87R18751 JES-F
 
  By: Goldman H.B. No. 3408
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of motor fuel metering devices and motor
  fuel quality.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 2310.001(a), Occupations Code, is
  amended by amending Subdivisions (1), (3), (6), (7), and (8) and
  adding Subdivisions (1-a), (4-a), (5-a), (9-a), and (9-b) to read
  as follows:
               (1)  "Automotive fuel rating" has the meaning assigned
  by 15 U.S.C. Section 2821.
               (1-a)  "Commercial [weighing or] measuring device"
  means a [weighing or] measuring device used in a commercial
  transaction.
               (3)  "Dealer" means a person who[:
                     [(A)]  is the operator of a [service station or
  other] retail motor fuel facility [outlet; and
                     [(B)  delivers motor fuel into the fuel tanks of
  motor vehicles or motor boats].
               (4-a)  "Distributor" means a person who makes retail or
  wholesale sales of motor fuel.
               (5-a)  "Measuring device" means a mechanical or
  electronic device used to:
                     (A)  dispense or deliver a motor fuel by volume,
  flow rate, or other measure; or
                     (B)  compute the charge for a service related to
  motor fuel.
               (6)  "Motor fuel" means gasoline, diesel fuel, gasoline
  blended fuel, aviation gasoline, aviation jet fuel, compressed
  natural gas, liquefied natural gas, and other products that are
  capable of use as fuel for a gasoline-powered engine or a
  diesel-powered engine [has the meaning assigned by Section 162.001,
  Tax Code].
               (7)  "Motor fuel metering device" means a commercial
  [weighing or] measuring device used for motor fuel sales.
               (8)  "Operator" or "user" means a person in possession
  or control of a [weighing or] measuring device, including an owner,
  custodian, or seller.
               (9-a)  "Supplier" has the meaning assigned by Section
  162.001, Tax Code.
               (9-b)  "Wholesaler" means a person who purchases
  tax-paid motor fuel for resale or distribution at wholesale.
         SECTION 2.  Section 2310.002(c), Occupations Code, is
  amended to read as follows:
         (c)  The department may contract with one or more license
  holders under Subchapter D [of this chapter or Subchapter I,
  Chapter 13, Agriculture Code,] to perform the department's duties
  under this chapter related to motor fuel metering devices. A
  reference in this chapter to the commission or department in the
  context of a contracted service means the contractor.
         SECTION 3.  Chapter 2310, Occupations Code, is amended by
  adding Subchapter A-1 to read as follows:
  SUBCHAPTER A-1. ADVISORY BOARD
         Sec. 2310.031.  DEFINITION. In this subchapter, "board"
  means the Motor Fuel Metering and Quality Advisory Board.
         Sec. 2310.032.  BOARD MEMBERSHIP. (a)  The board consists of
  nine members appointed by the presiding officer of the commission,
  with the approval of the commission, as follows:
               (1)  four members who are dealers or representatives
  designated by the dealers, including:
                     (A)  one dealer that has fewer than 501 motor fuel
  metering devices registered with the department;
                     (B)  one dealer that has more than 1,000 but fewer
  than 5,000 motor fuel metering devices registered with the
  department;
                     (C)  one dealer that has more than 5,000 motor
  fuel metering devices registered with the department; and 
                     (D)  one dealer without regard to the dealer's
  number of motor fuel metering devices registered with the
  department;
               (2)  two members who represent service companies, as
  defined by Section 2310.151;
               (3)  one member who represents a wholesaler or
  distributor;
               (4)  one member who represents a supplier; and
               (5)  one member of the public.
         (b)  The presiding officer of the commission, with the
  approval of the commission, shall appoint two ex officio nonvoting
  members of the board. An ex officio member is not counted as a
  member for purposes of establishing a quorum. The ex officio
  members must include:
               (1)  one member who represents:
                     (A)  a financial institution, as defined by
  Section 277.001, Finance Code; or
                     (B)  a credit card issuer other than a financial
  institution; and
               (2)  one member who represents a law enforcement
  agency.
         (c)  Appointments to the board shall be made without regard
  to the race, color, disability, sex, religion, age, or national
  origin of the appointees.
         Sec. 2310.033.  TERMS; VACANCY. (a) Members of the board
  serve staggered six-year terms, with the terms of three or four
  members expiring on February 1 of each odd-numbered year.
         (b)  If a vacancy occurs during a member's term, the
  presiding officer of the commission, with the commission's
  approval, shall appoint a replacement to fill the unexpired term.
         Sec. 2310.034.  PRESIDING OFFICER. The presiding officer of
  the commission, with the approval of the commission, shall appoint
  one of the board members to serve as presiding officer of the board
  for a term of one year.
         Sec. 2310.035.  DUTIES. The board may advise the commission
  and department on:
               (1)  the adoption of appropriate standards for the
  installation, maintenance, calibration, alteration, operation,
  testing, or inspection, as applicable, of:
                     (A)  motor fuel dispensing devices;
                     (B)  motor fuel metering devices; and
                     (C)  motor fuel;
               (2)  education and curricula for applicants for a
  license issued under this chapter and license holders;
               (3)  the content of examinations;
               (4)  proposed rules and standards on technical issues
  related to motor fuel metering and quality and payment card
  skimmers; and
               (5)  other issues affecting motor fuel metering and
  quality.
         Sec. 2310.036.  MEETINGS. The advisory board shall meet at
  the call of the executive director or the presiding officer of the
  commission.
         SECTION 4.  The heading to Subchapter B, Chapter 2310,
  Occupations Code, is amended to read as follows:
  SUBCHAPTER B. STANDARD [WEIGHTS AND] MEASURES FOR MOTOR FUEL
         SECTION 5.  Sections 2310.051(a), (c), and (d), Occupations
  Code, are amended to read as follows:
         (a)  The legal standard for the [weight or] measure of a
  motor fuel in this state is the standard [weight or] measure adopted
  and used by the government of the United States for that motor fuel.
  If the United States does not provide a standard [weight or] measure
  for a motor fuel, the standard for the motor fuel is that
  established by this subchapter.
         (c)  Except as otherwise provided by an express contract, a
  contract for work or sales by [weight or] measure of a motor fuel
  shall be construed in accordance with the standards of this
  subchapter.
         (d)  The standards of this subchapter shall be the guide for
  making any adjustment of [weighing or] measuring devices under the
  law of this state.
         SECTION 6.  Section 2310.053, Occupations Code, is amended
  by adding Subsection (c) to read as follows:
         (c)  Notwithstanding Section 2310.002, this chapter does not
  apply to a weighing or measuring device, as defined by Section
  13.001, Agriculture Code, that measures liquefied petroleum gas.
         SECTION 7.  Sections 2310.054(a) and (c), Occupations Code,
  are amended to read as follows:
         (a)  Motor [Except as otherwise provided by this section,
  motor] fuel shall be sold by liquid measure.
         (c)  A person violates this chapter if, in violation of this
  section, the person sells motor fuel by other than [weight or]
  liquid measure.
         SECTION 8.  Section 2310.056, Occupations Code, is amended
  to read as follows:
         Sec. 2310.056.  FALSE REPRESENTATION OF MOTOR FUEL QUANTITY.
  A person violates this chapter if the person or the person's
  representative or agent:
               (1)  sells or offers or exposes for sale a quantity of
  motor fuel that is less than the quantity the person represents; or
               (2)  as a buyer furnishing the [weight or] measure of a
  motor fuel by which the amount of the motor fuel is determined,
  takes or attempts to take more than the quantity the person
  represents.
         SECTION 9.  Section 2310.057, Occupations Code, is amended
  to read as follows:
         Sec. 2310.057.  USE OF INCORRECT MOTOR FUEL METERING DEVICE.  
  (a)  A person commits an offense if the person or the person's
  representative or agent knowingly uses an incorrect [weighing or]
  measuring device in:
               (1)  buying or selling motor fuel;
               (2)  computing a charge for services rendered on the
  basis of [weight or] measure; or
               (3)  determining the [weight or] measure of motor fuel,
  if a charge is made for the determination.
         (b)  For the purpose of this section, a [weighing or]
  measuring device is incorrect if it:
               (1)  does not conform as closely as practicable to the
  official standards;
               (2)  is not accurate;
               (3)  is of a construction that is not reasonably
  permanent in adjustment or does not correctly repeat its
  indications;
               (4)  facilitates the perpetration of fraud; or
               (5)  does not conform to the specifications and
  tolerances under Section 2310.107.
         SECTION 10.  Sections 2310.059(a) and (c), Occupations Code,
  are amended to read as follows:
         (a)  The department shall from time to time [weigh or]
  measure an amount of motor fuel that is kept or offered for sale,
  sold, or in the process of delivery, in order to determine:
               (1)  if the motor fuel is of the amount or quantity
  represented; or
               (2)  if the motor fuel is being offered for sale or sold
  in accordance with law.
         (c)  A person commits an offense if the person or the
  person's employee or agent refuses to exhibit motor fuel being sold
  or offered for sale at a given [weight or] quantity, or ordinarily
  sold in that manner, to the department for testing and proving as to
  quantity.
         SECTION 11.  Sections 2310.060(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  If the department has reason to believe that motor fuel
  is being sold or kept, offered, or exposed for sale in violation of
  this chapter or that motor fuel is being sold or offered for sale by
  or through the use of a motor fuel metering device that is in
  violation of this chapter, the executive director may issue an
  order to stop the sale of the motor fuel. The executive director
  shall issue the order to the dealer or operator of the retail motor
  fuel facility selling [owner or custodian of] the motor fuel or
  offering the motor fuel for sale [or seller of the motor fuel]. The
  person receiving the order may not sell the motor fuel until
  discharged by a court under Subsection (b) or until the executive
  director finds that the motor fuel or motor fuel metering device is
  in compliance with this chapter.
         (b)  A dealer or operator [The owner, custodian, or seller of
  motor fuel] prohibited from selling motor fuel [sale] by an order of
  the executive director is entitled to sue in a court where the motor
  fuel is found or is being sold or offered for sale for a judgment as
  to the justification of the order and for the discharge of the motor
  fuel in accordance with the findings of the court.
         SECTION 12.  Section 2310.061(b), Occupations Code, is
  amended to read as follows:
         (b)  It is a defense to prosecution or to the imposition of a
  civil or administrative penalty for a violation of Section 2310.057
  or 2310.059 that a discrepancy between the actual [weight or]
  volume at the time of sale to a consumer or a discrepancy between
  the fill of a container and the capacity of the container is due to
  unavoidable leakage, shrinkage, evaporation, waste, or causes
  beyond the control of the seller acting in good faith.
         SECTION 13.  Section 2310.101(a), Occupations Code, is
  amended to read as follows:
         (a)  If the department has reason to believe that a motor
  fuel metering device is being used for a commercial transaction and
  the device is not registered with the department or is being used to
  facilitate the perpetration of fraud, the department may inspect
  the device and the records [of the owner, operator, or user of the
  device] that relate to use of the device to determine whether the
  device is in compliance with this chapter.
         SECTION 14.  Sections 2310.106(b), (c), (f), and (g),
  Occupations Code, are amended to read as follows:
         (b)  The commission may adopt rules to regulate the frequency
  and place of inspection and correction of the standards for motor
  fuel used by an individual or business licensed by the department to
  perform device maintenance activities under Subchapter D [or an
  individual or business licensed under Subchapter I, Chapter 13,
  Agriculture Code].
         (c)  The department may inspect any standard for motor fuel
  used by an individual or business licensed by the department to
  perform device maintenance activities described by Subchapter D [or
  an individual or business licensed under Subchapter I, Chapter 13,
  Agriculture Code], if the department has reason to believe a
  standard is no longer in compliance with this chapter.
         (f)  The state metrology laboratory, or a metrology
  laboratory certified by the National Institute of Standards and
  Technology and approved by the department, shall inspect and
  correct the standards for motor fuel used by the [a] department or
  [inspector, another department employee,] an individual or
  business licensed by the department to perform device maintenance
  activities under Subchapter D[, or an individual or business
  licensed under Subchapter I, Chapter 13, Agriculture Code].
         (g)  The department and the state metrology laboratory may
  [shall] enter into a memorandum of understanding to implement this
  section. The memorandum of understanding must provide department
  personnel and persons licensed under Subchapter D with access to
  state metrology laboratory services equal to the access provided to
  Department of Agriculture personnel and persons licensed under
  Subchapter I, Chapter 13, Agriculture Code, and under equivalent
  terms and conditions.
         SECTION 15.  Section 2310.110(b), Occupations Code, is
  amended to read as follows:
         (b)  A person commits an offense if the person or the
  person's representative or agent knowingly:
               (1)  offers or exposes for sale, hire, or award or sells
  an incorrect motor fuel metering device;
               (2)  possesses an incorrect motor fuel metering device;
  or
               (3)  sells, offers for sale, uses, or possesses for the
  purpose of sale or use a device or instrument to be used to falsify
  or intended to falsify a [weight or] measure for motor fuel.
         SECTION 16.  Section 2310.154(a), Occupations Code, is
  amended to read as follows:
         (a)  A person is not required to hold a license issued under
  this subchapter if the person:
               (1)  is a department employee who is performing device
  maintenance activities in the scope of the person's duties for the
  department;
               (2)  is the owner or operator of a motor fuel metering
  device or an employee of the owner or operator of a motor fuel
  metering device and the person:
                     (A)  completely removes the motor fuel metering
  device from the location at which the device was installed,
  including a device subject to an out-of-order tag, stop-sale order,
  security seal, lock, condemnation notice, or other item placed on
  the device by the department to prohibit use of the device; and
                     (B)  notifies the department of the motor fuel
  metering device's removal not later than the 10th day after the date
  the device was removed in the manner provided by commission rule; or
               (3)  performs device maintenance activities only on a
  motor fuel metering device that is:
                     (A)  exempt from the inspection and registration
  requirements of Sections 2310.102 and 2310.103 under commission
  rules; and
                     (B)  not required to be inspected by other
  commission rules[; or
               [(4)  is a license holder under Subchapter I, Chapter
  13, Agriculture Code].
         SECTION 17.  Section 2310.2012(a), Occupations Code, is
  amended to read as follows:
         (a)  Except as provided by Subsection (b), a distributor,
  supplier, or wholesaler[, or jobber] of motor fuel may not deliver
  to an outlet in this state a motor fuel mixture that contains
  ethanol or methanol exceeding one percent by volume of the mixture
  unless, at the time of the delivery of the mixture, the person also
  delivers to the outlet receiving the delivery a manifest, bill of
  sale, bill of lading, or other document evidencing delivery of the
  mixture, that includes a statement containing:
               (1)  the percentage of ethanol or methanol contained in
  the mixture; and
               (2)  the types and percentages of any associated
  cosolvents contained in the mixture.
         SECTION 18.  Sections 2310.2013(b), (c), and (d),
  Occupations Code, are amended to read as follows:
         (b)  Each distributor, supplier, and wholesaler[, and
  jobber] of motor fuel shall keep a copy of each document required to
  be delivered to the dealer by Section 2310.2012 until the fourth
  anniversary of the delivery date.
         (c)  The department or an authorized representative of the
  department may inspect documents described by this section. On
  written notice issued by the department or an authorized
  representative of the department to any employee at a dealer's
  [station or] retail motor fuel facility [outlet] or mailed to the
  principal place of business of a dealer, distributor, supplier, or
  wholesaler, [or jobber,] the dealer, distributor, supplier, or
  wholesaler[, or jobber] shall provide the department or authorized
  representative of the department with the documents described by
  this section within the period specified in the notice.
         (d)  The commission by rule may:
               (1)  require each dealer, distributor, supplier, and
  wholesaler[, and jobber] to maintain and make available to the
  department:
                     (A)  invoices, receipts, or other transmittal
  documents or records, including electronically stored information,
  showing or describing the purchase, sale, delivery, or distribution
  of motor fuel;
                     (B)  invoices, receipts, work orders, reports, or
  other documents, including electronically stored information,
  showing or describing the installation, maintenance, or repair of:
                           (i)  motor fuel dispensing devices; and
                           (ii)  any equipment used in connection with
  motor fuel dispensing devices to record, display, or produce
  receipts or audit trails concerning the purchase, sale, delivery,
  or distribution of motor fuel; and
                     (C)  any record or other document related to the
  sampling and testing of motor fuel purchased, sold, delivered, or
  distributed by the dealer, distributor, supplier, or wholesaler[,
  or jobber]; and
               (2)  prescribe:
                     (A)  the manner of filing documents or records
  required to be kept under this section or by commission rule; and
                     (B)  the time, place, and manner of inspection of
  the documents or records.
         SECTION 19.  Sections 2310.2014(b) and (c), Occupations
  Code, are amended to read as follows:
         (b)  Each distributor, [or] supplier, or wholesaler shall
  keep for at least one year at the distributor's, [or] supplier's, or
  wholesaler's principal place of business a copy of each delivery
  ticket or letter of certification required to be delivered by the
  distributor, [or] supplier, or wholesaler to a dealer in this state
  under 16 C.F.R. Part 306.
         (c)  The department or an authorized representative of the
  department may inspect a document required to be kept under this
  section. On written notice issued by the department or an
  authorized representative of the department to any employee at a
  dealer's [station or] retail motor fuel facility [outlet] or mailed
  to the dealer's principal place of business, the dealer shall
  provide the department or authorized representative of the
  department with the documents described by this section within the
  period specified in the notice.
         SECTION 20.  Section 2310.2015(b), Occupations Code, is
  amended to read as follows:
         (b)  A distributor, wholesaler, or supplier of motor fuel may
  not deliver or transfer to a dealer in this state motor fuel that
  has an automotive fuel rating lower than the certification of the
  rating the distributor, wholesaler, or supplier is required to make
  to the dealer under federal law.
         SECTION 21.  Sections 2310.203(a), (c), and (d), Occupations
  Code, are amended to read as follows:
         (a)  The department or an authorized [a] representative of
  the department may collect samples and conduct testing at any
  location where motor fuel is kept, transferred, sold, or offered
  for sale to verify that the motor fuel complies with the minimum
  standards required by Section 2310.202. A person who holds a
  license issued under Subchapter D is considered an authorized
  representative of the department for purposes of this section.
         (c)  On arriving at a facility to conduct testing under
  Subsection (a), the department or an authorized [a] representative
  of the department shall notify the owner or manager of the facility
  of the department's or representative's presence and purpose. The
  department or representative shall follow the most recent
  applicable procedures specified by the American Society for Testing
  and Materials (ASTM) International Standard D4057, D4177, D5842, or
  D5854 for the collection, sampling, and handling of fuel to prepare
  for laboratory analysis.
         (d)  A person commits an offense if the person refuses to
  allow the [a] department or an authorized representative of the
  department to collect samples or conduct motor fuel testing under
  Subsection (a).
         SECTION 22.  Sections 2310.207(a) and (b), Occupations Code,
  are amended to read as follows:
         (a)  If a dealer or a distributor, supplier, or wholesaler[,
  or jobber] of motor fuel violates Section 2310.201, 2310.2012,
  2310.2013, 2310.2014, or 2310.2015, a person [motor fuel user] who
  purchased the motor fuel and sustained damages or who has a
  complaint about the product may bring an action against the dealer,
  distributor, supplier, or wholesaler[, or jobber].
         (b)  The action may be brought, without regard to the
  specific amount of damages, in the district court in any county in
  which:
               (1)  the dealer, distributor, supplier, or
  wholesaler[, or jobber] transacts business; or
               (2)  the dealer resides.
         SECTION 23.  Section 2310.208, Occupations Code, is amended
  to read as follows:
         Sec. 2310.208.  CIVIL PENALTY.  A dealer, distributor,
  supplier, or wholesaler[, or jobber] who violates Section 2310.201,
  2310.2012, 2310.2013, 2310.2014, or 2310.2015 is liable to this
  state for a civil penalty of not less than $200 and not more than
  $10,000.
         SECTION 24.  The following provisions of the Occupations
  Code are repealed:
               (1)  Sections 2310.001(a)(10), (a)(11), and (b);
               (2)  Section 2310.054(b);
               (3)  Section 2310.101(b);
               (4)  Section 2310.106(e);
               (5)  Section 2310.2001; and
               (6)  Section 2310.203(b).
         SECTION 25.  (a) Not later than February 1, 2022, the
  presiding officer of the Texas Commission of Licensing and
  Regulation shall appoint members to the Motor Fuel Metering and
  Quality Advisory Board in accordance with Section 2310.032,
  Occupations Code, as added by this Act.
         (b)  Notwithstanding Section 2310.033, Occupations Code, as
  added by this Act, in making the initial appointments to the Motor
  Fuel Metering and Quality Advisory Board, the presiding officer of
  the Texas Commission of Licensing and Regulation shall designate
  three members of the advisory board to serve terms expiring
  February 1, 2023, four members to serve terms expiring February 1,
  2025, and four members to serve terms expiring February 1, 2027.
         SECTION 26.  (a)  The changes in law made by this Act to
  Chapter 2310, Occupations Code, do not affect the validity of a
  proceeding pending before a court or other governmental entity on
  the effective date of this Act.
         (b)  An offense or other violation committed before the
  effective date of this Act is governed by the law in effect on the
  date the offense or violation was committed, and the former law is
  continued in effect for that purpose. For purposes of this section,
  an offense or violation was committed before the effective date of
  this Act if any element of the offense or violation was committed
  before that date.
         SECTION 27.  This Act takes effect September 1, 2021.