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By: Harris S.B. No. 1504
(In the Senate - Filed March 13, 2003; March 20, 2003, read
first time and referred to Committee on Infrastructure Development
and Security; April 24, 2003, reported favorably, as amended, by
the following vote: Yeas 8, Nays 0; April 24, 2003, sent to
printer.)
COMMITTEE AMENDMENT NO. 1 By: Shapiro
Amend S.B. No. 1504 by striking, on page 5, line 67, the
following after the word "license": "to relocate an existing
dealership or".
A BILL TO BE ENTITLED
AN ACT
relating to the duties and authority of the Texas Motor Vehicle
Board of the Texas Department of Transportation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2301.002, Occupations Code, is amended
to read as follows:
Sec. 2301.002. DEFINITIONS. In this chapter:
(1) "Ambulance" means a vehicle that is used
exclusively to transport or to provide emergency medical care to an
injured or ill person and that includes:
(A) a driver's compartment;
(B) a compartment to accommodate an emergency
medical care technician or paramedic and two injured or ill persons
in a position that permits one of the injured or ill persons to be
given intensive life-support during transit;
(C) equipment and supplies for emergency care of
an injured or ill person at the location of the person or at the
scene of an injury-producing incident as well as in transit;
(D) two-way radio communication capability; and
(E) equipment for light rescue or extrication
procedures.
(2) "Ambulance manufacturer" means a person other than
the manufacturer of a motor vehicle chassis who, before the retail
sale of the motor vehicle, performs modifications on the chassis of
a motor vehicle that result in the finished product being
classified as an ambulance;
(3) "Board" means the Motor Vehicle Board of the Texas
Department of Transportation.
(4) [(3)] "Broker" means a person who, for a fee,
commission, or other valuable consideration, arranges or offers to
arrange a transaction involving the sale of a new motor vehicle,
other than a person who is:
(A) a franchised dealer or a bona fide employee
of a franchised dealer acting for the franchised dealer;
(B) a representative or a bona fide employee of a
representative acting for the representative;
(C) a distributor or a bona fide employee of a
distributor acting for the distributor; or
(D) the owner of the vehicle at any point in the
transaction.
(5) [(4)] "Chassis manufacturer" means a person who
manufactures and produces the frame on which the body of a motor
vehicle is mounted.
(6) [(5)] "Conversion" means a motor vehicle, other
than a motor home, ambulance, or fire-fighting vehicle, that:
(A) has been substantially modified by a person
other than the manufacturer or distributor of the chassis of the
motor vehicle; and
(B) has not been the subject of a retail sale.
(7) [(6)] "Converter" means a person who before the
retail sale of a motor vehicle:
(A) assembles, installs, or affixes a body, cab,
or special equipment to a chassis, unless the resulting vehicle is a
motor home, ambulance, or fire-fighting vehicle; or
(B) substantially adds, subtracts from, or
modifies a previously assembled or manufactured motor vehicle,
unless the resulting vehicle is a motor home, ambulance, or
fire-fighting vehicle.
(8) [(7)] "Dealer" means a person who holds a general
distinguishing number issued by the board under Chapter 503,
Transportation Code.
(9) [(8)] "Dealership" means the physical premises
and business facilities on which a franchised dealer operates the
dealer's business, including the sale and repair of motor vehicles.
The term includes premises or facilities at which a person engages
only in the repair of a motor vehicle if the repair is performed
under a franchise and a motor vehicle manufacturer's warranty.
(10) [(9)] "Department" means the Texas Department of
Transportation.
(11) [(10)] "Director" means the director of the board
and of the division.
(12) [(11)] "Distributor" means a person, other than a
manufacturer, who distributes or sells new motor vehicles to a
franchised dealer.
(13) [(12)] "Division" means the Motor Vehicle
Division of the department.
(14) [(13)] "Executive director" means the executive
director of the department.
(15) [(14)] "Fire-fighting vehicle" means a motor
vehicle the only purposes of which are to transport firefighters to
the scene of a fire and to provide equipment to fight the fire, and
that is built on a truck chassis with a gross carrying capacity of
at least 10,000 pounds, to which the following have been
permanently affixed or mounted:
(A) a water tank with a combined capacity of at
least 500 gallons; and
(B) a centrifugal water pump with a capacity of
at least 750 gallons per minute at 150 pounds per square inch net
pump pressure.
(16) "Fire-fighting vehicle manufacturer" means a
person other than the manufacturer of a motor vehicle chassis who,
before the retail sale of the motor vehicle, performs modifications
on the chassis that result in the finished product being classified
as a fire-fighting vehicle.
(17) [(15)] "Franchise" means one or more contracts
between a franchised dealer as franchisee and a manufacturer or a
distributor as franchisor, including a written communication from a
franchisor to a franchisee in which a duty is imposed on the
franchisee, under which:
(A) the franchisee is granted the right to sell
and service new motor vehicles manufactured or distributed by the
franchisor or only to service motor vehicles under the contract and
a manufacturer's warranty;
(B) the franchisee is a component of the
franchisor's distribution system as an independent business;
(C) the franchisee is substantially associated
with the franchisor's trademark, tradename, and commercial symbol;
(D) the franchisee's business substantially
relies on the franchisor for a continued supply of motor vehicles,
parts, and accessories; or
(E) any right, duty, or obligation granted or
imposed by this chapter is affected.
(18) [(16)] "Franchised dealer" means a person who:
(A) holds a franchised motor vehicle dealer's
general distinguishing number issued by the board under this
chapter and Chapter 503, Transportation Code; and
(B) is engaged in the business of buying,
selling, or exchanging new motor vehicles and servicing or
repairing motor vehicles under a manufacturer's warranty at an
established and permanent place of business under a franchise in
effect with a manufacturer or distributor.
(19) [(17)] "General distinguishing number" means a
dealer license issued by the board under Chapter 503,
Transportation Code.
(20) [(18)] "License holder" means a person who holds
a license or general distinguishing number issued by the board
under this chapter or Chapter 503, Transportation Code.
(21) [(19)] "Manufacturer" means a person who
manufactures or assembles new motor vehicles.
(22) [(20)] "Manufacturer's statement of origin"
means a certificate on a form prescribed by the department showing
the original transfer of a new motor vehicle from the manufacturer
to the original purchaser.
(23) [(21)] "Motor home" means a motor vehicle that is
designed to provide temporary living quarters and that:
(A) is built on a motor vehicle chassis as an
integral part of or a permanent attachment to the chassis; and
(B) contains at least four of the following
independent life support systems that are permanently installed and
designed to be removed only for repair or replacement and that meet
the standards of the American National Standards Institute,
Standards for Recreational Vehicles:
(i) a cooking facility with an on-board
fuel source;
(ii) a gas or electric refrigerator;
(iii) a toilet with exterior evacuation;
(iv) a heating or air conditioning system
with an on-board power or fuel source separate from the vehicle
engine;
(v) a potable water supply system that
includes at least a sink, a faucet, and a water tank with an
exterior service supply connection; or
(vi) a 110-125 volt electric power supply.
(24) [(22)] "Motor home manufacturer" means a person
other than the manufacturer of a motor vehicle chassis who, before
the retail sale of the motor vehicle, performs modifications on the
chassis that result in the finished product being classified as a
motor home.
(25) [(23)] "Motor vehicle" means:
(A) a fully self-propelled vehicle having two or
more wheels that has as its primary purpose the transport of a
person or persons, or property, on a public highway;
(B) a fully self-propelled vehicle having two or
more wheels that:
(i) has as its primary purpose the
transport of persons or property;
(ii) is not manufactured for use on public
streets, roads, or highways; and
(iii) meets the physical requirements for
the issuance of [has been issued] a certificate of title under rules
of the department;
(C) an engine, transmission, or rear axle,
regardless of whether attached to a vehicle chassis, manufactured
for installation in a vehicle that has:
(i) the transport of persons or property on
a public highway as its primary purpose; and
(ii) a gross vehicle weight rating of more
than 16,000 pounds; or
(D) a towable recreational vehicle.
(26) [(24)] "New motor vehicle" means a motor vehicle
that has not been the subject of a retail sale regardless of the
mileage of the vehicle.
(27) [(25)] "Nonfranchised dealer" means a person who
holds an independent motor vehicle dealer's general distinguishing
number or a wholesale motor vehicle dealer's general distinguishing
number issued by the board under Chapter 503, Transportation Code.
(28) [(26)] "Party" means a person or agency named or
admitted as a party and whose legal rights, duties, or privileges
are to be determined by the board after an opportunity for
adjudicative hearing.
(29) [(27)] "Person" means a natural person,
partnership, corporation, association, trust, estate, or any other
legal entity.
(30) [(28)] "Relocate" means to transfer an existing
dealership operation to facilities at a different location,
including a transfer that results in a consolidation or dualing of
an existing dealer's operation.
(31) [(29)] "Representative" means a person who:
(A) is or acts as an agent or employee for a
manufacturer, distributor, or converter; and
(B) performs any duty in this state relating to
promoting the distribution or sale of new motor vehicles or
contacts dealers in this state on behalf of a manufacturer,
distributor, or converter.
(32) [(30)] "Retail sale" means any sale of a motor
vehicle other than:
(A) a sale in which the purchaser acquires a
vehicle for resale; or
(B) a sale of a vehicle that is operated in
accordance with Section 503.061, Transportation Code.
(33) [(31)] "Rule":
(A) means a statement by the board of general
applicability that:
(i) implements, interprets, or prescribes
law or policy; or
(ii) describes the procedure or practice
requirements of the board;
(B) includes the amendment or repeal of a prior
rule; and
(C) does not include a statement regarding only
the internal management or organization of the board and not
affecting the rights of a person not connected with the board.
(34) [(32)] "Towable recreational vehicle" means a
nonmotorized vehicle that:
(A) was originally designed and manufactured
primarily to provide temporary human habitation in conjunction with
recreational, camping, or seasonal use;
(B) is, or under rules of the department is
subject to being, titled and registered with the department as a
travel trailer through a county tax assessor-collector;
(C) is permanently built on a single chassis;
(D) contains at least one life support system;
and
(E) is designed to be towable by a motor vehicle.
(35) [(33)] "Transportation commission" means the
Texas Transportation Commission of the department.
(36) [(34)] "Vehicle lease" means a transfer of the
right to possess and use a motor vehicle for a term of more than 180
days in return for consideration.
(37) [(35)] "Vehicle lease facilitator" means a
person, other than a franchised dealer, a vehicle lessor, or a bona
fide employee of a franchised dealer or vehicle lessor, who:
(A) holds the person out to any other person as a
"motor vehicle leasing company" or "motor vehicle leasing agent,"
or uses a similar title, to solicit or procure another person to
enter into an agreement to become the lessee of a motor vehicle that
is not, and will not be, titled in the name of or registered to the
facilitator;
(B) otherwise solicits another person to enter
into an agreement to become a lessee of a motor vehicle that is not,
and will not be, titled in the name of or registered to the
facilitator; or
(C) is otherwise engaged in the business of
securing lessees or prospective lessees of a motor vehicle that is
not, and will not be, titled in the name of or registered to the
facilitator.
(38) [(36)] "Vehicle lessor" means a person who, under
a lease, transfers to another person the right to possession and use
of a motor vehicle titled in the name of the lessor.
(39) [(37)] "Warranty work" means parts, labor, and
any other expenses incurred by a franchised dealer in complying
with the terms of a manufacturer's or distributor's warranty.
SECTION 2. Subsection (a), Section 2301.153, Occupations
Code, is amended to read as follows:
(a) Notwithstanding any other provision of law, the board
has all powers necessary, incidental, or convenient to perform a
power or duty expressly granted under this chapter, including the
power to:
(1) initiate and conduct proceedings, investigations,
or hearings;
(2) administer oaths;
(3) receive evidence and pleadings;
(4) issue subpoenas to compel the attendance of any
person;
(5) order the production of any tangible property,
including papers, records, or other documents;
(6) make findings of fact on all factual issues
arising out of a proceeding initiated under this chapter;
(7) specify and govern appearance, practice, and
procedures before the board;
(8) adopt rules and issue conclusions of law and
decisions, including declaratory decisions or orders;
(9) enter into contracts;
(10) with the prior approval of the board, accept a
donation or contribution of property or services to be used by the
board or its staff in the execution of its legal duties;
(11) execute instruments;
(12) [(11)] retain counsel;
(13) [(12)] use the services of the attorney general
and institute and direct the conduct of legal proceedings in any
forum;
(14) [(13)] obtain other professional services as
necessary and convenient;
(15) [(14)] impose a sanction for contempt;
(16) [(15)] assess and collect fees and costs,
including attorney's fees;
(17) [(16)] issue, suspend, or revoke licenses;
(18) [(17)] prohibit and regulate acts and practices
in connection with the distribution and sale of motor vehicles or
warranty performance obligations;
(19) [(18)] issue cease and desist orders in the
nature of temporary or permanent injunctions; and
(20) [(19)] impose a civil penalty.
SECTION 3. Subsection (a), Section 2301.251, Occupations
Code, is amended to read as follows:
(a) Unless a person holds a license issued under this
chapter authorizing the activity, and except as provided by this
subchapter, the person may not:
(1) engage in business as, serve in the capacity of, or
act as a dealer, manufacturer, distributor, converter,
representative, vehicle lessor, or vehicle lease facilitator in
this state; or
(2) perform or offer to perform repair services on a
motor vehicle under a franchise and a motor vehicle manufacturer's
warranty, regardless of whether the person sells or offers to sell
motor vehicles at the same location.
SECTION 4. Subchapter F, Chapter 2301, Occupations Code, is
amended by adding Section 2301.266 to read as follows:
Sec. 2301.266. OPERATION OF BUSINESS WITHOUT LICENSE.
(a) Notwithstanding the terms of this chapter or other provision
of law, a person who meets the requirements set forth in this
section may engage in the business of the operation of a dealership
without a valid license.
(b) This section applies to a person who has applied for a
license to relocate an existing dealership or to purchase an
existing dealership, and whose license application:
(1) is substantially complete and on file with the
board; and
(2) is not subject to protest under Section 2301.652.
(c) A person to whom this section applies may on an interim
basis engage in the business of operating the dealership for which
the person's license application is pending. A person who operates
a dealership in the manner provided by this section shall notify the
board of the person's intent to do so by registered mail, return
receipt requested.
(d) This section does not prejudice the board's right to
deny a license on the basis and under the circumstances provided by
this chapter and rules of the board.
SECTION 5. Subsection (b), Section 2301.252, Occupations
Code, is amended to read as follows:
(b) For purposes of this section:
(1) the make of a conversion is that of the chassis
manufacturer; [and]
(2) the make of a motor home is that of the motor home
manufacturer;
(3) the make of an ambulance is that of the ambulance
manufacturer; and
(4) the make of a fire-fighting vehicle is that of the
fire-fighting vehicle manufacturer.
SECTION 6. Subsection (c), Section 2301.301, Occupations
Code, is amended to read as follows:
(c) The board by rule may implement a system under which
licenses expire on various dates during the year. For a year in
which a license expiration date is changed, except for the fee
required in conjunction with an application to relocate a
franchised dealership within the city limits of the city in which
the dealership is located, the fee for the license shall be prorated
so that the license holder pays only that portion of the fee that is
allocable to the number of months during which the license is valid.
On renewal of the license on the new expiration date, the entire
license renewal fee is payable.
SECTION 7. Section 2301.476, Occupations Code, is amended
by adding Subsection (h) to read as follows:
(h) Notwithstanding the terms of this chapter, and subject
to the limitations set forth in this subsection, a manufacturer or
distributor may own an interest in an entity that holds a general
distinguishing number if that entity:
(1) is primarily engaged in the business of renting to
other persons passenger vehicles or commercial motor vehicles the
entity owns; and
(2) sells or offers for sale no vehicle other than a
vehicle that the entity:
(A) owns and has taken from service in its rental
fleet; or
(B) has taken in trade as part of a transaction
involving the sale of a vehicle taken from service in its rental
fleet.
SECTION 8. Subsection (b), Section 2301.705, Occupations
Code, is amended to read as follows:
(b) Notice must be given by certified mail, return receipt
requested. Notice to a person outside the United States must be
given by registered mail, return receipt requested, or by a private
carrier who offers confirmation of delivery.
SECTION 9. Subsection (c), Section 2301.803, Occupations
Code, is amended to read as follows:
(c) A person affected by a statutory stay imposed by this
chapter may request a hearing [initiate a proceeding before the
board] to modify, vacate, or clarify the extent and application of
the statutory stay.
SECTION 10. This Act takes effect September 1, 2003.
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