HBA-NLM, C.S.H.B. 3092 76(R)HBA-NLM, C.S.H.B. 3092 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3092
By: Siebert
Transportation
4/12/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The Texas Motor Vehicle Commission Code provides for the licensing of
manufacturers of motor vehicles and their franchised dealers and
independent dealers, and includes regulations for relations between and
among licensees.  The purpose of this bill is to clarify definitions  and
other  provisions contained in the code.  C.S.H.B. 3092 provides that a
person is eligible for appointment to the Texas Motor Vehicle Board (board)
if the person is otherwise eligible under this Act and is a natural person
who is either a dealer or is the bona fide owner of at least 20 percent of
a dealer entity. This bill also requires a manufacturer or distributor to
file with the board a copy of the current requirements the manufacturer or
distributor places on its dealer with respect to the dealer's duties under
the manufacturer or distributor's warranty, and vehicle delivery and
preparation obligations.  In addition, this bill defines "incentive
programs" and requires a manufacturer or distributor to file with the board
a copy of the rules and procedures of the program, and the duties of a
dealer under the program. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Motor Vehicle Board in
SECTION 16 (Section 8.01, Article 4413(36), V.T.C.S.) and that the
rulemaking previously delegated to the Texas Motor Vehicle Board, now the
Texas Motor Vehicle Commission, is modified in SECTION 9 (Section 4.02,
Article 4413(36), V.T.C.S.) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 1.03, Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to redefine "broker," "franchise," "lease
facilitator,"  "lessor," and "manufacturer." Redefines  "rule" to
substitute the Texas Motor Vehicle Board (board) for the Texas Motor
Vehicle Commission. 

SECTION 2. Amends Section 1.03(28), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., as renumbered by Chapter 639, Acts of the 75th
Legislature, Regular Session, 1997, to redefine "party" by making a
conforming change. 

SECTION 3. Amends Section 1.03(28), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to redefine "towable recreational vehicle." 

SECTION 4.  Amends Section 2.02, Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., by amending Subsection (c) and adding
Subsection (d), as follows: 

(c) Sets forth the composition of the board members.

(d) Provides that a person is not eligible to serve on the board under
Subsection (c) of this section if the person's qualifying ownership
interest under Subsection (c) is in a dealer in which a manufacturrer or
distributor has an ownership interest. 

SECTION 5.  Amends Subsections (a), (b), and (c), Section 2.08, Texas Motor
Vehicle Commission Code,  Article 4413(36), V.T.C.S., to delete the
exception providing that a member appointed under 2.02 of this Act is not
counted in the calculation of a quorum for the purposes of the
determination  of an issue with respect to which the member is prohibited
from voting. Makes conforming changes. 


SECTION 6.  Amends Section 2.08A(c), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to require the director, rather than the
executive director, to notify the vice-chairman of the commission if the
director has knowledge that a potential ground for removal exists.  Makes
conforming changes. 

SECTION 7.  Amends Section 3.02, Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to make conforming changes. 

SECTION 8.  Amends Section 3.08(g), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to require the board's written final decision
or order to be signed on behalf of the board by the chairman or vice
chairman, rather than the director. 

SECTION 9.  Amends Section 4.02, Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to require the board, if it adopts a rule
regulating off-site display or sale of towable recreational vehicles, to
authorize in the rule, the display and sale at a private event in a trade
area that would not otherwise qualify as a private event, rather than in
areas (counties, cities, or towns), under the application of general
participation requirements for organized dealer shows and exhibitions.
Redesignates existing Subdivisions (1)-(3) to Subsections (c)-(e).
Redesignates existing Subsection (d) to Subsection (f).  Makes conforming
and nonsubstantive changes. 

SECTION 10. Amends Section 4.03(b), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to require the applicant to separately list
each dealer in which the applicant, or an entity owned or controlled by the
applicant, has any ownership interest, regardless of whether the dealer is
included in the list of franchised dealers. Makes a conforming change. 

SECTION 11. Amends Section 5.01B(a), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to include among the required contents of a
notice under this section, a statement by the prospective transferee
identifying a manufacturer or distributor that has an ownership interest in
the transferee. Makes a nonsubstantive change. 
 
SECTION 12.  Amends Section 5.02(b), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to provide that it is unlawful for any
manufacturer, distributor, or representative to attempt to force a dealer
to relocate a line-make or parts or products related to that line-make
unless certain conditions are met.  Deletes the provision relating to the
failure to compensate dealers for the work and services they are required
to perform in connection with the dealer's obligations.  Deletes the
provision which states that it is unlawful for any manufacturer,
distributor, or representative to operate as a dealer except on a temporary
basis and only under certain conditions.  Redesignates existing
Subdivisions (26)-(28) to Subdivisions (25)-(27) and makes conforming and
nonsubstantive changes. 

SECTION 13.  Amends Section 6.01, Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., as follows: 

Sec. 6.01. New title: ADMINISTRATIVE PENALTY. Authorizes the board to levy
an administrative penalty as provided by this section in the event that the
board determines that a person is in violation or has violated Subchapter
A, Chapter 728, Transportation Code, or any rule or order of the board as
provided by this section.  Deletes "civil" from existing title. Makes
conforming changes. 

SECTION 14. Amends Section 6.07(a), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to redefine "owner" for the purposes of this
section.  Makes conforming and nonsubstantive changes. 
 
SECTION 15. Amends Section 7.01(f), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to provide that appeal does not affect the
enforcement of a final board order unless its enforcement is enjoinable or
the board, in the interest of justice, suspends the enforcement of it until
the appeal is finally determined.  

SECTION 16.  Amends the Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S., by adding Subchapter H, as follows: 

SUBCHAPTER H.  MISCELLANEOUS PROVISIONS

Sec. 8.01.  WARRANTY REIMBURSEMENT. (a) Requires a manufacturer or
distributor to maintain on file with the board a copy of the current
requirements imposed by the manufacturer or distributor on its dealers with
regard to a dealer's duties under the warranty and vehicle delivery and
preparation obligations. 

(b) Provides that a requirement imposed on a dealer under Subsection (a) is
unenforceable if it is unreasonable as determined by board rule or not
filed in compliance with Subsection (a). 

(c) Requires a manufacturer or distributor to fairly compensate its dealer
for all warranty work expenses incurred by the dealer in performing
warranty work and pay or reimburse a dealer for warranty work in a
specified manner, no later than the 30th day after the claim is approved.   

(d) Provides that a reimbursement claim that is not disapproved, on or
before the 30th day is considered approved. 

(e) Requires the manufacturer or distributor, if a claim is disapproved to
provide the dealer written reasons for the disapproval. 

(f) Prohibits a manufacturer or distributor from attempting to recover
money paid to the dealer to satisfy an approved claim except under
specified circumstances. 

(g) Prohibits a manufacturer or distributor from auditing a claim filed
under this section after a certain time period unless there are reasonable
grounds to believe the claim was fraudulent or from requiring as a
condition for the reimbursement of a claim that a dealer file a statement
of the actual time of the labor involved unless the actual time of the
labor is the basis for reimbursement. 

Sec. 8.02. MANUFACTURER OR DISTRIBUTOR INCENTIVE PROGRAMS.  Defines
"incentive  program." 

(b) Provides that a manufacturer or distributor must file with the board a
copy of an incentive program's rules and procedures and the duties of the
dealer. Sets forth conditions for the copy to be filed. 

(c) Prohibits a manufacturer or distributor from recouping and award to the
dealer unless certain conditions are met. 

(d) Prohibits manufacturers or distributors from auditing a dealer's
records after a certain period unless the manufacturer or distributor has
reasonable grounds to suspect the dealer of fraud.  Provides that clerical
errors do not constitute fraud. 

Sec. 8.03.  MANUFACTURER OWNERSHIP OF DEALERSHIP.  (a)  Defines "agent."

(b)  Prohibits a manufacturer, distributor, representative, or an agent
from owning an interest in a dealer or dealership, operating  or
controlling a dealer or dealership, or acting as a dealer, except as
provided by this section.  

(c)  Authorizes a manufacturer, distributor, representative, or an agent to
own an interest in a franchised dealer or control a dealership for not more
than one year from the date the person acquires the dealership under
certain conditions described by this subsection. 
 
(d)  Authorizes a manufacturer, distributor, representative, or an agent to
temporarily own an interest in a dealership under certain conditions
described by this section. 

SECTION 17.  Provides that Section 2.02, Texas Motor Vehicle Commission
Code, Article 4413(36), V.T.C.S., as amended by this act, does not affect
the entitlement of a member of the board who is serving on the board
immediately before the effective date of this Act to continue to serve on
the board for the remainder of the member's term or to serve in a holdover
capacity until a successor is appointed and take office. 

SECTION 18.  Makes application of Section 3.08(g), Texas Motor Vehicle
Commission Code, Article 4413(36), V.T.C.S., as amended by this act,
prospective. 

SECTION 19. Makes application of Section 6.07(a), Texas Motor Vehicle
Commission Code, Article 4413(36), V.T.C.S., as amended by this act,
prospective. 

SECTION 20.  Makes application of Section 8.03, Texas Motor Vehicle
Commission Code, Article 4413(36), V.T.C.S., as added by this act,
prospective. 

SECTION 21. Emergency clause.
  Effective date: upon passage.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in SECTION 1 (Section 1.03, Texas
Motor Vehicle Commission Code, Article 4413(36), V.T.C.S.) by redefining
"lessor," and by reinstating the word "franchisee" in the definition of
"franchise." The substitute also modifies the original to conform to
Legislative Council form and make other nonsubstantive changes. 

The substitute modifies the original by amending Section 1.03(28), Texas
Motor Vehicle Commission Code, Article 4413(36), V.T.C.S., in SECTION 2 of
the substitute, rather than SECTION 1 of the original. Makes a conforming
change. 

The substitute modifies the original in new SECTION 3 of the substitute by
redesignating Section 1.03(28), Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., to proposed Section 1.03(36). Redefines
"towable recreational vehicle."  Makes a conforming change. 

The substitute modifies the original in SECTION 4 (Section 2.02, Texas
Motor Vehicle Commission Code, Article 4413(36), V.T.C.S.), to change
existing Subsection (c) to provide that  the board must include two persons
who are licensed dealers or who have at least 20 precent ownership interest
in a dealer, at least one of whom is franchised dealer or has at least 20
percent ownership interest in a franchised dealer.  The substitute modifies
the original in SECTION 4 (Section 2.02, Texas Motor Vehicle Commission
Code, Article 4413(36), V.T.C.S.) by deleting proposed Subsection (d) which
provided that a person is eligible for appointment to the board if the
person is otherwise eligible under this Act and is a natural person who is
either a dealer or is the bona fide owner of at least 20 percent of a
dealer entity.   

SECTION 5 of this substitute is redesignated from SECTION 3 of the
original.  Redesignated SECTION 5 (Sections 2.08(a), (b), and (c), Texas
Motor Vehicle Commission Code,  Article 4413(36), V.T.C.S.)  modifies the
original by amending existing Subsection (a) to delete the exception that a
board member appointed under Section 2.02 of this Act is not counted in the
calculation of a quorum for determining an issue with respect to which the
member is prohibited from voting. Makes conforming changes. 
  
SECTION 6 (Section 2.08A(c), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 4 of
the original. 

SECTION 7 (Section 3.02, Texas Motor Vehicle Vehicle Commission Code,
Article 4413(36), V.T.C.S.) of this substitute is redesignated from SECTION
5 of the original.  Makes a conforming  change. 

SECTION 8  (Section 3.08(g), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 6 of
the original. 

SECTION 9 (Section 4.02, Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 7 of
the original.   Makes nonsubstantive changes. 

SECTION 10 (Section 4.03(b), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 8 of
the original.  Specifies that an applicant must list those dealers in which
the applicant has a direct or indirect ownership interest. Makes
nonsubstantive changes. 

SECTION 11 (Section 5.01B(a), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 9 of
the original. Makes nonsubstantive changes to proposed Section
5.01B(a)(5)Deletes entire text of proposed SECTION 11 (proposed Sections
5.02A (Warranty REimbursement), 5.02B (Manufacturer or Distributor
Incentive Programs;: Prcedures), and 5.02C (Manufacturer Ownership of
Delaership), Texas Motor Vehicle Commission Code, Article 4413(36),
V.T.C.S.) of the original.    

SECTION 12 (Section 5.02(b), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 10 of
the original. 

SECTION 13 (Section 6.01, Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 12 of
the original.  The substitute modifies the original by renaming the section
and by providing for administrative penalties rather than civil penalties,
and by renaming the section accordingly.  

SECTION 14 (Section 6.07(a), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 13 of
the original. The substitute modifies the original by redefining "owner."
Makes nonsubstantive changes. 

SECTION 15 (Section 7.01(f), Texas Motor Vehicle Commission Code, Article
4413(36), V.T.C.S.) of this substitute is redesignated from SECTION 14 of
the original.  Makes nonsubstantive changes. 

Adds new SECTION 16 to amend the Texas Motor Vehicle Commission Code,
Article 4413(36), V.T.C.S., by adding Subchapter H, as follows: 

SUBCHAPTER H.  MISCELLANEOUS PROVISIONS

Sec. 8.01.  WARRANTY REIMBURSEMENT. (a) Requires a manufacturer or
distributor to maintain on file with the board a copy of the current
requirements imposed by the manufacturer or distributor on its dealers with
regard to a dealer's duties under the warranty and vehicle delivery and
preparation obligations. 

(b) Provides that a requirement imposed on a dealer under Subsection (a) is
unenforceable if it is unreasonable as determined by board rules or not
filed in compliance with Subsection (a). 

(c) Requires a manufacturer or distributor to fairly compensate its dealers
for all warranty work expenses incurred by the dealer in performing
warranty work and pay or reimburse a dealer for warranty work in a
specified manner, no later than the 30th day after the claim is approved.   

(d) Provides that a reimbursement claim that is not disapproved on or
before the 30th day is considered approved. 

(e) Requires the manufacturer or distributor, if a claim is disapproved to
provide the dealer written reasons for the disapproval. 
 
(f) Prohibits a manufacturer or distributor from attempting to recover
money paid to the dealer to satisfy an approved claim except under
specified circumstances. 

(g) Prohibits a manufacturer or distributor from auditing a claim filed
under this section after a certain time period unless there are reasonable
grounds to believe the claim was fraudulent or from requiring as a
condition for the reimbursement of a claim that a dealer file a statement
of the actual time of the labor involved unless the actual time of the
labor as the basis for reimbursement. 

Sec. 8.02. MANUFACTURER OR DISTRIBUTOR INCENTIVE PROGRAMS.  (a) Defines
"incentive  program." 

(b) Prohibits a manufacturer or distributor from recouping an award to the
dealer unless certain conditions are met. 

(c) Prohibits a manufacturer or distributor from recouping and award to the
dealer unless certain conditions are met. 

(d) Prohibits manufacturers or distributors from auditing a dealer's
records after a certain period unless the manufacturer or distributor has
reasonable grounds to suspect the dealer of fraud.  Provides that clerical
errors do not constitute fraud. 

Sec. 8.03.  MANUFACTURER OWNERSHIP OF DEALERSHIP.  (a) Defines "agent."

(b)  Prohibits a manufacturer, distributor, representative, or an agent
from owning an interest in a dealer or dealership, operating  or
controlling a dealer or dealership, or acting as a dealer, except as
provided by this section.  

(c)  Authorizes a manufacturer, distributor, representative, or an agent to
own an interest in a franchised dealer or control a dealership for not more
than one year from the date the person acquires the dealership under
certain conditions described by this subsection. 

(d)  Authorizes a manufacturer, distributor, representative, or an agent to
temporarily own an interest in a dealership under certain conditions
described by this section. 

Adds new SECTION 17 to provide that Section 2.02, Texas Motor Vehicle
Commission Code, Article 4413(36), V.T.C.S., as amended by this act, does
not affect the entitlement of a member of the board who is serving on the
board immediately before the effective date of this Act to continue to
serve on the board for the remainder of the member's term or to serve in a
holdover capacity until a successor is appointed and take office. 

Adds new SECTION 18 to make application of Section 3.08(g), Texas Motor
Vehicle Commission Code, Article 4413(36), V.T.C.S., as amended by this
act, prospective. 

Adds new SECTION 19 to make application of Section 6.07(a), Texas Motor
Vehicle Commission Code, Article 4413(36), V.T.C.S., as amended by this
act, prospective. 

Adds new SECTION 20 to make application of Section 8.03, Texas Motor
Vehicle Commission Code, Article 4413(36), V.T.C.S., as added by this act,
prospective. 

Adds new SECTION 21 (emergency clause) of this substitute is redesignated
from SECTION 15 of the original.