Part 6.
TEXAS MOTOR VEHICLE BOARD
Chapter 103.
GENERAL RULES
16 TAC §103.2
The Texas Motor Vehicle Board of the Texas Department of
Transportation adopts new 16 TAC §103.2, concerning new motor vehicle
dealer Service-Only Facilities. The section is adopted with changes to the
proposed text as published in the February 6, 2004, issue of the
Texas Register
(29 TexReg 1140).
Explanation of Amendments
Texas Occupations Code §2301.251 and §2301.264(a)(2)(G) require
that franchised dealers obtain licenses for separate locations operating as
service-only facilities. To clarify the statute, proposed new §103.2
was published in the November 14, 2003, issue of the
Texas Register
(28 TexReg 10010) and subsequently withdrawn as a result
of comments. The proposal was revised and republished for consideration at
public hearing on March 25, 2004.
The new section requires franchised dealers to obtain licenses for separate
locations operating as service-only repair facilities pursuant to §2301.251
and §2301.264(a)(2)(G) of the Texas Occupations Code. It also defines
"service-only facility" and provides additional clarification that franchised
dealers may contract with other independent repair facilities to perform warranty
service on vehicles, that the dealer would ordinarily perform. Subsection
(d) clarifies that prior written approval from a manufacturer or distributor
is required before a franchised dealer can contract with a third-party provider
for warranty work the dealer would ordinarily perform. However, the rule also
states that the manufacturer or distributor may not unreasonably withhold
approval. Furthermore, the rule establishes that persons who are not authorized
to sell the line of new motor vehicles to be serviced are not eligible to
be licensed as service-only repair facilities.
The Board intends that this rule should not preclude independent repair
facilities from providing consumers with non-warranty repair service, nor
should it prevent such individuals or companies from entering into contracts
with franchised dealers to perform warranty service on behalf of the dealer
as authorized by this rule. The Board does not intend the rule to absolutely
require prior written approval in each instance where a franchised dealer
contracts with a particular third-party provider. Instead, the rule is intended
to allow the manufacturer or distributor to indicate when prior written approval
is necessary, or to allow the course of conduct between the dealer and the
manufacturer/distributor to indicate when it is required. The rule also states
that a manufacturer or distributor may not unreasonably withhold approval
from a franchised dealer who seeks to contract with a third party to perform
warranty work.
Public comments suggested minor revisions to clarify the Board's intent.
The Board agreed the suggestions would more clearly set out what was originally
intended and added language to the proposed section. Subsections (a) and (d)
now clarify to whom the rule applies. The rule now specifically states that,
except as provided by subsection (d), warranty repair services may only be
performed at either a licensed dealership or a licensed, service-only facility.
In addition, subsection (d) now states that payment to a sub-contractor must
be made by the franchised dealer, and not the manufacturer or distributor.
The public benefit will be increased availability of warranty work, and
increased clarity amongst dealer licensees regarding the parameters for establishing
a service-only facility location.
Summary of Comments
Written comments were received from the Texas Automobile Dealers Association
regarding the proposed rule. No oral comments were received at the public
hearing on March 25, 2004.
Comments on the proposal suggested new language to conform the section
to the definitions in Chapter 2301 of the Texas Occupations Code and to clarify
to whom the section applies. Additional language was suggested to clarify
who may perform warranty repair service and that a franchised dealer is responsible
for payment to a sub-contractor rather than a manufacturer or distributor.
Another comment suggested that the Board include in the rule a statement of
its intent that the rule is not meant to require prior written approval in
each instance where a franchised dealer contracts with a particular third-party
provider.
Reasons for Disagreement with Party Submissions or Proposals.
The Board disagrees that its intent concerning prior written approval should
be set out in the rule, because the narrative statement of the rule's purpose
and the Board's intent in the preambles of the rule proposal and adoption
should be sufficient.
Statutory Authority
The Board is authorized to adopt the new rule under Texas Occupations Code §2301.155,
which provides the Board with authority to adopt rules as necessary and convenient
to effectuate the provisions of the Act and to govern practice and procedure
before the agency.
§103.2.Service-Only Facility.
(a)
A service-only facility is a location occupied and operated
by a franchised dealer that is a completely separate, non-contiguous site,
from the franchised dealer's new vehicle sales and service or sales only location,
where the franchised dealer will only perform warranty and non-warranty repair
services. Except as allowed in subsection (d) of this section, warranty repair
services may only be performed at either a licensed dealership or a licensed
service-only facility.
(b)
A franchised dealer must obtain a license to operate a
service-only facility. The dealer may not obtain a service-only facility license
to service a particular line of new motor vehicles, unless the dealer is franchised
and licensed to sell that line.
(c)
A service-only facility is considered a dealership under
Texas Occupations Code §2301.002(8), and is therefore subject to protest
under Texas Occupations Code §2301.652.
(d)
Upon the manufacturer's or distributor's prior written
approval, which cannot be unreasonably withheld, only a franchised dealer
of the manufacturer or distributor may contract with another person as a sub-contractor
to perform warranty repair services the dealer is authorized to perform under
a franchise agreement with a manufacturer or distributor. Payment shall be
made by the franchised dealer to the sub-contractor and not by the manufacturer
or distributor to the sub-contractor.
(e)
A person with whom a franchised dealer contracts, as described
in subsection (d) of this section, to perform warranty repair services is
not eligible to obtain a service-only facility license and may not advertise
to the public the performance of warranty repair services in any manner.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 19, 2004.
TRD-200402588
Brett Bray
Director
Texas Motor Vehicle Board
Effective date: May 9, 2004
Proposal publication date: February 6, 2004
For further information, please call: (512) 416-4899
Chapter 303.
GENERAL PROVISIONS
Subchapter B. POWERS AND DUTIES OF THE COMMISSION
16 TAC §303.41
The Texas Racing Commission adopts an amendment to §303.41,
relating to the allocation of race dates. The amendment is adopted without
changes to the proposal published in the February 20, 2004, issue of the
The amendment clarifies the requirements for allocation of race dates by
requiring associations to conduct racing in accordance with the calendar approved
by the Commission.
The amendment is adopted to provide the public with more information on
when racetracks will conduct racing.
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.06 which authorizes the Commission
to make rules on all matters relating to the operation of pari-mutuel racetracks.
The amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402514
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 6, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
Subchapter A. RACETRACK LICENSES
16 TAC §309.8
The Texas Racing Commission adopts an amendment to §309.8,
relating to racetrack license fees. The amendment is adopted without changes
to the proposal published in the February 20, 2004, issue of the
Texas Register
(29 TexReg 1497) and the amendment will not be republished.
The amendment increases the simulcast fee for Class 1 and Class 2 racetracks
and all greyhound tracks and has a one-time fee for Breeders' Cup costs for
the hosting racetrack.
The amendment is adopted so that the Commission is in compliance with the
Texas Racing Act by generating sufficient revenue to fully fund its own operations.
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §§5.01 and 6.18 which authorizes
the Commission to set fees for racetrack licenses; and §6.06 which authorizes
the Commission to make rules on all matters relating to the operation of pari-mutuel
racetracks.
The amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402515
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 10, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
2.
OPERATIONS
16 TAC §309.355
The Texas Racing Commission adopts an amendment to §309.355,
relating to the grading system for greyhounds. The amendment is adopted without
changes to the proposal published in the February 20, 2004 issue of the
The amendment revises the grading system allowing a greyhound to make it
easier to requalify and be returned to the active list during a race meeting.
The amendment is adopted to allow greyhounds to have a longer racing career.
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.06 which authorizes the Commission
to make rules on all matters relating to the operation of pari-mutuel racetracks.
The amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402516
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 6, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
Subchapter A. LICENSING PROVISIONS
1.
OCCUPATIONAL LICENSES
16 TAC §311.5
The Texas Racing Commission adopts an amendment to §311.5,
relating to occupational license fees. The amendment is adopted without changes
to the proposal published in the February 20, 2004, issue of the
Texas Register
(29 TexReg 1499) and the amendment will not be republished.
The amendment increases the occupational license fee for all Texas Racing
Commission licenses. The increase is to cover the cost of participating in
the Texas OnLine internet licensing system, as well as to cover the increased
costs to continue to regulate the racing industry at the current level.
The amendment is adopted so that the Commission is in compliance with the
Texas Racing Act by generating sufficient revenue to fully fund its own operations.
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §5.01 which authorizes the Commission
to issue licenses and set conditions for licenses; §7.03 which authorizes
the Commission to issue occupational licenses; §7.05 which authorizes
the Commission to adopt a fee schedule for occupational licenses; and Article
7 which authorizes the Commission to require, set conditions and qualifications
for, issue, and deny occupational licenses.
The amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402517
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 10, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
Subchapter A. GENERAL PROVISIONS
16 TAC §319.17
The Texas Racing Commission adopts a new rule, §319.17,
relating to the removal of a race animal. The new rule is adopted without
changes to the proposal published in the February 20, 2004, issue of the
The new rule allows a Commission veterinarian to remove a race animal from
association grounds where the race animal presents a danger of communicable
or contagious disease to other animals or has sustained an injury that requires
specialized veterinary treatment not offered on association grounds.
The new rule is adopted to provide an additional tool to reduce the spread
of communicable or contagious diseases at association grounds as well safeguarding
the health and well being of all race animals.
No comments were received regarding the adoption of the amendment.
The new rule is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.061 which authorizes the Commission
to regulate unsafe conditions at pari-mutuel racetracks.
The new rule implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402519
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 6, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
16 TAC §319.111
The Texas Racing Commission adopts an amendment to §319.111,
relating to the bleeders and furosemide program. The amendment is adopted
without changes to the proposal published in the February 20, 2004, issue
of the
Texas Register
(29 TexReg 1500) and
the amendment will not be republished.
The amendment allows a trainer to admit a horse to the furosemide program
by stating at the time of entry that the horse will compete with furosemide,
streamlining the process to admit a horse to the program. The amendment clarifies
that an EIPH event experience by a horse already admitted to the furosemide
program is a second EIPH event for purposes of the consequences listed in
subsection (g) of the rule. Further language is provided clarifying the process
of readmission to the furosemide program.
The amendment is adopted to provide greater clarification on the requirements
involved with the furosemide program.
No comments were received regarding the adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §3.16 which authorizes the Commission
to adopt rules prohibiting the unlawful influencing of the outcome of a race
and to implement a postrace testing program.
The amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 16, 2004.
TRD-200402520
Nicole Galwardi
General Counsel
Texas Racing Commission
Effective date: May 18, 2004
Proposal publication date: February 20, 2004
For further information, please call: (512) 490-4009
Chapter 401.
ADMINISTRATION OF STATE LOTTERY ACT
Subchapter D. LOTTERY GAME RULES
16 TAC §401.312
The Texas Lottery Commission adopts amendments to 16 TAC §401.312,
relating to "Texas Two Step" On-line game, without changes to the proposed
text as published in the February 13, 2004, issue of the
Texas Register
(29 TexReg 1284).
The amendments provide flexibility to change the drawing schedule, including
the draw days, without undergoing a rule change. The purpose of the amendments
is to be able to change the draw days more quickly than the commission could
if an amendment to the rule for such change were required. As a result, if
the executive director believed that changing draw days would benefit sales,
the impact to sales could occur in less time than if a rule change had to
occur prior to changing the draw days. The amendments require the executive
director to provide advance notice to the public prior to changing drawing
schedule.
The Texas Lottery Commission received no comments on the proposed amendments.
The amendments are adopted pursuant to Texas Government Code, §466.015
which authorizes the Texas Lottery Commission to adopt rules necessary to
administer the State Lottery Act and rules governing the operation of the
lottery and pursuant to Texas Government Code, §467.102 which authorizes
the Commission to adopt rules for the enforcement and administration of the
laws under the Commission's jurisdiction.
The amendments implement Government Code, Chapter 466.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 14, 2004.
TRD-200402491
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: May 4, 2004
Proposal publication date: February 13, 2004
For further information, please call: (512) 344-5113
Part 8.
TEXAS RACING COMMISSION
Chapter 309.
RACETRACK LICENSES AND OPERATIONS
Subchapter D. GREYHOUND RACETRACKS
Chapter 311.
OTHER LICENSES
Chapter 319.
VETERINARY PRACTICES AND DRUG TESTING
Subchapter B. TREATMENT OF HORSES
Part 9.
TEXAS LOTTERY COMMISSION
Chapter 403.
GENERAL ADMINISTRATION