78R4476 MXM-F

By:  Harris                                                       S.B. No. 351


A BILL TO BE ENTITLED
AN ACT
relating to the regulation of persons who repossess motor vehicles; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle A, Title 5, Occupations Code, is amended by adding Chapter 902 to read as follows:
CHAPTER 902. REPOSSESSION SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 902.001. DEFINITIONS. In this chapter: (1) "Commission" means the Texas Commission of Licensing and Regulation. (2) "Department" means the Texas Department of Licensing and Regulation. (3) "Executive director" means the executive director of the department. (4) "Lender" means: (A) a state or national bank; (B) a state or federal savings and loan association or savings bank; (C) a credit union; or (D) a person that holds a license issued under Chapter 348, Finance Code. (5) "Motor vehicle" has the meaning assigned by Section 501.002, Transportation Code. (6) "Repossession" means the recovery of a motor vehicle that has been sold or leased under a security agreement that contains a repossession clause by an individual authorized by the legal owner, lienholder, or lessor to recover the motor vehicle or to collect payment in lieu of recovery. (7) "Repossession agent" means an individual who engages in a repossession for consideration. (8) "Repossession company" means a business entity that engages in the business of performing, or advertises that the business entity performs, repossessions for consideration. Sec. 902.002. APPLICABILITY OF OTHER LAW. Chapter 51 applies to this chapter, including the power to impose an administrative sanction, assess an administrative penalty, or seek a civil penalty, for a violation of this chapter or a rule or order adopted or entered under this chapter.
[Sections 902.003-902.050 reserved for expansion]
SUBCHAPTER B. GENERAL POWERS AND DUTIES
Sec. 902.051. RULES. The executive director may adopt rules necessary to administer this chapter. Sec. 902.052. FEES. The commission may by rule set fees in amounts reasonable and necessary to administer this chapter. Sec. 902.053. DIRECTORY OF LICENSE HOLDERS. (a) The department shall annually prepare a directory of license holders. (b) The department shall provide the directory to the public on request without charge. (c) The department may comply with this section by publishing the directory on-line. Sec. 902.054. INVESTIGATIONS. (a) The department may examine: (1) a record maintained under this chapter; or (2) a record or object the department determines is necessary to conduct a complete investigation. (b) To administer this chapter, the department may question a person who: (1) is associated with the business of a license holder; or (2) claims that the person was negatively affected by a violation of this chapter committed by a license holder. Sec. 902.055. AUDIT. The department may periodically audit the business records of a license holder. Sec. 902.056. PROPER TOWING EQUIPMENT. With the advice of the Texas Department of Transportation and the Department of Public Safety, the executive director shall adopt rules as necessary to ensure that a vehicle used for a repossession by a license holder is a tow truck suitable in terms of safety, considering factors such as size, towing capacity, or the use of other equipment.
[Sections 902.057-902.100 reserved for expansion]
SUBCHAPTER C. LICENSE REQUIREMENTS
Sec. 902.101. LICENSE REQUIRED. (a) A person may not engage in a repossession for consideration unless each individual who engages in the recovery holds a repossession agent license. (b) A person may not advertise that the person performs repossessions unless the person holds a repossession agent or repossession company license. (c) A person may not hire a person to engage in a repossession unless the person hired holds a license issued under this chapter. Sec. 902.102. LICENSE CLASSIFICATIONS. The executive director shall issue a repossession agent or repossession company license to an eligible applicant. Sec. 902.103. LICENSE APPLICATION. (a) A license applicant must submit an application on a form prescribed by the department. (b) The application must specify the class of license for which the applicant is applying. (c) An application for a repossession agent license must be accompanied by: (1) the application fee; and (2) the examination fee. (d) An application for a repossession company license must be accompanied by: (1) the application fee; (2) the license number of each employee who holds a repossession agent license; and (3) a copy of the current sales tax permit issued to the applicant by the comptroller under Chapter 151, Tax Code, or, if the department determines that technology allows, the applicant may submit the applicant's tax identification number to the department for submission by the department to the comptroller for electronic verification. (e) The department shall deny an application provided under Subsection (d) if the applicant's sales tax permit is canceled, suspended, or revoked under Subchapter F, Chapter 151, Tax Code. Sec. 902.104. ELIGIBILITY REQUIREMENTS FOR REPOSSESSION AGENT LICENSE; BACKGROUND CHECK. (a) An applicant for a repossession agent license must be at least 18 years old. (b) The department shall conduct a criminal background check on the applicant as authorized under Chapter 411, Government Code. (c) The applicant is not eligible for a license if the applicant has been finally convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation. (d) The executive director may deny an application if the applicant previously held a repossession agent license and the license was revoked. (e) Except as provided by Subsection (c), Chapter 53 applies to this chapter. Sec. 902.105. EXAMINATION FOR REPOSSESSION AGENT LICENSE. (a) The executive director shall require an examination for a repossession agent license. (b) The executive director shall prescribe the method and content of the examination and shall set compliance requirements for the examination. (c) The examination shall be offered at least annually or more frequently as determined by the executive director. (d) The examination shall be offered at various locations in this state as determined by the executive director. Sec. 902.106. EXAMINATION RESULTS. (a) Not later than the 30th day after the date on which a person takes a licensing examination under this chapter, the department shall notify the person of the results of the examination. (b) If the examination is graded or reviewed by a testing service: (1) the department shall notify the person of the results of the examination not later than the 14th day after the date the department receives the results from the testing service; and (2) if notice of the examination results will be delayed for longer than 90 days after the examination date, the department shall notify the person of the reason for the delay before the 90th day. (c) The department may require a testing service to notify a person of the results of the person's examination. (d) If requested in writing by a person who fails a licensing examination administered under this chapter, the department shall furnish the person with an analysis of the person's performance on the examination. Sec. 902.107. ISSUANCE OF LICENSE; TERM. (a) On payment of the license fee, the department shall issue the appropriate license to an applicant who: (1) meets the requirements of this subchapter; (2) provides evidence of any insurance coverage required by the executive director in accordance with this chapter; and (3) passes the examination, if the application is for a repossession agent license. (b) A license is valid for one year from the date of issuance. Sec. 902.108. RULES REGARDING RENEWAL. The executive director may adopt rules regarding the renewal of a license, including rules requiring confirmation of the continued eligibility of the license holder before renewal. Sec. 902.109. LICENSE EXPIRATION AND RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the department before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed. (b) A person whose license has been expired for 90 days or less may renew the license by paying to the department a renewal fee that is equal to 1-1/2 times the normally required renewal fee. (c) A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the department a renewal fee that is equal to two times the normally required renewal fee. (d) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures, including the examination requirements, for obtaining an original license. (e) A person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person must pay to the department a fee that is equal to two times the normally required renewal fee for the license. (f) Not later than the 30th day before the date a person's license is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department. Sec. 902.110. BOND AND INSURANCE REQUIREMENTS. The executive director by rule shall set bond and insurance requirements for license holders. Sec. 902.111. CONTINUING EDUCATION REQUIREMENTS FOR REPOSSESSION AGENTS. (a) The executive director by rule shall require continuing education as a condition for renewal of a repossession agent license. (b) The continuing education requirements may not exceed four hours annually. Sec. 902.112. CONTINUING EDUCATION PROVIDERS AND COURSE APPROVAL. (a) The executive director by rule shall recognize, prepare, or administer continuing education programs for its license holders. (b) The executive director by rule shall recognize and approve continuing education providers. Sec. 902.113. RECIPROCITY; WAIVER OF LICENSE REQUIREMENT. The executive director may waive any prerequisite to obtaining a license for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license issued by another jurisdiction that has licensing requirements substantially equivalent to those of this state. Sec. 902.114. PROVISIONAL REPOSSESSION AGENT LICENSE. (a) The executive director may issue a provisional repossession agent license to an applicant currently licensed in another jurisdiction who seeks a license in this state and who: (1) has been licensed in good standing as a repossession agent for at least two years in another jurisdiction, including a foreign country, that has licensing requirements substantially equivalent to the requirements of this chapter; (2) has passed a national or other examination recognized by the executive director relating to repossession procedures and requirements; and (3) is sponsored by a person licensed by the department under this chapter with whom the provisional license holder will practice during the time the person holds a provisional license. (b) The executive director may waive the sponsorship requirement under Subsection (a)(3) for an applicant if the executive director determines that compliance with that subsection would be a hardship to the applicant. (c) A provisional license is valid until the date the department approves or denies the provisional license holder's application for a repossession agent license. (d) The executive director shall issue a repossession agent license under this chapter to a provisional license holder if: (1) the provisional license holder is eligible to be licensed under Section 902.113 or passes the part of the examination under Section 902.105 that relates to the applicant's knowledge and understanding of the laws and rules of this state relating to repossession; and (2) the executive director verifies that the provisional license holder satisfies any other applicable licensing requirements under this chapter. (e) The executive director must approve or deny a provisional license holder's application for a repossession agent license not later than the 180th day after the date on which the provisional license is issued. The executive director may extend the 180-day period if the results of an examination have not been received by the department before the end of that period. (f) The commission may establish a fee for provisional licenses in an amount reasonable and necessary to cover the cost of issuing the license.
[Sections 902.115-902.150 reserved for expansion]
SUBCHAPTER D. OPERATION OF REPOSSESSION COMPANY; FACILITY REQUIREMENTS
Sec. 902.151. DEFINITION. In this subchapter, "storage facility" means the area where a repossession company stores a repossessed motor vehicle. Sec. 902.152. OFFICE; HOURS. A repossession company shall maintain a permanent office with regular office hours of not less than eight hours per day Monday through Friday, excluding legal holidays, during which a person may claim personal property from a repossessed motor vehicle. Sec. 902.153. STORAGE OF REPOSSESSED MOTOR VEHICLE. A repossession company shall store a repossessed motor vehicle inside a storage facility that complies with the requirements of this subchapter. Sec. 902.154. ENCLOSURE AND SECURITY AT FACILITY. (a) Each storage facility shall be: (1) completely enclosed by a fence at least six feet high; and (2) locked when the license holder or an employee of the license holder is not at the facility. (b) A repossession company shall secure a repossessed motor vehicle to prevent theft of the vehicle or its contents, including locking doors, closing windows and hatchbacks, and raising or covering convertible tops. Sec. 902.155. FACILITY SURFACE. A storage facility must contain an all-weather surface such as concrete, asphalt, black-top, stone, macadam, limestone, iron ore, gravel, shell, or caliche. The surface must enable the safe and effective movement of the vehicle on all portions of the lot, both under the vehicle's own power and under tow, at all times and regardless of weather conditions. Sec. 902.156. FACILITY LIGHTING. A repossession company shall maintain lighting at the storage facility sufficient to allow inspection of a repossessed motor vehicle for damage at the time of the vehicle's release, including at least a 250 watt light bulb for each quarter acre of storage area. Sec. 902.157. FACILITY SIGNS. A repossession company shall post a clearly visible and readable sign at the facility's main entrance. The sign shall: (1) use letters at least two inches in height, with contrasting background; (2) be visible from at least 10 feet; (3) contain the street address of the facility; and (4) contain the repossession company's name, address, phone number, office hours, and license number. Sec. 902.158. SHARING OF STORAGE FACILITY PROHIBITED. A repossession company may not share a storage facility with another repossession company. Sec. 902.159. ENTRY OF TOW TRUCKS. A repossession company may not permit a tow truck to enter its storage facility unless the tow truck complies with the rules adopted under Section 902.056.
[Sections 902.160-902.200 reserved for expansion]
SUBCHAPTER E. PRACTICE BY LICENSE HOLDER
Sec. 902.201. USE OF PROPER TOWING EQUIPMENT. A repossession agent may not engage in a repossession unless the tow truck used by the agent complies with department rules regarding safety. Sec. 902.202. USE OF FORCE; BREACH OF THE PEACE. A repossession agent may not use force or breach the peace when engaging in a repossession. Sec. 902.203. EMPLOYMENT OR HIRING OF REPOSSESSION AGENT. (a) A licensed repossession agent may not engage in a repossession unless the agent is hired or employed by a licensed repossession company or a lender. (b) A person may not hire or employ a licensed repossession agent unless the person is a licensed repossession company or a lender. Sec. 902.204. DUTY TO REPORT REPOSSESSION TO LAW ENFORCEMENT. Not later than two hours after engaging in a repossession, a repossession agent shall report the repossession to the police department of the municipality in which the recovery occurred or, if the recovery was not located in a municipality having a police department, to the sheriff of the county in which the recovery occurred. The report must include: (1) the license number and telephone number of each repossession agent engaging in the repossession; (2) the location at which the repossession occurred and the location at which the motor vehicle is stored; and (3) a description of the motor vehicle recovered, including identification information such as a vehicle identification number and the state and number of a license plate.
[Sections 902.205-902.250 reserved for expansion]
SUBCHAPTER F. ENFORCEMENT
Sec. 902.251. CEASE AND DESIST ORDERS. The department may issue a cease and desist order. Sec. 902.252. CIVIL PENALTIES. (a) Except as provided by Subsection (b), a person who violates this chapter is subject to a civil penalty under Section 51.352 of not less than $2,000 for the first violation and not less than $4,000 for each subsequent violation. (b) A repossession company or lender who violates this chapter is subject to a civil penalty of not less than $4,000 for the first violation and not less than $8,000 for each subsequent violation. Sec. 902.253. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly engages in a repossession without holding a license issued under this chapter. (b) Each repossession of a motor vehicle constitutes a separate offense. (c) An offense under this section is a Class B misdemeanor. SECTION 2. Section 411.093(a), Government Code, is amended to read as follows: (a) The Texas Department of Licensing and Regulation is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is: (1) an applicant for a license under: (A) Chapter 902, Occupations Code; or (B) Chapter 2052, Occupations Code [the Texas Boxing and Wrestling Act (Article 8501-1, Vernon's Texas Civil Statutes)]; or (2) the holder of a license under those chapters [that Act]. SECTION 3. (a) A person is not required to obtain a license under Subchapter C, Chapter 902, Occupations Code, as added by this Act, until September 1, 2004. (b) The executive director of the Texas Department of Licensing and Regulation shall adopt rules as required under Chapter 902, Occupations Code, as added by this Act, not later than June 1, 2004. SECTION 4. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2003. (b) Subchapters D, E, and F, Chapter 902, Occupations Code, as added by this Act, take effect September 1, 2004.