82R4187 MAW-F

By: Hunter H.B. No. 2293

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of motor vehicle dealers, manufacturers, and distributors.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 2301.002, Occupations Code, is amended by adding Subdivision (27-a) to read as follows:

(27-a) "Property use agreement" means a contract, other than a franchise, between a franchised dealer and a manufacturer, distributor, or representative that grants the manufacturer, distributor, or representative the right to regulate the franchised dealer's use of the dealership and other facilities covered by a franchise.

SECTION 2. Subchapter A, Chapter 2301, Occupations Code, is amended by adding Section 2301.008 to read as follows:

Sec. 2301.008. APPLICABILITY OF CHAPTER TO BANKRUPTCY OF MANUFACTURER, DISTRIBUTOR, OR REPRESENTATIVE. Except as expressly provided by an order of a court with jurisdiction over a filing in bankruptcy by a manufacturer, distributor, or representative, the terms of this chapter apply to the manufacturer, distributor, or representative during the pendency of the bankruptcy.

SECTION 3. Section 2301.359, Occupations Code, is amended by amending Subsection (e) and adding Subsections (g), (h), and (i) to read as follows:

(e) A manufacturer or distributor may not unreasonably withhold approval of an application filed under Subsection (a). [It is unreasonable for a manufacturer or distributor to reject a prospective transferee who is of good moral character and who meets the written, reasonable, and uniformly applied standards or qualifications, if any, of the manufacturer or distributor relating to the prospective transferee's business experience and financial qualifications.]

(g) In determining whether to approve an application filed under Subsection (a), a manufacturer or distributor may consider:

(1) whether a prospective transferee is or has been a franchised dealer in this state;

(2) the moral character of the prospective transferee; or

(3) the extent to which a prospective transferee satisfies any criteria developed by the manufacturer or distributor and made available to the prospective transferee, specifically to determine the business experience and financial qualifications of a prospective transferee.

(h) A manufacturer or distributor may consider the criteria developed under Subsection (g)(3) only if the criteria are in writing, are reasonable, and are uniformly applied in similar situations.

(i) It is unreasonable for a manufacturer or distributor to reject a prospective transferee who is of good moral character and who satisfies the criteria developed under Subsection (g)(3).

SECTION 4. Section 2301.465(b), Occupations Code, is amended to read as follows:

(b) Notwithstanding the terms of any franchise, after the termination of a franchise, a manufacturer, distributor, or representative shall pay to a franchised dealer or any lienholder, in accordance with the interest of each, the following amounts:

(1) the dealer cost of each new motor vehicle in the dealer's inventory with mileage of 5,000 miles or less, exclusive of mileage placed on the vehicle before it was delivered to the dealer, reduced by the net discount value of each vehicle, except that if a vehicle cannot be reduced by the net discount value, the manufacturer or distributor shall pay the dealer the net cost of the vehicle;

(2) the dealer cost of each new, unused, undamaged, and unsold part or accessory that:

(A) is in the current parts catalogue and is still in the original, resalable merchandising package and in an unbroken lot, except in the case of sheet metal, a comparable substitute for the original package may be used; and

(B) was purchased by the dealer either directly from the manufacturer or distributor or from an outgoing authorized dealer as a part of the dealer's initial inventory;

(3) the fair market value of each undamaged sign owned by the dealer that bears a trademark or tradename used or claimed by the manufacturer, distributor, or representative and that was purchased from or at the request of the manufacturer, distributor, or representative;

(4) the fair market value of all special tools, data processing equipment, computer software, and automotive service equipment owned by the dealer that:

(A) were recommended in writing and designated as special tools, computer software, or [and] equipment;

(B) were purchased from or at the request of the manufacturer, distributor, or representative; and

(C) are in usable and good condition except for reasonable wear and tear; and

(5) the cost of transporting, handling, packing, storing, and loading any property subject to repurchase under this section.

SECTION 5. Subchapter J, Chapter 2301, Occupations Code, is amended by adding Section 2301.4651 to read as follows:

Sec. 2301.4651. ADDITIONAL PAYMENT TO FRANCHISED DEALER IN CERTAIN SITUATIONS. (a) This section applies to a manufacturer, distributor, or representative that:

(1) terminates or discontinues a franchise by any means without complying with Section 2301.453; or

(2) regardless of whether the manufacturer, distributor, or representative complies with Section 2301.453, terminates or discontinues a franchise by:

(A) discontinuing a line-make;

(B) ceasing to do business in this state; or

(C) changing the distributor or method of distribution of its products in this state.

(b) In addition to the duties placed on a manufacturer, distributor, or representative by Section 2301.465, a manufacturer, distributor, or representative to whom this section applies shall pay to the franchised dealer the following amounts as applicable:

(1) either:

(A) the dealer's construction costs for a new dealership constructed in the two years preceding the date of the termination or discontinuance described by Subsection (a); or

(B) if the dealer does not have any costs described by Paragraph (A), the fair monthly rental value of the dealership payable in cash each month beginning on the first day of the first month following the date of the termination or discontinuance described by Subsection (a) and ending on the earlier of:

(i) the first anniversary of the termination or discontinuance date; or

(ii) the date on which the dealer no longer owns the dealership;

(2) the dealer's costs for upgrading, substantially altering, or furnishing a dealership in the two years preceding the date of the termination or discontinuance described by Subsection (a); and

(3) an amount equal to the value of the goodwill associated with the franchise as it existed on the day before the earlier of:

(A) the date of the termination or discontinuance described by Subsection (a); or

(B) the date on which the intention of the manufacturer, distributor, or representative to terminate or discontinue the franchise in a manner described by Subsection (a) became publicly known in the area in which the dealership is located.

(c) A franchised dealer receiving money under Subsection (b)(1)(B) shall:

(1) make a reasonable effort to earn income from a dealership after a termination or discontinuance described by Subsection (a); and

(2) inform the manufacturer, distributor, or representative of the dealer's efforts under Subdivision (1) and of any income earned from the dealership.

(d) A manufacturer, distributor, or representative may reduce the amount of a payment made to a franchised dealer under Subsection (b)(1)(B) by the amount of any income earned by the dealer from the dealership during the month preceding the payment.

(e) The manufacturer, distributor, or representative, as appropriate, shall pay any amount described by Subsection (b)(1)(A), (2), or (3) not later than the 30th day after the date of the termination or discontinuance described by Subsection (a).

(f) An amount payable under Subsection (b)(1)(A) or (2) does not include any amount previously paid to the franchised dealer by the manufacturer, distributor, or representative to subsidize the costs incurred by the dealer in performing the activities described by Subsection (b)(1)(A) or (2).

SECTION 6. Section 2301.467, Occupations Code, is amended by amending Subsections (b) and (c) and adding Subsection (b-1) to read as follows:

(b) Notwithstanding the terms of any franchise, a manufacturer, distributor, or representative may not unreasonably require a franchised dealer to relocate, or to replace or substantially change, alter, or remodel the dealer's facilities. Except as provided by Subsection (b-1) [For purposes of this subsection], an act is reasonable if it is justifiable in light of current and reasonably foreseeable projections of economic conditions, financial expectations, and the market for new motor vehicles in the relevant market area.

(b-1) It is unreasonable for a manufacturer, distributor, or representative to require a franchised dealer to construct a new dealership or to substantially change, alter, or remodel an existing dealership before the 15th anniversary of the date the dealership at that location was constructed or substantially changed, altered, or remodeled if the construction, change, alteration, or remodel was in substantial compliance with standards or plans provided by a manufacturer, distributor, or representative, or through a subsidiary or agent of the manufacturer, distributor, or representative.

(c) This [The prohibitions under this] section applies [apply] to the relationship between a manufacturer, distributor, or representative and:

(1) a current franchisee of the manufacturer, distributor, or representative; [or]

(2) a successor of a current franchisee of the manufacturer, distributor, or representative; or

(3) a franchised dealer who is seeking to become a franchisee of the manufacturer, distributor, or representative.

SECTION 7. Subchapter J, Chapter 2301, Occupations Code, is amended by adding Section 2301.4671 to read as follows:

Sec. 2301.4671. RESTRICTION ON DEALER'S USE OF DEALERSHIP PROPERTY. (a) Notwithstanding the terms of any franchise, a manufacturer, distributor, or representative may not:

(1) unreasonably limit or impair the ability of a franchised dealer to use the dealership property as the dealer considers appropriate;

(2) control the use of the dealership property after the franchise is terminated or discontinued; or

(3) at any time exercise exclusive control over the use of the dealership property.

(b) To the extent of any conflict between this section and another section of this chapter, the other section controls over this section.

SECTION 8. Section 2301.468, Occupations Code, is amended to read as follows:

Sec. 2301.468. INEQUITABLE TREATMENT OF [DISCRIMINATION AMONG] DEALERS OR FRANCHISEES. Notwithstanding the terms of a franchise, a [A] manufacturer, distributor, or representative may not[:

[(1) notwithstanding the terms of any franchise, directly or indirectly discriminate against a franchised dealer or otherwise] treat franchised dealers differently as a result of the application of a formula or other computation or process intended to gauge the performance of a dealership or otherwise enforce standards or guidelines applicable to its franchised dealers in the sale of motor vehicles if, in the application of the standards or guidelines, the franchised dealers are unreasonably treated differently [; or

[(2) discriminate unreasonably between or among franchisees] in the sale of a motor vehicle owned by the manufacturer or distributor.

SECTION 9. Section 2301.475(a), Occupations Code, is amended to read as follows:

(a) Except as provided by Subsection (b), after the first anniversary of the date a franchised dealer submits a claim under [ending date of] a manufacturer or distributor incentive program, a manufacturer or distributor may not:

(1) charge back to a dealer money paid by the manufacturer or distributor as a result of the incentive program;

(2) charge back to a dealer the cash value of a prize or other thing of value awarded to the dealer as a result of the incentive program; or

(3) audit the records of a dealer to determine compliance with the terms of the incentive program, unless the manufacturer or distributor has reasonable grounds to believe the dealer committed fraud with respect to the incentive program.

SECTION 10. Subchapter J, Chapter 2301, Occupations Code, is amended by adding Sections 2301.480 and 2301.481 to read as follows:

Sec. 2301.480. DISCLOSURE OF CERTAIN INFORMATION. A manufacturer, distributor, or representative may not require that a franchised dealer provide to the manufacturer, distributor, or representative information regarding a customer, except to the extent that a specific item of information is necessary:

(1) for the sale or delivery of a new motor vehicle to a customer;

(2) to validate a claim and make payment under an incentive program;

(3) to support a dealer's claim for reimbursement for repairs performed under a manufacturer's warranty; or

(4) to satisfy a product recall or safety obligation.

Sec. 2301.481. PROPERTY USE AGREEMENT. (a) A provision in a property use agreement that unreasonably limits or impairs the ability of a franchised dealer to use the dealership as the dealer considers appropriate is void and unenforceable.

(b) A manufacturer, distributor, or representative may not require that a dealer enter into a property use agreement as a condition of the manufacturer, distributor, or representative:

(1) entering into a franchise;

(2) approving a franchised dealer's application to add a line-make;

(3) approving a franchised dealer's application to relocate a franchise; or

(4) approving a sale or transfer of a dealer, dealership, or franchise.

(c) The following provisions in a property use agreement are void and unenforceable:

(1) a limitation on the franchised dealer's ability to add a line-make; or

(2) a provision that binds a franchised dealer's successor.

(d) A property use agreement expires on the earlier of:

(1) the date provided by the property use agreement; or

(2) the termination of the franchise between the parties to the property use agreement.

(e) This section applies to a subsidiary of, a person owned or controlled by, or a person whose business decisions are substantially influenced by a manufacturer, distributor, or representative.

SECTION 11. Section 2301.522(a), Occupations Code, is amended to read as follows:

(a) In an action brought against a manufacturer or distributor under Subchapter J [Sections 2301.451-2301.474] by a franchised dealer whose franchise provides for arbitration in compliance with this chapter, the board shall order the parties to submit the dispute to mediation in the manner provided by this subchapter.

SECTION 12. Section 2301.805(a), Occupations Code, is amended to read as follows:

(a) Notwithstanding any other law, including Subchapter E, Chapter 17, Business & Commerce Code, in addition to the other remedies provided by this subchapter, a person may institute an action under Subchapter E, Chapter 17, Business & Commerce Code, or any successor statute to that subchapter, and is entitled to any procedure or remedy under that subchapter, if the person:

(1) has sustained damages as a result of a violation of Sections 2301.351-2301.354 or Section 2301.357; or

(2) is a franchised dealer who has sustained damages as a result of a violation of:

(A) Subchapter J of this chapter [Sections 2301.451-2301.474]; or

(B) Subchapter E, Chapter 17, Business & Commerce Code.

SECTION 13. The change in law made by this Act applies only to an agreement entered into or renewed under Chapter 2301, Occupations Code, on or after the effective date of this Act. An agreement entered into or renewed before the effective date of this Act is governed by the law in effect on the date the agreement was entered into or renewed, and the former law is continued in effect for that purpose.

SECTION 14. This Act takes effect September 1, 2011.