Osha The Occupational Safety and Health Act (the "OSH Act" or "Act") requires the Secretary of Labor to adopt regulations pertaining to two areas of recordkeeping. First, section 8(c)(2) of the Act requires the Secretary to issue regulations requiring employers to "maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." Section 8(c)(1) of the Act also authorizes the Secretary of Labor to develop regulations requiring employers to keep and maintain records regarding the causes and prevention of occupational injuries and illnesses. Section (2)(b)(12) of the Act states Congress' findings with regard to achieving the goals of the Act and specifically notes that appropriate reporting procedures will help achieve the objectives of the Act. Second, section 24(a) of the Act requires the Secretary to develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. This section also directs the Secretary to "compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." After passage of the Act, OSHA issued the required occupational injury and illness recording and reporting regulations as 29 CFR part 1904. Since 1971, OSHA and the Bureau of Labor Statistics (BLS) have operated the injury and illness recordkeeping system as a cooperative effort. Under a Memorandum of Understanding dated July 11, 1990 (Ex. 6), BLS is now responsible for conducting the nationwide statistical compilation of occupational illnesses and injuries (called the Annual Survey of Occupational Injuries and Illnesses), while OSHA administers the regulatory components of the recordkeeping system.
	A BILL TO BE ENTITLED
	AN ACT
	relating to the collection of motor vehicle sales taxes on
	seller-financed sales by dealers.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 152.047, Tax Code, is amended by adding
	Subsection (g-1) to read as follows:
	(g-1) Subsection (g) does not apply to a transaction by a
	dealer, as defined by Section 503.001, Transportation Code, in
	which the dealer:
	(1)  sells a purchaser's account to a person in which at
	least 80 percent of the ownership is identical to the ownership of
	the dealer; or
	(2)  grants a security interest in a purchaser's
	account but retains custody and control of the account and the right
	to receive payments in the absence of a default under the security
	agreement.
	SECTION 2.  The change in law made by this Act does not
	affect taxes imposed before the effective date of this Act, and the
	law in effect before the effective date of this Act is continued in
	effect for purposes of the liability for and collection of those
	taxes.
	SECTION 3.  This Act takes effect July 1, 2007, if it
	receives a vote of two-thirds of all the members elected to each
	house, as provided by Section 39, Article III, Texas Constitution.
	If this Act does not receive the vote necessary for immediate
	effect, this Act takes effect September 1, 2007.

By:  Jackson (Senate Sponsor - Carona) H.B. No. 481

(In the Senate - Received from the House March 22, 2007; April 3, 2007, read first time and referred to Committee on Transportation and Homeland Security; April 20, 2007, reported favorably by the following vote:  Yeas 9, Nays 0; April 20, 2007, sent to printer.)

A BILL TO BE ENTITLED

AN ACT

relating to the transfer of a used motor vehicle.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Sections 520.023(a) and (c), Transportation Code, are amended to read as follows:

(a)  On receipt of a written notice of transfer from the transferor of a motor vehicle, the department shall indicate the transfer on the motor vehicle records maintained by the department.  As an alternative to a written notice of transfer, the department shall establish procedures that permit the transferor of a motor vehicle to electronically submit a notice of transfer to the department through the department's Internet website.  A notice of transfer provided through the department's Internet website is not required to bear the signature of the transferor or include the date of signing.

(c)  This subsection applies only if the department receives notice under Subsection (a) before the 30th day after the date the transferor delivered possession of the vehicle to the transferee.  After the date of the transfer of the vehicle shown on the records of the department, the transferee of the vehicle shown on the records is rebuttably presumed to be:

(1)  the owner of the vehicle;  and

(2)  subject to civil and criminal liability arising out of the use, operation, or abandonment of the vehicle, to the extent that ownership of the vehicle subjects the owner of the vehicle to criminal or civil liability under another provision of law.

SECTION 2.  Section 520.031, Transportation Code, is amended by adding Subsection (d) to read as follows:

(d)  Notwithstanding Subsection (a), if the transferee is a member of the armed forces of the United States, a member of the Texas National Guard or of the National Guard of another state serving on active duty under an order of the president of the United States, or a member of a reserve component of the armed forces of the United States serving on active duty under an order of the president of the United States, the documents described by Subsection (a) must be filed with the county assessor-collector not later than the 60th working day after the date of their receipt by the transferee.

SECTION 3.  Section 520.032, Transportation Code, is amended by amending Subsection (b) and adding Subsections (b-1) and (d) to read as follows:

(b)  If the transferee does not file the application during the period provided by Section 520.031, the transferee is liable for a [$10] late fee to be paid to the county assessor-collector when the application is filed.  If the transferee holds a general distinguishing number issued under Chapter 503 of this code or Chapter 2301, Occupations Code, the amount of the late fee is $10.  If the transferee does not hold a general distinguishing number, subject to Subsection (b-1) the amount of the late fee is $25.

(b-1)  If the application is filed after the 31st working day after the date the transferee received the documents under Section 520.022, the late fee imposed under Subsection (b) accrues an additional penalty in the amount of $25 for each subsequent 30-day period, or portion of a 30-day period, in which the application is not filed.

(d)  Subsections (b) and (b-1) do not apply if the motor vehicle is eligible to be issued:

(1)  classic vehicle license plates under Section 504.501; or

(2)  antique vehicle license plates under Section 504.502.

SECTION 4.  Section 520.033, Transportation Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)  The county assessor-collector may retain as commission for services provided under this subchapter half of each transfer fee collected, [and] half of each late fee, and half of each additional penalty collected under Section 520.032.

(c)  Of each late fee collected from a person who does not hold a general distinguishing number that the department receives under Subsection (b), $10 may be used only to fund a statewide public awareness campaign designed to inform and educate the public about the provisions of this chapter.

SECTION 5.  The change in law made by this Act applies only to the transfer of a used motor vehicle that occurs on or after the effective date of this Act.  The transfer of a used motor vehicle that occurs before the effective date of this Act is governed by the law in effect at the time of the transfer, and the former law is continued in effect for that purpose.

SECTION 6.  This Act takes effect January 1, 2008.

* * * * *

House Bill 310

           Michael W. Dunagan is a principal in the firm of Jameson & Dunagan, P.C., of Dallas, Texas. He was admitted to the Texas Bar in 1976 after graduation from Southern Methodist University Law School. Mr. Dunagan's firm is engaged in a commercial collection and litigation practice, and is a member of the Commercial Law League and The Conference on Consumer Finance Law.

    For almost 30 years Mr. Dunagan has represented motor vehicle lenders and new and used car dealers. He has served as counsel to the National Independent Automobile Dealers Association and the Texas Independent Automobile Dealers Association. He has written hundreds of articles for trade magazines and newsletters, and has spoken at numerous motor vehicle finance workshops and seminars around the country.

    His automobile industry accomplishments include:

• Organization of a group of dealers to reform the Texas motor vehicle sales tax law, raising the necessary funds, and coordinating the successful legislative effort.
• Organization of industry groups in the successful legal challenge to a $225 fee imposed on vehicles imported from out of state.
• Drafting of bill and successful lobbying effort to protect lien holders on liability insurance payments.
• Leadership of effort to remove requirement that dealers obtain proof of liability insurance from buyers before transfer.
• Counsel for task force that successfully repelled a class-action suit against Dallas-Fort Worth area dealers alleging unauthorized charges on contracts.

    He is the author of Texas Automobile Repossession: a Lien Holder's Legal Guide; Dealer Financing of Used Car Sales; and Car Dealer's Guide to Texas Consumer Law, and Dealer's Quick Reference Legal Guide.

    Professional memberships include the State Bar of Texas, American Bar Association and Dallas Bar Association. His clients include numerous motor vehicle dealers, banks, finance companies, credit unions, and wholesale auto auctions. His primary areas of practice are consumer finance, bankruptcy, secured transactions, and administrative and legislative activities.

Use of Tracking Devices Raises Issues About Implications of Criminal Statute

__________________________________________________________________

Dealer Question: I've heard that placing a tracking device on a debtor's vehicle could be a criminal offense. Is this true?

Answer: Yes There is a section of the Texas Penal Code that creates an offense for knowingly installing an electronic oe mechanical tracking device on a motor vehicle owned or leased by another person. Section16.06 of the Penal Code specifies that an offense is a Class A misdemeanor.

       There is an affirmative defense to prosecution if the person installing the device obtained the effective consent of the owner or leasee of the motor vehicle before the device was installed. Most stellite tracking device suppliers provide dealers with authorization forms to be signed by buyers at closing which acknowledge the presence of the device and give specific authorization for use of the device.

       One potential issue for those who choose to forego use of a disclosure form is whether installation of the device before it is sold to a debtor takes the situation out of the criminal offense. It could be argued that since the vehicle wasn't owned by the other person at the time the device was installed (that is, it was still owned by the dealer at the time of installation), Section16.06

wouldn't apply. Whether a judge or jury would agree with this interpretation remains to be seen.

There have been no appellate cases reported since 1999, the year the statute was enacted.

     Another issue is whether a disclosure that is buried in closing paperwork is "effective consent" for the use of the device. Courts have usually discounted disclosures that are not clear and conspicuous, or that have found to decieve the reader. A simular issue might be the effectiveness of consent if the satellite tracking device is described as a means of finding a stolen vehicle, without disclosing that it will be used to find the vehicle in the event of default by the debtor.

     Obviously, the safest course of action for a dealer is to use a form that clearly acknowledges the presence of the device and authorizes its activation in case of default.