Bill Text: TX HB3408 | 2021-2022 | 87th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the regulation of motor fuel metering devices and motor fuel quality.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2021-05-26 - Removed from local & uncontested calendar [HB3408 Detail]
Download: Texas-2021-HB3408-Introduced.html
Bill Title: Relating to the regulation of motor fuel metering devices and motor fuel quality.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2021-05-26 - Removed from local & uncontested calendar [HB3408 Detail]
Download: Texas-2021-HB3408-Introduced.html
87R13856 TYPED | ||
By: Goldman | H.B. No. 3408 |
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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) [ |
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means a [ |
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transaction. | ||
(3) [ |
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Licensing and Regulation. | ||
(4) [ |
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[ |
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facility [ |
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[ |
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(5) [ |
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Licensing and Regulation. | ||
(6) "Distributor" means a person who makes retail or | ||
wholesale sales of motor fuel. | ||
(7) [ |
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director of the department. | ||
(8) [ |
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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 [ |
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(9) [ |
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commercial [ |
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sales. | ||
(10) [ |
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possession or control of a [ |
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including an owner, custodian, and seller. | ||
(11) [ |
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(12) "Supplier" has the meaning assigned by Section | ||
162.001, Tax Code. | ||
(13) [ |
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device" means a [ |
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dispense or deliver a motor fuel by [ |
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other measure or to compute the charge for a service related to | ||
motor fuel. | ||
[ |
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(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 [ |
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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 [ |
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standard [ |
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the United States for that motor fuel. If the United States does | ||
not provide a standard [ |
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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 [ |
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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 [ |
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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 [ |
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shall be sold by liquid measure. | ||
[ |
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(b) [ |
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this section, the person sells motor fuel by other than [ |
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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 [ |
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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 [ |
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measuring device in: | ||
(1) buying or selling motor fuel; or | ||
(2) computing a charge for services rendered on the | ||
basis of [ |
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(3) determining the [ |
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if a charge is made for the determination. | ||
Sec. 2310.059. TESTING BY DEPARTMENT. (a) The department | ||
shall from time to time [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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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. [ |
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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 [ |
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device is in compliance with this chapter. | ||
[ |
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[ |
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[ |
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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 [ |
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(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 [ |
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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. | ||
[ |
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(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 [ |
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[ |
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business licensed by the department to perform device maintenance | ||
activities under Subchapter D[ |
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(g) The department and the state metrology laboratory may | ||
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 [ |
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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 | ||
[ |
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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[ |
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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[ |
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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 [ |
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the principal place of business of a dealer, distributor, supplier, | ||
or wholesaler, [ |
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wholesaler[ |
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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[ |
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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[ |
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(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, [ |
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keep for at least one year at the distributor's, [ |
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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 [ |
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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 [ |
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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. | ||
[ |
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(b) [ |
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Subsection (a), the department or an authorized [ |
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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) [ |
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to allow the [ |
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department to collect samples or conduct motor fuel testing under | ||
Subsection (a). | ||
(d) [ |
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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[ |
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violates Section 2310.201, 2310.2012, 2310.2013, 2310.2014, or | ||
2310.2015, a person [ |
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and sustained damages or who has a complaint about the product may | ||
bring an action against the dealer, distributor, supplier, or | ||
wholesaler[ |
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(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[ |
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(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[ |
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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. |