87R13856 TYPED
	By: Goldman	H.B. No. 3408

	A BILL TO BE ENTITLED
	AN ACT
	relating to motor fuel metering and quality.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 2310.001 of the Occupations Code is
	amended as follows:
	Sec. 2310.001.  DEFINITIONS. (a)  In this chapter:
	(1)  "Automotive fuel rating" has the meaning assigned
	by 15 U.S.C. Section 2821.
	(2) [(1)]  "Commercial [weighing or] measuring device"
	means a [weighing or] measuring device used in a commercial
	transaction.
	(3) [(2)]  "Commission" means the Texas Commission of
	Licensing and Regulation.
	(4) [(3)]  "Dealer" means a person who[:]
	[(A)] is the operator of a retail motor fuel
	facility [ service station or other retail outlet; and]
	[(B) delivers motor fuel into the fuel tanks of
	motor vehicles or motor boats].
	(5) [(4)]  "Department" means the Texas Department of
	Licensing and Regulation.
	(6)  "Distributor" means a person who makes retail or
	wholesale sales of motor fuel.
	(7) [(5)]  "Executive director" means the executive
	director of the department.
	(8) [(6)]  "Motor fuel" means gasoline, diesel fuel,
	gasoline blended fuel, aviation gasoline, aviation jet fuel,
	compressed natural gas, liquified natural gas, and other products
	that are capable of use as fuel for a gasoline-powered engine or a
	diesel-powered engine [has the meaning assigned by Section 162.001,
	Tax Code].
	(9) [(7)]  "Motor fuel metering device" means a
	commercial [weighing or] measuring device used for motor fuel
	sales.
	(10) [(8)]  "Operator" or "user" means a person in
	possession or control of a [weighing or] measuring device,
	including an owner, custodian, and seller.
	(11) [(9)]  "Sell" includes barter or exchange.
	(12)  "Supplier" has the meaning assigned by Section
	162.001, Tax Code.
	(13) [(10)]  "Measuring [Weighing or measuring]
	device" means a [scale or a] mechanical or electronic device used to
	dispense or deliver a motor fuel by [weight,] volume, flow rate, or
	other measure or to compute the charge for a service related to
	motor fuel.
	[(11) "Weight or measure of a motor fuel" means the
	weight or measure of a motor fuel as determined by a weighing or
	measuring device.]
	(14)  "Wholesaler" means a person who purchases
	tax-paid gasoline for resale or distribution at wholesale.
	SECTION 2.  Section 2310.002(c) of the Occupations Code, is
	amended as follows:
	(c)  The department may contract with one or more license
	holders under Subchapter D of this chapter [or Subchapter I,
	Chapter 13, Agriculture Code,] to perform the department's duties
	under this chapter related to motor fuel metering devices. A
	reference in this chapter to the commission or department in the
	context of a contracted service means the contractor.
	SECTION 3.  Section 2310.051 of the Occupations Code is
	amended as follows:
	Sec. 2310.051.  LEGAL STANDARDS. (a) The legal standard for
	the [weight or] measure of a motor fuel in this state is the
	standard [weight or] measure adopted and used by the government of
	the United States for that motor fuel. If the United States does
	not provide a standard [weight or] measure for a motor fuel, the
	standard for the motor fuel is that established by this subchapter.
	(b)  The commission may adopt rules for the purpose of
	administering this subchapter and bringing about uniformity
	between the standards established under this subchapter and the
	standards established by federal law.
	(c)  Except as otherwise provided by an express contract, a
	contract for work or sales by [weight or] measure of a motor fuel
	shall be construed in accordance with the standards of this
	subchapter.
	(d)  The standards of this subchapter shall be the guide for
	making any adjustment of [weighing or] measuring devices under the
	law of this state.
	SECTION 4.  Section 2310.053 of the Occupations Code is
	amended by adding subsection (c) as follows:
	(c)  A weighing or measuring device, as described by Chapter
	13, Agriculture Code, that measures liquified petroleum gas is
	exempt from this chapter.
	SECTION 5.  Sections 2310.054, 2310.057, 2310.059, and
	2310.060 of the Occupations Code are amended as follows:
	Sec. 2310.054.  SALE OF MOTOR FUEL BY PROPER MEASURE. (a)
	Motor [Except as otherwise provided by this section, motor] fuel
	shall be sold by liquid measure.
	[(b)  Compressed natural gas and liquefied natural gas shall
	be sold by weight].
	(b) [(c)]  A person violates this chapter if, in violation of
	this section, the person sells motor fuel by other than [weight or]
	liquid measure.
	Sec. 2310.056.  FALSE REPRESENTATION OF MOTOR FUEL QUANTITY.
	A person violates this chapter if the person or the person's
	representative or agent:
	(1)  sells or offers or exposes for sale a quantity of
	motor fuel that is less than the quantity the person represents; or
	(2)  as a buyer furnishing the [weight or] measure of a
	motor fuel by which the amount of the motor fuel is determined,
	takes or attempts to take more than the quantity the person
	represents.
	Sec. 2310.057.  USE OF INCORRECT MOTOR FUEL METERING DEVICE.
	(a) A person commits an offense if the person or the person's
	representative or agent knowingly uses an incorrect [weighing or]
	measuring device in:
	(1)  buying or selling motor fuel; or
	(2)  computing a charge for services rendered on the
	basis of [weight or] measure; or
	(3)  determining the [weight or] measure of motor fuel,
	if a charge is made for the determination.
	Sec. 2310.059.  TESTING BY DEPARTMENT. (a) The department
	shall from time to time [weigh or] measure an amount of motor fuel
	that is kept or offered for sale, sold, or in the process of
	delivery, in order to determine:
	(1)  if the motor fuel is of the amount or quantity
	represented; or
	(2)  if the motor fuel is being offered for sale or sold
	in accordance with law.
	(b)  If the department finds that any lot of motor fuel
	contains less of the motor fuel than the amount represented, the
	department may seize the motor fuel as evidence.
	(c)  A person commits an offense if the person or the
	person's employee or agent refuses to exhibit motor fuel being sold
	or offered for sale at a given [weight or] quantity, or ordinarily
	sold in that manner, to the department for testing and proving as to
	quantity.
	Sec. 2310.060.  STOP-SALE ORDER. (a) If the department has
	reason to believe that motor fuel is being sold or kept, offered, or
	exposed for sale in violation of this chapter or that motor fuel is
	being sold or offered for sale by or through the use of a motor fuel
	metering device that is in violation of this chapter, the executive
	director may issue an order to stop the sale of the motor fuel. The
	executive director shall issue the order to the dealer or operator
	of the retail motor fuel facility selling or offering [owner or
	custodian of] the motor fuel for sale [or seller of the motor fuel].
	The person receiving the order may not sell the motor fuel until
	discharged by a court under Subsection (b) or until the executive
	director finds that the motor fuel or motor fuel metering device is
	in compliance with this chapter.
	(b)  A dealer or operator [The owner, custodian, or seller of
	motor fuel] prohibited from selling motor fuel [sale] by an order of
	the executive director is entitled to sue in a court where the motor
	fuel is found or is being sold or offered for sale for a judgment as
	to the justification of the order and for the discharge of the motor
	fuel in accordance with the findings of the court.
	(c)  This section does not limit the right of the department
	to proceed as authorized by other sections of this code.
	SECTION 6.  Section 2310.061(b) of the Occupations Code is
	amended as follows:
	(b)  It is a defense to prosecution or to the imposition of a
	civil or administrative penalty for a violation of Section 2310.057
	or 2310.059 that a discrepancy between the actual [weight or]
	volume at the time of sale to a consumer or a discrepancy between
	the fill of a container and the capacity of the container is due to
	unavoidable leakage, shrinkage, evaporation, waste, or causes
	beyond the control of the seller acting in good faith.
	SECTION 7.  Sections 2310.101 and 2310.106 of the
	Occupations Code are amended as follows:
	Sec. 2310.101.  AUTHORITY TO INSPECT. [(a)] If the
	department has reason to believe that a motor fuel metering device
	is being used for a commercial transaction, [and] the device is not
	registered with the department, or the device is being used to
	facilitate the perpetuation of fraud, the department may inspect
	the device and the records [of the owner, operator, or user of the
	device] that relate to use of the device to determine whether the
	device is in compliance with this chapter.
	[(b)  The department has reason to believe a motor fuel
	metering device is being used for a commercial transaction if:]
	[(1)  the motor fuel metering device is found near
	motor fuel being sold or offered for sale by weight or measure and
	the device appears to be under the control or in the possession of
	the person selling the motor fuel or offering the motor fuel for
	sale; or]
	[(2)  other available evidence is sufficient for a
	prudent person to believe that the motor fuel metering device is
	being used for a commercial transaction.]
	Sec. 2310.106.  INSPECTION OF STANDARDS USED TO PERFORM
	DEVICE MAINTENANCE ACTIVITIES. (a)  In this section, "state
	metrology laboratory" means the metrology laboratory maintained by
	the Department of Agriculture under Subchapter C, Chapter 13,
	Agriculture Code.
	(b)  The commission may adopt rules to regulate the frequency
	and place of inspection and correction of the standards for motor
	fuel used by an individual or business licensed by the department to
	perform device maintenance activities under Subchapter D [or an
	individual or business licensed under Subchapter I, Chapter 13,
	Agriculture Code].
	(c)  The department may inspect any standard for motor fuel
	used by an individual or business licensed by the department to
	perform device maintenance activities described by Subchapter D [or
	an individual or business licensed under Subchapter I, Chapter 13,
	Agriculture Code], if the department has reason to believe a
	standard is no longer in compliance with this chapter.
	(d)  The department shall keep a record of the inspection and
	character of standards for motor fuel inspected under this section.
	[(e)  The state metrology laboratory shall purchase
	additional sets of standards as necessary for use by a department
	inspector or other department personnel.]
	(f)  The state metrology laboratory, or a metrology
	laboratory certified by the National Institute of Standards and
	Technology and approved by the department, shall inspect and
	correct the standards for motor fuel used by the [a] department
	[inspector, another department employee], or an individual or
	business licensed by the department to perform device maintenance
	activities under Subchapter D[, or an individual or business
	licensed under Subchapter I, Chapter 13, Agriculture Code].
	(g)  The department and the state metrology laboratory may
	shall enter into a memorandum of understanding to implement this
	section. The memorandum of understanding must provide department
	personnel and persons licensed under Subchapter D with access to
	state metrology laboratory services equal to the access provided to
	Department of Agriculture personnel and persons licensed under
	Subchapter I, Chapter 13, Agriculture Code, and under equivalent
	terms and conditions.
	SECTION 8.  Section 2310.110(b) of the Occupations Code is
	amended as follows:
	(b)  A person commits an offense if the person or the
	person's representative or agent knowingly:
	(1)  offers or exposes for sale, hire, or award or sells
	an incorrect motor fuel metering device;
	(2)  possesses an incorrect motor fuel metering device;
	or
	(3)  sells, offers for sale, uses, or possesses for the
	purpose of sale or use a device or instrument to be used to falsify
	or intended to falsify a [weight or] measure for motor fuel.
	SECTION 9.  Section 2310.154(a) of the Occupations Code is
	amended as follows:
	(a)  A person is not required to hold a license issued under
	this subchapter if the person:
	(1)  is a department employee who is performing device
	maintenance activities in the scope of the person's duties for the
	department;
	(2)  is the owner or operator of a motor fuel metering
	device or an employee of the owner or operator of a motor fuel
	metering device and the person:
	(A)  completely removes the motor fuel metering
	device from the location at which the device was installed,
	including a device subject to an out-of-order tag, stop-sale order,
	security seal, lock, condemnation notice, or other item placed on
	the device by the department to prohibit use of the device; and
	(B)  notifies the department of the motor fuel
	metering device's removal not later than the 10th day after the date
	the device was removed in the manner provided by commission rule;
	(3)  performs device maintenance activities only on a
	motor fuel metering device that is:
	(A)  exempt from the inspection and registration
	requirements of Sections 2310.102 and 2310.103 under commission
	rules; and
	(B)  not required to be inspected by other
	commission rules; or
	[(4)  is a license holder under Subchapter I, Chapter
	13, Agriculture Code.]
	SECTION 10.  Section 2310.2012(a) of the Occupations Code is
	amended as follows:
	(a)  Except as provided by Subsection (b), a distributor,
	supplier, or wholesaler[, or jobber] of motor fuel may not deliver
	to an outlet in this state a motor fuel mixture that contains
	ethanol or methanol exceeding one percent by volume of the mixture
	unless, at the time of the delivery of the mixture, the person also
	delivers to the outlet receiving the delivery a manifest, bill of
	sale, bill of lading, or other document evidencing delivery of the
	mixture, that includes a statement containing:
	(1)  the percentage of ethanol or methanol contained in
	the mixture; and
	(2)  the types and percentages of any associated
	cosolvents contained in the mixture.
	SECTION 11.  Section 2310.2013 of the Occupations Code is
	amended as follows:
	Sec. 2310.2013.  RECORD OF DELIVERY DOCUMENTS; INSPECTION
	AUTHORIZED. (a) Each dealer shall keep a copy of each document
	required to be delivered to the dealer by Section 2310.2012 until
	the fourth anniversary of the delivery date.
	(b)  Each distributor, supplier, and wholesaler[, and
	jobber] of motor fuel shall keep a copy of each document required to
	be delivered to the dealer by Section 2310.2012 until the fourth
	anniversary of the delivery date.
	(c)  The department or an authorized representative of the
	department may inspect documents described by this section. On
	written notice issued by the department or an authorized
	representative of the department to any employee at a dealer's
	retail motor fuel facility [station or retail outlet] or mailed to
	the principal place of business of a dealer, distributor, supplier,
	or wholesaler, [or jobber,] the dealer, distributor, supplier, or
	wholesaler[, or jobber] shall provide the department or authorized
	representative of the department with the documents described by
	this section within the period specified in the notice.
	(d)  The commission by rule may:
	(1)  require each dealer, distributor, supplier, and
	wholesaler[, and jobber] to maintain and make available to the
	department:
	(A)  invoices, receipts, or other transmittal
	documents or records, including electronically stored information,
	showing or describing the purchase, sale, delivery, or distribution
	of motor fuel;
	(B)  invoices, receipts, work orders, reports, or
	other documents, including electronically stored information,
	showing or describing the installation, maintenance, or repair of:
	(i)  motor fuel dispensing devices; and
	(ii)  any equipment used in connection with
	motor fuel dispensing devices to record, display, or produce
	receipts or audit trails concerning the purchase, sale, delivery,
	or distribution of motor fuel; and
	(C)  any record or other document related to the
	sampling and testing of motor fuel purchased, sold, delivered, or
	distributed by the dealer, distributor, supplier, or wholesaler[,
	or jobber]; and
	(2)  prescribe:
	(A)  the manner of filing documents or records
	required to be kept under this section or by commission rule; and
	(B)  the time, place, and manner of inspection of
	the documents or records.
	SECTION 12.  Section 2310.2014 of the Occupations Code,
	subsections (b) and (c) are amended as follows:
	(b)  Each distributor, [or] supplier, or wholesaler shall
	keep for at least one year at the distributor's, [or] supplier's, or
	wholesaler's principal place of business a copy of each delivery
	ticket or letter of certification required to be delivered by the
	distributor, [or] supplier, or wholesaler to a dealer in this state
	under 16 C.F.R. Part 306.
	(c)  The department or an authorized representative of the
	department may inspect a document required to be kept under this
	section. On written notice issued by the department or an
	authorized representative of the department to any employee at a
	dealer's retail motor fuel facility [station or retail outlet] or
	mailed to the dealer's principal place of business, the dealer
	shall provide the department or authorized representative of the
	department with the documents described by this section within the
	period specified in the notice.
	SECTION 13.  Section 2310.2015(b) of the Occupations Code,
	is amended as follows:
	(b)  A distributor, wholesaler or supplier of motor fuel may
	not deliver or transfer to a dealer in this state motor fuel that
	has an automotive fuel rating lower than the certification of the
	rating the distributor, wholesaler or supplier is required to make
	to the dealer under federal law.
	SECTION 14.  Section 2310.203 of the Occupations Code, is
	amended as follows:
	Sec. 2310.203.  TESTING OF MOTOR FUEL QUALITY. (a) The
	department or an authorized [a] representative of the department
	may collect samples and conduct testing at any location where motor
	fuel is kept, transferred, sold, or offered for sale to verify that
	the motor fuel complies with the minimum standards required by
	Section 2310.202.  A license holder under Subchapter D of this
	chapter is considered an authorized representative of the
	department for purposes of this section.
	[(b)  The collection of samples and conducting of testing at
	a dealer's location must be performed by a license holder under
	Subchapter D of this chapter or Subchapter I, Chapter 13,
	Agriculture Code, under contract with the dealer. The license
	holder is considered a representative of the department for
	purposes of this section.]
	(b) [(c)]  On arriving at a facility to conduct testing under
	Subsection (a), the department or an authorized [a] representative
	of the department shall notify the owner or manager of the facility
	of the department's or authorized representative's presence and
	purpose.  The department or an authorized representative of the
	department shall follow the most recent applicable procedures
	specified by the American Society for Testing and Materials (ASTM)
	International Standard D4057, D4177, D5842, or D5854 for the
	collection, sampling, and handling of fuel to prepare for
	laboratory analysis.
	(c) [(d)]  A person commits an offense if the person refuses
	to allow the [a] department or an authorized representative of the
	department to collect samples or conduct motor fuel testing under
	Subsection (a).
	(d) [(e)]  An offense under Subsection (c) [(d)] is a Class C
	misdemeanor.
	SECTION 15.  Section 2310.207 of the Occupations Code,
	subsections (a) and (b), are amended as follows:
	Sec. 2310.207.  CIVIL ACTION. (a) If a dealer or a
	distributor, supplier, or wholesaler[, or jobber] of motor fuel
	violates Section 2310.201, 2310.2012, 2310.2013, 2310.2014, or
	2310.2015, a person [motor fuel user] who purchased the motor fuel
	and sustained damages or who has a complaint about the product may
	bring an action against the dealer, distributor, supplier, or
	wholesaler[, or jobber].
	(b)  The action may be brought, without regard to the
	specific amount of damages, in the district court in any county in
	which:
	(1)  the dealer, distributor, supplier, or
	wholesaler[, or jobber] transacts business; or
	(2)  the dealer resides.
	SECTION 16.  Section 2310.208 of the Occupations Code is
	amended as follows:
	Sec. 2310.208.  CIVIL PENALTY. A dealer, distributor,
	supplier, or wholesaler[, or jobber] who violates Section 2310.201,
	2310.2012, 2310.2013, 2310.2014, or 2310.2015 is liable to this
	state for a civil penalty of not less than $200 and not more than
	$10,000.
	SECTION 17.  Chapter 2310 of the Occupations Code is amended
	by adding Subchapter F as follows:
	SUBCHAPTER F. MOTOR FUEL METERING AND QUALITY ADVISORY BOARD.
	Sec. 2310.220.  Board; Membership.  (a)  The Motor Fuel
	Metering and Quality Advisory Board consists of nine members
	appointed by the presiding officer of the commission, with the
	commission's approval, as follows:
	(1)  two members who are dealers, or their
	representatives:
	(A)  one member with 500 or fewer registered
	devices;
	(B)  one member with more than 1,000 registered
	devices;
	(2)  one member who represents a service company
	licensed by the department;
	(3)  one member who represents a wholesaler or
	distributor;
	(4)  one member who represents a supplier;
	(5)  one member who represents a financial institution,
	as defined by 277.001(3), Financial Code, or credit card issuer;
	and
	(6)  one member who represents a law enforcement
	agency.
	(b)  Appointments to the board shall be made without regard
	to the race, color, disability, sex, religion, age, or national
	origin of the appointee.
	Sec. 2310.221.  Terms; Vacancy.  (a)  Members of the board
	serve staggered six-year terms, with the terms of one or two members
	expiring on the same date each odd-numbered year.
	(b)  If a vacancy occurs during a member's term, the
	presiding officer of the commission, with the commission's
	approval, shall appoint a replacement to fill the unexpired term.
	Sec. 2310.222.  Presiding Officer.  The presiding officer of
	the commission, with the commission's approval, shall designate one
	member of the advisory board as presiding officer to serve in that
	capacity for a two-year term.
	Sec. 2310.223.  Board Duties.  The board may advise the
	commission and department on:
	(1)  the adoption of appropriate standards for the
	installation, maintenance, calibration, alteration, operation,
	testing, and inspection of motor fuel dispensers, devices, and
	fuel;
	(2)  education and curricula for applicants and
	licensees;
	(2)  the content of examinations;
	(3)  proposed rules and standards on technical issues
	related to motor fuel metering and quality and payment card fraud,
	including payment card skimmers and shimmers; and
	(4)  other issues affecting motor fuel metering and
	quality.
	(b)  The advisory board shall meet at the call of the
	executive director or the presiding officer of the commission.
	SECTION 18.  The following provision of the Occupations Code
	are repealed:
	(1)  Section 2310.2001.
	SECTION 19.  Not later than December 31, 2021, the Texas
	Commission of Licensing and Regulation shall appoint members to the
	motor fuel metering and quality advisory board in accordance with
	this Act.
	SECTION 20.  This Act takes effect immediately if it
	receives a vote of two-thirds of all the members elected to each
	house, as provided by Section 39, Article III, Texas Constitution.
	If this Act does not receive the vote necessary for immediate
	effect, the Act takes effect September 1, 2021.