriculture [comptroller] by rule
2-33 may prescribe the manner of filing documents required to be kept
2-34 under Subsection (a) of this section, and the time, place, and
2-35 manner of inspection of the documents.
2-36 SECTION 6. Chapter 1033, Acts of the 71st Legislature,
2-37 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
2-38 Statutes), is amended by adding Section 5A to read as follows:
2-39 Sec. 5A. DOCUMENTS RELATING TO POSTINGS OR CERTIFICATION OF
2-40 AUTOMOTIVE FUEL RATINGS. (a) Each motor fuel dealer in this state
2-41 shall keep for at least one year a copy of:
2-42 (1) each delivery ticket or letter of certification on
2-43 which the motor fuel dealer based a posting of the automotive fuel
2-44 rating of motor fuel contained in a motor fuel pump;
2-45 (2) records of any automotive fuel rating
2-46 determination made by the motor fuel dealer under 16 C.F.R. Part
2-47 306; and
2-48 (3) each delivery ticket or letter of certification
2-49 that is required to be delivered to the dealer under 16 C.F.R. Part
2-50 306.
2-51 (b) Each distributor or supplier shall keep for at least one
2-52 year at the principal place of business a copy of each delivery
2-53 ticket or letter of certification required to be delivered by the
2-54 distributor or supplier to a motor fuel dealer in this state under
2-55 16 C.F.R. Part 306.
2-56 (c) A document required to be kept under this section is
2-57 subject to inspection by the commissioner of agriculture or an
2-58 authorized representative of the commissioner.
2-59 SECTION 7. Section 6, Chapter 1033, Acts of the 71st
2-60 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
2-61 Civil Statutes), is amended to read as follows:
2-62 Sec. 6. Civil action. (a) If a motor fuel dealer or a
2-63 distributor, supplier, wholesaler, or jobber of motor fuel violates
2-64 Section 3, 3A, 3B, 4, [or] 5, or 5A of this Act, any motor fuel
2-65 user who has purchased the fuel and who has suffered damages or has
2-66 a complaint about the product may maintain a civil action against
2-67 the motor fuel dealer or the distributor, supplier, wholesaler, or
2-68 jobber of motor fuel. The action may be brought, without regard to
2-69 any specific amount in damages, in the district court in any county
3-1 in which the motor fuel dealer, distributor, supplier, wholesaler,
3-2 or jobber is doing business or in which the motor fuel dealer
3-3 [user] resides.
3-4 (b) In any action under this section, the court shall award
3-5 to the motor fuel user who prevails the amount of actual damages
3-6 and grant such equitable relief as the court determines is
3-7 necessary to remedy the effects of the motor fuel dealer's
3-8 violation or the distributor, supplier, wholesaler, or jobber's
3-9 violation of the provisions of Section 3, 3A, 3B, 4, [or] 5, or 5A
3-10 of this Act, including declaratory judgment, permanent injunctive
3-11 relief, and temporary injunctive relief. In addition, the court
3-12 shall award to the motor fuel user who prevails in an action
3-13 brought hereunder court costs and attorney's fees that are
3-14 reasonable in relation to the amount of work expended.
3-15 (c) In addition to the remedies provided in Subsection (b)
3-16 of this section, if the trier of fact finds that a [the] violation
3-17 of Section 3, 4, or 5 of this Act was committed wilfully or
3-18 knowingly by the defendant, the trier of fact shall award not more
3-19 than three times the amount of actual damages.
3-20 (d) A violation of Section 3, 3A, 3B, 4, [or] 5, or 5A of
3-21 this Act is also a deceptive trade practice under Subchapter E,
3-22 Chapter 17, Business & Commerce Code.
3-23 (e) Any action alleging a violation of Section 3, 3A, 3B, 4,
3-24 [or] 5, or 5A of this Act shall be commenced and prosecuted within
3-25 two years after the date the cause of action accrued.
3-26 SECTION 8. Section 7, Chapter 1033, Acts of the 71st
3-27 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
3-28 Civil Statutes), is amended to read as follows:
3-29 Sec. 7. Civil penalty. A motor fuel dealer or a
3-30 distributor, supplier, wholesaler, or jobber of motor fuel who
3-31 violates a provision of Section 3, 3A, 3B, 4, [or] 5, or 5A of this
3-32 Act forfeits to the state a civil penalty of not less than $200
3-33 [$25] nor more than $10,000 [$200].
3-34 SECTION 9. Subsections (a), (b), and (e), Section 8, Chapter
3-35 1033, Acts of the 71st Legislature, Regular Session, 1989 (Article
3-36 8614, Vernon's Texas Civil Statutes), are amended to read as
3-37 follows:
3-38 (a) A person commits an offense if the person intentionally
3-39 or knowingly violates Section 3, 3A, 3B, 4, [or] 5, or 5A of this
3-40 Act or any rule of the commissioner of agriculture [comptroller]
3-41 prescribed to enforce or implement those sections of this Act.
3-42 (b) A person commits an offense if the person intentionally
3-43 or knowingly:
3-44 (1) refuses to permit a person authorized by Section 2
3-45 of this Act to test any motor fuel sold or held for sale in this
3-46 state;
3-47 (2) refuses to permit inspection of any document
3-48 required to be kept or delivered by this Act upon request of a
3-49 person authorized to inspect such documents by Section 5 or 5A of
3-50 this Act; or
3-51 (3) mutilates, destroys, secretes, forges, or
3-52 falsifies any document, record, report, or sign required to be
3-53 delivered, kept, filed, or posted by this Act or any rule
3-54 prescribed by the commissioner of agriculture [comptroller] for the
3-55 enforcement of this Act.
3-56 (e) The commissioner of agriculture [A user, the
3-57 comptroller] or the [comptroller's] authorized representative of
3-58 the commissioner may request the appropriate prosecuting attorney
3-59 to prosecute a violation of a provision of this Act[, any law
3-60 enforcement officer, or the attorney general may file a complaint
3-61 under this section].
3-62 SECTION 10. Subsections (a), (b), (c), (e), and (f), Section
3-63 9, Chapter 1033, Acts of the 71st Legislature, Regular Session,
3-64 1989 (Article 8614, Vernon's Texas Civil Statutes), are amended to
3-65 read as follows:
3-66 (a) The commissioner of agriculture [comptroller] may adopt
3-67 rules not inconsistent with this Act for the regulation of the sale
3-68 of motor fuels containing ethanol and methanol.
3-69 (b) The comptroller by rule may impose fees for testing,
4-1 inspection, statement or record forms, sale of signs, or the
4-2 performance of other services provided as determined necessary by
4-3 the commissioner of agriculture in the administration of this Act.
4-4 (c) In addition to the fees authorized by Subsection (b) of
4-5 this section, the comptroller by rule may impose a fee to be
4-6 collected on a periodic basis determined by the comptroller from
4-7 each distributor, supplier, wholesaler, and jobber who deals in a
4-8 motor fuel, without regard to whether the motor fuel is subject to
4-9 regulation under this Act, as determined necessary by the
4-10 commissioner of agriculture. The comptroller by rule shall
4-11 prescribe the form for reporting and remitting the fees imposed by
4-12 and under this section.
4-13 (e) The total amount of the fees collected annually under
4-14 this Act may not exceed the lesser of:
4-15 (1) the costs of administering and enforcing the
4-16 provisions of this Act as determined necessary by the commissioner
4-17 of agriculture; or
4-18 (2) $500,000.
4-19 (f) The fees collected under this section may be used only:
4-20 (1) by the comptroller to defray the cost of
4-21 collecting the fees and penalties imposed by this Act but may not
4-22 exceed $25,000 annually; or
4-23 (2) by the commissioner of agriculture for the
4-24 administration and enforcement of this Act [by the comptroller and
4-25 shall be deposited in the Comptroller's Operating Fund 062].
4-26 SECTION 11. Section 10, Chapter 1033, Acts of the 71st
4-27 Legislature, Regular Session, 1989 (Article 8614, Vernon's Texas
4-28 Civil Statutes), is amended to read as follows:
4-29 Sec. 10. CONTRACTING FOR ENFORCEMENT. The commissioner of
4-30 agriculture [comptroller] may contract for the enforcement of this
4-31 Act after due notice.
4-32 SECTION 12. Chapter 1033, Acts of the 71st Legislature,
4-33 Regular Session, 1989 (Article 8614, Vernon's Texas Civil
4-34 Statutes), is amended by adding Section 11 to read as follows:
4-35 Sec. 11. DELIVERY OF DOCUMENTS TO FEDERAL GOVERNMENT. The
4-36 commissioner of agriculture, an authorized representative of the
4-37 commissioner, or the attorney general may make a copy of any
4-38 manifest, bill of sale, bill of lading, delivery ticket, letter of
4-39 certification, or other document the commissioner or attorney
4-40 general is entitled to inspect under this Act. The commissioner,
4-41 an authorized representative of the commissioner, or the attorney
4-42 general may deliver the copy of a document described by this
4-43 section to the federal government for purposes of prosecuting
4-44 persons for violations of federal law relating to the sale or
4-45 transfer of motor fuel.
4-46 SECTION 13. Subsection (c), Section 12.020, Agriculture
4-47 Code, is amended to read as follows:
4-48 (c) The provisions of this code subject to this section and
4-49 the applicable penalty amounts are as follows:
4-50 Provision Maximum Penalty
4-51 Chapters 13, 14, 18, 61, 94, 95,
4-52 101, 102, 103, 121, 125, 132, [and]
4-53 134, and Chapter 1033, Acts of the $ 500
4-54 71st Legislature, Regular Session,
4-55 1989 (Article 8614, Vernon's Texas
4-56 Civil Statutes)
4-57 Subchapter B, Chapter 71
4-58 Chapter 19 $2,000
4-59 Chapters 75 and 76
4-60 Subchapters A and C, Chapter 71
4-61 Chapters 72, 73, and 74 $5,000.
4-62 SECTION 14. The changes in law made by this Act relating to
4-63 a penalty that may be imposed apply only to a violation that occurs
4-64 on or after the effective date of this Act. A violation occurs on
4-65 or after the effective date of this Act if each element of the
4-66 violation occurs on or after that date. A violation that occurs
4-67 before the effective date of this Act is covered by the law in
4-68 effect when the violation occurred, and the former law is continued
4-69 in effect for that purpose.
5-1 SECTION 15. All rules adopted by the comptroller of public
5-2 accounts specifically for the administration of Chapter 1033, Acts
5-3 of the 71st Legislature, Regular Session, 1989 (Article 8614,
5-4 Vernon's Texas Civil Statutes), in effect on the effective date of
5-5 this Act remain in effect until amended or repealed by the
5-6 commissioner of agriculture under authority granted to the
5-7 commissioner by a change in law made by this Act or other law.
5-8 SECTION 16. This Act takes effect September 1, 1997, and
5-9 applies only to deliveries, transfers, or sales of motor fuel that
5-10 occur on or after that date.
5-11 SECTION 17. The importance of this legislation and the
5-12 crowded condition of the calendars in both houses create an
5-13 emergency and an imperative public necessity that the
5-14 constitutional rule requiring bills to be read on three several
5-15 days in each house be suspended, and this rule is hereby suspended.
5-16 * * * * *