Bill Text: TX HB3408 | 2021-2022 | 87th Legislature | Comm Sub
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-Comm_Sub.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-Comm_Sub.html
87R18751 JES-F | |||
By: Goldman | H.B. No. 3408 | ||
Substitute the following for H.B. No. 3408: | |||
By: Goldman | C.S.H.B. No. 3408 |
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relating to the regulation of motor fuel metering devices and motor | ||
fuel quality. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 2310.001(a), Occupations Code, is | ||
amended by amending Subdivisions (1), (3), (6), (7), and (8) and | ||
adding Subdivisions (1-a), (4-a), (5-a), (9-a), and (9-b) to read | ||
as follows: | ||
(1) "Automotive fuel rating" has the meaning assigned | ||
by 15 U.S.C. Section 2821. | ||
(1-a) "Commercial [ |
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means a [ |
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transaction. | ||
(3) "Dealer" means a person who[ |
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[ |
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[ |
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(4-a) "Distributor" means a person who makes retail or | ||
wholesale sales of motor fuel. | ||
(5-a) "Measuring device" means a mechanical or | ||
electronic device used to: | ||
(A) dispense or deliver a motor fuel by volume, | ||
flow rate, or other measure; or | ||
(B) compute the charge for a service related to | ||
motor fuel. | ||
(6) "Motor fuel" means gasoline, diesel fuel, gasoline | ||
blended fuel, aviation gasoline, aviation jet fuel, compressed | ||
natural gas, liquefied 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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(7) "Motor fuel metering device" means a commercial | ||
[ |
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(8) "Operator" or "user" means a person in possession | ||
or control of a [ |
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custodian, or seller. | ||
(9-a) "Supplier" has the meaning assigned by Section | ||
162.001, Tax Code. | ||
(9-b) "Wholesaler" means a person who purchases | ||
tax-paid motor fuel for resale or distribution at wholesale. | ||
SECTION 2. Section 2310.002(c), Occupations Code, is | ||
amended to read as follows: | ||
(c) The department may contract with one or more license | ||
holders under Subchapter D [ |
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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. Chapter 2310, Occupations Code, is amended by | ||
adding Subchapter A-1 to read as follows: | ||
SUBCHAPTER A-1. ADVISORY BOARD | ||
Sec. 2310.031. DEFINITION. In this subchapter, "board" | ||
means the Motor Fuel Metering and Quality Advisory Board. | ||
Sec. 2310.032. BOARD MEMBERSHIP. (a) The board consists of | ||
nine members appointed by the presiding officer of the commission, | ||
with the approval of the commission, as follows: | ||
(1) four members who are dealers or representatives | ||
designated by the dealers, including: | ||
(A) one dealer that has fewer than 501 motor fuel | ||
metering devices registered with the department; | ||
(B) one dealer that has more than 1,000 but fewer | ||
than 5,000 motor fuel metering devices registered with the | ||
department; | ||
(C) one dealer that has more than 5,000 motor | ||
fuel metering devices registered with the department; and | ||
(D) one dealer without regard to the dealer's | ||
number of motor fuel metering devices registered with the | ||
department; | ||
(2) two members who represent service companies, as | ||
defined by Section 2310.151; | ||
(3) one member who represents a wholesaler or | ||
distributor; | ||
(4) one member who represents a supplier; and | ||
(5) one member of the public. | ||
(b) The presiding officer of the commission, with the | ||
approval of the commission, shall appoint two ex officio nonvoting | ||
members of the board. An ex officio member is not counted as a | ||
member for purposes of establishing a quorum. The ex officio | ||
members must include: | ||
(1) one member who represents: | ||
(A) a financial institution, as defined by | ||
Section 277.001, Finance Code; or | ||
(B) a credit card issuer other than a financial | ||
institution; and | ||
(2) one member who represents a law enforcement | ||
agency. | ||
(c) Appointments to the board shall be made without regard | ||
to the race, color, disability, sex, religion, age, or national | ||
origin of the appointees. | ||
Sec. 2310.033. TERMS; VACANCY. (a) Members of the board | ||
serve staggered six-year terms, with the terms of three or four | ||
members expiring on February 1 of 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. 2310.034. PRESIDING OFFICER. The presiding officer of | ||
the commission, with the approval of the commission, shall appoint | ||
one of the board members to serve as presiding officer of the board | ||
for a term of one year. | ||
Sec. 2310.035. DUTIES. The board may advise the commission | ||
and department on: | ||
(1) the adoption of appropriate standards for the | ||
installation, maintenance, calibration, alteration, operation, | ||
testing, or inspection, as applicable, of: | ||
(A) motor fuel dispensing devices; | ||
(B) motor fuel metering devices; and | ||
(C) motor fuel; | ||
(2) education and curricula for applicants for a | ||
license issued under this chapter and license holders; | ||
(3) the content of examinations; | ||
(4) proposed rules and standards on technical issues | ||
related to motor fuel metering and quality and payment card | ||
skimmers; and | ||
(5) other issues affecting motor fuel metering and | ||
quality. | ||
Sec. 2310.036. MEETINGS. The advisory board shall meet at | ||
the call of the executive director or the presiding officer of the | ||
commission. | ||
SECTION 4. The heading to Subchapter B, Chapter 2310, | ||
Occupations Code, is amended to read as follows: | ||
SUBCHAPTER B. STANDARD [ |
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SECTION 5. Sections 2310.051(a), (c), and (d), Occupations | ||
Code, are amended to read as follows: | ||
(a) The legal standard for the [ |
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motor fuel in this state is the standard [ |
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and used by the government of the United States for that motor fuel. | ||
If the United States does not provide a standard [ |
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for a motor fuel, the standard for the motor fuel is that | ||
established by this subchapter. | ||
(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 6. Section 2310.053, Occupations Code, is amended | ||
by adding Subsection (c) to read as follows: | ||
(c) Notwithstanding Section 2310.002, this chapter does not | ||
apply to a weighing or measuring device, as defined by Section | ||
13.001, Agriculture Code, that measures liquefied petroleum gas. | ||
SECTION 7. Sections 2310.054(a) and (c), Occupations Code, | ||
are amended to read as follows: | ||
(a) Motor [ |
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(c) A person violates this chapter if, in violation of this | ||
section, the person sells motor fuel by other than [ |
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liquid measure. | ||
SECTION 8. Section 2310.056, Occupations Code, is amended | ||
to read as follows: | ||
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. | ||
SECTION 9. Section 2310.057, Occupations Code, is amended | ||
to read as follows: | ||
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; | ||
(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. | ||
(b) For the purpose of this section, a [ |
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measuring device is incorrect if it: | ||
(1) does not conform as closely as practicable to the | ||
official standards; | ||
(2) is not accurate; | ||
(3) is of a construction that is not reasonably | ||
permanent in adjustment or does not correctly repeat its | ||
indications; | ||
(4) facilitates the perpetration of fraud; or | ||
(5) does not conform to the specifications and | ||
tolerances under Section 2310.107. | ||
SECTION 10. Sections 2310.059(a) and (c), Occupations Code, | ||
are amended to read as follows: | ||
(a) The department shall from time to time [ |
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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. | ||
(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. | ||
SECTION 11. Sections 2310.060(a) and (b), Occupations Code, | ||
are amended to read as follows: | ||
(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 [ |
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offering the motor fuel for sale [ |
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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. | ||
SECTION 12. Section 2310.061(b), Occupations Code, is | ||
amended to read 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 13. Section 2310.101(a), Occupations Code, is | ||
amended to read as follows: | ||
(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 is being used to | ||
facilitate the perpetration of fraud, the department may inspect | ||
the device and the records [ |
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device is in compliance with this chapter. | ||
SECTION 14. Sections 2310.106(b), (c), (f), and (g), | ||
Occupations Code, are amended to read as follows: | ||
(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. | ||
(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 | ||
[ |
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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 15. Section 2310.110(b), Occupations Code, is | ||
amended to read 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 16. Section 2310.154(a), Occupations Code, is | ||
amended to read 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; or | ||
(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[ |
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[ |
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SECTION 17. Section 2310.2012(a), Occupations Code, is | ||
amended to read 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 18. Sections 2310.2013(b), (c), and (d), | ||
Occupations Code, are amended to read as follows: | ||
(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 | ||
[ |
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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 19. Sections 2310.2014(b) and (c), Occupations | ||
Code, are amended to read 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, [ |
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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 [ |
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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 20. Section 2310.2015(b), Occupations Code, is | ||
amended to read 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 21. Sections 2310.203(a), (c), and (d), Occupations | ||
Code, are amended to read as follows: | ||
(a) The department or an authorized [ |
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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 person who holds a | ||
license issued under Subchapter D is considered an authorized | ||
representative of the department for purposes of this section. | ||
(c) On arriving at a facility to conduct testing under | ||
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 representative's presence and purpose. The | ||
department or representative 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. | ||
(d) A person commits an offense if the person refuses to | ||
allow the [ |
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department to collect samples or conduct motor fuel testing under | ||
Subsection (a). | ||
SECTION 22. Sections 2310.207(a) and (b), Occupations Code, | ||
are amended to read as follows: | ||
(a) If a dealer or a distributor, supplier, or wholesaler[ |
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2310.2013, 2310.2014, or 2310.2015, a person [ |
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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[ |
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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 23. Section 2310.208, Occupations Code, is amended | ||
to read 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 24. The following provisions of the Occupations | ||
Code are repealed: | ||
(1) Sections 2310.001(a)(10), (a)(11), and (b); | ||
(2) Section 2310.054(b); | ||
(3) Section 2310.101(b); | ||
(4) Section 2310.106(e); | ||
(5) Section 2310.2001; and | ||
(6) Section 2310.203(b). | ||
SECTION 25. (a) Not later than February 1, 2022, the | ||
presiding officer of the Texas Commission of Licensing and | ||
Regulation shall appoint members to the Motor Fuel Metering and | ||
Quality Advisory Board in accordance with Section 2310.032, | ||
Occupations Code, as added by this Act. | ||
(b) Notwithstanding Section 2310.033, Occupations Code, as | ||
added by this Act, in making the initial appointments to the Motor | ||
Fuel Metering and Quality Advisory Board, the presiding officer of | ||
the Texas Commission of Licensing and Regulation shall designate | ||
three members of the advisory board to serve terms expiring | ||
February 1, 2023, four members to serve terms expiring February 1, | ||
2025, and four members to serve terms expiring February 1, 2027. | ||
SECTION 26. (a) The changes in law made by this Act to | ||
Chapter 2310, Occupations Code, do not affect the validity of a | ||
proceeding pending before a court or other governmental entity on | ||
the effective date of this Act. | ||
(b) An offense or other violation committed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the offense or violation was committed, and the former law is | ||
continued in effect for that purpose. For purposes of this section, | ||
an offense or violation was committed before the effective date of | ||
this Act if any element of the offense or violation was committed | ||
before that date. | ||
SECTION 27. This Act takes effect September 1, 2021. |