87R13856 TYPED
By: Goldman H.B. No. 3408
A BILL TO BE ENTITLED
AN ACT
relating to motor fuel metering and quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2310.001 of the Occupations Code is
amended as follows:
Sec. 2310.001. DEFINITIONS. (a) In this chapter:
(1) "Automotive fuel rating" has the meaning assigned
by 15 U.S.C. Section 2821.
(2) [(1)] "Commercial [weighing or] measuring device"
means a [weighing or] measuring device used in a commercial
transaction.
(3) [(2)] "Commission" means the Texas Commission of
Licensing and Regulation.
(4) [(3)] "Dealer" means a person who[:]
[(A)] is the operator of a retail motor fuel
facility [ service station or other retail outlet; and]
[(B) delivers motor fuel into the fuel tanks of
motor vehicles or motor boats].
(5) [(4)] "Department" means the Texas Department of
Licensing and Regulation.
(6) "Distributor" means a person who makes retail or
wholesale sales of motor fuel.
(7) [(5)] "Executive director" means the executive
director of the department.
(8) [(6)] "Motor fuel" means gasoline, diesel fuel,
gasoline blended fuel, aviation gasoline, aviation jet fuel,
compressed natural gas, liquified 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].
(9) [(7)] "Motor fuel metering device" means a
commercial [weighing or] measuring device used for motor fuel
sales.
(10) [(8)] "Operator" or "user" means a person in
possession or control of a [weighing or] measuring device,
including an owner, custodian, and seller.
(11) [(9)] "Sell" includes barter or exchange.
(12) "Supplier" has the meaning assigned by Section
162.001, Tax Code.
(13) [(10)] "Measuring [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 related to
motor fuel.
[(11) "Weight or measure of a motor fuel" means the
weight or measure of a motor fuel as determined by a weighing or
measuring device.]
(14) "Wholesaler" means a person who purchases
tax-paid gasoline for resale or distribution at wholesale.
SECTION 2. Section 2310.002(c) of the Occupations Code, is
amended 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. Section 2310.051 of the Occupations Code is
amended as follows:
Sec. 2310.051. LEGAL STANDARDS. (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.
(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 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 4. Section 2310.053 of the Occupations Code is
amended by adding subsection (c) as follows:
(c) A weighing or measuring device, as described by Chapter
13, Agriculture Code, that measures liquified petroleum gas is
exempt from this chapter.
SECTION 5. Sections 2310.054, 2310.057, 2310.059, and
2310.060 of the Occupations Code are amended as follows:
Sec. 2310.054. SALE OF MOTOR FUEL BY PROPER MEASURE. (a)
Motor [Except as otherwise provided by this section, motor] fuel
shall be sold by liquid measure.
[(b) Compressed natural gas and liquefied natural gas shall
be sold by weight].
(b) [(c)] A person violates this chapter if, in violation of
this section, the person sells motor fuel by other than [weight or]
liquid measure.
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.
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; or
(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.
Sec. 2310.059. TESTING BY DEPARTMENT. (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.
(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 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 or offering [owner or
custodian of] 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.
(c) This section does not limit the right of the department
to proceed as authorized by other sections of this code.
SECTION 6. Section 2310.061(b) of the Occupations Code is
amended 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 7. Sections 2310.101 and 2310.106 of the
Occupations Code are amended as follows:
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, or the device is being used to
facilitate the perpetuation 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.
[(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 near
motor fuel being sold or offered for sale by weight or 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. 2310.106. INSPECTION OF STANDARDS USED TO PERFORM
DEVICE MAINTENANCE ACTIVITIES. (a) In this section, "state
metrology laboratory" means the metrology laboratory maintained by
the Department of Agriculture under Subchapter C, Chapter 13,
Agriculture Code.
(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.
(d) The department shall keep a record of the inspection and
character of standards for motor fuel inspected under this section.
[(e) The state metrology laboratory shall purchase
additional sets of standards as necessary for use by a department
inspector or other department personnel.]
(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
[inspector, another department employee], or 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 8. Section 2310.110(b) of the Occupations Code is
amended 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 9. Section 2310.154(a) of the Occupations Code is
amended 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;
(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 10. Section 2310.2012(a) of the Occupations Code is
amended 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 11. Section 2310.2013 of the Occupations Code is
amended as follows:
Sec. 2310.2013. RECORD OF DELIVERY DOCUMENTS; INSPECTION
AUTHORIZED. (a) Each dealer 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.
(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
retail motor fuel facility [station or retail 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 12. Section 2310.2014 of the Occupations Code,
subsections (b) and (c) are amended 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 retail motor fuel facility [station or retail 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 13. Section 2310.2015(b) of the Occupations Code,
is amended 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 14. Section 2310.203 of the Occupations Code, is
amended as follows:
Sec. 2310.203. TESTING OF MOTOR FUEL QUALITY. (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 license holder under Subchapter D of this
chapter is considered an authorized representative of the
department for purposes of this section.
[(b) 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) [(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 authorized representative's presence and
purpose. The department or an authorized representative of the
department 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.
(c) [(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).
(d) [(e)] An offense under Subsection (c) [(d)] is a Class C
misdemeanor.
SECTION 15. Section 2310.207 of the Occupations Code,
subsections (a) and (b), are amended as follows:
Sec. 2310.207. CIVIL ACTION. (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 16. Section 2310.208 of the Occupations Code is
amended 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 17. Chapter 2310 of the Occupations Code is amended
by adding Subchapter F as follows:
SUBCHAPTER F. MOTOR FUEL METERING AND QUALITY ADVISORY BOARD.
Sec. 2310.220. Board; Membership. (a) The Motor Fuel
Metering and Quality Advisory Board consists of nine members
appointed by the presiding officer of the commission, with the
commission's approval, as follows:
(1) two members who are dealers, or their
representatives:
(A) one member with 500 or fewer registered
devices;
(B) one member with more than 1,000 registered
devices;
(2) one member who represents a service company
licensed by the department;
(3) one member who represents a wholesaler or
distributor;
(4) one member who represents a supplier;
(5) one member who represents a financial institution,
as defined by 277.001(3), Financial Code, or credit card issuer;
and
(6) one member who represents a law enforcement
agency.
(b) Appointments to the board shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointee.
Sec. 2310.221. Terms; Vacancy. (a) Members of the board
serve staggered six-year terms, with the terms of one or two members
expiring on the same date 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. 2310.222. Presiding Officer. The presiding officer of
the commission, with the commission's approval, shall designate one
member of the advisory board as presiding officer to serve in that
capacity for a two-year term.
Sec. 2310.223. Board Duties. The board may advise the
commission and department on:
(1) the adoption of appropriate standards for the
installation, maintenance, calibration, alteration, operation,
testing, and inspection of motor fuel dispensers, devices, and
fuel;
(2) education and curricula for applicants and
licensees;
(2) the content of examinations;
(3) proposed rules and standards on technical issues
related to motor fuel metering and quality and payment card fraud,
including payment card skimmers and shimmers; and
(4) other issues affecting motor fuel metering and
quality.
(b) The advisory board shall meet at the call of the
executive director or the presiding officer of the commission.
SECTION 18. The following provision of the Occupations Code
are repealed:
(1) Section 2310.2001.
SECTION 19. Not later than December 31, 2021, the Texas
Commission of Licensing and Regulation shall appoint members to the
motor fuel metering and quality advisory board in accordance with
this Act.
SECTION 20. 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, the Act takes effect September 1, 2021.