VERNON'S TEXAS CIVIL STATUTES
TITLE 132. OCCUPATIONAL AND BUSINESS REGULATION
CHAPTER 4. GASOLINE AND PETROLEUM PRODUCTS
Art. 8601. Sale under another name
No person, firm or corporation, shall sell gasoline, benzine,
naphtha, or other similar product of petroleum, capable of being
used for illuminating, heating or power purposes, under any other
than the true name of said products; and such petroleum products
shall be subject to inspection by the proper authorities.
Acts 1919, p. 213.
Art. 8602. Shall mark containers
No person, firm, association of persons, corporation or carrier
selling or transporting for hire any gasoline, benzine, naphtha or
other highly inflammable substance made from petroleum, shall fail
to plainly mark the packages containing the same in accordance with
the regulations of the Interstate Commerce Commission, unless such
regulations should conflict with the provisions of this chapter.
Acts 1919, p. 213.
Art. 8603. Labeling receptacles or reservoirs of petroleum products
No person, firm, association of persons, corporation or carrier
selling or transporting any gasoline, benzine, naphtha or other
similar product of petroleum, shall fail to truly label in large
letters showing the name of such person, firm, association of
persons, corporation or carrier on any tank car, barrel, cask, tank
wagon, receptacle or reservoir in which any petroleum product shall
be shipped or stored within this State, or from which sales or
delivery of the same are to be made.
Acts 1919, p. 213. Amended by Acts 1933, 43rd Leg., p. 94, ch. 46,
Sec. 1; Acts 1935, 44th Leg., p. 396, ch. 154, Sec. 1-a.
Art. 8604. Must not flash
No person, firm, association of persons, or corporation shall sell
or offer for sale any kerosene or distillate to be used for domestic
cooking, illuminating, heating, or other domestic uses, having a
flash point at a temperature below 112 degrees Fahrenheit,
according to the United States official closed cup testing method
of the United States Bureau of Mines.
Acts 1919, p. 213. Amended by Acts 1935, 44th Leg., p. 396, ch. 154,
Sec. 1; Acts 1937, 45th Leg., p. 648, ch. 318, Sec. 1.
Art. 8605. Standard of gasoline or motor fuel
(a) No person, firm, association of persons, or corporation shall
sell, offer for sale, or expose for sale, or possess or store with
the intention to sell, as gasoline or motor fuel, any substance,
liquid, or product of petroleum which falls below the standard of
gasoline or motor fuel, the minimum requirement of which such
standard shall be determined by the following distillation range:
1. When the thermometer reads 167 degrees Fahrenheit not less than
ten (10) per cent shall be evaporated.
2. When the thermometer reads 284 degrees Fahrenheit not less than
fifty (50) per cent shall be evaporated.
3. When the thermometer reads 392 degrees Fahrenheit not less than
ninety (90) per cent shall be evaporated.
4. The end or dry point of distillation must not be over 437 degrees
Fahrenheit.
5. The residue shall not exceed two (2) per cent.
6. Sulphur shall not exceed twenty one hundredths (0.20) per cent.
(b) Motor fuel or gasoline shall be volatile hydro-carbon fuel,
free from water and suspended matter, and shall be practicable
and/or suitable for use as fuel in internal combustion engines.
Acts 1919, p. 213. Amended by Acts 1933, 43rd Leg., p. 94, ch. 46,
Sec. 2; Acts 1935, 44th Leg., p. 396, ch. 154, Sec. 2.
Art. 8606. Inferior motor fuel
(a) Liquids, substances, or products of petroleum used, or intended
for use, as gasoline or motor fuel, not meeting the minimum
requirements and specifications prescribed in Article 1105 hereof
for gasoline or motor fuel, shall be known and designated as
"Inferior Motor Fuel," and all pumps, receptacles, tanks or
containers from which such inferior motor fuel may be sold, offered
for sale, or exposed for sale, or in which such inferior motor fuel
is stored, or transported with the intention to sell, shall be
labeled, in plain, legible lettering in the English language in the
full view of the public, with the words "Inferior Motor Fuel," which
such lettering shall be of solid black type not less than two (2)
inches in height with not less than one-half inch paint stripe of
black oil paint on white oil paint background; and it is further
provided that any person who shall sell or exchange any such motor
fuel shall be required to plainly show on each and every invoice,
manifest, ticket or bill of exchange that the commodity sold or
exchanged is inferior motor fuel.
(b) No person, firm, association of persons or corporation shall
sell or offer for sale as lubricating oil, any oil that has been
rerun, refiltered, reclaimed or refined from crank case draining or
any other oil that has been theretofore used for purposes of
lubrication, unless the said oil is sold as and labeled
"Reconditioned Motor Oil". The words "Reconditioned Motor Oil"
shall be plainly and legibly printed on each container, which said
lettering shall be imprinted in two (2) places on the container or
label in a manner that said lettering will appear both on the front
and back surface of the container when displayed to the public in
sale displays, and which said lettering shall be in letters of not
less than three-sixteenths (3/16) of an inch in height and not less
than one-sixteenth (1/16) of an inch in the width of each line used
to form said letters.
(c) No person, firm, association of persons or corporation shall
sell at retail, or offer for sale at retail, as gasoline or motor
fuel to propel motor vehicles upon the roads, streets and highways
of Texas, either alone or when blended with other products, any
unrefined liquid, substance or residuum of natural gas formed in
and extracted or expelled in its natural state from any pipe line or
tank conveying or containing natural gas, unless the said liquid,
substance or residuum sold at retail or offered for sale at retail
in its unrefined state is labelled as "Drip Gasoline," and all
pumps, receptacles, tanks or containers of any retail service
station through which such drip gasoline may be sold or offered for
sale to propel motor vehicles upon the roads, streets and highways
of Texas, either alone or when blended with other products, shall be
labelled in plain, legible lettering in full view of the public,
with letters of solid black type not less than two (2) inches in
height and one half (1/2) inch in width with the words "Drip
Gasoline." Provided that nothing herein shall be construed as
requiring the labelling of any derivative of natural gas which has
been refined into an appropriate blending material free of dirt,
oil and other suspended matter.
Acts 1919, p. 213. Amended by Acts 1933, 43rd Leg., p. 94, ch. 46,
Sec. 3; Acts 1935, 44th Leg., p. 396, ch. 154, Sec. 3; Acts 1951,
52nd Leg., p. 148, ch. 88, Sec. 1; Acts 1955, 54th Leg., p. 1038,
ch. 393, Sec. 1.
Art. 8607. Tests of petroleum products
The apparatus and methods of conducting all tests and arriving at
proper standards of gasoline and other products under this Act
shall be those now or hereafter authorized and used by the U.S.
Bureau of Mines.
Acts 1919, 36th Leg., p. 213, ch. 125.
Art. 8608. Using incorrect measure
No person, firm, association of persons, corporation or carrier,
shall use any scales, measure or measuring device in the handling or
sale of petroleum products unless the same is true and accurate
according to the standard of weights and measures under the laws of
this State nor use any pumping device unless the same is correct
according to such standard at three speeds, fast, slow and medium.
Acts 1919, 36th Leg., p. 213, ch. 125.
Art. 8609. Breaking seal on incorrect measure
The inspector shall seal and forbid the use of any inaccurate
measuring device until such time as the defect is corrected. The
breaking of said official seal shall be prima facie evidence of a
violation of this law and no person, firm, association of persons,
corporation or carrier shall refuse to permit the inspector
provided for by law to inspect and seal, if deemed necessary, any
such measuring device, or to break the seal after being placed by
such inspector.
Acts 1919, 36th Leg., p. 213, ch. 125, Sec. 9.
Art. 8610. Hindering inspector
The Director of the Food and Drug Division of the State Board of
Health, his inspectors, or any duly authorized representative
appointed by the State Comptroller for that purpose, or any highway
patrolman, or sheriff, or deputy sheriff, or any other peace
officer shall have, in the performance of his duties under this law,
the power to inspect any premises or place where petroleum products
are made, prepared, stored, transported, sold or offered for sale
or exchange, take samples of same, and test measuring devices. It
shall be unlawful for any person to hinder or obstruct or refuse to
permit said inspectors or any other persons duly authorized to
perform said duties in the exercise of such powers.
Acts 1919, 36th Leg., p. 213, ch. 125, Sec. 10, 11. Amended by Acts
1933, 43rd Leg., p. 94, ch. 46, Sec. 4.
Art. 8610a. Liquefied petroleum gas containers
(a) In this article:
(1) "Liquefied petroleum gas" means the hydrocarbon product
extracted from natural gas or crude oil and commonly known as butane
or propane.
(2) "Person" means an individual, association, or corporation.
(b) A person who is in the business of leasing or selling liquefied
petroleum gas containers shall give to every prospective purchaser
or user of such a container:
(1) written notice of the purchase or use options provided by that
business, including, if applicable, options to purchase, lease, or
lease-purchase; and
(2) a written statement that other persons in the business of
leasing or selling liquefied petroleum gas containers may provide
purchase or use options that include purchase, lease, and
lease-purchase.
(c) If a person who is in the business of leasing or selling
liquefied petroleum gas containers signs a supply contract with
another person, a separate agreement on the face of the contract
must state that the supplier has given to the user the notice and
statement required by Subsection (b) of this article before the
user signs the supply contract.
(d) Except as provided by Subsection (e) of this article, a person
commits an offense if the person:
(1) sells, fills, refills, delivers or permits to be delivered, or
uses a liquefied petroleum gas container for any purpose;
(2) is not the owner of the container; and
(3) does not have written authorization of the owner.
(e) A person who is not the owner of a liquefied petroleum gas
container may fill or refill the container if the person who
occupies the premises where the container is located requests the
service and signs a written request that states that an emergency
exists and that the owner is unavailable to provide that service.
(f) A person who is not the owner of a liquefied petroleum gas
container commits an offense if he obtains a written request under
Subsection (e) of this article through misrepresentation.
(g) A person who is not the owner of a liquefied petroleum gas
container commits an offense if the person defaces, removes, or
conceals a name, mark, initial, or device on the container without
the written consent of the owner.
Added by Acts 1987, 70th Leg., ch. 178, Sec. 1, eff. Sept. 1, 1987.
Art. 8611. Punishment
Any person who shall knowingly violate any of the provisions of
Articles 8601 through and inclusive of Article 8610a, Revised
Statutes, shall be guilty of a misdemeanor, and upon conviction
shall be fined in a sum not less than Twenty-five Dollars ($25) nor
more than Two Hundred Dollars ($200).
Acts 1919, 36th Leg., p. 213, ch. 125. Amended by Acts 1935, 44th
Leg., p. 396, ch. 154, Sec. 4; Acts 1987, 70th Leg., ch. 178, Sec.
2, eff. Sept. 1, 1987.
Art. 8612. Motor fuel franchisors; requiring franchisee to pay
fee, charge or discount for honoring franchisor's credit card
prohibited
Definitions
Sec. 1. In this Act:
(1) "Franchisee" means a distributor and/or retailer who is
authorized or permitted, under a franchise, to use a trademark in
connection with the sale, consignment, or distribution of motor
fuel.
(2) "Franchisor" means a refiner and/or distributor who authorizes
or permits, under a franchise, the use of a trademark in connection
with the sale, consignment, or distribution of motor fuel.
(3) "Franchise" includes:
(A) any contract under which a distributor and/or retailer is
authorized or permitted to occupy marketing premises which are to
be employed in connection with the sale, consignment, or
distribution of motor fuel under a trademark which is owned or
controlled by the franchisor-refiner or by a refiner who supplies
motor fuel to a distributor who authorizes or permits such
occupancy;
(B) any contract pertaining to the supply of motor fuel which is to
be sold, consigned, or distributed under a trademark owned or
controlled by a refiner;
(C) the unexpired portion of any franchise which is transferred or
assigned as authorized by the provisions of such franchise or by any
applicable provision of state or federal law which permits such
transfer or assignment without regard to any provision of the
franchise.
The term "Franchise," as used in this Act, does not include a
contract made in the distribution of motor fuels through a
card-lock or key-operated pumping system where neither of the
parties to the contract is refiner or producer of such motor fuel.
(4) "Wholesale Price" means the invoice price or purchase price per
gallon charged to the franchisee who buys motor fuel, plus any
excise tax paid by the buyer, plus reasonable freight charges, if
freight charges are paid by the buyer, minus that portion of any
refunds, rebates or subsidies not designed to offset the fee,
charge or discount described in Section 2.
(5) "Motor Fuel" includes diesel fuel delivered to service stations
by a franchisor and gasoline that are usable as propellants of a
motor vehicle.
Prohibited Practices
Sec. 2. A franchisor shall not require a franchisee to pay to the
franchisor any fee, charge, or discount for honoring the credit
card issued by the franchisor or for submitting to the franchisor,
for payment or credit to the franchisee's account, documents or
other evidence of indebtedness of the holder of the card issued by
the franchisor; provided, however, that a franchisor may require a
franchisee to pay such a fee, charge, or discount if such franchisor
with consideration of competitive prices in the relevant market has
adjusted the wholesale prices charged and/or rebates credited to
franchisees for motor fuel by amounts which on average for
franchisees in the State of Texas substantially offset such fee,
charge, or discount.
Remedies
Sec. 3. (a) If a franchisor violates the provisions of Section 2 of
this Act, the franchisee may maintain a civil action against such
franchisor. Such action may be brought, without regard to the
amount in controversy, in the district court in any county in which
the franchisor or franchisee is doing business.
(b) In any action under Subsection (a) of this section, the court
shall award to the franchisee who prevails in an action brought
hereunder the amount of actual damages and grant such equitable
relief as the court determines is necessary to remedy the effects of
franchisor's violation of the provisions of Section 2 of this Act,
including declaratory judgment, permanent injunctive relief, and
temporary injunctive relief. In addition, the court shall award to
a franchisee who prevails in an action brought hereunder court
costs and attorney's fees that are reasonable in relation to the
amount of work expended.
(c) In addition to the remedies provided in Subsection (b) of this
section, if the trier of fact finds that the violation was committed
wilfully and knowingly by the defendant, the trier of fact shall
award not more than three times the amount of actual damages.
(d) In any action under Subsection (a) of this section, the
franchisor shall bear the burden of establishing the offset
described in Section 2 of this Act as an affirmative defense.
(e) Any action alleging a violation of Section 2 of this Act shall
be commenced and prosecuted within two years after the cause of
action has accrued.
Acts 1983, 68th Leg., p. 2027, ch. 368, Sec. 1 to 3, eff. Sept. 1,
1983.
Art. 8613. Refueling services to disabled persons
Definition
Sec. 1. In this Act, "refueling service" means the service of
pumping motor vehicle fuel into the fuel tank of a motor vehicle.
Refueling services for disabled persons
Sec. 2. (a) Each person, firm, partnership, association, trustee,
or corporation that operates a gasoline service station or other
facility that offers gasoline or other motor vehicle fuel for sale
to the public from the facility shall provide, on request,
refueling service to a disabled driver of a vehicle that displays a
special device or disabled person identification card authorized by
Chapter 338, Acts of the 64th Legislature, Regular Session, 1975
(Article 6675a-5e.1, Vernon's Texas Civil Statutes).
(b) The price charged for the motor vehicle fuel provided under
Subsection (a) of this section may not be greater than the price the
facility otherwise would charge the public generally to purchase
motor vehicle fuel without refueling service.
Exemptions
Sec. 3. This Act does not apply to:
(1) a gasoline service station or other facility that offers
gasoline or other motor vehicle fuel for sale to the public from the
facility:
(A) if the station or other facility has only remotely controlled
pumps and never provides pump island service; or
(B) during regularly scheduled hours in which, for security
reasons, a station or facility that ordinarily provides pump island
service does not provide that service; or
(2) refueling service to provide liquefied gas, as that term is
defined by Section 153.001, Tax Code.
Notice
Sec. 4. (a) The Department of Agriculture shall provide a notice
setting forth the provisions of this Act to each person, firm,
partnership, association, trustee, or corporation that operates a
gasoline service station or other facility that offers gasoline or
other motor vehicle fuel for sale to the public from the facility.
(b) The Texas Department of Transportation shall provide a notice
setting forth the provisions of this Act to each disabled person who
is issued a special device or disabled person identification card
under Chapter 681, Transportation Code .
Offense
Sec. 5. (a) A person who is a responsible managing individual
setting service policy of a station or facility covered by this Act
or is an employee acting independently against established service
policy and who violates Section 2 of this Act commits an offense.
(b) An offense under this section is a Class C misdemeanor.
Enforcement
Sec. 6. In addition to enforcement by the prosecuting attorney who
represents the state, this Act may be enforced by the attorney
general.
Acts 1989, 71st Leg., ch. 948, eff. Sept. 1, 1989. Sec. 3 amended by
Acts 1990, 71st Leg., 6th C.S., ch. 9, Sec. 1, eff. Sept. 6, 1990;
Sec. 4(b) amended by Acts 1995, 74th Leg., ch. 165, Sec. 22(20),
eff. Sept. 1, 1995.
Art. 8614. Sales of certain fuel mixtures
Definitions
Sec. 1. In this Act:
(1) "Automotive fuel rating" has the meaning assigned by 15 U.S.C.
Section 2821.
(2) "Dealer" means a person who is the operator of a service station
or other retail outlet and who delivers motor fuel into the fuel
tanks of motor vehicles or motor boats.
(3) "Motor fuel" has the meaning given that term by Section 153.001,
Tax Code.
Testing
Sec. 2. In order to determine compliance with the standards and for
the enforcement of rules adopted under Sections 3, 3A, 3B, 4, and 5
of this Act, the commissioner of agriculture or an authorized
representative of the commissioner may test any motor fuel sold in
this state, with or without a complaint about the fuel. Nothing
under this section shall prohibit the commissioner from adopting
rules relating to the frequency of testing motor fuels. In adopting
such rules the commissioner shall consider the nature of the
violation, history of past violations, and funds available as
provided by Subsection (e), Section 9 of this Act.
Posting notice of sale of alcohol and motor fuel mixture
Sec. 3. (a) A motor fuel dealer in this state may not sell or offer
for sale any motor fuel from a motor fuel pump that is supplied by a
storage tank into which motor fuel containing ethanol in a mixture
in which one percent or more of the mixture measured by volume is
ethanol or into which motor fuel containing methanol in a mixture in
which one percent or more of the mixture measured by volume is
methanol has been delivered within the 60-day period preceding the
day of sale or offer of sale, unless the dealer prominently displays
on the pump from which the mixture is sold a sign that complies with
the requirements of Subsection (b) of this section.
(b)(1) The sign required under Subsection (a) of this section must
be displayed on each face of the motor fuel pump on which the price
of the motor fuel mixture sold from the pump is displayed. The sign
must state "Contains Ethanol" or "Contains Methanol," as
applicable. The sign must appear in contrasting colors with block
letters at least one-half inch in height and one-fourth inch in
width and shall be displayed in a clear, conspicuous, and prominent
manner, visible to customers using either side of the pump.
(2) In addition to the requirements of Subsection (b)(1) of this
section, if a motor fuel pump is supplied by a storage tank into
which motor fuel containing 10 percent or more ethanol by volume or
five percent or more methanol by volume has been delivered within
the 60-day period preceding the day of the sale or offer of sale,
the sign shall state the percentage of ethanol or methanol by
volume, to the nearest whole percent, of the motor fuel having the
highest percentage of ethanol or methanol delivered into that
storage tank within the 60-day period. This subsection does not
prohibit the posting of other alcohol or additive information, the
information and posting being subject to regulations by the
commissioner of agriculture.
Sale of Motor Fuel with Automotive Fuel Rating Lower than Rating
Posted on Pump Label
Sec. 3A. A motor fuel dealer in this state may not sell or offer for
sale motor fuel from a motor fuel pump if the motor fuel contains an
automotive fuel rating that is lower than the automotive fuel
rating for that motor fuel posted on the motor fuel pump.
Delivery of Motor Fuel with Automotive Fuel Rating Lower than
Rating Certified by Transfer
Sec. 3B. A distributor or supplier of motor fuel, as those persons
are defined by Section 153.001, Tax Code, may not deliver or
transfer motor fuel to a motor fuel dealer in this state if the fuel
contains an automotive fuel rating that is lower than the
certification of the automotive fuel rating the distributor or
supplier is required to make to the motor fuel dealer under federal
law.
Documentation of Motor Fuel Mixture Sales
Sec. 4. (a) A distributor, supplier, wholesaler, or jobber of motor
fuel, as those persons are defined by Section 153.001, Tax Code, may
not make a delivery of motor fuel containing ethanol or methanol if
the ethanol or methanol in the motor fuel mixture exceeds one
percent by volume, other than a delivery made into the fuel supply
tanks of a motor vehicle, to any outlet in this state unless the
person delivers to the outlet receiving the delivery at the time of
the delivery of the mixture:
(1) the sign described in Section 3 of this Act in sufficient
quantities for the dealer receiving the motor fuel mixture to
comply with the requirements of this Act; and
(2) a manifest, bill of sale, bill of lading, or any other document
evidencing delivery of the motor fuel containing ethanol or
methanol, which shall include a statement showing the percentage of
ethanol or methanol contained in the mixture delivered, and the
types and percentages of associated cosolvents, if any, contained
in the mixture delivered. The document shall also show delivery of
the sign or signs, as applicable, required to be delivered by this
subsection.
(b) On the request of any motor fuel user, a dealer must reveal the
percentage of ethanol contained in motor fuel being sold, the
percentage of methanol contained in motor fuel being sold, and, if
the motor fuel contains methanol, the types and percentages of
associated cosolvents contained in the motor fuel being sold.
(c) The commissioner of agriculture by rule may prescribe the form
of the statement required by Subsection (a) of this section.
(d) If the commissioner of agriculture determines that certain
types of motor fuel, such as diesel or liquefied petroleum gas, are
not sold in this state as mixtures with alcohol in sufficient
quantities to warrant regulation of those deliveries under this
Act, the commissioner may limit the application of Section 3 of this
Act and this section to motor fuels sold in sufficient quantity to
warrant regulation.
Dealer and Delivery Documents
Sec. 5. (a) Each motor fuel dealer in this state shall keep for one
year a copy of each manifest, bill of sale, bill of lading, or any
other document required to be delivered to the dealer by Section 4
of this Act. During the first 60 days following delivery of a fuel
mixture covered by this Act, the dealer shall keep at the station or
retail outlet where the motor fuel was delivered a copy of each
manifest, bill of sale, bill of lading, or any other document
required to be delivered to the dealer by Section 4 of this Act.
Each distributor, supplier, wholesaler, or jobber of motor fuel
shall keep for one year at the principal place of business a copy of
each manifest, bill of sale, bill of lading, or any other document
required to be delivered to the dealer by Section 4 of this Act. The
documents are subject to inspection by the commissioner of
agriculture or an authorized representative of the commissioner.
(b) The commissioner of agriculture by rule may prescribe the
manner of filing documents required to be kept under Subsection (a)
of this section, and the time, place, and manner of inspection of
the documents.
Documents Relating to Postings or Certification of Automotive Fuel
Ratings
Sec. 5A. (a) Each Motor Fuel Dealer in This State Shall Keep for at
Least One Year a Copy of:
(1) each delivery ticket or letter of certification on which the
motor fuel dealer based a posting of the automotive fuel rating of
motor fuel contained in a motor fuel pump;
(2) records of any automotive fuel rating determination made by the
motor fuel dealer under 16 C.F.R. Part 306; and
(3) each delivery ticket or letter of certification that is
required to be delivered to the dealer under 16 C.F.R. Part 306.
(b) Each distributor or supplier shall keep for at least one year at
the principal place of business a copy of each delivery ticket or
letter of certification required to be delivered by the distributor
or supplier to a motor fuel dealer in this state under 16 C.F.R.
Part 306.
(c) A document required to be kept under this section is subject to
inspection by the commissioner of agriculture or an authorized
representative of the commissioner.
Civil Action
Sec. 6. (a) If a motor fuel dealer or a distributor, supplier,
wholesaler, or jobber of motor fuel violates Section 3, 3A, 3B, 4,
5, or 5A of this Act, any motor fuel user who has purchased the fuel
and who has suffered damages or has a complaint about the product
may maintain a civil action against the motor fuel dealer or the
distributor, supplier, wholesaler, or jobber of motor fuel. The
action may be brought, without regard to any specific amount in
damages, in the district court in any county in which the motor fuel
dealer, distributor, supplier, wholesaler, or jobber is doing
business or in which the motor fuel dealer resides.
(b) In any action under this section, the court shall award to the
motor fuel user who prevails the amount of actual damages and grant
such equitable relief as the court determines is necessary to
remedy the effects of the motor fuel dealer's violation or the
distributor, supplier, wholesaler, or jobber's violation of the
provisions of Section 3, 3A, 3B, 4, 5, or 5A of this Act, including
declaratory judgment, permanent injunctive relief, and temporary
injunctive relief. In addition, the court shall award to the motor
fuel user who prevails in an action brought hereunder court costs
and attorney's fees that are reasonable in relation to the amount of
work expended.
(c) In addition to the remedies provided in Subsection (b) of this
section, if the trier of fact finds that a violation of Section 3,
4, or 5 of this Act was committed wilfully or knowingly by the
defendant, the trier of fact shall award not more than three times
the amount of actual damages.
(d) A violation of Section 3, 3A, 3B, 4, 5, or 5A of this Act is also
a deceptive trade practice under Subchapter E, Chapter 17, Business &
Commerce Code.
(e) Any action alleging a violation of Section 3, 3A, 3B, 4, 5, or 5A
of this Act shall be commenced and prosecuted within two years after
the date the cause of action accrued.
Civil Penalty
Sec. 7. A motor fuel dealer or a distributor, supplier, wholesaler,
or jobber of motor fuel who violates a provision of Section 3, 3A,
3B, 4, 5, or 5A of this Act forfeits to the state a civil penalty of
not less than $200 nor more than $10,000.
Administrative Penalty
Sec. 7A. (a) The commissioner of agriculture may impose an
administrative penalty against a person licensed or regulated under
this Act who violates this Act or a rule or order adopted under this
Act.
(b) The penalty for a violation may be in an amount not to exceed
$500. Each day a violation continues or occurs is a separate
violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited acts, and the
hazard or potential hazard created to the health, safety, or
economic welfare of the public;
(2) the economic harm to property or the environment caused by the
violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) An employee of the Department of Agriculture designated by the
commissioner of agriculture to act under this section who
determines that a violation has occurred may issue to the
commissioner of agriculture a report that states the facts on which
the determination is based and the designated employee's
recommendation on the imposition of a penalty, including a
recommendation on the amount of the penalty.
(e) Within 14 days after the date the report is issued, the
designated employee shall give written notice of the report to the
person. The notice may be given by certified mail. The notice must
include a brief summary of the alleged violation and a statement of
the amount of the recommended penalty and must inform the person
that the person has a right to a hearing on the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the notice,
the person in writing may accept the determination and recommended
penalty of the designated employee or may make a written request for
a hearing on the occurrence of the violation, the amount of the
penalty, or both the occurrence of the violation and the amount of
the penalty.
(g) If the person accepts the determination and recommended penalty
of the designated employee, the commissioner of agriculture by
order shall approve the determination and impose the recommended
penalty.
(h) If the person requests a hearing or fails to respond timely to
the notice, the designated employee shall set a hearing and give
notice of the hearing to the person. The hearing shall be held by an
administrative law judge of the State Office of Administrative
Hearings. The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner of
agriculture a proposal for a decision about the occurrence of the
violation and the amount of a proposed penalty. Based on the
findings of fact, conclusions of law, and proposal for a decision,
the commissioner of agriculture by order may find that a violation
has occurred and impose a penalty or may find that no violation
occurred.
(i) The notice of the commissioner of agriculture's order given to
the person under Chapter 2001, Government Code, must include a
statement of the right of the person to judicial review of the
order.
(j) Within 30 days after the date the commissioner of agriculture's
order becomes final as provided by Section 2001.144, Government
Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both the occurrence of the violation and the amount
of the penalty; or
(3) without paying the amount of the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty.
(k) Within the 30-day period, a person who acts under Subsection
(j)(3) of this section may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement in
an escrow account; or
(B) giving to the court a supersedeas bond that is approved by the
court for the amount of the penalty and that is effective until all
judicial review of the commissioner of agriculture's order is
final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person stating
that the person is financially unable to pay the amount of the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the designated employee by
certified mail.
(l) A designated employee who receives a copy of an affidavit under
Subsection (k)(2) of this section may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the amount of the penalty and to
give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and the
enforcement of the penalty is not stayed, the designated employee
may refer the matter to the attorney general for collection of the
amount of the penalty.
(n) Judicial review of the order of the commissioner of
agriculture:
(1) is instituted by filing a petition as provided by Subchapter G,
Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(o) If the court sustains the occurrence of the violation, the court
may uphold or reduce the amount of the penalty and order the person
to pay the full or reduced amount of the penalty. If the court does
not sustain the occurrence of the violation, the court shall order
that no penalty is owed.
(p) When the judgment of the court becomes final, the court shall
proceed under this subsection. If the person paid the amount of the
penalty and if that amount is reduced or is not upheld by the court,
the court shall order that the appropriate amount plus accrued
interest be remitted to the person. The rate of the interest is the
rate charged on loans to depository institutions by the New York
Federal Reserve Bank, and the interest shall be paid for the period
beginning on the date the penalty was paid and ending on the date
the penalty is remitted. If the person gave a supersedeas bond and
if the amount of the penalty is not upheld by the court, the court
shall order the release of the bond. If the person gave a
supersedeas bond and if the amount of the penalty is reduced, the
court shall order the release of the bond after the person pays the
amount.
(q) A penalty collected under this section shall be remitted to the
comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to Chapter 2001,
Government Code, except as provided by Subsections (s) and (t) of
this section.
(s) Notwithstanding Section 2001.058, Government Code, the
commissioner of agriculture may change a finding of fact or
conclusion of law made by the administrative law judge if the
commissioner of agriculture:
(1) determines that the administrative law judge:
(A) did not properly apply or interpret applicable law, department
rules or policies, or prior administrative decisions; or
(B) issued a finding of fact that is not supported by a
preponderance of the evidence; or
(2) determines that a department policy or a prior administrative
decision on which the administrative law judge relied is incorrect
or should be changed.
(t) The commissioner of agriculture shall state in writing the
specific reason and legal basis for a determination under
Subsection (s) of this section.
Criminal offenses and penalties
Sec. 8. (a) A person commits an offense if the person intentionally
or knowingly violates Section 3, 3A, 3B, 4, 5, or 5A of this Act or
any rule of the commissioner of agriculture prescribed to enforce
or implement those sections of this Act.
(b) A person commits an offense if the person intentionally or
knowingly:
(1) refuses to permit a person authorized by Section 2 of this Act
to test any motor fuel sold or held for sale in this state;
(2) refuses to permit inspection of any document required to be kept
or delivered by this Act upon request of a person authorized to
inspect such documents by Section 5 or 5A of this Act; or
(3) mutilates, destroys, secretes, forges, or falsifies any
document, record, report, or sign required to be delivered, kept,
filed, or posted by this Act or any rule prescribed by the
commissioner of agriculture for the enforcement of this Act.
(c) An offense under Subsection (a) of this section is a Class C
misdemeanor.
(d) An offense under Subsection (b) of this section is a Class B
misdemeanor.
(e) The commissioner of agriculture or the authorized
representative of the commissioner may request the appropriate
prosecuting attorney to prosecute a violation of a provision of
this Act.
Rules and Fees
Sec. 9. (a) The commissioner of agriculture may adopt rules not
inconsistent with this Act for the regulation of the sale of motor
fuels containing ethanol and methanol.
(b) The commissioner of agriculture by rule may impose a fee for
testing, inspection, or the performance of other services provided
as determined necessary by the commissioner of agriculture in the
administration of this Act, to be collected on a periodic basis
determined by the commissioner of agriculture from each dealer as
that term is defined in Section 1 of this Act without regard to
whether the motor fuel is subject to regulation under this Act, as
determined necessary by the commissioner of agriculture. The
commissioner of agriculture by rule shall prescribe the form for
reporting and remitting the fees imposed by and under this section.
(e) The fees collected under this section may be used only by the
commissioner of agriculture to defray the cost of collecting fees
imposed by the commissioner under this Act and for the
administration and enforcement of this Act.
Contracting for Enforcement
Sec. 10. The commissioner of agriculture may contract for the
enforcement of this Act after due notice.
Delivery of Documents to Federal Government
Sec. 11. The commissioner of agriculture, an authorized
representative of the commissioner, or the attorney general may
make a copy of any manifest, bill of sale, bill of lading, delivery
ticket, letter of certification, or other document the commissioner
or attorney general is entitled to inspect under this Act. The
commissioner, an authorized representative of the commissioner, or
the attorney general may deliver the copy of a document described by
this section to the federal government for purposes of prosecuting
persons for violations of federal law relating to the sale or
transfer of motor fuel.
Acts 1989, 71st Leg., ch. 1033, eff. Jan. 1, 1990. Sec. 1(2)
amended by Acts 1993, 73rd Leg., ch. 979, Sec. 2, eff. Aug. 30,
1993; Sec. 9(c), (e) amended by Acts 1993, 73rd Leg., ch. 979, Sec.
1; Sec. 1 amended by Acts 1997, 75th Leg., ch. 1036, Sec. 1, eff.
Sept. 1, 1997; Sec. 2 amended by Acts 1997, 75th Leg., ch. 1036,
Sec. 2, eff. Sept. 1, 1997; Sec. 3A, 3B added by Acts 1997, 75th
Leg., ch. 1036, Sec. 3, eff. Sept. 1, 1997; Sec. 4 (c), (d), (e)
amended by Acts 1997, 75th Leg., ch. 1036, Sec. 4, eff. Sept. 1,
1997; Sec. 5 amended by Acts 1997, 75th Leg., ch. 1036, Sec. 5, eff.
Sept. 1, 1997; Sec. 5A added by Acts 1997, 75th Leg., ch. 1036, Sec.
6, eff. Sept. 1, 1997; Sec. 6 amended by Acts 1997, 75th Leg., ch.
1036, Sec. 7, eff. Sept. 1, 1997; Sec. 7 amended by Acts 1997, 75th
Leg., ch. 1036, Sec. 8, eff. Sept. 1, 1997; Sec. 7A added by Acts
1997, 75th Leg., ch. 1036, Sec. 9, eff. Sept. 1, 1997; Sec. 8 (a),
(b), (e) amended by Acts 1997, 75th Leg., ch. 1036, Sec. 10, eff.
Sept. 1, 1997; Sec. 9 (a), (b), (c), (e), (f) amended by Acts 1997,
75th Leg., ch. 1036, Sec. 11, eff. Sept. 1, 1997; Sec. 10 amended by
Acts 1997, 75th Leg., ch. 1036, Sec. 12, eff. Sept. 1, 1997; Sec. 11
added by Acts 1997, 75th Leg., ch. 1036, Sec. 13, eff. Sept. 1,
1997; Sec. 4 amended by Acts 2001, 77th Leg., ch. 52, Sec. 12, eff.
May 7, 2001; Sec. 9 amended by Acts 2001, 77th Leg., ch. 52, Sec.
13, eff. May 7, 2001.
