Codified as Occupations Code Chapter 2301 effective June 1, 2003
formerly
Texas Motor Vehicle Commission Code
(Article 4413(36) Vernon's Texas Civil Statutes)
(Lemon Law Statutes)
§ 2301.204. Complaint Concerning Vehicle Defect
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
Added by Acts 2001, 77th Leg., ch. 1421, § 5, eff. June 1, 2003.
Warranties: Rights of Vehicle Owners
§ 2301.601. Definitions
In this subchapter:
(1) "Impairment of market value" means a substantial loss in market value caused by a defect specific to a motor vehicle.
(2) "Owner" means a person who:
(A) purchased a motor vehicle at retail from a license holder and is entitled to enforce a manufacturer's warranty with respect to the vehicle;
(B) is a lessor or lessee, other than a sublessee, who purchased or leased the vehicle from a license holder; or
(C) is the transferee or assignee of a person described by Paragraph (A) or (B), a resident of this state, and entitled to enforce the manufacturer's warranty.
(3) "Reasonable allowance for use" means the amount directly attributable to use of a motor vehicle when the vehicle is not out of service for repair.
(4) "Serious safety hazard" means a life-threatening malfunction or nonconformity that:
(A) substantially impedes a person's ability to control or operate a motor vehicle for ordinary use or intended purposes; or
(B) creates a substantial risk of fire or explosion.
§ 2301.602. Duty of Board
(a) The board shall cause a manufacturer, converter, or distributor to perform an obligation imposed by this subchapter.
(b) The board shall adopt rules for the enforcement and implementation of this subchapter.
§ 2301.603. Conformance With Warranty Required
(a) A manufacturer, converter, or distributor shall make repairs necessary to conform a new motor vehicle to an applicable manufacturer's, converter's, or distributor's express warranty.
(b) Subsection (a) applies after the expiration date of a warranty if:
(1) during the term of the warranty, the owner or the owner's agent reported the nonconformity to the manufacturer, converter, or distributor, or to a designated agent or franchised dealer of the manufacturer, converter, or distributor; or
(2) a rebuttable presumption relating to the vehicle is created under Section 2301.605.
(c) This subchapter does not limit a remedy available to an owner under a new motor vehicle warranty that extends beyond the provisions of this subchapter.
§ 2301.604. Replacement of or Refund for Vehicle
(a) A manufacturer, converter, or distributor that is unable to conform a motor vehicle to an applicable express warranty by repairing or correcting a defect or condition that creates a serious safety hazard or substantially impairs the use or market value of the motor vehicle after a reasonable number of attempts shall reimburse the owner for reasonable incidental costs resulting from loss of use of the motor vehicle because of the nonconformity or defect and:
(1) replace the motor vehicle with a comparable motor vehicle; or
(2) accept return of the vehicle from the owner and refund to the owner the full purchase price, less a reasonable allowance for the owner's use of the vehicle, and any other allowances or refunds payable to the owner.
(b) A refund made for a vehicle for which there is a lienholder shall be made to the owner and lienholder in proportion to each person's interest in the vehicle.
(c) As necessary to promote the public interest, the board by rule:
(1) shall define the incidental costs that are eligible for reimbursement;
(2) shall specify other requirements necessary to determine an eligible cost; and
(3) may set a maximum amount that is eligible for reimbursement, either by type of eligible cost or by a total for all costs.
§ 2301.605. Rebuttable Presumption - Reasonable Number of Attempts
(a) A rebuttable presumption that a reasonable number of attempts have been undertaken to conform a motor vehicle to an applicable express warranty is established if:
(1) the same nonconformity continues to exist after being subject to repair four or more times by the manufacturer, converter, or distributor or an authorized agent or franchised dealer of a manufacturer, converter, or distributor and:
(A) two of the repair attempts were made in the 12 months or 12,000 miles, whichever occurs first, following the date of original delivery to the owner; and
(B) the other two repair attempts were made in the 12 months or 12,000 miles, whichever occurs first, immediately following the date of the second repair attempt;
(2) the same nonconformity creates a serious safety hazard and continues to exist after causing the vehicle to have been subject to repair two or more times by the manufacturer, converter, or distributor or an authorized agent or franchised dealer of a manufacturer, converter, or distributor and:
(A) at least one attempt to repair the nonconformity was made in the 12 months or 12,000 miles, whichever occurs first, following the date of original delivery to the owner; and
(B) at least one other attempt to repair the nonconformity was made in the 12 months or 12,000 miles, whichever occurs first, immediately following the date of the first repair attempt; or
(3) a nonconformity still exists that substantially impairs the vehicle's use or market value and:
(A) the vehicle is out of service for repair for a cumulative total of 30 or more days in the 24 months or 24,000 miles, whichever occurs first, following the date of original delivery to the owner; and
(B) at least two repair attempts were made in the 12 months or 12,000 miles following the date of original delivery to an owner.
(b) A period or a number of days or miles described by Subsection (a) is extended for any period that repair services are not available to the owner because of:
(1) a war, invasion, or strike; or
(2) a fire, flood, or other natural disaster.
(c) The 30 days described by Subsection (a)(3)(A) do not include any period during which the manufacturer or distributor lends the owner a comparable motor vehicle while the owner's vehicle is being repaired by a franchised dealer.
§ 2301.606. Conduct of Proceedings
(a) The director under board rules shall conduct hearings and issue final orders for the implementation and enforcement of this subchapter. An order issued by the director under this subchapter is considered a final order of the board.
(b) In a hearing before the director under this subchapter, a manufacturer, converter, or distributor may plead and prove as an affirmative defense to a remedy under this subchapter that a nonconformity:
(1) is the result of abuse, neglect, or unauthorized modification or alteration of the motor vehicle; or
(2) does not substantially impair the use or market value of the motor vehicle.
(c) The director may not issue an order requiring a manufacturer, converter, or distributor to make a refund or to replace a motor vehicle unless:
(1) the owner or a person on behalf of the owner has mailed written notice of the alleged defect or nonconformity to the manufacturer, converter, or distributor; and
(2) the manufacturer, converter, or distributor has been given an opportunity to cure the alleged defect or nonconformity.
(d) A proceeding under this subchapter must be commenced not later than six months after the earliest of:
(1) the expiration date of the express warranty term; or
(2) the dates on which 24 months or 24,000 miles have passed since the date of original delivery of the motor vehicle to an owner.
§ 2301.607. Exhaustion of Administrative Remedies; Right to Sue
(a) A refund or replacement under this subchapter because a motor vehicle is alleged to not conform to an express warranty is not available to the owner of the vehicle unless the owner has exhausted the administrative remedies provided by this subchapter.
(b) A refund or replacement under this subchapter is not available to a party in an action against a seller under Chapter 2 or 17, Business & Commerce Code, but is available in an action against a manufacturer, converter, or distributor brought under Chapter 17, Business & Commerce Code, after the owner has exhausted the administrative remedies provided by this subchapter.
(c) If the hearing examiner does not issue a proposal for decision and recommend to the director a final order before the 151st day after the date a complaint is filed under this subchapter, the director shall provide written notice by certified mail to the complainant and to the manufacturer, converter, or distributor of the expiration of the 150-day period and of the complainant's right to file a civil action. The board shall extend the 150-day period if a delay is requested or caused by the person who filed the complaint.
(d) Notwithstanding a requirement of this section that administrative remedies be exhausted, a person who receives notice under Subsection (c) may file a civil action against any person named in the complaint.
(e) The failure to issue notice under Subsection (c) does not affect a person's right to bring an action under this chapter.
(f) This subchapter does not limit a right or remedy otherwise available to an owner under another law.
(g) A contractual provision that excludes or modifies a remedy provided by this subchapter is prohibited and is void as against public policy unless the exclusion or modification is made under a settlement agreement between the owner and the manufacturer, converter, or distributor.
§ 2301.608. Assessment of Costs for Replacement or Refund
(a) In an order issued under this subchapter, the director shall name the person responsible for paying the cost of any refund or replacement. A manufacturer, converter, or distributor may not cause a franchised dealer to directly or indirectly pay any money not specifically ordered by the director.
(b) If the director orders a manufacturer, converter, or distributor to make a refund or replace a motor vehicle under this subchapter, the director may order the franchised dealer to reimburse the owner, lienholder, manufacturer, converter, or distributor only for an item or option added to the vehicle by the dealer to the extent that the item or option contributed to the defect that served as the basis for the order.
(c) In a case involving a leased vehicle, the director may terminate the lease and apportion allowances or refunds, including the reasonable allowance for use, between the lessee and lessor of the vehicle.
§ 2301.609. Judicial Review
(a) A party to a proceeding before the director under this subchapter that is affected by a final order of the director is entitled to judicial review of the order under the substantial evidence rule in a district court of Travis County.
(b) Judicial review is subject to Chapter 2001, Government Code, to the extent that chapter is not inconsistent with this chapter.
§ 2301.610. Disclosure Statement
(a) A manufacturer, distributor, or converter that has been ordered to repurchase or replace a vehicle shall, through its franchised dealer, issue a disclosure statement stating that the vehicle was repurchased or replaced by the manufacturer, distributor, or converter under this subchapter. The statement must accompany the vehicle through the first retail purchase following the issuance of the statement and must include the board's toll-free telephone number that will enable the purchaser to obtain information about the condition or defect that was the basis of the order for repurchase or replacement.
(b) The manufacturer, distributor, or converter must restore the cause of the repurchase or replacement to factory specifications and issue a new 12-month, 12,000-mile warranty on the vehicle.
(c) The board shall adopt rules for the enforcement of this section.
(d) The board shall maintain a toll-free telephone number to provide information to a person who requests information about a condition or defect that was the basis for repurchase or replacement by an order of the director. The board shall maintain an effective method of providing information to a person who makes a request.
§ 2301.611. Annual Report on Repurchased or Replaced Vehicles
(a) The board shall publish an annual report on the motor vehicles ordered repurchased or replaced under this subchapter.
(b) The report must list the number of vehicles by brand name and model and include a brief description of the conditions or defects that caused the repurchase or replacement.
(c) The board shall make the report available to the public and may charge a reasonable fee to cover the cost of the report.
§ 2301.612. Open Records Exception
Information filed with the board under this subchapter is not a public record and is not subject to release under Chapter 552, Government Code, until the complaint is finally resolved by order of the board.
§ 2301.613. Notice to Buyer
(a) The board shall prepare, publish, and distribute information concerning an owner's rights under this subchapter. The retail seller of a new motor vehicle shall conspicuously post a copy of the information in the area where its customers usually pay for repairs.
(b) The failure to provide notice as required by this section is a violation of this chapter.
Added by Acts 2001, 77th Leg., ch. 1421, § 5, eff. June 1, 2003.
Judicial Review § 2301.751. Judicial Review Generally.
(a) A party to a proceeding affected by a final order, rule, or decision or other final action of the board or director under this chapter or under another law with respect to a matter arising under this chapter may seek judicial review of the action under the substantial evidence rule in:
(1) a district court in Travis County; or
(2) the court of appeals for the Third Court of Appeals District.
(b) Except as otherwise provided by this chapter, an appeal brought in a district court may be removed to the court of appeals by any party before trial in the district court on the filing of notice of removal with the district court.
(c) Judicial review by a court, to the extent not in conflict with this chapter, is in the manner provided by Chapter 2001, Government Code. Judicial review in the court of appeals:
(1) is initiated under Chapter 2001, Government Code, in the manner review is initiated for a proceeding in a district court; and
(2) is governed by the applicable rules of appellate procedure.
§ 2301.752. Time For Filing; Citation.
(a) A petition for judicial review under this chapter must be filed not later than the 30th day after the date on which the action, ruling, order, or decision becomes final and appealable.
(b) Citation for an appeal must be served on the director and each party of record in the matter. For an appeal initiated in the court of appeals, the court shall cause the citation to be issued.
§ 2301.753. Additional Evidence.
An appeal in which evidence outside the record of the board is to be taken under Chapter 2001, Government Code, or otherwise, shall be brought in a district court in Travis County or in the court of appeals. An appeal brought in the court of appeals is subject to remand to a district court in Travis County for proceedings under instructions from the court of appeals.
§ 2301.754. Dismissal For Failure To Prosecute.
(a) A person filing an appeal under this subchapter shall pursue the appeal with reasonable diligence.
(b) If the person fails to prosecute the appeal within six months after the date the appeal is filed, the court shall presume that the appeal has been abandoned. On the motion of the attorney general or a party in the case, the court shall dismiss the appeal after notifying the person who filed the appeal, unless the person shows good cause for the delay.
§ 2301.755. Effect Of Appeal On Order.
An appeal under this subchapter does not affect the enforcement of a final board order unless:
(1) the enforcement of the order is enjoinable under Chapter 65, Civil Practice and Remedies Code, and under principles of primary jurisdiction; or
(2) the board, in the interest of justice, suspends the enforcement of the order pending final determination of the appeal.
Added by Acts 2001, 77th Leg., ch. 1421, § 5, eff. June 1, 2003.
For more see Warranty Performance Obligations 16 TAC §§107.1-107.11