1-1     By:  Alexander (Senate Sponsor - Brown)               H.B. No. 1665
 1-2           (In the Senate - Received from the House April 2, 2001;
 1-3     April 3, 2001, read first time and referred to Committee on State
 1-4     Affairs; April 20, 2001, reported favorably, as amended, by the
 1-5     following vote:  Yeas 9, Nays 0; April 20, 2001, sent to printer.)
 1-6     COMMITTEE AMENDMENT NO. 1                           By:  Armbrister
 1-7     H.B. 1665, as engrossed, is amended as follows:
 1-8           (1)  On page 2, line 40, insert the following after the word
 1-9     "home": , ambulance, or fire-fighting vehicle".
1-10           (2)  On page 7, line 63, delete the word "other".
1-11           (3)  On page 7, after line 65, insert the following new
1-12     Section 10 of the bill and renumber all subsequent sections of the
1-13     bill accordingly:
1-14           SECTION 10.  Section 4.02(a), Texas Motor Vehicle Commission
1-15     Code (Article 4413(36), Vernon's Texas Civil Statutes, is amended
1-16     to read as follows:
1-17                 "(a)  An application for a dealer license shall be on a
1-18     form prescribed by the board which shall include the information
1-19     required by Chapter 503, Transportation Code, and information on
1-20     the applicant's financial resources, business integrity, business
1-21     ability and experience, franchise agreement if applicable, physical
1-22     facilities, vehicle inventory, and other factors the board
1-23     considers necessary to determine an applicant's qualifications to
1-24     adequately serve the public.  Notwithstanding other law or rule, a
1-25     request for an application is confidential, is not an open record,
1-26     and is not available for public inspection.
1-27           (4)  On page 14, after line 54, insert the following new
1-28     section to the bill, number the section appropriately, and renumber
1-29     all subsequent sections accordingly:
1-30           SECTION ___.  Section 5.02C, Texas Motor Vehicle Commission
1-31     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
1-32     by adding a new Subsection (e), and by renumbering all subsequent
1-33     subsections of Section 5.02C accordingly:
1-34                 "(e)  For purposes of determining compliance with
1-35     Subsection (d) (2), the price of a dealership and the other terms
1-36     and conditions of a contract for the sale of a dealership are
1-37     reasonable if the purchaser is a franchised dealer who:
1-38                       (1)  has made a significant investment in the
1-39     dealership, subject to loss;
1-40                       (2)  has an ownership interest in the dealership;
1-41     and
1-42                       (3)  operates the dealership under a plan to
1-43     acquire full ownership of the dealership within a reasonable time
1-44     and under reasonable terms and conditions."
1-45           (5)  On page 14, after line 62, insert a new section of the
1-46     bill, number it appropriately, and renumber all subsequent sections
1-47     of the bill accordingly:
1-48           SECTION ___.  Section 5.04(b), Texas Motor Vehicle Commission
1-49     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
1-50     to read as follows:
1-51                 "(b)  The 'make' of a conversion, ambulance, or
1-52     fire-fighting vehicle is that of the chassis manufacturer and the
1-53     'make' of a motor home is that of the motor home manufacturer.
1-54                            A BILL TO BE ENTITLED
1-55                                   AN ACT
1-56     relating to the duties and authority of the Texas Motor Vehicle
1-57     Board and to the regulation of the sale of motor vehicles.
1-58           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-59           SECTION 1.  Section 1.03, Texas Motor Vehicle Commission Code
1-60     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
1-61     read as follows:
1-62           Sec. 1.03.  DEFINITIONS. In this Act:
1-63                 (1)  "Ambulance" means a vehicle used exclusively for
 2-1     providing emergency medical care to an injured or ill person or
 2-2     transporting an injured or ill person, if the vehicle provides:
 2-3                       (A)  a driver's compartment;
 2-4                       (B)  a compartment to accommodate an emergency
 2-5     medical care technician or paramedic and two injured or ill persons
 2-6     so positioned that one of the injured or ill persons can be given
 2-7     intensive life-support during transit;
 2-8                       (C)  equipment and supplies for emergency care of
 2-9     an injured or ill person where the ill person is located or at the
2-10     scene of an injury-producing incident as well as in transit;
2-11                       (D)  two-way radio communication capability; and
2-12                       (E)  equipment for light rescue or extrication
2-13     procedures.
2-14                 (2)  "Board" means the Motor Vehicle Board of the Texas
2-15     Department of Transportation.
2-16                 (3)  "Broker" means a person who, for a fee,
2-17     commission, or other valuable consideration, arranges or offers to
2-18     arrange a transaction involving the sale of a new motor vehicle,
2-19     and who is not:
2-20                       (A)  a franchised dealer or bona fide employee of
2-21     a franchised dealer when acting on behalf of a franchised dealer;
2-22                       (B)  a representative or bona fide employee of a
2-23     representative when acting on behalf of a representative;
2-24                       (C)  a distributor or bona fide employee of a
2-25     distributor when acting on behalf of a distributor; or
2-26                       (D)  at any point in the transaction the bona
2-27     fide owner of the vehicle involved in the transaction.
2-28                 (4)  "Chassis manufacturer" means a person who
2-29     manufactures and produces the frame upon which is mounted the body
2-30     of a motor vehicle.
2-31                 (5)  "Conversion" means a motor vehicle, other than a
2-32     motor home, ambulance, or fire-fighting vehicle, which has been
2-33     substantially modified by a person other than the manufacturer or
2-34     distributor of the chassis of the motor vehicle and which has not
2-35     been the subject of a retail sale.
2-36                 (6)  "Converter" means a person who prior to the retail
2-37     sale of a motor vehicle, assembles, installs, or affixes a body,
2-38     cab, or special equipment to a chassis, or who substantially adds,
2-39     subtracts from, or modifies a previously assembled or manufactured
2-40     motor vehicle other than a motor home.
2-41                 (7)  "Dealer" means a person who holds a general
2-42     distinguishing number issued by the Department pursuant to the
2-43     terms of Chapter 503, Transportation Code.
2-44                 (8)  "Dealership" means the physical premises and
2-45     business facilities on which a franchised dealer operates his
2-46     business, including the sale and repair of motor vehicles.  The
2-47     term includes premises or facilities at which a person engages only
2-48     in the repair of motor vehicles if repairs are performed pursuant
2-49     to the terms of a franchise and a motor vehicle manufacturer's
2-50     warranty.
2-51                 (9)  "Department" means the Texas Department of
2-52     Transportation.
2-53                 (10)  "Director" means the director of the board.
2-54                 (11)  "Distributor" means any person who distributes
2-55     and/or sells new motor vehicles to franchised dealers and who is
2-56     not a manufacturer.
2-57                 (12)  "Executive Director" means the Executive Director
2-58     of the Texas Department of Transportation.
2-59                 (13)  "Fire-fighting vehicle" means a motor vehicle
2-60     which has as its sole purpose transporting fire fighters to the
2-61     scene of a fire and providing equipment to fight the fire, if the
2-62     vehicle is built on a truck chassis with a gross carrying capacity
2-63     of at least 10,000 pounds, to which the following have been
2-64     permanently affixed or mounted:
2-65                       (A)  a water tank with a minimum combined
2-66     capacity of 500 gallons; and
2-67                       (B)  a centrifugal water pump with a minimum
2-68     capacity of not less than 750 gallons per minute at 150 pounds per
2-69     square inch net pump pressure.
 3-1                 (14)  "Franchise" means one or more contracts between a
 3-2     franchised dealer as franchisee, and either a manufacturer or a
 3-3     distributor as franchisor under which (A) the franchisee is granted
 3-4     the right to sell and service new motor vehicles manufactured or
 3-5     distributed by the franchisor or only service motor vehicles
 3-6     pursuant to the terms of a franchise and a manufacturer's warranty;
 3-7     (B) the franchisee as an independent business is a component of
 3-8     franchisor's distribution system; (C) the franchisee is
 3-9     substantially associated with franchisor's trademark, tradename and
3-10     commercial symbol; (D) the franchisee's business is substantially
3-11     reliant on franchisor for a continued supply of motor vehicles,
3-12     parts, and accessories for the conduct of its business; or (E) any
3-13     right, duty, or obligation granted or imposed by this Act is
3-14     affected.  The term includes a written communication from a
3-15     franchisor to a franchisee by which a duty is imposed on the
3-16     franchisee.
3-17                 (15)  "Franchised dealer" means any person who holds a
3-18     franchised motor vehicle dealer's license [general distinguishing
3-19     number] issued by the Department pursuant to the terms of Chapter
3-20     503, Transportation Code, and who is engaged in the business of
3-21     buying, selling, or exchanging new motor vehicles and servicing or
3-22     repairing motor vehicles pursuant to the terms of a franchise and a
3-23     manufacturer's warranty at an established and permanent place of
3-24     business pursuant to a franchise in effect with a manufacturer or
3-25     distributor.
3-26                 (16)  "General distinguishing number" means a dealer
3-27     license issued by the Department pursuant to the terms of Chapter
3-28     503, Transportation Code.
3-29                 (17)  "Lease" means a transfer of the right to
3-30     possession and use of a motor vehicle for a term in excess of 180
3-31     days in return for consideration.
3-32                 (18)  "Lease facilitator" means a person, other than a
3-33     franchised dealer or a bona fide employee of a dealer, or a vehicle
3-34     lessor or a bona fide employee of a vehicle lessor, who:
3-35                       (A)  holds himself out to any person as a "motor
3-36     vehicle leasing company" or  "motor vehicle leasing agent" or uses
3-37     a similar title, for the purpose of soliciting or procuring a
3-38     person to enter into a contract or agreement to become the lessee
3-39     of a vehicle that is not, and will not be, titled in the name of
3-40     and registered to the lease facilitator; or
3-41                       (B)  otherwise solicits a person to enter into a
3-42     contract or agreement to become a lessee of a vehicle that is not,
3-43     and will not be, titled in the name of and registered to the lease
3-44     facilitator, or who is otherwise engaged in the business of
3-45     securing lessees or prospective lessees of motor vehicles that are
3-46     not, and will not be, titled in the name of and registered to the
3-47     facilitator.
3-48                 (19)  "Lessor" means a person who, pursuant to the
3-49     terms of a lease, transfers to another person the right to
3-50     possession and use of a motor vehicle titled in the name of the
3-51     lessor.
3-52                 (20)  "Licensee" means a person who holds a license or
3-53     general distinguishing number issued by the Board under the terms
3-54     of this Act or Chapter 503, Transportation Code.
3-55                 (21)  "Manufacturer" means any person who manufactures
3-56     or assembles new motor vehicles.
3-57                 (22)  "Manufacturer's statement of origin" means a
3-58     certificate on a form prescribed by the Department showing the
3-59     original transfer of a new motor vehicle from the manufacturer to
3-60     the original purchaser.
3-61                 (23)  "Motor home" means a motor vehicle which is
3-62     designed to provide temporary living quarters and which:
3-63                       (A)  is built onto as an integral part of, or is
3-64     permanently attached to, a motor vehicle chassis; and
3-65                       (B)  contains at least four of the following
3-66     independent life support systems if each is permanently installed
3-67     and designed to be removed only for purposes of repair or
3-68     replacement and meets the standards of the American National
3-69     Standards Institute, Standards for Recreational Vehicles:
 4-1                             (i)  a cooking facility with an on-board
 4-2     fuel source;
 4-3                             (ii)  a gas or electric refrigerator;
 4-4                             (iii)  a toilet with exterior evacuation;
 4-5                             (iv)  a heating or air conditioning system
 4-6     with an on-board power or fuel source separate from the vehicle
 4-7     engine;
 4-8                             (v)  a potable water supply system that
 4-9     includes at least a sink, a faucet, and a water tank with an
4-10     exterior service supply connection;
4-11                             (vi)  a 110-125 volt electric power supply.
4-12                 (24)  "Motor home manufacturer" means a person other
4-13     than the manufacturer of the chassis of a motor vehicle who, prior
4-14     to the retail sale of the motor vehicle, performs modifications on
4-15     the chassis that result in the finished product being classified as
4-16     a motor home.
4-17                 (25)  "Motor vehicle" means:
4-18                       (A)  every fully self-propelled vehicle which has
4-19     as its primary purpose the transport of a person or persons, or
4-20     property, on a public highway, and having two or more wheels;
4-21                       (B)  every two or more wheeled fully
4-22     self-propelled, titled vehicle which has as its primary purpose the
4-23     transport of a person or persons or property and is not
4-24     manufactured for use on public streets, roads, or highways;
4-25                       (C)  an engine, transmission, or rear axle
4-26     manufactured for installation in a vehicle having as its primary
4-27     purpose the transport of a person or persons or property on a
4-28     public highway and having a gross vehicle weight rating of more
4-29     than 16,000 pounds, whether or not attached to a vehicle chassis;
4-30     or
4-31                       (D)  a towable recreational vehicle.
4-32                 (26)  "New motor vehicle" means a motor vehicle which
4-33     has not been the subject of a "retail sale" without regard to the
4-34     mileage of the vehicle.
4-35                 (27)  "Nonfranchised dealer" means a person who holds
4-36     an independent motor vehicle dealer's general distinguishing number
4-37     or a wholesale motor vehicle dealer's general distinguishing number
4-38     issued by the Department pursuant to the terms of Chapter 503,
4-39     Transportation Code.
4-40                 (28)  "Party" means each person or agency named or
4-41     admitted as a party and whose legal rights, duties, or privileges
4-42     are to be determined by the board after an opportunity for
4-43     adjudicative hearing.
4-44                 (29)  "Person" means a natural person, partnership,
4-45     corporation, association, trust, estate, or any other legal entity.
4-46                 (30)  "Relocation" means the transfer of an existing
4-47     dealership operation to facilities at a different location,
4-48     including a transfer which results in a consolidation or dualing of
4-49     an existing dealer's operation.
4-50                 (31)  "Representative" means any person who is or acts
4-51     as an agent, employee or representative of a manufacturer,
4-52     distributor, or converter who performs any duties in this State
4-53     relating to promoting the distribution and/or sale of new motor
4-54     vehicles or contacts dealers in this State on behalf of a
4-55     manufacturer, distributor, or converter.
4-56                 (32)  "Retail sale" means the sale of a motor vehicle
4-57     except:
4-58                       (A)  a sale in which the purchaser acquires a
4-59     vehicle for the purpose of resale; or
4-60                       (B)  a sale of a vehicle that is operated under
4-61     and in accordance with  Section 503.061, Transportation Code.
4-62                 (33)  "Rule" means a statement by the board of general
4-63     and future applicability that implements, interprets, or prescribes
4-64     law or policy or describes the organization or procedural practice
4-65     requirements of the board.  The term includes the amendment or
4-66     repeal of a prior rule, but does not include statements concerning
4-67     only the internal management of the board which do not affect the
4-68     rights of a person not connected with the board.
4-69                 (34)  "Towable recreational vehicle" means a
 5-1     nonmotorized vehicle originally designed and manufactured for the
 5-2     primary purpose of providing temporary human habitation in
 5-3     conjunction with recreational, camping, or seasonal use and:
 5-4                       (A)  is titled and registered with the Texas
 5-5     Department of Transportation as a travel trailer through the county
 5-6     tax assessor-collector;
 5-7                       (B)  is permanently built on a single chassis;
 5-8                       (C)  contains one or more life support systems;
 5-9     and
5-10                       (D)  is designed to be towable by another motor
5-11     vehicle.
5-12                 (35)  "Transportation Commission" means the Texas
5-13     Transportation Commission of the Texas Department of
5-14     Transportation.
5-15                 (36)  "Warranty work" means parts, labor, and any other
5-16     expenses incurred by a franchised dealer in complying with the
5-17     terms of a manufacturer's or distributor's warranty.
5-18           SECTION 2.  Section 2.03, Texas Motor Vehicle Commission Code
5-19     (Article 4413(36), Vernon's Texas Civil Statutes), is amended by
5-20     amending Subsections (b) and (c) and by adding Subsection (d) to
5-21     read as follows:
5-22           (b)  Except as provided by this section, the office of a
5-23     member is automatically vacated and shall be filled as any other
5-24     vacancy, if:
5-25                 (1)  the member becomes a licensee under this Act;
5-26                 (2)  the member acquires an interest in a business that
5-27     manufactures, distributes, converts, leases, or sells motor
5-28     vehicles;
5-29                 (3)  the member becomes an [officer,] employee[,] or
5-30     paid consultant of a trade association in the motor vehicle
5-31     industry; or
5-32                 (4)  a person related to the member within the first
5-33     degree by consanguinity or affinity, as determined under Chapter
5-34     573, Government Code, becomes an [officer,] employee[,] or paid
5-35     consultant of a trade association in the motor vehicle industry,
5-36     becomes a licensee under this Act, or acquires an interest in a
5-37     business that manufactures, distributes, converts, leases, or sells
5-38     motor vehicles.
5-39           (c)  Notwithstanding the terms of Subsection (b) of this
5-40     section, the office of a member appointed to the board pursuant to
5-41     the terms of Section 2.02(b)(1) [2.02(c)(1)] of this Act is not
5-42     vacated by virtue of the fact that the member, or a person related
5-43     to the member within the first degree by consanguinity or affinity,
5-44     as determined under Chapter 573, Government Code, subsequently
5-45     acquires an interest in a dealership.
5-46           (d)  Notwithstanding the terms of this section, a person is
5-47     not disqualified to be appointed to or serve on the board because
5-48     that person, or another person, owns, directly or indirectly,
5-49     shares of stock in a publicly traded company that manufactures or
5-50     distributes motor vehicles, if the ownership interest is not
5-51     substantial.
5-52           SECTION 3.  Section 2.08(d), Texas Motor Vehicle Commission
5-53     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
5-54     to read as follows:
5-55           (d)  A member of the board appointed pursuant to the terms of
5-56     Section 2.02(b) [2.02(c)] of this Act may not vote on an issue
5-57     involving a dispute in which both a dealer and a manufacturer are
5-58     named parties.
5-59           SECTION 4.  Section 2.12(c), Texas Motor Vehicle Commission
5-60     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
5-61     to read as follows:
5-62           (c)  With regard to each complaint filed by the board for the
5-63     purpose of enforcing this Act [with the Commission], the board
5-64     [Commission] shall keep the following information:
5-65                 (1)  the date the complaint is filed;
5-66                 (2)  the name of the person filing the complaint;
5-67                 (3)  the subject matter of the complaint;
5-68                 (4)  a record of each person contacted in relation to
5-69     the complaint;
 6-1                 (5)  a summary of the results of the review or
 6-2     investigation of the complaint; and
 6-3                 (6)  if the Commission takes no action on the
 6-4     complaint, an explanation of the reasons that no action was taken.
 6-5           SECTION 5.  Section 3.01(a), Texas Motor Vehicle Commission
 6-6     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 6-7     to read as follows:
 6-8           (a)  The board has the [general] exclusive, [and] original
 6-9     [power and] jurisdiction to regulate those [all] aspects of the
6-10     distribution, sale, and leasing of motor vehicles as governed by
6-11     this Act and to do all things, whether specifically designated in
6-12     this Act or implied herein, or necessary or convenient to the
6-13     exercise of this power and jurisdiction, including the original
6-14     jurisdiction to determine questions of its own jurisdiction.  In
6-15     addition to the other duties placed on the board by this Act, the
6-16     board shall enforce and administer the terms of Chapter 503,
6-17     Transportation Code.
6-18           SECTION 6.  Section 3.03, Texas Motor Vehicle Commission Code
6-19     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
6-20     read as follows:
6-21           Sec. 3.03.  GENERAL BOARD [COMMISSION] POWERS. (a)  The board
6-22     [Commission] shall have and may, in its discretion and
6-23     notwithstanding any other provision of law that is inconsistent
6-24     with this Act, exercise the powers set forth in this Act, and shall
6-25     have all other powers necessary, incidental, or convenient to carry
6-26     out its duties and effectuate its express powers and duties.  These
6-27     powers and duties include the power to initiate and conduct
6-28     proceedings, investigations, and hearings, administer oaths,
6-29     receive evidence and pleadings, issue subpoenas to compel the
6-30     attendance of any person, order the production of any tangible
6-31     property, including papers, records, and documents, make findings
6-32     of fact on all factual issues arising out of any proceeding
6-33     initiated under this Act, specify, govern, and control appearance,
6-34     practice, and procedure before the Commission, issue rules,
6-35     conclusions of law, decisions, including declaratory decisions or
6-36     orders, enter into contracts or execute instruments, retain
6-37     counsel, utilize the services of the Attorney General of the State
6-38     of Texas and thereafter institute and direct the conduct of legal
6-39     proceedings in any forum or obtain other professional services as
6-40     may be necessary and convenient, sanction for contempt, assess and
6-41     collect fees and costs including attorney's fees, issue, suspend,
6-42     and revoke licenses, prohibit and regulate acts and practices in
6-43     connection with the distribution and sale of motor vehicles and
6-44     warranty performance obligations, issue cease and desist orders in
6-45     the nature of temporary and permanent injunctions, and levy civil
6-46     penalties.  The board has the authority to enforce its order.  The
6-47     authority vested in the board by this section includes the
6-48     authority to enter an order requiring that a person:
6-49                 (1)  pay costs and expenses of a party in connection
6-50     with an order entered pursuant to the authority of Section
6-51     5.02(b)(16);
6-52                 (2)  perform an act other than the payment of money; or
6-53                 (3)  refrain from performing an act.
6-54           (b)  The board may conduct hearings in contested cases
6-55     brought pursuant to, and as provided by, Chapter 503,
6-56     Transportation Code.  The procedures applicable to a hearing
6-57     conducted under this Subsection, and the disposition of a final
6-58     order after a hearing conducted under this Subsection, are those
6-59     applicable to a hearing conducted as provided by Section 6.07(e)(2)
6-60     of this Act.  A decision or final order issued under this
6-61     Subsection is final, and no appeal may, as a matter of right, be
6-62     made to the Texas Transportation Commission.  The board
6-63     [department] may adopt rules applicable to procedures, hearings,
6-64     and enforcement proceedings in an action brought pursuant to this
6-65     Subsection.
6-66           SECTION 7.  Section 3.05(a), Texas Motor Vehicle Commission
6-67     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
6-68     to read as follows:
6-69           (a)  Whenever the Board has reason to believe, through
 7-1     receipt of a complaint or otherwise, that a violation of this Act
 7-2     or a Board rule, order, or decision has occurred or is likely to
 7-3     occur, the Board shall conduct an investigation unless it
 7-4     determines that a complaint is frivolous or for the purpose of
 7-5     harassment.  If the Board's investigation establishes that a
 7-6     violation of this Act or a Board rule, order, or decision has
 7-7     occurred or is likely to occur, the Board shall institute
 7-8     proceedings as it deems appropriate to enforce this Act or its
 7-9     rules, orders, and decisions.  Notwithstanding other provisions of
7-10     this Act, the Board is not required to pay a filing fee when filing
7-11     a complaint or other enforcement action.
7-12           SECTION 8.  Section 3.08, Texas Motor Vehicle Commission Code
7-13     (Article 4413(36), Vernon's Texas Civil Statutes), is amended by
7-14     adding Subsection (k) to read as follows:
7-15           (k)  Except as provided by this subsection, a licensee may
7-16     not file an action with the board after the expiration of four
7-17     years after the date the action accrues.  The limitations period
7-18     provided by this subsection may be extended for a period not to
7-19     exceed 180 days on a showing that the failure timely to commence an
7-20     action was caused by reliance on fraudulent statements or
7-21     inducements made by a party for the purpose of inducing a party to
7-22     refrain from bringing an action.  This subsection does not apply
7-23     to:
7-24                 (1)  an action with respect to which this code or rules
7-25     of the board establish specific procedural time limits; or
7-26                 (2)  an action brought under Subsection (i) of this
7-27     section.
7-28           SECTION 9.  Section 4.01(a), Texas Motor Vehicle Commission
7-29     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
7-30     to read as follows:
7-31           (a)  Except as provided by this Section, no person shall
7-32     engage in business as, serve in the capacity of, or act as a
7-33     dealer, manufacturer, distributor, converter, representative,
7-34     lessor, or lease facilitator in this State or perform or offer to
7-35     perform repair services on a motor vehicle pursuant to the terms of
7-36     a franchise and a motor vehicle manufacturer's warranty, whether or
7-37     not the person sells or offers to sell motor vehicles at the same
7-38     location, without obtaining a license therefor as provided in this
7-39     Act and the rules of the board [Commission].  All new license
7-40     applications shall be reviewed and, in the discretion of the board
7-41     [Commission], investigated to determine compliance with the
7-42     provisions of this Act.  License renewals may be administratively
7-43     granted unless protested.  Licenses issued by the board
7-44     [Commission] shall expire one year from date of issuance.  All
7-45     licenses and renewals thereof are issued subject to all provisions
7-46     of this Act and rules of the board [Commission] in effect upon the
7-47     date of issuance as well as all future provisions of this Act and
7-48     rules which may become effective during the term of the license.  A
7-49     lessor or lease facilitator is not required to obtain a lessor or
7-50     lease facilitator license or pay a license fee under this code if
7-51     the lessor or lease facilitator is a state or federally chartered
7-52     financial institution or a regulated subsidiary of a state or
7-53     federally chartered financial institution.  A trust or other entity
7-54     that owns an interest in a lease and the vehicle that is the
7-55     subject of the lease is not required to obtain a lessor license or
7-56     lease facilitator license or pay a license fee with respect to a
7-57     lease initiated, managed, serviced, and administered by a licensed
7-58     lessor.  A franchised dealer licensed under this code is not
7-59     required to obtain a lessor or lease facilitator license or pay a
7-60     license fee under this code to engage in the business of leasing
7-61     motor vehicles, including new motor vehicles, that the dealer is
7-62     licensed to sell.  The board may issue a duplicate license for any
7-63     other license it issues, charge a fee for the issuance of a
7-64     duplicate license, and adopt rules applicable to the issuance of a
7-65     duplicate license.
7-66           SECTION 10.  Section 4.03(c), Texas Motor Vehicle Commission
7-67     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
7-68     read as follows:
7-69           (c)  Each application for a manufacturer's license shall
 8-1     include an instrument setting forth the terms and conditions of all
 8-2     warranty agreements in force and effect on the products it sells in
 8-3     this State so that the board [Commission] may ascertain the degree
 8-4     of protection afforded the retail purchasers of its products and
 8-5     the obligations of its franchised dealers in connection therewith
 8-6     as well as the basis for compensating its franchised dealers for
 8-7     labor, parts and other expenses incurred in connection with such
 8-8     manufacturer's warranty agreements.  Each application shall include
 8-9     a statement regarding the manufacturer's compliance with Sections
8-10     [Section] 5.02, 5.02A, 5.02B, and 5.02C of this Act.  In addition,
8-11     each manufacturer's license application shall specify the delivery
8-12     and preparation obligations of its franchised dealers prior to
8-13     delivery of a new motor vehicle to a retail purchaser and the
8-14     schedule of compensation to be paid to its franchised dealers for
8-15     the work and service performed by them in connection with such
8-16     delivery.
8-17           SECTION 11.  Section 4.05(a), Texas Motor Vehicle Commission
8-18     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
8-19     to read as follows:
8-20           (a)  The annual license fees for licenses issued hereunder
8-21     shall be as follows:
8-22                 (1)  For each manufacturer and distributor, $900 plus
8-23     $20 for each individual dealer franchised by the manufacturer or
8-24     distributor.
8-25                 (2)  For each franchised dealer who sold 200 or fewer
8-26     new motor vehicles during the preceding calendar year, $175.
8-27                 (3)  For each franchised dealer who sold more than 200,
8-28     but not more than 400, new motor vehicles during the preceding
8-29     calendar year, $275.
8-30                 (4)  For each franchised dealer who sold more than 400,
8-31     but not more than 800, new motor vehicles during the preceding
8-32     calendar year, $400.
8-33                 (5)  For each franchised dealer who sold more than 800
8-34     but not more than 1,200 new motor vehicles during the preceding
8-35     calendar year, $500.
8-36                 (6)  For each franchised dealer who sold more than
8-37     1,200 but not more than 1,600 new motor vehicles during the
8-38     preceding calendar year, $625.
8-39                 (7)  For each franchised dealer who sold more than
8-40     1,600 new motor vehicles during the preceding calendar year, $750.
8-41                 (8)  For each location separate from his dealership at
8-42     which a franchised dealer offers no motor vehicle for sale, but
8-43     performs warranty service on vehicles the dealer is franchised and
8-44     licensed to sell, $100.
8-45                 (9)  For each amendment to a [dealer's] license, $25.
8-46                 (10)  For each representative, $100.
8-47                 (11)  For each converter, $375.
8-48                 (12)  For each lessor who leased 200 or fewer motor
8-49     vehicles during the preceding calendar year, $175.
8-50                 (13)  For each lessor who leased more than 200 but not
8-51     more than 400 motor vehicles during the preceding calendar year,
8-52     $275.
8-53                 (14)  For each lessor who leased more than 400 but not
8-54     more than 800 motor vehicles during the preceding calendar year,
8-55     $400.
8-56                 (15)  For each lessor who leased more than 800 but not
8-57     more than 1,200 motor vehicles during the preceding calendar year,
8-58     $500.
8-59                 (16)  For each lessor who leased more than 1,200 but
8-60     not more than 1,600 motor vehicles during the preceding calendar
8-61     year, $625.
8-62                 (17)  For each lessor who leased more than 1,600 motor
8-63     vehicles during the preceding calendar year, $750.
8-64                 (18)  For each lease facilitator, $375.
8-65                 (19)  For each duplicate license, $50.
8-66           SECTION 12.  Section 4.06(a), Texas Motor Vehicle Commission
8-67     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
8-68     to read as follows:
8-69           (a)  The board may deny an application for a license, revoke
 9-1     or suspend an outstanding license, or place on probation a person
 9-2     whose license has been suspended, or reprimand a licensee, for any
 9-3     of the following reasons:
 9-4                 (1)  Unfitness of an applicant or licensee under
 9-5     standards set out in this Act or in board rules.
 9-6                 (2)  Material misrepresentation in any application or
 9-7     other information filed under this Act or board rules.
 9-8                 (3)  Failure to comply with this Act or any board rule
 9-9     or order promulgated by the board.
9-10                 (4)  Failure to maintain the qualifications for a
9-11     license.
9-12                 (5)  Willfully defrauding any [retail] buyer.
9-13                 (6)  Violation of any law relating to the sale,
9-14     distribution, financing, or insuring of motor vehicles.
9-15                 (7)  Any act or omission by an officer, director,
9-16     partner, trustee, or other person acting in a representative
9-17     capacity for a licensee which act or omission would be cause for
9-18     denying, revoking, or suspending a license to an individual
9-19     licensee.
9-20                 (8)  Failure to fulfill written agreements between the
9-21     licensee and a retail buyer of a motor vehicle.
9-22           SECTION 13.  Section 5.02(b), Texas Motor Vehicle Commission
9-23     Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
9-24     to read as follows:
9-25           (b)  It is unlawful for any manufacturer, distributor, or
9-26     representative to:
9-27                 (1)  Require or attempt to require any dealer to order,
9-28     accept delivery of or pay anything of value, directly or
9-29     indirectly, for any motor vehicle, appliance, part, accessory or
9-30     any other commodity unless voluntarily ordered or contracted for by
9-31     such dealer.
9-32                 (2)  Refuse or fail to deliver, in reasonable
9-33     quantities and within a reasonable time, to a dealer having a
9-34     franchise agreement for the retail sale of any motor vehicles sold
9-35     or distributed by such manufacturer, distributor, or
9-36     representative, any new motor vehicle or parts or accessories to
9-37     new motor vehicles as are covered by such franchise if such
9-38     vehicle, parts or accessories are publicly advertised as being
9-39     available for delivery or are actually being delivered; provided,
9-40     however, this provision is not violated if such failure is caused
9-41     by acts of God, work stoppage or delays due to strikes or labor
9-42     disputes, freight embargoes or other causes beyond the control of
9-43     the manufacturer, distributor, or representative.
9-44                 (3)  Notwithstanding the terms of any franchise
9-45     agreement:
9-46                       (A)  Terminate or refuse to continue any
9-47     franchise with a dealer or directly or indirectly force or attempt
9-48     to force a dealer to relocate or discontinue a line-make or parts
9-49     or products related to that line-make unless all of the following
9-50     conditions are met:
9-51                             (i)  the dealer and the board have received
9-52     written notice by registered or certified mail from the
9-53     manufacturer, distributor, or representative not less than 60 days
9-54     before the effective date of termination or noncontinuance setting
9-55     forth the specific grounds for termination or noncontinuance; and
9-56                             (ii)  the written notice contains on the
9-57     first page thereof a conspicuous statement which reads as follows:
9-58     "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE
9-59     TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS, AND HAVE A HEARING IN
9-60     WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR NONCONTINUANCE OF
9-61     YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR VEHICLE
9-62     COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and
9-63                             (iii)  the manufacturer, distributor, or
9-64     representative has received the informed, written consent of the
9-65     affected dealer or the appropriate period for the affected dealer
9-66     to protest the proposed franchise termination or noncontinuance has
9-67     lapsed; or
9-68                             (iv)  if the affected dealer files a
9-69     protest with the board within the greater of (1) 60 days after
 10-1    receiving its 60-day notice of proposed termination or
 10-2    noncontinuance or (2) the time specified in such notice, the board
 10-3    determines that the party seeking to terminate or not continue a
 10-4    dealer's franchise has established by a preponderance of the
 10-5    evidence, at a hearing called by the board, that there is good
 10-6    cause for the proposed termination or noncontinuance.
 10-7                            (v)  Notwithstanding Subdivisions (3)(A)(i)
 10-8    and (3)(A)(iv) of this section, notice may be made not less than 15
 10-9    days prior to the effective date of termination or noncontinuance
10-10    if a licensed dealer fails to conduct its customary sales and
10-11    service operations during its customary business hours for seven
10-12    consecutive business days unless such failure is caused by an act
10-13    of God, work stoppage or delays due to strikes or labor disputes,
10-14    an order of the board, or other causes beyond the control of the
10-15    dealer.
10-16                      (B)  Whenever a dealer files a timely protest to
10-17    a proposed franchise termination or noncontinuance, the board shall
10-18    notify the party seeking to terminate or to not continue the
10-19    protesting dealer's franchise that a timely protest has been filed,
10-20    that a hearing is required in accordance with this Act, and that
10-21    the party who gave the dealer notice of termination or
10-22    noncontinuance of the franchise may not terminate or refuse to
10-23    continue the franchise until the board issues its final decision or
10-24    order.
10-25                      (C)  If a franchise is terminated or not
10-26    continued, another franchise in the same line-make will be
10-27    established within a reasonable time unless it is shown to the
10-28    board by a preponderance of the evidence that the community or
10-29    trade area cannot reasonably support such a dealership.  If this
10-30    showing is made, no dealer license shall be thereafter issued in
10-31    the same area unless a change in circumstances is established.
10-32                (4)  Notwithstanding the terms of any franchise
10-33    agreement, modify or replace a franchise if the modification or
10-34    replacement would adversely affect, to a substantial degree, the
10-35    dealer's sales, investment, or obligations to provide service to
10-36    the public, unless the manufacturer, distributor, or representative
10-37    has first given the board and each affected dealer written notice
10-38    by registered or certified mail of any such action 60 days in
10-39    advance of the modification or replacement.  The written notice
10-40    shall contain on the first page thereof a conspicuous statement
10-41    which reads as follows:  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO
10-42    FILE A PROTEST WITH THE TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS,
10-43    AND HAVE A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED
10-44    MODIFICATION OR REPLACEMENT OF YOUR FRANCHISE UNDER THE TERMS OF
10-45    THE TEXAS MOTOR VEHICLE COMMISSION CODE IF YOU OPPOSE THIS ACTION."
10-46    Within the greater of (1) 60 days after receipt of such notice or
10-47    (2) the time specified in such notice, a dealer may file a protest
10-48    with the board and the modification or replacement shall not become
10-49    effective unless and until the board determines that the party
10-50    seeking to modify or replace a franchise has demonstrated by a
10-51    preponderance of the evidence that there is good cause for the
10-52    modification or replacement.  The prior franchise shall continue in
10-53    effect until the protest is resolved by the board.
10-54                (5)  Notwithstanding the terms of any franchise
10-55    agreement, in determining whether good cause has been established
10-56    for modifying, replacing, terminating, or refusing to continue a
10-57    franchise, or for forcing or attempting to force a dealer to
10-58    relocate or discontinue a line-make or parts or products related to
10-59    that line-make, the board shall consider all the existing
10-60    circumstances including, without limitation by the enumeration
10-61    herein, all the following:
10-62                      (A)  the dealer's sales in relation to the sales
10-63    in the market;
10-64                      (B)  the dealer's investment and obligations;
10-65                      (C)  injury or benefit to the public;
10-66                      (D)  the adequacy of the dealer's service
10-67    facilities, equipment, parts, and personnel in relation to those of
10-68    other dealers of new motor vehicles of the same line-make;
10-69                      (E)  whether warranties are being honored by the
 11-1    dealer;
 11-2                      (F)  the parties' compliance with their franchise
 11-3    agreement except to the extent that the franchise agreement is in
 11-4    conflict with this Act; and
 11-5                      (G)  the enforceability of the franchise
 11-6    agreement from a public policy standpoint, including, without
 11-7    limitation, issues of the reasonableness of the franchise
 11-8    agreement's terms, oppression, adhesion, and the relative
 11-9    bargaining power of the parties.
11-10          Good cause shall not be shown solely by the desire of a
11-11    manufacturer, distributor, or representative for market
11-12    penetration.
11-13                (6)  Use any false, deceptive or misleading
11-14    advertising.
11-15                (7)  Notwithstanding the terms of any franchise
11-16    agreement, prevent any dealer from reasonably changing the capital
11-17    structure of his dealership or the means by or through which he
11-18    finances the operation thereof, provided that the dealer meets
11-19    reasonable capital requirements.
11-20                (8)  Notwithstanding the terms of any franchise
11-21    agreement, fail to give effect to or attempt to prevent any sale or
11-22    transfer of a dealer, dealership or franchise or interest therein
11-23    or management thereof except as provided by Section 5.01B.
11-24                (9)  Notwithstanding the terms of any franchise
11-25    agreement, require or attempt to require that a dealer assign to or
11-26    act as an agent for any manufacturer, distributor or representative
11-27    in the securing of promissory notes and security agreements given
11-28    in connection with the sale or purchase of new motor vehicles or
11-29    the securing of policies of insurance on or having to do with the
11-30    operation of vehicles sold.
11-31                (10)  Notwithstanding the terms of any franchise
11-32    agreement, fail or refuse, after complaint and hearing, to perform
11-33    the obligations placed on the manufacturer in connection with the
11-34    delivery, preparation and warranty of a new motor vehicle as
11-35    provided in the manufacturer's warranty, preparation, and delivery
11-36    agreements on file with the board.
11-37                (11)  Notwithstanding the terms of any franchise
11-38    agreement or provision of law in conflict with this section, the
11-39    dealer's delivery, preparation, and warranty obligations as filed
11-40    with the board shall constitute the dealer's sole responsibility
11-41    for product liability as between the dealer and manufacturer or
11-42    distributor, and, except for a loss caused by the dealer's failure
11-43    to adhere to these obligations, a loss caused by the dealer's
11-44    negligence or intentional misconduct, or a loss caused by the
11-45    dealer's modification of a product without manufacturer or
11-46    distributor authorization, the manufacturer or distributor shall
11-47    reimburse the dealer for all loss incurred by the dealer, including
11-48    legal fees, court costs, and damages, as a result of the dealer
11-49    having been named a party in a product liability action.
11-50                (12)  Operate as a manufacturer, distributor, or
11-51    representative without a currently valid license from the board or
11-52    otherwise violate this Act or rules promulgated by the board
11-53    hereunder.
11-54                (13)  Notwithstanding the terms of any franchise
11-55    agreement, to prevent or refuse to honor the succession to a
11-56    dealership by any legal heir or devisee under the will of a dealer
11-57    or under the laws of descent and distribution of this State unless
11-58    it is shown to the board, after notice and hearing, that the result
11-59    of such succession will be detrimental to the public interest and
11-60    to the representation of the manufacturer or distributor; provided,
11-61    however, nothing herein shall prevent a dealer, during his
11-62    lifetime, from designating any person as his successor dealer, by
11-63    written instrument filed with the manufacturer or distributor.
11-64                (14)  Notwithstanding the terms of any franchise
11-65    agreement, require that a dealer pay or assume, directly or
11-66    indirectly, any part of any refund, rebate, discount, or other
11-67    financial adjustment made by the manufacturer, distributor, or
11-68    representative to, or in favor of, any customer of a dealer, unless
11-69    voluntarily agreed to by such dealer.
 12-1                (15)  Notwithstanding the terms of any franchise
 12-2    agreement, deny or withhold approval of a written application to
 12-3    relocate a franchise unless (A)  the applicant has received written
 12-4    notice of the denial or withholding of approval within 60 days
 12-5    after receipt of the application containing information reasonably
 12-6    necessary to enable the manufacturer or distributor to adequately
 12-7    evaluate the application, and if (B) the applicant files a protest
 12-8    with the board and the manufacturer or distributor establishes by a
 12-9    preponderance of the evidence at a hearing called by the board that
12-10    the grounds for the denial or withholding of approval of the
12-11    relocation are reasonable.
12-12                (16)  Notwithstanding the terms of any franchise
12-13    agreement, fail to pay to a dealer or any lienholder in accordance
12-14    with their respective interest after the termination of a
12-15    franchise:
12-16                      (A)  the dealer cost of each new motor vehicle in
12-17    the dealer's inventory with mileage of 6,000 miles or less,
12-18    exclusive of mileage placed on the motor vehicle before it was
12-19    delivered to the dealer, reduced by the net discount value of each,
12-20    where "net discount value" is determined according to the following
12-21    formula:  net cost multiplied by total mileage, exclusive of
12-22    mileage placed on the motor vehicle before it was delivered to the
12-23    dealer, divided by 100,000, and where "net cost" equals the dealer
12-24    cost plus any charges by the manufacturer, distributor, or
12-25    representative for distribution, delivery, and taxes, less all
12-26    allowances paid to the dealer by the manufacturer, distributor, or
12-27    representative for new, unsold, undamaged, and complete motor
12-28    vehicles of current model year or one year prior model year in the
12-29    dealer's inventory, except that if a vehicle cannot be reduced by
12-30    the net discount value, the manufacturer or distributor shall pay
12-31    the dealer the net cost of the vehicle;
12-32                      (B)  the dealer cost of each new, unused,
12-33    undamaged, and unsold part or accessory if the part or accessory is
12-34    in the current parts catalogue and is still in the original,
12-35    resalable merchandising package and in unbroken lots, except that
12-36    in the case of sheet metal, a comparable substitute for the
12-37    original package may be used, and if the part or accessory was
12-38    purchased by the dealer either directly from the manufacturer or
12-39    distributor or from an outgoing authorized dealer as a part of the
12-40    dealer's initial inventory;
12-41                      (C)  the fair market value of each undamaged sign
12-42    owned by the dealer which bears a trademark or tradename used or
12-43    claimed by the manufacturer, distributor, or representative if the
12-44    sign was purchased from or purchased at the request of the
12-45    manufacturer, distributor, or representative;
12-46                      (D)  the fair market value of all special tools,
12-47    data processing equipment, and automotive service equipment owned
12-48    by the dealer which were recommended in writing and designated as
12-49    special tools and equipment and purchased from or purchased at the
12-50    request of the manufacturer, distributor, or representative, if the
12-51    tools and equipment are in usable and good condition except for
12-52    reasonable wear and tear;
12-53                      (E)  the cost of transporting, handling, packing,
12-54    storing, and loading of any property subject to repurchase under
12-55    this section;
12-56                      (F)  except as provided by this subdivision, any
12-57    sums due as provided by Paragraph (A) of this subdivision within 60
12-58    days after termination of a franchise and any sums due as provided
12-59    by Paragraphs (B) through (E) of this subdivision within 90 days
12-60    after termination of a franchise.  As a condition of payment, the
12-61    dealer is to comply with reasonable requirements with respect to
12-62    the return of inventory as are set out in the terms of the
12-63    franchise agreement.  A manufacturer or distributor shall reimburse
12-64    a dealer for the dealer's cost for storing any property covered by
12-65    this subdivision beginning 90 days following termination.  A
12-66    manufacturer or distributor shall reimburse a dealer for the
12-67    dealer's cost of storing any property covered by this subdivision
12-68    before the expiration of 90 days from the date of termination if
12-69    the dealer notifies the manufacturer or distributor of the
 13-1    commencement of storage charges within that period.  On receipt of
 13-2    notice of the commencement of storage charges, a manufacturer or
 13-3    distributor may immediately take possession of the property in
 13-4    question by repurchasing the property as provided by this
 13-5    subdivision.  A manufacturer, distributor, or representative who
 13-6    fails to pay those sums within the prescribed time or at such time
 13-7    as the dealer and lienholder, if any, proffer good title prior to
 13-8    the prescribed time for payment, is liable to the dealer for:
 13-9                            (i)  the greatest of dealer cost, fair
13-10    market value, or current price of the inventory;
13-11                            (ii)  interest on the amount due calculated
13-12    at the rate applicable to a judgment of a court; and
13-13                            (iii)  reasonable attorney's fees and
13-14    costs.
13-15                (17)  Notwithstanding the terms of any franchise
13-16    agreement, change its distributor, its method of distribution of
13-17    its products in this state, or its business structure or ownership
13-18    in a manner that results in the termination or noncontinuance of a
13-19    franchise without good cause.  The manufacturer, distributor, or
13-20    representative shall issue the same notice to the dealer and to the
13-21    board as is provided in Subdivisions (3)(A) and (B) of this section
13-22    and said same procedures shall apply to the parties.
13-23                (18)  Notwithstanding the terms of any franchise
13-24    agreement, require a dealer to submit to arbitration on any issue
13-25    unless the dealer and the manufacturer, distributor, or
13-26    representative and their respective counsel agree to arbitrate
13-27    after a controversy arises.  The arbitrator shall apply the
13-28    provisions of this Act in resolving the pertinent controversy.
13-29    Either party may appeal to the board a decision of an arbitrator on
13-30    the ground that the arbitrator failed to apply this Act.
13-31                (19)  Notwithstanding the terms of any franchise
13-32    agreement, require that a dealer join, contribute to, or affiliate
13-33    with, directly or indirectly, any advertising association.
13-34                (20)  Notwithstanding the terms of a franchise
13-35    agreement:
13-36                      (A)  require adherence to unreasonable sales or
13-37    service standards;
13-38                      (B)  directly or indirectly, discriminate against
13-39    a dealer or otherwise treat dealers differently as a result of a
13-40    formula or other calculation or process intended to gauge the
13-41    performance of a dealership;
13-42                      (C)  unreasonably require that a dealer purchase
13-43    special tools or equipment; or
13-44                      (D)  fail to compensate a dealer for all costs
13-45    incurred by the dealer as required by the manufacturer in complying
13-46    with the terms of a product recall by the manufacturer or
13-47    distributor, including the costs, if any, incurred by the dealer in
13-48    notifying vehicle owners of the existence of the recall.
13-49                (21)  Discriminate unreasonably between or among
13-50    franchisees in the sale of a motor vehicle owned by the
13-51    manufacturer or distributor.
13-52                (22)  Directly or indirectly, or through a subsidiary
13-53    or agent, require, as a condition for obtaining financing for a
13-54    motor vehicle, the purchaser of a vehicle to purchase any product
13-55    other than the motor vehicle from the manufacturer or distributor,
13-56    or from an entity owned or controlled by the manufacturer or
13-57    distributor.
13-58                (23)  Directly or indirectly, or through a subsidiary
13-59    or agent, require, as a condition of its or its subsidiary's
13-60    agreement to provide financing for a motor vehicle, that any
13-61    insurance policy or service contract purchased by the motor vehicle
13-62    purchaser be purchased from a specific source.
13-63                (24)  Compel a dealer through a financing subsidiary of
13-64    the manufacturer or distributor to agree to unreasonable operating
13-65    requirements or directly or indirectly to terminate a dealer
13-66    through the actions of a financing subsidiary of the manufacturer
13-67    or distributor.  This subdivision does not limit the right of a
13-68    financing entity to engage in business practices in accordance with
13-69    the usage of trade in retail and wholesale motor vehicle financing.
 14-1                (25)  Notwithstanding the terms of a franchise
 14-2    agreement, deny or withhold approval of a dealer's application to
 14-3    add a line-make or parts or products related to that line-make
 14-4    unless, within 60 days of receipt of the dealer's written
 14-5    application to add the line-make, the manufacturer or distributor
 14-6    gives the dealer written notice of the denial or withholding of
 14-7    approval.  After receipt of notice, the dealer may file a protest
 14-8    with the board.  If the dealer files a protest as provided by this
 14-9    subdivision, the board may uphold the manufacturer's or
14-10    distributor's decision to deny or withhold approval of the addition
14-11    of the line-make only if the manufacturer or distributor proves by
14-12    a preponderance of the evidence that the denial or withholding of
14-13    approval was reasonable.  In determining whether or not the
14-14    manufacturer or distributor has met its burden to show that its
14-15    denial or withholding of approval is reasonable, the board shall
14-16    consider all existing circumstances, including, without limitation,
14-17    the following:
14-18                      (A)  the dealer's sales in relation to the sales
14-19    in the market;
14-20                      (B)  the dealer's investment and obligations;
14-21                      (C)  injury or benefit to the public;
14-22                      (D)  the adequacy of the dealer's sales and
14-23    service facilities, equipment, parts, and personnel in relation to
14-24    those of other dealers of new motor vehicles of the same line-make;
14-25                      (E)  whether warranties are being honored by the
14-26    dealer agreement;
14-27                      (F)  the parties' compliance with their franchise
14-28    agreement to the extent that the franchise agreement is not in
14-29    conflict with this Act;
14-30                      (G)  the enforceability of the franchise
14-31    agreement from a public policy standpoint, including without
14-32    limitation, issues of the reasonableness of the franchise
14-33    agreement's terms, oppression, adhesion, and the relative
14-34    bargaining power of the parties;
14-35                      (H)  whether the dealer complies with reasonable
14-36    capitalization requirements or will be able to comply with
14-37    reasonable capitalization requirements within a reasonable time;
14-38                      (I)  the harm, if any, to the manufacturer if the
14-39    denial or withholding of approval is not upheld; and
14-40                      (J)  the harm, if any, to the dealer if the
14-41    denial or withholding of approval is upheld.
14-42                (26)  Fail or refuse to offer to its same line-make
14-43    franchised dealers all models manufactured for that line-make, or
14-44    require a dealer to pay any extra fee, purchase unreasonable
14-45    advertising displays or other materials, or remodel, renovate, or
14-46    recondition the dealer's existing facilities as a prerequisite to
14-47    receiving a model or series of vehicles.
14-48                (27)  Require a dealer to compensate the manufacturer
14-49    or distributor for any court costs, attorney's fees, or other
14-50    expenses incurred in an administrative or civil proceeding arising
14-51    under this Act, except that this subdivision does not prohibit a
14-52    manufacturer and dealer from entering into an agreement to share
14-53    costs in a proceeding in which the dealer and manufacturer have the
14-54    same or similar interests.
14-55          SECTION 14.  The Texas Motor Vehicle Commission Code (Article
14-56    4413(36), Vernon's Texas Civil Statutes) is amended by adding
14-57    Section 5.02D to read as follows:
14-58          Sec. 5.02D.  CERTAIN TIME LIMITS TOLLED UNDER CERTAIN
14-59    CIRCUMSTANCES. A time limit relating to board proceedings imposed
14-60    on the board or on a dealer by the terms of this Act is tolled
14-61    during the pendency of mandatory mediation proceedings required by
14-62    this Act or by a franchise agreement.
14-63          SECTION 15.  This Act takes effect immediately if it receives
14-64    a vote of two-thirds of all the members elected to each house, as
14-65    provided by Section 39, Article III, Texas Constitution.  If this
14-66    Act does not receive the vote necessary for immediate effect, this
14-67    Act takes effect September 1, 2001.
14-68                                 * * * * *