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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 2301.263,
Occupations Code, is amended to read as follows:
Sec. 2301.263. LICENSE
ISSUED SUBJECT TO NEW LAW AND RULES. Notwithstanding any other law and
regardless of the renewal date of a franchise agreement, a [A]
license issued under this chapter is subject to each provision of this
chapter and board rule in effect on the date the license is issued or
renewed and each provision of this chapter and board rule that takes
effect during the term of the license.
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No
equivalent provision.
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SECTION 2. Section 2301.405,
Occupations Code, is amended by adding Subsection (c) to read as follows:
(c) A manufacturer or
distributor may not directly or indirectly recover from a dealer an amount
paid to the dealer under this subchapter:
(1) by imposing a
surcharge on the dealer; or
(2) in any manner other
than by a chargeback as provided by this section.
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No
equivalent provision.
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SECTION 3. Section
2301.4651, Occupations Code, is amended by amending Subsections (a) and (b)
and adding Subsection (i) to read as follows:
(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:
(1) [(A)]
discontinuing a line-make;
(2) [(B)]
ceasing to do business in this state; or
(3) [(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 completed 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 or substantially altering a dealership if the upgrades or
alterations were completed or added 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 calculated [as
it existed on the day before the earlier of]:
(A) without consideration
of the effect of the announcement of any termination; and [the date
of the termination or discontinuance described by Subsection (a); or]
(B) as if the franchise
were still in effect and products associated with the franchise were still
available [the date on which the manufacturer, distributor, or
representative announced its intention to terminate or discontinue the
franchise in a manner described by Subsection (a)].
(i) Except as
specifically provided by this section, this section does not affect the
rights granted, duties imposed, and procedures established under Sections
2301.453 and 2301.465.
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No
equivalent provision.
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SECTION 4. Sections
2301.467(b), (b-1), and (b-2), Occupations Code, are amended 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 [Subsections] (b-1) [and (b-2)],
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) Except as necessary to
comply with health or safety laws or to comply with technology requirements
necessary to sell or service a line-make, 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 10th anniversary of the date:
(1) the construction
of the dealership at that location was completed if the construction 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; or[.]
(2) [(b-2) Except
as necessary to comply with health or safety laws or to comply with
technology requirements necessary to sell or service a line-make, it is unreasonable
for a manufacturer, distributor, or representative to require a franchised
dealer to substantially change, alter, or remodel an existing dealership
before the 10th anniversary of the date that] a prior substantial
change, alteration, or remodel of the dealership at that location was
completed if the 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.
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No
equivalent provision.
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SECTION 5. Subchapter J,
Chapter 2301, Occupations Code, is amended by adding Section 2301.483 to
read as follows:
Sec. 2301.483. SELECTION
BY DEALER OF VENDOR OR MATERIALS FOR DEALERSHIP IMPROVEMENT. (a) Except as
provided by Subsection (b), a manufacturer or distributor may not require a
dealer to purchase or use specific materials or to purchase goods or
services from a specific vendor when making an upgrade or improvement to
the dealer's dealership.
(b) If a manufacturer or
distributor provides money directly to a dealer to compensate the dealer
for a specific upgrade or improvement, the dealer may select the materials
and vendors for upgrade or improvement but shall select materials and
vendors that are of like kind and quality to those specified by the
manufacturer or distributor, if any.
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No
equivalent provision.
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SECTION 6. Section 2301.652,
Occupations Code, is amended by adding Subsection (d) to read as follows:
(d) For purposes of Subsection
(b), a protesting dealer is presumed to be in substantial compliance with
the dealer's franchise if the dealer is not the subject of a pending
enforcement proceeding by the board or department. The presumption created
by this subsection is rebuttable.
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No
equivalent provision.
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SECTION 7. Section
2301.6521(d), Occupations Code, is amended to read as follows:
(d) A franchised
dealer may not protest an application to relocate a dealership under this
section if the proposed relocation site is not:
(1) more than two
miles [or less] from the dealership's current location; or
(2) closer to the
franchised dealer than the site from which the dealership is being
relocated.
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No
equivalent provision.
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SECTION 8. Section 2301.702,
Occupations Code, is amended to read as follows:
Sec. 2301.702. CONFLICT WITH
OTHER LAW; RULES GOVERNING HEARINGS. (a) To the extent of a
conflict between this chapter and Chapter 2001, Government Code, this
chapter controls.
(b) A board rule relating
to the procedures for a hearing on or the resolution of a dispute arising
under this chapter applies to the person conducting the hearing or dispute
resolution proceeding, regardless of whether that person is the board, the
department, or another person.
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No
equivalent provision.
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SECTION 9. (a) Section 10,
Chapter 684 (H.B. 2640), Acts of the 81st Legislature, Regular Session,
2009, is repealed.
(b) The changes in law made
by Chapter 684 (H.B. 2640), Acts of the 81st Legislature, Regular Session,
2009, apply to a license issued under Chapter 2301, Occupations Code,
regardless of the date the license was issued or renewed.
(c) Section 16, Chapter 137
(S.B. 529), Acts of the 82nd Legislature, Regular Session, 2011, is
repealed.
(d) The changes in law made
by Chapter 137 (S.B. 529), Acts of the 82nd Legislature, Regular Session,
2011, apply to a license issued under Chapter 2301, Occupations Code,
regardless of the date the license was issued or renewed.
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No
equivalent provision.
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SECTION 10. The changes in
law made by this Act apply to a license issued under Chapter 2301,
Occupations Code, regardless of the date the license is issued or renewed.
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No
equivalent provision.
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No
equivalent provision.
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SECTION 1. Section 2301.002,
Occupations Code, is amended by amending Subdivision (17-a) and adding
Subdivision (17-b) to read as follows:
(17-a) "Hearings
examiner" means a person employed by the department to preside over
hearings under this chapter.
(17-b)
"Independent mobility motor vehicle dealer" means a nonfranchised
dealer who:
(A) holds a general
distinguishing number issued by the board under Chapter 503, Transportation
Code;
(B) holds a converter's
license issued under this chapter;
(C) is engaged in the
business of buying, selling, or exchanging mobility motor vehicles and
servicing or repairing the devices installed on mobility motor vehicles at
an established and permanent place of business in this state; and
(D) is certified by the
manufacturer of each mobility device that the dealer installs, if the
manufacturer offers that certification.
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No
equivalent provision.
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SECTION 2. Subchapter C,
Chapter 2301, Occupations Code, is amended by adding Section 2301.104 to
read as follows:
Sec. 2301.104. HEARINGS
EXAMINERS. (a) The department may employ a chief hearings examiner and
one or more additional hearings examiners.
(b) A hearings examiner
must be licensed to practice law in this state.
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No
equivalent provision.
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SECTION 3. Sections
2301.606(b) and (c), Occupations Code, are amended to read as follows:
(b) In a hearing [before
the director] under this subchapter, a manufacturer, converter, or
distributor may plead and prove as an affirmative defense to a remedy under
this subchapter that a nonconformity:
(1) is the result of abuse,
neglect, or unauthorized modification or alteration of the motor vehicle;
or
(2) does not substantially
impair the use or market value of the motor vehicle.
(c) An order issued under
this subchapter may not require [The director may not issue an order
requiring] a manufacturer, converter, or distributor to make a refund
or to replace a motor vehicle unless:
(1) the owner or a person on
behalf of the owner has mailed written notice of the alleged defect or
nonconformity to the manufacturer, converter, or distributor; and
(2) the manufacturer,
converter, or distributor has been given an opportunity to cure the alleged
defect or nonconformity.
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No
equivalent provision.
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SECTION 4. Section
2301.607(c), Occupations Code, is amended to read as follows:
(c) If a final order is
not issued [the administrative law judge does not issue a proposal
for decision and recommend to the director a final order] before the
151st day after the date a complaint is filed under this subchapter, the department
[director] shall provide written notice by certified mail to the
complainant and to the manufacturer, converter, or distributor of the
expiration of the 150-day period and of the complainant's right to file a
civil action. The department [board] shall extend the
150-day period if a delay is requested or caused by the person who filed
the complaint.
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No
equivalent provision.
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SECTION 5. Section 2301.608,
Occupations Code, is amended to read as follows:
Sec. 2301.608. ASSESSMENT OF
COSTS FOR REPLACEMENT OR REFUND. (a) An order issued under this subchapter
must [In an order issued under this subchapter, the director shall]
name the person responsible for paying the cost of any refund or
replacement. A manufacturer, converter, or distributor may not cause a
franchised dealer to directly or indirectly pay any money not specifically required
[ordered] by the order [director].
(b) If the final order
requires [director orders] a manufacturer, converter, or
distributor to make a refund or replace a motor vehicle under this
subchapter, the final order [director] may require [order]
the franchised dealer to reimburse the owner, lienholder, manufacturer,
converter, or distributor only for an item or option added to the vehicle
by the dealer to the extent that the item or option contributed to the
defect that served as the basis for the order.
(c) In a case involving a
leased vehicle, the final order [director] may terminate the
lease and apportion allowances or refunds, including the reasonable
allowance for use, between the lessee and lessor of the vehicle.
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No
equivalent provision.
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SECTION 6. Section
2301.609(a), Occupations Code, is amended to read as follows:
(a) A party to a proceeding
[before the director] under this subchapter that is affected by a
final order [of the director] is entitled to judicial review of the
order under the substantial evidence rule in a district court of Travis
County.
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No
equivalent provision.
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SECTION 7. Section
2301.610(d), Occupations Code, is amended to read as follows:
(d) The department [board]
shall maintain a toll-free telephone number to provide information to a
person who requests information about a condition or defect that was the
basis for repurchase or replacement by an order issued under this
subchapter [of the director]. The department [board]
shall maintain an effective method of providing information to a person who
makes a request.
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No
equivalent provision.
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SECTION 8. Section 2301.703,
Occupations Code, is amended by adding Subsection (c) to read as follows:
(c) The parties to a
contested case under Section 2301.204 or Subchapter M must participate in
mediation as provided by board rule before the parties may have a hearing
in the case.
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No
equivalent provision.
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SECTION 9. Section 2301.704,
Occupations Code, is amended to read as follows:
Sec. 2301.704. HEARINGS
EXAMINER; ADMINISTRATIVE LAW JUDGE. (a) Except as otherwise
provided by this section, a [A] hearing under this chapter
[subchapter] must be held by an administrative law judge of the
State Office of Administrative Hearings.
(a-1) A hearing under
Section 2301.204 or Subchapter M must be held by a hearings examiner.
(b) An administrative law
judge and a hearings examiner have [has] all of the board's
power and authority as provided by [under] this chapter to
conduct hearings, including the power to:
(1) hold a hearing;
(2) administer an oath;
(3) receive pleadings and
evidence;
(4) issue a subpoena to
compel the attendance of a witness;
(5) compel the production of
papers and documents;
(6) issue an interlocutory
order, including a cease and desist order in the nature of a temporary
restraining order or a temporary injunction;
(7) make findings of fact
and conclusions of law; and
(8) issue a proposal for
decision and recommend a final order.
(c) In a contested case
hearing under Section 2301.204 or Subchapter M, a hearings examiner shall
issue a final order.
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No
equivalent provision.
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SECTION 10. Section
2301.713, Occupations Code, is amended to read as follows:
Sec. 2301.713. REHEARING. (a)
Except as otherwise provided by this section, a [A] party who
seeks a rehearing of an order shall seek the rehearing in accordance with
Chapter 2001, Government Code.
(b) The board by rule may
establish procedures to allow a party to a contested case to file a motion
for rehearing.
(c) A motion for
rehearing in a contested case under Section 2301.204 or Subchapter M must
be filed with and decided by the chief hearings examiner.
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No
equivalent provision.
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SECTION 11. Section
503.009(b), Transportation Code, is amended to read as follows:
(b) The procedures
applicable to a hearing conducted under this section are those applicable
to a hearing conducted as provided by Section 2301.606 [2301.606(a)],
Occupations Code.
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No
equivalent provision.
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SECTION 12. Section
2301.606(a), Occupations Code, is repealed.
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No
equivalent provision.
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SECTION 13. The changes in
law made by this Act apply only to a complaint filed or a proceeding
commenced on or after the effective date of this Act. A complaint filed or
a proceeding commenced before the effective date of this Act is governed by
the law in effect on the date the complaint was filed or the proceeding was
commenced, and the former law is continued in effect for that purpose.
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No
equivalent provision.
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SECTION 14. The changes in
law made by this Act apply to a person who holds a license issued under
Chapter 2301, Occupations Code, regardless of the date the license is
issued or renewed.
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SECTION 11. This Act takes
effect September 1, 2013.
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SECTION 15. This Act takes
effect January 1, 2014.
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