S.B. 1184 78(R)    BILL ANALYSIS


S.B. 1184
By: Deuell
Law Enforcement
Committee Report (Amended)



BACKGROUND AND PURPOSE 

Chapter 644 of the Texas Transportation Code, Commercial Motor Vehicle
Safety Standards, imposes a variety of rules and regulations on owners and
operators of commercial motor vehicles and provides penalties for
violations.  However, it does not provide an efficient hearing process or
enforcement mechanism for those penalties.  Senate Bill 1184 provides for
notification to the violator when a penalty is imposed, an informal
hearing, an administrative hearing processes, and the disposition of
commercial vehicles impounded as a result of delinquent penalties. 
 
RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

SECTION 1.  Amends Section 548.001(1), Transportation Code, to redefine
"commercial motor vehicle" to include vehicles that meet the basic
definition of commercial motor vehicle and are used to transport more than
15 passengers, including the driver. 

SECTION 2.  Amends Sections 644.001(1) and (5), Transportation Code, to
redefine "commercial motor vehicle" by reference to 49 C.F.R. Section
390.5, if operated interstate, and by reference to Section 548.001,
Transportation Code, if operated intrastate.  Redefines "federal motor
carrier safety regulation" to include regulations in Subtitle A, Title 49,
Code of Federal Regulations.  

SECTION 3.  Amends Sections 644.103(a)-(d), Transportation Code, as
follows:  

(a)  Authorizes an officer of the Department of Public Safety (DPS) to
stop a motor vehicle subject to this chapter.  

(b) Authorizes a municipal police officer to stop or enter a motor vehicle
subject to this chapter on a highway or at a port of entry within the
territory of the municipality.  Authorizes a sheriff or deputy sheriff to
stop or enter a motor vehicle subject to this chapter on a highway or at a
port of entry within the territory of the county. 

(c)  Replaces the word "officer" with "person" to authorize any person who
detains a vehicle under this section to prohibit the further operation of
the vehicle if the vehicle or vehicle operator is in violation of certain
regulations or rules.  

(d)  Authorizes a certified, supervised noncommissioned employee of DPS to
stop or detain a vehicle subject to this chapter at a fixed-site facility.
Authorizes the noncommissioned employee, if warranted, to take enforcement
action only if supervised by a DPS officer.  

SECTION 4.  Amends Section 644.153, Transportation Code, as follows: 

(c)  Requires DPS to designate one or more employees to investigate
violations and conduct audits of persons subject to this chapter, and to
impose an administrative penalty if DPS discovers a violation that is
covered by Subsection (a) or (b).  

 (d)  Removes the requirement that a penalty under this section shall be
administered in the same manner as an administrative penalty for lack of
proper registration under Section 643.251, except that the amount of a
penalty shall be determined by DPS rule.  

(e)  Requires DPS, if it determines to impose a penalty, to issue a notice
of claim.  Requires DPS to send the notice by certified or registered
mail, personal delivery, or another manner of delivery that records the
receipt of the notice by the person responsible.  Requires the notice of
claim to 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. 

(f)  Authorizes the person, before the 21st day after the date of receipt
of the notice of claim, to accept the determination and pay the
recommended penalty, or make a written request for an informal or
administrative hearing on the occurrence of the violation, the amount of
the penalty, or both.  

(g)  Authorizes DPS, at the conclusion of an informal hearing requested
under Subsection (f), to modify the recommendation for a penalty.  

(h)  Requires DPS, if the person requests an administrative hearing, to
set a hearing and give the person notice of the hearing.  Requires the
hearing to be held by an administrative law judge of the State Office of
Administrative Hearings.  Requires the judge to make findings of fact and
conclusions of law and promptly issue to the director of public safety a
proposal for a decision as to the occurrence of the violation and the
amount of a proposed penalty.  

(i)  Requires the judge, if a penalty is proposed under Subsection (h), to
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.  Authorizes the director to adopt the
finding and make it a part of a final order entered in the proceeding.  

(j)  Authorizes the director, by order and based on the findings of fact,
conclusions of law, and proposal for a decision, to find that a violation
has occurred and impose a penalty, or to find that no violation occurred.
Authorizes the director to increase or decrease the amount of the penalty
recommended by the administrative law judge within the limits prescribed
by this chapter.  

(k)  Requires notice of the director's order to be given to the affected
person in the manner required by Chapter 2001 (Administrative Procedure),
Government Code, and to include a statement that the person is entitled to
seek a judicial review of the order.  

(l)  Requires the person, before the 31st day after the date the
director's order becomes final as provided by Section 2001.144 (Decisions;
When Final), Government Code, to pay the amount of the penalty; pay the
amount of the penalty and file a petition for judicial review contesting
the occurrence of the violation, the amount of the penalty, or both; or,
without paying the penalty, file a petition for judicial review contesting
the occurrence of the violation, the penalty, or both.  

(m)  Authorizes a person who acts under Subsection (l) within the 30-day
period to stay enforcement of the penalty by placing the amount of the
penalty in escrow or filing a supersedeas bond with the court, or to
request the court to stay enforcement of the penalty by filing an
affidavit stating the person is financially unable to pay. 

(n)  Authorizes DPS, before the sixth day after the date the director
receives a copy of an affidavit stating that a person is financially
unable to pay the amount of the penalty, to file with the court a contest
to the affidavit.  Requires the court to hold a hearing on the facts
alleged in the affidavit as soon as practicable and to stay the
enforcement of the penalty if the court finds that the alleged facts are
true.  Places the burden of proof of financial inability to pay the
penalty on the person who files an affidavit under Subsection (m)(2).  

(o)  Authorizes the director, if the person does not pay the amount of the
penalty and the enforcement of the penalty is not stayed, to refer the
matter to the attorney general for collection, initiate an  impoundment
proceeding under Subsection(g), or both. 

(p)  Redesignated from Subsection (e).  Makes nonsubstantive changes. 

(q)  Redesignated from Subsection (f).  Makes a conforming change. 

(r)  Redesignated from Subsection (g).  Requires that an impounded
commercial motor vehicle left at a vehicle storage facility controlled by
DPS or any other person be considered an abandoned motor vehicle on the
11th day after the date of impoundment, if the delinquent administrative
penalty is not remitted to DPS before that day.  Provides that Chapter 683
(Abandoned Motor Vehicles), Transportation Code, applies to such vehicles,
except that DPS is entitled to receive the amount of the delinquent
penalty from the proceeds of a sale of an abandoned vehicle.  

(s)  Redesignated from Subsection (h).  Specifies that all costs
associated with the towing and storage of the commercial motor vehicle and
load shall be the responsibility of the person and not of DPS or the
state. 

(t)  Provides that a proceeding under this section is subject to Chapter
2001(Administrative Procedure), Government Code.  

SECTION 5.  Amends Section 644.155, Transportation Code, by requiring DPS
to implement and enforce a compliance review for any person who owns or
operates a commercial motor vehicle that is domiciled in this state.  

SECTION 6.  Amends Section 683.002(a), Transportation Code, by expanding
the definition of "abandoned motor vehicle" to include a vehicle which is
considered abandoned by Section 644.153(r), Transportation Code, as added
by this Act. 

SECTION 7.  Amends Section 683.012(b), Transportation Code, to require the
notice of abandonment required by Subsection (a) to 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 the delinquent administrative
penalty and costs if the vehicle is a commercial motor vehicle impounded
under Section 644.153(g).  

SECTION 8.  Amends Section 683.015, Transportation Code, by adding
Subsection (e) to entitle DPS, if the vehicle is a commercial motor
vehicle impounded under Section 644.153(g), to the proceeds of the sale in
an amount equal to the amount of the delinquent administrative penalties
and costs.  

SECTION 9.  Effective date.


EFFECTIVE DATE

This Act takes effect September 1, 2003.


EXPLANATION OF AMENDMENTS

Committee Amendment No. 1 amends the original by modifying SECTION 4,
Subsection (j), making the section pursuant to Section 2001.058(e) of the
Government Code, which provides that a state agency is allowed to change a
finding of fact or conclusion of law by the administrative law judge, or
may vacate or modify an order issued by the administrative judge, only if
the agency determines:  

_that the administrative law judge did not properly apply or interpret
applicable law, agency rules, written policies provided under Subsection
(c), or prior administrative decisions; 
 _that a prior administrative decision on which the administrative law
judge relied is incorrect or should be changed; or 
_that a technical error in a finding of fact should be changed.