By Siebert                                            H.B. No. 3092
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the authority and duties of the Texas Motor Vehicle
 1-3     Board.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 1.03, Texas Motor Vehicle Commission Code
 1-6     (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
 1-7     read as follows:
 1-8           Sec. 1.03. DEFINITIONS. In this Act:
 1-9                 (1)  "Ambulance" means a vehicle used exclusively for
1-10     providing emergency medical care to an injured or ill person or
1-11     transporting an injured or ill person, if the vehicle provides:
1-12                       (A)  a driver's compartment;
1-13                       (B)  a compartment to accommodate an emergency
1-14     medical care technician or paramedic and two injured or ill persons
1-15     so positioned that one of the injured or ill persons can be given
1-16     intensive life-support during transit;
1-17                       (C)  equipment and supplies for emergency care of
1-18     an injured or ill person where the ill person is located or at the
1-19     scene of an injury-producing incident as well as in transit;
1-20                       (D)  two-way radio communication capability; and
1-21                       (E)  equipment for light rescue or extrication
 2-1     procedures.
 2-2                 (2)  "Board" means the Motor Vehicle Board of the Texas
 2-3     Department of Transportation.
 2-4                 (3)  "Broker" means a person who, for a fee,
 2-5     commission, or other valuable consideration, arranges or offers to
 2-6     arrange a transaction involving the sale[, for purposes other than
 2-7     resale,] of a new motor vehicle, and who is not:
 2-8                       (A)  a franchised dealer or bona fide employee of
 2-9     a franchised dealer when acting on behalf of a franchised dealer;
2-10                       (B)  a representative or bona fide employee of a
2-11     representative when acting on behalf of a representative;
2-12                       (C)  a distributor or bona fide employee of a
2-13     distributor when acting on behalf of a distributor; or
2-14                       (D)  at any point in the transaction the bona
2-15     fide owner of the vehicle involved in the transaction.
2-16                 (4)  "Chassis manufacturer" means a person who
2-17     manufactures and produces the frame upon which is mounted the body
2-18     of a motor vehicle.
2-19                 (5)  "Conversion" means a motor vehicle, other than a
2-20     motor home, ambulance, or fire-fighting vehicle, which has been
2-21     substantially modified by a person other than the manufacturer or
2-22     distributor of the chassis of the motor vehicle and which has not
2-23     been the subject of a retail sale.
2-24                 (6)  "Converter" means a person who prior to the retail
2-25     sale of a motor vehicle, assembles, installs, or affixes a body,
 3-1     cab, or special equipment to a chassis, or who substantially adds,
 3-2     subtracts from, or modifies a previously assembled or manufactured
 3-3     motor vehicle.
 3-4                 (7)  "Dealer" means a person who holds a general
 3-5     distinguishing number issued by the Department pursuant to the
 3-6     terms of Chapter 503, Transportation Code.
 3-7                 (8)  "Dealership" means the physical premises and
 3-8     business facilities on which a franchised dealer operates his
 3-9     business, including the sale and repair of motor vehicles.  The
3-10     term includes premises or facilities at which a person engages only
3-11     in the repair of motor vehicles if repairs are performed pursuant
3-12     to the terms of a franchise and a motor vehicle manufacturer's
3-13     warranty.
3-14                 (9)  "Department" means the Texas Department of
3-15     Transportation.
3-16                 (10)  "Director" means the director of the board.
3-17                 (11)  "Distributor" means any person who distributes
3-18     and/or sells new motor vehicles to franchised dealers and who is
3-19     not a manufacturer.
3-20                 (12)  "Executive Director" means the Executive Director
3-21     of the Texas Department of Transportation.
3-22                 (13)  "Fire-fighting vehicle" means a motor vehicle
3-23     which has as its sole purpose transporting fire fighters to the
3-24     scene of a fire and providing equipment to fight the fire, if the
3-25     vehicle is built on a truck chassis with a gross carrying capacity
 4-1     of at least 10,000 pounds, to which the following have been
 4-2     permanently affixed or mounted:
 4-3                       (A)  a water tank with a minimum combined
 4-4     capacity of 500 gallons; and
 4-5                       (B)  a centrifugal water pump with a minimum
 4-6     capacity of not less than 750 gallons per minute at 150 pounds per
 4-7     square inch net pump pressure.
 4-8                 (14)  "Franchise" means one or more contracts between
 4-9     [a franchised dealer as franchisee, and either] a manufacturer or a
4-10     distributor as franchisor, and another person as franchisee under
4-11     which (A) the franchisee is granted the right to sell and service
4-12     new motor vehicles manufactured or distributed by the franchisor or
4-13     only service motor vehicles pursuant to the terms of a franchise
4-14     and a manufacturer's warranty; (B) the franchisee as an independent
4-15     business is a component of franchisor's distribution system; (C)
4-16     the franchisee is substantially associated with franchisor's
4-17     trademark, trade name and commercial symbol; (D) the franchisee's
4-18     business is substantially reliant on franchisor for a continued
4-19     supply of motor vehicles, parts, and accessories for the conduct of
4-20     its business; or (E) any right, duty, or obligation granted or
4-21     imposed by this Act is affected. The term includes a written
4-22     communication from a franchisor to a franchisee by which a duty is
4-23     imposed on the franchisee.
4-24                 (15)  "Franchised dealer" means any person who holds a
4-25     franchised motor vehicle dealer's general distinguishing number
 5-1     issued by the Department pursuant to the terms of Chapter 503,
 5-2     Transportation Code, and who is engaged in the business of buying,
 5-3     selling, or exchanging new motor vehicles and servicing or
 5-4     repairing motor vehicles pursuant to the terms of a franchise and a
 5-5     manufacturer's warranty at an established and permanent place of
 5-6     business pursuant to a franchise in effect with a manufacturer or
 5-7     distributor.
 5-8                 (16)  "General distinguishing number" means a dealer
 5-9     license issued by the Department pursuant to the terms of Chapter
5-10     503, Transportation Code.
5-11                 (17)  "Lease" means a transfer of the right to
5-12     possession and use of a motor vehicle for a term in excess of 180
5-13     days in return for consideration.
5-14                 (18)  "Lease facilitator" means a person, other than a
5-15     franchised dealer or a bona fide employee of a dealer, or a vehicle
5-16     lessor or a bona fide employee of a vehicle lessor, who:
5-17                       (A)  holds himself out to any person as a "motor
5-18     vehicle leasing company" or  "motor vehicle leasing agent" or uses
5-19     a similar title, for the purpose of soliciting or procuring a
5-20     person to enter into a contract or agreement to become the lessee
5-21     of a vehicle that is not, and will not be, titled in the name of
5-22     and registered to the lease facilitator; or
5-23                       (B)  otherwise solicits a person to enter into a
5-24     contract or agreement to become a lessee of a vehicle that is not,
5-25     and will not be, titled in the name of and registered to the lease
 6-1     facilitator, or who is otherwise engaged in the business of
 6-2     securing lessees or prospective lessees of motor vehicles that are
 6-3     not, and will not be, titled in the name of and registered to the
 6-4     facilitator.
 6-5                 (19)  "Lessor" means a person who, pursuant to the
 6-6     terms of a lease, transfers to another person the right to
 6-7     possession and use of a motor vehicle titled in the name of the
 6-8     lessor [acquires title to a motor vehicle for the purpose of
 6-9     leasing the vehicle to another person].
6-10                 (20)  "Licensee" means a person who holds a license or
6-11     general distinguishing number issued by the Board under the terms
6-12     of this Act or Chapter 503, Transportation Code.
6-13                 (21)  "Manufacturer" means any person who manufactures
6-14     or assembles new motor vehicles [either within or without this
6-15     State].
6-16                 (22)  "Manufacturer's statement of origin" means a
6-17     certificate on a form prescribed by the Department showing the
6-18     original transfer of a new motor vehicle from the manufacturer to
6-19     the original purchaser.
6-20                 (23)  "Motor home" means a motor vehicle which is
6-21     designed to provide temporary living quarters and which:
6-22                       (A)  is built onto as an integral part of, or is
6-23     permanently attached to, a motor vehicle chassis; and
6-24                       (B)  contains at least four of the following
6-25     independent life support systems if each is permanently installed
 7-1     and designed to be removed only for purposes of repair or
 7-2     replacement and meets the standards of the American National
 7-3     Standards Institute, Standards for Recreational Vehicles:
 7-4                             (i)  a cooking facility with an on-board
 7-5     fuel source;
 7-6                             (ii)           a gas or electric
 7-7     refrigerator;
 7-8                             (iii)          a toilet with exterior
 7-9     evacuation;
7-10                             (iv)           a heating or air
7-11     conditioning system with an on-board power or fuel source separate
7-12     from the vehicle engine;
7-13                             (v)  a potable water supply system that
7-14     includes at least a sink, a faucet, and a water tank with an
7-15     exterior service supply connection;
7-16                             (vi)           a 110-125 volt electric
7-17     power supply.
7-18                 (24)  "Motor home manufacturer" means a person other
7-19     than the manufacturer of the chassis of a motor vehicle who, prior
7-20     to the retail sale of the motor vehicle, performs modifications on
7-21     the chassis that result in the finished product being classified as
7-22     a motor home.
7-23                 (25)  "Motor vehicle" means:
7-24                       (A)  every fully self-propelled vehicle which has
7-25     as its primary purpose the transport of a person or persons, or
 8-1     property, on a public highway, and having two or more wheels;
 8-2                       (B)  every two or more wheeled fully
 8-3     self-propelled, titled vehicle which has as its primary purpose the
 8-4     transport of a person or persons or property and is not
 8-5     manufactured for use on public streets, roads, or highways;
 8-6                       (C)  an engine, transmission, or rear axle
 8-7     manufactured for installation in a vehicle having as its primary
 8-8     purpose the transport of a person or persons or property on a
 8-9     public highway and having a gross vehicle weight rating of more
8-10     than 16,000 pounds, whether or not attached to a vehicle chassis;
8-11     or
8-12                       (D)  a towable recreational vehicle.
8-13                 (26)  "New motor vehicle" means a motor vehicle which
8-14     has not been the subject of a "retail sale" without regard to the
8-15     mileage of the vehicle.
8-16                 (27)  "Nonfranchised dealer" means a person who holds
8-17     an independent motor vehicle dealer's general distinguishing number
8-18     or a wholesale motor vehicle dealer's general distinguishing number
8-19     issued by the Department pursuant to the terms of Chapter 503,
8-20     Transportation Code.
8-21                 (28)  "Party" means each person or agency named or
8-22     admitted as a party and whose legal rights, duties, or privileges
8-23     are to be determined by the board [Commission] after an opportunity
8-24     for adjudicative hearing.
8-25                 [(28)  "Towable recreational vehicle" means a
 9-1     nonmotorized vehicle that is designed and originally manufactured
 9-2     for temporary human habitation as its primary purpose for
 9-3     recreational, camping, or seasonal use and:]
 9-4                       [(A)  is titled and registered with the Texas
 9-5     Department of Transportation as a travel trailer through the county
 9-6     tax assessor-collector;]
 9-7                       [(B)  is permanently built on a single chassis;]
 9-8                       [(C)  contains one or more life support systems;
 9-9     and]
9-10                       [(D)  is designed to be towable by another motor
9-11     vehicle.]
9-12                 (29)  "Person" means a natural person, partnership,
9-13     corporation, association, trust, estate, or any other legal entity.
9-14                 (30)  "Relocation" means the transfer of an existing
9-15     dealership operation to facilities at a different location,
9-16     including a transfer which results in a consolidation or dualing of
9-17     an existing dealer's operation.
9-18                 (31)  "Representative" means any person who is or acts
9-19     as an agent, employee or representative of a manufacturer,
9-20     distributor, or converter who performs any duties in this State
9-21     relating to promoting the distribution and/or sale of new motor
9-22     vehicles or contacts dealers in this State on behalf of a
9-23     manufacturer, distributor, or converter.
9-24                 (32)  "Retail sale" means the sale of a motor vehicle
9-25     except:
 10-1                      (A)  a sale in which the purchaser acquires a
 10-2    vehicle for the purpose of resale; or
 10-3                      (B)  a sale of a vehicle that is operated under
 10-4    and in accordance with  Section 503.061, Transportation Code.
 10-5                (33)  "Rule" means a statement by the board
 10-6    [Commission] of general and future applicability that implements,
 10-7    interprets, or prescribes law or policy or describes the
 10-8    organization or procedural practice requirements of the board
 10-9    [Commission].  The term includes the amendment or repeal of a prior
10-10    rule, but does not include statements concerning only the internal
10-11    management of the board [Commission] which do not affect the rights
10-12    of a person not connected with the board [Commission].
10-13                (34)  "Towable recreational vehicle" means a
10-14    nonmotorized vehicle originally designed and manufactured for the
10-15    primary purpose of providing temporary human habitation in
10-16    conjunction with recreational, camping, or seasonal use and:
10-17                      (A)  is titled and registered with the Texas
10-18    Department of Transportation as a travel trailer through the county
10-19    tax assessor-collector;
10-20                      (B)  is permanently built on a single chassis;
10-21                      (C)  contains one or more life support systems;
10-22    and
10-23                      (D)  is designed to be towable by another motor
10-24    vehicle.
10-25                (35) [(34)]  "Transportation Commission" means the
 11-1    Texas Transportation Commission of the Texas Department of
 11-2    Transportation.
 11-3                (36) [(35)]  "Warranty work" means parts, labor, and
 11-4    any other expenses incurred by a franchised dealer in complying
 11-5    with the terms of a manufacturer's or distributor's warranty.
 11-6          SECTION 2.  Section 2.02, Texas Motor Vehicle Commission Code
 11-7    (Article 4413(36), Vernon's Texas Civil Statutes) is amended by
 11-8    adding Subsection (d) to read as follows:
 11-9          "(d)  A person is eligible for appointment to the board as
11-10    provided by Subsection (c)(1) of this section if the person is
11-11    otherwise eligible as provided by this Act and is a natural person
11-12    who is either himself or herself a dealer or is the bona fide owner
11-13    of at least 20 percent of an entity that is a dealer.
11-14    Notwithstanding the terms of this subsection, a person is not
11-15    eligible to serve on the board as provided by Subsection (c)(1) of
11-16    this section if the person's status as dealer is derived from a
11-17    dealer or dealership in which a manufacturer or distributor owns an
11-18    interest.
11-19          SECTION 3.  Subsections (a), (b) and (c), Section 2.08, Texas
11-20    Motor Vehicle Commission code (Article 4413(36), Vernon's Texas
11-21    Civil Statutes), are amended to read as follows:
11-22          Section 2.08.  COMMISSION MEETINGS.  (a)  The Governor shall
11-23    designate one member of the board, other than a member appointed
11-24    pursuant to the terms of Section 2.02(c) of this Act, as Chairman
11-25    to serve in that capacity at the pleasure of the Governor. The
 12-1    board shall hold a regular annual meeting in September of each year
 12-2    and elect a Vice-chairman to serve for the ensuing year. The board
 12-3    shall have regular meetings as the majority of the members may
 12-4    specify and special meetings at the request of the Chairman, any
 12-5    two members, or the Director. Reasonable notice of all meetings
 12-6    shall be given as board rules prescribe. A majority of the board
 12-7    constitutes a quorum to transact business, except that a member
 12-8    appointed under Section 2.02(b) [Section 2.02] of this Act is not
 12-9    counted in the calculation of a quorum for purposes of the
12-10    determination of an issue with respect to which the member is
12-11    prohibited from voting.  The Chairman, or in his absence, the
12-12    Vice-chairman, shall preside at all meetings of the board. In the
12-13    absence of both the Chairman and the Vice-chairman, the members
12-14    present shall select one of their number to serve as chairman for
12-15    the meeting.
12-16          (b)  The board [Commission] is subject to Chapters 551 and
12-17    2001, Government Code.
12-18          (c)  The board [Commission] shall develop and implement
12-19    policies that provide the public with a reasonable opportunity to
12-20    appear before the Commission and to speak on any issue under the
12-21    jurisdiction of the Commission.
12-22          SECTION 4.  Section 2.08A(c), Texas Motor Vehicle Commission
12-23    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
12-24    to read as follows:
12-25          (c)  If the Director has knowledge that a potential ground
 13-1    for removal exists, the Director shall notify the Chairman of the
 13-2    board [Commission] of the ground. The Chairman shall then notify
 13-3    the Governor and the Attorney General that a potential ground for
 13-4    removal exists. If the potential ground for removal relates to the
 13-5    Chairman of the board [Commission], the [Executive] Director shall
 13-6    notify the Vice-chairman of the Commission, who shall notify the
 13-7    Governor and the Attorney General that a potential ground for
 13-8    removal exists.
 13-9          SECTION 5.  Section 3.02, Texas Motor Vehicle Commission Code
13-10    (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
13-11    read as follows:
13-12          Section 3.02.  DUTIES.  (a)  The board [Commission] shall, in
13-13    accordance with this Act, administer the provisions of this Act,
13-14    establish the qualifications of licensees, ensure that the
13-15    distribution, sale, and leasing of motor vehicles is conducted as
13-16    provided herein and under the board's [Commission's] rules, provide
13-17    for compliance with warranties, and otherwise prevent fraud, unfair
13-18    practices, discriminations, impositions, and other abuses in
13-19    connection with the distribution and sale of motor vehicles.
13-20                (b)  The board [Commission] shall prepare and maintain
13-21    a written plan that describes how a person who does not speak
13-22    English or who has a physical, mental, or developmental disability
13-23    can be provided reasonable access to the Commission's programs.
13-24          SECTION 6.  Section 3.08(g), Texas Motor Vehicle Commission
13-25    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 14-1    to read as follows:
 14-2          (g)  In all contested cases the examiner shall serve on all
 14-3    parties a copy of the examiner's proposal for decision and
 14-4    recommended order containing findings of fact and conclusions of
 14-5    law. A party may file exceptions and replies to the board. In its
 14-6    review of the case, the board may consider only the materials
 14-7    timely submitted. The board may receive such oral argument from any
 14-8    party as the board may allow.  The board shall take such further
 14-9    actions as are conducive to the issuance of a final order and shall
14-10    thereafter issue a written final decision or order. The board's
14-11    written final decision or order shall be signed on behalf of the
14-12    board by the chairman or vice chairman [Director]. A majority vote
14-13    of a quorum of the board shall be required to adopt final decisions
14-14    or orders of the board.
14-15          SECTION 7.  Section 4.02, Texas Motor Vehicle Commission Code
14-16    (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
14-17    read as follows:
14-18          Section 4.02.  DEALER APPLICATION.  (a)  An application for a
14-19    dealer license shall be on a form prescribed by the board which
14-20    shall include the information required by Chapter 503,
14-21    Transportation Code, and information on the applicant's financial
14-22    resources, business integrity, business ability and experience,
14-23    franchise agreement if applicable, physical facilities, vehicle
14-24    inventory, and other factors the board considers necessary to
14-25    determine an applicant's qualifications to adequately serve the
 15-1    [motoring] public.
 15-2          (b)  A dealer shall renew his license annually on an
 15-3    application prescribed by the board [Commission]. If a material
 15-4    change occurs in the information included in a dealer's application
 15-5    for a license or renewal of a license, the dealer shall, within a
 15-6    reasonable time but not later than the next annual renewal, notify
 15-7    the board [Commission] of those changes.  The board [Commission]
 15-8    shall prescribe a form for the disclosure of the changes and shall
 15-9    include in the renewal application a request for disclosure of
15-10    material changes.
15-11          (c) [(1)]  A franchised dealer may carry on the business of
15-12    his dealership at more than one location;  however, a separate
15-13    location for the display and sale of new motor vehicles may not be
15-14    established and maintained by a franchised dealer unless expressly
15-15    authorized by the franchised dealer's franchise and license. An
15-16    application for a franchised dealer's license or to amend a
15-17    franchised dealer's license which proposes the establishment of a
15-18    separate display and sales location is subject to all of the
15-19    provisions of this Act. A separate license shall be required for
15-20    each separate and distinct dealership as determined by the board
15-21    [Commission].
15-22          (d) [(2)]  Except as provided in this subsection
15-23    [subdivision], no licensee may participate in a new motor vehicle
15-24    show or exhibition unless the board [Commission] has first had
15-25    written notice at least 30 days prior to the opening day of the
 16-1    show or exhibition and its written approval has been granted. A
 16-2    licensee may not sell or offer for sale a new motor vehicle at a
 16-3    show or exhibition; however, dealership personnel may be present to
 16-4    aid in the showing or exhibiting of new motor vehicles. This
 16-5    subsection [subdivision] does not prohibit the sale of a towable
 16-6    recreational vehicle, motor home, ambulance, or fire-fighting
 16-7    vehicle at a show or exhibition if the show or exhibition is
 16-8    approved by the board [Commission] and if the sale does not
 16-9    otherwise violate a provision of law. If the board adopts[;
16-10    provided that, should the Commission adopt] a rule regulating
16-11    off-site display or sale of towable recreational vehicles, the
16-12    board [Commission] shall, as part of that rule, authorize the
16-13    display and sale of towable recreational vehicles at a private
16-14    event in a trade area [private events in trade areas (counties,
16-15    cities, or towns) where] that would not otherwise qualify for the
16-16    private event under the application of general participation
16-17    requirements for organized dealer shows and exhibitions [would
16-18    effectively preclude such an organized show or exhibition].
16-19          (e) [(3)]  The board [Commission] shall, under its general
16-20    rule-making authority granted in this Act, establish rules and
16-21    guidelines for the implementation and enforcement of this section
16-22    [subsection].
16-23          (f) [(d)]  A dealer licensed hereunder shall promptly notify
16-24    the board [Commission] of any proposed change in its ownership,
16-25    location, franchise, or any other matters the board [Commission]
 17-1    may require by rule. Prior to a change in a dealer's location, a
 17-2    dealer shall obtain a new license for that location.
 17-3          SECTION 8.  Section 4.03(b), Texas Motor Vehicle Commission
 17-4    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 17-5    to read as follows:
 17-6          (b)  An applicant for a manufacturer's license shall furnish
 17-7    a list of all distributors, representatives acting for applicant,
 17-8    and all dealers franchised to sell the applicant's products in this
 17-9    State and their respective locations. The applicant shall
17-10    separately set forth a list of dealers in which the applicant, or
17-11    an entity owned or controlled by the applicant, owns an interest,
17-12    whether or not the dealer is also included in the applicant's list
17-13    of franchised dealers. All applicants for manufacturer's licenses
17-14    and all licensed manufacturers shall thereafter advise the
17-15    Commission within 15 days of any change in their list of
17-16    distributors, representatives, and franchised dealers. This
17-17    information shall become part of the application.
17-18          SECTION 9.  Section 5.01B(a), Texas Motor Vehicle Commission
17-19    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
17-20    to read as follows:
17-21          (a)  In order to transfer, assign, or sell a franchise
17-22    agreement or controlling interest in the dealership to another
17-23    person, a dealer shall notify the manufacturer or distributor whose
17-24    vehicles the dealer is franchised to sell of the dealer's decision
17-25    to transfer, assign, or sell the dealership. The notification
 18-1    required by this subsection must be by certified mail, return
 18-2    receipt requested, and is the application by the dealer for
 18-3    approval by the manufacturer or distributor of the transfer. The
 18-4    notice must be in writing and must include:
 18-5                (1)  the prospective transferee's name, address,
 18-6    financial qualifications, and business experience;
 18-7                (2)  a copy of pertinent agreements regarding the
 18-8    proposed transfer, assignment, or sale;
 18-9                (3)  completed application forms and related
18-10    information generally utilized by the manufacturer or distributor
18-11    in reviewing prospective dealers, if the forms are on file with the
18-12    board; [and]
18-13                (4)  the prospective transferee's written agreement to
18-14    comply with the terms of the franchise agreement to the extent that
18-15    the franchise agreement is not in conflict with the terms of this
18-16    Act; and
18-17                (5)  if the prospective transferee is an entity owned
18-18    or controlled by a manufacturer or distributor, a statement
18-19    identifying the manufacturer that owns or controls the entity.
18-20          SECTION 10.  Section 5.02(b), Texas Motor Vehicle Commission
18-21    code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
18-22    to read as follows;
18-23          (b)  It is unlawful for any manufacturer, distributor, or
18-24    representative to:
18-25                (1)  Require or attempt to require any dealer to order,
 19-1    accept delivery of or pay anything of value, directly or
 19-2    indirectly, for any motor vehicle, appliance, part, accessory or
 19-3    any other commodity unless voluntarily ordered or contracted for by
 19-4    such dealer.
 19-5                (2)  Refuse or fail to deliver, in reasonable
 19-6    quantities and within a reasonable time, to a dealer having a
 19-7    franchise agreement for the retail sale of any motor vehicles sold
 19-8    or distributed by such manufacturer, distributor, or
 19-9    representative, any new motor vehicle or parts or accessories to
19-10    new motor vehicles as are covered by such franchise if such
19-11    vehicle, parts or accessories are publicly advertised as being
19-12    available for delivery or are actually being delivered;  provided,
19-13    however, this provision is not violated if such failure is caused
19-14    by acts of God, work stoppage or delays due to strikes or labor
19-15    disputes, freight embargoes or other causes beyond the control of
19-16    the manufacturer, distributor, or representative.
19-17                (3)  Notwithstanding the terms of any franchise
19-18    agreement:
19-19                      (A)  Terminate or refuse to continue any
19-20    franchise with a dealer or directly or indirectly force or attempt
19-21    to force a dealer to relocate or discontinue a line-make or parts
19-22    or products related to that line-make unless all of the following
19-23    conditions are met:
19-24                            (i)  the dealer and the board have received
19-25    written notice by registered or certified mail from the
 20-1    manufacturer, distributor, or representative not less than 60 days
 20-2    before the effective date of termination or noncontinuance setting
 20-3    forth the specific grounds for termination or noncontinuance; and
 20-4                            (ii)  the written notice contains on the
 20-5    first page thereof a conspicuous statement which reads as follows:
 20-6    "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO FILE A PROTEST WITH THE
 20-7    TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS, AND HAVE A HEARING IN
 20-8    WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR NONCONTINUANCE OF
 20-9    YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR VEHICLE
20-10    COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and
20-11                            (iii)  the manufacturer, distributor, or
20-12    representative has received the informed, written consent of the
20-13    affected dealer or the appropriate period for the affected dealer
20-14    to protest the proposed franchise termination or noncontinuance has
20-15    lapsed; or
20-16                            (iv)  if the affected dealer files a
20-17    protest with the board within the greater of (1) 60 days after
20-18    receiving its 60-day notice of proposed termination or
20-19    noncontinuance or (2) the time specified in such notice, the board
20-20    determines that the party seeking to terminate or not continue a
20-21    dealer's franchise has established by a preponderance of the
20-22    evidence, at a hearing called by the board, that there is good
20-23    cause for the proposed termination or noncontinuance.
20-24                            (v)  Notwithstanding Subdivisions (3)(A)(i)
20-25    and (3)(A)(iv) of this section, notice may be made not less than 15
 21-1    days prior to the effective date of termination or noncontinuance
 21-2    if a licensed dealer fails to conduct its customary sales and
 21-3    service operations during its customary business hours for seven
 21-4    consecutive business days unless such failure is caused by an act
 21-5    of God, work stoppage or delays due to strikes or labor disputes,
 21-6    an order of the board, or other causes beyond the control of the
 21-7    dealer.
 21-8                      (B)  Whenever a dealer files a timely protest to
 21-9    a proposed franchise termination or noncontinuance, the board shall
21-10    notify the party seeking to terminate or to not continue the
21-11    protesting dealer's franchise that a timely protest has been filed,
21-12    that a hearing is required in accordance with this Act, and that
21-13    the party who gave the dealer notice of termination or
21-14    noncontinuance of the franchise may not terminate or refuse to
21-15    continue the franchise until the board issues its final decision or
21-16    order.
21-17                      (C)  If a franchise is terminated or not
21-18    continued, another franchise in the same line-make will be
21-19    established within a reasonable time unless it is shown to the
21-20    board by a preponderance of the evidence that the community or
21-21    trade area cannot reasonably support such a dealership.  If this
21-22    showing is made, no dealer license shall be thereafter issued in
21-23    the same area unless a change in circumstances is established.
21-24                (4)  Notwithstanding the terms of any franchise
21-25    agreement, modify or replace a franchise if the modification or
 22-1    replacement would adversely affect, to a substantial degree, the
 22-2    dealer's sales, investment, or obligations to provide service to
 22-3    the public, unless the manufacturer, distributor, or representative
 22-4    has first given the board and each affected dealer written notice
 22-5    by registered or certified mail of any such action 60 days in
 22-6    advance of the modification or replacement.  The written notice
 22-7    shall contain on the first page thereof a conspicuous statement
 22-8    which reads as follows:  "NOTICE TO DEALER:  YOU MAY BE ENTITLED TO
 22-9    FILE A PROTEST WITH THE TEXAS MOTOR VEHICLE BOARD IN AUSTIN, TEXAS,
22-10    AND HAVE A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED
22-11    MODIFICATION OR REPLACEMENT OF YOUR FRANCHISE UNDER THE TERMS OF
22-12    THE TEXAS MOTOR VEHICLE COMMISSION CODE IF YOU OPPOSE THIS ACTION."
22-13    Within the greater of (1) 60 days after receipt of such notice or
22-14    (2) the time specified in such notice, a dealer may file a protest
22-15    with the board and the modification or replacement shall not become
22-16    effective unless and until the board determines that the party
22-17    seeking to modify or replace a franchise has demonstrated by a
22-18    preponderance of the evidence that there is good cause for the
22-19    modification or replacement.  The prior franchise shall continue in
22-20    effect until the protest is resolved by the board.
22-21                (5)  Notwithstanding the terms of any franchise
22-22    agreement, in determining whether good cause has been established
22-23    for modifying, replacing, terminating, or refusing to continue a
22-24    franchise, or for forcing or attempting to force a dealer to
22-25    relocate or discontinue a line-make or parts or products related to
 23-1    that line-make, the board shall consider all the existing
 23-2    circumstances including, without limitation by the enumeration
 23-3    herein, all the following:
 23-4                      (A)  the dealer's sales in relation to the sales
 23-5    in the market;
 23-6                      (B)  the dealer's investment and obligations;
 23-7                      (C)  injury to the public welfare;
 23-8                      (D)  the adequacy of the dealer's service
 23-9    facilities, equipment, parts, and personnel in relation to those of
23-10    other dealers of new motor vehicles of the same line-make;
23-11                      (E)  whether warranties are being honored by the
23-12    dealer;
23-13                      (F)  the parties' compliance with their franchise
23-14    agreement except to the extent that the franchise agreement is in
23-15    conflict with this Act; and
23-16                      (G)  the enforceability of the franchise
23-17    agreement from a public policy standpoint, including, without
23-18    limitation, issues of the reasonableness of the franchise
23-19    agreement's terms, oppression, adhesion, and the relative
23-20    bargaining power of the parties.
23-21    Good cause shall not be shown solely by the desire of a
23-22    manufacturer, distributor, or representative for market
23-23    penetration.
23-24                (6)  Use any false, deceptive or misleading
23-25    advertising.
 24-1                (7)  Notwithstanding the terms of any franchise
 24-2    agreement, prevent any dealer from reasonably changing the capital
 24-3    structure of his dealership or the means by or through which he
 24-4    finances the operation thereof, provided that the dealer meets
 24-5    reasonable capital requirements.
 24-6                (8)  Notwithstanding the terms of any franchise
 24-7    agreement, fail to give effect to or attempt to prevent any sale or
 24-8    transfer of a dealer, dealership or franchise or interest therein
 24-9    or management thereof except as provided by Section 5.01B.
24-10                (9)  Notwithstanding the terms of any franchise
24-11    agreement, require or attempt to require that a dealer assign to or
24-12    act as an agent for any manufacturer, distributor or representative
24-13    in the securing of promissory notes and security agreements given
24-14    in connection with the sale or purchase of new motor vehicles or
24-15    the securing of policies of insurance on or having to do with the
24-16    operation of vehicles sold.
24-17                (10)  Notwithstanding the terms of any franchise
24-18    agreement, fail or refuse, after complaint and hearing, to perform
24-19    the obligations placed on the manufacturer in connection with the
24-20    delivery, preparation and warranty of a new motor vehicle as
24-21    provided in the manufacturer's warranty, preparation, and delivery
24-22    agreements on file with the board .
24-23                (11)  Notwithstanding the terms of any franchise
24-24    agreement[, fail to compensate its dealers for the work and
24-25    services they are required to perform in connection with the
 25-1    dealer's delivery and preparation obligations according to the
 25-2    agreements on file with the board which must be found by the board
 25-3    to be reasonable, or fail to adequately and fairly compensate its
 25-4    dealers for labor, parts and other expenses incurred by such dealer
 25-5    to perform under and comply with a manufacturer's or a
 25-6    distributor's warranty agreement, or require, as a prerequisite to
 25-7    the manufacturer's or distributor's payment of a claim for
 25-8    reimbursement as required by this section, that a dealer file with
 25-9    the manufacturer or distributor the actual time spent in the
25-10    performance of labor unless actual time is the basis for
25-11    reimbursement. In no event shall any manufacturer or distributor
25-12    pay its dealers an amount of money for warranty work that is less
25-13    than that charged by the dealer to the retail customers of the
25-14    dealer for nonwarranty work of like kind. All claims made by
25-15    dealers for compensation for delivery, preparation, and warranty
25-16    work shall be paid within 30 days after approval and shall be
25-17    approved or disapproved within 30 days after receipt. When any
25-18    claim is disapproved, the dealer shall be notified in writing of
25-19    the grounds for disapproval. No claim which has been approved and
25-20    paid may be charged back to the dealer unless it can be shown that
25-21    the claim was false or fraudulent, that the repairs were not
25-22    properly made or were unnecessary to correct the defective
25-23    condition, or that the dealer failed to reasonably substantiate the
25-24    claim in accordance with reasonable written requirements of the
25-25    manufacturer or distributor, if the dealer has been notified of the
 26-1    requirements prior to the time the claim arose, and if the
 26-2    requirements were in effect at the time the claim arose.  A
 26-3    manufacturer or distributor may not audit a claim after the
 26-4    expiration of two years following the submission of the claim
 26-5    unless the manufacturer or distributor has reasonable grounds to
 26-6    suspect that a claim was fraudulent. Notwithstanding the terms of a
 26-7    franchise agreement] or provision of law in conflict with this
 26-8    section, the dealer's delivery, preparation, and warranty
 26-9    obligations as filed with the board shall constitute the dealer's
26-10    sole responsibility for product liability as between the dealer and
26-11    manufacturer or distributor, and, except for a loss caused by the
26-12    dealer's failure to adhere to these obligations, a loss caused by
26-13    the dealer's negligence or intentional misconduct, or a loss caused
26-14    by the dealer's modification of a product without manufacturer or
26-15    distributor authorization, the manufacturer or distributor shall
26-16    reimburse the dealer for all loss incurred by the dealer, including
26-17    legal fees, court costs, and damages, as a result of the dealer
26-18    having been named a party in a product liability action.
26-19                (12)  Operate as a manufacturer, distributor, or
26-20    representative without a currently valid license from the board or
26-21    otherwise violate this Act or rules promulgated by the board
26-22    hereunder.
26-23                (13)  Notwithstanding the terms of any franchise
26-24    agreement, to prevent or refuse to honor the succession to a
26-25    dealership by any legal heir or devisee under the will of a dealer
 27-1    or under the laws of descent and distribution of this State unless
 27-2    it is shown to the board, after notice and hearing, that the result
 27-3    of such succession will be detrimental to the public interest and
 27-4    to the representation of the manufacturer or distributor; provided,
 27-5    however, nothing herein shall prevent a dealer, during his
 27-6    lifetime, from designating any person as his successor dealer, by
 27-7    written instrument filed with the manufacturer or distributor.
 27-8                (14)  Notwithstanding the terms of any franchise
 27-9    agreement, require that a dealer pay or assume, directly or
27-10    indirectly, any part of any refund, rebate, discount, or other
27-11    financial adjustment made by the manufacturer, distributor, or
27-12    representative to, or in favor of, any customer of a dealer, unless
27-13    voluntarily agreed to by such dealer.
27-14                (15)  Notwithstanding the terms of any franchise
27-15    agreement, deny or withhold approval of a written application to
27-16    relocate a franchise unless (A) the applicant has received written
27-17    notice of the denial or withholding of approval within 60 days
27-18    after receipt of the application containing information reasonably
27-19    necessary to enable the manufacturer or distributor to adequately
27-20    evaluate the application, and if (B) the applicant files a protest
27-21    with the board and the manufacturer or distributor establishes by a
27-22    preponderance of the evidence at a hearing called by the board that
27-23    the grounds for the denial or withholding of approval of the
27-24    relocation are reasonable.
27-25                (16)  Notwithstanding the terms of any franchise
 28-1    agreement, fail to pay to a dealer or any lienholder in accordance
 28-2    with their respective interest after the termination of a
 28-3    franchise:
 28-4                      (A)  the dealer cost of each new motor vehicle in
 28-5    the dealer's inventory with mileage of 6,000 miles or less, reduced
 28-6    by the net discount value of each, where "net discount value" is
 28-7    determined according to the following formula: net cost multiplied
 28-8    by total mileage divided by 100,000, and where "net cost" equals
 28-9    the dealer cost plus any charges by the manufacturer, distributor,
28-10    or representative for distribution, delivery, and taxes, less all
28-11    allowances paid to the dealer by the manufacturer, distributor, or
28-12    representative for new, unsold, undamaged, and complete motor
28-13    vehicles of current model year or one year prior model year in the
28-14    dealer's inventory, except that if a vehicle cannot be reduced by
28-15    the net discount value, the manufacturer or distributor shall pay
28-16    the dealer the net cost of the vehicle;
28-17                      (B)  the dealer cost of each new, unused,
28-18    undamaged, and unsold part or accessory if the part or accessory is
28-19    in the current parts catalogue and is still in the original,
28-20    resalable merchandising package and in unbroken lots, except that
28-21    in the case of sheet metal, a comparable substitute for the
28-22    original package may be used, and if the part or accessory was
28-23    purchased by the dealer either directly from the manufacturer or
28-24    distributor or from an outgoing authorized dealer as a part of the
28-25    dealer's initial inventory;
 29-1                      (C)  the fair market value of each undamaged sign
 29-2    owned by the dealer which bears a trademark or tradename used or
 29-3    claimed by the manufacturer, distributor, or representative if the
 29-4    sign was purchased from or purchased at the request of the
 29-5    manufacturer, distributor, or representative;
 29-6                      (D)  the fair market value of all special tools,
 29-7    data processing equipment, and automotive service equipment owned
 29-8    by the dealer which were recommended in writing and designated as
 29-9    special tools and equipment and purchased from or purchased at the
29-10    request of the manufacturer, distributor, or representative, if the
29-11    tools and equipment are in usable and good condition except for
29-12    reasonable wear and tear;
29-13                      (E)  the cost of transporting, handling, packing,
29-14    storing, and loading of any property subject to repurchase under
29-15    this section;
29-16                      (F)  except as provided by this subdivision, any
29-17    sums due as provided by Paragraph (A) of this subdivision within 60
29-18    days after termination of a franchise and any sums due as provided
29-19    by Paragraphs (B) through (E) of this subdivision within 90 days
29-20    after termination of a franchise.  As a condition of payment, the
29-21    dealer is to comply with reasonable requirements with respect to
29-22    the return of inventory as are set out in the terms of the
29-23    franchise agreement.  A manufacturer or distributor shall reimburse
29-24    a dealer for the dealer's cost for storing any property covered by
29-25    this subdivision beginning 90 days following termination.  A
 30-1    manufacturer or distributor shall reimburse a dealer for the
 30-2    dealer's cost of storing any property covered by this subdivision
 30-3    before the expiration of 90 days from the date of termination if
 30-4    the dealer notifies the manufacturer or distributor of the
 30-5    commencement of storage charges within that period. On receipt of
 30-6    notice of the commencement of storage charges, a manufacturer or
 30-7    distributor may immediately take possession of the property in
 30-8    question by repurchasing the property as provided by this
 30-9    subdivision.  A manufacturer, distributor, or representative who
30-10    fails to pay those sums within the prescribed time or at such time
30-11    as the dealer and lienholder, if any, proffer good title prior to
30-12    the prescribed time for payment, is liable to the dealer for:
30-13                            (i)  the greatest of dealer cost, fair
30-14    market value, or current price of the inventory;
30-15                            (ii)  interest on the amount due calculated
30-16    at the rate applicable to a judgment of a court; and
30-17                            (iii)  reasonable attorney's fees and
30-18    costs.
30-19                (17)  Notwithstanding the terms of any franchise
30-20    agreement, change its distributor, its method of distribution of
30-21    its products in this state, or its business structure or ownership
30-22    in a manner that results in the termination or noncontinuance of a
30-23    franchise without good cause.  The manufacturer, distributor, or
30-24    representative shall issue the same notice to the dealer and to the
30-25    board as is provided in Subdivisions (3)(A) and (B) of this section
 31-1    and said same procedures shall apply to the parties.
 31-2                (18)  Notwithstanding the terms of any franchise
 31-3    agreement, require a dealer to submit to arbitration on any issue
 31-4    unless the dealer and the manufacturer, distributor, or
 31-5    representative and their respective counsel agree to arbitrate
 31-6    after a controversy arises.  The arbitrator shall apply the
 31-7    provisions of this Act in resolving the pertinent controversy.
 31-8    Either party may appeal to the board a decision of an arbitrator on
 31-9    the ground that the arbitrator failed to apply this Act.
31-10                (19)  Notwithstanding the terms of any franchise
31-11    agreement, require that a dealer join, contribute to, or affiliate
31-12    with, directly or indirectly, any advertising association.
31-13                (20)  Notwithstanding the terms of a franchise
31-14    agreement:
31-15                      (A)  require adherence to unreasonable sales or
31-16    service standards;
31-17                      (B)  directly or indirectly, discriminate against
31-18    a dealer or otherwise treat dealers differently as a result of a
31-19    formula or other calculation or process intended to gauge the
31-20    performance of a dealership;
31-21                      (C)  unreasonably require that a dealer purchase
31-22    special tools or equipment; or
31-23                      (D)  fail to compensate a dealer for all costs
31-24    incurred by the dealer as required by the manufacturer in complying
31-25    with the terms of a product recall by the manufacturer or
 32-1    distributor, including the costs, if any, incurred by the dealer in
 32-2    notifying vehicle owners of the existence of the recall.
 32-3                (21)  Discriminate unreasonably between or among
 32-4    franchisees in the sale of a motor vehicle owned by the
 32-5    manufacturer or distributor.
 32-6                (22)  Directly or indirectly, or through a subsidiary
 32-7    or agent, require, as a condition for obtaining financing for a
 32-8    motor vehicle, the purchaser of a vehicle to purchase any product
 32-9    other than the motor vehicle from the manufacturer or distributor,
32-10    or from an entity owned or controlled by the manufacturer or
32-11    distributor.
32-12                (23)  Directly or indirectly, or through a subsidiary
32-13    or agent, require, as a condition of its or its subsidiary's
32-14    agreement to provide financing for a motor vehicle, that any
32-15    insurance policy or service contract purchased by the motor vehicle
32-16    purchaser be purchased from a specific source.
32-17                (24)  Compel a dealer through a financing subsidiary of
32-18    the manufacturer or distributor to agree to unreasonable operating
32-19    requirements or directly or indirectly to terminate a dealer
32-20    through the actions of a financing subsidiary of the manufacturer
32-21    or distributor.  This subdivision does not limit the right of a
32-22    financing entity to engage in business practices in accordance with
32-23    the usage of trade in retail and wholesale motor vehicle financing.
32-24                (25)  [Operate as a dealer except on a temporary basis
32-25    and only if:]
 33-1                      [(A)  the dealership was previously owned by a
 33-2    franchised dealer and is currently for sale at a reasonable price;
 33-3    or]
 33-4                      [(B)  the manufacturer, distributor, or
 33-5    representative operates the dealership in a bona fide relationship
 33-6    with a franchised dealer who is required to make a significant
 33-7    investment in the dealership, subject to loss, and who reasonably
 33-8    expects to acquire full ownership of the dealership under
 33-9    reasonable terms and conditions.]
33-10                [(26)]  Notwithstanding the terms of a franchise
33-11    agreement, deny or withhold approval of a dealer's application to
33-12    add a line-make or parts or products related to that line-make
33-13    unless, within 60 days of receipt of the dealer's written
33-14    application to add the line-make, the manufacturer or distributor
33-15    gives the dealer written notice of the denial or withholding of
33-16    approval.  After receipt of notice, the dealer may file a protest
33-17    with the board.  If the dealer files a protest as provided by this
33-18    subdivision, the board may uphold the manufacturer's or
33-19    distributor's decision to deny or withhold approval of the addition
33-20    of the line-make only if the manufacturer or distributor proves by
33-21    a preponderance of the evidence that the denial or withholding of
33-22    approval was reasonable. In determining whether or not the
33-23    manufacturer or distributor has met its burden to show that its
33-24    denial or withholding of approval is reasonable, the board shall
33-25    consider all existing circumstances, including, without limitation,
 34-1    the following:
 34-2                      (A)  the dealer's sales in relation to the sales
 34-3    in the market;
 34-4                      (B)  the dealer's investment and obligations;
 34-5                      (C)  injury or benefit to the public [welfare];
 34-6                      (D)  the adequacy of the dealer's sales and
 34-7    service facilities, equipment, parts, and personnel in relation to
 34-8    those of other dealers of new motor vehicles of the same line-make;
 34-9                      (E)  whether warranties are being honored by the
34-10    dealer agreement;
34-11                      (F)  the parties' compliance with their franchise
34-12    agreement to the extent that the franchise agreement is not in
34-13    conflict with this Act;
34-14                      (G)  the enforceability of the franchise
34-15    agreement from a public policy standpoint, including without
34-16    limitation, issues of the reasonableness of the franchise
34-17    agreement's terms, oppression, adhesion, and the relative
34-18    bargaining power of the parties;
34-19                      (H)  whether the dealer complies with reasonable
34-20    capitalization requirements or will be able to comply with
34-21    reasonable capitalization requirements within a reasonable time;
34-22                      (I)  the harm, if any, to the manufacturer if the
34-23    denial or withholding of approval is not upheld; and
34-24                      (J)  the harm, if any, to the dealer if the
34-25    denial or withholding of approval is upheld.
 35-1                (26)[(27)]  Fail or refuse to offer to its same
 35-2    line-make franchised dealers all models manufactured for that
 35-3    line-make, or require a dealer to pay any extra fee, purchase
 35-4    unreasonable advertising displays or other materials, or remodel,
 35-5    renovate, or recondition the dealer's existing facilities as a
 35-6    prerequisite to receiving a model or series of vehicles.
 35-7                (27)[(28)]  Require a dealer to compensate the
 35-8    manufacturer or distributor for any court costs, attorney's fees,
 35-9    or other expenses incurred in an administrative or civil proceeding
35-10    arising under this Act, except that this subdivision does not
35-11    prohibit a manufacturer and dealer from entering into an agreement
35-12    to share costs in a proceeding in which the dealer and manufacturer
35-13    have the same or similar interests.
35-14          SECTION 11.  The Texas Motor Vehicle Commission Code (Article
35-15    4413(36), Vernon's Texas Civil Statutes), is amended by adding
35-16    Sections 5.02A, 5.02B and 5.02C to read as follows:
35-17          Section 5.02A.  WARRANTY REIMBURSEMENT.  (a)  A manufacturer
35-18    or distributor shall file with the board a copy of the current
35-19    requirements the manufacturer or distributor places on its dealers
35-20    with respect to the dealer's:
35-21                (1)  duties under the manufacturer or distributor's
35-22    warranty; and
35-23                (2)  vehicle delivery and preparation obligations.
35-24          (b)  Warranty or delivery and preparation requirements are
35-25    not enforceable unless they are reasonable and are disclosed and
 36-1    filed in compliance with Subsection (a).  The board shall insure
 36-2    that the requirements set forth in Subsection (a) are reasonable.
 36-3          (c)  A manufacturer or distributor shall fairly and
 36-4    adequately compensate its dealers for:
 36-5                (1)  all warranty work; and
 36-6                (2)  labor, parts, and other expenses necessarily
 36-7    incurred by the dealer in the performance of warranty work.
 36-8          (d)  In no event may a manufacturer or distributor pay or
 36-9    reimburse a dealer an amount of money for warranty work that is
36-10    less than that charged by the dealer to the dealer's retail
36-11    customers for nonwarranty work of like kind.
36-12          (e)  A manufacturer or distributor shall pay a dealer's claim
36-13    for reimbursement for warranty work or dealer preparation and
36-14    delivery work within 30 days after approval of the claim.  A claim
36-15    not disapproved within 30 days after the manufacturer or
36-16    distributor receives it is approved. If the claim is disapproved,
36-17    the manufacturer or distributor shall provide the dealer written
36-18    notice of the reasons for the disapproval.
36-19          (f)  Except as provided by this section, a manufacturer or
36-20    distributor may not charge a dealer back to recoup money paid to
36-21    the dealer to satisfy a claim approved and paid as provided by this
36-22    section. A manufacturer or distributor may recoup from a dealer
36-23    money paid to the dealer to satisfy a claim approved and paid as
36-24    provided by this section if the manufacturer or distributor can
36-25    show that:
 37-1                (1)  the claim was false or fraudulent;
 37-2                (2)  repair work was not properly performed or was
 37-3    unnecessary to correct a defective condition; or
 37-4                (3)  the dealer who made the claim failed to provide
 37-5    substantiation of the claim in the manner provided by the
 37-6    manufacturer's or distributor's requirements if  those requirements
 37-7    were on file with the board at the time the claim was filed and if
 37-8    those requirements are reasonable as provided by this section.
 37-9          (g)  A manufacturer or distributor may not:
37-10                (1)  audit a claim filed under this section after the
37-11    expiration of one year from the submission of the claim unless the
37-12    manufacturer or distributor has reasonable grounds to suspect that
37-13    a claim was fraudulent; or
37-14                (2)  require, as a prerequisite to the payment of a
37-15    claim for reimbursement, that a dealer file a statement of actual
37-16    time spent in performance of labor, unless actual time is the basis
37-17    for reimbursement.
37-18          Section 5.02B.  MANUFACTURER OR DISTRIBUTOR INCENTIVE
37-19    PROGRAMS: PROCEDURES.  (a)  In this section, "incentive program"
37-20    means a temporary program adopted by a manufacturer or distributor
37-21    that offers a monetary reward or other thing of value to a dealer,
37-22    a dealer's employee or a dealer's customer, for the attainment of
37-23    certain stated sales or other objectives within certain stated time
37-24    limits.  This subsection does not render legal a program otherwise
37-25    prohibited by this Act.
 38-1          (b)  Prior to implementation of an incentive program, a
 38-2    manufacturer or distributor shall file with the board a copy of the
 38-3    rules and procedures of the program, and the duties of dealers
 38-4    under the program.
 38-5          (c)  Except as provided by this subsection, and
 38-6    notwithstanding the terms of an incentive program, a manufacturer
 38-7    or distributor may not charge a dealer back to recoup money or the
 38-8    cash value of another thing of value paid or conveyed to a dealer
 38-9    in connection with an incentive program.  A manufacturer or
38-10    distributor may recoup from a dealer money or the cash value of
38-11    another thing of value paid to a dealer in connection with an
38-12    incentive program if the manufacturer or distributor can show that:
38-13                (1)  the information filed by the dealer in connection
38-14    with the incentive program contained a material, substantive
38-15    mistake but for which the manufacturer or distributor would not
38-16    have conveyed money or other thing of value to the dealer in
38-17    connection with the incentive program, if the mistake was not
38-18    subject to discovery prior to the conveyance of the money or other
38-19    thing of value, despite the use of due diligence by the
38-20    manufacturer or distributor; or
38-21                (2)  the dealer committed fraud with respect to a
38-22    material fact or other material evidentiary matter upon which the
38-23    manufacturer or distributor relied in making the decision to pay
38-24    the dealer money or other thing of value in connection with the
38-25    incentive program.
 39-1          (d)  After the expiration of one year following the date on
 39-2    which a manufacturer or distributor conveyed money or other thing
 39-3    of value to a dealer in connection with an incentive program, the
 39-4    manufacturer or distributor may not audit the records of the dealer
 39-5    for the purpose of determining compliance with the rules of the
 39-6    program unless the manufacturer or distributor has reasonable
 39-7    grounds to suspect that the dealer committed fraud.  In this
 39-8    section, clerical error is not fraud.
 39-9          Section 5.02C.  MANUFACTURER OWNERSHIP OF DEALERSHIP.
39-10    (a)  In this section the term "manufacturer" includes:
39-11                (1)  a distributor;
39-12                (2)  a representative; or
39-13                (3)  a person or entity who is affiliated with a
39-14    manufacturer, distributor, or representative, or, who, directly or
39-15    indirectly through an intermediary, is controlled by, or is under
39-16    common control with, the manufacturer.
39-17          (b)  For purposes of Subsection (a)(3), a person or entity is
39-18    controlled by a manufacturer if the manufacturer has the authority
39-19    directly or indirectly, by law or by agreement of the parties, to
39-20    direct or influence the management and policies of the person or
39-21    entity.
39-22          (c)  Except as provided by this section, a manufacturer may
39-23    not directly or indirectly:
39-24                (1)  own an interest in a dealer or dealership;
39-25                (2)  operate or control a dealer or dealership; or
 40-1                (3)  act in the capacity of a dealer.
 40-2          (d)  A manufacturer may own an interest in a franchised
 40-3    dealer, or otherwise control a dealership, for a period not to
 40-4    exceed 12 months from the date the manufacturer acquires the
 40-5    dealership if:
 40-6                (1)  the person from whom the manufacturer acquired the
 40-7    dealership was a franchised dealer; and
 40-8                (2)  the dealership is for sale by the manufacturer at
 40-9    a reasonable price and on reasonable terms and conditions.
40-10          (e)  For the purpose of broadening the diversity of its
40-11    dealer body and enhancing opportunities for qualified persons who
40-12    are part of a group who have historically been underrepresented in
40-13    its dealer body, or other qualified persons who lack the resources
40-14    to purchase a dealership outright, but for no other purpose, a
40-15    manufacturer may temporarily own an interest in a dealership if the
40-16    manufacturer's participation in the dealership is in a bona fide
40-17    relationship with a franchised dealer who:
40-18                (1)  has made a significant investment in the
40-19    dealership, subject to loss;
40-20                (2)  has an ownership interest in the dealership; and
40-21                (3)  operates the dealership under a plan to acquire
40-22    full ownership of the dealership within a reasonable time and under
40-23    reasonable terms and conditions.
40-24          SECTION 12.  Section 6.01, Texas Motor Vehicle Commission
40-25    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 41-1    to read as follows:
 41-2          Section 6.01.  CIVIL PENALTY.  (a)  In the event the board
 41-3    [Commission] determines, after a proceeding conducted in accordance
 41-4    with this Act and the rules of the board [Commission], that any
 41-5    person is violating or has violated any provision of this Act, any
 41-6    rule or order of the board [Commission] issued pursuant to this
 41-7    Act, or Section 503.038(a), or Subchapter A, Chapter 728,
 41-8    Transportation code, the board [Commission] may levy a civil
 41-9    penalty not to exceed $10,000 for each day of violation and for
41-10    each act of violation. Notwithstanding a law to the contrary, all
41-11    civil penalties recovered under this Act shall be deposited in the
41-12    state treasury to the credit of the state highway fund.
41-13          (b)  In determining the amount of a civil penalty levied
41-14    under this Act, the board [Commission] shall consider:
41-15                (1)  the seriousness of the violation, including but
41-16    not limited to the nature, circumstances, extent, and gravity of
41-17    the prohibited acts, and the harm or potential harm created to the
41-18    safety of the public;
41-19                (2)  the economic damage to the public caused by the
41-20    violation;
41-21                (3)  the history of the previous violations;
41-22                (4)  the amount necessary to deter future violations;
41-23                (5)  efforts made to correct the violations; and
41-24                (6)  any other matters that justice may require.
41-25          SECTION 13.  Section 6.07(a), Texas Motor Vehicle Commission
 42-1    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 42-2    to read a follows:
 42-3          (a)  In addition to the other powers and duties provided for
 42-4    in this Act, the board [Commission] shall cause manufacturers,
 42-5    converters, and distributors to perform the obligations imposed by
 42-6    this section. In this section "owner" means a Texas resident who:
 42-7                (1)  purchased a vehicle at retail from a licensee and
 42-8    is entitled to enforce the terms of a manufacturer's warranty with
 42-9    respect to the vehicle;
42-10                (2)  is a lessor or lessee, other than a sublessee, who
42-11    purchased or leased the vehicle from a licensee; or
42-12                (3)  is the transferee or assignee of any of the
42-13    persons described in Subdivisions (1)or (2) of this subsection if
42-14    the transferee or assignee is a Texas resident and is entitled to
42-15    enforce the terms of a manufacturer's warranty. [For purposes of
42-16    this section, the term "owner" means a retail purchaser, lessor,
42-17    lessee other than a sublessee, or the person so designated on the
42-18    certificate of title to a motor vehicle issued by the Texas
42-19    Department of Transportation, or an equivalent document issued by
42-20    the duly authorized agency of any other state, or any person to
42-21    whom such motor vehicle is legally transferred during the duration
42-22    of a manufacturer's or distributor's express warranty applicable to
42-23    such motor vehicle, and any other person entitled by the terms of
42-24    the manufacturer's, converter's, or distributor's express warranty
42-25    to enforce the obligations thereof.]
 43-1          SECTION 14.  Section 7.01(f), Texas Motor Vehicle Commission
 43-2    Code (Article 4413(36), Vernon's Texas Civil Statutes), is amended
 43-3    to read as follows:
 43-4          (f)  Appeal shall not affect the enforcement of a final board
 43-5    [Commission] order unless its enforcement is enjoinable under
 43-6    Section 65.001 et seq., Civil Practice and Remedies Code, and under
 43-7    principles of primary jurisdiction. Notwithstanding the terms of
 43-8    this section, the board may, in the interest of justice, suspend
 43-9    the enforcement of its order pending final determination of an
43-10    appeal of that order as provided by this section.
43-11          SECTION 15.  EMERGENCY.  The importance of this legislation
43-12    and the crowded condition of the calendars in both houses create an
43-13    emergency and an imperative public necessity that the
43-14    constitutional rule requiring bills to be read on three several
43-15    days in each house be suspended, and this rule is hereby suspended,
43-16    and that this Act take effect and be in force from and after its
43-17    passage, and it is so enacted.