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       A BILL TO BE ENTITLED   AN ACT   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 [weighing or] measuring device"   means a [weighing or] measuring device used in a commercial   transaction.                (3)  "Dealer" means a person who[:                      [(A)]  is the operator of a [service station or   other] retail motor fuel facility [outlet; and                      [(B)  delivers motor fuel into the fuel tanks of   motor vehicles or motor boats].                (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 [has the meaning assigned by Section 162.001,   Tax Code].                (7)  "Motor fuel metering device" means a commercial   [weighing or] measuring device used for motor fuel sales.                (8)  "Operator" or "user" means a person in possession   or control of a [weighing or] measuring device, including an owner,   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 [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.  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 [WEIGHTS AND] MEASURES FOR MOTOR FUEL          SECTION 5.  Sections 2310.051(a), (c), and (d), Occupations   Code, are amended to read as follows:          (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.          (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 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 [Except as otherwise provided by this section,   motor] fuel shall be sold by liquid measure.          (c)  A person violates this chapter if, in violation of this   section, the person sells motor fuel by other than [weight or]   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 [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.          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 [weighing or]   measuring device in:                (1)  buying or selling motor fuel;                (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.          (b)  For the purpose of this section, a [weighing or]   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 [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.          (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.          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 [owner or custodian of] the motor fuel or   offering 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.          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 [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 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 [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.          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 [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.          (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 or   [inspector, another department employee,] 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 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 [weight or] measure for motor fuel.          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[; or                [(4)  is a license holder under Subchapter I, Chapter   13, Agriculture Code].          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[, 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 18.  Sections 2310.2013(b), (c), and (d),   Occupations Code, are amended to read as follows:          (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   [station or] retail motor fuel facility [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 19.  Sections 2310.2014(b) and (c), Occupations   Code, are amended to read 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 [station or] retail motor fuel facility [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 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 [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 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 [a] representative   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 [a] department or an authorized representative of the   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[,   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 23.  Section 2310.208, Occupations Code, is amended   to read 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 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.