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 * * * * *