By: Goldman H.B. No. 1695
A BILL TO BE ENTITLED
AN ACT
relating to the transfer of the regulation of motor fuel metering
and motor fuel quality from the Texas Department of Agriculture to
the Texas Department of Licensing and Regulation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 14, Occupations Code, is
amended by adding Chapter 2310 to read as follows:
CHAPTER 2310. MOTOR FUEL AND METERING AND QUALITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2310.001. DEFINITIONS. (a) In this chapter:
(1) "Commission" means the Texas Commission of
Licensing and Regulation
(2) "Department" means Texas Department of Licensing
and Regulation
(3) "Commercial weighing or measuring device" means a
weighing or measuring device used in a commercial transaction.
(4) "Dealer" means a person who:
(A) is the operator of a service station or other
retail outlet; and
(B) delivers motor fuel into the fuel tanks of
motor vehicles or motor boats.
(5) "Motor fuel" has the meaning assigned by Section
162.001, Tax Code.
(6) "Motor fuel metering device" means a commercial
weighing or measuring device used for motor fuel sales.
(7) "Operator" or "user" means a person in possession
or control of a weighing or measuring device.
(8) "Sell" includes barter or exchange.
(9) "Weighing or measuring device" means a scale or a
mechanical or electronic device used to dispense or deliver a motor
fuel by weight, volume, flow rate, or other measure or to compute
the charge for a service.
(10) "Weight or measure of a motor fuel" means the
weight or measure of a motor fuel as determined by a weighing or
measuring device.
(b) A reference to the weight of a motor fuel in this chapter
is a reference to the net weight of the motor fuel.
Sec. 2310.002. ENFORCEMENT OF CHAPTER. (a)
Notwithstanding any other law, the department shall enforce the
provisions of this chapter and shall supervise all motor fuel
metering devices sold or offered for sale in this state. The
department may purchase apparatus as necessary for the
administration of this chapter.
(b) To the extent that this chapter conflicts with Chapter
13, Agriculture Code, with regard to motor fuel metering devices,
this chapter controls.
(c) The department may contract with one or more license
holders under Subchapter D 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.
Sec. 2310.003. CIVIL PENALTY; INJUNCTION. (a) A person who
violates Subchapter B or C or a rule adopted under Subchapter B or C
is liable to the state for a civil penalty not to exceed $500 for
each violation. Each day a violation continues may be considered a
separate violation for purposes of a civil penalty assessment.
(b) On request of the department, the attorney general or
the county attorney or district attorney of the county in which the
violation is alleged to have occurred shall file suit to collect the
penalty.
(c) A civil penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund. All civil penalties recovered in suits first instituted by a
local government or governments under this section shall be equally
divided between the State of Texas and the local government or
governments with 50 percent of the recovery to be paid to the
general revenue fund and the other 50 percent equally to the local
government or governments first instituting the suit.
(d) The department is entitled to appropriate injunctive
relief to prevent or abate a violation of this chapter or a rule
adopted under this chapter. On request of the department, the
attorney general or the county or district attorney of the county in
which the alleged violation is threatened or is occurring shall
file suit for the injunctive relief. Venue is in the county in
which the alleged violation is threatened or is occurring.
(e) The department and the attorney general may each recover
reasonable expenses incurred in obtaining injunctive relief and
civil penalties under this section, including investigative costs,
court costs, reasonable attorney's fees, witness fees, and
deposition expenses. The expenses recovered by the department may
be appropriated only to the department for the administration and
enforcement of this chapter. The expenses recovered by the
attorney general may be appropriated only to the attorney general.
SUBCHAPTER B. STANDARD WEIGHTS AND MEASURES FOR MOTOR FUEL
METERING DEVICES
Sec. 2310.051. LEGAL STANDARDS. (a) The legal standard for
the weight or measure of 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 motor fuel, the standard for motor
fuel is that established by this subchapter.
(b) The commission may adopt rules for the purpose of
administering this subchapter and bringing about uniformity
between the standards established under this subchapter and the
standards established by federal law.
(c) Except as otherwise provided by an express contract, a
contract for work or sales by weight or measure of 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.
Sec. 2310.052. STANDARD FOR LIQUID CAPACITY. (a) The
standard unit of measure of capacity for liquids is the gallon.
(b) Except as provided by Subsections (c) and (d), all other
measures of capacity for liquids are derived from the gallon by
continual division by two, making half gallons, quarts, pints, half
pints, and gills.
(c) A mechanism or machine that is adapted to measure and
deliver liquid by volume and that indicates fractional parts of a
gallon shall indicate the fractional parts either in terms of
binary submultiple subdivisions or in terms of tenths of a gallon.
(d) For purposes of the retail sale of motor fuel only, the
liquid gallon contains 231 cubic inches without adjustment based on
the temperature of the liquid.
Sec. 2310.053. EXEMPTION OF WEIGHING OR MEASURING DEVICES.
(a) The commission by rule may exempt a motor fuel metering device
from a requirement established by this chapter if the commission
determines that imposing or enforcing the requirement:
(1) is not cost-effective for the department;
(2) is not feasible with current resources or
standards; or
(3) will not substantially benefit or protect
consumers.
(b) A motor fuel metering device is exempt from the
requirements of this chapter if the motor fuel metering device is
not used to:
(1) calculate the amount of fuel sold in a commercial
transaction; or
(2) compute the charge for service.
Sec. 2310.054. SALE OF MOTOR FUEL BY PROPER MEASURE. (a)
Except as otherwise provided by this section, motor fuel shall be
sold by liquid measure.
(b) A person violates this chapter if, in violation of this
section, the person sells motor fuel by other than liquid measure.
Sec. 2310.055. PRICE ADVERTISEMENT; MISREPRESENTATION OF
PRICE OR QUANTITY. (a) If a price sign, card, tag, poster, or other
advertisement displaying the price of motor fuel includes a whole
number and a fraction, the figures in the fraction shall be of
proportionate size and legibility to those of the whole number.
(b) A person violates this chapter if the person:
(1) misrepresents the price of motor fuel sold or
offered or exposed for sale; or
(2) represents the price or the quantity of motor fuel
sold or offered or exposed for sale in a manner intended or tending
to mislead or deceive an actual or prospective customer.
Sec. 2310.056. FALSE REPRESENTATION OF MOTOR FUEL QUANTITY.
A person violates this chapter if the person or the person's servant
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
motor fuel by which the amount of the motor fuel is determined,
takes or attempts to take more than the quantity the person
represents.
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 measuring
device in:
(1) buying or selling motor fuel;
(2) computing a charge for services rendered on the
basis of measure; or
(3) determining the measure of motor fuel, if a charge
is made for the determination.
(b) For the purpose of this section, a 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 established by the department under Section 2310.108.
Sec. 2310.058. SALE OF MOTOR FUEL IN VIOLATION OF
SUBCHAPTER. A person violates this chapter if the person or the
person's representative or agent sells or keeps, offers, or exposes
for sale motor fuel in violation of this subchapter.
Sec. 2310.059. TESTING BY DEPARTMENT. (a) The department
shall from time to time 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.
(b) If the department finds that any lot of motor fuel
contains less of the motor fuel than the amount represented, the
department may seize the motor fuel as evidence.
(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.
Sec. 2310.060. STOP-SALE ORDER. (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
department may issue and enforce a written or printed order to stop
the sale of the motor fuel. The department shall present the order
to the owner or custodian of the motor fuel or seller of the motor
fuel. The person receiving the order may not sell the motor fuel or
provide the service until discharged by a court under Subsection
(b) or until the commission finds that the motor fuel or motor fuel
metering device is in compliance with this chapter.
(b) The owner or custodian of motor fuel or a person selling
or offering for sale a service prohibited from sale by an order of
the department is entitled to sue in a court of competent
jurisdiction where the motor fuel is found or the service 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.
(c) This section does not limit the right of the department
to proceed as authorized by other sections of this code.
Sec. 2310.061. PENALTIES; DEFENSE. (a) An offense under
Section 2310.057 or 2310.059 is a Class C misdemeanor.
(b) It is a defense to prosecution or to the imposition of a
civil or administrative penalty for a violation of Sections 2310.11
or 2310.059 that a discrepancy between the actual 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.
SUBCHAPTER C. INSPECTION AND REGISTRATION OF MOTOR FUEL METERING
DEVICES
Sec. 2310.101. AUTHORITY TO INSPECT. (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, 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.
(b) The department has reason to believe a motor fuel
metering device is being used for a commercial transaction if:
(1) the motor fuel metering device is found in close
proximity to motor fuel being sold or offered for sale by measure
and the device appears to be under the control or in the possession
of the person selling the motor fuel or offering the motor fuel for
sale; or
(2) other available evidence is sufficient for a
prudent person to believe that the motor fuel metering device is
being used for a commercial transaction.
Sec. 2310.105. REPAIR OR DESTRUCTION OF INCORRECT MOTOR
FUEL METERING DEVICES. (a) If, in the judgment of the department,
a motor fuel metering device found to be incorrect is not capable of
being repaired, the department may condemn, seize, and destroy the
device.
(b) If, in the judgment of the department, an incorrect
motor fuel metering device is capable of being repaired, the
department shall place on the device a tag or other mark with the
words "Out of Order." The owner or user of the motor fuel metering
device may not use it until it is reinspected and released for use
by the department or inspected and released for use in any other
manner authorized by commission rule.
(c) The owner, operator, or user of a motor fuel metering
device may not destroy, replace, or otherwise dispose of a device
declared to be incorrect or condemned under this section except as
provided by department rule.
Sec. 2310.106. TESTS FOR STATE INSTITUTIONS. As requested
by the comptroller or the governing body of a state institution, the
department shall test each motor fuel metering device used by a
state institution for any purpose, including a motor fuel metering
device used in checking the receipt and distribution of supplies.
The department shall report results of the test to the chairman of
the governing body of the institution.
Sec. 2310.107. STANDARDS USED IN INSPECTION. (a) The
standards of weights and measures maintained by the department and
certified by the National Institute of Standards and Technology or
a metrology laboratory certified by the National Institute of
Standards and Technology are the state's standards by which all
state and local standards of weights and measures are tried,
authenticated, proved, and certified.
(b) The department shall maintain the primary standards in a
safe and suitable place in the offices of the department. The
standards may not be moved except for repairs or certification. The
department shall maintain the standards in good order and shall
submit them to the National Institute of Standards and Technology
or to a laboratory approved by the National Institute of Standards
and Technology for certification at least once each 10 years.
(c) In addition to the standards kept by the state, the
department shall maintain a complete set of copies of the original
standards for use in adjusting local standards or in the
performance of other official duties. The department may purchase
additional sets of standards as necessary for use by a department
inspector or other department personnel.
(d) At the request of a city, the department shall furnish
the city with copies of the state's standards or test and approve
other standards acquired by the city. The city shall reimburse the
state for the actual cost of the standards furnished, plus the costs
of freight and certification. All standards furnished to or tested
for a city shall be true and correct and certified by the
department. The copies used by a city may be of any suitable
material or construction that the city requests, subject to
approval by the department.
(e) The department, or a metrology laboratory certified by
the National Institute of Standards and Technology and approved by
the department, shall inspect and correct the standards used by a
department inspector, other department employee, or 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.
(f) The commission may adopt rules to regulate the frequency
and place of inspection and correction of the standards 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.
(g) The department may inspect any standard 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.
(h) The department shall keep a record of the inspection and
character of standards inspected under this section.
Sec. 2310.108. TOLERANCES. Specifications and tolerances
for motor fuel metering devices shall be the same as those
recommended by the National Institute of Standards and Technology.
Sec. 2310.109. FEES. The commission by rule shall
establish fees in amounts reasonable and necessary to cover the
cost of administering this chapter.
(b) Notwithstanding any other law, the department may not in
a state fiscal biennium increase a fee under Subsection (a) for a
motor fuel metering device by an amount that exceeds 10 percent of
the amount of the fee at the end of the preceding state fiscal
Sec. 2310.110. REFUSING TO ALLOW TEST OF MOTOR FUEL
METERING DEVICE.
(a) A person commits an offense if the person refuses to
allow a motor fuel metering device under the person's control or in
the person's possession to be inspected, tested, or examined by the
department, and the inspection, test, or examination is required or
authorized by this chapter.
(b) A person commits an offense if the person hinders or
obstructs in any way the department, a department inspector or
other department personnel in the performance of official duties.
(c) A person commits an offense if the person removes or
obliterates a tag or device placed or required by the department to
be placed on a motor fuel metering device under this chapter.
Sec. 2310.111. SALE OR USE OF INCORRECT MOTOR FUEL METERING
DEVICE. (a) The department may condemn and prohibit the sale or
distribution of any incorrect motor fuel metering device that is
sold, offered for sale, or about to be sold in this state.
(b) A person commits an offense if the person or the
person's servant 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.
Sec. 2310.112. DISPOSING OF CONDEMNED MOTOR FUEL METERING
DEVICE. A person commits an offense if the person or the person's
servant or agent disposes of a motor fuel metering device condemned
under Section 2310.105 or 2310.110 in a manner contrary to those
sections.
Sec. 2310.113. PENALTIES. An offense under each of
Sections 2310.110 through 2310.112 is a Class C misdemeanor.
SUBCHAPTER D. LICENSING OF MOTOR FUEL METERING DEVICE SERVICE
TECHNICIANS AND MOTOR FUEL METERING DEVICE SERVICE COMPANIES
Sec. 2310.201. DEFINITIONS. In this subchapter:
(1) "License holder" means a person who holds a motor
fuel metering device service company license or a motor fuel
metering device service technician license.
(2) "Service company" means a person who holds a motor
fuel metering device service company license issued by the
department under this subchapter.
(3) "Service technician" means an individual who holds
a motor fuel metering device service technician license issued by
the department under this subchapter.
Sec. 2310.202. DEVICE MAINTENANCE ACTIVITIES. A person
performs device maintenance activities if the person or the
person's employee:
(1) places a motor fuel metering device in service;
(2) installs, calibrates, inspects, tests or repairs a
motor fuel metering device; or
(3) removes an out-of-order tag, stop-sale order,
security seal, lock, condemnation notice, or other form of use
prohibition placed on a motor fuel metering device by the
department.
Sec. 2310.203. POWERS AND DUTIES OF DEPARTMENT. (a) To
verify compliance with licensing requirements, trade practices,
department rules, and this chapter, the department may periodically
or in response to a complaint or previous violation inspect an
applicant's or license holder's:
(1) facilities;
(2) inspecting and testing equipment and procedures;
(3) repair and calibration equipment, standards, and
procedures;
(4) transportation equipment; and
(5) invoices, work orders, and other records related
to device maintenance activities.
(b) The department may periodically or in response to a
complaint or previous violation monitor and inspect or test motor
fuel metering devices that have been inspected and tested by a
license holder and any standards used by the license holder during
an inspection or test.
(c) The commission by rule may adopt additional
requirements for the issuance of a license and for the denial of an
application for a license or renewal of a license. Rules adopted by
the commission under this subsection must be designed to protect
the public health, safety, and welfare and the proper inspection,
testing, and operation of commercial motor fuel metering devices.
(d) The commission may adopt other rules necessary for the
regulation of device maintenance activities, for the proper
operation of motor fuel metering devices, and to protect the
health, safety, and welfare of the public and license holders.
(e) The department may specify the date, time, and place for
any inspection authorized by this section.
Sec. 2310.204. EXEMPTIONS FROM LICENSE REQUIREMENTS. (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 commercial weighing
or measuring motor fuel metering device or an employee of the owner
or operator of a commercial weighing or measuring motor fuel
metering device and the person:
(A) completely removes the commercial weighing
or measuring 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 device's
removal not later than the 10th day after the date the device was
removed in the manner provided by department rule; or
(3) performs device maintenance activities only on a
device that is:
(A) exempt from the registration requirements of
Section 2310.103 under commission rules;
(B) exempt from the inspection requirements of
Section 2310.102 under commission rules; and
(C) not required to be inspected by other
commission rules; or
(4) is a license holder under Subchapter I, Chapter
13, Agriculture Code.
(b) The department is not required to hold a license issued
under this subchapter or Subchapter I, Chapter 13, Agriculture
Code.
Sec. 2310.205. SERVICE TECHNICIAN LICENSE REQUIRED. Unless
the individual is exempt from the licensing requirement, an
individual may not perform or offer to perform device maintenance
activities unless the individual holds a service technician license
issued by the department under this subchapter.
Sec. 2310.206. SERVICE COMPANY LICENSE REQUIRED. (a)
Unless the person is exempt from the license requirement, a person
may not employ an individual who performs or offers to perform
device maintenance activities unless the person holds a service
company license issued by the department under this subchapter.
(b) Unless the individual is exempt from the licensing
requirement, an individual may not perform or offer to perform
device maintenance activities as a sole proprietor unless the
individual holds a service technician license and a service company
license issued by the department under this subchapter.
Sec. 2310.207. APPLICATION FOR LICENSE. An applicant for a
license under this subchapter must submit to the department:
(1) an application form prescribed by the department;
(2) any other information required by the department;
and
(3) a fee in an amount set by the department.
Sec. 2310.208. SERVICE TECHNICIAN LICENSE REQUIREMENTS.
(a) The department shall issue a license to each qualified
applicant who applies for a service technician license.
(b) The department by rule may require an applicant for the
issuance or renewal of a service technician license to meet one or
more of the following requirements:
(1) provide to the department proof that the applicant
has completed an academic, trade, or professional course of
instruction approved by the department;
(2) pass a written test; or
(3) pass a practical skills test.
Sec. 2310.209. SERVICE COMPANY LICENSE REQUIREMENTS. (a)
The department shall issue a license to each qualified applicant
who applies for a service company license.
(b) An applicant for the issuance or renewal of a license
under this section must:
(1) submit to the department a certificate of
insurance evidencing that the applicant has an insurance policy
that meets the requirements of Section 2310.210 effective for the
period for which the license is to be issued or renewed; and
(2) meet any other requirements provided by commission
rule.
Sec. 2310.210. INSURANCE POLICY REQUIRED FOR SERVICE
COMPANY. A service company shall maintain at all times while the
service company performs device maintenance activities a current
effective operations liability insurance policy issued by an
insurance company authorized to do business in this state or by a
surplus lines insurer that meets the requirements of Chapter 981,
Insurance Code, and rules adopted by the commissioner of insurance
in an amount set by the department and based on the type of licensed
activities to be performed.
Sec. 2310.211. TERM OF LICENSE. A license issued under this
subchapter is valid for one year unless a different term is
established by commission rule.
Sec. 2310.212. LICENSE RENEWAL. A person licensed under
this subchapter must periodically renew the person's license. The
license expires unless the license holder submits an application
for renewal accompanied by the renewal fee set by the department or
by the late fee set by the department and meets the requirements for
renewal.
Sec. 2310.213. PRACTICE BY LICENSE HOLDER. (a) A license
holder shall perform device maintenance activities in compliance
with commission rules.
(b) A license holder may use only equipment approved by the
department, as provided by commission rules, when performing device
maintenance activities.
Sec. 2310.214. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 2310.205 or 2310.206 or
causes another person to violate Section 2310.205 or 2310.206.
(b) An offense under Subsection (a) is a Class B
misdemeanor, unless the person has been previously convicted of an
offense under this section, in which case the offense is a Class A
misdemeanor.
SECTION 2. Section 13.1015, Agriculture Code, is
transferred to Subchapter C, Chapter 2310, Occupations Code,
redesignated as Section 2310.102, Occupations Code, and amended to
read as follows:
Sec. 2310.102 [13.1015]. INSPECTION OF MOTOR FUEL METERING
DEVICES. Unless a motor fuel metering device is exempt from the
application of this section by department rule, a motor fuel
metering device shall be inspected, tested, and calibrated for
correctness by a license holder under Subchapter D [I] at least once
every two years if:
(1) kept for sale, sold, or used by a proprietor,
agent, lessee, or employee in proving the measure of the motor fuel;
or
(2) purchased, offered or submitted by a proprietor,
agent, lessee, or employee for sale, hire, or award.
(b) Inspection, testing, and calibration under this section
must be performed by a license holder under Subchapter D [I] under
contract with the operator or user of the motor fuel metering
device.
SECTION 3. Section 13.1016, Agriculture Code, is
transferred to Subchapter C, Chapter 2310, Occupations Code, as
added by this act, redesignated as Section 2310.103, Occupations
Code, and amended to read as follows:
Sec. 2310.103 [13.1016]. REQUIRED REGISTRATION OF MOTOR
FUEL METERING DEVICES. (a) Unless a motor fuel metering device is
exempt from the application of this section by department rule, a
person who owns or operates a motor fuel metering device shall
register the device with the department before using the device for
a commercial transaction.
(b) An application for a device registration must:
(1) be submitted to the department on a form
prescribed by the department;
(2) be accompanied by any other document or form
required by the department;
(3) include any fees required under Section 2310.109
[13.1151]; and
(4) include documentation of compliance with Section
2310.102 [13.1015].
(c) A registration under this section is valid for one year
unless a different period is established by department rule. The
registration must be renewed at or before the end of each
registration period and the application for renewal must include
documentation of compliance with Section 2310.102 [13.1015].
(d) If a person fails to register or renew a registration as
required by this section, the department may not issue a
certificate to operate the motor fuel metering device. The
department shall issue the certificate when the operator submits to
the department the items required by Subsection (b).
(e) The department may assess a late fee if the registration
of one or more devices located on a premises is renewed after the
end of the registration period because of a registration error,
including one or more devices not properly registered, failure to
register the correct type of device, or failure to timely register a
previously registered device. The amount of the penalty may not
exceed $50 per device, with a maximum penalty amount of $500 per
year for the premises.
SECTION 4. Section 13.1017, Agriculture Code, is
transferred to Subchapter C, Chapter 2310, Occupations Code, as
added by this act, redesignated as Section 2310.104, Occupations
Code, and amended to read as follows:
Sec. 2310.104 [13.1017]. COMPLAINTS REGARDING MOTOR FUEL
METERING DEVICES. (a) The department shall receive complaints
regarding motor fuel metering devices.
(b) After receiving a complaint regarding a motor fuel
metering device, the department shall determine the date the device
was last inspected under Section 2310.102 [13.1015] and the number
of complaints received by the department in the previous 12 months
regarding motor fuel metering devices at the premises where the
device subject to the complaint is located.
(c) The department shall notify the person who last
registered the motor fuel metering device and take no further
action on the complaint if:
(1) the motor fuel metering device was last inspected
not more than 18 months before the date the complaint is received;
and
(2) the department received not more than two
complaints in the previous 12 months regarding motor fuel metering
devices at the premises where the device is located.
(d) The department shall notify the person who last
registered the motor fuel metering device and require the device to
be inspected by a license holder under Section 2310.102 [13.1015]
not later than one month after the notification date if:
(1) the motor fuel metering device was last inspected
more than 18 months before the date the complaint is received; or
(2) the department received at least three complaints
in the previous 12 months regarding motor fuel metering devices at
the premises where the device is located.
SECTION 5. Sections 17.051, 17.071, and 17.072, Agriculture
Code, are transferred to Chapter 2310, Occupations Code, as added
by this Act, redesignated as Subchapter F, and amended to read as
follows:
SUBCHAPTER F. SALE, DELIVERY, AND QUALITY OF MOTOR FEUL
Sec. 2310.251 [17.051]. NOTICE OF SALE OF ALCOHOL AND FUEL
MIXTURE. (a) A dealer may not sell or offer for sale motor fuel
from a motor fuel pump supplied by a storage tank into which motor
fuel, in a mixture in which at least one percent of the mixture
measured by volume is ethanol or methanol, has been delivered
within the 60-day period preceding the date of sale or offer of sale
unless the dealer prominently displays on the pump from which the
mixture is sold a sign that complies with Subsection (b).
(b) A sign required by Subsection (a) must:
(1) be displayed on each face of the motor fuel pump on
which the price of the motor fuel mixture sold from the pump is
displayed;
(2) state "Contains Ethanol" or "Contains Methanol,"
as applicable;
(3) appear in contrasting colors with block letters at
least one-half inch high and one-fourth inch wide; and
(4) be displayed in a clear, conspicuous, and
prominent manner, visible to customers using either side of the
pump.
(c) [(e)] This section does not prohibit the posting of any
other alcohol or additive information. Other alcohol or additive
information and any relevant posting are subject to regulation by
the department [commissioner].
Sec. 2310.252 [17.071]. MINIMUM MOTOR FUEL QUALITY AND
TESTING STANDARDS. (a) The department by rule shall adopt minimum
motor fuel quality and testing standards for motor fuel that is sold
or offered for sale in this state. The standards must comply with
the nationally recognized minimum standards established by:
(1) the American Society for Testing and Materials,
for motor fuels other than motor fuels blended with ethanol; and
(2) the National Institute of Standards and
Technology, for motor fuels blended with ethanol.
(b) The department may adopt rules as necessary to bring
about uniformity between the standards established under this
subchapter and the nationally recognized standards described by
Subsection (a).
Sec. 2310.253 [17.072]. TESTING OF MOTOR FUEL QUALITY. (a)
The department or 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
2310.252 [17.071].
(a-1) The collection of samples and conducting of testing at
a dealer's location must be performed by a license holder under
Subchapter D of this chapter or Subchapter I, Chapter 13,
Agriculture Code under contract with the dealer. The license
holder is considered a representative of the department for
purposes of this section.
(b) On arriving at a facility to conduct testing under
Subsection (a), a representative of the department shall notify the
owner or manager of the facility of the representative's presence
and purpose. The department representative shall follow the most
recent applicable procedures specified by ASTM International
Standard D4057, D4177, D5842, or D5854 for the collection,
sampling, and handling of fuel to prepare for laboratory analysis.
(c) A person commits an offense if the person refuses to
allow a department representative to collect samples or conduct
motor fuel testing under Subsection (a).
SECTION 6. Section 13.001, Agriculture Code, is amended by
adding a new Subsection (c) to read as follows:
(c) In this chapter, "commodity" does not include motor
fuel.
SECTION 7. Section 13.114, Agriculture Code, is amended to
read as follows:
Sec. 13.114. TOLERANCES. The department shall establish
specifications and tolerances for commercial weighing or measuring
devices used in this state. The specifications and tolerances
shall be similar to those recommended by the National Institute of
Standards and Technology[, except that the specifications and
tolerances for motor fuel metering devices shall be the same as
those recommended by the National Institute of Standards and
Technology].
SECTION 8. Section 162.009, Tax Code, is amended to read as
follows:
Sec. 162.009. AUTHORITY TO STOP AND EXAMINE. To enforce
this chapter, the comptroller or a peace officer may stop a motor
vehicle that appears to be operating with or transporting motor
fuel to examine the shipping document, cargo manifest, or invoices
required to be carried, examine a license or copy of a license that
may be required to be carried, take samples from the fuel supply or
cargo tanks, and make any other investigation that could reasonably
be made to determine whether the taxes have been paid or accounted
for by a license holder or a person required to be licensed. The
comptroller, a peace officer, an employee of the attorney general's
office, an employee of the Texas Commission on Environmental
Quality, or an employee of the Texas Department of Licensing and
Regulation [Agriculture] may take samples of motor fuel from a
storage tank or container to:
(1) determine if the fuel contains hazardous waste or
is adulterated; or
(2) allow the comptroller to determine whether taxes
on the fuel have been paid or accounted for to this state.
SECTION 9. Section 162.403, Tax Code, is amended to read as
follows:
Sec. 162.403. CRIMINAL OFFENSES. Except as provided by
Section 162.404, a person commits an offense if the person:
(1) refuses to stop and permit the inspection and
examination of a motor vehicle transporting or using motor fuel on
the demand of a peace officer or the comptroller;
(2) is required to hold a valid trip permit or
interstate trucker's license, but operates a motor vehicle in this
state without a valid trip permit or interstate trucker's license;
(3) transports gasoline or diesel fuel in any cargo
tank that has a connection by pipe, tube, valve, or otherwise with
the fuel injector or carburetor or with the fuel supply tank feeding
the fuel injector or carburetor of the motor vehicle transporting
the product;
(4) sells or delivers gasoline or diesel fuel from a
fuel supply tank that is connected with the fuel injector or
carburetor of a motor vehicle;
(5) owns or operates a motor vehicle for which reports
or mileage records are required by this chapter without an
operating odometer or other device in good working condition to
record accurately the miles traveled;
(6) sells or delivers dyed diesel fuel for the
operation of a motor vehicle on a public highway;
(7) uses dyed diesel fuel for the operation of a motor
vehicle on a public highway except as allowed under Section
162.235;
(8) refuses to permit the comptroller or the attorney
general to inspect, examine, or audit a book or record required to
be kept by a license holder, other user, or any person required to
hold a license under this chapter;
(9) refuses to permit the comptroller or the attorney
general to inspect or examine any plant, equipment, materials, or
premises where motor fuel is produced, processed, blended, stored,
sold, delivered, or used;
(10) refuses to permit the comptroller, the attorney
general, an employee of either of those officials, a peace officer,
an employee of the Texas Commission on Environmental Quality, or an
employee of the Texas Department of Licensing and Regulation
[Agriculture] to measure or gauge the contents of or take samples
from a storage tank or container on premises where motor fuel is
produced, processed, blended, stored, sold, delivered, or used;
(11) is a license holder, a person required to be
licensed, or another user and fails or refuses to make or deliver to
the comptroller a report required by this chapter to be made and
delivered to the comptroller;
(12) is an importer who does not obtain an import
verification number when required by this chapter;
(13) purchases motor fuel for export, on which the tax
imposed by this chapter has not been paid, and subsequently diverts
or causes the motor fuel to be diverted to a destination in this
state or any other state or country other than the originally
designated state or country without first obtaining a diversion
number;
(14) conceals motor fuel with the intent of engaging
in any conduct proscribed by this chapter or refuses to make sales
of motor fuel on the volume-corrected basis prescribed by this
chapter;
(15) refuses, while transporting motor fuel, to stop
the motor vehicle the person is operating when called on to do so by
a person authorized to stop the motor vehicle;
(16) refuses to surrender a motor vehicle and cargo
for impoundment after being ordered to do so by a person authorized
to impound the motor vehicle and cargo;
(17) mutilates, destroys, or secretes a book or record
required by this chapter to be kept by a license holder, other user,
or person required to hold a license under this chapter;
(18) is a license holder, other user, or other person
required to hold a license under this chapter, or the agent or
employee of one of those persons, and makes a false entry or fails
to make an entry in the books and records required under this
chapter to be made by the person or fails to retain a document as
required by this chapter;
(19) transports in any manner motor fuel under a false
cargo manifest or shipping document, or transports in any manner
motor fuel to a location without delivering at the same time a
shipping document relating to that shipment;
(20) engages in a motor fuel transaction that requires
that the person have a license under this chapter without then and
there holding the required license;
(21) makes and delivers to the comptroller a report
required under this chapter to be made and delivered to the
comptroller, if the report contains false information;
(22) forges, falsifies, or alters an invoice or
shipping document prescribed by law;
(23) makes any statement, knowing said statement to be
false, in a claim for a tax refund filed with the comptroller;
(24) furnishes to a licensed supplier or distributor a
signed statement for purchasing diesel fuel tax-free and then uses
the tax-free diesel fuel to operate a diesel-powered motor vehicle
on a public highway;
(25) holds an aviation fuel dealer's license and makes
a taxable sale or use of any gasoline or diesel fuel;
(26) fails to remit any tax funds collected or
required to be collected by a license holder, another user, or any
other person required to hold a license under this chapter;
(27) makes a sale of dyed diesel fuel tax-free into a
storage facility of a person who:
(A) is not licensed as a distributor, as an
aviation fuel dealer, or as a dyed diesel fuel bonded user; or
(B) does not furnish to the licensed supplier or
distributor a signed statement prescribed in Section 162.206;
(28) makes a sale of gasoline tax-free to any person
who is not licensed as an aviation fuel dealer;
(29) purchases any motor fuel tax-free when not
authorized to make a tax-free purchase under this chapter;
(30) purchases motor fuel with the intent to evade any
tax imposed by this chapter or accepts a delivery of motor fuel by
any means and does not at the same time accept or receive a shipping
document relating to the delivery;
(31) transports motor fuel for which a cargo manifest
or shipping document is required to be carried without possessing
or exhibiting on demand by an officer authorized to make the demand
a cargo manifest or shipping document containing the information
required to be shown on the manifest or shipping document;
(32) imports, sells, uses, blends, distributes, or
stores motor fuel within this state on which the taxes imposed by
this chapter are owed but have not been first paid to or reported by
a license holder, another user, or any other person required to hold
a license under this chapter;
(33) blends products together to produce a blended
fuel that is offered for sale, sold, or used and that expands the
volume of the original product to evade paying applicable motor
fuel taxes;
(34) evades or attempts to evade in any manner a tax
imposed on motor fuel by this chapter;
(35) delivers compressed natural gas or liquefied
natural gas into the fuel supply tank of a motor vehicle and the
person does not hold a valid compressed natural gas and liquefied
natural gas dealer's license; or
(36) makes a tax-free delivery of compressed natural
gas or liquefied natural gas into the fuel supply tank of a motor
vehicle, unless the delivery is exempt from tax under Section
162.356.
SECTION 10. The following provisions of the Agriculture
Code are repealed:
(1) Section 13.001(a)(1-a);
(2) Section 13.024(d);
(3) Section 13.029(b);
(4) Section 13.101(e);
(5) Section 13.1011(e); and
(9) Section 13.1151(b).
SECTION 11. (a) All rules, fees, policies, procedures,
decisions, and forms of the Department of Agriculture that relate
to a program or activity transferred under this Act and that are in
effect on the effective date of the transfer remain in effect until
changed by the Texas Commission of Licensing and Regulation.
(b) A license, permit, certificate of registration, or
other authorization issued by the Department of Agriculture for a
program or activity transferred under this Act is continued in
effect as a license, permit, certificate, or other authorization of
the Texas Department of Licensing and Regulation after the
effective date of the transfer.
(c) A complaint, investigation, contested case, or other
proceeding before the Department of Agriculture relating to a
program or activity transferred under this Act that is pending on
the effective date of the transfer is transferred without change in
status to the Texas Commission of Licensing and Regulation or Texas
Department of Licensing and Regulation, as appropriate.
(d) all money, contracts, leases, property, records, and
obligations of the Department of Agriculture relating to a program
or activity transferred under this Act are transferred to the Texas
Department of Licensing and Regulation.
(e) the unexpended and unobligated balance of any money
appropriated by the legislature relating to a program or activity
transferred under this Act is transferred to the Texas Department
of Licensing and Regulation.
(f) Unless the context indicates otherwise, a reference in
law or administrative rule to the Department of Agriculture with
respect to a program or activity transferred under this Act mean the
Texas Commission of Licensing and Regulation or Texas Department of
Licensing and Regulation, as appropriate.
SECTION 12. (a) As soon as practicable after the effective
date this Act, the Department of Agriculture and the Texas
Department of Licensing and Regulation shall adopt a transition
plan to provide for the orderly transfer of powers, duties,
functions, programs, and activities under this act. The transition
plan must provide for the transfer to be completed not later than
September 1, 2020.
(b) The Department of Agriculture shall provide the Texas
Department of Licensing and Regulation with access to any systems,
facilities, or information necessary for the Texas Department of
Licensing and Regulation to accept a program or activity
transferred under this act.
(c) The Texas Department of Licensing and Regulation may
establish and lead a stakeholder workgroup to provide input,
advice, and recommendations to the Department of Agriculture and
Texas Department of Licensing and Regulation on the orderly
transfer of powers, duties, functions, programs, and activities
under this act. The Texas Department of Licensing and Regulation
shall establish the size, composition, and scope of the stakeholder
workgroup.
(d) On the date specified in the transition plan required
under Subsection (a) of this section for the transfer of program or
activity transferred by this act to the Texas Department of
Licensing and Regulation, all full-time equivalent employee
positions at the Department of Agriculture that directly and
indirectly concern the administration or enforcement of the program
or activity being transferred become positions at the Texas
Department of Licensing and Regulation. The Texas Department of
Licensing and Regulation shall post the positions for hiring and,
when filling the positions, shall give consideration to, but is not
required to hire, an applicant who, immediately before the date of
the transfer, was an employee at the Department of Agriculture
involved in administering or enforcing the transferred program or
activity.
(e) Subsection (c) under this section expires on October
1,2020.
SECTION 13. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2019.