Amend CSHB 3588 by adding the following ARTICLE to the bill,
appropriately numbered, and renumbering existing ARTICLES
accordingly:
ARTICLE ____. COMMERCIAL MOTOR VEHICLE
SAFETY STANDARDS
SECTION ____.01. Subdivision (1), Section 548.001,
Transportation Code, is amended to read as follows:
(1) "Commercial motor vehicle" means a self-propelled
or towed vehicle, other than a farm vehicle with a gross weight,
registered weight, or gross weight rating of less than 48,000
pounds, that is used on a public highway to transport passengers or
cargo if:
(A) the vehicle, including a school activity bus
as defined in Section 541.201, or combination of vehicles has a
gross weight, registered weight, or gross weight rating of more
than 26,000 pounds;
(B) the vehicle, including a school activity bus
as defined in Section 541.201, is designed or used to transport more
than 15 passengers, including the driver; or
(C) the vehicle is used to transport hazardous
materials in a quantity requiring placarding by a regulation issued
under the Hazardous Materials Transportation Act (49 U.S.C. Section
5101 [1801] et seq.).
SECTION ____.02. Subdivisions (1) and (5), Section 644.001,
Transportation Code, are amended to read as follows:
(1) "Commercial motor vehicle" means:
(A) a commercial motor vehicle as defined by 49
C.F.R. Section 390.5, if operated interstate; or
(B) a commercial motor vehicle as defined
[described] by Section 548.001, if operated intrastate.
(5) "Federal motor carrier safety regulation" means a
federal regulation in Subtitle A, Title 49, or Subchapter B,
Chapter III, Subtitle B, Title 49, Code of Federal Regulations.
SECTION ____.03. Subsections (a) through (d), Section
644.103, Transportation Code, are amended to read as follows:
(a) An officer of the department may stop, enter, or detain
on a highway or at a port of entry a motor vehicle that is subject to
this chapter.
(b) A municipal police officer who is certified under
Section 644.101 may stop, enter, or detain on a highway or at a port
of entry within the territory of the municipality a motor vehicle
that is subject to this chapter. A sheriff or deputy sheriff who is
certified under Section 644.101 may stop, enter, or detain on a
highway or at a port of entry within the territory of the county a
motor vehicle that is subject to this chapter.
(c) A person [An officer] who detains a vehicle under this
section may prohibit the further operation of the vehicle on a
highway if the vehicle or operator of the vehicle is in violation of
a federal safety regulation or a rule adopted under this chapter.
(d) A noncommissioned employee of the department who is
certified for the purpose by the director and who is supervised by
an officer of the department may, at a fixed-site facility, stop,
enter, or detain a motor vehicle that is subject to this chapter.
If the employee's inspection shows that an enforcement action, such
as the issuance of a citation, is warranted, the noncommissioned
employee may take enforcement action only if the employee is under
the supervision of an [supervising] officer of the department [must
take the action].
SECTION ____.04. Section 644.153, Transportation Code, is
amended to read as follows:
Sec. 644.153. ADMINISTRATIVE PENALTY. (a) The department
may impose an administrative penalty against a person who violates:
(1) a rule adopted under this chapter; or
(2) a provision of Subchapter [Subtitle] C that the
department by rule subjects to administrative penalties.
(b) To be designated as subject to an administrative penalty
under Subsection (a)(2), a provision must relate to the safe
operation of a commercial motor vehicle.
(c) The department shall:
(1) designate one or more employees to investigate
violations and conduct audits of persons subject to this chapter;
and
(2) impose an administrative penalty if the department
discovers a violation that is covered by Subsection (a) or (b).
(d) A penalty under this section[:
[(1)] may not exceed the maximum penalty provided for a
violation of a similar federal safety regulation[; and
[(2) shall be administered in the same manner as a
penalty under Section 643.251, except that the amount of a penalty
shall be determined under Subdivision (1)].
(e) If the department determines to impose a penalty, the
department shall issue a notice of claim. The department shall send
the notice of claim by certified mail, registered mail, personal
delivery, or another manner of delivery that records the receipt of
the notice by the person responsible. The notice of claim must
include a brief summary of the alleged violation and a statement of
the amount of the recommended penalty and inform the person that the
person is entitled to a hearing on the occurrence of the violation,
the amount of the penalty, or both the occurrence of the violation
and the amount of the penalty. [(d)] A person who is subject to an
administrative penalty imposed by the department under this section
[subchapter] is required to pay the penalty [administrative
penalties] or respond to the department within 20 days of receipt of
the department's notice of claim.
(f) Before the 21st day after the date the person receives
the notice of claim, the person may:
(1) accept the determination and pay the recommended
penalty; or
(2) make a written request for an informal hearing or
an administrative hearing on the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty.
(g) At the conclusion of an informal hearing requested under
Subsection (f), the department may modify the recommendation for a
penalty.
(h) If the person requests an administrative hearing, the
department shall set a hearing and give notice of the hearing to the
person. The hearing shall be held by an administrative law judge of
the State Office of Administrative Hearings. The administrative
law judge shall make findings of fact and conclusions of law and
promptly issue to the director a proposal for a decision as to the
occurrence of the violation and the amount of a proposed penalty.
(i) If a penalty is proposed under Subsection (h), the
administrative law judge shall include in the proposal for a
decision a finding setting out costs, fees, expenses, and
reasonable and necessary attorney's fees incurred by the state in
bringing the proceeding. The director may adopt the finding and
make it a part of a final order entered in the proceeding.
(j) Based on the findings of fact, conclusions of law, and
proposal for a decision, the director by order may find that a
violation has occurred and impose a penalty or may find that no
violation occurred. The director may pursuant to Section
2001.058(e), Government Code, increase or decrease the amount of
the penalty recommended by the administrative law judge within the
limits prescribed by this chapter.
(k) Notice of the director's order shall be given to the
affected person in the manner required by Chapter 2001, Government
Code, and must include a statement that the person is entitled to
seek a judicial review of the order.
(l) Before the 31st day after the date the director's order
becomes final as provided by Section 2001.144, Government Code, the
person must:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting:
(A) the occurrence of the violation;
(B) the amount of the penalty; or
(C) both the occurrence of the violation and the
amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting:
(A) the occurrence of the violation;
(B) the amount of the penalty; or
(C) both the occurrence of the violation and the
amount of the penalty.
(m) Within the 30-day period under Subsection (l), a person
who acts under Subsection (l) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) filing with the court a supersedeas bond
approved by the court for the amount of the penalty that is
effective until all judicial review of the director's order is
final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court an affidavit of the
person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) sending a copy of the affidavit to the
director by certified mail.
(n) Before the sixth day after the date the director
receives a copy of an affidavit filed under Subsection (m)(2), the
department may file with the court a contest to the affidavit. The
court shall hold a hearing on the facts alleged in the affidavit as
soon as practicable and shall stay the enforcement of the penalty if
the court finds that the alleged facts are true. The person who
files an affidavit under Subsection (m)(2) has the burden of
proving that the person is financially unable to:
(1) pay the amount of the penalty; and
(2) file the supersedeas bond.
(o) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the director may:
(1) refer the matter to the attorney general for
collection of the amount of the penalty;
(2) initiate an impoundment proceeding under
Subsection (q); or
(3) refer the matter to the attorney general and
initiate the impoundment proceeding.
(p) [(e)] A person who fails to pay, or becomes delinquent in
the payment of an administrative penalty[, the administrative
penalties] imposed by the department under this subchapter may
[shall] not operate or direct the operation of a commercial motor
vehicle on the highways of this state until [such time as] the
administrative penalty has [penalties have] been remitted to the
department.
(q) [(f)] The department shall impound any commercial motor
vehicle owned or operated by a person in violation of Subsection (p)
[(e)] after the department has first served the person with a notice
of claim. Service of the notice may be by certified mail,
registered mail, personal delivery, or any other manner of delivery
showing receipt of the notice.
(r) [(g)] A commercial motor vehicle impounded by the
department under Subsection (q) [this section] shall remain
impounded until [such time as] the administrative penalties imposed
against the person are remitted to the department, except that an
impounded commercial motor vehicle left at a vehicle storage
facility controlled by the department or any other person shall be
considered an abandoned motor vehicle on the 11th day after the date
of impoundment if the delinquent administrative penalty is not
remitted to the department before that day. Chapter 683 applies to
the commercial motor vehicle, except that the department is
entitled to receive from the proceeds of the sale the amount of the
delinquent administrative penalty and costs.
(s) [(h)] All costs associated with the towing and storage of
the commercial motor vehicle and load shall be the responsibility
of the person and not the department or the State of Texas.
(t) A proceeding under this section is subject to Chapter
2001, Government Code.
SECTION ____.05. Section 644.155, Transportation Code, is
amended to read as follows:
Sec. 644.155. COMPLIANCE REVIEW AND SAFETY AUDIT PROGRAM.
The department shall implement and enforce a compliance review and
safety audit program similar to the federal program established
under 49 C.F.R. Part 385 for any person who owns or operates a
commercial motor vehicle that is domiciled in this state.
SECTION ____.06. Subsection (a), Section 683.002,
Transportation Code, is amended to read as follows:
(a) For the purposes of this chapter, a motor vehicle is
abandoned if the motor vehicle:
(1) is inoperable, is more than five years old, and has
been left unattended on public property for more than 48 hours;
(2) has remained illegally on public property for more
than 48 hours;
(3) has remained on private property without the
consent of the owner or person in charge of the property for more
than 48 hours;
(4) has been left unattended on the right-of-way of a
designated county, state, or federal highway for more than 48
hours; [or]
(5) has been left unattended for more than 24 hours on
the right-of-way of a turnpike project constructed and maintained
by the Texas Turnpike Authority division of the Texas Department of
Transportation or a controlled access highway; or
(6) is considered an abandoned motor vehicle under
Section 644.153(r).
SECTION ____.07. Subsection (b), Section 683.012,
Transportation Code, is amended to read as follows:
(b) The notice under Subsection (a) must:
(1) be sent by certified mail not later than the 10th
day after the date the agency:
(A) takes the abandoned motor vehicle,
watercraft, or outboard motor into custody; or
(B) receives the report under Section 683.031;
(2) specify the year, make, model, and identification
number of the item;
(3) give the location of the facility where the item is
being held;
(4) inform the owner and lienholder of the right to
claim the item not later than the 20th day after the date of the
notice on payment of:
(A) towing, preservation, and storage charges;
or
(B) garagekeeper's charges and fees under
Section 683.032 and, if the vehicle is a commercial motor vehicle
impounded under Section 644.153(q), the delinquent administrative
penalty and costs; and
(5) state that failure of the owner or lienholder to
claim the item during the period specified by Subdivision (4) is:
(A) a waiver by that person of all right, title,
and interest in the item; and
(B) consent to the sale of the item at a public
auction.
SECTION ____.08. Section 683.015, Transportation Code, is
amended by adding Subsection (e) to read as follows:
(e) If the vehicle is a commercial motor vehicle impounded
under Section 644.153(q), the Department of Public Safety is
entitled from the proceeds of the sale to an amount equal to the
amount of the delinquent administrative penalty and costs.
SECTION ____.09. (a) This Article takes effect September
1, 2003.
(b) The changes in law made in Section ____.04 of this
Article apply only to an administrative penalty for a violation
that occurs on or after the effective date of this article.
(c) An administrative penalty for a violation that occurred
before the effective date of this article is governed by the law in
effect at the time of the violation, and the former law is continued
in effect for that purpose.