HOUSE JOURNAL


SEVENTY-EIGHTH LEGISLATURE, REGULAR SESSION


PROCEEDINGS


EIGHTY-FOURTH DAY — SUNDAY, JUNE 1, 2003

The house met at 9 a.m. and, at the request of the speaker, was called to order by Representative Truitt.

The roll of the house was called and a quorum was announced present (Recordi897).

Present — Mr. Speaker; Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

The invocation was offered by Representative Chisum, as follows:

Our great and sovereign God, we thank you that you have promised that wherever two or three are gathered in your name, you will be in their midst.

We thank you that your mercies are new every morning and that you are faithful to guide those who are willing to follow.

We thank you that your grace is extended to each of us to accomplish things with you that we cannot accomplish on our own.

And we thank you for your forgiveness, enabling us to overcome our foibles and flaws and start anew.

And we ask today that you would help us to see you in every situation we are in, in every decision that we make, so that at the end of the day, we can hear you say, "Well done my faithful servant, enter into the joy of the Lord." Amen.

CAPITOL PHYSICIAN

The chair recognized Representative Delisi who presented Dr. Troy Fiesinger of Waco as the "Doctor for the Day."

The house welcomed Dr. Fiesinger and thanked him for his participation in the Physician of the Day Program sponsored by the Texas Academy of Family Physicians.

HR 1657 - ADOPTED
(by Menendez)

Representative Menendez moved to suspend all necessary rules to take up and consider at this time HRi1657.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 1657, In memory of Private First Class Anthony Scott "Scotty" Miller of San Antonio.

HR 1657 was read and was unanimously adopted by a rising vote.

On motion of Representative Chisum, the names of all the members of the house were added to HRi1657 as signers thereof.

INTRODUCTION OF GUESTS

The chair recognized Representative Menendez who introduced the family of Private First Class Anthony Scott "Scotty" Miller.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 1).

HR 1852 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1852, suspending the limitations on the conferees for HBi1365.

HR 1804 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1804, suspending the limitations on the conferees for SBi1936.

HR 1850 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1850, suspending the limitations on the conferees for HBi3442.

HR 1851 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1851, suspending the limitations on the conferees for SBi86.

5584 78th LEGISLATURE — REGULAR SESSION


HR 1803 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1803, suspending the limitations on the conferees for HBi3184.

HR 1848 - ADOPTED
(by Quintanilla)

Representative Quintanilla moved to suspend all necessary rules to take up and consider at this time HRi1848.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 1848, Honoring Alex Ramos of Mountain View High School on his track and field accomplishments.

HR 1848 was adopted without objection.

HR 1849 - ADOPTED
(by Quintanilla)

Representative Quintanilla moved to suspend all necessary rules to take up and consider at this time HRi1849.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 1849, Congratulating Ashley Quintanilla of El Paso on her receipt of a Serna Star Award.

HR 1849 was adopted without objection.

HR 1853 - ADOPTED
(by Quintanilla)

Representative Quintanilla moved to suspend all necessary rules to take up and consider at this time HRi1853.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 1853, Congratulating Jose Serna for his nomination to the Senior Citizens Hall of Fame.

HR 1853 was adopted without objection.

HR 1854 - ADOPTED
(by Quintanilla)

Representative Quintanilla moved to suspend all necessary rules to take up and consider at this time HRi1854.

The motion prevailed without objection.

The following resolution was laid before the house:

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HR 1854, Congratulating Dave McKinney on being selected as El Paso Times 2003 Boys' Track and Field Coach of the Year.

HR 1854 was adopted without objection.

SBi1639 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hope submitted the conference committee report on SBi1639.

SBi1639 - POINT OF ORDER

Representative Burnam raised a point of order against further consideration of the conference committee report on SBi1639 under Rule 11, Sections 2 and 3 of the House Rules on the grounds that the conference committee report contains amendments that are not germane to the original bill.

The chair overruled the point of order.

SBi1639 - POINT OF ORDER

Representative Burnam raised a point of order against further consideration of the conference committee report on SBi1639 under Rule 8, Section 3 of the House Rules and Article III, Section 35(a) of the Texas Constitution on the grounds that the conference committee report gives SBi1639 more than one subject.

The chair overruled the point of order, speaking as follows:

Representative Burnam raises a point of order against further consideration of the Conference Committee Report on SBi1639 under Article III, Section 35 of the Texas Constitution and Rule 8, Section 3 of the House Rules, in that the bill contains more than one subject.

The bill includes provisions regulating spacing and production of groundwater as well as provisions relating to the control of instream flows of surface water. Mr. Burnam argues that these are considered two different subjects under current Texas law and cannot properly be considered in the same bill under the Texas Constitution and the rules of the house, which restate the constitutional rule.

As stated in a ruling of May 22, 1999: In considering the constitutionality of laws, courts are under a duty to give a constitutional construction if possible...The standard for finding a violation of the one-subject rule is very high; courts typically find violations of the one-subject rule only when there is no conceivable single subject that describes all the elements of the bill. (76 H.J. 2912 (1999))

The chair has reviewed all house rulings on this issue over the last 30 years and failed to find a single instance in which such a point of order was sustained, a likely result of the very high standard for finding a violation of the rule.

The chair believes that SBi1639 can be construed in a constitutional manner in that each element relates to the regulation of the waters of the state and would be so construed by a court. Accordingly, the point of order is respectfully overruled.

5586 78th LEGISLATURE — REGULAR SESSION


Representative Hope moved to adopt the conference committee report on SBi1639.

A record vote was requested.

The motion prevailed by (Record 898): 131 Yeas, 8 Nays, 2 Present, not voting.

Yeas — Allen; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Noriega; Oliveira; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Turner; Uresti; Van Arsdale; West; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Nays — Alonzo; Burnam; Escobar; Moreno, P.; Naishtat; Olivo; Rodriguez; Villarreal.

Present, not voting — Mr. Speaker; Truitt(C).

Absent — Canales; Castro; Chavez; Coleman; Corte; Mabry; Moreno, J.; Riddle; Wilson.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 2).

HB 1566 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Telford submitted the following conference committee report on HB 1566 :

Austin, Texas, May 29, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1566 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

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Ratliff Telford
Janek Morrison
Averitt Goolsby
F. Brown
Homer
On the part of the senate On the part of the house

HB 1566, A bill to be entitled An Act relating to lower-division and upper-division courses offered by Texas A&M University-Texarkana.

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

SECTIONi1.iiSections 87.571(a), (b), and (c), Education Code, are amended to read as follows:

(a)iiTexas A&M University-Texarkana is a coeducational [upper-level] institution of higher education located in the City of Texarkana. The university is a component of The Texas A&M University System and is under the management and control of the board of regents of The Texas A&M University System.

(b)iiThe board has the same powers and duties concerning the university as are conferred on the board by law concerning Texas A&M University. The[, except that the] university may [not] offer lower-division courses, but is not required to do so in any academic year for which the legislature does not appropriate money specifically for that purpose [freshman or sophomore programs].

(c)iiThe university may offer lower-division courses on the campus of Texarkana College or in a permanent building located on property acquired by the university for a permanently relocated campus. The university may not offer lower-division courses on the campus of Texarkana College without prior approval from Texarkana College [The university may enter into a partnership agreement with the Texarkana College District in the manner authorized by Subchapter N, Chapter 51].

SECTIONi2.iiThis Act takes effect September 1, 2003.

Representative Telford moved to adopt the conference committee report on HBi1566.

The motion prevailed.

HB 1695 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Denny submitted the following conference committee report on HB 1695 :

Austin, Texas, May 30, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

5588 78th LEGISLATURE — REGULAR SESSION


Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1695 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Nelson Denny
Shapiro Uresti
Staples Howard
Armbrister Bohac
Ellis, Rodney Harper-Brown
On the part of the senate On the part of the house

HB 1695, A bill to be entitled An Act relating to certain election processes and procedures.

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

SECTIONi1.ii Section 1.006, Election Code, is amended to read as follows:

Sec.i1.006.iiEFFECT OF WEEKEND OR HOLIDAY. (a) If the last day for performance of an act is a Saturday, Sunday, or legal state or national holiday, the act is timely if performed on the next regular business day, except as otherwise provided by this code.

(b)iiIf the last day for performance of an act is extended under Subsection (a), the extended date is used to determine any other dates and deadlines, and the dates or times of any related procedures, that are expressly required to be made on a date or at a time determined in relation to the last day for performance of the act.

(c)iiA declaration of ineligibility of a candidate is considered to be the performance of an act under this section for purposes of causing the candidate's name to be omitted from the ballot.

(d)iiThe filing of a document, including a withdrawal request or resignation, is considered to be the performance of an act under this section for purposes of creating a vacancy to be filled at a subsequent election.

(e)iiThe death of a person is not considered to be the performance of an act under this section.

SECTIONi2.ii Section 2.025, Election Code, is amended to read as follows:

Sec.i2.025.iiRUNOFF ELECTION DAY. (a) Except as otherwise provided by this code [Subsection (b)], a runoff election shall be held not earlier than the 20th or later than the 45th [30th] day after the date the final canvass of the main election is completed.

(b)iiA runoff election date later than [may be held after] the period prescribed by Subsection (a) may be prescribed by a home-rule city charter [law but not later than the 45th day after the date the final canvass of the main election is completed only to:

[(1)iipermit a joint runoff election to be held with another political subdivision in accordance with Chapter 271; or

[(2)iiavoid holding the runoff on:

[(A)iia legal state or national holiday; or

[(B)iia weekend day within three days of a legal state or national holiday].

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(c)iiThis section [Subsection (b)] supersedes a law outside this subchapter to the extent of a conflict notwithstanding Section 2.022.

SECTIONi3.ii Section 13.072(c), Election Code, is amended to read as follows:

(c)iiExcept as provided by Subsection (d) [or (e)], if the registrar determines that an application does not comply with Section 13.002 or does not indicate that the applicant is eligible for registration, the registrar shall reject the application.

SECTIONi4.iiSection 13.073, Election Code, is amended by adding Subsection (c) to read as follows:

(c)iiIf the registrar rejects an application for incompleteness but receives a completed application not later than the 10th day after the date the notice is delivered under Subsection (a) or the date the incomplete application is returned under Subsection (b), as applicable, the original date of submission of the incomplete application is considered to be the date of submission to the registrar for the purpose of determining the effective date of registration.

SECTIONi5.ii Section 15.025, Election Code, is amended to read as follows:

Sec.i15.025.iiEFFECTIVE DATE OF CERTAIN CHANGES IN REGISTRATION INFORMATION [IN PRECINCT OF NEW RESIDENCE]. (a) Except as provided by Subsections (b) and (d), the [The] registration of a voter described by this subsection whose information [residence] is changed on the registration records [to another county election precinct in the same county] becomes effective as to the change [in the precinct of new residence] on the 30th day after:

(1)iithe date the voter submits to the registrar [receives] a notice of a change in registration information under Section 15.021 or a [voter's] response under Section 15.053, indicating the change [of residence]; or

(2)iithe date the voter submits a statement of residence to an election officer under Section 63.0011 or a registration application or change of address to an agency employee under Chapter 20, indicating the change [of residence].

(b)iiA change in registration information covered by this section is effective for purposes of early voting if it will be effective on election day.

(c)iiFor purposes of determining the effective date of a change in registration information covered by this section, a document submitted by mail is considered to be submitted to the registrar on the date it is placed with postage prepaid and properly addressed in the United States mail. The date indicated by the post office cancellation mark is considered to be the date the document was placed in the mail unless proven otherwise.

(d)iiIf the 30th day before the date of an election is a Saturday, Sunday, or legal state or national holiday, the document is considered to be timely if it is submitted to the registrar on or before the next regular business day.

SECTIONi6.ii Sections 16.033(c) and (d), Election Code, are amended to read as follows:

(c)iiThe notice must include:

(1)iia request for information relevant to determining the voter's eligibility for registration; and

5590 78th LEGISLATURE — REGULAR SESSION


(2)iia warning that the voter's registration is subject to cancellation if the registrar does not receive an appropriate reply on or before the 30th [60th] day after the date the notice is mailed.

(d)iiExcept as provided by Subsection (e), the registrar shall cancel a voter's registration if:

(1)iiafter considering the voter's reply, the registrar determines that the voter is not eligible for registration;

(2)iino reply is received from the voter on or before the 30th [60th] day after the date the notice is mailed to the voter under Subsection (b); or

(3)iieach notice mailed under Subsection (b) is returned undelivered to the registrar with no forwarding information available.

SECTIONi7.ii Sections 16.0332(a) and (b), Election Code, are amended to read as follows:

(a)iiAfter the registrar receives a list under Section 62.113, Government Code, of persons excused or disqualified from jury service because of citizenship status, the registrar shall deliver to each registered voter whose name [who] appears on the list a written notice requiring the voter to submit to the registrar [provide] proof of United States citizenship in the form of a certified copy of the voter's birth certificate, United States passport, or certificate of naturalization or any other [a] form prescribed by the secretary of state. The notice shall be delivered by forwardable mail to the mailing address on the voter's registration application and to any new address of the voter known to the registrar.

(b)iiIf a voter fails to submit to [provide] the registrar [with] proof of citizenship on or before the 30th [31st] day after the date the notice is mailed [to the voter], the registrar shall cancel the voter's registration.

SECTIONi8.ii Section 16.036(a), Election Code, is amended to read as follows:

(a)iiImmediately after cancellation of a voter's registration under Section 16.031(a)(3), 16.033, [or] 16.0331, or 16.0332, the registrar shall deliver written notice of the cancellation to the voter.

SECTIONi9.iiSection 19.001(a), Election Code, is amended to read as follows:

(a)iiBefore May 15 of each year, the registrar shall prepare and submit to the comptroller of public accounts a statement containing:

(1)iithe total number of initial registrations for the previous voting year;

(2)iithe total number of registrations canceled under Sections 16.031(a)(1), [and] 16.033, and 16.0332 for the previous voting year; and

(3)iithe total number of registrations for which information was updated for the previous voting year.

SECTIONi10.iiSection 19.004, Election Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

(a)iiExcept as provided by Subsection (d), state [State] funds disbursed under this chapter may be used only to defray expenses of the registrar's office in connection with voter registration, including additional expenses related to:

(1)iiimplementation of the National Voter Registration Act of 1993 (42 U.S.C. Section 1973gg et seq.); and

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(2)iicomplying with the weekly updating requirements prescribed by Section 18.063.

(d)iiIf the secretary of state determines that federal matching funds are available under the federal Help America Vote Act of 2002, the secretary of state shall certify to the comptroller the amount of state funds required to qualify for the maximum amount of federal matching funds. On receipt of the certification, the comptroller shall deposit from funds otherwise available under this chapter an amount equal to the certified amount in the election improvement fund established under Section 31.011.

SECTIONi11.iiSection 32.091, Election Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiExcept as provided by Subsection (c), an [An] election judge or clerk is entitled to compensation for services rendered at a precinct polling place at an hourly rate not to exceed the amount fixed by the appropriate authority, which amount must be at least the federal minimum hourly wage. A judge or clerk may be compensated at that rate for services rendered under Section 62.014(c).

(c)iiFor a primary or runoff primary election, the minimum hourly rate is the greater of the maximum rate provided by Subsection (a) or, if the election officer attended a training program as provided by Subchapter F, $7.

SECTIONi12.iiSection 32.111, Election Code, is amended to read as follows:

Sec.i32.111.iiTRAINING STANDARDS FOR ELECTION JUDGES. (a) The secretary of state shall [governing body of a political subdivision that holds elections or the county executive committee of a political party that holds primary elections may]:

(1)iiadopt [minimum] standards of training in election law and procedure for presiding or alternate election judges [serving in its elections]; [and]

(2)iidevelop materials for a standardized curriculum for that training; and

(3)iidistribute the materials as necessary to the governing bodies of political subdivisions that hold elections and to each county executive committee of a political party that holds a primary election [require that a person meet those standards before appointment or service as a judge].

(b)iiThe [Minimum] training standards may include required attendance at appropriate training programs or the passage of an examination at the end of a training program.

SECTIONi13.iiSection 32.112, Election Code, is amended to read as follows:

Sec.i32.112.iiEXPENSE OF TRAINING JUDGES. The governing body of a political subdivision may appropriate funds to:

(1)iicompensate its election judges, early voting clerk, and deputy early voting clerks in charge of early voting polling places for attending a training program required under Section 32.111 [programs], at an hourly rate not to

5592 78th LEGISLATURE — REGULAR SESSION


exceed the maximum rate of compensation of an election judge for services rendered at a precinct polling place or, if applicable, for attending a training program under Section 32.114; and

(2)iipay the expenses of conducting the programs.

SECTIONi14.iiSections 32.113(a) and (b), Election Code, are amended to read as follows:

(a)iiThe governing body of a political subdivision other than a county may, and the county executive committee of a political party shall, provide training [programs] for its election officers using the standardized training program and materials developed and provided by the secretary of state under Section 32.111.

(b)iiA political subdivision or county executive committee may conduct its training [programs] independently or jointly with other entities.

SECTIONi15.iiSection 32.114, Election Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:

(a)iiThe county clerk shall provide one or more sessions of [a] training using the standardized training program and materials developed and provided by the secretary of state under Section 32.111 [program] for the election judges and clerks appointed to serve in elections ordered by the governor or a county authority. Each election judge shall complete the training program.

(e)iiAn election judge, early voting clerk, or deputy early voting clerk in charge of an early voting polling place is entitled to compensation for attending the training program at an hourly rate not to exceed $7.

SECTIONi16.iiSections 41.001(a) and (b), Election Code, are amended to read as follows:

(a)iiExcept as otherwise provided by this subchapter, each general or special election in this state shall be held on one of the following dates:

(1)ii[the first Saturday in February;

[(2)]iithe first Saturday in May;

[(3)iithe second Saturday in September;] or

(2)i[(4)]iithe first Tuesday after the first Monday in November.

(b)iiSubsection (a) does not apply to:

(1)iia runoff election;

(2)ii[an election for the issuance or assumption of bonds for any purpose authorized by law relating to public schools or colleges or the levy of a tax for the maintenance of a public school or college, if the governing body of the political subdivision having jurisdiction of the public school or college issuing or assuming the bonds or levying the tax:

[(A)iiby resolution, order, or ordinance, finds that holding the election on a date other than a uniform election date is in the public interest, which finding is conclusive and incontestable; and

[(B)iithe election is the only election of the type described by this subdivision held by that political subdivision on a date other than a uniform election date during the state fiscal biennium;

[(3)]iian election to resolve a tie vote;

(3)i[(4)]iian election held under an order of a court or other tribunal;

(4)i[(5)]iian emergency election ordered under Section 41.0011;

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(5)i[(6)]iian expedited election to fill a vacancy in the legislature held under Section 203.013; or

(6)i[(7)]iian election held under a statute that expressly provides that the requirement of Subsection (a) does not apply to the election.

SECTIONi17.iiSection 41.001(e), Election Code, is amended to read as follows:

(e)iiIn addition to a date prescribed by Subsection (a), an [An] election for an office in which a majority vote is required and that is [may not be held on the September or February uniform election date. This subsection does not apply to an election] conducted under Section 26.045, Local Government Code, may be held on the first Saturday in February or the second Saturday in September, which are considered to be dates that comply with Subsection (a) and Section 26.045, Local Government Code.

SECTIONi18.iiSection 41.007(b), Election Code, is reenacted to read as follows:

(b)iiThe runoff primary election date is the second Tuesday in April following the general primary election.

SECTIONi19.iiSection 67.003, Election Code, is amended to read as follows:

Sec.i67.003.iiTIME FOR LOCAL CANVASS. Each local canvassing authority shall convene to conduct the local canvass at the time set by the canvassing authority's presiding officer:

(1)iion the seventh day after election day for:

(A)iithe general election for state and county officers; or

(B)iian election of a political subdivision that is held jointly with an election of:

(i)iia county; or

(ii)iione or more other political subdivisions under an election services contract with the county election officer; or

(2)iinot earlier than the third day or later than the sixth day after election day for an election other than an [the general] election described by Subdivision (1) [for state and county officers].

SECTIONi20.iiSection 83.006(b), Election Code, is amended to read as follows:

(b)iiTo be eligible for appointment as early voting clerk under this section, a person must meet the requirements for eligibility for service as a presiding election judge, except that:

(1)iian appointee must be a qualified voter of the political subdivision and is not required to be a qualified voter of any other particular territory; [and]

(2)iiin an election in which an officer of the political subdivision is a candidate, an appointee's status as an employee of the political subdivision does not make the appointee ineligible for appointment as the clerk; and

(3)iian appointee who is a permanent employee of the political subdivision and a qualified voter of any territory is not required to be a qualified voter of the political subdivision.

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SECTIONi21.iiSection 83.007(b), Election Code, is amended to read as follows:

(b)iiTo be eligible for appointment as early voting clerk under this section, a person must meet the requirements for eligibility for service as a presiding election judge, except that:

(1)iian [the] appointee must be a qualified voter of the territory covered by the election and is not required to be a qualified voter of any other particular territory; and

(2)iian appointee who is a permanent employee of the authority ordering the election and a qualified voter of any territory is not required to be a qualified voter of the territory covered by the election.

SECTIONi22.iiSection 83.032(b), Election Code, is amended to read as follows:

(b)iiFor a temporary deputy to be eligible for appointment as a deputy early voting clerk under this section, the temporary deputy must meet the requirements for eligibility for service as a presiding election judge, except that:

(1)iian appointee is not required to be a qualified voter of any particular territory other than the county, in the case of an appointment by a county clerk, or the city, in the case of an appointment by a city secretary; [and]

(2)iiin an election in which the early voting clerk is a candidate, an appointee's status as an employee of the clerk does not make the appointee ineligible for appointment as a deputy early voting clerk; and

(3)iian appointee who is a permanent employee of the county or city, as applicable, and a qualified voter of any territory is not required to be a qualified voter of the county or city, as applicable.

SECTIONi23.iiSection 84.032, Election Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:

(b)iiA request must:

(1)iibe in writing and signed by the applicant;

(2)iispecify the election for which the application was made; and

(3)iiexcept as provided by Subsection (c), [or] (d), or (e), be received by the early voting clerk:

(A)iinot later than the third day before election day; and

(B)iiif an early voting ballot sent to the applicant is returned to the clerk as a marked ballot, before the marked ballot's arrival at the address on the carrier envelope.

(e)iiAn applicant may also submit a request at any time after the early voting ballot is returned to the early voting clerk as a marked ballot and before the ballot is delivered to the early voting ballot board by appearing in person and executing an affidavit that the applicant did not mark the ballot.

SECTIONi24.iiSection 85.001(c), Election Code, is amended to read as follows:

(c)iiIf the date prescribed by Subsection (a) or (b) for beginning the period is a Saturday, Sunday, or legal state holiday, the early voting period begins [:

[(1)]iion the next regular business day[; or

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[(2)iion that Saturday or Sunday if early voting is ordered to be conducted on that day under Section 85.006].

SECTIONi25.iiSection 86.003(c), Election Code, is amended to read as follows:

(c)iiThe address to which the balloting materials must be addressed is the address at which the voter is registered to vote, or the registered mailing address if different, unless the ground for voting by mail is:

(1)iiabsence from the county of residence, in which case the address must be an address outside the voter's county of residence;

(2)iiconfinement in jail, in which case the address must be the address of the jail or of a relative described by Section 84.002(a)(4); or

(3)iiage or disability and the voter is living at a hospital, nursing home or other long-term care facility, or retirement center, or with a relative described by Section 84.002(a)(3), in which case the address must be the address of that facility or relative.

SECTIONi26.iiSection 86.007(d), Election Code, is amended to read as follows:

(d)iiA marked ballot voted by mail that arrives after the time prescribed by Subsection (a) shall be counted if:

(1)iithe ballot was cast from an address outside the United States;

(2)iithe carrier envelope was placed for delivery before the time the ballot is required to arrive under Subsection (a); and

(3)iithe ballot arrives at the address on the carrier envelope not later than:

(A)iithe fifth day after the date of:

(i)iithe general election for state and county officers; or

(ii)iian election of a political subdivision that is held jointly with an election of:

(a)iia county; or

(b)iione or more political subdivisions under an election services contract with the county election officer; or

(B)iithe second day after the date of an election other than an [the general] election described by Paragraph (A) [for state and county officers].

SECTIONi27.iiSection 87.0241, Election Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b)iiThe board may not count early voting ballots until:

(1)iithe polls open on election day; or

(2)iiin an election conducted by an authority of a county with a population of 100,000 or more or conducted jointly with such a county, the end of the period for early voting by personal appearance.

(c)iiThe secretary of state shall prescribe any procedures necessary for implementing this section in regard to elections described by Subsection (b)(2).

SECTIONi28.iiSection 87.027, Election Code, is amended by amending Subsections (a), (c), (d), (i), and (j) and adding Subsection (a-1) to read as follows:

5596 78th LEGISLATURE — REGULAR SESSION


(a)iiExcept as provided by Subsection (a-1), a [A] signature verification committee may be appointed in any election. The early voting clerk is the authority responsible for determining whether a signature verification committee is to be appointed. If the clerk determines that a committee is to be appointed, the clerk shall issue a written order calling for the appointment. [Section 87.0271 supersedes this section to the extent of a conflict.]

(a-1)iiA signature verification committee shall be appointed in the general election for state and county officers on submission to the early voting clerk of a written request for the committee by at least 15 registered voters of the county. The request must be submitted not later than the preceding October 1, and a request submitted by mail is considered to be submitted at the time of its receipt by the clerk.

i(c)iiNot later than the fifth day after the date the early voting clerk issues the order calling for the appointment of a signature verification committee, or not later than October 15 for a committee required under Subsection (a-1), the appropriate authority shall appoint the members of the committee and designate one of the appointees as chair, subject to Subsection (d). The authority shall fill a vacancy on the committee by appointment as soon as possible after the vacancy occurs, subject to Subsection (d). The early voting clerk shall post notice of the name and residence address of each appointee. The notice must remain posted continuously for the period beginning the day after the date of the appointment and ending on the last day of the committee's operation in the election.

(d)iiThe early voting clerk shall determine the number of members who are to compose the signature verification committee and shall state that number in the order calling for the committee's appointment. A committee must consist of not fewer than five members. In an election [and, in elections] in which party alignment is indicated on the ballot, each county chair of a political party with a nominee or aligned candidate on the ballot shall submit to the appointing authority a list of names of persons eligible to serve on the signature verification committee. The authority shall appoint at least two persons from each list to serve as members of the committee. The same number of members must be appointed from each list. The authority shall appoint the chair of the committee from the list provided by the political party whose nominee for governor received the most votes in the county in the most recent gubernatorial general election. A vacancy on the committee shall be filled by appointment from the original list or from a new list submitted by the appropriate county chair [must be balanced as equally as possible by members of each political party required to nominate candidates by primary election].

(i)iiThe signature verification committee shall compare the signature on each carrier envelope certificate, except those signed for a voter by a witness, with the signature on the voter's ballot application to determine whether the signatures are those of the same person. The committee may also compare the signatures with the signature on the voter's registration application to confirm that the signatures are those of the same person [match] but may not use the registration application signature to determine that the signatures are not those of the same person [do not match]. A determination under this subsection that the signatures are not those of

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the same person [do not match] must be made by a majority vote of the committee's membership. The committee shall place the jacket envelopes, carrier envelopes, and applications of voters whose signatures are not those of the same person [do not match] in separate containers from those of voters whose signatures are those of the same person [match]. The committee chair shall deliver the sorted materials to the early voting ballot board at the time specified by the board's presiding judge but within the period permitted for the early voting clerk's delivery of early voting ballots to the board.

(j)iiIf a signature verification committee is appointed, the early voting ballot board shall follow the same procedure for accepting the early voting ballots voted by mail as in an election without a signature verification committee, except that the board may not determine whether a voter's signatures on the carrier envelope certificate and ballot application are those of the same person [match] if the committee has determined that the signatures are those of the same person [match]. If the committee has determined that the signatures are not those of the same person [do not match], the board may make a determination that the signatures are those of the same person [match] by a majority vote of the board's membership.

SECTIONi29.iiSection 87.041(b), Election Code, is amended to read as follows:

(b)iiA ballot may be accepted only if:

(1)iithe carrier envelope certificate is properly executed;

(2)iineither the voter's signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness;

(3)iithe voter's ballot application states a legal ground for early voting by mail;

(4)iithe voter is registered to vote, if registration is required by law;

(5)iithe address to which the ballot was mailed to the voter, as indicated by the application, was outside the voter's county of residence, if the ground for early voting is absence from the county of residence; [and]

(6)iifor a voter to whom a statement of residence form was required to be sent under Section 86.002(a), the statement of residence is returned in the carrier envelope and indicates that the voter satisfies the residence requirements prescribed by Section 63.0011; and

(7)iithe address to which the ballot was mailed to the voter is an address that is otherwise required by Sections 84.002 and 86.003.

SECTIONi30.iiSection 87.101, Election Code, is amended to read as follows:

Sec.i87.101.ii[PREPARATION OF BALLOTS;] DELIVERY OF BALLOTS TO COUNTING STATION. [(a)] On the direction of the presiding judge, the early voting ballot board[, in accordance with Section 85.032(b),] shall deliver to the central counting station [open] the container for the early voting electronic system ballots that are to be counted by automatic tabulating

5598 78th LEGISLATURE — REGULAR SESSION


equipment at a central counting station. The board shall make the delivery without opening the container and[, remove the ballots from the container, and remove any ballots enclosed in ballot envelopes from their envelopes.

[(b)iiOn the direction of the presiding judge, the early voting ballot board may prepare the ballots for delivery to the central counting station at any time after they are received and shall deliver them] in accordance with the procedure applicable to electronic system ballots cast at a precinct polling place.

SECTIONi31.iiSection 87.1231(a), Election Code, is amended to read as follows:

[(a)]iiNot later than the time of the local canvass, the early voting clerk shall deliver to the local canvassing authority a report of the total number of early voting votes for each candidate or measure by election precinct. The report may reflect the total for votes by mail and the total for votes by personal appearance.

SECTIONi32.iiSection 87.125(a), Election Code, is amended to read as follows:

(a)iiThe early voting ballot board shall convene to count ballots voted by mail described by Section 86.007(d) at the time set by the presiding judge of the board [on]:

(1)iion the sixth day after the date of:

(A)iithe [a] general election for state and county officers; or

(B)iian election of a political subdivision that is held jointly with an election of:

(i)iia county; or

(ii)iione or more political subdivisions under an election services contract with the county election officer;

(2)iion the second [fifth] day after the date of a primary [or special] election, at a time following the last mail delivery, or on an earlier day or at an earlier time if the early voting clerk certifies that all ballots mailed from outside the United States have been received; or

(3)iinot earlier than the third day or later than the fifth day after the date of an election other than an election described by Subdivision (1) or (2).

SECTIONi33.iiSection 102.003(b), Election Code, is amended to read as follows:

(b)iiAn application may be submitted after the last day of the period for early voting by personal appearance and before 5 [2] p.m. on election day.

SECTIONi34.iiSection 104.003, Election Code, is amended to read as follows:

Sec.i104.003.iiTIME AND PLACE FOR VOTING.iiVoting under this chapter shall be conducted on election day, beginning at 7 [8] a.m. and concluding at 7 [2] p.m., at the main early voting polling place[, except that the voting shall begin at 7 a.m. and conclude at 7 p.m. in an election in which mechanical voting machines are used]. However, if the early voting ballots voted by mail are processed at a location other than the main early voting polling place, the early voting clerk may require the voting to be conducted at that location.

SECTIONi35.iiSection 112.002, Election Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:

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(a)iiAfter changing residence to another county, a person is eligible to vote a limited ballot by personal appearance during the early voting period or by mail if:

(1)iithe person would have been eligible to vote in the county of former residence on election day if still residing in that county; and

(2)ii[the date of the election is not more than 90 days after the new residence is established; and

[(3)]iia voter registration for the person in the county of new residence is not effective on or before election day.

(c)iiBefore being accepted for voting under this chapter, the voter must execute a statement including:

(1)iia statement that the voter satisfies the applicable requirements prescribed by Subsection (a);

(2)iithe voter's residence address or, if the residence has no address, the address at which the voter receives mail and a concise description of the voter's residence;

(3)iithe month, day, and year of the voter's birth; and

(4)iithe date the statement is executed.

(d)iiA statement executed under Subsection (c) shall be submitted:

(1)iito an election officer at the main early voting polling place, if the person is voting by personal appearance; or

(2)iiwith the person's application for a ballot to be voted by mail, if the person is voting by mail.

SECTIONi36.iiSection 127.066(c), Election Code, is amended to read as follows:

(c)iiAfter the box is sealed, it shall be delivered to the central counting station by two election officers [in accordance with the procedure for delivering ballot box no. 3 to the central counting station]. The officers shall deliver the box to the presiding judge of the central counting station or to the judge's designee.

SECTIONi37.iiChapter 144, Election Code, is amended by adding Section 144.006 to read as follows:

Sec.i144.006.iiFILING DEADLINE FOR DECLARED WRITE-IN CANDIDATE. Except as otherwise provided by law, a declaration of write-in candidacy must be filed not later than 5 p.m. of the fifth day after the date an application for a place on the ballot is required to be filed in an election in which:

(1)iithe filing deadline for an application for a place on the ballot is the 45th day before election day; and

(2)iiwrite-in votes may be counted only for names appearing on a list of declared write-in candidates.

SECTIONi38.iiSection 172.024(a), Election Code, is amended to read as follows:

(a)iiThe filing fee for a candidate for nomination in the general primary election is as follows:

(1)iiUnited States senator. . . . . . . . . . . . . . . . . . . . . . . . $5,000 [$4,000]

(2)iioffice elected statewide, except United States senator. 3,750 [3,000]

(3)iiUnited States representative. . . . . . . . . . . . . . . . . . . . . 3,125 [2,500]

(4)iistate senator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,250 [1,000]

5600 78th LEGISLATURE — REGULAR SESSION


(5)iistate representative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750 [600]

(6)iimember, State Board of Education. . . . . . . . . . . . . . . . . . 300 [250]

(7)iichief justice or justice, court of appeals, other than a justice specified by Subdivision (8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,875 [1,500]

(8)iichief justice or justice of a court of appeals that serves a court of appeals district in which a county with a population of more than 850,000 is wholly or partly situated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,500 [2,000]

(9)iidistrict judge or judge specified by Section 52.092(d) for which this schedule does not otherwise prescribe a fee. . . . . . . . . . . . . . . . . . . 1,500 [1,200]

(10)iidistrict or criminal district judge of a court in a judicial district wholly contained in a county with a population of more than 850,000. . . . . 2,500 [2,000]

(11)iijudge, statutory county court, other than a judge specified by Subdivision (12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,500 [1,200]

(12)iijudge of a statutory county court in a county with a population of more than 850,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,500 [2,000]

(13)iidistrict attorney, criminal district attorney, or county attorney performing the duties of a district attorney. . . . . . . . . . . . . . . . . . . . 1,250 [1,000]

(14)iicounty commissioner, county clerk, sheriff, county tax assessor-collector, county treasurer, or judge, constitutional county court:

(A)iicounty with a population of 200,000 or more. . . 1,250 [1,000]

(B)iicounty with a population of under 200,000. . . 750 [600]

(15)iijustice of the peace or constable:

(A)iicounty with a population of 200,000 or more. . . . . 1,000 [800]

(B)iicounty with a population of under 200,000. . . . . . 375 [300]

(16)iicounty surveyor, inspector of hides and animals, or public weigher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 [50]

(17)iioffice of the county government for which this schedule does not otherwise prescribe a fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750 [600]

SECTIONi39.iiSections 172.126(a) and (c), Election Code, are amended to read as follows:

(a)iiThe primary elections in a county may be conducted jointly at the regular polling places designated for the general election for state and county officers. The county clerk shall supervise the overall conduct of the joint primary elections. This section applies to the conduct of joint primary elections notwithstanding and in addition to other applicable provisions of this code. The decision to conduct a joint general primary election or runoff primary election, as applicable, must be made by majority vote of the full membership of the commissioners court and with the unanimous approval of the county clerk and the county chair of each political party required to nominate candidates by primary election.

(c)iiOne set of election officers shall conduct the primary elections at each polling place. Not later than the second Monday in December preceding the primary elections, each county chair shall deliver to the county clerk a list of the names of the election judges and clerks for that party. The presiding judge of each party, or alternate judge if applicable, serves as a co-judge for the precinct. If an

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5601


eligible presiding co-judge and alternate co-judge cannot be found to serve for a particular party in a precinct, a joint primary may not be conducted in that precinct, and that precinct must be consolidated with another precinct that has an eligible presiding co-judge and alternate co-judge to serve for each party. The county clerk shall appoint the election clerks in accordance with rules prescribed by the secretary of state. The secretary of state shall prescribe the maximum number of clerks that may be appointed for each precinct. The early voting ballot board and any central counting station shall also be composed of and administered by one set of election officers that provides representation for each party, and the secretary of state by rule shall prescribe procedures consistent with this subsection for the appointment of those officers.

SECTIONi40.iiSection 173.005(a), Election Code, is amended to read as follows:

[(a)]iiThe maximum hourly rate payable with state funds in a particular primary election year to election judges serving in a primary election for attending training programs is the same as the maximum rate prescribed by this code for [a political subdivision's] compensation for attending a training program for election judges appointed to serve in elections ordered by the governor or a county authority [of its election judges for the same activity].

SECTIONi41.ii Section 173.011(b), Election Code, is amended to read as follows:

(b)iiAny surplus remaining in a county primary fund shall be remitted to the secretary of state [county clerk] immediately after the final payment from the fund of the necessary expenses for holding the primary elections for that year, but not later than July 1 following the applicable primary election. The surplus in the primary fund shall be remitted regardless of whether state funds were requested by the chair. [Any surplus primary funds received by the county clerk under this subsection may be used only for paying the remaining expenses of the joint primary election.]

SECTIONi42.iiSection 212.001, Election Code, is amended to read as follows:

Sec.i212.001.iiGENERAL REQUIREMENTS FOR RECOUNT DOCUMENT.iiA recount document submitted under this title must:

(1)iibe in writing;

(2)iiidentify the office or measure for which a recount is desired;

(3)iistate the grounds for the recount;

(4)iistate the side of the measure that the person requesting the recount represents, if applicable;

(5)iiidentify the election precincts, grouped by county or other appropriate territorial unit if the election involves more than one local canvassing authority, for which a recount is desired and must indicate the method of voting used in each precinct;

(6)iibe signed by:

(A)iithe person requesting the recount or, if there is more than one, any one or more of them; or

(B)iian agent of the person requesting the recount;

5602 78th LEGISLATURE — REGULAR SESSION


(7)iistate each requesting person's name, residence address, and, if authorization to obtain the recount is based on eligibility to vote in the election, voter registration number, and county of registration if the election covers territory in more than one county;

(8)iidesignate an agent who is a resident of this state to receive notice under this title on behalf of the person requesting the recount if:

(A)iithe person requesting the recount is not a resident of this state; or

(B)iithere is more than one person requesting the recount;

(9)iistate the mailing address and at least one telephone number, if any, at which the person requesting the recount or an agent, identified by name, may receive notice given under this title; [and]

(10)iistate the mailing address and at least one telephone number, if any, at which the opposing candidates for the office or their agents, identified by name, may receive notice given under this title; and

(11)iibe accompanied by a deposit as provided by Subchapter E.

SECTIONi43.iiSection 212.088(a), Election Code, is amended to read as follows:

(a)iiIf the deadline for submitting an expedited recount petition falls on a Saturday, Sunday, or legal state holiday, the deadline is extended to 10 [9] a.m. of the next regular business day.

SECTIONi44.iiSection 212.111(b), Election Code, is amended to read as follows:

(b)iiThe [Except as provided by Subsection (c), the] deposit must be in the form of cash or a cashier's check or money order made payable to the recount coordinator.

SECTIONi45.iiSection 277.002(a), Election Code, is amended to read as follows:

(a)iiFor a petition signature to be valid, a petition must:

(1)iicontain in addition to the signature:

(A)iithe signer's printed name;

(B)iithe signer's:

(i)iidate of birth and residence address; or

(ii)ii[the signer's] voter registration number and, if the territory from which signatures must be obtained is situated in more than one county, the county of registration; and

(C)ii[the signer's residence address; and

[(D)]iithe date of signing; and

(2)iicomply with any other applicable requirements prescribed by law.

SECTIONi46.iiSection 41.253(b), Education Code, is amended to read as follows:

(b)iiThe transitional board of trustees shall divide the consolidated district into nine single-member trustee districts in accordance with the procedures provided by Section 11.052. The transitional board shall order an election for the initial board of trustees to be held on the first May [February] uniform election date after the effective date of a consolidation order.

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SECTIONi47.iiSection 49.103(b), Water Code, is amended to read as follows:

(b)iiAn election shall be held on the uniform election date, established by the Election Code, in [either February or] May of each even-numbered year to elect the appropriate number of directors.

SECTIONi48.iiSection 56.804(a), Water Code, is amended to read as follows:

(a)iiThe election shall be held on a uniform election day in [February or] May.

SECTIONi49.iiSections 13.072(e), 15.026, 41.001(d), 87.0271, 87.1231(b), 145.006, 173.005(b), and 212.111(c), Election Code, are repealed.

SECTIONi50.ii(a) Notwithstanding any other enactment of the 78th Legislature, Regular Session, 2003, that amends Section 41.007(b), Election Code, including SECTION 1, HB 2496, and SECTION 16, HB 1549, the runoff primary election day remains on the second Tuesday in April following the general primary election as provided by SECTION 18 of this Act.

(b)iiNotwithstanding any other enactment of the 78th Legislature, Regular Session, 2003, that modifies Section 41.001(a), Election Code, including SECTION 14, HB 1549, the uniform election date remains on the first Saturday in May, as provided by SECTION 16 of this Act.

(c)iiSection 2.056(b), Election Code, as added by SECTION 1, HB 1344, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:

(b)iiThis section applies to a general or special election for an office of a political subdivision other than a county.

(d)iiNotwithstanding any other enactment of the 78th Legislature, Regular Session, 2003, including SECTION 1, HB 1476, Sections 2.051-2.053, Election Code, are repealed.

(e)iiSubsection (c) of this section takes effect on the date that HB 1344, Acts of the 78th Legislature, Regular Session, 2003, takes effect. If HB 1344 does not take effect, Subsection (c) has no effect.

(f)iiSubsection (d) of this section takes effect on the date that HB 1476, Acts of the 78th Legislature, Regular Session, 2003, takes effect. If HB 1476 does not take effect, Subsection (d) has no effect.

SECTIONi51.ii(a) This Act takes effect September 1, 2003.

(b)iiAs they relate to the holding of an election, the changes in law made by this Act apply only to an election ordered on or after September 1, 2003.

(c)iiNot later than December 31, 2003, a political subdivision that before October 1, 2003, held its general election for officers on the February or September uniform election date shall change the election date to a date authorized by Section 41.001, Election Code, as amended by this Act. An election on the new date may not be held before the uniform election date in May 2004.

HB 1695 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE HOWARD: How do the changes in this bill affect the constitutional amendment election scheduled for September 13, 2003?

5604 78th LEGISLATURE — REGULAR SESSION


REPRESENTATIVE DENNY: Mr. Howard, it does not affect this election, rather, it will affect elections called and scheduled after September 2003.

HOWARD: Does the effective date of this Act have any effect on the September 13, 2003 constitutional election?

DENNY: No, the effective date of this Act would only affect an election called or scheduled after September 1, 2003. The constitutional amendment election has already been scheduled for September 13, and the governor will call for that election before September so that our elections administrators can order the ballots and scheduling polling places and get workers...etc. Therefore, the September 13 constitutional amendment election is not affected by this Act.

REMARKS ORDERED PRINTED

Representative Howard moved to print remarks between Representative Howard and Representative Denny.

The motion prevailed without objection.

Representative Denny moved to adopt the conference committee report on HBi1695.

A record vote was requested.

The motion prevailed by (Record 899): 102 Yeas, 36 Nays, 2 Present, not voting.

Yeas — Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Capelo; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Dutton; Eissler; Elkins; Farabee; Farrar; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Krusee; Kuempel; Laney; Laubenberg; Mabry; Madden; Marchant; McCall; Mercer; Merritt; Miller; Moreno, J.; Morrison; Mowery; Nixon; Paxton; Phillips; Pickett; Pitts; Puente; Quintanilla; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Uresti; Van Arsdale; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Eiland; Ellis; Flores; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Homer; Lewis; Luna; Martinez Fischer; McClendon; McReynolds; Menendez; Naishtat; Noriega; Olivo; Peña; Raymond; Ritter; Rodriguez; Rose; Thompson; Villarreal.

Present, not voting — Mr. Speaker; Truitt(C).

Absent — Allen; Casteel; Dunnam; Edwards; Escobar; Kolkhorst; Moreno, P.; Oliveira; Telford; Turner.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5605


STATEMENTS OF VOTE

When Record No. 899 was taken, I was in the house but away from my desk. I would have voted no.

Dunnam

When Record No. 899 was taken, my vote failed to register. I would have voted no.

Edwards

I was shown voting no on Record No. 899. I intended to vote yes.

Flores

(Christian in the chair)

HJR 68 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hupp submitted the following conference committee report on HJR 68 :

Austin, Texas, May 30, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HJRi68 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Bivins Heflin
Ellis, Rodney Corte
Estes Pitts
Fraser Hupp
On the part of the senate On the part of the house

HJR 68, A joint resolution proposing a constitutional amendment authorizing the Veterans' Land Board to make certain payments on revenue bonds and to use assets in certain funds to provide for veterans homes and a constitutional amendment relating to the use of income and appreciation of the permanent school fund.

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

SECTIONi1.iiSubsections (r) and (s), Section 49-b, Article III, Texas Constitution, are amended to read as follows:

(r)iiReceipts of all kinds of the Veterans' Land Fund, the Veterans' Housing Assistance Fund, or the Veterans' Housing Assistance Fund II that the Board determines are not required for the payment of principal of and interest on the general obligation bonds benefiting those funds, including payments by the

5606 78th LEGISLATURE — REGULAR SESSION


Board under a bond enhancement agreement with respect to principal of or interest on the bonds, may be used by the Board, to the extent not inconsistent with the proceedings authorizing the bonds to:

(1)iimake temporary transfers to another of those funds to avoid a temporary cash deficiency in that fund or make a transfer to another of those funds for the purposes of that fund;

(2)iipay the principal of and interest on general obligation bonds issued to provide money for another of those funds or make bond enhancement payments with respect to the bonds; or

(3)iipay the principal of and interest on revenue bonds of the Board or make bond enhancement payments with respect to the bonds [if the bonds are issued to provide funds to purchase lands and sell lands to veterans or make home mortgage loans to veterans].

(s)iiIf the Board determines that assets from the Veterans' Land Fund, the Veterans' Housing Assistance Fund, or the Veterans' Housing Assistance Fund II are not required for the purposes of the fund, the Board may:

(1)iitransfer the assets to another of those funds;

(2)iiuse the assets to secure revenue bonds issued by the Board; [or]

(3)iiuse the assets to plan and design, operate, maintain, enlarge, or improve veterans cemeteries; or

(4)iiuse the assets to plan and design, construct, acquire, own, operate, maintain, enlarge, improve, furnish, or equip veterans homes.

SECTIONi2.iiSection 5, Article VII, Texas Constitution, is amended to read as follows:

Sec.i5.ii(a)iiThe permanent school fund consists of all land appropriated for public schools by this constitution or the other laws of this state, other properties belonging to the permanent school fund, and all revenue derived from the land or other properties. The available school fund consists of the distributions made to it from the total return on all investment assets of [principal of all bonds and other funds, and the principal arising from the sale of the lands hereinbefore set apart to said school fund, shall be] the permanent school fund, [and all the interest derivable therefrom and] the taxes [herein] authorized by this constitution or general law to be part of [and levied shall be] the available school fund, and appropriations made to the available school fund by the legislature. The total amount distributed from the permanent school fund to the available school fund:

(1)iiin each year of a state fiscal biennium must be an amount that is not more than six percent of the average of the market value of the permanent school fund, excluding real property belonging to the fund that is managed, sold, or acquired under Section 4 of this article, on the last day of each of the 16 state fiscal quarters preceding the regular session of the legislature that begins before that state fiscal biennium, in accordance with the rate adopted by:

(A)iia vote of two-thirds of the total membership of the State Board of Education, taken before the regular session of the legislature convenes; or

(B)iithe legislature by general law or appropriation, if the State Board of Education does not adopt a rate as provided by Paragraph (A) of this subdivision; and

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5607


(2)iiover the 10-year period consisting of the current state fiscal year and the nine preceding state fiscal years may not exceed the total return on all investment assets of the permanent school fund over the same 10-year period.

(b)iiThe expenses of managing permanent school fund land and investments shall be paid by appropriation from the permanent school fund.

(c)iiThe available school fund shall be applied annually to the support of the public free schools. Except as provided by this section, the legislature may not enact a [no] law [shall ever be enacted] appropriating any part of the permanent school fund or available school fund to any other purpose. The permanent school fund and the available school fund may not [whatever; nor shall the same, or any part thereof ever] be appropriated to or used for the support of any sectarian school. The[; and the] available school fund [herein provided] shall be distributed to the several counties according to their scholastic population and applied in the [such] manner [as may be] provided by law.

(d)i[(b)]iiThe legislature by law may provide for using the permanent school fund [and the income from the permanent school fund] to guarantee bonds issued by school districts or by the state for the purpose of making loans to or purchasing the bonds of school districts for the purpose of acquisition, construction, or improvement of instructional facilities including all furnishings thereto. If any payment is required to be made by the permanent school fund as a result of its guarantee of bonds issued by the state, an amount equal to this payment shall be immediately paid by the state from the treasury to the permanent school fund. An amount owed by the state to the permanent school fund under this section shall be a general obligation of the state until paid. The amount of bonds authorized hereunder shall not exceed $750 million or a higher amount authorized by a two-thirds record vote of both houses of the legislature. If the proceeds of bonds issued by the state are used to provide a loan to a school district and the district becomes delinquent on the loan payments, the amount of the delinquent payments shall be offset against state aid to which the district is otherwise entitled.

(e)i[(c)]iiThe legislature may appropriate part of the available school fund for administration of [the permanent school fund or of] a bond guarantee program established under this section.

(f)i[(d)]iiNotwithstanding any other provision of this constitution, in managing the assets of the permanent school fund, the State Board of Education may acquire, exchange, sell, supervise, manage, or retain, through procedures and subject to restrictions it establishes and in amounts it considers appropriate, any kind of investment, including investments in the Texas growth fund created by Article XVI, Section 70, of this constitution, that persons of ordinary prudence, discretion, and intelligence, exercising the judgment and care under the circumstances then prevailing, acquire or retain for their own account in the management of their affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

5608 78th LEGISLATURE — REGULAR SESSION


(g)iiNotwithstanding Subsection (a) of this section, the total amount distributed from the permanent school fund to the available school fund for the state fiscal years beginning September 1, 2003, and September 1, 2004, must be an amount equal to 4.5 percent of the average of the market value of the permanent school fund, excluding real property belonging to the fund that is managed, sold, or acquired under Section 4 of this article, on the last day of each of the 16 state fiscal quarters preceding the regular session of the 78th Legislature.

(h)iiSubsection (g) of this section and this subsection expire December 1, 2006.

SECTIONi3.iiThe constitutional amendment proposed by SECTION 1 of this resolution shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment authorizing the Veterans' Land Board to use assets in certain veterans' land and veterans' housing assistance funds to provide veterans homes for the aged or infirm and to make principal, interest, and bond enhancement payments on revenue bonds."

SECTIONi4.iiThe constitutional amendment proposed by SECTION 2 of this resolution shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment relating to the use of income and appreciation of the permanent school fund."

Representative Hupp moved to adopt the conference committee report on HJRi68.

A record vote was requested.

The motion prevailed by (Record 900): 142 Yeas, 0 Nays, 3 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Casteel; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5609


Present, not voting — Mr. Speaker; Christian(C); Wilson.

Absent — Burnam; Castro; Chavez; Dunnam; Wise.

STATEMENT OF VOTE

When Record No. 900 was taken, I was in the house but away from my desk. I would have voted yes.

Dunnam

SBi16 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Woolley submitted the conference committee report on SBi16.

Representative Woolley moved to adopt the conference committee report on SBi16.

The motion prevailed.

SBi103 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Alonzo submitted the conference committee report on SBi103.

Representative Alonzo moved to adopt the conference committee report on SBi103.

A record vote was requested.

The motion prevailed by (Record 901): 141 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Christian(C).

Absent — Crabb; Crownover; Escobar; Heflin; Hill; Moreno, P.; Wolens.

5610 78th LEGISLATURE — REGULAR SESSION


SBi1010 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Giddings submitted the conference committee report on SBi1010.

Representative Giddings moved to adopt the conference committee report on SBi1010.

The motion prevailed.

SJR 30 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Callegari submitted the conference committee report on SJRi30.

Representative Callegari moved to adopt the conference committee report on SJRi30.

A record vote was requested.

The motion prevailed by (Record 902): 141 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian(C); Coleman; Cook, B.; Cook, R.; Corte; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker.

Absent — Crabb; Farabee; Farrar; Heflin; Hill; Keffer, J.; Quintanilla; Thompson.

HB 2588 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Goodman submitted the following conference committee report on HB 2588 :

Austin, Texas, May 30, 2003

The Honorable David Dewhurst

President of the Senate

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5611


The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2588 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Harris Goodman
Madla Morrison
Lucio Reyna
Brimer Baxter
On the part of the senate On the part of the house

HB 2588, A bill to be entitled An Act relating to certain fees and costs that may be collected and to certain attorney's fees and costs that may be imposed in relation to certain child support matters.

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

SECTIONi1.iiSection 157.167, Family Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:

(b)iiExcept as provided by Subsection (d), for [For] good cause shown, the court may waive the requirement that the respondent pay attorney's fees and costs if the court states the reasons supporting that finding.

(d)iiIf the court finds that the respondent is in contempt of court for failure or refusal to pay child support and that the respondent owes $20,000 or more in child support arrearages, the court may not waive the requirement that the respondent pay attorney's fees and costs unless the court also finds that the respondent:

(1)iiis involuntarily unemployed or is disabled; and

(2)iilacks the financial resources to pay the attorney's fees and costs.

SECTIONi2.iiThe heading to Section 231.103, Family Code, is amended to read as follows:

Sec.i231.103.iiAPPLICATION AND SERVICE FEES [FEE].

SECTIONi3.iiSection 231.103, Family Code, is amended by amending Subsection (a) and adding Subsections (d)-(h) to read as follows:

(a)iiThe Title IV-D agency may:

(1)iicharge a reasonable application fee;

(2)iicharge a $25 annual service fee; and

(3)iito the extent permitted by federal law, recover costs for the services provided in a Title IV-D case.

(d)iiThe Title IV-D agency may only charge an annual service fee in a Title IV-D case if the recipient of Title IV-D services has never received public assistance under Part A of Title IV of the federal Social Security Act (42 U.S.C. Section 601 et seq.) and the recipient receives more than $500 in support payments in a year. The annual service fee may only be deducted from support payments that exceed $500 annually.

(e)iiThe Title IV-D agency may impose and collect a fee as authorized by federal law for each request for parent locator services under Section 231.101(a).

5612 78th LEGISLATURE — REGULAR SESSION


(f)iiThe state disbursement unit established and operated by the Title IV-D agency under Chapter 234 may collect a monthly service fee of $3 deducted from support payments in a case for which the Title IV-D agency is not providing services.

(g)iiThe Title IV-D agency by rule shall establish procedures for the imposition of fees and recovery of costs authorized under this section.

(h)iiThe attorney general child support application and service fee account is an account in the general revenue fund in the state treasury. The account consists of all fees and costs collected under this section. The Title IV-D agency may only use the money in the account for agency program expenditures.

SECTIONi4.iiSection 234.008, Family Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiExcept as provided by Subsection (c), not [Not] later than the second business day after the date the state disbursement unit receives a child support payment, the state disbursement unit shall distribute the payment to the Title IV-D agency or the obligee.

(c)iiIn a case in which a service fee is authorized under Section 231.103(d), the state disbursement unit shall deduct the amount of the fee from the support payment before the payment is disbursed to the obligee.

SECTIONi5.ii(a) This Act takes effect September 1, 2003.

(b)iiThe Title IV-D agency may not collect the $25 annual service fee authorized by Section 231.103, Family Code, as amended by this Act, before January 1, 2004.

(c)iiThe change in law made by this Act does not by itself constitute a material and substantial change of circumstances under Section 156.401, Family Code, sufficient to warrant modification of a court order or a portion of a decree that provides for the support of a child rendered before the effective date of this Act.

Representative Goodman moved to adopt the conference committee report on HBi2588.

The motion prevailed.

SBi280 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Solomons submitted the conference committee report on SBi280.

Representative Solomons moved to adopt the conference committee report on SBi280.

A record vote was requested.

The motion prevailed by (Record 903): 145 Yeas, 1 Nay, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian(C); Coleman; Cook, B.; Cook, R.; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5613


Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Nays — Hodge.

Present, not voting — Mr. Speaker.

Absent — Brown, B.; Corte; Talton.

SBi473 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Giddings submitted the conference committee report on SBi473.

Representative Giddings moved to adopt the conference committee report on SBi473.

The motion prevailed.

HR 1855 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1855, suspending the limitations on the conferees for SBi1320.

SBi361 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hill submitted the conference committee report on SBi361.

Representative Hill moved to adopt the conference committee report on SBi361.

A record vote was requested.

The motion prevailed by (Record 904): 146 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle;

5614 78th LEGISLATURE — REGULAR SESSION


Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Christian(C).

Absent — Dunnam; Wise.

STATEMENT OF VOTE

When Record No. 904 was taken, I was in the house but away from my desk. I would have voted yes.

Dunnam

SBi1182 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Farabee submitted the conference committee report on SBi1182.

Representative Farabee moved to adopt the conference committee report on SBi1182.

A record vote was requested.

The motion prevailed by (Record 905): 146 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian(C); Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Seaman; Smith, T.;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5615


Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker.

Absent — Jones, E.; Madden; Rose.

SBi160 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Capelo submitted the conference committee report on SBi160.

Representative Capelo moved to adopt the conference committee report on SBi160.

The motion prevailed.

HR 1858 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1858, suspending the limitations on the conferees for HBi2455.

SBi826 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Keel submitted the conference committee report on SBi826.

Representative Keel moved to adopt the conference committee report on SBi826.

The motion prevailed.

SBi1000 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Goodman submitted the conference committee report on SBi1000.

Representative Goodman moved to adopt the conference committee report on SBi1000.

A record vote was requested.

The motion prevailed by (Record 906): 143 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian(C); Coleman; Cook, B.; Cook, R.; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer;

5616 78th LEGISLATURE — REGULAR SESSION


Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker.

Absent — Baxter; Corte; Jones, E.; Mabry; Madden; Moreno, J.

SBi1413 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hardcastle submitted the conference committee report on SBi1413.

(Puente in the chair)

Representative Hardcastle moved to adopt the conference committee report on SBi1413.

A record vote was requested.

The motion prevailed by (Record 907): 144 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Puente(C).

Absent — Dawson; Howard; Jones, E.; Madden.

STATEMENT OF VOTE

When Record No. 907 was taken, I was in the house but away from my desk. I would have voted yes.

Madden

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5617


SBi1771 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative J. Keffer submitted the conference committee report on SBi1771.

SBi1771 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE SOLIS: On SBi1771 you just announced two amendments that were taken away. But the Section C of the bill––regarding the use of the funds for economic development, infrastructure development, community development, job training programs, and business incentives––that was kept intact. Is that correct?

REPRESENTATIVE J. KEFFER: Yes. Yes it was.

SOLIS: The bill itself––and you recall we've had this debate on the house floor before in reference to some of these funds and the commitment made by the governor, and we've talked about the state of the state in reference to some of the border health science institutes.

J. KEFFER: Yes. I do remember that. And we've had several. As a matter of fact, several months ago when we were debating on the floor, you and Representative Oliveira got up and talked about the use of these funds along the border.

SOLIS: And what we're doing with this bill––this is the mechanism which the governor had discussed––I know on the state of the state, but also with myself and Representative Oliveira and other members of the house––as to what the intent is for some of these funds, specifically the border health institute, including the regional academic health center. And also, there were some funds that were discussed, and I'm not sure if you're aware of this or not, some of the commitments made by the governor as to how these funds would be dispersed––some of the figures we've discussed. And I'm not sure if you're aware of this or not––so it's in the form of a question, to try to establish intent on this bill––of the funds discussed for the regional academic health center was something like $19.6 million. There was an Anbrooke Campus, part of the border initiative, was $5 million, $2 million for Laredo, and $10 million for El Paso. But I want to thank you and the committee for working with myself and several members of the border, including Representative Escobar, who is trying to get some funds for the Rangel School of Pharmacy and is still in the process of working with the governor's office on that. I just want to make sure we're on the same page, and I believe we are, on what the governor committed early on in the session.

J. KEFFER: Of course, not being able to speak for the governor, but I think this bill and subsequent bills on economic development were written so broadly to be able to take in these worthwhile projects that you're talking about, and certainly we want to make every recommendation so the governor looks seriously upon these projects.

5618 78th LEGISLATURE — REGULAR SESSION


SOLIS: And I appreciate that Chairman Keffer, and that is why I pointed out Section C of the bill. Because I believe the way it was drafted at that point would show support for the commitments made by the governor on the health science institutions, including the Rangel School of Pharmacy.

REMARKS ORDERED PRINTED

Representative Raymond moved to print remarks between Representative J.iKeffer and Representative Solis.

The motion prevailed without objection.

Representative J. Keffer moved to adopt the conference committee report on SBi1771.

The motion prevailed.

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, House List Nos. 57 and 58).

HB 1204 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Baxter submitted the following conference committee report on HB 1204 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1204 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Wentworth Baxter
Brimer Howard
Madla Mowery
Ellis, Rodney Haggerty
Wohlgemuth
On the part of the senate On the part of the house

HB 1204, A bill to be entitled An Act relating to the authority of municipalities and counties to regulate subdivisions and certain development in a municipality's extraterritorial jurisdiction and in the unincorporated area of a county.

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

SECTIONi1.iiThe heading of Section 242.001, Local Government Code, is amended to read as follows:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5619


Sec.i242.001.iiREGULATION OF SUBDIVISIONS IN EXTRATERRITORIAL JURISDICTION GENERALLY.

SECTIONi2.ii(a) Section 242.001(a), Local Government Code, as amended by Chapters 736 and 1028, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:

(a)iiThis section applies only to a county operating under Sections 232.001-232.005 or Subchapter B, C, or E, Chapter 232, and a municipality that has extraterritorial jurisdiction in that county. Subsections (b)-(g) [(b)-(e)] do not apply:

(1)iiwithin a county that contains extraterritorial jurisdiction of a municipality with a population of 1.9 million or more; or

(2)iiwithin a county within 50 miles of an international border, or to which Subchapter C, Chapter 232, applies.

(b)iiThis section takes effect only if HB 1197, Acts of the 78th Legislature, Regular Session, 2003, does not become law. If that bill becomes law, this section has no effect.

SECTIONi3.ii(a) Section 242.001(a), Local Government Code, as amended by Chapters 736 and 1028, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:

(a)iiThis section applies only to a county operating under Sections 232.001-232.005 or Subchapter B, C, or E, Chapter 232, and a municipality that has extraterritorial jurisdiction in that county. Subsections (b)-(g) [(b)-(e)] do not apply:

(1)iiwithin a county that contains extraterritorial jurisdiction of a municipality with a population of 1.9 million or more; [or]

(2)iiwithin a county within 50 miles of an international border, or to which Subchapter C, Chapter 232, applies; or

(3)iito a tract of land subject to a development agreement under Subchapter G, Chapter 212, or other provisions of this code.

(b)iiThis section takes effect only if HB 1197, Acts of the 78th Legislature, Regular Session, 2003, becomes law. If that bill does not become law, this section has no effect.

SECTIONi4.iiSection 242.001, Local Government Code, is amended by reenacting and amending Subsection (c), as amended by Chapters 736 and 1028, Acts of the 77th Legislature, Regular Session, 2001, and by amending Subsections (d), (f), and (g) and adding Subsections (h) and (i) to read as follows:

(c)iiExcept as provided by Subsections (d)(3) and (4), a municipality and a county may not both regulate subdivisions and approve related permits in the extraterritorial jurisdiction of a municipality after an agreement under Subsection (d) is executed. The municipality and the county shall enter into a written agreement that identifies the governmental entity authorized to regulate subdivision plats and approve related permits in the extraterritorial jurisdiction. For a municipality in existence on September 1, 2001, the municipality and county shall enter into a written agreement under this subsection on or before April 1, 2002. For a municipality incorporated after September 1, 2001, the municipality and county shall enter into a written agreement under this subsection

5620 78th LEGISLATURE — REGULAR SESSION


not later than the 120th day after the date the municipality incorporates. On reaching an agreement, the municipality and county shall certify that the agreement complies with the requirements of this chapter. The municipality and the county shall adopt the agreement by order, ordinance, or resolution. The agreement must be amended by the municipality and the county if necessary to take into account an expansion or reduction in the extraterritorial jurisdiction of the municipality. The municipality shall notify the county of any expansion or reduction in the municipality's extraterritorial jurisdiction. Any expansion or reduction in the municipality's extraterritorial jurisdiction that affects property that is subject to a preliminary or final plat, a plat application, or an application for a related permit filed with the municipality or the county or that was previously approved under Section 212.009 or Chapter 232 does not affect any rights accrued under Chapter 245. The approval of the plat, [or] any permit, a plat application, or an application for a related permit remains effective as provided by Chapter 245 regardless of the change in designation as extraterritorial jurisdiction of the municipality.

(d)iiAn agreement under Subsection (c) may grant the authority to regulate subdivision plats and approve related permits in the extraterritorial jurisdiction of a municipality as follows:

(1)iithe municipality may be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in the extraterritorial jurisdiction and may regulate subdivisions under Subchapter A of Chapter 212 and other statutes applicable to municipalities;

(2)iithe county may be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in the extraterritorial jurisdiction and may regulate subdivisions under Sections 232.001-232.005, Subchapter B or C, Chapter 232, and other statutes applicable to counties;

(3)iithe municipality and the county may apportion the area within the extraterritorial jurisdiction of the municipality with the municipality regulating subdivision plats and approving related permits in the area assigned to the municipality and the county regulating subdivision plats and approving related permits in the area assigned to the county; or

(4)iithe municipality and the county may enter into an interlocal agreement that:

(A)iiestablishes one office that is authorized to:

(i)iiaccept plat applications for tracts of land located in the extraterritorial jurisdiction;

(ii)iicollect municipal and county plat application fees in a lump-sum amount; and

(iii) provide applicants one response indicating approval or denial of the plat application; and

(B)iiestablishes a single set of consolidated and consistent [set of] regulations related to plats, subdivision construction plans, and subdivisions of land as authorized by Chapter 212, Sections 232.001-232.005, Subchapters B and C, Chapter 232, and other statutes applicable to municipalities and counties that will be enforced in the extraterritorial jurisdiction.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5621


(f)iiIf a certified agreement between a county and municipality as required by Subsection (c) is not in effect on or before the applicable date prescribed by Section 242.0015(a), the municipality and the county must enter into arbitration as provided by Section 242.0015. If the arbitrator or arbitration panel, as applicable, has not reached a decision in the 60-day period as provided by Section 242.0015, the arbitrator or arbitration panel, as applicable, shall issue an interim decision regarding the regulation of plats and subdivisions and approval of related permits in the extraterritorial jurisdiction of the municipality. The interim decision shall provide for a single set of regulations and authorize a single entity to regulate plats and subdivisions. The interim decision remains in effect only until the arbitrator or arbitration panel reaches a final decision. [This subsection applies until an agreement is reached under Subsection (d). For an area in a municipality's extraterritorial jurisdiction, as defined by Section 212.001, a plat may not be filed with the county clerk without the approval of both the municipality and the county. If a municipal regulation and a county regulation relating to plats and subdivisions of land conflict, the more stringent regulation prevails. However, if one governmental entity requires a plat to be filed for the subdivision of a particular tract of land in the extraterritorial jurisdiction of the municipality and the other governmental entity does not require the filing of a plat for that subdivision, the authority responsible for approving plats for the governmental entity that does not require the filing shall issue on request of the subdivider a written certification stating that a plat is not required to be filed for that subdivision of the land. The certification must be attached to a plat required to be filed under this subsection.]

(g)iiIf a regulation or agreement adopted under this section relating to plats and subdivisions of land or subdivision development establishes a plan for future roads that conflicts with a proposal or plan for future roads adopted by a metropolitan planning organization, the proposal or plan of the metropolitan planning organization prevails [Subsection (f) applies to a county and area to which Subsections (b)-(e) do not apply].

(h)iiThis subsection applies only to a county to which Subsections (b)-(g) do not apply, except that this subsection does not apply to a county subject to Section 242.002. For an area in a municipality's extraterritorial jurisdiction, as defined by Section 212.001, a plat may not be filed with the county clerk without the approval of both the municipality and the county. If a municipal regulation and a county regulation relating to plats and subdivisions of land conflict, the more stringent regulation prevails. However, if one governmental entity requires a plat to be filed for the subdivision of a particular tract of land in the extraterritorial jurisdiction of the municipality and the other governmental entity does not require the filing of a plat for that subdivision, the authority responsible for approving plats for the governmental entity that does not require the filing shall issue on request of the subdivider a written certification stating that a plat is not required to be filed for that subdivision of the land. The certification must be attached to a plat required to be filed under this subsection.

5622 78th LEGISLATURE — REGULAR SESSION


(i)iiProperty subject to pending approval of a preliminary or final plat application filed after September 1, 2002, that is released from the extraterritorial jurisdiction of a municipality shall be subject only to county approval of the plat application and related permits and county regulation of that plat. This subsection does not apply to the simultaneous exchange of extraterritorial jurisdiction between two or more municipalities or an exchange of extraterritorial jurisdiction that is contingent on the subsequent approval by the releasing municipality.

SECTIONi5.iiChapter 242, Local Government Code, is amended by adding Section 242.0015 to read as follows:

Sec.i242.0015.iiARBITRATION REGARDING SUBDIVISION REGULATION AGREEMENT. (a) This section applies only to a county and a municipality that are required to make an agreement as described under Section 242.001(f). If a certified agreement between a county and a municipality with an extraterritorial jurisdiction that extends 3.5 miles or more from the corporate boundaries of the municipality is not in effect on or before January 1, 2004, the parties must arbitrate the disputed issues. If a certified agreement between a county and a municipality with an extraterritorial jurisdiction that extends less than 3.5 miles from the corporate boundaries of the municipality is not in effect on or before January 1, 2006, the parties must arbitrate the disputed issues. A party may not refuse to participate in arbitration requested under this section. An arbitration decision under this section is binding on the parties.

(b)iiThe county and the municipality must agree on an individual to serve as arbitrator. If the county and the municipality cannot agree on an individual to serve as arbitrator, the county and the municipality shall each select an arbitrator and the arbitrators selected shall select a third arbitrator.

(c)iiThe third arbitrator selected under Subsection (b) presides over the arbitration panel.

(d)iiNot later than the 30th day after the date the county and the municipality are required to have an agreement in effect under Section 242.001(f), the arbitrator or arbitration panel, as applicable, must be selected.

(e)iiThe authority of the arbitrator or arbitration panel is limited to issuing a decision relating only to the disputed issues between the county and the municipality regarding the authority of the county or municipality to regulate plats, subdivisions, or development plans.

(f)iiEach party is equally liable for the costs of an arbitration conducted under this section.

(g)iiThe arbitrator or arbitration panel, as applicable, shall render a decision under this section not later than the 60th day after the date the arbitrator or arbitration panel is selected. If after a good faith effort the arbitrator or panel has not reached a decision as provided under this subsection, the arbitrator or panel shall continue to arbitrate the matter until the arbitrator or panel reaches a decision.

(h)iiA municipality and a county may not arbitrate the subdivision of an individual plat under this section.

SECTIONi6.iiSubchapter A, Chapter 212, Local Government Code, is amended by adding Section 212.0025 to read as follows:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5623


Sec.i212.0025.iiCHAPTER-WIDE PROVISION RELATING TO REGULATION OF PLATS AND SUBDIVISIONS IN EXTRATERRITORIAL JURISDICTION. The authority of a municipality under this chapter relating to the regulation of plats or subdivisions in the municipality's extraterritorial jurisdiction is subject to any applicable limitation prescribed by an agreement under Section 242.001.

SECTIONi7.iiSubchapter A, Chapter 232, Local Government Code, is amended by adding Section 232.0013 to read as follows:

Sec.i232.0013.iiCHAPTER-WIDE PROVISION RELATING TO REGULATION OF PLATS AND SUBDIVISIONS IN EXTRATERRITORIAL JURISDICTION. The authority of a county under this chapter relating to the regulation of plats or subdivisions in the extraterritorial jurisdiction of a municipality is subject to any applicable limitation prescribed by an agreement under Section 242.001 or by Section 242.002.

SECTIONi8.iiSection 232.0015(b), Local Government Code, is amended to read as follows:

(b)iiExcept as provided by Section 232.0013, this [This] subchapter does not apply to a subdivision of land to which Subchapter B applies.

SECTIONi9.iiSection 232.009(b), Local Government Code, is amended to read as follows:

(b)iiA person who owns real property in a tract that has been [has] subdivided and [land] that is subject to the subdivision controls of the county in which the property [land] is located may apply in writing to the commissioners court of the county for permission to revise the subdivision plat that applies to the property and that is filed for record with the county clerk.

SECTIONi10.iiSubchapter A, Chapter 232, Local Government Code, is amended by adding Section 232.0095 to read as follows:

Sec.i232.0095.iiALTERNATIVE PROCEDURES FOR PLAT REVISION. (a) This section applies only to real property located outside municipalities and outside the extraterritorial jurisdiction, as determined under Chapter 42, of municipalities with a population of 1.5 million or more.

(b)iiAs an alternative to the provisions in Section 232.009 governing the revision of plats, a county by order may adopt the provisions in Sections 212.013, 212.014, 212.015, and 212.016 governing plat vacations, replatting, and plat amendment within a municipality's jurisdiction. A county that adopts the provisions in those sections may approve a plat vacation, a replat, and an amending plat in the same manner and under the same conditions, including the notice and hearing requirements, as a municipal authority responsible for approving plats under those sections.

SECTIONi11.iiSection 232.100, Local Government Code, is amended to read as follows:

Sec.i232.100.iiAPPLICABILITY. This subchapter applies only to the subdivision of the land that is:

(1)iisubject to county regulations under Subchapter A or B; and

(2)iiin a county that:

5624 78th LEGISLATURE — REGULAR SESSION


(A)iihas a population of 150,000 or more and is adjacent to an international border;

(B)iihas a population of 700,000 or more; [or]

(C)iiis adjacent to a county with a population of 700,000 or more and is within the same metropolitan statistical area as that adjacent county, as designated by the United States Office of Management and Budget; or

(D)iiis adjacent to a county with a population of 700,000 or more, is not within the same metropolitan statistical area as that adjacent county, and has a population that has increased after the 1990 decennial census, from one decennial census to the next, by more than 40 percent.

SECTIONi12.iiIf any provision of this Act or its application to any county, municipality, or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

SECTIONi13.iiExcept as provided by Section 242.001(i), Local Government Code, as added by this Act, the changes in law made by this Act to Chapters 212, 232, and 242, Local Government Code, apply only to a development agreement or subdivision plat that is filed on or after the effective date of this Act, and to the subdivision covered by the plat. A development agreement or subdivision plat that is filed before the effective date of this Act, and the subdivision covered by the plat, are governed by the law in effect immediately preceding that date, and the former law is continued in effect for that purpose.

SECTIONi14.iiThis Act takes effect immediately 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, 2003.

Representative Baxter moved to adopt the conference committee report on HBi1204.

A record vote was requested.

The motion prevailed by (Record 908): 147 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5625


Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente(C); Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker.

Absent — Crabb; Goodman.

SBi279 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Solomons submitted the conference committee report on SBi279.

Representative Solomons moved to adopt the conference committee report on SBi279.

The motion prevailed.

(Escobar in the chair)

SBi929 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Grusendorf submitted the conference committee report on SBi929.

SBi929 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE CHISUM: Mr. Grusendorf, I noticed in a resolution that I'm going to be bringing up later, a privileged resolution, that we have a conflict of the dates on the reviews and, I believe in my review, it's going to say March 1, 2004. What does yours say?

REPRESENTATIVE GRUSENDORF: June 1, 2004.

CHISUM: Mr. Grusendorf, would it be in your understanding that––since the sunset is in a very critical schedule to meet the requirements of the next legislative session––that my resolution would trump yours? So that the requirement of the comptroller's office to submit their review to the Sunset Commission would in fact be March 1, 2004?

GRUSENDORF: This is a question you and I talked about 30 seconds before we came to the microphone.

CHISUM: And now we're here.

GRUSENDORF: And now we're here, Mr. Chisum. I'm not sure. Since the sunset is not doing the comprehensive review, I would think that they might be able to get the report from the comptroller later than they normally would if they were doing the review themselves. I don't know of the answer and you're probably more familiar with the sunset process than I am.

CHISUM: And that probably is––I'm sure the comptroller's office and the Sunset Commission can work these differences out, and I think they'll get it done in a timely manner, but whatever works in order to do this limited review of the

5626 78th LEGISLATURE — REGULAR SESSION


service centers. We would just hope the comptroller would at least try to adjust her schedule to meet with the sunset so we don't have a delay in reporting back to the legislature under TEA, which is the review that is going to be taking place during this interim.

GRUSENDORF: I agree, and I feel confident that they will work together to make sure the pieces come together. But my main concern––and I want to give my word again––I want to stress that my main concern is to the service center people––is that we only have one review.

CHISUM: And I think that's the biggest issue here––that we have no intent of doing two reviews. And the comptroller is getting the money to do this with––I believe in your bill, $750,000––and we would hope that they could make that review happen in such a manner that they could meet the requirements so the sunset could do their business for the legislature prior to us coming back in.

REMARKS ORDERED PRINTED

Representative Chisum moved to print remarks between Representative Chisum and Representative Grusendorf.

The motion prevailed without objection.

Representative Grusendorf moved to adopt the conference committee report on SBi929.

The motion prevailed.

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, Senate List No. 42).

(Kolkhorst in the chair)

HB 329 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Naishtat submitted the following conference committee report on HB 329 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi329 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5627


Fraser Naishtat
Shapleigh Ritter
Brimer Seaman
Madden
On the part of the senate On the part of the house

HB 329, A bill to be entitled An Act relating to the regulation of mold assessors and remediators, civil liability for mold remediation, and insurance coverage on mold claims; providing civil and administrative penalties.

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

SECTIONi1.iiSubtitle B, Title 12, Occupations Code, is amended by adding Chapter 1958 to read as follows:

CHAPTER 1958. MOLD ASSESSORS AND REMEDIATORS

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i1958.001.iiDEFINITIONS. In this chapter:

(1)ii"Board" means the Texas Board of Health.

(2)ii"Commissioner" means the commissioner of public health.

(3)ii"Department" means the Texas Department of Health.

(4)ii"License" means a license issued under this chapter.

(5)ii"Mold" means any living or dead fungi or related products or parts, including spores, hyphae, and mycotoxins.

(6)ii"Mold assessment" means:

(A)iian inspection, investigation, or survey of a dwelling or other structure to provide the owner or occupant with information regarding the presence, identification, or evaluation of mold;

(B)iithe development of a mold management plan or remediation protocol; or

(C)iithe collection or analysis of a mold sample.

(7)ii"Mold remediation" means the removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mold or mold-contaminated matter that was not purposely grown at that location.

Sec.i1958.002.iiSCOPE OF AUTHORITY. (a) This chapter applies only to the regulation of mold-related activities that affect indoor air quality, including a mold-related activity performed by a third party for compensation at a property owned or operated by a governmental entity.

(b)iiThis chapter does not apply to:

(1)iithe following activities when not conducted for the purpose of mold assessment or mold remediation:

(A)iiroutine cleaning;

(B)iithe diagnosis, repair, cleaning, or replacement of plumbing, heating, ventilation, air conditioning, electrical, or air duct systems or appliances;

(C)iicommercial or residential real estate inspections; and

(D)iithe incidental discovery or emergency containment of potential mold contamination during the conduct or performance of services listed in this subsection;

(2)iithe repair, replacement, or cleaning of construction materials during the building phase of the construction of a structure;

5628 78th LEGISLATURE — REGULAR SESSION


(3)iithe standard performance of custodial activities for, preventive maintenance of, and the routine assessment of property owned or operated by a governmental entity; or

(4)iia pest control inspection conducted by a person regulated under Chapter 1951.

[Sections 1958.003-1958.050 reserved for expansion]

SUBCHAPTER B. POWERS AND DUTIES

Sec.i1958.051.iiGENERAL POWERS AND DUTIES OF DEPARTMENT; SCOPE OF AUTHORITY. The department shall administer this chapter to protect the public from the adverse health effects of mold.

Sec.i1958.052.iiPUBLIC EDUCATION PROGRAM. (a) The department shall conduct a statewide education and outreach program regarding the importance of, and ways to improve, air quality in buildings, including the importance of, and the ways to recognize, prevent, control, and mitigate, mold occurrence and other indoor air quality factors that adversely affect human health.

(b)iiThe program may include:

(1)iithe development and distribution of information to the public concerning indoor air quality and mold;

(2)iieducational programs;

(3)iiinformational or educational exhibits; and

(4)iiany other methods of education or communication that the department considers appropriate.

(c)iiThe department may contract with governmental entities or other persons to provide the program.

Sec.i1958.053.iiGENERAL RULEMAKING AUTHORITY. The board shall adopt substantive and procedural rules as necessary or desirable for the board, department, and commissioner to discharge their powers and duties under this chapter.

Sec.i1958.054.iiRULES REGARDING PERFORMANCE STANDARDS AND WORK PRACTICES. The board by rule shall establish minimum performance standards and work practices for conducting a mold assessment or mold remediation in this state.

Sec.i1958.055.iiFEES. (a) The board shall establish reasonable and necessary fees to administer this chapter, including fees for licenses, registrations, and examinations. The board shall set the fees in an amount sufficient to recover the costs of administering this chapter, not to exceed the caps established under Subsection (b).

(b)iiA fee set under this section may not exceed:

(1)ii$400 for a license issued to an individual;

(2)ii$750 for a license issued to a person who is not an individual; and

(3)ii$60 for a registration issued to an employee of a license holder.

Sec.i1958.056.iiINSPECTIONS. (a) The department shall conduct inspections as necessary to ensure compliance with this chapter.

(b)iiThe board shall adopt rules regarding compliance investigations.

Sec.i1958.057.iiCOMPLAINTS. The department shall investigate any complaint regarding mold-related activities.

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Sec.i1958.058.iiSAFETY STANDARDS. The board may develop and establish mold safety standards for license holders if appropriate scientific information exists regarding the effect of mold.

Sec.i1958.059.iiCODE OF ETHICS. The board by rule shall adopt a code of ethics for license holders that promotes the education of mold assessors and mold remediators concerning the ethical, legal, and business principles that should govern their conduct.

[Sections 1958.060-1958.100 reserved for expansion]

SUBCHAPTER C. LICENSE AND REGISTRATION REQUIREMENTS

Sec.i1958.101.iiLICENSE REQUIRED; RULES. (a) A person may not engage in:

(1)iimold assessment unless the person holds a mold assessment license; or

(2)iimold remediation unless the person holds a mold remediation license.

(b)iiThe board shall adopt rules regarding:

(1)iithe scope of mold-related work for which a license is required, including the supervision of employees or other persons by license holders; and

(2)iirenewal requirements for a license issued under this chapter.

Sec.i1958.102.iiEXEMPTIONS. (a) An owner or tenant, or a managing agent or employee of an owner or tenant, is not required to be licensed under this chapter to perform mold assessment or mold remediation on property owned or leased by the owner or tenant. This exemption does not apply:

(1)iiif the managing agent or employee engages in the business of performing mold assessment or mold remediation for the public;

(2)iiif the mold remediation is performed in an area in which the mold contamination affects a total surface area of 25 contiguous square feet or more; or

(3)iito a person who is exempt under Subsection (e).

(b)iiAn employee of a license holder is not required to be licensed under this chapter to perform mold assessment or mold remediation while supervised by the license holder, as provided by rules adopted under Section 1958.101.

(c)iiA person is not required to be licensed under this chapter to perform mold remediation in an area in which the mold contamination affects a total surface area for the project of less than 25 contiguous square feet.

(d)iiA person is not required to be licensed under this chapter to perform mold assessment or mold remediation in a one-family or two-family dwelling that the person constructed or improved if the person performs the mold assessment or mold remediation at the same time the person performs the construction or improvement or at the same time the person performs repair work on the construction or improvement. This exemption does not apply if the person engages in the business of performing mold assessment or mold remediation for the public.

5630 78th LEGISLATURE — REGULAR SESSION


(e)iiAn owner, or a managing agent or employee of an owner, is not required to be licensed under this chapter to perform mold assessment or mold remediation on a residential property owned by that person with fewer than 10 dwelling units. This exemption does not apply if the managing agent or employee engages in the business of performing mold assessment or mold remediation for the public.

Sec.i1958.103.iiREGISTRATION REQUIREMENTS FOR EMPLOYEES. The board may adopt rules to require the registration of employees supervised by license holders.

Sec.i1958.104.iiRULES REGARDING LICENSE APPLICATION. The board shall adopt rules regarding a license application. The board shall adopt rules that establish minimum requirements for a license, including:

(1)iithe type of license;

(2)iithe term of the license;

(3)iithe qualifications for the license, including any previous training required under Section 1958.106;

(4)iirenewal requirements for the license, including ongoing continuing education required under Section 1958.106; and

(5)iiliability insurance requirements for the license.

Sec.i1958.105.iiEXAMINATION. The department may require that an applicant for a license pass a competency examination to qualify for the license.

Sec.i1958.106.iiTRAINING; CONTINUING EDUCATION. (a) The board shall adopt rules regarding training required under this chapter and continuing education required for a license holder under this chapter.

(b)iiThe rules may include requirements regarding training and continuing education providers, including rules establishing:

(1)iiaccreditation by the department;

(2)iicurriculum requirements; and

(3)iiqualifications.

Sec.i1958.107.iiRECIPROCITY. The board may adopt rules that facilitate reciprocity and communication with other states that have a similar licensing program.

[Sections 1958.108-1958.150 reserved for expansion]

SUBCHAPTER D. PRACTICE BY LICENSE HOLDER

Sec.i1958.151.iiSCOPE OF WORK ANALYSIS. (a) A license holder who intends to perform mold assessment on a mold remediation project shall prepare a work analysis for the project. The license holder shall provide the analysis to the client before the mold remediation begins.

(b)iiThe work analysis must specify:

(1)iithe rooms or areas where the work will be performed;

(2)iithe quantities of materials to be removed or cleaned at the project;

(3)iithe proposed methods for each type of remediation in each type of area in the project; and

(4)iithe proposed clearance criteria for each type of remediation in each type of area in the project.

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Sec.i1958.152.iiREMEDIATION WORK PLAN. (a) A license holder who intends to perform mold remediation shall prepare a work plan providing instructions for the remediation efforts to be performed for the mold remediation project. The license holder shall provide the work plan to the client before the mold remediation begins.

(b)iiThe license holder shall maintain a copy of the work plan at the job site where the remediation is being performed.

Sec.i1958.153.iiNOTICE OF PROJECT. (a) Except as provided by Subsection (b), not later than the fifth day before the date on which a license holder starts mold remediation at a property, the license holder shall notify the department in writing about the project.

(b)iiIn an emergency, notice to the department under Subsection (a) may be made verbally but must be made not later than the next business day after the license holder identifies the emergency. For purposes of this subsection, an emergency exists if a delay in mold remediation services in response to a water damage occurrence would increase mold contamination.

(c)iiThe board shall adopt rules to implement this section, including rules:

(1)iidescribing the information that must be provided in the notice; and

(2)iiauthorizing verbal notification to the department in an emergency.

Sec.i1958.154.iiCERTIFICATE OF MOLD REMEDIATION; DUTY OF PROPERTY OWNER. (a) Not later than the 10th day after the date on which a license holder completes mold remediation at a property, the license holder shall provide a certificate of mold remediation to the property owner. The certificate must include a statement by a mold assessment license holder that, based on visual, procedural, and analytical evaluation, the mold contamination identified for the project has been remediated as outlined in the mold management plan or remediation protocol. If the mold assessment license holder determines that the underlying cause of the mold has been remediated so that it is reasonably certain that the mold will not return from that remediated cause, the mold assessment license holder shall indicate on the certificate that the underlying cause of the mold has been remediated.

(b)iiIf a property owner sells property, the property owner shall provide to the buyer a copy of each certificate that has been issued for the property under this section.

(c)iiThe board shall adopt rules to implement this section, other than rules described by Subsection (d).

(d)iiThe commissioner of insurance shall adopt rules describing the information that must be provided in the certificate of mold remediation. In adopting the rules, the commissioner shall design the certificate as necessary to comply with any requirements imposed under Article 21.21-11, Insurance Code.

Sec.i1958.155.iiCONFLICT OF INTEREST; DISCLOSURE REQUIRED. (a) A license holder may not perform both mold assessment and mold remediation on the same project.

(b)iiA person may not own an interest in both the entity that performs assessment services and an entity that performs remediation services on the same project.

5632 78th LEGISLATURE — REGULAR SESSION


(c)iiA license holder who is not an individual shall disclose to the department the name, address, and occupation of each person that has an ownership interest in the license holder. The license holder shall report any changes in ownership to the department. The board shall adopt rules to implement this section, including rules regarding the form of the disclosure and the time required to make disclosures or to report a change in ownership.

Sec.i1958.156.iiRECORD REQUIREMENTS; DUTIES OF MOLD REMEDIATORS. (a) A mold remediator shall maintain a record regarding each mold remediation performed for at least three years after the date of completion of the mold remediation on a property.

(b)iiThe mold remediator shall make the record available for inspection by the department or any law enforcement entity.

(c)iiThe record must contain:

(1)iiphotographs of the scene of the mold remediation taken before and after the remediation;

(2)iithe written contract between the mold remediator or any other party regarding the mold remediation;

(3)iiall invoices issued regarding the mold remediation; and

(4)iiany other material required by the department.

(d)iiNot later than one week after completion of a mold remediation, the mold remediator license holder shall provide the property owner with copies of all photographs required by this section.

Sec.i1958.157.iiOFFICE LOCATION. A license holder shall maintain an office in this state.

[Sections 1958.158-1958.200 reserved for expansion]

SUBCHAPTER E.iiDISCIPLINARY PROCEDURES

Sec.i1958.201.iiDISCIPLINARY ACTION. If a license holder violates this chapter or an order or rule adopted under this chapter, the department, after providing the person with notice and an opportunity for a hearing, shall take one or more of the following actions:

(1)iirevoke, suspend, or refuse to renew the license;

(2)iiimpose an administrative penalty;

(3)iibring an action to collect a civil penalty; or

(4)iireprimand the person.

[Sections 1958.202-1958.250 reserved for expansion]

SUBCHAPTER F.iiADMINISTRATIVE PENALTY

Sec.i1958.251.iiIMPOSITION OF ADMINISTRATIVE PENALTY. The commissioner may impose an administrative penalty on a person who violates this chapter or a rule adopted or order issued under this chapter.

Sec.i1958.252.iiAMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues under Section 1958.101 or 1958.155 may be considered a separate violation for purposes of imposing a penalty.

(b)iiIn determining the amount of the penalty, the commissioner shall consider:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5633


(1)iiwhether the violation was committed knowingly, intentionally, or fraudulently;

(2)iithe seriousness of the violation;

(3)iiany hazard created to the health and safety of the public;

(4)iithe person's history of previous violations; and

(5)iiany other matter that justice may require.

Sec.i1958.253.iiEXCEPTION TO ADMINISTRATIVE PENALTY. (a) The commissioner may choose not to impose an administrative penalty under this subchapter if, not later than the 10th day after the date of written notice of the violation under Section 1958.254, the person provides conclusive evidence that the circumstances giving rise to the violation have been corrected and all actual damages are paid.

(b)iiThis section does not apply to a violation alleged under Section 1958.101 or 1958.155.

Sec.i1958.254.iiNOTICE; OPPORTUNITY FOR HEARING; ORDER. (a) The commissioner may impose an administrative penalty under this subchapter only after the person charged with a violation is given a written notice and the opportunity for a hearing.

(b)iiThe written notice must state the facts that constitute the alleged violation and the law or rule on which the violation is based.

(c)iiIf a hearing is held, the commissioner shall make findings of fact and issue a written decision as to:

(1)iithe occurrence of the violation; and

(2)iithe amount of any penalty that is warranted.

(d)iiIf the person charged with a violation fails to exercise the opportunity for a hearing, the commissioner, after determining that a violation occurred and the amount of the penalty that is warranted, may impose a penalty and shall issue an order requiring the person to pay any penalty imposed.

(e)iiNot later than the 30th day after the date the commissioner issues an order after determining that a violation occurred, the commissioner shall inform the person charged with the violation of the amount of any penalty imposed.

(f)iiThe commissioner may consolidate a hearing under this section with another proceeding.

Sec.i1958.255.iiOPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the commissioner's decision or order becomes final as provided by Section 2001.144, Government Code, the person shall:

(1)iipay the administrative penalty; or

(2)iifile a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.

(b)iiWithin the 30-day period, a person who acts under Subsection (a)(2) may stay enforcement of the penalty by:

(1)iipaying the penalty to the commissioner for placement in an escrow account; or

(2)iigiving the commissioner a bond in a form approved by the commissioner that:

5634 78th LEGISLATURE — REGULAR SESSION


(A)iiis for the amount of the penalty; and

(B)iiis effective until judicial review of the commissioner's decision or order is final.

Sec.i1958.256.iiCOLLECTION OF PENALTY. At the request of the commissioner, the attorney general may bring a civil action to recover an administrative penalty imposed under this subchapter.

Sec.i1958.257.iiJUDICIAL REVIEW. Judicial review of a decision or order of the commissioner imposing a penalty under this subchapter is instituted by filing a petition with a district court in Travis County and is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code.

Sec.i1958.258.iiREMITTANCE OF PENALTY AND INTEREST OR RELEASE OF BOND. If after judicial review the administrative penalty is reduced or is not upheld by the court, the commissioner shall:

(1)iiremit the appropriate amount, plus accrued interest, to the person not later than the 30th day after the date of the determination, if the person paid the penalty; or

(2)iiexecute a release of the bond, if the person gave a bond.

[Sections 1958.259-1958.300 reserved for expansion]

SUBCHAPTER G.iiOTHER PENALTIES; ENFORCEMENT PROVISIONS;

EXEMPTIONS FROM CIVIL LIABILITY

Sec.i1958.301.iiCIVIL PENALTY. (a) A person who violates this chapter or a rule adopted under this chapter is liable for a civil penalty in an amount not to exceed $2,000 for the first violation or $10,000 for a second or later violation.

(b)iiThe commissioner may request the attorney general or the district, county, or city attorney having jurisdiction to bring an action to collect a civil penalty under this section.

Sec.i1958.302.iiINJUNCTIVE RELIEF. The commissioner may request the attorney general or the district, county, or city attorney having jurisdiction to bring an action for a restraining order, injunction, or other relief the court determines is appropriate if it appears to the department that a person is violating or has violated this chapter or a rule adopted under this chapter.

Sec.i1958.303.iiEXEMPTION FROM CIVIL LIABILITY FOR CERTAIN PROPERTY OWNERS. A property owner is not liable for damages related to mold remediation on a property if:

(1)iia certificate of mold remediation has been issued under this chapter for that property; and

(2)iithe damages accrued on or before the date of the issuance of the certificate.

Sec.i1958.304.iiEXEMPTION FROM CIVIL LIABILITY FOR CERTAIN GOVERNMENTAL ENTITIES. A person is not liable in a civil lawsuit for damages related to a decision to allow occupancy of a property after mold remediation has been performed on the property if:

(1)iia certificate of mold remediation has been issued under this chapter for the property;

(2)iithe property is owned or occupied by a governmental entity, including a school; and

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(3)iithe decision was made by the owner, occupier, or any person authorized by the owner or occupier to make the decision.

SECTIONi2.iiSubchapter B, Chapter 21, Insurance Code, is amended by adding Article 21.21-11 to read as follows:

Art.i21.21-11.iiPROHIBITION OF CERTAIN UNDERWRITING DECISIONS BASED ON PREVIOUS MOLD CLAIM OR DAMAGE

Sec.i1.iiDEFINITIONS. In this article:

(1)ii"Insurer" means an insurance company, reciprocal or interinsurance exchange, mutual insurance company, capital stock company, county mutual insurance company, farm mutual insurance company, Lloyd's plan, or other legal entity authorized to write residential property insurance in this state. The term includes an affiliate, as described by Section 823.003(a), if that affiliate is authorized to write and is writing residential property insurance in this state. The term does not include:

(A)iian eligible surplus lines insurer regulated under Chapter 981;

(B)iithe Texas Windstorm Insurance Association under Article 21.49; or

(C)iithe FAIR Plan Association under Article 21.49A.

(2)ii"Mold" means any living or dead fungi or related products or parts, including spores, hyphae, and mycotoxins.

(3)ii"Mold remediation" means the removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mold or mold-contaminated matter that was not purposely grown at that location.

(4)ii"Residential property insurance" means insurance against damage to or loss of real or tangible personal property at a fixed location provided in a homeowners insurance policy or residential fire and allied lines insurance policy.

Sec.i2.iiAPPLICABILITY. This article applies to each insurer that writes residential property insurance in this state.

Sec.i3.iiPROHIBITION. An insurer may not make an underwriting decision regarding a residential property insurance policy based on previous mold damage or a claim for mold damage if:

(1)iithe applicant for insurance coverage has property eligible for coverage under a residential property policy;

(2)iithe property has had mold damage;

(3)iimold remediation has been performed on the property; and

(4)iithe property was:

(A)iiremediated, as evidenced by a certificate of mold remediation issued to the property owner under Section 1958.154, Occupations Code, that establishes that the underlying cause of the mold at the property has been remediated; or

(B)iiinspected by an independent assessor or adjustor who determined, based on the inspection, that the property does not contain evidence of mold damage.

Sec.i4.iiRULES. The commissioner shall adopt rules as necessary to implement this article.

5636 78th LEGISLATURE — REGULAR SESSION


Sec.i5.iiPENALTY. An insurer that violates this article is subject, after notice and opportunity for hearing, to sanctions as provided by Chapters 82, 83, and 84 of this code.

SECTIONi3.iiThe Texas Board of Health shall adopt the rules required by Chapter 1958, Occupations Code, as added by this Act, not later than April 1, 2004.

SECTIONi4.ii(a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2003.

(b)iiA person is not required to comply with Section 1958.101(a), Occupations Code, as added by this Act, until appropriate rules have been adopted under Section 3 of this Act.

Representative Naishtat moved to adopt the conference committee report on HBi329.

The motion prevailed.

HB 335 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hamric submitted the following conference committee report on HB 335 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi335 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Lindsay Hamric
Wentworth Lewis
Brimer Pickett
Gallegos McCall
Deuell Casteel
On the part of the senate On the part of the house

HB 335, A bill to be entitled An Act relating to the public sale of certain real property; providing penalties.

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

SECTIONi1.iiSubchapter C, Chapter 34, Civil Practice and Remedies Code, is amended by adding Section 34.0445 to read as follows:

Sec.i34.0445.iiPERSONS ELIGIBLE TO PURCHASE REAL PROPERTY. (a) An officer conducting a sale of real property under this subchapter may not execute or deliver a deed to the purchaser of the property unless the purchaser exhibits to the officer an unexpired written statement issued to the person in the

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5637


manner prescribed by Section 34.015, Tax Code, showing that the county assessor-collector of the county in which the sale is conducted has determined that:

(1)iithere are no delinquent ad valorem taxes owed by the person to that county; and

(2)iifor each school district or municipality having territory in the county there are no known or reported delinquent ad valorem taxes owed by the person to that school district or municipality.

(b)iiAn individual may not bid on or purchase the property in the name of any other individual. An officer conducting a sale under this subchapter may not execute a deed in the name of or deliver a deed to any person other than the person who was the successful bidder.

(c)iiThe deed executed by the officer conducting the sale must name the successful bidder as the grantee and recite that the successful bidder exhibited to that officer an unexpired written statement issued to the person in the manner prescribed by Section 34.015, Tax Code, showing that the county assessor-collector of the county in which the sale was conducted determined that:

(1)iithere are no delinquent ad valorem taxes owed by the person to that county; and

(2)iifor each school district or municipality having territory in the county there are no known or reported delinquent ad valorem taxes owed by the person to that school district or municipality.

(d)iiIf a deed contains the recital required by Subsection (c), it is conclusively presumed that this section was complied with.

(e)iiA person who knowingly violates this section commits an offense. An offense under this subsection is a Class B misdemeanor.

(f)iiTo the extent of a conflict between this section and any other law, this section controls.

SECTIONi2.iiSubchapter A, Chapter 34, Tax Code, is amended by adding Section 34.015 to read as follows:

Sec.i34.015.iiPERSONS ELIGIBLE TO PURCHASE REAL PROPERTY. (a) In this section, "person" does not include a taxing unit or an individual acting on behalf of a taxing unit.

(b)iiAn officer conducting a sale of real property under Section 34.01 may not execute a deed in the name of or deliver a deed to any person other than the person who was the successful bidder. The officer may not execute or deliver a deed to the purchaser of the property unless the purchaser exhibits to the officer an unexpired written statement issued under this section to the person by the county assessor-collector of the county in which the sale is conducted showing that:

(1)iithere are no delinquent taxes owed by the person to that county; and

(2)iifor each school district or municipality having territory in the county there are no known or reported delinquent ad valorem taxes owed by the person to that school district or municipality.

5638 78th LEGISLATURE — REGULAR SESSION


(c)iiOn the written request of any person, a county assessor-collector shall issue a written statement stating whether there are any delinquent taxes owed by the person to that county or to a school district or municipality having territory in that county. A request for the issuance of a statement by the county assessor-collector under this subsection must:

(1)iisufficiently identify any property subject to taxation by the county or by a school district or municipality having territory in the county, regardless of whether the property is located in the county, that the person owns or formerly owned so that the county assessor-collector and the collector for each school district or municipality having territory in the county may determine whether the property is included on a current or a cumulative delinquent tax roll for the county, the school district, or the municipality under Section 33.03;

(2)iispecify the address to which the county assessor-collector should send the statement;

(3)iiinclude any additional information reasonably required by the county assessor-collector; and

(4)iibe sworn to and signed by the person requesting the statement.

(d)iiOn receipt of a request under Subsection (c), the county assessor-collector shall send to the collector for each school district and municipality having territory in the county, other than a school district or municipality for which the county assessor-collector is the collector, a request for information as to whether there are any delinquent taxes owed by the person to that school district or municipality. The county assessor-collector shall specify the date by which the collector must respond to the request.

(e)iiIf the county assessor-collector determines that there are delinquent taxes owed to the county, the county assessor-collector shall include in the statement issued under Subsection (c) the amount of delinquent taxes owed by the person to that county. If the county assessor-collector is the collector for a school district or municipality having territory in the county and the county assessor-collector determines that there are delinquent ad valorem taxes owed by the person to the school district or municipality, the assessor-collector shall include in the statement issued under Subsection (c) the amount of delinquent taxes owed by the person to that school district or municipality.

(f)iiIf the county assessor-collector receives a response from the collector for a school district or municipality having territory in the county indicating that there are delinquent taxes owed to that school district or municipality on the person's current or former property for which the person is personally liable, the county assessor-collector shall include in the statement issued under Subsection (c):

(1)iithe amount of delinquent taxes owed by the person to that school district or municipality; and

(2)iithe name and address of the collector for that school district or municipality.

(g)iiIf the county assessor-collector determines that there are no delinquent taxes owed by the person to the county or to a school district or municipality for which the county assessor-collector is the collector, the county assessor-collector

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shall indicate in the statement issued under Subsection (c) that there are no delinquent ad valorem taxes owed by the person to the county or to the school district or municipality.

(h)iiIf the county assessor-collector receives a response from the collector for any school district or municipality having territory in that county indicating that there are no delinquent ad valorem taxes owed by the person to that school district or municipality, the county assessor-collector shall indicate in the statement issued under Subsection (c) that there are no delinquent ad valorem taxes owed by the person to that school district or municipality.

(i)iiIf the county assessor-collector does not receive a response from the collector for any school district or municipality to whom the county assessor-collector sent a request under Subsection (d) as to whether there are delinquent taxes on the person's current or former property owed by the person to that school district or municipality, the county assessor-collector shall indicate in the statement issued under Subsection (c) that there are no reported delinquent taxes owed by the person to that school district or municipality.

(j)iiTo cover the costs associated with the issuance of statements under Subsection (c), a county assessor-collector may charge the person requesting a statement a fee not to exceed $10 for each statement requested.

(k)iiA statement under Subsection (c) must be issued in the name of the requestor, bear the requestor's name, include the dates of issuance and expiration, and be eligible for recording under Section 12.001(b), Property Code. A statement expires on the 90th day after the date of issuance.

(l)iiThe deed executed by the officer conducting the sale must name the successful bidder as the grantee and recite that the successful bidder exhibited to that officer an unexpired written statement issued to the person in the manner prescribed by this section, showing that the county assessor-collector of the county in which the sale was conducted determined that:

(1)iithere are no delinquent ad valorem taxes owed by the person to that county; and

(2)iifor each school district or municipality having territory in the county there are no known or reported delinquent ad valorem taxes owed by the person to that school district or municipality.

(m)iiIf a deed contains the recital required by Subsection (l), it is conclusively presumed that this section was complied with.

(n)iiA person who knowingly violates this section commits an offense. An offense under this subsection is a Class B misdemeanor.

(o)iiTo the extent of a conflict between this section and any other law, this section controls.

SECTIONi3.iiThis Act takes effect September 1, 2003. The change in law made by this Act applies only to a public sale of real property conducted on or after October 1, 2003. A public sale of real property conducted before October 1, 2003, is governed by the law in effect on the date the sale was conducted, and the former law is continued in effect for that purpose.

5640 78th LEGISLATURE — REGULAR SESSION


Representative Hamric moved to adopt the conference committee report on HBi335.

The motion prevailed.

HB 2075 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hilderbran submitted the following conference committee report on HB 2075 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2075 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Fraser Hilderbran
Deuell Hupp
Lindsay Taylor
Madla McClendon
Zedler
On the part of the senate On the part of the house

HB 2075, A bill to be entitled An Act relating to regulating health and safety conditions at youth camps.

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

SECTIONi1.iiSection 141.007, Health and Safety Code, is amended by adding Subsections (d), (e), (f), and (g) to read as follows:

(d)iiAn employee or agent of the department who enters a youth camp to investigate and inspect conditions shall:

(1)iinotify the person in charge of the camp or the person's designee of any violations as they are discovered; and

(2)iiallow the camp to correct the violations while the investigation and inspection is occurring.

(e)iiThe department may not extend or delay an investigation or inspection to allow the youth camp to correct a violation under Subsection (d)(2).

(f)iiAn employee or agent of the department performing an investigation and inspection under this section may not report a violation that is significant under the department's rules if the violation is corrected during the investigation and inspection.

(g)iiA penalty may not be imposed on a youth camp for a violation that is significant under the department's rules if the violation is corrected during an investigation and inspection under this section.

SECTIONi2.iiSection 141.008(a), Health and Safety Code, is amended to read as follows:

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(a)iiThe board may adopt rules to implement this chapter. In adopting the rules the board shall comply with Subchapter B, Chapter 2001, Government Code, including Sections 2001.032(b) and 2001.033, Government Code. In developing the rules, the board shall consult parents, youth camp operators, and appropriate public and private officials and organizations.

SECTIONi3.iiSection 141.010, Health and Safety Code, is amended to read as follows:

Sec.i141.010.iiADVISORY COMMITTEE. (a) The board shall appoint a committee to advise the board in the development of standards and procedures, make recommendations to the board regarding the content of the rules adopted to implement this Act, and perform any other functions requested by the board in the implementation and administration of the Act.

(b)iiThe advisory committee may not exceed nine members, at least two of whom shall be members of the general public. The other members should be experienced camping professionals who represent the camping communities of the state. In making the appointments, the board shall attempt to reflect the geographic diversity of the state iniproportion to the number of camps licensed by the department in each geographic area of the state.

[(c)iiA person is not eligible to be appointed and serve as a public member of an advisory committee if the person or the person's spouse:

[(1)iiis licensed by an occupational regulatory agency in the health care field;

[(2)iiis employed by a health care facility, corporation, or agency or by a corporation authorized to underwrite health care insurance;

[(3)iigoverns or administers a health care facility, corporation, or agency;

[(4)iihas a financial interest, other than a consumer's interest, in a health care facility, corporation, or agency; or

[(5)iiis a youth camp operator; is employed by a youth camp facility or a youth camp operator; governs or administers a youth camp facility, corporation, or agency; or has a financial interest, other than a consumer's interest, in a youth camp facility, corporation, or agency.]

(c)iiAdvisory committee members serve for staggered six-year terms, with the terms of three members expiring on August 31 of each odd-numbered year.

(d)iiA vacancy on the advisory committee is filled by the board in the same manner as other appointments to the advisory committee.

(e)iiThe advisory committee will meet annually and at the call of the commissioner.

(f)ii[A member of the advisory committee is entitled to reimbursement for expenses incurred in performing duties under this Act. The reimbursement may not exceed the amount specified in the General Appropriations Act for travel and per diem allowances for state employees.

[(g)]iiThe advisory committee may elect a chairperson, vice-chairperson, and secretary from among its members and may adopt rules for the conduct of its own activities.

5642 78th LEGISLATURE — REGULAR SESSION


SECTIONi4.iiSection 141.016(c), Health and Safety Code, is amended to read as follows:

(c)iiThe penalty may not exceed $1,000 [$2,000] a day for each violation.

SECTIONi5.iiSubsections (d), (e), (f), and (g), Section 141.007, Health and Safety Code, as added by Section 1 of this Act, apply only to an investigation and inspection of a youth camp that occurs on or after the effective date of Section 1 of this Act. An investigation and inspection that occurred before the effective date of Section 1 of this Act is governed by the law in effect on the date the investigation and inspection occurred, and the former law is continued in effect for that purpose.

SECTIONi6.iiThis Act takes effect September 1, 2003.

Representative Hilderbran moved to adopt the conference committee report on HBi2075.

The motion prevailed.

HB 2415 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hopson submitted the following conference committee report on HB 2415 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2415 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Averitt Hopson
Duncan J. Keffer
Armbrister Solomons
On the part of the senate On the part of the house

HB 2415, A bill to be entitled An Act relating to the postjudgment interest rate.

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

SECTIONi1.iiSection 304.003(c), Finance Code, is amended to read as follows:

(c)iiThe postjudgment interest rate is:

(1)iithe prime rate as published by the Federal Reserve Bank of New York on [auction rate quoted on a discount basis for 52-week treasury bills issued by the United States government as most recently published by the Federal Reserve Board before] the date of computation;

(2)iifive [10] percent a year if the weekly average one-year constant maturity treasury yield [auction rate] described by Subdivision (1) is less than five [10] percent; or

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5643


(3)ii15 [20] percent a year if the weekly average one-year constant maturity treasury yield [auction rate] described by Subdivision (1) is more than 15 [20] percent.

SECTIONi2.i(a) The changes in law made by this Act apply in a case in which a final judgment is signed or subject to appeal on or after the effective date of this Act.

(b) This Act takes effect immediately 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, 2003.

Representative Hopson moved to adopt the conference committee report on HBi2415.

A record vote was requested.

The motion prevailed by (Record 909): 142 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Casteel; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Kolkhorst(C).

Absent — Burnam; Castro; Chavez; Homer; Jones, E.; Madden.

HB 3622 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative B. Brown submitted the following conference committee report on HB 3622 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

5644 78th LEGISLATURE — REGULAR SESSION


Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi3622 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Deuell B. Brown
Lindsay Homer
Duncan Hardcastle
Geren
On the part of the senate On the part of the house

HB 3622, A bill to be entitled An Act relating to the creation, administration, powers, duties, operation, and financing of the Kingsborough Municipal Utility District Nos. 1, 2, 3, 4, and 5 of Kaufman County.

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

SECTIONi1.iiDEFINITIONS. In this Act:

(1)ii"Board" or "boards" means, as appropriate, the board of directors of one or all of the Kingsborough municipal utility districts.

(2)ii"Commission" means the Texas Commission on Environmental Quality.

(3)ii"District" or "districts" means, as appropriate, one or all of the Kingsborough Municipal Utility District Nos. 1, 2, 3, 4, and 5 of Kaufman County.

SECTIONi2.iiCREATION. (a) Five conservation and reclamation districts, to be known as the Kingsborough Municipal Utility District Nos. 1, 2, 3, 4, and 5 of Kaufman County, are created in Kaufman County, subject to approval at a confirmation election under Section 13 of this Act.

(b)iiEach district is a governmental agency and a political subdivision of this state.

SECTIONi3.iiAUTHORITY FOR CREATION. Each district is created under and is essential to accomplish the purposes of Section 52, Article III, and Section 59, Article XVI, Texas Constitution.

SECTIONi4.iiFINDING OF BENEFIT AND PUBLIC PURPOSE. (a) Each district is created to serve a public use and benefit.

(b)iiAll of the land and other property included within the boundaries of each district will be benefited by the works and projects that are to be accomplished by the district under powers conferred by Section 52, Article III, and Section 59, Article XVI, Texas Constitution.

SECTIONi5.iiBOUNDARIES. The boundaries of each district are as follows:

(1)iiKingsborough Municipal Utility District No. 1:

BEING all that certain lot, tract or parcel of land located in the J.iG. Moore Survey, Abstract No. 309 and the Martha Musick Survey, Abstract No. 312, Kaufman County, Texas, and being more particularly described by metes and bounds as follows:

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COMMENCING at the intersection of the of the Northeasterly right-of-way line of Farm-Market 2757 (a 100 foot wide right-of-way), and the Northwesterly line of said J.iG. Moore Survey and the Southeasterly line of said Martha Musick Survey;

THENCE North 44 deg. 34 min. 48 sec. East, along the common line between said J.iG. Moore Survey and the Martha Musick Survey, a distance of 1644.55 feet, to the POINT OF BEGINNING of the herein described tract of land;

THENCE North 44 deg. 34 min. 48 sec. East, continuing along the common line between said J.iG. Moore Survey and the Martha Musick Survey, a distance of 2015.87 feet;

THENCE North 44 deg. 20 min. 17 sec. West, departing said common line, a distance of 763.42 feet;

THENCE North 44 deg. 46 min. 22 sec. East, a distance of 110.79 feet;

THENCE North 45 deg. 13 min. 38 sec. West, a distance of 1367.42 feet;

THENCE North 44 deg. 46 min. 22 sec. East, a distance of 247.49 feet;

THENCE South 68 deg. 13 min. 38 sec. East, a distance of 627.70 feet;

THENCE North 44 deg. 26 min. 44 sec. East, a distance of 853.26 feet;

THENCE North 45 deg. 59 min. 01 sec. West, a distance of 1118.32 feet;

THENCE North 25 deg. 16 min. 32 sec. East, a distance of 918.27 feet;

THENCE North 27 deg. 53 min. 12 sec. East, a distance of 712.32 feet;

THENCE North 44 deg. 02 min. 09 sec. East, a distance of 693.71 feet, to the Southwesterly right-of-way line of High Country Lane (a 60 foot wide right-of-way);

THENCE South 45 deg. 14 min. 23 sec. East, along the Southwesterly right-of-way line of said High Country Lane, a distance of 263.11 feet, to the intersection of the Southwesterly right-of-way line of said High Country Lane and the Southwesterly right-of-way line of Farm-Market 741 (a variable width right-of-way), and being the beginning of a non-tangent curve to the left having a radius of 999.93 feet;

THENCE along the Southwesterly right-of-way line of said Farm-Market 741 as follows;

Along said non-tangent curve to the left and in a Southeasterly direction, through a central angle of 09 deg. 56 min. 12 sec., an arc length of 173.42 feet, said non-tangent curve also having a long chord which bears South 40 deg. 16 min. 17 sec. East, 173.20 feet;

South 45 deg. 14 min. 23 sec. East, a distance of 1653.79 feet, to the beginning of a non-tangent curve to the left having a radius of 11,472.09 feet;

Along said non-tangent curve to the left and in a Southeasterly direction, through a central angle of 03 deg. 05 min. 42 sec., an arc length of 619.69 feet, said non-tangent curve to the left having a long chord which bears South 46 deg. 47 min. 14 sec. East, 619.62 feet;

South 45 deg. 21 min. 23 sec. East, a distance of 182.35 feet, to the beginning of a non-tangent curve to the left having a radius of 2993.57 feet;

5646 78th LEGISLATURE — REGULAR SESSION


Along said non-tangent curve to the left and in a Southeasterly direction, through a central angle of 04 deg. 13 min. 00 sec., an arc length of 220.31 feet, said non-tangent curve to the left also having a long chord which bears South 47 deg. 27 min. 53 sec. East, 220.26 feet;

South 49 deg. 34 min. 23 sec. East, a distance of 222.84 feet, to the beginning of a curve to the left having a radius of 1858.59 feet;

Along said curve to the left and in a Southeasterly direction, through a central angle of 07 deg. 34 min. 00 sec., an arc length of 245.45 feet, said curve to the left also having a long chord which bears South 53 deg. 21 min. 23 sec. East, 245.27 feet;

South 57 deg. 08 min. 23 sec. East, a distance of 300.24 feet, to the beginning of a curve to the left having a radius of 11,472.09 feet;

Along said curve to the left and in a Southwesterly direction, through a central angle of 02 deg. 58 min. 15 sec., an arc length of 594.81 feet, said curve to the left also having a long chord which bears South 55 deg. 39 min. 16 sec. East, 594.75 feet;

South 57 deg. 06 min. 23 sec. East, a distance of 327.99 feet, to the beginning of a curve to the right having a radius of 5684.58 feet;

Along said curve to the right and in a Southeasterly direction, through a central angle of 12 deg. 08 min. 00 sec., an arc length of 1203.80 feet, said curve also having a long chord which bears South 51 deg. 02 min. 23 sec. East, 1201.56 feet;

South 44 deg. 58 min. 23 sec. East, a distance of 755.25 feet;

South 45 deg. 13 min. 23 sec. East, a distance of 238.92 feet, to the North corner of the Dallas East Estates which is located to the Southwest of said Farm-Market 741;

THENCE South 44 deg. 19 min. 24 sec. West, departing the Southwesterly right-of-way line of said Farm-Market 741 and along the Northwesterly boundary line of said Dallas East Addition, a distance of 1401.27 feet, to the most Westerly corner of said Dallas East Addition;

THENCE South 44 deg. 45 min. 48 sec. East, along the most Southwesterly boundary line of said Dallas East Addition, a distance of 1444.80 feet, to the Northwesterly right-of-way line of said Farm-Market 741;

THENCE along the Northwesterly right-of-way line of said Farm-Market 741 as follows;

South 44 deg. 20 min. 25 sec. West, a distance of 545.05 feet;

North 45 deg. 39 min. 35 sec. West, a distance of 10.00 feet;

South 44 deg. 20 min. 25 sec. West, a distance of 700.00 feet;

South 45 deg. 39 min. 35 sec. East, a distance of 10.00 feet;

South 44 deg. 20 min. 25 sec. West, a distance of 933.41 feet;

THENCE North 49 deg. 43 min. 48 sec. East, departing the Northwesterly right-of-way line of said Farm-Market 741, a distance of 794.74 feet;

THENCE North 78 deg. 41 min. 33 sec. West, a distance of 280.00 feet;

THENCE North 46 deg. 19 min. 02 sec. West, a distance of 1073.59 feet;

THENCE North 66 deg. 21 min. 14 sec. East, a distance of 1045.54 feet;

THENCE South 81 deg. 36 min. 53 sec. West, a distance of 327.60 feet;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5647


THENCE South 72 deg. 56 min. 15 sec. West, a distance of 778.38 feet;

THENCE South 87 deg. 16 min. 19 sec. West, a distance of 610.31 feet;

THENCE North 77 deg. 32 min. 02 sec. West, a distance of 731.98 feet;

THENCE North 58 deg. 36 min. 37 sec. West, a distance of 578.95 feet, to the POINT OF BEGINNING and containing 692.696 acres (30,173,840 square feet) of land.

(2)iiKingsborough Municipal Utility District No. 2:

BEING all that certain lot, tract or parcel of land located in the J. G. Moore Survey, Abstract No. 309, Kaufman County, Texas, and being a portion of that certain tract of land described as Tract K31 in the deed to West Foundation, according to the deed filed for record in Volume 720, Page 860 of the Deed Records of Kaufman County, Texas, and being more particularly described by metes and bounds as follows:

BEGINNING at the intersection of the Southwesterly boundary line of said Tract K31 and the Southeasterly right-of-way line of Farm-Market 741 (a 90 foot wide right-of-way), said iron rod being in the center of County Road No. 269;

THENCE along the Southwesterly right-of-way line of said Farm-Market 741 as follows:

North 43 deg. 59 min. 38 sec. East, along the Southeasterly right-of-way line of said Farm-Market 741, a distance of 2525.09 feet;

North 44 deg. 20 min. 25 sec. East, a distance of 4582.54 feet, to the beginning of a curve to the left having a radius of 761.20 feet;

Along said curve to the left, through a central angle of 11 deg. 23 min. 36 sec., an arc length of 151.37 feet and having a long chord which bears North 38 deg. 38 min. 37 sec. East, 151.12 feet;

North 44 deg. 20 min. 25 sec. East, a distance of 463.83 feet, to the beginning of a curve to the left having a radius of 127.30 feet;

Along said curve to the left, through a central angle of 40 deg. 09 min. 07 sec., an arc length of 89.21 feet and having a long chord which bears North 24 deg. 15 min. 15 min. East, 87.40 feet;

THENCE North 44 deg. 20 min. 24 sec. East, along the Northwesterly line of said Tract K31, a distance of 14.48 feet, to a point in County Road No. 260 (an undefined width right of way);

THENCE South 46 deg. 07 min. 54 sec. East, along said County Road No. 260, a distance of 3434.03 feet;

THENCE South 44 deg. 14 min. 23 sec. West, departing said County Road No. 260, a distance of 5193.79 feet, to the beginning of a non-tangent curve to the left having a radius of 2640.00 feet;

THENCE along said non-tangent curve to the left, through a central angle of 90 deg. 07 min. 01 sec., an arc length of 4152.29 feet, and having a long chord which bears South 89 deg. 10 min. 52 sec. West, 3737.33 feet, to a point in County Road No. 269 (an undefined width right-of-way);

THENCE North 45 deg. 52 min. 38 sec. West, along said County Road No. 269, a distance of 747.41 feet to the POINT OF BEGINNING and containing 484.081 acres (21,086,547 square feet) of land.

(3)iiKingsborough Municipal Utility District No. 3:

5648 78th LEGISLATURE — REGULAR SESSION


BEING all that certain lot, tract or parcel of land located in the J. G. Moore Survey, Abstract No. 309, Kaufman County, Texas, and being more particularly described by metes and bounds as follows:

BEGINNING at the intersection of the of the Northeasterly right-of-way line of Farm-Market 2757 (a 100 foot wide right-of-way), and the Northwesterly line of said J. G. Moore Survey and the Southeasterly line of said Martha Musick Survey;

THENCE North 44 deg. 34 min. 48 sec. East, along the common line between said J. G. Moore Survey and the Martha Musick Survey, a distance of 1644.55 feet;

THENCE South 58 deg. 36 min. 37 sec. East, departing said common line, a distance of 578.95 feet;

THENCE South 77 deg. 32 min. 02 sec. East, a distance of 731.98 feet;

THENCE North 87 deg. 16 min. 19 sec. East, a distance of 610.31 feet;

THENCE North 72 deg. 56 min. 15 sec. East, a distance of 778.38 feet;

THENCE North 81 deg. 36 min. 53 sec. East, a distance of 327.60 feet;

THENCE South 66 deg. 21 min. 14 sec. East, a distance of 1045.54 feet;

THENCE South 46 deg. 19 min. 02 sec. East, a distance of 1073.59 feet;

THENCE South 78 deg. 41 min. 33 sec. East, a distance of 280.00 feet;

THENCE South 49 deg. 43 min. 48 sec. East, a distance of 794.74 feet, to a point on the Northwesterly right-of-way line of Farm- Market 741 (an 80 foot wide right-of-way);

THENCE along the Northwesterly right-of-way line of said Farm- Market 741 as follows;

South 44 deg. 20 min. 25 sec. West, a distance of 1657.58 feet;

South 43 deg. 59 min. 38 sec. West, a distance of 2422.82 feet, to the intersection of the Northwesterly right-of-way line of said Farm-Market 741 and the Northeasterly right-of-way line of the aforementioned Farm-Market 2757;

THENCE along the Northeasterly right-of-way line of said Farm-Market 2757 as follows;

South 89 deg. 23 min. 24 sec. West, a distance of 138.28 feet;

North 44 deg. 17 min. 39 sec. West, a distance of 1248.09 feet;

North 45 deg. 23 min. 39 sec. West, a distance of 624.62 feet;

North 45 deg. 36 min. 39 sec. West, a distance of 3302.91 feet, to the POINT OF BEGINNING and containing 392.241 acres (17,086,006 square feet) of land.

(4)iiKingsborough Municipal Utility District No. 4:

BEING all that certain lot, tract or parcel of land located in the Martha Musick Survey, Abstract No. 312 and the J. G. Moore Survey, Abstract No. 309, Kaufman County, Texas, and being the remainder of those certain tracts of land described as Tracts K14 through K20, in the deed the West Foundation, as filed for record in Volume 720, Page 860 of the Deed Records of Kaufman County, Texas, and being more particularly described by metes and bounds as follows:

BEGINNING at the intersection of the Southerly right-of-way line of Interstate 20 (a variable width right-of-way) and the Southeasterly right-of-way line of Farm-Market 741 (a variable width right-of-way at this point);

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5649


THENCE along the Southerly right-of-way line of said Interstate 20 as follows;

North 83 deg. 22 min. 27 sec. East, a distance of 751.86 feet; North 88 deg. 29 min. 25 sec. East, a distance of 474.54 feet; South 84 deg. 18 min. 42 sec. East, a distance of 952.45 feet; South 78 deg. 59 min. 16 sec. East, a distance of 4.49 feet to the intersection of the Southerly right-of-way line of Interstate 20 and the Northeasterly boundary line of the aforementioned Tract K17, said point also being the intersection of the said Southerly right-of-way line and the Southwesterly boundary line of that certain called 113.75 acre tract of land conveyed to Austin W. Shipley, according to the deed filed for record in Volume 270, Page 221, Deed Records, Kaufman County, Texas;

THENCE South 45 deg. 06 min. 28 sec. East, along the common boundary line between said Tract K17 and said called 113.75 acre tract, at a distance of approximately 1240 feet passing the most Southerly corner of said called 113.75 acre tract and the East corner of that certain tract of land conveyed to Gordon T. West, according to the deed filed for record in Volume 1636, Page 43, Deed Records, Kaufman County, Texas, and continuing along the common boundary line between said Tract K17 and said Gordon T. West tract, in all a distance of 2131.39 feet to the Northwest boundary line of that certain called 300 acre tract of land conveyed to Gordon T. West, according to the deed filed for record in Volume 1636, Page 43, Deed Records, Kaufman County, Texas;

THENCE South 44 deg. 34 min. 38 sec. West, along the common boundary line of said Tract K17 and said called 300 acre tract, and generally along a barbed wire fence, a distance of 1891.96 feet, to the South corner of said Tract K17 and the West corner of said called 300 acre tract, said iron rod also being the North corner of the aforementioned Tract K19;

THENCE South 46 deg. 09 min. 59 sec. East, along the common boundary line between said called 300 acre tract and said Tract K19, a distance of 3513.32 feet, to the Northwesterly right-of-way line of Griffin Lane (a 50 foot wide right-of-way);

THENCE South 43 deg. 50 min. 01 sec. West, along the Northwesterly right-of-way line of said Griffin Lane, a distance of 2649.80 feet, to the Northeasterly right-of-way line of the aforementioned Farm-Market 741;

THENCE along the Northeasterly right-of-way line of said Farm-Market 741 as follows;

North 45 deg. 13 min. 23 sec. West, a distance of 4.98 feet;

North 44 deg. 58 min. 23 sec. West, at a distance of 632.24 feet passing a wood monument found, and continuing in all a distance of 755.05 feet, said point being the beginning of a curve to the left having a radius of 5774.58 feet;

Along said curve to the left, through a central angle of 12 deg. 08 min. 00 sec., an arc length of 1222.86 feet, and having a long chord of North 51 deg. 02 min. 23 sec. West, 1220.58 feet;

North 57 deg. 06 min. 23 sec. West, generally along a barbed wire fence, a distance of 328.05 feet, said point being the beginning of a curve to the right having a radius of 11,382.09 feet;

5650 78th LEGISLATURE — REGULAR SESSION


Along said curve to the right and along said fence, through a central angle of 11 deg. 54 min. 00 sec., an arc length of 2363.99 feet, and having a long chord which bears North 51 deg. 11 min. 23 sec. West, 2359.75 feet;

North 45 deg. 14 min. 23 sec. West, generally along said fence, a distance of 1653.79 feet, said point being the beginning of a curve to the right having a radius of 909.93 feet;

THENCE along said curve to the right and along the Easterly right-of-way line of said Farm-Market 741 and generally along said fence, through a central angle of 90 deg. 33 min. 04 sec., an arc length of 1438.07 feet, and having a long chord which bears North 00 deg. 02 min. 09 sec. East, 1293.01 feet;

THENCE along the Southeasterly right-of-way line of said Farm-Market 741 as follows;

North 45 deg. 18 min. 41 sec. East, a distance of 199.54 feet;

North 46 deg. 06 min. 41 sec. East, a distance of 1039.75 feet;

North 46 deg. 21 min. 41 sec. East, a distance of 759.38 feet, said point being the beginning of a curve to the left having a radius of 999.93 feet;

Along said curve to the left, through a central angle of 14 deg. 28 min. 00 sec., an arc length of 252.47 feet, and having a long chord which bears North 39 deg. 07 min. 41 sec. East, 251.80 feet;

North 31 deg. 53 min. 41 sec. East, a distance of 210.50 feet, said point being the beginning of a curve to the right having a radius of 909.38 feet;

Along said curve to the right, through a central angle of 01 deg. 00 min. 31 sec., an arc length of 16.01 feet, and having a long chord which bears North 32 deg. 23 min. 57 sec. East, 16.01 feet to the POINT OF BEGINNING and containing 606.441 acres (26,416,564 square feet) of land.

(5)iiKingsborough Municipal Utility District No. 5:

BEING all that certain lot, tract or parcel of land located in the J. G. Moore Survey, Abstract No. 309, Kaufman County, Texas, and being a portion of that certain tract of land described as Tract K31 in the deed to West Foundation, according to the deed filed for record in Volume 720, Page 860 of the Deed Records of Kaufman County, Texas, and being more particularly described by metes and bounds as follows:

BEGINNING at a 5/8 inch iron rod found for the South corner of said Tract K31, said iron rod being in County Road No. 269 (an undefined width public roadway);

THENCE North 45 deg. 52 min. 38 sec. West, along the Southwest boundary line of said Track K31, and generally along said County Road No. 269, a distance of 2640.00 feet, said point being the beginning of a non-tangent curve to the right having a radius of 2640.00 feet;

THENCE departing the Southwest boundary line of said Tract K31, through a central angle of 90 deg. 07 min. 01 sec., an arc length of 4152.29 feet, said non-tangent curve also having a long chord which bears North 89 deg. 10 min. 52 sec. East, a distance of 3737.33 feet, to the Southeast boundary line of said Tract K31;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5651


THENCE South 44 deg. 14 min. 23 sec. West, along the Southeast boundary line of said Tract K31, a distance of 2640.00 feet, to the POINT OF BEGINNING and containing 125.839 acres (5,481,550 square feet) of land.

SECTIONi6.iiFINDINGS RELATING TO BOUNDARIES. The legislature finds that the boundaries and field notes of each district form a closure. If a mistake is made in the field notes or in copying the field notes in the legislative process, the mistake does not affect in any way:

(1)iithe organization, existence, or validity of the district;

(2)iithe right of the district to impose taxes; or

(3)iithe legality or operation of the district or the board.

SECTIONi7.iiGENERAL POWERS. Each district has all of the rights, powers, privileges, authority, functions, and duties provided by the general law of this state, including Chapters 49 and 54, Water Code, applicable to municipal utility districts created under Section 59, Article XVI, Texas Constitution. This Act prevails over any provision of general law that is in conflict or inconsistent with this Act.

SECTIONi8.iiADDITIONAL POWERS. (a) Each district has the additional rights, powers, privileges, authority, and functions provided by this section.

(b)iiTo the extent authorized by Section 52, Article III, Texas Constitution, a district may provide for the construction, maintenance, and operation inside or outside the boundaries of the district of:

(1)iipaved roads and turnpikes; or

(2)iiworks, facilities, or improvements related to the roads and turnpikes.

SECTIONi9.iiBONDS. (a) Each district may issue bonds as provided by Chapters 49 and 54, Water Code, and the general laws of this state.

(b)iiA district may issue bonds, notes, or other obligations of the district to finance construction, maintenance, and operation under Section 8 of this Act and may impose a tax to pay the principal of or interest on bonds issued under this subsection.

(c)iiA district may not issue bonds under Subsection (b) of this section unless the issuance is approved by a vote of a two-thirds majority of the qualified voters of the district voting at an election called for that purpose. Bonds, notes, or other obligations issued or incurred under Subsection (b) of this section may not exceed one-fourth of the assessed value of the real property in the district.

(d)iiSections 49.181 and 49.182, Water Code, do not apply to projects undertaken by a district under Section 8(b) of this Act or to bonds issued by a district under Subsection (b) of this section.

SECTIONi10.iiEMINENT DOMAIN. (a) Within the boundaries of a district, a district may exercise the power of eminent domain for all public purposes.

(b)iiOutside the boundaries of a district, a district may exercise the power of eminent domain only for the purpose of constructing, acquiring, operating, repairing, or maintaining water supply lines or sanitary sewer lines.

(c)iiA district's power of eminent domain is exercised in the same manner as required for a county.

5652 78th LEGISLATURE — REGULAR SESSION


SECTIONi11.iiBOARD OF DIRECTORS. (a) Each district is governed by a board of five directors.

(b)iiTemporary directors serve until initial directors are elected under Section 13 of this Act.

(c)iiInitial directors serve until permanent directors are elected under Section 14 of this Act.

(d)iiPermanent directors serve staggered four-year terms.

(e)iiEach director must qualify to serve as director in the manner provided by Section 49.055, Water Code.

SECTIONi12.iiAPPOINTMENT OF TEMPORARY DIRECTORS. (a) On or after the effective date of this Act, a person who owns land in a district may submit a petition to the commission requesting that the commission appoint as temporary directors the five persons named in the petition.

(b)iiSubject to Subsection (e) of this section, the commission shall appoint as temporary directors the five persons named in the first petition received by the commission for each district.

(c)iiIf a temporary director fails to qualify for office, the commission shall appoint a person to fill the vacancy.

(d)iiAs soon as practicable after all of the temporary directors have qualified, the temporary directors shall meet and elect officers from among their membership.

(e)iiThe commission may appoint temporary directors for a district that is located wholly or partly within an area designated by ordinance or resolution of the City of Crandall as the water service area, extraterritorial jurisdiction, or corporate limits of that city only if the city has given its express written consent to the creation of the district. The City of Crandall may give its consent only on the execution of a written agreement between the developer of the district and the Crandall Independent School District providing that the developer of the district will:

(1)iifund the construction of buildings and improvements for the school district; and

(2)iiestablish an educational fund for the school district of an amount based on an annually determined transaction fee on the sale and resale of any home within the district boundaries for the duration of the existence of the district.

SECTIONi13.iiCONFIRMATION AND INITIAL DIRECTORS' ELECTION. (a) Subject to Subsection (b) of this section, the temporary board of directors of each district shall call and hold an election to confirm establishment of the district and to elect five initial directors in the manner provided by Chapter 49, Water Code.

(b)iiA temporary board of directors may call and hold an election to confirm establishment of a district that is located wholly or partly within an area designated by ordinance or resolution of the City of Crandall as the water service area, extraterritorial jurisdiction, or corporate limits of that city only if the city has given its express written consent to the creation of the district. The City of

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Crandall may give its consent only on the execution of a written agreement between the developer of the district and the Crandall Independent School District providing that the developer of the district will:

(1)iifund the construction of buildings and improvements for the school district; and

(2)iiestablish an educational fund for the school district of an amount based on an annually determined transaction fee on the sale and resale of any home within the district boundaries for the duration of the existence of the district.

SECTIONi14.iiELECTION OF DIRECTORS. Each board shall call and hold elections to elect permanent directors in the manner provided by Chapter 49, Water Code.

SECTIONi15.iiEFFECTIVE DATE; EXPIRATION DATE. (a) This Act takes effect on the date on or after September 1, 2003, on which a settlement agreement between the City of Crandall and the developer of the districts is legally executed regarding a pending petition before the Texas Commission on Environmental Quality for the right to provide retail water service to certain areas within the districts. If the settlement agreement is legally executed before September 1, 2003, this Act takes effect September 1, 2003.

(b)iiIf the creation of a district is not confirmed at a confirmation election held under Section 13 of this Act before September 1, 2005, the provisions of this Act relating to that district expire on that date.

Representative B. Brown moved to adopt the conference committee report on HBi3622.

The motion prevailed.

HB 411 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Grusendorf submitted the following conference committee report on HB 411 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi411 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Ellis, Rodney Grusendorf
Staples Eissler
Shapleigh Deshotel
Shapiro
Ogden
On the part of the senate On the part of the house

5654 78th LEGISLATURE — REGULAR SESSION


HB 411, A bill to be entitled An Act relating to improvement of science instruction and student performance in public schools.

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

SECTIONi1.iiSubchapter B, Chapter 21, Education Code, is amended by adding Section 21.0484 to read as follows:

Sec.i21.0484.iiMASTER SCIENCE TEACHER CERTIFICATION. (a) To ensure that there are teachers with special training to work with other teachers and with students in order to improve student science performance, the board shall establish:

(1)iia master science teacher certificate to teach science at elementary school grade levels;

(2)iia master science teacher certificate to teach science at middle school grade levels; and

(3)iia master science teacher certificate to teach science at high school grade levels.

(b)iiThe board shall issue the appropriate master science teacher certificate to each eligible person.

(c)iiTo be eligible for a master science teacher certificate, a person must:

(1)iihold a teaching certificate issued under this subchapter;

(2)iihave at least three years of teaching experience;

(3)iisatisfactorily complete a knowledge-based course of instruction on the science of teaching children science that includes training in science instruction and professional peer mentoring techniques that, through scientific testing, have been proven effective;

(4)iiperform satisfactorily on the appropriate master science teacher certification examination prescribed by the board; and

(5)iisatisfy any other requirements prescribed by the board.

(d)iiThe course of instruction prescribed under Subsection (c)(3) shall be developed by the board in consultation with science faculty members at institutions of higher education.

SECTIONi2.iiSubchapter I, Chapter 21, Education Code, is amended by adding Section 21.413 to read as follows:

Sec.i21.413.iiMASTER SCIENCE TEACHER GRANT PROGRAM. (a) The commissioner shall establish a master science teacher grant program to encourage teachers to:

(1)iibecome certified as master science teachers; and

(2)iiwork with other teachers and with students in order to improve student science performance.

(b)iiFrom funds appropriated for the purpose, the commissioner shall make grants to school districts as provided by this section to pay stipends to selected certified master science teachers who teach at high-need campuses.

(c)iiThe commissioner shall annually identify each high-need campus in a school district using criteria established by the commissioner by rule, including performance on the science assessment instrument administered under Section 39.023. The commissioner shall also use the criteria to rank campuses in order of greatest need.

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(d)iiA school district may apply to the commissioner for grants for each high-need campus identified by the commissioner to be used to pay stipends to certified master science teachers in accordance with this section. Unless reduced under Subsection (g) or (i), each grant is in the amount of $5,000. The commissioner shall approve the application if the district:

(1)iiapplies within the period and in the manner required by rule adopted by the commissioner; and

(2)iiagrees to use each grant only for the purpose of paying a year-end stipend to a master science teacher:

(A)iiwho holds the appropriate certificate issued under Section 21.0484;

(B)iiwho teaches in a position prescribed by the district at a high-need campus identified by the commissioner;

(C)iiwhose primary duties include:

(i)iiteaching science; and

(ii)iiserving as a science teaching mentor to other teachers for the amount of time and in the manner established by the district and by rule adopted by the commissioner; and

(D)iiwho satisfies any other requirements established by rule adopted by the commissioner.

(e)iiUnless reduced under Subsection (g) or (i), a stipend under Subsection (d)(2) is in the amount of $5,000.

(f)iiThe commissioner shall adopt rules for the distribution of grants to school districts following the year of the initial grant. A district that has been approved for a grant to pay a stipend to a certified master science teacher is not required to reapply for a grant for two consecutive school years following the year of the initial grant if the district:

(1)iicontinues to pay a stipend as provided by Subsection (g); and

(2)iinotifies the commissioner in writing, within the period and in the manner prescribed by the commissioner, that the circumstances on which the grant was based have not changed.

(g)iiThe commissioner shall reduce payments to a school district proportionately to the extent a teacher does not meet the requirements under Subsection (d)(2) for the entire school year. A district that employs more certified master science teachers than the number of grants available under this section shall select the certified master science teachers to whom to pay stipends based on a policy adopted by the board of trustees of the district, except that a district shall pay a stipend for two additional consecutive school years to a teacher the district has selected for and paid a stipend for a school year, who remains eligible for a stipend under Subsection (d)(2), and for whom the district receives a grant under this section for those years. A decision of the district under this subsection is final and may not be appealed. The district may not apportion among teachers a stipend paid for with a grant the district receives under this section. The district may use local money to pay additional stipends in amounts determined by the district.

5656 78th LEGISLATURE — REGULAR SESSION


(h)iiA grant a school district receives under this section is in addition to any funding the district receives under Chapter 42. The commissioner shall distribute funds under this section with the Foundation School Program payment to which the district is entitled as soon as practicable after the end of the school year as determined by the commissioner. A district to which Chapter 41 applies is entitled to the grants paid under this section. The commissioner shall determine the timing of the distribution of grants to a district that does not receive Foundation School Program payments.

(i)iiThis section does not create a property right to a grant or stipend. A school district is entitled to a grant to carry out the purposes of this section only to the extent the commissioner makes the grant in accordance with this section and only to the extent sufficient state funds are appropriated for those purposes. If state funds are appropriated but are insufficient to fully fund a grant, the commissioner shall reduce the grant paid to each district and the district shall reduce the stipend the district pays to each teacher under this section proportionately so that each selected teacher receives the same amount of money.

(j)iiA decision of the commissioner concerning the amount of money to which a school district is entitled under this section is final and may not be appealed. Each district shall, in the manner and at the time prescribed by the commissioner, provide to the commissioner proof acceptable to the commissioner of the master science teacher certification of a teacher to whom the district is paying a stipend under this section.

(k)iiThe commissioner may audit the expenditure of money appropriated for purposes of this section. A district's use of the money appropriated for purposes of this section shall be verified as part of the district audit under Section 44.008.

(l)iiA stipend a teacher receives under this section is not considered in determining whether the district is paying the teacher the minimum monthly salary under Section 21.402.

(m)iiThe commissioner may adopt other rules as necessary to implement this section.

SECTIONi3.iiSubchapter J, Chapter 21, Education Code, is amended by adding Section 21.456 to read as follows:

Sec.i21.456.iiSCIENCE TRAINING. (a) The commissioner shall develop and have approved by the board training materials and other teacher training resources for a school district to use in assisting science teachers in developing:

(1)iiexpertise in the appropriate science curriculum; and

(2)iicomprehension of the instructional approaches that, through scientific testing, have been proven effective in improving student science skills.

(b)iiTo the extent practicable, the training materials and other teacher training resources required under Subsection (a) shall address instructional approaches designed to reduce any identified disparities in student science performance between groups of students.

(c)iiThe commissioner shall develop materials and resources under this section in consultation with appropriate faculty members at institutions of higher education.

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(d)iiThe commissioner shall make the training materials and other teacher training resources required under Subsection (a) available to science teachers through a variety of mechanisms, including distance learning, mentoring programs, small group inquiries, computer-assisted training, and mechanisms based on trainer-of-trainer models.

(e)iiThe commissioner shall use funds appropriated for the purpose to administer this section.

SECTIONi4.iiSubchapter C, Chapter 29, Education Code, is amended by adding Section 29.089 to read as follows:

Sec.i29.089.iiAFTER-SCHOOL AND SUMMER INTENSIVE SCIENCE INSTRUCTION PROGRAMS. (a) A school district may provide an intensive after-school program or an intensive program during the period that school is recessed for the summer to provide science instruction to:

(1)iistudents who are not performing at grade level in science to assist those students in performing at grade level;

(2)iistudents who are not performing successfully in a science course to assist those students in successfully completing the course; or

(3)iistudents other than those described by Subdivision (1) or (2), as determined by the district.

(b)iiBefore providing a program under this section, the board of trustees of a school district must adopt a policy for:

(1)iidetermining student eligibility for participating in the program that:

(A)iiprescribes the grade level or course a student must be enrolled in to be eligible; and

(B)iiprovides for considering teacher recommendations in determining eligibility;

(2)iiensuring that parents of or persons standing in parental relation to eligible students are provided notice of the program;

(3)iiensuring that eligible students are encouraged to attend the program;

(4)iiensuring that the program is offered at one or more locations in the district that are easily accessible to eligible students; and

(5)iimeasuring student progress on completion of the program.

(c)iiThe commissioner by rule shall:

(1)iiprescribe a procedure that a school district must follow to apply for and receive funding for a program under this section;

(2)iiadopt guidelines for determining which districts receive funding if there is not sufficient funding for each district that applies;

(3)iirequire each district providing a program to report student performance results to the commissioner within the period and in the manner prescribed by the rule; and

(4)iibased on district reports under Subdivision (3) and any required analysis and verification of those reports, disseminate to each district in this state information concerning instructional methods that have proved successful in improving student performance in science.

5658 78th LEGISLATURE — REGULAR SESSION


(d)iiA program provided under this section shall be paid for with funds appropriated for that purpose.

SECTIONi5.iiSection 39.023(a), Education Code, is amended to read as follows:

(a)iiThe agency shall adopt or develop appropriate criterion-referenced assessment instruments designed to assess essential knowledge and skills in reading, writing, mathematics, social studies, and science. All students, except students assessed under Subsection (b) or (l) or exempted under Section 39.027, shall be assessed in:

(1)iimathematics, annually in grades three through seven without the aid of technology and in grades eight through 11 with the aid of technology on any assessment instruments that include algebra;

(2)iireading, annually in grades three through nine;

(3)iiwriting, including spelling and grammar, in grades four and seven;

(4)iiEnglish language arts, in grade 10;

(5)iisocial studies, in grades eight and 10; [and]

(6)iiscience, in grades five, eight, and 10; and

(7)iiany other subject and grade required by federal law.

SECTIONi6.ii(a) If the Act of the 78th Legislature, Regular Session, 2003, relating to renumbering or relettering certain provisions of enacted codes takes effect, Section 822.201(b), Government Code, as amended by Chapters 118, 834, and 1301, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:

(b)ii"Salary and wages" as used in Subsection (a) means:

(1)iinormal periodic payments of money for service the right to which accrues on a regular basis in proportion to the service performed;

(2)iiamounts by which the member's salary is reduced under a salary reduction agreement authorized by Chapter 610;

(3)iiamounts that would otherwise qualify as salary and wages under Subdivision (1) but are not received directly by the member pursuant to a good faith, voluntary written salary reduction agreement in order to finance payments to a deferred compensation or tax sheltered annuity program specifically authorized by state law or to finance benefit options under a cafeteria plan qualifying under Section 125 of the Internal Revenue Code of 1986, if:

(A)iithe program or benefit options are made available to all employees of the employer; and

(B)iithe benefit options in the cafeteria plan are limited to one or more options that provide deferred compensation, group health and disability insurance, group term life insurance, dependent care assistance programs, or group legal services plans;

(4)iiperformance pay awarded to an employee by a school district as part of a total compensation plan approved by the board of trustees of the district and meeting the requirements of Subsection (e);

(5)iithe benefit replacement pay a person earns under Subchapter H, Chapter 659, [as added by Chapter 417, Acts of the 74th Legislature, 1995,] except as provided by Subsection (c);

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5659


(6)iistipends paid to teachers in accordance with Section 21.410, 21.411, 21.412, or 21.413, Education Code;

(7)iiamounts by which the member's salary is reduced or that are deducted from the member's salary as authorized by Subchapter J, Chapter 659; and

(8)iia merit salary increase made under Section 51.962, Education Code.

(b)iiIf the Act of the 78th Legislature, Regular Session, 2003, relating to renumbering or relettering certain provisions of enacted codes does not take effect, Section 822.201(b), Government Code, as amended by Chapters 118, 834, and 1301, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:

(b)ii"Salary and wages" as used in Subsection (a) means:

(1)iinormal periodic payments of money for service the right to which accrues on a regular basis in proportion to the service performed;

(2)iiamounts by which the member's salary is reduced under a salary reduction agreement authorized by Chapter 610;

(3)iiamounts that would otherwise qualify as salary and wages under Subdivision (1) but are not received directly by the member pursuant to a good faith, voluntary written salary reduction agreement in order to finance payments to a deferred compensation or tax sheltered annuity program specifically authorized by state law or to finance benefit options under a cafeteria plan qualifying under Section 125 of the Internal Revenue Code of 1986, if:

(A)iithe program or benefit options are made available to all employees of the employer; and

(B)iithe benefit options in the cafeteria plan are limited to one or more options that provide deferred compensation, group health and disability insurance, group term life insurance, dependent care assistance programs, or group legal services plans;

(4)iiperformance pay awarded to an employee by a school district as part of a total compensation plan approved by the board of trustees of the district and meeting the requirements of Subsection (e);

(5)iithe benefit replacement pay a person earns under Subchapter H, Chapter 659, [as added by Chapter 417, Acts of the 74th Legislature, 1995,] except as provided by Subsection (c);

(6)iistipends paid to teachers in accordance with Section 21.410, Education Code; Section 21.411, Education Code, as added by Chapter 834, Acts of the 77th Legislature, Regular Session, 2001; Section 21.411, Education Code, as added by Chapter 1301, Acts of the 77th Legislature, Regular Session, 2001; or Section 21.413, Education Code;

(7)iiamounts by which the member's salary is reduced or that are deducted from the member's salary as authorized by Subchapter J, Chapter 659; and

(8)iia merit salary increase made under Section 51.962, Education Code.

5660 78th LEGISLATURE — REGULAR SESSION


SECTIONi7.ii(a) The State Board for Educator Certification shall propose rules establishing requirements and prescribing an examination for master science teacher certification as required by Section 21.0484, Education Code, as added by this Act, not later than January 1, 2005.

(b)iiBeginning with the 2005-2006 school year:

(1)iithe commissioner of education shall pay grants under Section 21.413, Education Code, as added by this Act; and

(2)iischool districts receiving grants shall pay stipends to certified master science teachers under Section 21.413, Education Code, as added by this Act.

SECTIONi8.iiThis Act takes effect September 1, 2003.

Representative Grusendorf moved to adopt the conference committee report on HBi411.

The motion prevailed.

HB 727 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Delisi submitted the following conference committee report on HB 727 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi727 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Janek Delisi
Gallegos Gutierrez
Deuell Capelo
On the part of the senate On the part of the house

HB 727, A bill to be entitled An Act relating to disease management programs for certain Medicaid recipients.

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

SECTIONi1.iiSubchapter B, Chapter 32, Human Resources Code, is amended by adding Section 32.059 to read as follows:

Sec.i32.059.iiCONTRACTS FOR DISEASE MANAGEMENT PROGRAMS.ii(a) The department shall request contract proposals from providers of disease management programs to provide program services to recipients of medical assistance who:

(1)iihave a disease or other chronic health condition, such as heart disease, hemophilia, diabetes, respiratory illness, end-stage renal disease, HIV infection, or AIDS, that the department determines is a disease or condition that needs disease management; and

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5661


(2)iiare not eligible to receive those services under a Medicaid managed care plan.

(b)iiThe department may contract with a public or private entity to:

(1)iiwrite the requests for proposals;

(2)iidetermine how savings will be measured;

(3)iiidentify populations that need disease management;

(4)iidevelop appropriate contracts; and

(5)iiassist the department in:

(A)iideveloping the content of disease management programs; and

(B)iiobtaining funding for those programs.

(c)iiThe department, by rule, shall prescribe the minimum requirements a provider of a disease management program must meet to be eligible to receive a contract under this section. The provider must, at a minimum, be required to:

(1)iiuse disease management approaches that are based on evidence-supported models, minimum standards of care, and clinical outcomes; and

(2)iiensure that a recipient's primary care physician and other appropriate specialty physicians, or registered nurses, advanced practice nurses, or physician assistants specified and directed or supervised in accordance with applicable law by the recipient's primary care physician or other appropriate specialty physicians, become directly involved in the disease management program through which the recipient receives services.

(d)iiThe department may not award a contract for a disease management program under this section unless the contract includes a written guarantee of state savings on expenditures for the group of medical assistance recipients covered by the program.

(e)iiThe department may enter into a contract under this section with a comprehensive hemophilia diagnostic treatment center that receives funding through a maternal and child health services block grant under Section 501(a)(2), Social Security Act (42 U.S.C. Section 701), and the center shall be considered a disease management provider.

(f)iiDirectly or through a provider of a disease management program that enters into a contract with the department under this section, the department shall, as appropriate and to the extent possible without cost to the state:

(1)iiidentify recipients of medical assistance under this chapter or, at the discretion of the department, enrollees in the child health plan under Chapter 62, Health and Safety Code, who are eligible to participate in federally funded disease management research programs operated by research-based disease management providers; and

(2)iiassist and refer eligible persons identified by the department under Subdivision (1) to participate in the research programs described by Subdivision (1).

5662 78th LEGISLATURE — REGULAR SESSION


SECTIONi2.ii(a) The Health and Human Services Commission shall conduct a study to analyze the potential for state savings through the use of disease management programs for recipients of medical assistance under Section 32.059, Human Resources Code, as added by this Act. The study must identify the diseases and chronic health conditions that:

(1)iiresult in the highest medical assistance expenditures by this state; and

(2)iishow the greatest potential for state savings on implementation of disease management programs.

(b)iiThe commission shall consider the results of the study when requesting contract proposals under Section 32.059, Human Resources Code, as added by this Act.

(c)iiThe commission may contract with a private entity to conduct a study and produce a report under this section.

(d)iiNot later than December 31, 2003, the commission shall complete the study required by this section and provide a report of its findings to the governor, the lieutenant governor, the speaker of the house of representatives, and the standing committees of the senate and house of representatives having jurisdiction over health and human services issues.

SECTIONi3.iiIf before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.

SECTIONi4.iiThis Act takes effect immediately 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, 2003.

Representative Delisi moved to adopt the conference committee report on HBi727.

A record vote was requested.

The motion prevailed by (Record 910): 146 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5663


Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Kolkhorst(C).

Absent — Farrar; Villarreal.

HB 1538 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the following conference committee report on HB 1538 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1538 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Shapleigh Chisum
Wentworth Noriega
Ratliff Hupp
Berman
Christian
On the part of the senate On the part of the house

HB 1538, A bill to be entitled An Act relating to the continuation and functions of the Texas Funeral Service Commission, including certain functions transferred to the commission from the Texas Department of Health, and the powers and duties of the Texas Finance Commission and the banking commissioner of Texas regarding cemeteries; providing administrative and civil penalties.

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

SECTIONi1.iiSection 651.001, Occupations Code, is amended by adding Subdivision (12-a) to read as follows:

(12-a)ii"Perpetual care cemetery" means a cemetery regulated under Chapter 712, Health and Safety Code.

SECTIONi2.iiSection 651.002, Occupations Code, is amended to read as follows:

Sec.i651.002.iiAPPLICATION OF SUNSET ACT. The Texas Funeral Service Commission is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2015 [2003].

5664 78th LEGISLATURE — REGULAR SESSION


SECTIONi3.iiSection 651.003(a), Occupations Code, is amended to read as follows:

(a)iiThis chapter does not affect the authority of the Texas Department of Banking to enforce Chapter 154, Finance Code, or to regulate perpetual care cemeteries.

SECTIONi4.iiSubchapter A, Chapter 651, Occupations Code, is amended by adding Section 651.004 to read as follows:

Sec.i651.004.iiREGULATION OF CEMETERY AND CREMATORY SERVICES. (a) The commission shall regulate cemetery and crematory services as provided by this chapter and Chapter 716, Health and Safety Code.

(b)iiThe commission may not regulate cemetery or crematory services that occur after burial or inurnment unless the services relate to the care and treatment of the remains in an urn, casket, or outer enclosure.

SECTIONi5.iiSection 651.057(a), Occupations Code, is amended to read as follows:

(a)iiThe governor shall designate one [public] member of the commission as the presiding officer of the commission to serve in that capacity for three years [at the pleasure of the governor]. In designating presiding officers, the governor shall alternate between public and nonpublic members.

SECTIONi6.iiSection 651.151(a), Occupations Code, is amended to read as follows:

(a)iiThe commission shall establish proficiency, professionalism, ethics, and qualification standards for individuals issued a license under this chapter [funeral directors and embalmers].

SECTIONi7.iiSection 651.152, Occupations Code, is amended to read as follows:

Sec.i651.152.iiRULES; PROCEDURES; FORMS. The commission shall [may] adopt rules, establish procedures, and prescribe forms necessary to administer and enforce this chapter and Chapters 714 and 715, Health and Safety Code.

SECTIONi8.iiSubchapter D, Chapter 651, Occupations Code, is amended by adding Section 651.1525 to read as follows:

Sec.i651.1525.iiEARLY PARTICIPATION IN RULEMAKING PROCESS; GUIDELINES. (a) Before publishing a proposed rule for public comment, the commission shall seek advice and opinions from persons who will be most affected by the rule. At a minimum, those persons must include consumer groups and trade associations that represent persons from each group regulated by the commission, including funeral directors and cemetery and crematory operators.

(b)iiThe commission shall develop guidelines to implement this section. The guidelines must establish a method to determine who will be most affected by a proposed rule.

SECTIONi9.iiSection 651.154, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiThe commission shall set the following fees in amounts reasonable and necessary to administer this chapter:

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(1)iithe funeral director's and embalmer's application fee, license fee, duplicate license fee, and reciprocal license fee; and

(2)iithe cemetery or funeral establishment license fee, renewal fee, and late renewal penalty.

(c)iiThe commission may not charge a fee to a perpetual care cemetery, including a fee for issuing or renewing a license issued under this chapter.

SECTIONi10.iiSection 651.157, Occupations Code, is amended to read as follows:

Sec.i651.157.iiINSPECTION OF CEMETERY, CREMATORY, OR FUNERAL ESTABLISHMENT. (a) Except as provided by Subsection (b), a licensed cemetery, crematory, or funeral establishment shall be inspected at least once every two years by an agent of the commission or by an agent of the state or a political subdivision authorized by the commission to make inspections on its behalf.

(b)iiIf the commission finds a violation of this chapter or of Chapter 193, [or] 361, 711, 714, 715, or 716, Health and Safety Code, the commission shall inspect the cemetery, crematory, or funeral establishment annually until the commission determines that the establishment is free of violations.

(c)iiA report of each inspection made under this section shall be filed with the commission.

(d)iiThe commission by rule shall establish:

(1)iiprocedures for the inspection of a cemetery, crematory, or funeral establishment required by this section; and

(2)iicriteria, including consideration of the establishment's inspection and complaint history, regarding when the commission should inspect an establishment based on the risk of a violation at an establishment.

(e)iiA premises on which funeral directing, interment, cremation, or embalming is practiced shall be open at all times to inspection for any violation of this chapter or of Chapter 193, [or] 361, or 716, Health and Safety Code, by:

(1)iian agent of the commission;

(2)iian authorized agent of the state; or

(3)iian authorized agent of the county or municipality in which the premises is located.

(f)iiBefore a commission agent inspects a cemetery, crematory, or funeral establishment, the agent shall review the inspection reports filed with the commission on the establishment. During the inspection, the agent shall determine whether previously identified problems have been corrected and whether a pattern of violations exists. The commission shall consider the information from the inspection reports in determining whether a penalty should be imposed against an establishment.

SECTIONi11.iiSubchapter D, Chapter 651, Occupations Code, is amended by adding Section 651.1571 to read as follows:

Sec.i651.1571.iiINSPECTION REQUIREMENTS FOR CERTAIN CEMETERIES; EXCEPTION FOR PERPETUAL CARE CEMETERIES. (a) This section and Section 651.157 do not apply to perpetual care cemeteries.

(b)iiExcept as provided by Section 651.157(b):

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(1)iia cemetery may not be inspected unless:

(A)iian interment has occurred in the cemetery within the two years preceding the inspection; or

(B)iithe commission has received a complaint about the cemetery; and

(2)iithe commission shall give lower priority to an inspection of a cemetery than to an inspection of a crematory or funeral establishment.

SECTIONi12.iiSection 651.164, Occupations Code, is amended to read as follows:

Sec.i651.164.iiLICENSE [OR REGISTRATION] EXPIRATION. The commission by rule may adopt a system under which licenses [or registrations] expire on various dates during the year. For the year in which the license [or registration] expiration date is changed, the commission shall prorate license [or registration] fees on a monthly basis so that each license holder [or registrant] pays only that portion of the license [or registration] fee that is allocable to the number of months during which the license [or registration] is valid. On renewal of the license [or registration] on the new expiration date, the total license [or registration] renewal fee is payable.

SECTIONi13.iiSubchapter D, Chapter 651, Occupations Code, is amended by adding Sections 651.166 and 651.167 to read as follows:

Sec.i651.166.iiUSE OF TECHNOLOGY. The commission shall develop and implement a policy requiring the executive director and commission employees to research and propose appropriate technological solutions to improve the commission's ability to perform its functions. The technological solutions must:

(1)iiensure that the public is able to easily find information about the commission on the Internet;

(2)iiensure that persons who want to use the commission's services are able to:

(A)iiinteract with the commission through the Internet; and

(B)iiaccess any service that can be provided effectively through the Internet; and

(3)iibe cost-effective and developed through the commission's planning processes.

Sec.i651.167.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The commission shall develop and implement a policy to encourage the use of:

(1)iinegotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of commission rules; and

(2)iiappropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the commission's jurisdiction.

(b)iiThe commission's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

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(c)iiThe commission shall designate a trained person to:

(1)iicoordinate the implementation of the policy adopted under Subsection (a);

(2)iiserve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3)iicollect data concerning the effectiveness of those procedures, as implemented by the commission.

SECTIONi14.iiSections 651.202(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe commission by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission. The commission may provide for that notice:

(1)iion each license [or registration] form, application, or written contract for services of a person regulated under this chapter;

(2)iion a sign prominently displayed in the place of business of each person regulated under this chapter; or

(3)iiin a bill for service provided by a person regulated under this chapter.

(b)iiThe commission shall adopt rules concerning a complaint filed under this section. The rules adopted under this subsection must:

(1)iiestablish procedures regarding the receipt, investigation, and disposition of complaints;

(2)iiallow for an informal hearing process;

(3)iiestablish a formal hearing process;

(4)iiensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint;

(5)iiensure that the license holder [or registrant] who is the subject of the complaint has an opportunity to be heard regarding the complaint; and

(6)iiestablish procedures by which a commission employee may dismiss a complaint, subject to approval by the executive director or the executive director's designee, if the investigation does not reveal a violation.

SECTIONi15.iiSection 651.2595(d), Occupations Code, is amended to read as follows:

(d)iiThe commission shall approve or deny a provisional license holder's application for a license not later than the second anniversary of [180th day after] the date on which the provisional license is issued. The commission may extend the two-year [180-day] period if the results of an examination have not been received by the commission before the end of that period.

SECTIONi16.iiSection 651.261, Occupations Code, is amended to read as follows:

Sec.i651.261.iiPOSTING OF LICENSE. A license holder shall conspicuously display the holder's license in each place of business at which the license holder practices [funeral directing or embalming].

SECTIONi17.iiSections 651.267(a) and (d), Occupations Code, are amended to read as follows:

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(a)iiOn application, the commission may reissue a [funeral director's or embalmer's] license issued under this subchapter to a person whose license has been suspended or revoked. An application to reissue a license may not be made before the first anniversary of the date of the suspension or revocation.

(d)iiA license that has been revoked or suspended for a period of five years or more may be reinstated only after the applicant passes the applicable [written embalming or funeral directing] examination.

SECTIONi18.iiSections 651.302(a) and (b), Occupations Code, are amended to read as follows:

(a)iiThe commission shall issue a provisional license to practice funeral directing to an applicant who:

(1)iiis at least 18 years of age;

(2)iihas completed the educational requirements of Section 651.253 or is enrolled in an accredited school or college of mortuary science;

(3)iiis employed by a funeral director to learn funeral directing or embalming under the instruction and supervision of the funeral director [takes the written examination given by the commission];

(4)iifiles an application for a provisional license on a form provided by the commission and verified under oath by the applicant; and

(5)iipays any required application or license fee.

(b)iiThe commission shall issue a provisional license to practice embalming to an applicant who:

(1)iiis at least 18 years of age;

(2)iihas completed the educational requirements of Section 651.253 or is enrolled in an accredited school or college of mortuary science;

(3)ii[takes the written examination given by the commission;

[(4)]iifiles an application for a provisional license;

(4)i[(5)]iipays any required application or license fee; and

(5)i[(6)]iicomplies with the requirements of this chapter and of the commission.

SECTIONi19.iiSection 651.303(b), Occupations Code, is amended to read as follows:

(b)iiThe commission by rule shall define the terms of employment of a provisional license holder. The terms of employment:

(1)iimust include service by the provisional license holder:

(A)iiof at least 17 hours a week or 73 hours a month; and

(B)iiunder actual working conditions and under the personal supervision of a funeral director or embalmer; and

(2)iimay not require more than 17 hours a week or 73 hours a month.

SECTIONi20.iiSubchapter G, Chapter 651, Occupations Code, is amended by adding Section 651.3035 to read as follows:

Sec.i651.3035.iiMORTUARY COLLEGE CREDIT FOR PROVISIONAL LICENSE PROGRAM. (a) A case completed under Section 651.303(d) may serve as credit for both mortuary school or college and the provisional license holder program.

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(b)iiA mortuary school or college may designate a funeral director or embalmer who is supervising a provisional license holder under Section 651.303 as a clinical instructor for the provisional license holder.

SECTIONi21.iiSection 651.304(b), Occupations Code, is amended to read as follows:

(b)iiA provisional license holder shall report to the commission monthly. The report must:

(1)iibe made not later than the 10th day after the end of the month;

(2)iiidentify each case that the provisional license holder:

(A)iiassisted in handling during that month if the provisional license holder is a funeral director applicant; or

(B)iihandled or assisted in handling during that month if the provisional license holder is an embalmer applicant;

(3)iilist any credit earned for mortuary school or college under Section 651.3035; and

(4)i[(3)]iibe certified by the funeral director or embalmer under whom the provisional license holder performed the work.

SECTIONi22.iiThe heading to Subchapter H, Chapter 651, Occupations Code, is amended to read as follows:

SUBCHAPTER H. LICENSE REQUIREMENTS: CEMETERY, FUNERAL, [ESTABLISHMENTS] AND COMMERCIAL EMBALMER ESTABLISHMENTS

SECTIONi23.iiSubchapter H, Chapter 651, Occupations Code, is amended by adding Section 651.353 to read as follows:

Sec.i651.353.iiCEMETERY ESTABLISHMENT REQUIREMENTS. (a) A cemetery may not conduct a cemetery business unless the facility is licensed by the commission.

(b)iiThis chapter does not require a cemetery to be owned by a person licensed under this chapter.

(c)iiTo obtain an initial cemetery license, an applicant must apply for a license and pay the licensing fee. The commission shall issue an initial cemetery license on determining that the applicant satisfies the requirements of this chapter.

(d)iiThis section does not apply to:

(1)iia family, fraternal, or community cemetery that is not larger than 10 acres;

(2)iian unincorporated association of plot owners not operated for profit;

(3)iia church, a religious society or denomination, or an entity solely administering the temporalities of a church or religious society or denomination; or

(4)iia public cemetery owned by this state, a county, or a municipality.

SECTIONi24.iiSection 651.354, Occupations Code, is amended to read as follows:

Sec.i651.354.iiRENEWAL OF CEMETERY OR FUNERAL ESTABLISHMENT LICENSE. (a) The commission shall mail written notice to a cemetery or funeral establishment of the impending expiration of the [funeral]

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establishment's license not later than the 30th day before the expiration date of the license. Except as provided by Subsection (d), the [The] notice must state that:

(1)iito renew the license, the cemetery or funeral establishment must pay the renewal fee not later than September 30; and

(2)iithe license is automatically renewed on receipt of the renewal fee.

(b)iiA cemetery or funeral establishment that fails to pay the license renewal fee by the due date is subject to a late payment penalty equal to the amount charged for the license renewal fee.

(c)iiIf the license is expired for longer than 30 days, the cemetery or funeral establishment may not renew the license and may not operate as a cemetery or funeral establishment until the establishment is issued a new license in the manner provided for issuing an original license.

(d)iiTo renew a license for a perpetual care cemetery, the cemetery must submit a renewal on a form prescribed by the commission. The license is renewed on receipt of the form by the commission.

SECTIONi25.iiSection 651.4065(c), Occupations Code, is amended to read as follows:

(c)iiThe operator of a [registrant for the] cemetery [or crematory] shall sign a [the] purchase agreement for a cemetery.

SECTIONi26.iiSection 651.455(a), Occupations Code, is amended to read as follows:

(a)iiA person violates this chapter if the person uses a statement that misleads or deceives the public, including a fraudulent statement or any other type of a false or misleading statement regarding:

(1)iia legal, religious, or cemetery requirement for funeral merchandise or funeral, cemetery, or crematory services;

(2)iithe preservative qualities of funeral merchandise or funeral, cemetery, or crematory services in preventing or substantially delaying natural decomposition of human remains;

(3)iithe airtight or watertight properties of a casket or outer enclosure; [or]

(4)iithe licenses [or registrations] held by the personnel in the operation of the cemetery, crematory, or funeral establishment; or

(5)iian activity regulated under this chapter, including the sale of funeral-related goods or services.

SECTIONi27.iiSection 651.456, Occupations Code, is amended to read as follows:

Sec.i651.456.iiUNETHICAL CONDUCT REGARDING CUSTODY OF DEAD HUMAN BODY. A person violates this chapter if the person:

(1)iitakes custody of a dead human body without the permission of:

(A)iithe person or the agent of the person authorized to make funeral arrangements for the deceased; or

(B)iia medical examiner or a justice of the peace who has jurisdiction over the body under Articles 49.02-49.05, Code of Criminal Procedure; [or]

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(2)iirefuses to promptly surrender a dead human body to a person or agent authorized to make funeral arrangements for the deceased; or

(3)iiviolates any state law governing the transportation, storage, refrigeration, inurnment, interment, or disinterment of a dead human body.

SECTIONi28.iiSection 651.459(a), Occupations Code, is amended to read as follows:

(a)iiA person violates this chapter if the person:

(1)iiwilfully makes a false statement on:

(A)iia death certificate, including forgery of a physician's signature; or

(B)iia document required by this chapter or a rule adopted under this chapter;

(2)iiengages in fraudulent, unprofessional, or deceptive conduct in providing funeral services or merchandise to a customer;

(3)iiengages in dishonest conduct, wilful conduct, or negligence in the practice of embalming or funeral directing that is likely to or does deceive, defraud, or otherwise injure the public;

(4)iicauses the execution of a document by the use of fraud, deceit, or misrepresentation;

(5)iidirectly or indirectly employs a person to solicit individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, embalmer, or funeral establishment;

(6)iimisappropriates funds held by a license holder, a funeral establishment, an employee or agent of the funeral establishment, or another depository, that create an obligation to provide a funeral service or merchandise, including retaining for an unreasonable time excess funds paid by or on behalf of the customer for which the customer is entitled to a refund; or

(7)iiperforms acts of funeral directing or embalming that are outside the licensed scope and authority of the license holder, or performs acts of funeral directing or embalming in a capacity other than that of an employee, agent, subcontractor, or assignee of a licensed funeral establishment that has contracted to perform those acts.

SECTIONi29.iiSubchapter K, Chapter 651, Occupations Code, is amended by adding Section 651.5026 to read as follows:

Sec.i651.5026.iiTEMPORARY LICENSE SUSPENSION OR RESTRICTION; DISCIPLINARY PANEL. (a) The presiding officer of the commission shall appoint a three-member disciplinary panel composed of two funeral industry members and one public member of the commission to determine whether a funeral director's or embalmer's license should be temporarily suspended or restricted.

(b)iiChapter 551, Government Code, does not prohibit the disciplinary panel from holding a meeting by telephone conference call if convening the panel at one location is inconvenient for any member of the panel.

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(c)iiThe disciplinary panel shall temporarily suspend or restrict the license if the panel determines from the information presented to it with or without a hearing, that the license holder has violated this chapter or a rule adopted under this chapter and would, by the license holder's continued unrestricted activity, constitute a continuing threat to the public welfare.

(d)iiThe suspension or restriction may be without notice or hearing if:

(1)iithe commission immediately provides notice of the suspension or restriction to the funeral director or embalmer;

(2)iiproceedings for a hearing under Section 651.506 are initiated simultaneously with the suspension or restriction; and

(3)iithe hearing is held as required by Chapter 2001, Government Code, and this chapter not later than 48 hours after the suspension or restriction.

(e)iiIf the disciplinary panel affirms the temporary suspension or restriction at a hearing, the commission shall schedule an informal compliance meeting that meets the requirements of Section 2001.054(c), Government Code, and this chapter to be held as soon as practicable unless:

(1)iiit is evident from the determination of the panel that the funeral director or embalmer would be unable to show compliance at the informal meeting regarding the issues that are the basis for the temporary suspension or restriction; or

(2)iian informal meeting has already been held regarding the issues that are the basis for the temporary suspension or restriction.

(f)iiIf the funeral director or embalmer is unable to show compliance at the informal meeting under Subsection (e), the commission shall file a formal complaint under this chapter as soon as practicable.

(g)iiIf the disciplinary panel does not temporarily suspend or restrict the license after considering the information presented to it at a hearing under Subsection (c), the facts that were the basis for the temporary suspension or restriction may not be the sole basis of another proceeding to temporarily suspend or restrict the funeral director's or embalmer's license. The commission may use those same facts in a later investigation to obtain new information that may be the basis for the temporary suspension or restriction of a funeral director's or embalmer's license, including facts presented to the disciplinary panel and facts known to the commission at the time evidence was presented to the disciplinary panel.

SECTIONi30.iiThe heading to Subchapter N, Chapter 651, Occupations Code, is amended to read as follows:

SUBCHAPTER N. LICENSING [REGISTRATION] REQUIREMENTS: [CEMETERIES AND] CREMATORIES

SECTIONi31.iiSection 651.652(a), Occupations Code, is amended to read as follows:

(a)iiThis subchapter applies only to a [cemetery or] crematory that sells goods or services related to the burial or final disposition of a body.

SECTIONi32.iiSection 711.004(f), Health and Safety Code, is amended to read as follows:

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(f)iiExcept as is authorized for a justice of the peace acting as coroner or medical examiner under Chapter 49, Code of Criminal Procedure, remains may not be removed from a cemetery except on the written order of the state registrar or the state registrar's designee. The cemetery organization shall keep a duplicate copy of the order as part of its records. The Texas Funeral Service Commission [Board of Health] may adopt rules to implement this subsection.

SECTIONi33.iiSection 711.007(b), Health and Safety Code, is amended to read as follows:

(b)iiThe proceeding may be brought by:

(1)iithe attorney general;

(2)iithe Banking Commissioner of Texas;

(3)iithe governing body of a municipality with a population of more than 25,000, if the cemetery is located in the municipality or not farther than five miles from the municipality;

(4)iithe district attorney of the county, if the cemetery is located in an area of the county not described by Subdivision (3);

(5)iithe owner of a residence:

(A)iiin or near the municipality in which the cemetery is located; or

(B)iiin the area proscribed for the location of a cemetery by Section 711.008;

(6)iithe Texas Funeral Service Commission; or

(7)i[(6)]iithe owner of a plot in the cemetery.

SECTIONi34.iiSubchapter A, Chapter 711, Health and Safety Code, is amended by adding Section 711.012 to read as follows:

Sec.i711.012.iiRULES. (a) The Finance Commission of Texas may adopt rules to enforce and administer Sections 711.003, 711.008, 711.021-711.024, 711.032-711.035, 711.038, 711.040-711.042, 711.052, 711.061, and 711.062 relating to perpetual care cemeteries.

(b)iiThe Texas Funeral Service Commission may adopt rules, establish procedures, and prescribe forms to enforce and administer Sections 711.003, 711.008, 711.010, 711.011, 711.021-711.035, 711.038, 711.041, 711.042, 711.061, and 711.062 relating to cemeteries that are not perpetual care cemeteries.

SECTIONi35.iiSubchapter D, Chapter 711, Health and Safety Code, is amended by adding Sections 711.053-711.056 to read as follows:

Sec.i711.053.iiDEFINITION. In this subchapter, "commissioner" means the banking commissioner of Texas.

Sec.i711.054.iiENFORCEMENT BY FINANCE COMMISSION OF TEXAS. The Finance Commission of Texas may use remedies available under Chapter 712 to enforce a section listed under Section 711.012(a) relating to perpetual care cemeteries.

Sec.i711.055.iiENFORCEMENT BY COMMISSIONER. (a) Chapter 2001, Government Code, applies to a proceeding under this section.

(b)iiAfter notice and opportunity for hearing, the commissioner may impose an administrative penalty on a person who:

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(1)iiviolates this chapter or a final order of the commissioner or rule of the Finance Commission of Texas and does not correct the violation before the 31st day after the date the person receives written notice of the violation from the Texas Department of Banking; or

(2)iiengages in a pattern of violations, as determined by the commissioner.

(c)iiThe amount of the penalty for each violation may not exceed $1,000 for each day the violation occurs.

(d)iiIn determining the amount of the penalty, the commissioner shall consider the seriousness of the violation, the person's history of violations, and the person's good faith in attempting to comply with this chapter. The commissioner may collect the penalty in the same manner that a money judgment is enforced in district court.

(e)iiIn addition to any penalty that may be imposed under Subsection (b), the commissioner may bring a civil action against a person to enjoin a violation described in Subsection (b) that has not been corrected within 30 days after receipt by the person of written notice of the violation from the commissioner. The civil action may be brought in the district court of the county in which the cemetery is operated.

(f)iiThe commissioner may issue an order to cease and desist if a violation described in Subsection (b) has not been corrected within 30 days after receipt by the person of written notice of the violation from the commissioner. Any order proposed under this subsection shall be served on the person, shall state the grounds for the proposed order with reasonable certainty, and shall state the proposed effective date, which may not be less than 15 days after receipt by the person. Unless the person requests a hearing within 15 days after the receipt, the order is effective as proposed.

Sec.i711.056.iiPATTERN OF WILFUL DISREGARD. (a) If after a hearing conducted as provided by Chapter 2001, Government Code, the trier of fact finds that a violation of this chapter or a rule of the Finance Commission of Texas establishes a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission, the trier of fact shall recommend to the commissioner that the maximum administrative penalty permitted under Section 711.055 be imposed on the person committing the violation or that the commissioner cancel or not renew the person's permit under Chapter 154, Finance Code, if the person holds such a permit.

(b)iiFor the purposes of this section, violations corrected as provided by Section 711.055 may be included in determining whether a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission exists.

SECTIONi36.iiSection 712.002, Health and Safety Code, is amended to read as follows:

Sec.i712.002.iiEXEMPTIONS FROM CHAPTER. This chapter does not apply to:

(1)iia family, fraternal, or community cemetery that is not larger than 10 acres;

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(2)iian unincorporated association of plot owners not operated for profit;

(3)ii[a nonprofit corporation organized by plot owners; or

[(4)]iia church, a religious society or denomination, or an entity solely administering the temporalities of a church or religious society or denomination; or

(4)iia public cemetery owned by this state, a county, or a municipality.

SECTIONi37.iiSection 712.008, Health and Safety Code, is amended to read as follows:

Sec.i712.008.iiRULES. (a) The Finance Commission of Texas may adopt rules to enforce and administer this chapter, including rules establishing fees to defray the costs of enforcing and administering this chapter.

(b)iiThe Finance Commission of Texas shall adopt rules establishing reasonable standards for:

(1)iitimely placement of burial markers or monuments in a perpetual care cemetery; and

(2)iitimely response to consumer complaints made to a corporation that operates a perpetual care cemetery.

SECTIONi38.iiSection 712.025, Health and Safety Code, is amended to read as follows:

Sec.i712.025.iiUSE OF FUND INCOME. Fund income [may be applied in the manner the directors of a corporation determine to be for the best interest of the corporation's perpetual care cemetery and] may be used only to provide [for] the perpetual care described by the [resolution, bylaw, or other action or] instrument that established the fund, including the general care and maintenance of the property entitled to perpetual care in the perpetual care cemetery.

SECTIONi39.iiSections 712.028(a) and (c), Health and Safety Code, are amended to read as follows:

(a)iiA corporation shall deposit in its fund an amount that is at least:

(1)iithe greater of:

(A)ii$1.75 [$1.50] a square foot of ground area conveyed as perpetual care property; or

(B)ii15 [10] percent of the total purchase price of that ground area;

(2)iithe greater of:

(A)ii$105 [$90] for each crypt interment right for mausoleum interment or lawn crypt interment conveyed as perpetual care property, or $60 [$50] for each crypt interment right if that crypt is accessible only through another crypt; or

(B)iiseven [five] percent of the total purchase price of that crypt interment right; and

(3)iithe greater of:

(A)ii$35 [$30] for each niche interment right for columbarium interment conveyed; or

(B)ii15 [10] percent of the total purchase price of that niche interment right.

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(c)iiIf a plot owner exchanges a plot for another plot in a corporation's perpetual care cemetery, the amount to be deposited in the corporation's fund in respect of the plot received by the plot owner in the exchange may be reduced by the amount deposited in the fund in respect of the plot contributed by the plot owner in the exchange. The amount required to be deposited with respect to an exchanged plot is the amount required at the time the plot owner originally contracted to purchase the plot.

SECTIONi40.iiSection 715.003, Health and Safety Code, is amended to read as follows:

Sec.i715.003.iiPARTIES TO ACTION. An action commenced under this chapter shall be brought by the incorporators of the nonprofit corporation on behalf of the nonprofit corporation. The necessary parties to the action on which citation shall be served under Section 715.006 are:

(1)iithe record owners of the real property comprising the historic cemetery;

(2)iithe owners of plots in the cemetery, who may be designated as a class in the petition; [and]

(3)iithe Texas Historical Commission; and

(4)iithe Texas Funeral Service Commission.

SECTIONi41.iiSection 715.006(a), Health and Safety Code, is amended to read as follows:

(a)iiBefore the 31st day after the date an action is commenced by a nonprofit corporation under this chapter, the nonprofit corporation shall cause citation to be issued and served by certified mail, return receipt requested, on:

(1)iithe record owners of the real property comprising the cemetery at their last known addresses;

(2)iithe owners of plots in the cemetery at their last known addresses;

(3)iithe Texas Historical Commission at its office in Austin, Texas;

(4)iithe Texas Funeral Service Commission; and

(5)i[(4)]iithe county auditor of the county in which the cemetery is located.

SECTIONi42.iiThe following laws are repealed:

(1)iiSection 651.1575, Occupations Code;

(2)iiSection 651.302(c), Occupations Code;

(3)iiSection 651.455(b), Occupations Code; and

(4)iiSection 651.506(j), Occupations Code.

SECTIONi43.iiOn September 1, 2003:

(1)iiall functions and activities related to Chapter 711, Health and Safety Code, performed by the Texas Department of Health immediately before that date are transferred to the Texas Funeral Service Commission;

(2)iia rule or form of the Texas Department of Health related to Chapter 711, Health and Safety Code, is a rule or form of the Texas Funeral Service Commission and remains in effect until amended or replaced by that commission;

(3)iia reference in law or an administrative rule to the Texas Department of Health that relates to Chapter 711, Health and Safety Code, means the Texas Funeral Service Commission; and

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5677


(4)iia complaint, investigation, or other proceeding before the Texas Department of Health that is related to Chapter 711, Health and Safety Code, is transferred without change in status to the Texas Funeral Service Commission, and the Texas Funeral Service Commission assumes, as appropriate and without a change in status, the position of the Texas Department of Health in an action or proceeding to which the Texas Department of Health is a party.

SECTIONi44.iiOn March 1, 2004, Sections 651.652(b), 651.653, 651.654, and 651.655, Occupations Code, are repealed.

SECTIONi45.iiA cemetery is not required to hold a license under Chapter 651, Occupations Code, as amended by this Act, until March 1, 2004.

SECTIONi46.iiThe change in law made by this Act to Section 712.028, Health and Safety Code, applies only to a contract for the purchase of a plot in a perpetual care cemetery entered into, or the exchange of a plot in a perpetual care cemetery made, on or after the effective date of this Act. A contract for the purchase of a plot in a perpetual care cemetery entered into, or the exchange of a plot in a perpetual care cemetery made, before the effective date of this Act is governed by the law as it existed immediately before that effective date, and that law is continued in effect for that purpose.

SECTIONi47.iiThis Act takes effect September 1, 2003.

Representative Chisum moved to adopt the conference committee report on HBi1538.

The motion prevailed.

HJR 85 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Homer submitted the following conference committee report on HJR 85 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HJRi85 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Van de Putte Homer
Madla Phillips
Lindsay Truitt
Swinford
R. Cook
On the part of the senate On the part of the house

HJR 85, A joint resolution proposing a constitutional amendment to allow the legislature to authorize and govern the operation of wineries in this state.

5678 78th LEGISLATURE — REGULAR SESSION


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

SECTIONi1.iiSection 20, Article XVI, Texas Constitution, is amended by adding Subsection (d) to read as follows:

(d)iiThe legislature may enact laws and direct the Alcoholic Beverage Commission or its successor to set policies for all wineries in this state, regardless of whether the winery is located in an area in which the sale of wine has or has not been authorized by local option election, for the manufacturing of wine, including the on-premises selling of wine to the ultimate consumer for consumption on or off the winery premises, the buying of wine from or the selling of wine to any other person authorized under general law to purchase and sell wine in this state, and the dispensing of wine without charge, for tasting purposes, for consumption on the winery premises, and for any purpose to promote the wine industry in this state.

SECTIONi2.iiThis proposed constitutional amendment shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "A constitutional amendment to allow the legislature to enact laws authorizing and governing the operation of wineries in this state."

Representative Homer moved to adopt the conference committee report on HJRi85.

A record vote was requested.

The motion prevailed by (Record 911): 144 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Kolkhorst(C).

Absent — Coleman; Eiland; Farrar; Moreno, P.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5679


SBi1835 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Eissler submitted the conference committee report on SBi1835.

Representative Eissler moved to adopt the conference committee report on SBi1835.

A record vote was requested.

The motion prevailed by (Record 912): 86 Yeas, 53 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Dawson; Delisi; Denny; Deshotel; Driver; Eiland; Eissler; Elkins; Ellis; Farabee; Flynn; Gallego; Gattis; Goolsby; Griggs; Grusendorf; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Hartnett; Heflin; Hilderbran; Hill; Homer; Hope; Hopson; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; Krusee; Kuempel; Laney; Laubenberg; Madden; Marchant; McCall; McReynolds; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Peña; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, W.; Smithee; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Canales; Capelo; Castro; Chavez; Coleman; Davis, J.; Davis, Y.; Dukes; Dunnam; Dutton; Edwards; Escobar; Farrar; Geren; Giddings; Goodman; Guillen; Harper-Brown; Hochberg; Hodge; Hughes; Jones, J.; King; Lewis; Luna; Mabry; McClendon; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Solis; Solomons; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Kolkhorst(C).

Absent — Bonnen; Burnam; Cook, R.; Flores; Garza; Hegar; Howard; Martinez Fischer; Smith, T.

STATEMENTS OF VOTE

When Record No. 912 was taken, I was in the house but away from my desk. I would have voted yes.

Flores

When Record No. 912 was taken, I was in the house but away from my desk. I would have voted yes.

Hegar

I was shown voting no on Record No. 912. I intended to vote yes.

Hodge

5680 78th LEGISLATURE — REGULAR SESSION


When Record No. 912 was taken, I was in the house but away from my desk. I would have voted no.

Martinez Fischer

I was shown voting no on Record No. 912. I intended to vote yes.

McClendon

When Record No. 912 was taken, I was in the house but away from my desk. I would have voted no.

T. Smith

(Uresti in the chair)

SBi1664 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hopson submitted the conference committee report on SBi1664.

SBi1664 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE CALLEGARI: Mr. Hopson, do you understand that the Sunset bill for the TDHCA (Texas Department of Housing and Community Affairs) has a provision that changes the private activity bond program from a lottery system to a point system?

REPRESENTATIVE HOPSON: No, that is my understanding.

CALLEGARI: I would like to ask if you also agree that your bill, SBi1664, Mr. Hegar's bill actually, SBi1664, is not intended to replace any provisions in SBi264 with regards to the private activity bond program and is not intended to affect the provisions in SBi264 that replace the lottery system with a point system?

HOPSON: That's my understanding, Mr. Callegari.

CALLEGARI: Thank you very much.

REMARKS ORDERED PRINTED

Representative Callegari moved to print remarks between Representative Callegari and Representative Hopson.

The motion prevailed without objection.

Representative Hopson moved to adopt the conference committee report on SBi1664.

The motion prevailed.

HR 1860 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1860, suspending the limitations on the conferees for HBi2424.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5681


HR 1859 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1859, suspending the limitations on the conferees for HBi3459.

HB 320 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Grusendorf submitted the following conference committee report on HB 320 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi320 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Fraser Grusendorf
Duncan Dutton
Shapiro Hupp
Bivins Howard
B. Brown
On the part of the senate On the part of the house

HB 320, A bill to be entitled An Act relating to the refusal to administer or consent to the administration of certain psychiatric or psychological treatment to a child.

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

SECTIONi1.iiChapter 26, Education Code, is amended by adding Section 26.0091 to read as follows:

Sec.i26.0091.iiREFUSAL OF PSYCHIATRIC OR PSYCHOLOGICAL TREATMENT OF CHILD AS BASIS OF REPORT OF NEGLECT. (a) In this section, "psychotropic drug" has the meaning assigned by Section 261.111, Family Code.

(b)iiAn employee of a school district may not use or threaten to use the refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic drug to the child, or to consent to any other psychiatric or psychological testing or treatment of the child, as the sole basis for making a report of neglect of the child under Subchapter B, Chapter 261, Family Code, unless the employee has cause to believe that the refusal:

(1)iipresents a substantial risk of death, disfigurement, or bodily injury to the child; or

(2)iihas resulted in an observable and material impairment to the growth, development, or functioning of the child.

5682 78th LEGISLATURE — REGULAR SESSION


SECTIONi2.iiSubchapter A, Chapter 29, Education Code, is amended by adding Section 29.0041 to read as follows:

Sec.i29.0041.iiINFORMATION AND CONSENT FOR CERTAIN PSYCHOLOGICAL EXAMINATIONS OR TESTS. (a) On request of a child's parent, before obtaining the parent's consent under 20 U.S.C. Section 1414 for the administration of any psychological examination or test to the child that is included as part of the evaluation of the child's need for special education, a school district shall provide to the child's parent:

(1)iithe name and type of the examination or test; and

(2)iian explanation of how the examination or test will be used to develop an appropriate individualized education program for the child.

(b)iiIf the district determines that an additional examination or test is required for the evaluation of a child's need for special education after obtaining consent from the child's parent under Subsection (a), the district shall provide the information described by Subsections (a)(1) and (2) to the child's parent regarding the additional examination or test and shall obtain additional consent for the examination or test.

(c)iiThe time required for the district to provide information and seek consent under Subsection (b) may not be counted toward the 60 calendar days for completion of an evaluation under Section 29.004. If a parent does not give consent under Subsection (b) within 20 calendar days after the date the district provided to the parent the information required by that subsection, the parent's consent is considered denied.

SECTIONi3.iiSubchapter B, Chapter 261, Family Code, is amended by adding Section 261.111 to read as follows:

Sec.i261.111.iiREFUSAL OF PSYCHIATRIC OR PSYCHOLOGICAL TREATMENT OF CHILD. (a) In this section, "psychotropic drug" means a substance that is:

(1)iiused in the diagnosis, treatment, or prevention of a disease or as a component of a medication; and

(2)iiintended to have an altering effect on perception, emotion, or behavior.

(b)iiThe refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic drug to the child, or to consent to any other psychiatric or psychological treatment of the child, does not by itself constitute neglect of the child unless the refusal to consent:

(1)iipresents a substantial risk of death, disfigurement, or bodily injury to the child; or

(2)iihas resulted in an observable and material impairment to the growth, development, or functioning of the child.

SECTIONi4.iiThis Act takes effect immediately 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, 2003.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5683


Representative Grusendorf moved to adopt the conference committee report on HBi320.

A record vote was requested.

The motion prevailed by (Record 913): 140 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Uresti(C).

Absent — Capelo; Cook, B.; Dawson; Jones, D.; Krusee; Martinez Fischer; Pitts; Telford.

STATEMENT OF VOTE

When Record No. 913 was taken, I was in the house but away from my desk. I would have voted yes.

Martinez Fischer

HB 471 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Pickett submitted the following conference committee report on HB 471 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi471 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

5684 78th LEGISLATURE — REGULAR SESSION


Lucio Pickett
Madla Krusee
Wentworth Hamric
Lindsay Gutierrez
On the part of the senate On the part of the house

HB 471, A bill to be entitled An Act relating to the borrowing of money and the issuance of notes by the Texas Transportation Commission; making an appropriation.

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

SECTIONi1.iiSubchapter C, Chapter 201, Transportation Code, is amended by adding Section 201.115 to read as follows:

Sec.i201.115.iiBORROWING MONEY. (a) The commission may borrow money from any source to carry out the functions of the department.

(b)iiA loan under this section may be in the form of an agreement, note, contract, or other form as determined by the commission and may contain any provisions the commission considers appropriate, except:

(1)iithe term of the loan may not exceed two years;

(2)iithe amount of the loan, combined with any amounts outstanding on other loans under this section, may not exceed the average monthly revenue deposited to the state highway fund for the 12 months preceding the month of the loan; and

(3)iithe loan may not create general obligation of the state and is payable only as authorized by legislative appropriation.

(c)iiIf the commission borrows money by the issuance of notes, the notes shall be issued in accordance with the requirements of Subchapter N, except that the maturity limitations in Subsection (b) supersede the maturity limitations in Section 201.963.

(d)iiNotwithstanding Section 222.001, money in the state highway fund may be used to repay a loan under this section, if appropriated by the legislature for that purpose.

SECTIONi2.iiChapter 201, Transportation Code, is amended by adding Subchapter N to read as follows:

SUBCHAPTER N. HIGHWAY TAX AND REVENUE ANTICIPATION NOTES

Sec.i201.961.iiDEFINITIONS. In this subchapter:

(1)ii"Committee" means the cash management committee described in Section 404.122, Government Code.

(2)ii"Credit agreement" has the meaning assigned by Section 1208.001, Government Code.

(3)ii"Notes" means tax and revenue anticipation notes issued under this subchapter. The term includes any obligation under a credit agreement.

Sec.i201.962.iiNOTES AUTHORIZED; COMMITTEE APPROVAL. (a) In anticipation of a temporary cash flow shortfall in the state highway fund during any fiscal year, the commission, subject to the approval of the committee, may issue, sell, and deliver tax and revenue anticipation notes on behalf of the state.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5685


(b)iiBefore issuing the notes, the commission shall submit to the committee a state highway fund cash flow shortfall forecast containing a detailed report of estimated revenue and expenditures. Based on the forecast, the committee may approve the issuance of notes in an amount not to exceed the maximum temporary cash flow shortfall forecast.

Sec.i201.963.iiISSUANCE OF NOTES. (a) The commission, consistent with the committee's determination under Section 201.962, may issue, sell, and deliver the notes.

(b)iiNotes issued under this subchapter are not debts of the state and may be used only to make up a temporary shortfall in the state highway fund's cash flow. All notes must mature and be paid in full during the fiscal biennium in which they were issued.

(c)iiExcept as otherwise provided by this subsection, the proceeds of the notes shall be deposited in a special fund in the state treasury known as the highway tax and revenue anticipation note fund. Notwithstanding any other provision of law, depository interest shall be credited to the fund. The department shall transfer the net proceeds from the fund to the state highway fund as necessary to pay authorized expenditures. The comptroller may invest funds in the highway tax and revenue anticipation note fund as authorized under Section 404.024, Government Code. Proceeds of a credit agreement may be deposited as provided by the order authorizing the credit agreement.

(d)iiThe commission may exercise the powers granted to the governing body of an issuer in connection with the issuance of obligations under Chapter 1371, Government Code, to the extent not inconsistent with this subchapter. The notes are not subject to review by the Bond Review Board but are subject to review and approval by the attorney general as provided by Chapter 1371, Government Code. On request, the comptroller may assist the commission with the issuance of notes under this subchapter.

(e)iiThe commission is an authorized issuer under Chapter 1201, Government Code, and that chapter applies to notes authorized by this subchapter.

(f)iiAmounts in the highway tax and revenue anticipation note fund may be pledged to secure the payment of the notes and performance of obligations under credit agreements relating to the notes and may be used to pay issuance costs and required rebates to the federal government.

Sec.i201.964.iiFUND TRANSFERS; INTEREST; PAYMENT OF NOTES. (a) The department periodically shall transfer cash received in the state highway fund to the highway tax and revenue anticipation note fund to ensure the timely payment of the notes.

(b)iiOn payment of all outstanding notes, rebates to the federal government, and costs of issuance, the department shall transfer to the state highway fund any amounts remaining in the highway tax and revenue anticipation note fund. If amounts credited to the highway tax and revenue anticipation note fund are insufficient to pay principal, any premium, interest, issuance costs, and any required rebate to the federal government, amounts in the state highway fund are available for appropriation by the legislature to make those payments.

5686 78th LEGISLATURE — REGULAR SESSION


SECTIONi3.iiFor the fiscal biennium beginning September 1, 2003, the Texas Department of Transportation is appropriated all money deposited in the highway tax and revenue anticipation note fund for the purposes specified in Subchapter N, Chapter 201, Transportation Code, as added by this Act, during that biennium. To the extent that money deposited into the highway tax and revenue anticipation note fund is insufficient to pay the principal of, any premium or interest on, or costs of issuance relating to the notes, and rebates to the federal government, the department is appropriated from the state highway fund the amounts necessary for the full repayment of all principal of, any premium or interest on, or costs of issuance relating to the notes, and rebates to the federal government.

SECTIONi4.ii(a) Section 1 of this Act takes effect on the date on which the constitutional amendment proposed by the 78th Legislature, Regular Session, 2003, providing for authorization of the borrowing of money on a short-term basis by a state transportation agency for transportation-related projects takes effect. If that amendment is not approved by the voters, Section 1 of this Act has no effect.

(b)iiSections 2 and 3 of this Act take effect September 1, 2003.

Representative Pickett moved to adopt the conference committee report on HBi471.

The motion prevailed.

The chair stated that HBi471 was passed subject to the provisions of Article III, Section 49a of the Texas Constitution.

SBi1551 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hartnett submitted the conference committee report on SBi1551.

Representative Hartnett moved to adopt the conference committee report on SBi1551.

The motion prevailed.

HB 3578 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Wong submitted the following conference committee report on HB 3578 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi3578 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5687


Ellis, Rodney Wong
Gallegos Talton
Lindsay Van Arsdale
Hunter
On the part of the senate On the part of the house

HB 3578, A bill to be entitled An Act relating to powers, duties, and name of the Upper Kirby Management District.

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

SECTIONi1.iiThe heading to Subchapter E, Chapter 376, Local Government Code, is amended to read as follows:

SUBCHAPTER E. HARRIS COUNTY IMPROVEMENT [UPPER KIRBY MANAGEMENT] DISTRICT NO. 3

SECTIONi2.iiSection 376.151(a), Local Government Code, is amended to read as follows:

(a)iiA special district to be known as the "Harris County Improvement [Upper Kirby Management] District No. 3" exists as a governmental agency, body politic and corporate, and political subdivision of the state.

SECTIONi3.iiSection 376.153(2), Local Government Code, is amended to read as follows:

(2)ii"District" means the Harris County Improvement [Upper Kirby Management] District No. 3.

SECTIONi4.iiSection 376.165, Local Government Code, is amended by adding Subsections (g) and (h) to read as follows:

(g)iiAn assessment may be imposed on only a part of the district if only that part will benefit from the service or improvement.

(h)iiThe board may not impose an assessment or finance a service or improvement project under this subchapter unless a written petition requesting the improvement or service has been filed with the board. The petition must be signed by:

(1)iithe owners of a majority of the assessed value of real property in the district or in the area of the district that will be subject to the assessment as determined by the most recent certified tax appraisal roll for Harris County; or

(2)iiat least 25 persons who own real property in the district or the area of the district that will be subject to the assessment, if more than 25 persons own real property in the district or area that will be subject to the assessment as determined by the most recent certified tax appraisal roll for Harris County.

SECTIONi5.iiSection 376.170, Local Government Code, is amended to read as follows:

Sec.i376.170.iiEXEMPTION OF PUBLIC UTILITY FROM FEE OR ASSESSMENT. The district may not impose an impact fee or assessment on the property, equipment, or facilities of an electric utility as defined by Section 31.002, Utilities Code, a gas utility as defined by Section 101.003 or 121.001, Utilities Code, a telecommunications provider as defined by Section 51.002, Utilities Code, or a cable operator as defined by 47 U.S.C. Section 522, as amended.

5688 78th LEGISLATURE — REGULAR SESSION


SECTIONi6.iiSubchapter E, Chapter 376, Local Government Code, is amended by adding Section 376.171 to read as follows:

Sec.i376.171.iiUSE OF ELECTRICAL OR OPTICAL LINES. (a) The district may impose an assessment to pay the cost of:

(1)iiburying or removing electrical power lines, telephone lines, cable or fiber optic lines, or any other type of electrical or optical line;

(2)iiremoving poles and any elevated lines using the poles; and

(3)iireconnecting the lines described by Subdivision (2) to the buildings or other improvements to which the lines were connected.

(b)iiThe district may acquire, operate, or charge fees for the use of the district conduits for:

(1)iianother person's:

(A)iitelecommunications network;

(B)iifiber-optic cable; or

(C)iielectronic transmission line; or

(2)iiany other type of transmission line or supporting facility.

(c)iiThe district may not require a person to use a district conduit.

SECTIONi7.iiSubchapter E, Chapter 376, Local Government Code, is amended by adding Section 376.172 to read as follows:

Sec.i376.172.iiPUBLIC TRANSIT SYSTEM AND PARKING FACILITIES. (a) The district may acquire, lease as lessor or lessee, construct, develop, own, operate, and maintain a public transit system to serve the area within the boundaries of the district.

(b)iiBefore the district may act under Subsection (a), a petition must be filed with the district requesting the action with regard to a public transit system. The petition must be signed by owners of property representing a majority of either the total assessed value or the area of the real property in the district that abuts the right-of-way in which the public transit system is proposed to be located. The determination of a majority is based on the property owners along the entire right-of-way of the proposed transit project and may not be calculated on a block-by-block basis.

(c)iiThe district may acquire, lease as lessor or lessee, construct, develop, own, operate, and maintain parking facilities, including:

(1)iilots, garages, parking terminals, or other structures or accommodations for the parking of motor vehicles; and

(2)iiequipment, entrances, exits, fencing, and other accessories necessary for safety and convenience in the parking of vehicles.

(d)iiA parking facility of the district must be either leased to or operated on behalf of the district by a private entity or an entity other than the district. The district's parking facilities are a program authorized by the legislature under Section 52-a, Article III, Texas Constitution, and accomplish a public purpose under that section even if leased or operated by a private entity for a term of years.

(e)iiThe district's public parking facilities and any lease to a private entity are exempt from the payment of ad valorem taxes and state and local sales and use taxes.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5689


(f)iiThe district may use any of its resources, including revenues, assessments, taxes, and grant or contract proceeds, to pay the cost of acquiring and operating a public transit system or public parking facilities.

(g)iiThe district may adopt rules and regulations covering its public transit system or its public parking facilities except that any rules relating to or affecting the use of the public right-of-way or requirements for off-street parking must be subject to all applicable municipal charter, code, or ordinance requirements.

(h)iiThe district may set and impose fees, charges, or tolls for the use of the public transit system or the public parking facilities and may issue bonds or notes to finance the cost of these facilities.

(i)iiExcept as provided by Subsection (b), if the district pays for or finances the cost of acquiring or operating a public transit system or public parking facilities with resources other than assessments, a petition of property owners or a public hearing is not required.

(j)iiIf the district's acquisition of property for a parking facility that is leased to or operated by a private entity results in the removal from a taxing unit's tax rolls of real property otherwise subject to ad valorem taxation, the district shall pay to the taxing unit in which the property is located, on or before January 1 of each year, as a payment in lieu of taxes, an amount equal to the ad valorem taxes that otherwise would have been levied for the preceding tax year on that real property by the taxing unit, without including the value of any improvements constructed on the property.

SECTIONi8.ii(a) The legislature validates and confirms all acts and proceedings of the Harris County Improvement District No. 3 and the district's board of directors that occurred before the effective date of this Act, including changing the district's name from the "Upper Kirby Management District" to "Harris County Improvement District No. 3."

(b)iiThis section does not apply to any matter that on the effective date of this Act:

(1)iiis involved in litigation, if the litigation ultimately results in the matter being held invalid by a final judgment of a court with jurisdiction; or

(2)iihas been held invalid by a court with jurisdiction.

SECTIONi9.iiThis Act takes effect immediately 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, 2003.

Representative Wong moved to adopt the conference committee report on HBi3578.

A record vote was requested.

The motion prevailed by (Record 914): 139 Yeas, 0 Nays, 3 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Dukes;

5690 78th LEGISLATURE — REGULAR SESSION


Dunnam; Dutton; Edwards; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Olivo; Uresti(C).

Absent — Driver; Eiland; Geren; Howard; Kolkhorst; Krusee; Martinez Fischer; Seaman.

STATEMENTS OF VOTE

When Record No. 914 was taken, I was in the house but away from my desk. I would have voted yes.

Krusee

When Record No. 914 was taken, I was in the house but away from my desk. I would have voted yes.

Martinez Fischer

HB 1119 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Goodman submitted the following conference committee report on HB 1119 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1119 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Armbrister Goodman
Deuell Branch
Janek Merritt
Hughes
On the part of the senate On the part of the house

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5691


HB 1119, A bill to be entitled An Act relating to the disposition of cruelly treated animals.

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

SECTIONi1.iiSubchapter B, Chapter 821, Health and Safety Code, is amended by adding Section 821.0211 to read as follows:

Sec.i821.0211.iiADDITIONAL DEFINITION. In this subchapter, "magistrate" means any officer as defined in Article 2.09, Code of Criminal Procedure, except that the term does not include justices of the supreme court, judges of the court of criminal appeals, or courts of appeals, judges or masters of statutory probate courts, or judges or masters of district courts that give preference to family law matters or family district courts under Subchapter D, Chapter 24, Government Code.

SECTIONi2.iiSections 821.022-821.025, Health and Safety Code, are amended to read as follows:

Sec.i821.022.iiSEIZURE OF CRUELLY TREATED ANIMAL. (a) If a peace officer [county sheriff, constable, or deputy constable] or an officer who has responsibility for animal control in a county or municipality has reason to believe that an animal has been or is being cruelly treated, the officer [he] may apply to a justice court or magistrate in the county or to a municipal court in the municipality in which the animal is located for a warrant to seize the animal.

(b)iiOn a showing of probable cause to believe that the animal has been or is being cruelly treated, the court or magistrate shall issue the warrant and set a time within 10 calendar days of the date of issuance for a hearing in the appropriate justice court or municipal court to determine whether the animal has been cruelly treated.

(c)iiThe officer executing the warrant shall cause the animal to be impounded and shall give written notice to the owner of the animal of the time and place of the hearing.

Sec.i821.023.iiHEARING; ORDER OF DISPOSITION [SALE] OR RETURN OF ANIMAL. (a) A finding in a [county] court of competent jurisdiction that the owner of an animal is guilty of an offense under Section 42.09, Penal Code, involving the animal is prima facie evidence at a hearing authorized by Section 821.022 that the animal has been cruelly treated.

(b)iiA statement of an owner made at a hearing provided for under this subchapter is not admissible in a trial of the owner for an offense under Section 42.09, Penal Code.

(c)iiEach interested party is entitled to an opportunity to present evidence at the hearing.

(d)iiIf [Except as provided by Subsection (e), if] the court finds that the animal's owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall:

(1)iiorder a public sale of the animal by auction;

(2)iiorder the animal given to a nonprofit animal shelter, pound, or society for the protection of animals; or

5692 78th LEGISLATURE — REGULAR SESSION


(3)iiorder the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.

(e)iiA [If the] court that finds that an [the] animal's owner has cruelly treated the animal shall order the owner to pay all court costs, including costs of:

(1)iiinvestigation;

(2)iiexpert witnesses;

(3)iihousing and caring for the animal during its impoundment;

(4)iiconducting any public sale ordered by the court; and

(5)iihumanely destroying the animal if destruction is ordered by the court [and that the animal is farm livestock, the owner shall be divested of ownership and the court shall order a public sale of the animal by auction, order the animal given to a nonprofit animal shelter, pound, or society for the protection of animals, or order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so. In this subsection, "farm livestock" means cattle, hogs, sheep, goats, mules, horses, jacks, jennets, or poultry raised or used on a farm or ranch for food or for the production of legal income].

(f)iiThe court may order that an animal disposed of under Subsection (d)(1) or (d)(2) be spayed or neutered at the cost of the receiving party.

(g)iiThe court shall order the animal returned to the owner if the court does not find that the animal's owner has cruelly treated the animal.

Sec.i821.024.iiSALE OR DISPOSITION OF CRUELLY TREATED ANIMAL. (a) Notice of an auction ordered under this subchapter must be posted on a public bulletin board where other public notices are posted for the county or municipality. At the auction, a bid by the former owner of a cruelly treated animal or the owner's representative may not be accepted.

(b)iiProceeds from the sale of the animal shall be applied first to any costs owed by the former owner under Section 821.023(e) [the expenses incurred in caring for the animal during impoundment and in conducting the auction]. The officer conducting the auction shall pay any excess proceeds to the justice or municipal court ordering the auction. The court shall return the excess proceeds to the former owner of the animal.

(c)iiIf the officer is unable to sell the animal at auction, the officer [he] may cause the animal to be humanely destroyed or may give the animal to a nonprofit animal shelter, pound, or society for the protection of animals.

Sec.i821.025.iiAPPEAL. (a) An owner of an animal ordered sold at public auction as provided in this subchapter may appeal the order to a county court or county court at law in the county in which the justice or municipal court is located. As a condition of perfecting an appeal, the owner must file an appeal bond in an amount determined by the justice or municipal court to be adequate to cover the estimated expenses incurred in housing and caring for the impounded animal during the appeal process. The decision of the county court or county court at law may not be further appealed. An owner may not appeal an order:

(1)iito give the animal to a nonprofit animal shelter, pound, or society for the protection of animals; or

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(2)iito humanely destroy the animal.

(b)iiWhile an appeal under this section is pending, the animal may not be:

(1)iisold[, destroyed,] or given away as provided by Sections 821.023 and 821.024; or

(2)iidestroyed, except under circumstances which would require the humane destruction of the animal to prevent undue pain to or suffering of the animal [821.022-821.024].

SECTIONi3.iiThis Act takes effect September 1, 2003.

Representative Goodman moved to adopt the conference committee report on HBi1119.

The motion prevailed.

HB 1576 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Gallego submitted the following conference committee report on HB 1576 :

Austin, Texas, May 29, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1576 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Shapleigh Gallego
Ratliff Castro
Fraser McCall
On the part of the senate On the part of the house

HB 1576, A bill to be entitled An Act relating to the telecommunications planning and oversight council.

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

SECTIONi1.iiSections 2054.201(a) and (b), Government Code, are amended to read as follows:

(a)iiThe telecommunications planning and oversight council is composed of:

(1)iia representative of the comptroller's office, appointed by the comptroller;

(2)iithe executive director of the Telecommunications Infrastructure Fund Board;

(3)iia representative of the Texas Building and Procurement Commission, appointed by the executive director of the commission;

(4)iia member representing the interests of state agencies with 1,000 employees or more, appointed by the lieutenant governor;

(5)iia member representing the interests of state agencies with fewer than 1,000 employees, appointed by the speaker of the house of representatives;

5694 78th LEGISLATURE — REGULAR SESSION


(6)iia member representing the interests of institutions of higher education, appointed by the commissioner of higher education;

(7)iia member representing the interests of The University of Texas System, appointed by the chancellor;

(8)iia member representing the interests of The Texas A&M University System, appointed by the chancellor;

(9)iia member representing the interests of public school districts that are customers of the consolidated telecommunications system, appointed by the governor;

(10)iia member representing the interests of local governments that are customers of the consolidated telecommunications system, appointed by the governor; [and]

(11)iitwo public members with telecommunications expertise, appointed by the governor; and

(12)iia representative of the Health and Human Services Commission, appointed by the commissioner of health and human services.

(b)iiAppointed members of the telecommunications planning and oversight council serve staggered two-year terms, with the terms of four or five members expiring August 31 each year, except that:

(1)iithe representative of the comptroller's office serves at the discretion of the comptroller;

(2)ii[and] the representative of the Texas Building and Procurement Commission serves at the discretion of the executive director of the commission; and

(3)iithe representative of the Health and Human Services Commission serves at the discretion of the commissioner of health and human services.

SECTIONi2.iiSection 2054.206, Government Code, is amended to read as follows:

Sec.i2054.206.iiANNUAL REPORT. The telecommunications planning and oversight council shall submit an annual report not later than November 1 to the department and to each entity served by the consolidated telecommunications system or the centralized capitol complex telephone system. The report must include:

(1)iiinformation about the accomplishment of service objectives and other performance measures for management of the consolidated telecommunications system and the centralized capitol complex telephone system;

(2)iiinformation about the accounting and financial performance of the consolidated telecommunications system and the centralized capitol complex telephone system;

(3)iiestimates of savings to entities served by the consolidated telecommunications system over standard rates available to state agencies that [who] acquire telecommunications services directly;

(4)iitrends in network use, including the number of users, workstations, and locations supported; and

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(5)iirate information for services provided by the consolidated telecommunications system and the centralized capitol complex telephone system.

SECTIONi3.iiSubchapter H, Chapter 2054, Government Code, is amended by adding Section 2054.2025 to read as follows:

Sec.i2054.2025.iiLIMITATION OF LIABILITY. A member of the telecommunications planning and oversight council is not liable in a civil action for an act performed in good faith in the performance of the member's functions.

SECTIONi4.iiSection 2054.205(c), Government Code, is repealed.

SECTIONi5.ii(a) When the terms of the members of the telecommunications planning and oversight council first expire after the effective date of this Act:

(1)iithe lieutenant governor and the speaker of the house of representatives shall each appoint one member, and the governor shall appoint two members, according to Section 2054.201, Government Code, for terms expiring on the first August 31 occurring after the effective date of this Act; and

(2)iithe commissioner of higher education, the chancellor of The University of Texas System, and the chancellor of The Texas A&M University System shall each appoint one member, and the governor shall appoint two members, according to Section 2054.201, Government Code, for terms expiring on the second August 31 occurring after the effective date of this Act.

(b)iiPromptly after this Act takes effect, the commissioner of health and human services shall appoint a representative to the telecommunications planning and oversight council.

SECTIONi6.iiThis Act takes effect immediately 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, 2003.

Representative Gallego moved to adopt the conference committee report on HBi1576.

A record vote was requested.

The motion prevailed by (Record 915): 138 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon;

5696 78th LEGISLATURE — REGULAR SESSION


Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Uresti(C).

Absent — Bailey; Capelo; Dutton; Farrar; Gattis; Hardcastle; Mabry; Moreno, J.; Smith, W.; Van Arsdale.

(Mabry in the chair)

HCR 286 - ADOPTED
(by Wise)

Representative Wise moved to suspend all necessary rules to take up and consider at this time HCRi286.

The motion prevailed without objection.

The following resolution was laid before the house:

HCR 286, Honoring U.S. Marine Corporal Manuel Espinoza, Jr., of Weslaco for his bravery during Operation Iraqi Freedom.

HCR 286 was adopted without objection.

HB 638 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the following conference committee report on HB 638 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi638 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Armbrister Chisum
Harris Capelo
Ogden Wilson
Jackson McCall
Averitt
On the part of the senate On the part of the house

HB 638, A bill to be entitled An Act relating to emissions reductions incentives and the emissions reductions incentives account.

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

SECTIONi1.iiSections 382.051865(a), (c), and (d), Health and Safety Code, are amended to read as follows:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5697


(a)iiThe commission by rule shall [may] develop a program for the reduction of emissions of nitrogen oxides from reciprocating internal combustion engines associated with pipelines that are required by this subchapter to reduce the hourly emissions rate of nitrogen oxides, expressed in terms of grams per brake horsepower-hour, by at least 50 percent. In developing a program under this section the commission must cooperate with:

(1)iilocal governments;

(2)iiagencies, departments, and political subdivisions of the state; and

(3)iithe United States and its agencies.

(c)iiThe emissions reduction program shall [may] include incentives as developed by the commission for nitrogen oxides emissions reduction projects for reciprocating internal combustion engines described by Subsection (a), including a partial reimbursement for the capital cost of installing technology to reduce the emissions. The incentives may be applied only to expenses of projects to achieve those reductions of a reciprocating internal combustion engine's hourly emissions rate of nitrogen oxides, expressed in terms of grams per brake horsepower-hour, only to the extent the reductions exceed 30 percent and do not exceed 50 percent of the engine's emissions rate before modification.

(d)iiRules adopted under this section may not require more stringent emissions reduction [must include] criteria than those specified in this subsection for [the] determining eligibility for an emissions reduction project incentive under the program. To be eligible under the criteria, a facility must:

(1)iibe subject to the requirement under this subchapter that it reduce its hourly emissions rate of nitrogen oxides, expressed in terms of grams per brake horsepower-hour, by 50 percent;

(2)iibe reducing its hourly emissions rate of nitrogen oxides, expressed in terms of grams per brake horsepower-hour, by at least 50 percent; and

(3)iibe located in the East Texas region established by this subchapter for purposes of compliance with permit requirements for facilities affected by Section 382.0518(g).

SECTIONi2.iiSection 78(b), Chapter 1158, Acts of the 77th Legislature, Regular Session, 2001, is transferred to Subchapter C, Chapter 382, Health and Safety Code, redesignated as Section 382.051866 of that subchapter, and amended to read as follows:

Sec.i382.051866. [(b)] EMISSIONS REDUCTIONS INCENTIVES ACCOUNT. (a) In this section, "affiliate" means a person that directly or indirectly controls, is controlled by, or is under common control with another person.

(b)i[(1)]iiThe comptroller of public accounts shall establish an account within the clean air account [no. 151] to be known as the emissions reductions incentives account.

(c)i[(2)]iiThe emissions reductions incentives account consists of money from:

(1)i[(A)]iigifts, grants, or donations to the account for a designated or general use; [and]

(2)i[(B)]iimoney from any other source the legislature designates; and

5698 78th LEGISLATURE — REGULAR SESSION


(3)iithe interest earned on money in the emissions reductions incentives account.

(d)iiMoneyi[(3)iiThe commission may use the money] in the emissions reductions incentives account may be appropriated only to pay for emissions reduction project incentives under a program developed under Section 382.051865[, Health and Safety Code,] and administrative expenses associated with providing the incentives or the incentive program established under that section.

(e)iiA person or an affiliate of a person who pays or contributes money to the emissions reductions incentives account is ineligible to receive money from the account under a program developed under Section 382.051865.

(f)i[(4)]iiThe emissions reductions incentives account is exempt from the application of Section 403.095, Government Code.

SECTIONi3.iiSection 382.05186, Health and Safety Code, is amended by adding Subsection (j) to read as follows:

(j)iiA reciprocating internal combustion engine that is subject to this section and to a mass emissions cap as established by commission rule is considered permitted under this section with respect to all air contaminants if the facility is:

(1)iilocated in an area designated nonattainment for an ozone national ambient air quality standard; and

(2)iiachieving compliance with all state and federal requirements designated for that area.

SECTIONi4.iiThis Act takes effect immediately 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, 2003.

Representative Chisum moved to adopt the conference committee report on HBi638.

A record vote was requested.

The motion prevailed by (Record 916): 148 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5699


Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Mabry(C).

HB 2533 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative B. Brown submitted the following conference committee report on HB 2533 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2533 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Staples B. Brown
Armbrister Lewis
Duncan Flynn
Hinojosa Casteel
On the part of the senate On the part of the house

HB 2533, A bill to be entitled An Act relating to the creation of Lake View Management and Development District in Henderson County; providing authority to impose a tax and issue bonds; granting the power of eminent domain.

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

SECTIONi1.iiCREATION AND NAMING OF DISTRICT; CONTROLLING LAW. (a) The Lake View Management and Development District is created as a special district under Section 59, Article XVI, Texas Constitution.

(b)iiThe board by resolution may change the district's name. The board shall give written notice of the change to the commission.

(c)iiThe district is a unit of government for the purposes of Chapter 101, Civil Practice and Remedies Code, and operations of the district are considered to be essential governmental functions and not proprietary functions for all purposes, including the application of that chapter.

SECTIONi2.iiDEFINITIONS. In this Act:

(1)ii"Board" means the board of directors of the district.

(2)ii"Commission" means the Texas Commission on Environmental Quality.

(3)ii"District" means the Lake View Management and Development District.

(4)ii"Improvement project" means a program or project authorized by Section 15 of this Act, inside or outside the boundaries of the district.

5700 78th LEGISLATURE — REGULAR SESSION


SECTIONi3.iiBOUNDARIES. The district includes the land located in Henderson County that is described and defined by metes and bounds, as follows, to-wit:

BEING a 549.0 acre tract of land situated in the G. Martinez Survey, Abstract No. 481, Henderson County, Texas, and being comprised of nine (9) tracts of land as conveyed in six (6) deeds to Long Cove Ranch Company as follows: (1) Parcel 10C and Parcel 10D described as Tracts 10 C, 56.41 acres and 10 D, 54.86 acres in Volume 2158, Page 001, Deed Records, Henderson County, Texas, (2) Parcel 9 described as 140.0 acres in Volume 2143, Page 363, Deed Records, Henderson County, Texas, (3) Parcel 8 described as 100.0 acres in Volume 2030, Page 555, Deed Records, Henderson County, Texas, (4) Parcel 7 described as 40.72 acres in Volume 2030, Page 541, Deed Records, Henderson County, Texas, (5) Parcels 6A, 6B, and 6D described as 11.064 acres, 44.317 acres and 61.686 acres tracts respectively in Volume 1960, Page 595, Deed Records, Henderson County, Texas, and (6) portion of Parcel 4, the easterly 40 acres of the first tract described in Volume 1769, Page 768, Deed Records, Henderson County, Texas, and being more particularly described as follows:

BEGINNING at the intersection of the north line of Parcel 8 with the deeded 325 foot elevation take line of Cedar Creek Lake;

THENCE North 89 degrees 23 minutes 11 seconds East, along the north line of Parcel 8 , called the north line of Martinez Survey and the south line of Thomas Caro Survey, a distance of 654.83 feet to the northeast corner of said Parcel 8 and the northwest corner of Parcel 10C;

THENCE North 89 degrees 46 minutes 07 seconds East, along the north line of Parcel 10C, called the north line of said Martinez Survey, a distance of 1,203.86 feet to the northeast corner of said Parcel 10C;

THENCE South 00 degrees 47 minutes 49 seconds West, along the east line of Parcel 10 C, a distance of 2,418.84 feet to the southeast corner of said Parcel 10C;

THENCE South 88 degrees 14 minutes 18 seconds West, along the south line of Parcel 10 C, a distance of 1,175.96 feet to the southeast corner of Parcel 8;

THENCE South 88 degrees 53 minutes 14 seconds West, along the south line of Parcel 8, a distance of 1,254.61 feet to a point in the east line of Parcel 10D;

THENCE South 00 degrees 06 minutes 04 seconds East, along the east line of Parcel 10 C, a distance of 348.17 feet to the southeast corner of said Parcel 10 C and the northeast corner of Parcel 9;

THENCE South 00 degrees 06 minutes 04 seconds East, along the east line of Parcel 9, a distance of 2,520.78 feet to the southeast corner of said Parcel 9;

THENCE North 89 degrees 49 minutes 16 seconds West, along the south line of Parcel 9, a distance of 2,689.08 feet to the southwest corner of said Parcel 9 in the east line of Parcel 6 D;

THENCE South 00 degrees 33 minutes 24 seconds West, along the east line of Parcel 6 D, a distance of 51.64 feet to an angle point in said east line;

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THENCE South 00 degrees 25 minutes 27 seconds East, continuing along the east line of Parcel 6 D, a distance of 1,844.44 feet to the southeast corner of said Parcel 6 D;

THENCE South 88 degrees 23 minutes 18 seconds West, along the south line of Parcel 6 D, a distance of 1,534.22 feet to southwest corner of said Parcel 6 D and the southeast corner of Parcel 4;

THENCE North 00 degrees 02 minutes 41 seconds East, crossing Parcel 4, a distance of 2,918.36 feet to the deeded 325 foot elevation take line of Cedar Creek Lake;

THENCE generally in a northeasterly direction with it's meanders along the deeded 325 foot elevation take line of Cedar Creek Lake to the PLACE OF BEGINNING and containing 549.0 acres of land more or less.

SECTIONi4.iiFINDINGS RELATING TO BOUNDARIES. The boundaries of the district form a closure. A mistake in the name or spelling of a party to a deed or to the page or volume where filed in the deed records of Henderson County, or in the name of a survey or abstract, does not affect:

(1)iithe district's organization, existence, or validity;

(2)iithe district's right to enter into any type of contract for the purposes for which the district is created;

(3)iithe district's right to impose, assess, or collect taxes, fees, or charges; or

(4)iithe operation of the board or the district.

SECTIONi5.iiLEGISLATIVE DECLARATIONS AND FINDINGS. (a) The legislature finds that all of the land and other property included in the district will benefit from the improvement projects and services to be accomplished by the district under powers conferred by Sections 52 and 52a, Article III, and Section 59, Article XVI, Texas Constitution, and the other powers granted under this Act, and the creation of the district is essential to accomplish the purposes of those provisions and to accomplish the other public purposes stated in this Act.

(b)iiThe legislature further finds that the creation of the district:

(1)iiis essential to the conservation and beneficial use of the water, land, soil, and other natural resources in or adjacent to the district;

(2)iiis essential to further the public purposes of the economic development and diversification of the state, the elimination of unemployment and underemployment, and the stimulation and development of transportation and commerce;

(3)iiwill promote the health, safety, and general welfare of residents, employers, employees, and consumers in the district and in Henderson County and of the public; and

(4)iiis in the public interest.

(c)iiThe district's operations and the district's improvement projects will enable the district to preserve, maintain, and enhance the economic health and vitality of the area in the district as a community, residential, recreational, business, and commerce center. The district will further promote the health, safety, welfare, education, convenience, and enjoyment of the public by improving, landscaping, and developing certain areas in and adjacent to the

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district and providing public services and facilities in and adjacent to the district that are necessary for the restoration, preservation, enhancement, and enjoyment of scenic beauty.

SECTIONi6.iiCONSTRUCTION OF ACT. (a) This Act shall be liberally construed in conformity with the findings and purposes stated in this Act.

(b)iiChapter 311, Government Code, applies to this Act.

SECTIONi7.iiGENERAL POWERS AND DUTIES. (a) The district has all of the powers and duties provided by the following:

(1)iithe general laws relating to conservation and reclamation districts created under Section 59, Article XVI, Texas Constitution, including Chapters 49 and 54, Water Code, except that the district's bonds and other securities are not subject to the jurisdiction or supervision of the commission under Chapter 49, Water Code, or other law;

(2)iithe general laws relating to road districts and road utility districts created under Section 52(b), Article III, Texas Constitution, including Chapter 441, Transportation Code;

(3)iiChapter 372, Local Government Code, in the same manner as a municipality or a county;

(4)iiChapter 375, Local Government Code; and

(5)iiSection 4B, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes).

(b)iiA provision of this Act prevails over a provision of the general law that is in conflict or inconsistent with this Act.

SECTIONi8.iiBOARD OF DIRECTORS; ELIGIBILITY. (a) Except as provided by Subsections (b) and (c) of this section, the district is governed by a board of five directors who serve staggered terms of four years.

(b)iiThe following directors serve until March 1, 2008:

(1)iiPosition One: Murray Holland

(2)iiPosition Two: Scott Griffith

(3)iiPosition Three: Thomas Corcoran

(4)iiPosition Four: David Jaderlund

(5)iiPosition Five: Robert Whitman

(c)iiThe board shall hold an election to elect all directors on the uniform election day in February 2008. Persons elected to Positions One and Two serve terms expiring March 1, 2010. Persons elected to Positions Three, Four, and Five serve terms expiring March 1, 2012.

(d)iiStarting in 2010, the board shall hold an election on the uniform election day in February of an even-numbered year to elect directors to fill the positions the terms of which expire on March 1 of that year.

(e)iiOther than a director listed in Subsection (b) of this section, to be qualified to serve as a director a person must be at least 18 years of age and:

(1)iireside in the district;

(2)iiown real property in the district;

(3)iiown at least 10 percent of the outstanding interest of a corporation or general or limited partnership that owns real property in the district; or

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(4)iibe an agent, employee, officer, or director of a corporation, limited liability company, or partnership that owns real property in the district.

SECTIONi9.iiVACANCY. A vacancy on the board shall be filled by appointment by the remaining members of the board of a person who meets the qualifications under Section 8(e) of this Act.

SECTIONi10.iiDIRECTOR'S BOND; OATH. (a) As soon as practicable after a director is elected or appointed, the director shall execute a bond for $10,000 payable to the district and conditioned on the faithful performance of the director's duties. The bond must be approved by the board.

(b)iiEach director shall take the oath of office prescribed by the constitution for public office.

(c)iiThe bond and oath shall be filed with the district and the district shall retain the bond and oath in its records.

(d)iiThe district shall pay the cost of a bond executed under Subsection (a) of this section.

SECTIONi11.iiOFFICERS. The board shall elect a chair, a vice chair, and a secretary from its members.

SECTIONi12.iiCOMPENSATION. A director is not entitled to compensation for service on the board but is entitled to be reimbursed for necessary and reasonable expenses incurred in carrying out the duties and responsibilities of a director.

SECTIONi13.iiQUORUM. Three directors are a quorum. A concurrence of a majority of a quorum of the board shall be required for any official action of the district.

SECTIONi14.iiDISTRICT CONFIRMATION ELECTION. (a) As soon as practicable after all initial directors have qualified for office, the initial directors shall hold an organizational meeting and call a confirmation election to be held not later than the second uniform election date occurring after the date of the organizational meeting.

(b)iiThe confirmation election shall be called and held to confirm the establishment of the district in the manner provided by Subchapter D, Chapter 49, Water Code. If a majority of the votes cast at a confirmation election do not favor the creation of the district, the board may call succeeding elections on a uniform election date, but may not call another confirmation election sooner than six months after the date of the previous election.

(c)iiBefore the district is confirmed at an election, the district may carry on any business as the board may determine except that the district may not borrow money or impose or assess a tax or an assessment.

SECTIONi15.iiIMPROVEMENT PROJECTS. The district may provide, or it may enter into contracts with a governmental or private entity to provide, the following types of improvement projects or activities in support of or incidental to those projects:

(1)iiretail or wholesale water treatment, supply, and distribution facilities and systems to provide potable and nonpotable water to the residents and businesses of the district, including wastewater and sewerage collection and

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treatment facilities and systems, provided that treated effluent water resulting from any sewerage treatment facilities operated by or in the district may be used by the district for irrigation in the district;

(2)iithe provision of septic tank maintenance services inside or outside the district and of solid waste disposal services if the board determines the action to be necessary and appropriate to protect the district;

(3)iimacadamized, graveled, or paved roads, streets, and turnpikes, inside and outside the district to the extent authorized by Section 52, Article III, Texas Constitution;

(4)iithe planning, design, construction, improvement, and maintenance of:

(A)iilandscaping;

(B)iihighway right-of-way or transit corridor beautification and improvements;

(C)iilighting, banners, and signs;

(D)iistreets or sidewalks;

(E)iihiking and cycling paths and trails, pedestrian walkways, skywalks, crosswalks, or tunnels;

(F)iiparks, lakes, gardens, recreational and sports facilities, open space, scenic areas, and related exhibits and preserves;

(G)iifountains, plazas, and pedestrian malls; and

(H)iidrainage or storm-water detention improvements;

(5)iiprotection and improvement of the quality of storm water that flows through the district;

(6)iithe planning, design, construction, improvement, maintenance, and operation of:

(A)iisolid waste, water, sewer, or power facilities or services, including electrical, gas, steam, and chilled water facilities; or

(B)iioff-street parking facilities and heliports;

(7)iithe planning and acquisition of:

(A)iipublic art and sculpture and related exhibits and facilities; and

(B)iieducational and cultural exhibits and facilities;

(8)iithe planning, design, construction, acquisition, lease, rental, improvement, maintenance, installation, and management of and provision of furnishings for facilities for:

(A)iiconferences, conventions, or exhibitions;

(B)iimanufacturer, consumer, or trade shows;

(C)iicivic, community, or institutional events; and

(D)iiexhibits, displays, attractions, special events, and seasonal or cultural celebrations and holidays;

(9)iithe removal, razing, demolition, or clearing of land or improvements in connection with any improvement project;

(10)iithe acquisition and improvement of land and other property for the mitigation of the environmental effects of any improvement project;

(11)iithe acquisition of property or an interest in property in connection with an authorized improvement project;

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(12)iiany special or supplemental services for the improvement and promotion of the district or the areas adjacent to the district or for the protection of public health and safety within or adjacent to the district, including advertising, promotion, tourism, health and sanitation, public safety, security, fire protection or emergency medical services, business recruitment, development, elimination of traffic congestion, and recreational, educational, or cultural improvements, enhancements, and services; and

(13)iiany similar public improvements, facilities, or services.

SECTIONi16.iiPOWERS RELATED GENERALLY TO CONTRACTS AND FINANCIAL MATTERS. (a) The district may:

(1)iiimpose an ad valorem tax in accordance with Chapter 375, Local Government Code, on all taxable property in the district;

(2)iiimpose an assessment or impact fee in the manner provided for a municipality or county under Chapter 372, Local Government Code, on all industrial, commercial, and residential property in the district;

(3)iiimpose, assess, and apply the proceeds from a limited sales and use tax, and a hotel occupancy tax, as authorized by this Act;

(4)iiimpose rates, fees, and charges for the use of any improvement project or the consumption of a product resulting from an improvement project;

(5)iiborrow money for district purposes by issuing or executing bonds, notes, credit agreements, or other obligations of any kind found by the board to be necessary or appropriate for district purposes;

(6)iienter into a contract with any person for the accomplishment of any district purpose, including a contract for:

(A)iithe payment, repayment, or reimbursement of costs incurred by that person on behalf of the district, including all or part of the costs of an improvement project and interest on the reimbursed cost; or

(B)iithe use, occupancy, lease, rental, operation, maintenance, or management of all or part of a proposed or existing improvement project;

(7)iiapply for and contract with any person to receive, administer, and perform any duty or obligation of the district under a federal, state, local, or private gift, grant, loan, conveyance, transfer, bequest, donation, or other financial assistance arrangement relating to the investigation, planning, analysis, study, design, acquisition, construction, improvement, completion, implementation, or operation by the district or others of a proposed or existing improvement project;

(8)iiestablish, revise, repeal, enforce, collect, and apply the proceeds from user fees or charges for the enjoyment, sale, rental, or other use of the district's facilities, services, properties, or improvement projects;

(9)iiprovide or secure the payment or repayment of the costs and expenses of the establishment, administration, and operation of the district and the district's costs or share of the costs of an improvement project or district contractual obligation or indebtedness by or through a lease, installment purchase contract, or other agreement with any person, or the imposition of taxes, user fees, concessions, rentals, or other revenues or resources of the district;

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(10)iiestablish user charges related to the operation of various public services, including public water supply services, for the collection and treatment of wastewater, and for the operation of storm-water facilities, including the regulation of storm water for the protection of water quality in the district, and for the provision of septic tank maintenance services inside and outside the district;

(11)iiundertake separately or jointly with other persons all or part of the cost of an improvement project, including an improvement project:

(A)iifor improving, enhancing, and supporting public safety and security, fire protection and emergency medical services, and law enforcement in and adjacent to the district; or

(B)iithat confers a general benefit on the entire district or a special benefit on a definable part of the district; and

(12)iienter into tax abatement agreements in accordance with the general laws of the state authorizing and applicable to tax abatement agreements by municipalities.

(b)iiA contract the district enters into to carry out a purpose of this Act may be on any terms and for any period as the board may determine.

(c)iiA state agency, a municipality, Henderson County, any other political subdivision, a corporation, an individual, or any other entity may contract with the district to carry out the purposes of this Act without any further statutory or other authorization.

SECTIONi17.iiRULES. The district may adopt rules:

(1)iito administer or operate the district;

(2)iifor the use, enjoyment, availability, protection, security, and maintenance of the district's properties and facilities; or

(3)iito provide for public safety and security in the district.

SECTIONi18.iiADDITION OR REMOVAL OF TERRITORY. The board may add, delete, or exclude territory in the manner provided by Subchapter J, Chapter 49, Water Code, as limited by Section 54.016, Water Code, except that:

(1)iifor purposes of this section, a reference in Subchapter J, Chapter 49, Water Code, or Section 54.016, Water Code, to a tax means an ad valorem tax;

(2)iiSection 54.016, Water Code, and Section 42.042, Local Government Code, do not apply to the district's annexation of land restricted primarily to commercial or business use;

(3)iiland may not be added or annexed to the district without the consent of the owners of the land; and

(4)iiland may not be removed or disannexed from the district at any time during which any bonds or other obligations of the district that are payable, in whole or in part, from ad valorem taxes are outstanding.

SECTIONi19.iiEMINENT DOMAIN. (a) Within the boundaries of the district, the district may exercise the power of eminent domain for all public purposes.

(b)iiOutside the boundaries of the district, the district may exercise the power of eminent domain only for the purpose of constructing, acquiring, operating, repairing, or maintaining water supply lines or sanitary sewer lines.

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(c)iiThe district's power of eminent domain is exercised in the same manner as required for a county.

SECTIONi20.iiNONPROFIT CORPORATION. (a) The district, by board resolution, may authorize the incorporation of a nonprofit corporation to assist and act for the district in implementing an improvement project or providing services authorized by this Act.

(b)iiThe board shall appoint the board of directors of a nonprofit corporation created under this section. The board of directors of the nonprofit corporation shall serve in the same manner as, for the same term as, and on the same conditions as a board of directors of a local government corporation created under Subchapter D, Chapter 431, Transportation Code.

(c)iiA nonprofit corporation created under this section:

(1)iihas each power of and is considered for purposes of this Act to be a local government corporation created under Subchapter D, Chapter 431, Transportation Code; and

(2)iimay implement an improvement project and provide a service authorized by this Act and approved by the board.

SECTIONi21.iiECONOMIC DEVELOPMENT. The district may create economic development programs and exercise the economic development powers and authority that Chapter 380, Local Government Code, provides to a municipality with a population of more than 100,000, and Chapter 1509, Government Code, provides to any municipality.

SECTIONi22.iiTERMS OF EMPLOYMENT; COMPENSATION. The board may employ and establish the terms of employment and compensation of an executive director or general manager and any other employees of the district the board considers necessary.

SECTIONi23.iiUSE OF ROADWAYS, PARKS, OTHER PUBLIC AREAS OF THE DISTRICT. (a) The board by rule may regulate the private use of public roadways, open spaces, parks, sidewalks, and similar public areas in the district. To the extent the rules of the district conflict with a rule, order, or regulation of Henderson County or the Tarrant Regional Water District, the rule, order, or regulation of the county or Tarrant Regional Water District controls. The rules may provide for the safe and orderly use of public roadways, open spaces, parks, sidewalks, and similar public areas or facilities.

(b)iiThe board may require a permit for a parade, demonstration, celebration, entertainment event, or a similar nongovernmental activity in or on the public roadways, open spaces, parks, sidewalks, and similar public areas or facilities. The board may charge a fee for the permit application and for public safety or security services in an amount the board considers necessary.

(c)iiThe board may require a permit or franchise agreement with a vendor, concessionaire, exhibitor, or similar private or commercial person or organization for the limited use of the area or facilities on terms and on payment of a permit or franchise fee the board may impose.

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SECTIONi24.iiZONING BY COUNTY. (a) If requested by the district to exercise zoning powers, Henderson County may exercise, solely in the boundaries of the district, the zoning powers granted to counties in Subchapter E, Chapter 231, Local Government Code, without holding the election required by Section 231.075.

(b)iiIf the county exercises zoning powers, the board shall exercise and perform the powers, duties, and functions of a lake planning commission under Section 231.077, Local Government Code.

(c)iiThis section does not apply to land or facilities owned by the Tarrant Regional Water District.

SECTIONi25.iiIMPACT FEES AND ASSESSMENTS. (a) The district may only impose impact fees and assessments in the manner provided by Chapter 372, Local Government Code, for a municipality, county, or public improvement district, according to benefits received by the property, including an impact fee or assessment on residential property.

(b)iiAn impact fee for residential property must be for the limited purposes of providing capital funding for public water and wastewater facilities, for drainage and storm-water facilities, and for streets and alleys.

(c)iiThe district may not impose an impact fee or assessment on the property, equipment, or facilities of a public utility provider or a cable operator as defined by 47 U.S.C. Section 522, as amended.

SECTIONi26.iiOPERATION AND MAINTENANCE TAX; ELECTION. (a) The district may impose a tax for operation and maintenance purposes, including for funds for planning, constructing, acquiring, maintaining, repairing, and operating all necessary land, plants, works, facilities, improvements, appliances, and equipment of the district and for paying costs of services, engineering and legal fees, and organization and administrative expenses.

(b)iiAn operation and maintenance tax may not be imposed until it is approved by the qualified voters in the district voting at an election held for that purpose. If a majority of the votes cast at the election approve the imposition of the tax, the board may impose the tax and have it assessed and collected in the same manner as other district taxes.

(c)iiAn operation and maintenance tax election may be held at the same time and in conjunction with any other district election. The election may be called by a separate election order or as part of any other election order.

(d)iiThe proposition in an operation and maintenance tax election may be for a specific maximum rate or for an unlimited rate.

(e)iiIf the district has surplus operation or maintenance tax funds that are not needed for the purposes for which they were collected, the funds may be used for any authorized purpose.

(f)iiSections 26.04, 26.05, and 26.07, Tax Code, do not apply to a tax levied and collected under this section or an ad valorem tax levied and collected for the payment of the interest on and principal of bonds issued by the district.

SECTIONi27.iiTAX LEVY FOR BONDS AND OTHER OBLIGATIONS. (a) At the time bonds or other obligations payable in whole or in part from ad valorem taxes are issued:

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(1)iithe board shall impose a continuing direct annual ad valorem tax, without limit as to rate or amount, for each year while all or part of the bonds are outstanding; and

(2)iithe district shall annually assess and collect an ad valorem tax on all taxable property in the district in an amount sufficient to:

(A)iipay the interest on the bonds or other obligations as it becomes due;

(B)iicreate a sinking fund for the payment of the principal of the bonds or other obligations when due or the redemption price at any earlier required redemption date; and

(C)iipay the expenses of assessing and collecting the taxes.

(b)iiBonds or other obligations that are secured by and payable from ad valorem taxes may not be issued unless the bonds and the imposition of the taxes are approved by a majority of the voters in the district voting at an election held for that purpose.

(c)iiThe district shall conduct an election required by this section in the manner provided by Subchapter L, Chapter 375, Local Government Code.

SECTIONi28.iiLIMITED SALES AND USE TAX. (a) Words and phrases used in this section that are defined by Chapters 151 and 321, Tax Code, have the meanings assigned by Chapters 151 and 321, Tax Code.

(b)iiExcept as otherwise provided in this section, Subtitles A and B, Title 2, Tax Code, and Chapter 151, Tax Code, apply to the taxes and to the administration and enforcement of the taxes imposed by the district in the same manner that those laws apply to state taxes.

(c)iiThe district may adopt, reduce, or repeal the limited sales and use tax authorized by this section at an election in which a majority of the voters of the district voting in the election approve the adoption or the abolition of the tax, as applicable.

(d)iiThe provisions of Subchapters C, D, E, and F, Chapter 323, Tax Code, relating to county sales and use taxes shall apply to the application, collection, and administration of a sales and use tax imposed under this section to the extent consistent with this Act, as if references in Chapter 323, Tax Code, to a county referred to the district and references to a commissioners court referred to the board. Sections 323.401-323.404 and 323.505, Tax Code, do not apply to a tax imposed under this section.

(e)iiA tax imposed under this section or the repeal or reduction of a tax under this section takes effect on the first day of the calendar quarter occurring after the date on which the comptroller receives the copy of the resolution as required by Section 323.405(b), Tax Code.

(f)iiOn adoption of the tax authorized by this section, there is imposed a tax of two percent, or the maximum rate at which the combined tax rate of all local sales and use taxes in any location in the district does not exceed two percent, on the receipts from the sale at retail of taxable items within the district, and an excise tax on the use, storage, or other consumption within the district of taxable

5710 78th LEGISLATURE — REGULAR SESSION


items purchased, leased, or rented from a retailer within the district during the period that the tax is in effect. The rate of the excise tax is the same as the rate of the sales tax portion of the tax and is applied to the sales price of the taxable item.

(g)iiAn election to authorize, reduce, or repeal a limited sales and use tax may be called by order of the board and must be held on the next available uniform election date that occurs 45 or more days after the date on which the order calling the election was passed. The district shall provide notice of the election and shall hold and conduct the election in the manner prescribed by Chapter 54, Water Code, for bond elections for municipal utility districts. The ballots shall be printed to provide for voting for or against the appropriate one of the following propositions:

(1)ii"Adoption of a ___ percent district sales and use tax within the district";

(2)ii"Reduction of the district sales and use tax within the district from ___ percent to ___ percent"; or

(3)ii"Abolition of the district sales and use tax within the district."

(h)iiIf all or part of the territory of the district is annexed by a municipality that has adopted and is imposing a sales and use tax, the sales and use tax imposed by the district in the annexed territory shall be reduced, if required, in even multiples of one-eighth percent, and without the necessity for an election, so that the combined rate of all sales and use taxes imposed by Henderson County, the annexing municipality, and all other political subdivisions within the annexed territory of the district will not exceed two percent.

(i)iiIf the sales and use tax of Henderson County, an annexing municipality, or another political subdivision is required to be reduced under Subsection (h) of this section, the county, municipality, or other political subdivision is subject to Sections 321.102(e), (f), and (g), Tax Code.

(j)iiA tax imposed under this section or the reduction or repeal of a tax under this section takes effect on the first day of the calendar quarter occurring after the date on which the comptroller receives the notice required by Section 323.405(b), Tax Code.

(k)iiNot later than the 10th day after the date of the annexation or exclusion of territory by the district or the annexation of all or part of the territory of the district by a municipality requiring a reduction of the district's sales and use tax as provided by Subsection (h) of this section, the board shall send to the comptroller, by certified or registered mail, certified copies of all resolutions, orders, or ordinances pertaining to the annexation or exclusion of the territory by a district or municipality.

(l)iiThe district may examine and receive information related to the imposition, assessment, and collection of sales and use taxes to the same extent as if the district were a municipality.

SECTIONi29.iiHOTEL OCCUPANCY TAX. (a) In this section, "hotel" has the meaning assigned by Section 156.001, Tax Code.

(b)iiThe board by order may impose, repeal, or increase or decrease the rate of a tax on a person who, under a lease, concession, permit, right of access, license, contract, or agreement, pays for the use or possession or for the right to

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use or possess a room that is in a hotel located in the boundaries of the district, costs $2 or more each day, and is ordinarily used for sleeping. The amount of the tax may not exceed seven percent of the price paid for a room in a hotel.

(c)iiExcept as inconsistent with this section, Subchapter A, Chapter 352, Tax Code, governs a hotel occupancy tax authorized under this section, including the collection of the tax, subject to the limitations prescribed by Sections 352.002(b) and (c), Tax Code.

(d)iiThe district may examine and receive information related to the imposition, assessment, and collection of hotel occupancy taxes to the same extent as if the district were a municipality.

(e)iiFor purposes of this section, a reference in Subchapter A, Chapter 352, Tax Code, to a county is a reference to the district and a reference in Subchapter A, Chapter 352, Tax Code, to the county's officers or governing body is a reference to the board.

SECTIONi30.iiUSE OF HOTEL OCCUPANCY TAX. (a) The district shall apply the proceeds from a hotel occupancy tax imposed under this Act for any of the district's purposes and for the purposes described by Section 352.1015, Tax Code, to the extent considered appropriate by the board.

(b)iiDuring each interval of three calendar years following the date on which a hotel occupancy tax imposed under this section is initially collected, the board may not apply an annual average of more than 10 percent of the amount of tax collected under Section 29 of this Act, excluding any interest earnings or investment profits and after a deduction for the costs of imposing and collecting the taxes, for the administrative expenses of the district or a district purpose other than:

(1)iithe costs of advertising and promoting tourism; or

(2)iithe costs of business development and commerce, including the costs of planning, designing, constructing, acquiring, leasing, financing, owning, operating, maintaining, managing, improving, repairing, rehabilitating, or reconstructing improvement projects for conferences, conventions, and exhibitions, manufacturer, consumer, or trade shows, and civic, community, or institutional events.

(c)iiFor purposes of this section, a reference in Subchapter B, Chapter 352, Tax Code, to a county is a reference to the district and a reference in Subchapter B, Chapter 352, Tax Code, to the county's officers or governing body is a reference to the board.

SECTIONi31.iiBONDS AND OTHER OBLIGATIONS. (a) The district may issue bonds in the manner provided by Subchapter J, Chapter 375, Local Government Code, except that Sections 375.207 and 375.208 do not apply to bonds issued under this Act.

(b)iiIn addition to the sources of money described by Subchapter J, Chapter 375, Local Government Code, the bonds of the district may be secured and made payable, wholly or partly, by a pledge of any part of the net proceeds the district receives from the sales and use tax and the hotel occupancy tax authorized by this Act and from any other district revenues.

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SECTIONi32.iiDISSOLUTION. (a) Except as provided by Subsection (b) and the terms of a joint development and operating agreement, the board:

(1)iimay dissolve the district by majority vote; and

(2)iishall dissolve the district on receipt of a written petition requesting dissolution signed by the owners of 75 percent of the acreage of real property in the district.

(b)iiThe board may not dissolve the district until the district's outstanding indebtedness or contractual obligations have been repaid or discharged.

(c)iiAfter the board dissolves the district, the board shall transfer ownership of all property and assets of the district to Henderson County.

SECTIONi33.iiADDITIONAL LEGISLATIVE FINDINGS. The legislature finds that:

(1)iiproper and legal notice of the intention to introduce this Act, setting forth the general substance of this Act, has been published as provided by law, and the notice and a copy of this Act have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished by the constitution and laws of this state, including the governor, who has submitted the notice and Act to the commission;

(2)iithe commission has filed its recommendations relating to this Act with the governor, lieutenant governor, and speaker of the house of representatives within the required time;

(3)iithe general law relating to consent by political subdivisions to the creation of districts with conservation, reclamation, and road powers and the inclusion of land in those districts has been complied with; and

(4)iiall requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this Act have been fulfilled and accomplished.

SECTIONi34.iiEFFECTIVE DATE. This Act takes effect February 15, 2004.

Representative B. Brown moved to adopt the conference committee report on HBi2533.

The motion prevailed.

HB 2593 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Homer submitted the following conference committee report on HB 2593 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5713


Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2593 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Van de Putte Homer
Madla Phillips
Lindsay Truitt
Swinford
R. Cook
On the part of the senate On the part of the house

HB 2593, A bill to be entitled An Act relating to winery permits.

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

SECTIONi1.iiSections 16.01(a) and (c), Alcoholic Beverage Code, are amended to read as follows:

(a)iiExcept as provided by Section 16.011, the [The] holder of a winery permit may:

(1)iimanufacture, bottle, label, and package wine containing not more than 24 percent alcohol by volume;

(2)iimanufacture and import grape brandy for fortifying purposes only and to be used only on his licensed premises;

(3)iisell wine in this state to or buy wine from permit holders authorized to purchase and sell wine, including holders of wholesaler's permits, winery permits, and wine bottler's permits;

(4)iisell wine to ultimate consumers:

(A)iifor consumption on the winery premises; or

(B)iiin unbroken packages for off-premises consumption in an amount not to exceed 35,000 [25,000] gallons annually;

(5)iisell the wine outside this state to qualified persons;

(6)iiblend wines; and

(7)iidispense free wine for consumption on the winery premises.

(c)iiThe holder of a winery permit may conduct wine samplings, including wine tastings at a retailer's premises. A winery employee may open, touch, or pour wine, make a presentation, or answer questions at a wine sampling. [A wine sampling may not be held in a location where a wine sampling is otherwise prohibited by law.]

SECTIONi2.iiChapter 16, Alcoholic Beverage Code, is amended by adding Section 16.011 to read as follows:

Sec.i16.011.iiPREMISES IN DRY AREA. A winery permit may be issued for premises in an area in which the sale of wine has not been authorized by a local option election. A holder of a permit under this section may engage in any activity authorized under Section 16.01 except that the permit holder may sell or dispense wine under that section only if the wine is:

(1)iimanufactured in this state; and

(2)iiat least 75 percent by volume fermented juice of grapes or other fruit grown in this state.

5714 78th LEGISLATURE — REGULAR SESSION


SECTIONi3.iiSections 16.01(d) and 16.05, Alcoholic Beverage Code, are repealed.

SECTIONi4.iiThis Act takes effect on the date on which the constitutional amendment proposed by the 78th Legislature, Regular Session, 2003, authorizing the legislature to authorize and govern the operation of wineries in this state takes effect. If that amendment is not approved by the voters, this Act has no effect.

Representative Homer moved to adopt the conference committee report on HBi2593.

The motion prevailed.

HJR 28 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Pickett submitted the following conference committee report on HJR 28 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HJRi28 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Lucio Pickett
Madla Krusee
Ogden Hamric
Armbrister Gutierrez
On the part of the senate On the part of the house

HJR 28, A joint resolution proposing a constitutional amendment providing for authorization of the borrowing of money on a short-term basis by a state transportation agency for transportation-related projects, and the issuance of bonds and other public securities secured by the state highway fund.

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

SECTIONi1.iiArticle III, Texas Constitution, is amended by adding Sections 49-m and 49-n to read as follows:

Sec.i49-m.ii(a) The legislature, by law, may authorize the Texas Transportation Commission or its successor to authorize the Texas Department of Transportation or its successor to issue notes or borrow money from any source to carry out the functions of the department.

(b)iiNotes issued or a loan obtained under this section may not have a term of more than two years. The legislature may appropriate money dedicated by Sections 7-a and 7-b, Article VIII, of this constitution for the purpose of paying a debt created by the notes or loan.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5715


Sec.i49-n.ii(a) To fund highway improvement projects, the legislature may authorize the Texas Transportation Commission or its successor to issue bonds and other public securities and enter into bond enhancement agreements that are payable from revenue deposited to the credit of the state highway fund.

(b)iiIn each fiscal year in which amounts become due under the bonds, other public securities, or agreements authorized by this section, there is appropriated from the revenue deposited to the credit of the state highway fund in that fiscal year an amount that is sufficient to pay:

(1)iithe principal of and interest on the bonds or other public securities that mature or become due during the fiscal year; and

(2)iiany cost related to the bonds and other public securities, including payments under bond enhancement agreements, that becomes due during that fiscal year.

(c)iiAny dedication or appropriation of revenue to the credit of the state highway fund may not be modified so as to impair any outstanding bonds or other public securities secured by a pledge of that revenue unless provisions have been made for a full discharge of those securities.

SECTIONi2.iiThis proposed constitutional amendment shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment providing for authorization of the issuing of notes or the borrowing of money on a short-term basis by a state transportation agency for transportation-related projects, and the issuance of bonds and other public securities secured by the state highway fund."

Representative Pickett moved to adopt the conference committee report on HJRi28.

A record vote was requested.

The motion prevailed by (Record 917): 143 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez;

5716 78th LEGISLATURE — REGULAR SESSION


Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Mabry(C).

Absent — Farrar; Grusendorf; Hochberg; Marchant; Moreno, J.

SBi287 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the conference committee report on SBi287.

Representative Chisum moved to adopt the conference committee report on SBi287.

A record vote was requested.

The motion prevailed by (Record 918): 142 Yeas, 0 Nays, 3 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Mabry(C); Riddle.

Absent — Burnam; Farrar; Grusendorf; Marchant; Moreno, J.

SBi631 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Talton submitted the conference committee report on SBi631.

Representative Talton moved to adopt the conference committee report on SBi631.

The motion prevailed.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5717


HB 645 - HOUSE DISCHARGES CONFEREES

HOUSE CONCURS IN SENATE AMENDMENTS

TEXT OF SENATE AMENDMENTS

Representative Puente called up with senate amendments for consideration at this time,

HB 645, A bill to be entitled An Act relating to prohibiting the creation or enforcement of certain restrictive covenants that undermine water conservation.

Representative Puente moved to discharge the conferees and concur in the senate amendments to HB 645.

The motion prevailed.

Senate Amendment No. 1 (Senate Committee Amendment No. 1)

Amend SECTION 1 of HB 645, House Engrossment, on page 3, line 11, to strike "10,000" and replace with "4,000".

Senate Amendment No. 2 (Senate Floor Amendment No. 1)

Amend HB 645 in SECTION 1 of the bill, in Section 202.007, Property Code, by striking Subsection (a) (page 1, lines 17-32, senate committee printing) and substituting the following:

(a)iiA property owners' association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from:

(1)iiimplementing measures promoting solid-waste composting of vegetation, including grass clippings, leaves, or brush, or leaving grass clippings uncollected on grass;

(2)iiinstalling rain barrels or a rainwater harvesting system; or

(3)iiimplementing efficient irrigation systems, including underground drip or other drip systems.

SBi474 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Capelo submitted the conference committee report on SBi474.

Representative Capelo moved to adopt the conference committee report on SBi474.

The motion prevailed.

SBi610 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Capelo submitted the conference committee report on SBi610.

Representative Capelo moved to adopt the conference committee report on SBi610.

The motion prevailed.

SBi585 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative D. Jones submitted the conference committee report on SBi585.

5718 78th LEGISLATURE — REGULAR SESSION


Representative D. Jones moved to adopt the conference committee report on SBi585.

The motion prevailed.

HR 1862 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1862, suspending the limitations on the conferees for HBi7.

HR 1861 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1861, suspending the limitations on the conferees for HBi1.

SBi970 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Puente submitted the conference committee report on SBi970.

Representative Puente moved to adopt the conference committee report on SBi970.

The motion prevailed. (B. Cook recorded voting no)

SBi1059 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Marchant submitted the conference committee report on SBi1059.

Representative Marchant moved to adopt the conference committee report on SBi1059.

The motion prevailed.

SBi1782 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hamric submitted the conference committee report on SBi1782.

Representative Hamric moved to adopt the conference committee report on SBi1782.

A record vote was requested.

The motion prevailed by (Record 919): 147 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5719


Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Mabry(C).

Absent — Smithee.

(Wise in the chair)

SBi755 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the conference committee report on SBi755.

Representative Chisum moved to adopt the conference committee report on SBi755.

A record vote was requested.

The motion prevailed by (Record 920): 144 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Brown, B.; Davis, J.; Jones, E.; Madden.

5720 78th LEGISLATURE — REGULAR SESSION


SBi76 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Grusendorf submitted the conference committee report on SBi76.

Representative Grusendorf moved to adopt the conference committee report on SBi76.

The motion prevailed.

HR 1804 - ADOPTED
(by Coleman)

The following privileged resolution was laid before the house:

HR 1804

BE IT RESOLVED by the House of Representatives of the State of Texas, 78th Legislature, Regular Session, 2003, That House Rule 13, Section 9(a), be suspended in part as provided by House Rule 13, Section 9(f), to enable the conference committee appointed to resolve the differences on SBi1936, relating to the creation of the Buffalo Bayou Management District; providing the authority to impose taxes and issue bonds, to consider and take action on the following matters:

(1)iiHouse Rule 13, Section 9(a)(1), is suspended to permit the committee to change text in SECTION 4 of the bill so that SECTION 4 reads as follows:

SECTIONi4.iiBOUNDARIES. The district includes all the territory contained in the following described area:

POINT OF BEGINNING at the intersection of the west boundary line of the Houston Downtown Management District and the north boundary of Memorial Drive right-of-way, then west along the north boundary of Memorial Drive right-of-way to the north boundary of Memorial Drive's Heights North exit ramp, then northwest along the north boundary of Memorial Drive's Heights North exit ramp to the east boundary of Heights boulevard right-of-way, then west across Heights Boulevard from the east boundary of Heights Boulevard right-of-way to the west boundary of the Heights Boulevard right-of-way, then south along the west boundary of Heights boulevard right-of-way to the north boundary of Memorial Drive's Memorial West entrance ramp, then southwest along the north boundary of Memorial Drive's Memorial West entrance ramp to the northern boundary line of Memorial Drive right-of-way, then west along the northern boundary line of Memorial Drive right-of-way to the west boundary line of Shepherd Drive right-of-way, then south along the west boundary line of Shepherd Drive right-of-way to the centerline of West Dallas, then east along the centerline of West Dallas to the intersection of the west boundary of Montrose Boulevard right-of-way and the centerline of West Dallas, then south along the west boundary line of Montrose Boulevard right-of-way to the south boundary line of U.S. Highway 59 and the west boundary line of Montrose Boulevard right-of-way, then in an easterly direction from said intersection along the south boundary line of U.S. Highway 59 to the intersection of the west boundary line of the Main Street right-of-way and then proceeding from said intersection in a northwesterly direction along the boundary line of the west Main Street

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5721


right-of-way paralleling the boundary line of the Greater Southeast Management District to the intersection of the boundary line of the south Portland Street right-of-way and the boundary line of the west Main Street right-of-way, being the southern boundary line of the Midtown Management District, then proceeding from said intersection in generally a northeasterly direction the boundary line parallels the Midtown Management District boundary line to the intersection of the west boundary line of the US Hwy 45 right-of-way and the north boundary line of the Cleveland Street right-of-way, being the western boundary line of the Houston Downtown Management District, then north from said intersection along the western boundary line of the Houston Downtown Management District to the POINT OF BEGINNING.

Explanation: The new description of the area of the district is necessary to reflect a change in the area to be included in the district.

(2)iiHouse Rule 13, Section 9(a)(1), is suspended to permit the committee to change text in SECTION 9 of the bill so that SECTION 9 reads as follows:

SECTIONi9.iiBOARD OF DIRECTORS IN GENERAL. (a) The district is governed by a board of 31 voting directors appointed under Section 10 of this Act and nonvoting directors as provided by Section 11 of this Act.

(b)iiVoting directors serve staggered terms of four years, with 15 directors' terms expiring June 1 of an odd-numbered year and 16 directors' terms expiring June 1 of the following odd-numbered year.

(c)iiThe board may decrease the number of directors on the board by resolution if the board finds that it is in the best interest of the district. The board may not consist of fewer than five directors.

Explanation: The changed text is necessary to accommodate a larger board of directors for the district and to stagger terms accordingly.

(3)iiHouse Rule 13, Section 9(a)(1), is suspended to permit the committee to change text in SECTION 11(b) of the bill so that Subsection (b) reads as follows:

(b)iiIf a department described by Subsection (a) of this section is consolidated, renamed, or changed, the board may appoint a director of the consolidated, renamed, or changed department as a nonvoting director. If a department described by Subsection (a) of this section is abolished, the board may appoint a representative of another department that performs duties comparable to those performed by the abolished department.

Explanation: The change is necessary to clarify to which section the reference to "Subsection (a)" applies.

(4)iiHouse Rule 13, Section 9(a)(1), is suspended to permit the committee to change text in SECTION 19(a) of the bill so that Subsection (a) reads as follows:

(a)iiIf authorized at an election held in accordance with Section 18 of this Act, the district may impose an annual ad valorem tax on taxable property in the district for the:

(1)iimaintenance and operation of the district and the improvements constructed or acquired by the district; or

(2)iiprovision of a service.

Explanation: The change is necessary to clarify that the Section 18 referred to is from this Act.

5722 78th LEGISLATURE — REGULAR SESSION


(5)iiHouse Rule 13, Section 9(a)(1), is suspended to permit the committee to change text in SECTIONS 31(a), (b), and (c) of the bill so that Subsections (a), (b), and (c) read as follows:

(a)iiThe initial board consists of the following persons:

Pos.iNo.iiiiiiiiiiiiiiiName of Director

1iiiiiiiiiiiiiiiiiiiiiiiiiKay Crooker

2iiiiiiiiiiiiiiiiiiiiiiiiiMike Garver

3iiiiiiiiiiiiiiiiiiiiiiiiiJackie Martin

4iiiiiiiiiiiiiiiiiiiiiiiiiMark Lee

5iiiiiiiiiiiiiiiiiiiiiiiiiJohn Chase, Jr.

6iiiiiiiiiiiiiiiiiiiiiiiiiAdrian Collins

7iiiiiiiiiiiiiiiiiiiiiiiiiMax Schuette

8iiiiiiiiiiiiiiiiiiiiiiiiiJune Deadrick

9iiiiiiiiiiiiiiiiiiiiiiiiiDon Cutrer

10iiiiiiiiiiiiiiiiiiiiiiiiRaju Adwaney

11iiiiiiiiiiiiiiiiiiiiiiiiMike Mark

12iiiiiiiiiiiiiiiiiiiiiiiiSia Ravari

13iiiiiiiiiiiiiiiiiiiiiiiiCherry Walker

14iiiiiiiiiiiiiiiiiiiiiiiiJohn Hansen

15iiiiiiiiiiiiiiiiiiiiiiiiJohn Dao

16iiiiiiiiiiiiiiiiiiiiiiiiWilliam Taylor

17iiiiiiiiiiiiiiiiiiiiiiiiKaren Domino

18iiiiiiiiiiiiiiiiiiiiiiiiKevin Hoffman

19iiiiiiiiiiiiiiiiiiiiiiiiJeff Andrews

20iiiiiiiiiiiiiiiiiiiiiiiiWilliam Paul Thomas

21iiiiiiiiiiiiiiiiiiiiiiiiTheola Petteway

22iiiiiiiiiiiiiiiiiiiiiiiiKeith Wade

23iiiiiiiiiiiiiiiiiiiiiiiiChryisse Wilson

24iiiiiiiiiiiiiiiiiiiiiiiiSadie Rucker

25iiiiiiiiiiiiiiiiiiiiiiiiJulie McClure

26iiiiiiiiiiiiiiiiiiiiiiiiAngie Gomez

27iiiiiiiiiiiiiiiiiiiiiiiiTom Fricke

28iiiiiiiiiiiiiiiiiiiiiiiiJames Robert McDermaid

29iiiiiiiiiiiiiiiiiiiiiiiiKathy Hubbard

30iiiiiiiiiiiiiiiiiiiiiiiiMarsha Johnson

31iiiiiiiiiiiiiiiiiiiiiiiiCraig Jackson

(b)iiOf the initial directors, the terms of directors appointed for positions 1 through 15 expire June 1, 2005, and the terms of directors appointed for positions 16 through 31 expire June 1, 2007.

(c)iiSection 10 of this Act does not apply to this section.

Explanation: The changed text is necessary to add the complete number of initial directors authorized to serve on the board and to adjust their terms accordingly.

HR 1804 was adopted.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5723


SBi1936 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Coleman submitted the conference committee report on SBi1936.

Representative Coleman moved to adopt the conference committee report on SBi1936.

A record vote was requested.

The motion prevailed by (Record 921): 145 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise(C); Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker.

Absent — Corte; Driver; Heflin; Krusee.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 3).

SBi1708 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Baxter submitted the conference committee report on SBi1708.

Representative Baxter moved to adopt the conference committee report on SBi1708.

The motion prevailed.

HB 1082 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Talton submitted the following conference committee report on HB 1082 :

5724 78th LEGISLATURE — REGULAR SESSION


Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1082 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Staples Talton
Brimer Reyna
Harris Christian
Hegar
Ellis
On the part of the senate On the part of the house

HB 1082, A bill to be entitled An Act relating to the appraisal of property by appraisal districts.

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

SECTIONi1.ii(a) Section 6.025, Tax Code, is amended by adding Subsection (d) to read as follows:

(d)iiIf on May 1 all the chief appraisers of the appraisal districts described by Subsection (a) in which a parcel or item of property is located are not in agreement as to the appraised or market value of the property, on that date each of the chief appraisers shall enter as the appraised or market value of the property on the appraisal records of the appropriate appraisal district the lowest appraised or market value of the property as determined by any of the chief appraisers. If as a result of a protest, appeal, or other action the appraised or market value of the property is subsequently reduced in any of the appraisal districts, the chief appraiser shall notify each of the appraisal districts of the reduced appraised or market value. The chief appraiser of each appraisal district shall enter that reduced appraised or market value on the appraisal records as the appraised or market value of the property. If the appraised or market value is reduced in more than one appraisal district, each chief appraiser shall enter the lowest of those values on the appraisal records.

(b)iiThis section takes effect January 1, 2004, and applies only to the appraisal for ad valorem tax purposes of property for a tax year that begins on or after that date.

SECTIONi2.iiSections 41.43(a) and (b), Tax Code, are amended to read as follows:

(a)iiIn a protest authorized by Section 41.41(a)(1) or (2) [41.41(1) or (2)], the appraisal district has the burden of establishing the value of the property by a preponderance of the evidence presented at the hearing. If the appraisal district fails to meet that standard, the protest shall be determined in favor of the property owner.

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(b)iiA protest on the ground of unequal appraisal of property shall be determined in favor of the protesting party unless the appraisal district establishes that:

(1) the appraisal ratio of the property is equal to or less [not greater] than the median level of appraisal of[:

[(1)] a reasonable and representative sample of other properties in the appraisal district;

(2)iithe appraisal ratio of the property is equal to or less than the median level of appraisal of a sample of properties in the appraisal district consisting of a reasonable number of other properties similarly situated to, or of the same general kind or character as, the property subject to the protest; or

(3)iithe appraised value of the property is equal to or less than the median appraised value of a reasonable number of comparable properties appropriately adjusted.

SECTIONi3.iiSection 42.221, Tax Code, is amended to read as follows:

Sec.i42.221.iiCONSOLIDATED APPEALS FOR MULTICOUNTY PROPERTY [PIPELINE OR ELECTRIC LINE]. (a) The owner of property of a telecommunications provider, as defined by Section 51.002, Utilities Code, or the owner of property regulated by the Railroad Commission of Texas, the federal Surface Transportation Board, or the Federal Energy Regulatory Commission [an oil or gas pipeline or electric transmission or distribution line] that runs through or operates in more than one county and is appraised by more than one appraisal district may appeal an order of an appraisal review board relating to the property running through or operating in more than one county [pipeline or electric line, to property attached to or connected with the pipeline or electric line, or to an easement or other real property on which the pipeline or electric line is located] to the district court of any county in which a portion of the property [pipeline or electric line] is located or operated if the order relating to that portion of the property [pipeline or electric line] is appealed.

(b)iiA petition for review of each appraisal review board order under this section must be filed with the court as provided by Section 42.21. The fee for filing each additional petition for review under this section [relating to a pipeline or electric line] after the first petition for review relating to the same property [pipeline or electric line] is filed for a tax year is $5.

(c)iiIf only one appeal by the owner of property subject to this section [an oil or gas pipeline or electric line] is pending before the court in an appeal from the decision of an appraisal review board of a district other than the appraisal district for that county, any party to the suit may, not earlier than the 30th day before and not later than the 10th day before the date set for the hearing, make a motion to transfer the suit to a district court of the county in which the appraisal review board from which the appeal is taken is located. In the absence of a showing that further appeals under this section will be filed, the court shall transfer the suit.

(d)iiWhen the owner files the first petition for review under this section for a [pipeline or electric line for a] tax year, the owner shall include with the petition a list of each appraisal district in which the property [pipeline or electric line] is appraised for taxation in that tax year.

5726 78th LEGISLATURE — REGULAR SESSION


(e)iiThe court shall consolidate all the appeals for a tax year relating to a single property subject to this section [pipeline or electric line] for which a petition for review is filed with the court and may consolidate other appeals relating to other property subject to this section [pipelines or electric lines] of the same owner if the property is [pipelines or electric lines are] located in one or more of the counties on the list required by Subsection (d). Except as provided by this subsection, on the motion of the [pipeline or electric line] owner of a property subject to this section the court shall grant a continuance to provide the owner with an opportunity to include in the proceeding appeals of appraisal review board orders from additional appraisal districts. The court may not grant a continuance to include an appeal of an appraisal review board order that relates to a property subject to this section [the pipeline or electric line] in that tax year after the time for filing a petition for review of that order has expired.

(f)iiThis section does not affect the property owner's right to file a petition for review of an individual appraisal district's order relating to a property subject to this section [pipeline or electric line] in the district court in the county in which the appraisal review board is located.

(g)iiOn a joint motion or the separate motions of at least 60 percent of the appraisal districts that are defendants in a consolidated suit filed before the 45th day after the date on which the property owner's petitions for review of the appraisal review board orders relating to a property subject to this section [pipeline or electric line] for that tax year must be filed, the court shall transfer the suit to a district court of the county named in the motion or motions if that county is one in which one of the appraisal review boards from which an appeal was taken is located.

SECTIONi4.iiSections 42.26(a), (b), and (d), Tax Code, are amended to read as follows:

(a)iiThe district court shall grant relief on the ground that a property is appraised unequally if:

(1) the appraisal ratio of the property exceeds by at least 10 percent the median level of appraisal of[:

[(1)] a reasonable and representative sample of other properties in the appraisal district; [or]

(2)iithe appraisal ratio of the property exceeds by at least 10 percent the median level of appraisal of a sample of properties in the appraisal district consisting of a reasonable number of other properties similarly situated to, or of the same general kind or character as, the property subject to the appeal; or

(3)iithe appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.

(b)iiIf a property owner is entitled to relief under Subsection (a)(1), the court shall order the property's appraised value changed to the value as calculated on the basis of the median level of appraisal according to Subsection (a)(1). If a property owner is entitled to relief under Subsection (a)(2), the court shall order the property's appraised value changed to the value calculated on the basis of the median level of appraisal according to Subsection (a)(2). If a property owner is entitled to relief under Subsection (a)(3), the court shall order the property's

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5727


appraised value changed to the value calculated on the basis of the median appraised value according to Subsection (a)(3). If a property owner is entitled to relief under more than one subdivision of Subsection (a) [both Subsection (a)(1) and Subsection (a)(2)], the court shall order the property's appraised value changed to the value [calculated on the basis of the median level of appraisal] that results in the lowest [lower] appraised value. The court shall determine each applicable median level of appraisal or median appraised value according to law, and is not required to adopt the median level of appraisal or median appraised value proposed by a party to the appeal. The court may not limit or deny relief to the property owner entitled to relief under a subdivision of Subsection (a) because the appraised value determined according to another [the other] subdivision of Subsection (a) results in a higher appraised value.

(d)iiFor purposes of this section, the value of the property subject to the suit and the value of a comparable property or sample property that is used for comparison must be the market value determined by the appraisal district when the property is a residence homestead subject to the limitation on appraised value imposed by Section 23.23. [The district court shall grant relief on the ground that a property is appraised unequally if the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.]

SECTIONi5.ii(a) This Act takes effect September 1, 2003.

(b)iiThe change in law made by this Act applies only to review of an appraisal of property that was initiated by the filing of a notice of protest with an appraisal review board on or after the effective date of this Act. Review of an appraisal of property that was initiated by the filing of a notice of protest with an appraisal review board before the effective date of this Act is governed by the law in effect on the date the notice of protest was filed, and the former law is continued in effect for that purpose.

Representative Talton moved to adopt the conference committee report on HBi1082.

The motion prevailed.

HB 1817 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Ritter submitted the following conference committee report on HB 1817 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1817 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

5728 78th LEGISLATURE — REGULAR SESSION


Averitt Ritter
Madla Deshotel
Shapiro Kolkhorst
Duncan Morrison
On the part of the senate On the part of the house

HB 1817, A bill to be entitled An Act relating to student fees at institutions in the Texas State University System.

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

SECTIONi1.iiSection 54.5089, Education Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:

(a)iiThe board of regents of the Texas State University System may charge each student registered at a component institution of the Texas State University System a medical services fee not to exceed $100 [$55] for each semester of the regular term or [12-week] summer session of 12 weeks or longer and not to exceed $50 [$25] for each [six-week or shorter term of the] summer session of less than 12 weeks.

(e)iiNot more than once in an academic year, the board may increase the fee authorized by this section. Any increase in the fee of more than 10 percent must be approved by a majority vote of those students participating in a general student election called for that purpose.

SECTIONi2.iiThe heading to Section 54.511, Education Code, is amended to read as follows:

Sec.i54.511.iiSTUDENT FEES FOR BUS SERVICE; TEXAS STATE UNIVERSITY SYSTEM [SOUTHWEST TEXAS STATE UNIVERSITY].

SECTIONi3.iiSection 54.511(b), Education Code, is amended to read as follows:

(b)iiNot more than once in an academic year, the board may increase the fee authorized in Subsection (a) of this section for the purpose of covering increased operating costs of the bus service. Any increase in the fee must be approved by a majority vote of those students participating in a general election called for that purpose. However, the total fee may not exceed $100 [$46] per semester or $50 [$23] per [six-week] summer term of six weeks or less.

SECTIONi4.iiSection 54.523(a), Education Code, is amended to read as follows:

(a)iiTo the extent approved by the students under Subsection (b) of this section, the board of regents of the Texas State University System may charge each student enrolled in a university or educational center under its authority a student center fee not to exceed $100 [$70] per semester or $50 [$35] per [six-week] summer term of six weeks or less to be used to construct, operate, maintain, improve, and program a student center at the university or educational center at which the student is enrolled.

SECTIONi5.iiSection 54.538(a), Education Code, is amended to read as follows:

(a)iiIf approved by student vote at a system institution, the Board of Regents, Texas State University System, may charge each student enrolled at such institution a recreational sports fee not to exceed $100 [$50] per semester or

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5729


[10-week] summer session of 10 weeks or longer or $50 [$25] per [five-week] summer session of less than 10 weeks. The fee may be used to purchase equipment for and to construct, operate, and maintain recreational sports facilities and programs at the designated institution.

SECTIONi6.iiThis Act applies beginning with the 2003 fall semester.

SECTIONi7.iiThis Act takes effect immediately 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, 2003.

Representative Ritter moved to adopt the conference committee report on HBi1817.

A record vote was requested.

The motion prevailed by (Record 922): 145 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Burnam; Escobar; Moreno, P.

HB 3546 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Hamric submitted the following conference committee report on HB 3546 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

5730 78th LEGISLATURE — REGULAR SESSION


Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi3546 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Lucio Hamric
Madla Luna
Staples Talton
Brimer Mowery
Y. Davis
On the part of the senate On the part of the house

HB 3546, A bill to be entitled An Act relating to the exemption from ad valorem taxation of certain property used to provide low-income or moderate-income housing.

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

SECTIONi1.iiThe heading to Section 11.182, Tax Code, is amended to read as follows:

Sec.i11.182.iiCOMMUNITY HOUSING DEVELOPMENT ORGANIZATIONS IMPROVING PROPERTY FOR LOW-INCOME AND MODERATE-INCOME HOUSING: PROPERTY PREVIOUSLY EXEMPT.

SECTIONi2.iiSection 11.182, Tax Code, is amended by adding Subsection (j) to read as follows:

(j)iiAn organization may not receive an exemption under Subsection (b) or under Subsection (f), as added by Chapter 1191, Acts of the 77th Legislature, Regular Session, 2001, for property for a tax year beginning on or after January 1, 2004, unless the organization received an exemption under that subsection for that property for any part of the 2003 tax year.

SECTIONi3.iiSubchapter B, Chapter 11, Tax Code, is amended by adding Sections 11.1825 and 11.1826 to read as follows:

Sec.i11.1825.iiORGANIZATIONS CONSTRUCTING OR REHABILITATING LOW-INCOME HOUSING: PROPERTY NOT PREVIOUSLY EXEMPT. (a) An organization is entitled to an exemption from taxation of real property owned by the organization that the organization constructs or rehabilitates and uses to provide housing to individuals or families meeting the income eligibility requirements of this section.

(b)iiTo receive an exemption under this section, an organization must meet the following requirements:

(1)iifor at least the preceding three years, the organization:

(A)iihas been exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, as amended, by being listed as an exempt entity under Section 501(c)(3) of that code;

(B)iihas met the requirements of a charitable organization provided by Sections 11.18(e) and (f); and

(C)iihas had as one of its purposes providing low-income housing;

(2)iia majority of the members of the board of directors of the organization have their principal place of residence in this state;

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(3)iiat least two of the positions on the board of directors of the organization must be reserved for and held by:

(A)iian individual of low income as defined by Section 2306.004, Government Code, whose principal place of residence is located in this state;

(B)iian individual whose residence is located in an economically disadvantaged census tract as defined by Section 783.009(b), Government Code, in this state; or

(C)iia representative appointed by a neighborhood organization in this state that represents low-income households; and

(4)iithe organization must have a formal policy containing procedures for giving notice to and receiving advice from low-income households residing in the county in which a housing project is located regarding the design, siting, development, and management of affordable housing projects.

(c)iiNotwithstanding Subsection (b), an owner of real property that is not an organization described by that subsection is entitled to an exemption from taxation of property under this section if the property otherwise qualifies for the exemption and the owner is:

(1)iia limited partnership of which an organization that meets the requirements of Subsection (b) controls 100 percent of the general partner interest; or

(2)iian entity the parent of which is an organization that meets the requirements of Subsection (b).

(d)iiIf the owner of the property is an entity described by Subsection (c), the entity must:

(1)iibe organized under the laws of this state; and

(2)iihave its principal place of business in this state.

(e)iiA reference in this section to an organization includes an entity described by Subsection (c).

(f)iiFor property to be exempt under this section, the organization must own the property for the purpose of constructing or rehabilitating a housing project on the property and:

(1)iirenting the housing to individuals or families whose median income is not more than 60 percent of the greater of:

(A)iithe area median family income for the household's place of residence, as adjusted for family size and as established by the United States Department of Housing and Urban Development; or

(B)iithe statewide area median family income, as adjusted for family size and as established by the United States Department of Housing and Urban Development; or

(2)iiselling single-family dwellings to individuals or families whose median income is not more than the greater of:

(A)iithe area median family income for the household's place of residence, as adjusted for family size and as established by the United States Department of Housing and Urban Development; or

5732 78th LEGISLATURE — REGULAR SESSION


(B)iithe statewide area median family income, as adjusted for family size and as established by the United States Department of Housing and Urban Development.

(g)iiProperty may not receive an exemption under this section unless at least 50 percent of the total square footage of the dwelling units in the housing project is reserved for individuals or families described by Subsection (f).

(h)iiThe annual total of the monthly rent charged or to be charged for each dwelling unit in the project reserved for an individual or family described by Subsection (f) may not exceed 30 percent of the area median family income for the household's place of residence, as adjusted for family size and as established by the United States Department of Housing and Urban Development.

(i)iiProperty owned for the purpose of constructing a housing project on the property is exempt under this section only if:

(1)iithe property is used to provide housing to individuals or families described by Subsection (f); or

(2)iithe housing project is under active construction or other physical preparation.

(j)iiFor purposes of Subsection (i)(2), a housing project is under physical preparation if the organization has engaged in architectural or engineering work, soil testing, land clearing activities, or site improvement work necessary for the construction of the project or has conducted an environmental or land use study relating to the construction of the project.

(k)iiAn organization may not receive an exemption for a housing project constructed by the organization if the construction of the project was completed before January 1, 2004.

(l)iiIf the property is owned for the purpose of rehabilitating a housing project on the property:

(1)iithe original construction of the housing project must have been completed at least 10 years before the date the organization began actual rehabilitation of the project;

(2)iithe person from whom the organization acquired the project must have owned the project for at least five years, if the organization is not the original owner of the project;

(3)iithe organization must provide to the chief appraiser and, if the project was financed with bonds, the issuer of the bonds a written statement prepared by a certified public accountant stating that the organization has spent on rehabilitation costs at least the greater of $5,000 or the amount required by the financial lender for each dwelling unit in the project; and

(4)iithe organization must maintain a reserve fund for replacements:

(A)iiin the amount required by the financial lender; or

(B)iiif the financial lender does not require a reserve fund for replacements, in an amount equal to $300 per unit per year.

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(m)iiBeginning with the 2005 tax year, the amount of the reserve required by Subsection (l)(4)(B) is increased by an annual cost-of-living adjustment determined in the manner provided by Section 1(f)(3), Internal Revenue Code of 1986, as amended, substituting "calendar year 2004" for the calendar year specified in Section 1(f)(3)(B) of that code.

(n)iiA reserve must be established for each dwelling unit in the property, regardless of whether the unit is reserved for an individual or family described by Subsection (f). The reserve must be maintained on a continuing basis, with withdrawals permitted:

(1)iionly as authorized by the financial lender; or

(2)iiif the financial lender does not require a reserve fund for replacements, only to pay the cost of capital improvements needed for the property to maintain habitability under the Minimum Property Standards of the United States Department of Housing and Urban Development or the code of a municipality or county applicable to the property, whichever is more restrictive.

(o)iiFor purposes of Subsection (n)(2), "capital improvement" means a property improvement that has a depreciable life of at least five years under generally accepted accounting principles, excluding typical "make ready" expenses such as expenses for plasterboard repair, interior painting, or floor coverings.

(p)iiIf the organization acquires the property for the purpose of constructing or rehabilitating a housing project on the property, the organization must be renting or offering to rent the applicable square footage of dwelling units in the property to individuals or families described by Subsection (f) not later than the third anniversary of the date the organization acquires the property.

(q)iiIf property qualifies for an exemption under this section, the chief appraiser shall use the income method of appraisal as provided by Section 23.012 to determine the appraised value of the property. In appraising the property, the chief appraiser shall:

(1)iiconsider the restrictions provided by this section on the income of the individuals or families to whom the dwelling units of the housing project may be rented and the amount of rent that may be charged for purposes of computing the actual rental income from the property or projecting future rental income; and

(2)iiuse the same capitalization rate that the chief appraiser uses to appraise other rent-restricted properties.

(r)iiNot later than January 31 of each year, the appraisal district shall give public notice in the manner determined by the district, including posting on the district's website if applicable, of the capitalization rate to be used in that year to appraise property receiving an exemption under this section.

(s)iiUnless otherwise provided by the governing body of a taxing unit any part of which is located in a county with a population of at least 1.4 million under Subsection (x), the amount of the exemption under this section from taxation is 50 percent of the appraised value of the property.

(t)iiNotwithstanding Section 11.43(c), an exemption under this section does not terminate because of a change in ownership of the property if:

5734 78th LEGISLATURE — REGULAR SESSION


(1)iithe property is foreclosed on for any reason and, not later than the 30th day after the date of the foreclosure sale, the owner of the property submits to the chief appraiser evidence that the property is owned by:

(A)iian organization that meets the requirements of Subsection (b); or

(B)iian entity that meets the requirements of Subsections (c) and (d); or

(2)iiin the case of property owned by an entity described by Subsections (c) and (d), the organization meeting the requirements of Subsection (b) that controls the general partner interest of or is the parent of the entity as described by Subsection (c) ceases to serve in that capacity and, not later than the 30th day after the date the cessation occurs, the owner of the property submits evidence to the chief appraiser that the organization has been succeeded in that capacity by another organization that meets the requirements of Subsection (b).

(u)iiThe chief appraiser may extend the deadline provided by Subsection (t)(1) or (2), as applicable, for good cause shown.

(v)iiNotwithstanding any other provision of this section, an organization may not receive an exemption from taxation by a taxing unit any part of which is located in a county with a population of at least 1.4 million unless the exemption is approved by the governing body of the taxing unit in the manner provided by law for official action.

(w)iiTo receive an exemption under this section from taxation by a taxing unit for which the approval of the governing body of the taxing unit is required by Subsection (v), an organization must submit to the governing body of the taxing unit a written request for approval of the exemption from taxation of the property described in the request.

(x)iiNot later than the 60th day after the date the governing body of the taxing unit receives a written request under Subsection (w) for an exemption under this section, the governing body shall:

(1)iiapprove the exemption in the amount provided by Subsection (s);

(2)iiapprove the exemption in a reasonable amount other than the amount provided by Subsection (s); or

(3)iideny the exemption if the governing body determines that:

(A)iithe taxing unit cannot afford the loss of ad valorem tax revenue that would result from approving the exemption; or

(B)iiadditional housing for individuals or families meeting the income eligibility requirements of this section is not needed in the territory of the taxing unit.

(y)iiNot later than the fifth day after the date the governing body of the taxing unit takes action under Subsection (x), the taxing unit shall issue a letter to the organization stating the governing body's action and, if the governing body denied the exemption, stating whether the denial was based on a determination under Subsection (x)(3)(A) or (B) and the basis for the determination. The taxing unit shall send a copy of the letter by regular mail to the chief appraiser of each appraisal district that appraises the property for the taxing unit. The governing body may charge the organization a fee not to exceed the administrative costs of

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5735


processing the request of the organization, approving or denying the exemption, and issuing the letter required by this subsection. If the chief appraiser determines that the property qualifies for an exemption under this section and the governing body of the taxing unit approves the exemption, the chief appraiser shall grant the exemption in the amount approved by the governing body.

Sec.i11.1826.iiMONITORING OF COMPLIANCE WITH LOW-INCOME AND MODERATE-INCOME HOUSING EXEMPTIONS. (a) In this section, "department" means the Texas Department of Housing and Community Affairs.

(b)iiProperty may not be exempted under Section 11.1825 for a tax year unless the organization owning or controlling the owner of the property has an audit prepared by an independent auditor covering the organization's most recent fiscal year. The audit must be conducted in accordance with generally accepted accounting principles. The audit must include an opinion on whether:

(1)iithe financial statements of the organization present fairly, in all material respects and in conformity with generally accepted accounting principles, the financial position, changes in net assets, and cash flows of the organization; and

(2)iithe organization has complied with all of the terms and conditions of the exemption under Section 11.1825.

(c)iiNot later than the 180th day after the last day of the organization's most recent fiscal year, the organization must deliver a copy of the audit to the department and the chief appraiser of the appraisal district in which the property is located.

(d)iiNotwithstanding any other provision of this section, if the property contains not more than 36 dwelling units, the organization may deliver to the department and the chief appraiser a detailed report and certification as an alternative to an audit.

(e)iiProperty may not be exempted under Section 11.182 for a tax year unless the organization owning or controlling the owner of the property complies with this section, except that the audit required by this section must address compliance with the requirements of Section 11.182.

(f)iiAll information submitted to the department or the chief appraiser under this section is subject to required disclosure, is excepted from required disclosure, or is confidential in accordance with Chapter 552, Government Code, or other law.

SECTIONi4.iiSections 11.436(a) and (c), Tax Code, are amended to read as follows:

(a)iiAn organization that acquires property that qualifies for an exemption under Section 11.181(a) or 11.1825 [11.182(a)] may apply for the exemption for the year of acquisition not later than the 30th day after the date the organization acquires the property, and the deadline provided by Section 11.43(d) does not apply to the application for that year.

(c)iiTo facilitate the financing associated with the acquisition of a property, an organization, before acquiring the property, may request from the chief appraiser of the appraisal district established for the county in which the property is located a preliminary determination of whether the property would qualify for

5736 78th LEGISLATURE — REGULAR SESSION


an exemption under Section 11.1825 [11.182] if acquired by the organization. The request must include the information that would be included in an application for an exemption for the property under Section 11.1825 [11.182]. Not later than the 45th [21st] day after the date a request is submitted under this subsection, the chief appraiser shall issue a written preliminary determination for the property included in the request. A preliminary determination does not affect the granting of an exemption under Section 11.1825 [11.182].

SECTIONi5.iiSubchapter B, Chapter 23, Tax Code, is amended by adding Section 23.215 to read as follows:

Sec.i23.215.iiAPPRAISAL OF CERTAIN NONEXEMPT PROPERTY USED FOR LOW-INCOME OR MODERATE-INCOME HOUSING. (a) This section applies only to real property owned by an organization:

(1)iithat on the effective date of this section was rented to a low-income or moderate-income individual or family satisfying the organization's income eligibility requirements and that continues to be used for that purpose;

(2)iithat was financed under the low income housing tax credit program under Subchapter DD, Chapter 2306, Government Code;

(3)iithat does not receive an exemption under Section 11.182 or 11.1825; and

(4)iithe owner of which has not entered into an agreement with any taxing unit to make payments to the taxing unit instead of taxes on the property.

(b)iiThe chief appraiser shall appraise the property in the manner provided by Section 11.1825(q).

SECTIONi6.iiThis Act takes effect January 1, 2004.

Representative Hamric moved to adopt the conference committee report on HBi3546.

The motion prevailed.

SBi1272 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Callegari submitted the conference committee report on SBi1272.

Representative Callegari moved to adopt the conference committee report on SBi1272.

The motion prevailed.

SBi1303 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the conference committee report on SBi1303.

Representative Chisum moved to adopt the conference committee report on SBi1303.

A record vote was requested.

The motion prevailed by (Record 923): 147 Yeas, 0 Nays, 2 Present, not voting.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5737


Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Farrar.

STATEMENT OF VOTE

I was shown voting yes on Record No. 923. I intended to vote no.

Reyna

HB 2044 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative McReynolds submitted the following conference committee report on HB 2044 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2044 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Staples McReynolds
Estes Howard
Fraser Hochberg
Dawson
Hilderbran
On the part of the senate On the part of the house

5738 78th LEGISLATURE — REGULAR SESSION


HB 2044, A bill to be entitled An Act relating to the powers and duties of the General Land Office and the accounting and disposition of state-owned real property.

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

SECTIONi1.iiSection 31.001, Natural Resources Code, is amended to read as follows:

Sec.i31.001.iiDEFINITIONS. In this chapter:

(1)ii"Appraiser" means a state-certified or state-licensed real estate appraiser who:

(A)iiis employed by or contracts with the land office; and

(B)iiperforms professional valuation services completely and in a manner that is independent, impartial, and objective ["State" means the State of Texas].

(2)ii"Board" means the School Land Board.

(3)ii"Commissioner" means the Commissioner of the General Land Office.

(4)ii"Division" means the asset management division of the General Land Office or any other division delegated the duties of the asset management division by the commissioner.

(5)ii"Evaluation report" means the annual report prepared by the commissioner as provided by Subchapter E.

(6)ii"Exchange" means an exchange of equal value or an exchange of real property accompanied by consideration.

(7)ii"Governor's report" means the report prepared by the commissioner as provided by Section 31.157.

(8)ii"Institution of higher education" means the Texas State Technical College System, the Southwest Collegiate Institute for the Deaf, or an institution of higher education, excluding a public junior college, as defined by Section 61.003, Education Code.

(9)i[(3)]ii"Land office" means the General Land Office.

(10)ii"Market value" means the value of real property determined by an appraisal of the real property performed by an appraiser.

(11)ii"Political subdivision" means a municipality, county, public school district, levee improvement district, municipal utility district, or any other special purpose district authorized by state law.

(12)ii"Real estate transaction" means a sale, lease, trade, exchange, gift, grant, or other conveyance of a real property interest.

(13)ii"Real property owned by the state" means any interest in real property in the possession of the state or a state agency, including real property held in trust by a state agency.

(14)ii"State" means the State of Texas.

(15)ii"State agency" means a board, commission, department, institution, office, or other agency of state government, including an institution of higher education but excluding a special purpose district or authority.

SECTIONi2.iiSection 31.013(b), Natural Resources Code, is amended to read as follows:

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(b)iiAny bonds required by law to be executed by employees of the land office shall be executed and approved in the manner provided for the commissioner in Subsection (a) of this section. The land office shall pay the expenses necessary and incidental to the execution of the bonds.

SECTIONi3.iiSections 31.016 and 31.017, Natural Resources Code, are amended to read as follows:

Sec.i31.016.iiABSTRACT CLERK. The commissioner shall designate one of his clerks as the abstract clerk and shall assign to him the special duty to correct the abstracts of patented, titled, and surveyed real property [land] required to be kept in the land office to reflect errors, changes caused by cancellation of patents and in county lines, and the creation of new counties and to add new patented surveys on the date they are patented.

Sec.i31.017.iiRECEIVER [RECEIVING CLERK]. (a) With the consent of the governor, the commissioner shall appoint a suitable person to serve as receiver [receiving clerk] for the land office.

(b)iiThe receiver [receiving clerk] shall execute a bond for $25,000.

SECTIONi4.iiSection 31.018(c), Natural Resources Code, is amended to read as follows:

(c)iiThe translator shall translate into English [and record in a book] any laws and public contracts relating to titles to real property [land] and any original titles or papers which are written in the Spanish language and which are filed in the land office.

SECTIONi5.iiSection 31.019, Natural Resources Code, is amended to read as follows:

Sec.i31.019.iiSURVEYORS [DRAFTSMEN]. (a) The commissioner shall appoint a chief surveyor [draftsman] and as many assistant surveyors [draftsmen] as authorized by law.

(b)iiThe chief surveyor [draftsman] and the chief surveyor's [his] assistant surveyors [draftsmen] shall draw and complete county maps.

(c)iiThe chief surveyor [draftsman] and the chief surveyor's [his] assistant surveyors [draftsmen] shall perform drafting and other duties required by the commissioner for the benefit of the state or individuals.

SECTIONi6.iiSection 31.051, Natural Resources Code, is amended to read as follows:

Sec.i31.051.iiGENERAL DUTIES. The commissioner shall:

(1)iisuperintend, control, and direct the official conduct of subordinate officers of the land office;

(2)iiexecute and perform all acts and other things relating to public real property [land] of the state or rights of individuals in public real property [land] which is required by law;

(3)iimake and enforce suitable rules consistent with the law; and

(4)iigive information when required to the governor and the legislature relating to public real property [land] and the land office.

SECTIONi7.iiSection 31.052(a), Natural Resources Code, is amended to read as follows:

5740 78th LEGISLATURE — REGULAR SESSION


(a)iiBooks, accounts, records, papers, maps, and original documents relating to real property [land] titles which are termed archives by law shall be the books and papers of the land office under the control and custody of the commissioner.

SECTIONi8.iiSections 31.054, 31.055, 31.056, 31.057, 31.058, 31.059, and 31.060, Natural Resources Code, are amended to read as follows:

Sec.i31.054.iiPUBLIC ACCESS TO AND REMOVAL OF PAPERS. (a) Any person who desires to examine any paper, record, or file must make a written request on a form and according to procedures prescribed by the commissioner. The commissioner may establish procedures as reasonably necessary to maintain the integrity of the records. [obtain the written consent of the commissioner or the chief clerk and an order for the detail of a clerk to be present and superintend the examination.]

(b)ii[After the examination, the clerk shall carefully examine the papers of the file and make sure that they are all in place.

[Sec.i31.055.iiREMOVING PAPERS. (a)]iiNo transfer or deed which may be a link in any chain of title to any certificate on file in the land office may be removed by any person, but the commissioner shall deliver to the interested person on demand certified copies which shall have the same force and effect as the originals.

(c)i[(b)]iiIf the genuineness of any original paper is questioned in a suit, the commissioner, on order of the court in which the suit is pending, shall deliver the original paper to the proper person and shall retain a certified copy of the paper which will have the same force and effect as the original if the original is lost.

[(c)iiIf the commissioner has good reason to doubt the genuineness of any transfer, power of attorney, or other paper on file in his office, he shall not permit any person to obtain an official copy of the paper until the doubts have been removed.]

Sec.i31.056.iiREVISION, [AND] COMPILATION, AND PRINTING OF ABSTRACTS. (a) The commissioner shall prepare a revision and compilation of the various volumes of the abstracts of patented, titled, and surveyed real property [land] which were previously made by the land office.

(b)iiThe various counties of the state shall be apportioned into one of not more than eight districts for the purpose of revising and compiling the abstracts and the abstracts of each of the districts shall be compiled in a separate volume.

(c)iiThe commissioner may distribute to the officers of the state who require its use but have not previously received a set, one complete set of the abstracts, as supplemented, of patented, titled, and surveyed real property. The commissioner may distribute to officers of counties who are required to use abstracts copies of supplementary abstracts [land and may sell the surplus volumes to any persons who apply for them at a price that is not less than the cost to the state].

(d)iiThe commissioner may provide the abstracts and supplementary abstracts electronically [Any money received from the sale of surplus volumes shall be deposited in the general revenue fund].

(e)iiThe commissioner may make available [have] a sufficient number of volumes and supplementary abstracts of patented, titled, and surveyed real property [printed] to meet the demand.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5741


(f)iiThe land office shall pay the cost of the abstracts and the supplementary abstracts from its appropriated funds. [Printing and binding shall be done exclusively in the State of Texas.]

(g)iiCopies of the abstracts and supplementary abstracts [None of the provisions of this section affect the provisions of Section 31.057 of this code.

[Sec.i31.057.iiPRINTING SUPPLEMENTARY ABSTRACTS. (a) The commissioner may have not more than 1,500 copies of the supplementary abstracts of patented, titled, and surveyed land printed and bound annually for distribution to the officers of the state and counties whose duties require them to use it, and surplus copies] may be sold at a reasonable price to any person who applies for a copy.

[(b)iiThe cost incurred in printing the copies shall be paid from the land office appropriation for printing.

[(c)]iiThe commissioner shall deposit any money received from the sale of surplus volumes and supplementary abstracts [the copies of the State Treasury] to the credit of the General Revenue Fund.

Sec.i31.058.iiRECEIVING FUNDS. (a) The receiver [receiving clerk] shall receive funds required by law to be paid to the commissioner and on request shall give to each person who deposits money a receipt [certificate of deposit] stating the amount, the name of the person, and a description of the purpose of the remittance [the type of claim on which the deposit was made].

(b)iiIf funds are received which are of a general character in advance of fees and dues, it shall be stated.

(c)iiThe receiver [clerk] shall be responsible to the state or individual for the funds.

Sec.i31.059.iiRECEIVER'S [RECEIVING CLERK'S] BOOKS. (a) The receiver [receiving clerk] shall keep books in which the following [he] shall be entered [enter]:

(1)iieach deposit separately; and

(2)iithe name of the person[; and

[(3)iithe number of the claim and the location of the land to be perfected].

(b)iiThe receiver [He] shall keep letters and other vouchers filed in neat and regular order and number corresponding with the [his] books of the office.

(c)iiThe receiver [receiving clerk] shall report to the comptroller and pay in kind [on the last day of each month] funds in the receiver's [his] possession which are due to the state in accordance with the Government Code [and shall receive a receipt in his own name].

(d)iiIn the [his] books of the office, the receiver [receiving clerk] shall keep separate columns indicating the amount of [specie or the amount of currency or other] funds paid [to him].

(e)iiOn removal from office or resignation, the receiver [receiving clerk] shall turn over the [his] books of the office, accounts, and money to the appointed [his] successor [if he has qualified] or to the commissioner and shall receive a receipt for them.

5742 78th LEGISLATURE — REGULAR SESSION


Sec.i31.060.iiFINANCIAL REPORT. On or before the meeting of the legislature, the commissioner [receiving clerk] shall prepare and furnish to the governor [through the commissioner] a correct report of the condition of the [his] office, including the amount of money received, the type of claim, the amount of money paid out, and the type of payment.

SECTIONi9.iiSection 31.064, Natural Resources Code, is amended to read as follows:

Sec.i31.064.iiSETTING AND COLLECTING FEES. The commissioner shall set and collect, for the use of the state, reasonable fees in amounts [determined by the commissioner] for filing fees, preparation of certificates of fact, certified copies, maps, reproduction of maps and sketches, Spanish translations, patents and deeds of acquittance, and for other miscellaneous services, including but not limited to shipping in a mailing tube and typed transcriptions or taped copies of tapes or other sound recordings, and any other provided services and products.

SECTIONi10.iiSection 31.065(c), Natural Resources Code, is amended to read as follows:

(c)iiIf the commissioner determines that the real property acquired by the state by gift, devise, or bequest is not suitable for the purpose for which the gift, devise, or bequest was originally made, the commissioner together with the agency, board, commission, department, or other state entity designated to possess, administer, or use the real property may exchange the real property for real property that is suitable for such purpose.

SECTIONi11.iiSection 31.066(b), Natural Resources Code, is amended to read as follows:

(b)iiFollowing state assumption of ownership, the Texas Commission on Environmental Quality [Natural Resource Conservation Commission] shall provide for maintenance of the real property, including necessary environmental monitoring, consistent with terms of contracts and cooperative agreements with the federal government entered in accordance with the Water Code and Chapter 361, Health and Safety Code.

SECTIONi12.iiSection 31.067, Natural Resources Code, is amended to read as follows:

Sec.i31.067.iiAUTHORITY TO SELL CERTAIN AGENCY REAL PROPERTY [LANDS]. The [asset management] division [of the General Land Office] is authorized to sell any real property acquired on behalf of the state pursuant to Section 402.025, Government Code. Sale of such real property shall be conducted in accordance with the provisions of Section 31.158 of this code unless otherwise provided by law. Proceeds of sale shall be deposited in the General Revenue Fund as specified in Section 402.025, Government Code.

SECTIONi13.iiSubchapter C, Chapter 31, Natural Resources Code, is amended by adding Sections 31.0671 and 31.0672 to read as follows:

Sec.i31.0671.iiAGENCY AUTHORITY TO SELL OR EXCHANGE REAL PROPERTY. Any state agency or political subdivision may directly sell or exchange real property to which it holds title with the School Land Board for the benefit of the permanent school fund if the sale or exchange is for market value.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5743


Section 272.001, Local Government Code, does not apply to an exchange under this section. A political subdivision must provide the governor with advance notice of a proposed sale or exchange under this section, which notice must be sent to the governor at least 30 days before the transaction may be effected. In addition, the governor may disapprove any sale or exchange of real property by a state agency under this section prior to the sale or exchange. The state agency contemplating a sale or exchange under this section shall submit to the governor a formal request for approval. The state agency may conduct the sale or exchange unless the governor gives the state agency written notice disapproving the sale or exchange. The governor must provide written notice of disapproval under this section not later than the 30th day after the date the governor receives the written request for approval.

Sec.i31.0672.iiAUTHORITY TO CONDUCT CERTAIN REAL PROPERTY TRANSACTIONS. (a) The division may directly sell to a political subdivision any real property owned by the state that the legislature has authorized or the governor has approved for sale under Subchapter E if the commissioner determines the sale is in the best interest of the state.

(b)iiThe governor must approve any sale of real property under this section. Failure of the governor to approve the sale constitutes a veto of the transaction.

(c)iiA sale of real property under this chapter must be for market value and under other terms and conditions the commissioner determines to be in the best interest of the state.

SECTIONi14.iiSection 31.068(a), Natural Resources Code, is amended to read as follows:

(a)iiThe commissioner and the attorney general have standing to enforce a:

(1)iirestrictive covenant affecting real property owned by the permanent school fund or a state agency;

(2)iirestriction expressed in a transfer document or legislative act conveying real property then owned by the state; or

(3)iistatutory restriction on the sale or lease of real property [land] patented or leased by the state to a navigation district, including a restriction provided by Section 61.116 or 61.117, Water Code.

SECTIONi15.iiSections 31.153, 31.154, 31.155, 31.156, 31.157, and 31.1571, Natural Resources Code, are amended to read as follows:

Sec.i31.153.iiREAL PROPERTY ACCOUNTING AND RECORDS. (a) All real property owned by the state shall be accounted for by the state agency that possesses the real property.

(b)iiEach state agency shall maintain a record of each item of real property it possesses. The record must include the following information and[, on the request of the division,] shall be furnished to the division:

(1)iia description of each item of real property by reference to a volume number, and page or image number or numbers of the official public records of real property in a particular county, or if not applicable, by a legal description;

(2)iithe date of purchase of the real property, if applicable;

(3)iithe purchase price of the real property, if applicable;

5744 78th LEGISLATURE — REGULAR SESSION


(4)iithe name of the state agency holding title to the real property for the state;

(5)iia description of the current uses of the real property and of the projected future uses of the real property [during the next 15 years]; and

(6)iia description of each building or other improvement located on the real property.

(c)iiIf the description of real property required under [by] this section is excessively voluminous, [as in the case of parkland,] the division may direct the agency in possession of the real property to furnish the description only in summary form, as agreed to by the division and the state agency involved.

(d)iiEach state agency, annually at the time set by the division, shall furnish the Texas Historical Commission with a photograph and information that specifies and identifies the age of each building:

(1)iithat was acquired by the agency after the date of the preceding annual submission and that is at least 45 years old on the date of the current submission; or

(2)iithat is possessed by the agency and has become 45 years old since the date the information was previously submitted.

(e)iiOn request, each state agency shall provide the division with any photographs and information furnished to the Texas Historical Commission under this section.

Sec.i31.154.iiREAL PROPERTY INVENTORY. The division shall review and keep inventory records of all real property owned by the state. The division shall compile the inventory records from the information submitted [to the division] under Sections 31.153 and 31.155 of this subchapter.

Sec.i31.155.iiSPECIAL STATUS OF CERTAIN AGENCIES. (a) The division is not responsible for maintaining the inventory records, as provided by Section 31.154, of the real property administered by the Texas Department of Transportation, [the Texas National Research Laboratory Commission,] an institution of higher education, the Employees Retirement System of Texas, or the Teacher Retirement System of Texas. The agencies administering the real property shall maintain those records.

(b)iiThe Texas Department of Transportation, [or the Texas National Research Laboratory Commission,] on the request of the division, shall submit its real property inventory records to the division. The real property inventory records of an institution of higher education, the Employees Retirement System of Texas, and the Teacher Retirement System of Texas, on the request of the division, but not more than semiannually, shall be submitted to the division for information purposes only. The division shall maintain the inventory records of the former Texas National Research Laboratory Commission, to the extent possible, and is responsible for the disposal of any real property interests held by the former commission as provided by Subchapter G.

(c)iiThe division may [shall] review and verify the department's records [or the commission's records] and make recommendations regarding the department's real property [or the commission's real property], and the

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5745


commissioner shall prepare a report involving the department's real property to the same extent that the division and commissioner perform these functions with regard to the records and real property of other state agencies.

(d)iiThe duty under this subchapter of the division to review and verify real property records and to make recommendations regarding real property and of the commissioner to prepare a report involving real property does not apply to:

(1)iithe real property of an institution of higher education;

(2)iithe real property that is part of a fund created or specifically authorized by the constitution of this state and that is administered by or with the assistance of the land office;

(3)iithe real property of the Employees Retirement System of Texas; and [or]

(4)iithe real property of the Teacher Retirement System of Texas.

(e)iiThe duties of the division to make recommendations regarding real property and of the commissioner to prepare a report involving real property under this subchapter do not apply to:

(1)iithe real property of the Texas Historical Commission;

(2)iithe real property comprising the Alamo;

(3)iithe real property comprising the French Legation;

(4)iithe real property comprising the Governor's Mansion;

(5)iithe real property comprising the Texas State Cemetery, more specifically described as 17.376 acres located at 801 Comal, Lot 5, Division B, City of Austin, Travis County, Texas;

(6)iithe real property administered by the State Preservation Board; and

(7)iihighway rights-of-way owned by the Texas Department of Transportation.

Sec.i31.156.iiREAL PROPERTY REVIEW. (a) The division shall review the real property inventory of each state agency not less than every four years, and a review shall be made during the calendar year before the agency is scheduled for abolition under the Texas Sunset Act (Chapter 325, Government Code). The division may verify the accuracy of inventory records provided by an agency.

(b)iiThe division shall:

(1)iiidentify real property owned or controlled by the state that is not being used or is being substantially underused; and[.

[(c)iiThe division shall provide a list and an appraisal of properties described by Subsection (b) to the Texas Department of Housing and Community Affairs. Not later than the 60th day after the date of receipt of the list and appraisal, the department shall make recommendations to the division regarding the suitability of those properties for affordable and accessible housing.

[(d)iiFor each property identified as not being used or as being substantially underused under Subsection (b), the division shall]

(2)iimake recommendations to the commissioner regarding the use of the real property or [regarding] a real estate transaction involving the real property.

5746 78th LEGISLATURE — REGULAR SESSION


(c)i[(e)iiIf the Texas Department of Housing and Community Affairs designates a property as suitable for affordable and accessible housing, the division's recommendations must include a recommendation that title to the property be transferred to an appropriate political subdivision for use as affordable and accessible housing.

[(f)]iiThe division's recommendations must include an analysis of the highest and best use to which the real property may legally be placed and[. It] shall also include [recommendations for] alternative uses of the real property addressing potential for commercial or agricultural lease of the real property or any other real estate transaction or use that the division may deem to be in the best interest of the state[. The division shall solicit proposals and shall accept any unsolicited proposals about real estate transactions involving the property that would be of significant benefit to the state].

(d)i[(g)]iiThe division shall[, on completion of a review,] submit to the commissioner any information pertinent to the evaluation of a real estate transaction involving the real property, including the [current] market value of the real property, current market conditions, and [including] an evaluation of any proposals received from private parties that would be of significant benefit to the state[. If the division submits an evaluation of a sale of property, it must also submit an evaluation of the lease potential of the property].

(e)i[(h)]iiIn any year that the division will evaluate real property under the management and control of the adjutant general's department or the Texas Military Facilities Commission, the division [Texas National Guard Armory Board, the division] shall notify the [adjutant general's] department and the commission before the division begins the evaluation.

Sec.i31.157.iiEVALUATION REPORT. (a) The commissioner shall prepare a draft evaluation report, which shall include [of a proposed real estate transaction involving the real property incorporating] the results and findings of the evaluation of the real property owned by the state required under Section 31.156.

(b)iiThe draft report shall be submitted to the Texas Building and Procurement [State Purchasing and General Services] Commission, which shall further evaluate the potential use of the real property by another state agency [or department]. The land office shall submit a draft report [shall also be submitted, at the same time as it is furnished to the commission,] to each agency that owns or holds in trust property that is the subject of the draft report. The Texas Building and Procurement Commission [commission may comment on any findings or recommendations made by the commissioner and] may make additional recommendations regarding the use of the real property. The state agency that owns or controls real property named in the report may comment on any findings or recommendations made by the commissioner. The Texas Building and Procurement Commission and any state agency that owns or controls real property named in the report [commission] shall complete a [the] review of the draft report within 60 days of the receipt of the report and forward all recommendations and [the] comments to the commissioner.

(c)iiThe commissioner shall prepare and issue a final evaluation report that[:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5747


[(1)]iiincorporates any recommendations of the Texas Building and Procurement Commission regarding the potential use of the real property by another state agency [division regarding the transfer of title to the property to a political subdivision for use as affordable and accessible housing;] and any comments from any state agency that owns or controls property named in the report

[(2)iiincorporates any recommendations of the commission regarding the use of the property and addresses any comments received from the commission].

(d)iiIf under the adjutant general's report submitted as provided by Section 431.030, Government Code, the adjutant general determines that real property under the management and control of the adjutant general's department or the Texas Military Facilities Commission [National Guard Armory Board] is used for military purposes, the commissioner may not recommend a real estate transaction involving that real property in the final report submitted as provided by Subsection (e).

(e)iiThe final report shall be submitted to the governor, the presiding officers of both houses of the legislature, the Legislative Budget Board, and the governor's budget office not later than September 1 of each year.

(f)iiProperties reported as not being used or being substantially underused under this section may not be annexed by a political subdivision of the state without prior written approval of the commissioner.

(g)iiA [If the report contains an evaluation of a sale of property, it must also contain an evaluation of the lease potential of the property.

[Sec.i31.1571.iiDISPOSAL OF UNUSED OR UNDERUSED PROPERTY. (a) Notwithstanding any other law, after the division has reported a property unused or underused and the commissioner has made a recommendation to the governor for a real estate transaction involving the property, the] state agency that owns or controls real property identified in the evaluation report as not being used or being substantially underused shall notify the land office 30 days before any planned development, acquisition, disposition, lease, or exchange of the real property, including any planned construction of new improvements or a major modification to an existing improvement.

(h)iiEach state agency owning real property identified in the evaluation report as unused or substantially underused shall provide to the land office, within 30 days of the land office's request, information on the status of those properties. The report shall include a list of:

(1)iithe individual properties recommended for an alternative use or a real estate transaction by the land office;

(2)iithe status of those individual properties; and

(3)iiany plans the agency owning the real property has to convert the use of or dispose of each real property.

(i)iiThe division may solicit proposals and shall accept unsolicited proposals regarding real estate transactions involving real property that would be of significant benefit to the state.

5748 78th LEGISLATURE — REGULAR SESSION


Sec.i31.1571.iiGOVERNOR'S REPORT. (a) At any time, the commissioner may make a report to the governor recommending real estate transactions or other actions involving any real property included in the most recent evaluation report and identified as not used or substantially underused.

(b)iiAfter the commissioner recommends a real estate transaction to the governor under this section, the commissioner shall notify the state agency that owns or controls the real property and the Texas Department of Housing and Community Affairs. Not later than the 60th day after the date the written recommendation is received, the state agency and the Texas Department of Housing and Community Affairs may file with the governor their comments on or objections to the recommendation.

(c)iiIf the commissioner recommends a real estate transaction to the governor involving real property identified as not used or substantially underused and the division's analysis of the highest and best use for the real property is determined to be residential, the Texas Department of Housing and Community Affairs shall evaluate the property and identify any property suitable for affordable housing. The Texas Department of Housing and Community Affairs shall submit comments concerning any property suitable for affordable housing and any documents supporting the comments to the governor not later than the 60th day after the date it receives the report prepared under this section.

(d)iiNotwithstanding any other law, real property that the commissioner has reported as unused or substantially underused and recommended for a real estate transaction may not be developed, sold, or otherwise disposed of by the state agency that owns or controls [the property may not develop, sell, or otherwise dispose of] the real property before the earlier of:

(1)iithe date the governor rejects a recommended real estate transaction involving the real property [pursuant to Subchapter I]; or

(2)iitwo years from the date the recommendation is approved, unless extended by the governor [by operation of law under Subchapter I].

(e)i[(b)]iiIf a state agency that owns or controls real property [that the division has] reported as unused or substantially underused intends to dispose of or change the use of the real property prior to the time provided by Subsection (d), the governor may require [(a), the state agency shall submit to the governor] a general development plan for future use of the real property or any other information. At any time, the governor may request that the state agency provide its general development plan or any other information to the land office for evaluation and may consult with the commissioner. The plan shall be submitted no later than 30 days prior to the time that the real estate transaction would be approved by operation of law if not disapproved by the governor [pursuant to Subchapter I]. The governor may take such plan into consideration in determining whether to reject the commissioner's recommendation.

(f)iiThe commissioner may conduct the transaction unless the governor gives the commissioner written notice disapproving the recommendation. The governor must provide written notice of disapproval under this subsection not later than the 90th day after the date the governor receives the commissioner's written recommendation.

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SECTIONi16.iiSubchapter E, Chapter 31, Natural Resources Code, is amended by adding Sections 31.1572 and 31.1573 to read as follows:

Sec.i31.1572.iiMINERAL CONVEYANCE REQUIRED FOR CERTAIN SALES. If the Texas Parks and Wildlife Department enters into a contract to sell real property it owns or is under its control to a private entity, the Texas Parks and Wildlife Department shall convey the mineral rights to the property by an appropriate instrument of transfer to the permanent school fund before transferring title to the property to the private entity.

Sec.i31.1573.iiREAL ESTATE TRANSACTIONS AUTHORIZED BY GOVERNOR. (a) The land office shall take charge and control of real property as necessary to conduct and close a real estate transaction authorized by the governor.

(b)iiThe expenses incurred by the land office in conducting a real estate transaction, including the payment of reasonable brokerage fees, may be deducted from the proceeds of the transaction before the proceeds are deposited. The land office may adopt rules relating to the payment of reasonable brokerage fees.

(c)iiUnless otherwise dedicated by the Texas Constitution, the proceeds of the transaction shall be deposited:

(1)iito the credit of the Texas capital trust fund if the agency is eligible under Chapter 2201, Government Code, to participate in that fund;

(2)iiin the state treasury to the credit of the affected agency if the agency is not eligible under Chapter 2201, Government Code, to participate in the Texas capital trust fund; or

(3)iinotwithstanding Subdivisions (1) and (2), as otherwise directed under the procedures of Chapter 317, Government Code.

(d)iiThe grant of an interest in real property owned by the state under this section must:

(1)iicomply with the requirements of Section 31.158 to the extent the requirements do not conflict with a recommendation in the governor's report under Section 31.1571; and

(2)iibe conveyed by an instrument signed by the commissioner and, if the governor's approval is required, by the governor.

SECTIONi17.iiSubchapter E, Chapter 31, Natural Resources Code, is amended by amending Section 31.158 and adding Section 31.1581 to read as follows:

Sec.i31.158.iiREAL ESTATE TRANSACTIONS [TRANSACTION] AUTHORIZED BY LEGISLATURE. (a) If the legislature authorizes a real estate transaction involving real property owned [or held in trust] by the state, the division shall take possession and control of the real property and shall negotiate and close such real estate transaction on behalf of the state. In performing such duties, the division shall act on behalf of the state agency which owns or controls the subject state real property [land]. Proceeds from the real estate transaction shall be deposited in the Texas capital trust fund unless the proceeds are dedicated by the constitution of this state to another fund or unless the enabling legislation ordering the real estate transaction provides otherwise.

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(b)iiThe division may not take possession and control under this section of real property administered by a state agency that, under Chapter 2201, Government Code, is ineligible to benefit from the Texas capital trust fund.

(c)iiUnless the enabling legislation or general law authorizing the real estate transaction specifies a different procedure, the division shall transact the sale or lease of state real property [land] in the following manner:

(1)iiThe sale or lease shall be by sealed bid, by [or] public auction, or as provided by Subsection (d); provided, however, [prior to the bid sale or auction,] the School Land Board shall have the first option to purchase such real property pursuant to Section 31.159 of this code. Subdivisions (2)-(7) apply only to a sale or lease by sealed bid or public auction.

(2)iiNotice of the sale or lease shall be published at least 30 days prior to the date of sale or lease in at least three issues of four daily newspapers in the state. One of the papers must be of general circulation in the county where the real property [land] is located.

(3)iiThe notice shall state that real property is to be offered for sale or lease on a certain date and that lists describing the real property and terms of sale or lease can be obtained from the division.

(4)iiNo bid [bids] may be accepted that does [do] not meet the minimum value established by the commissioner, which shall not be less than market value [for the real property by an appraisal conducted by an appraiser employed by the General Land Office].

(5)iiThe division may reject any and all bids, but if the division elects not to reject any and all bids, it is required to accept the best bid submitted.

(6)iiIf the award of a bid does not result in a final transaction with the bidder, the land office may solicit proposals, negotiate, and sell, exchange, or lease the real property, provided that the sales price may not be less than market value.

(7)iiIf, after proper notice has been posted, no bids meeting the minimum requirements are received at the appointed time and place for the sale or lease, the division may solicit proposals and negotiate the sale, exchange, or lease of the real property to any person, provided that the sales price may not be less than the market [appraised] value of the real property [land]. The governor must approve any [the] sale or lease of [any] real property negotiated under this section [through a negotiated transaction]. Failure of the governor to approve the sale or lease constitutes a veto of the transaction.

(8)i[(7)]iiEach grant of an interest in real property made pursuant to this section shall be made by an instrument signed by the commissioner [of the General Land Office] and, if the governor's approval is required, by the governor.

(9)i[(8)]iiThe expenses incurred by the division in conducting the sale, exchange, or lease, including the payment of reasonable brokerage fees, may be deducted from the proceeds of the sale prior to deposit in the Texas capital trust fund or other appropriate depository account. The division may promulgate rules relating to the payment of reasonable brokerage fees.

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(10)i[(9)]iiThese procedures will not apply to sales or leases of real property [land] that are possessed by an agency that under Chapter 2201, Government Code, is ineligible to use the Texas capital trust fund or real property [land] which belongs to the permanent school fund.

(11)i[(10)]iiPrior to the actual sale or lease, the state representative and state senator in the district where the subject real property is located shall be notified of all efforts to sell or lease the real property and shall be provided with copies of all brokerage contacts relating to the sale or lease.

(d)iiThe division may contract for the services of a real estate broker or a private brokerage or real estate firm in the course of a real estate transaction under this section if the commissioner determines contracting for those services is in the best interest of the state.

Sec.i31.1581.iiTRANSFER OF REAL PROPERTY FOR USE AS AFFORDABLE HOUSING. (a) If the legislature authorizes or the governor approves the transfer of title to real property to an entity [a political subdivision] for use as affordable [and accessible] housing, the division shall take possession and control of the real property and shall conduct the transaction as provided by the policy adopted under Subsection (b) [(e)].

(b)i[(e)]iiThe division shall adopt a policy regarding the method of transferring title to real property designated as suitable for affordable [and accessible] housing to an entity [a political subdivision] for use as affordable [and accessible] housing. The policy must include monitoring and enforcement provisions to ensure that the real property is used for affordable [and accessible] housing.

SECTIONi18.iiSubchapter E, Chapter 31, Natural Resources Code, is amended by adding Section 31.1585 to read as follows:

Sec.i31.1585.iiCERTAIN PROCEEDS. Notwithstanding any other law, proceeds from the sale of real property purchased with general revenue funds that was recommended for sale by the division and not disapproved for sale by the governor during the calendar years 1995 through 2002 shall be deposited in the unobligated portion of the general revenue fund and may only be appropriated to the state agency that possessed the property at the time of the sale for use by the state agency in performing its duties.

SECTIONi19.iiSection 31.159, Natural Resources Code, is amended to read as follows:

Sec.i31.159.iiFIRST OPTION TO PURCHASE. (a) The School Land Board has a first option to purchase real property authorized for sale by the legislature or the governor. The board may exercise its option by tendering cash for market value as mutually agreed on by the board and the state agency that owns the real property, but the purchase price may not be less than market value. For purposes of this section, the division may request more than one appraisal to determine market value. If the parties cannot agree on a value, the board and the state agency that owns the real property shall follow the procedures provided by Subsections (d) and (e). The board may not pay more than market value.

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(b)iiThe division shall inform the School Land Board of the proposed sale and its first option to purchase state agency real property. If the board decides to exercise its option under this section, the division shall appoint an appraiser not later than the 30th day after the date the board notifies the division of its decision.

(c)iiThe School Land Board must complete the cash purchase not later than the 120th day after the date the board exercises its first option to purchase. If the School Land Board fails to complete the purchase within the time permitted, the division may extend the time for completing the purchase or disposing of the real property as authorized by the legislature or approved by the governor.

(d)iiIf the state agency that owns the real property disputes the market value, the School Land Board shall request a second appraisal. If the School Land Board fails to request a second appraisal, the division shall appoint a second appraiser not later than the 21st day after the date the state agency notifies the School Land Board that it disputes the market value. On completion of the second appraisal, the two appraisers shall meet promptly and attempt to reach agreement on the market value. If the two appraisers fail to reach agreement within 10 days of the meeting, the land office shall request a third appraiser to reconcile the two previous appraisals. The determination of value by the third appraiser may not be less than the lower or more than the higher of the first two appraisals. The market value determined by the third appraiser is final and binding on all parties.

(e)iiThe division may appoint an appraiser employed by the land office for the performance of any one of the required appraisals. Any other appraiser employed under this section must be selected in accordance with Subchapter A, Chapter 2254, Government Code. The party requesting the appraisal shall award the appraisal services contract to the provider of professional services after considering the factors identified in Chapter 2254, Government Code. The division shall pay the expenses of appraisal. [(a)iiIf the real estate transaction authorized by the legislature is a sale of real property, the School Land Board has a first option to purchase the real property by cash purchase at current fair market value as determined by an independent appraisal.

[(b)iiAfter the legislature authorizes the sale of real property, the division must give to the School Land Board a written notice of the proposed sale. To exercise the option, the School Land Board, not later than the 30th day after the date the notice can first be considered by the board at a regular meeting, must give written notice to the division stating that the board has decided to exercise the option. If the School Land Board decides to exercise its option under this section, the division shall appoint an appraiser after complying with Subdivision (2) of Subsection (d) of this section. The School Land Board must complete the cash purchase not later than the 120th day after the date the division receives the notice from the board.

[(c)iiIf the School Land Board fails to complete the purchase within the time permitted, the division may extend the time for completing the purchase or dispose of the real property as authorized by the legislature.

[(d)(1)iiCurrent fair market value shall be determined in accordance with the procedure prescribed by this subsection. Within 21 days after the day the School Land Board receives the notice given to the board under Subsection (b) of this

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section, the School Land Board shall appoint a second appraiser. If the School Land Board fails to appoint the second appraiser, the division shall appoint a second appraiser within 21 days after the expiration of said 21-day period in which the board could have appointed an appraiser. The two appraisers shall meet promptly and shall attempt to reach agreement on the current fair market value. If the two appraisers so selected do not reach agreement within 10 days of such meeting, a third appraiser shall be appointed by the division to reconcile the two previous appraisals. The determination of value by the third appraiser may not be less than the lower or more than the higher of the first two appraisals. The value determined by the third appraisal shall be final and binding on all parties.

[(2)iiEach appraiser shall be qualified and disinterested and shall have M.A.I. or other comparable professional designation. The division may appoint an appraiser employed by the General Land Office for any one of the required appraisals. The appointment of any other appraiser shall be made by the appointing party following receipt of at least three competitive bids, and if the cost of the appraisal is reasonably expected to exceed $10,000, the appointing party shall utilize the notification procedure set out in Subchapter B, Chapter 2254, Government Code, and all time periods described in this Act shall be extended for the number of days necessary to comply with said notification procedure. The appointing party shall award the appraisal services contract to the bidder submitting the lowest and best bid, and in determining who has submitted the lowest and best bid, the appointing party shall consider the factors set out in Sections 2156.007(d)(1)-(9), Government Code. Expense of the appraisal shall be paid by the division.]

SECTIONi20.iiSection 31.161, Natural Resources Code, is amended to read as follows:

Sec.i31.161.iiDEVELOPMENT PLAN. (a) If the state intends to conduct a [legislature authorizes the] sale or lease for nongovernmental purposes of real property [land] belonging to the state, to the permanent school fund, or to any of the dedicated funds of the state, other than the permanent university fund, or any other real property [lands] subject to the administration and control of the board of regents of The University of Texas System, [the governing board or chief executive officer of the agency or institution possessing the land may request] the [asset management] division may [of the General Land Office to] promulgate a development plan on the real property [land before it is offered for sale or lease].

(b)iiThe purpose of a development plan is to conserve and enhance the value of real property [land] belonging to the state, taking into consideration the preservation of the health, safety, and general welfare of the communities in which the real property [land] is situated.

(c)iiThe plan shall address local land use planning ordinances, which may include the following [such provisions as are necessary to implement the purposes of this section, including provisions for]:

(1)iiallocation and location of specific uses of the real property [land], including residential, commercial, industrial, recreational, or other appropriate uses;

(2)iidensities and intensities of designated land uses;

5754 78th LEGISLATURE — REGULAR SESSION


(3)iithe timing and rate of development;

(4)iitimely delivery of adequate facilities and services, including water, wastewater collection and treatment systems, parks and public recreational facilities, drainage facilities, school sites, and roads and transportation facilities; or [and]

(5)iineeded zoning and other land use regulations.

(d)iiThe plan shall comply with existing rules, regulations, orders, or ordinances for real property [land] development to the extent such rules, regulations, orders, or ordinances are not detrimental to the interests of the state as determined by the special board of review.

SECTIONi21.iiSections 31.1611(a), (b), and (d), Natural Resources Code, are amended to read as follows:

(a)iiIf the division is requested to prepare a development plan under Section 31.161, the division shall notify the local government to which the plan will be submitted under Section 31.162 of the division's intent to prepare a development plan. The division shall provide the local government with information relating to:

(1)iithe location of the real property to be offered for sale or lease;

(2)iithe highest and best use of [to which] the real property [may legally be placed] as provided in the division's report under Section 31.157; and

(3)iithe process for preparing the development plan under Section 31.161 and the process provided under Sections 31.165 and 31.166 for the special board of review.

(b)iiNot later than the 30th day after the date the local government receives the notice provided under Subsection (a), the local government may request the division to hold a public hearing to solicit public comment. If requested by the local government, the division shall hold a public hearing. The local government shall provide notice of the hearing to real property owners in at least the same manner that notice is provided for adopting zoning regulations or subdivision requirements in the local government's jurisdiction. The division shall set the agenda for the hearing, which must be completed no [and must complete the hearing not] later than the 120th day after the date [the] notice is provided under Subsection (a).

(d)iiA public hearing under this section may include:

(1)iia presentation by the division relating to the division's classification of the real property as unused or substantially underused [or unused] and the division's recommendation of the highest and best use to which the real property may legally be placed;

(2)iia presentation by the local government relating to relevant local plans, development principles, and ordinances that may affect the development of the real property; and

(3)iioral comments and presentations of information by and written comments received from other persons relating to the development of the real property.

SECTIONi22.iiSections 31.162(a), (b), (e), and (f), Natural Resources Code, are amended to read as follows:

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(a)iiThe plan shall be submitted to any local government having jurisdiction over the real property [land] in question for consideration.

(b)iiThe local government shall evaluate the plan and either accept or reject the plan no later than the 120th day [six months] after the date [the submission of the plan by] the [asset management] division submits the plan.

(e)iiIf the plan is rejected by the affected local government, the [asset management] division may modify the plan to conform to the ordinances specifically identified by the local government and resubmit the plan for approval, or the commissioner [it] may apply for necessary rezoning or variances from the local ordinances.

(f)iiFailure by the local government to act within the 120-day period prescribed by Subsection (b) [six months] will be deemed an acceptance by the local government of the plan.

SECTIONi23.iiSection 31.163, Natural Resources Code, is amended to read as follows:

Sec.i31.163.iiREZONING. (a) If the plan would require zoning inconsistent with any existing zoning or other land use regulation, the [asset management] division or its designated representative may at any time submit a request for rezoning to the local government with jurisdiction over the real property [lands] in question.

(b)iiThe rezoning or variance request shall be submitted in the same manner as any such request is submitted to the affected local government; provided, however, the local government must take final action on the request no later than the 120th day [six months] after the date the request for rezoning or variance is submitted.

(c)iiFailure by the local government to act within the 120-day [six-month] period prescribed by Subsection (b) will be deemed an approval of the rezoning request by the local government.

SECTIONi24.iiSection 31.165, Natural Resources Code, is amended to read as follows:

Sec.i31.165.iiSPECIAL BOARD OF REVIEW. (a) If the local government denies the rezoning request, the matter may be appealed to a special board of review consisting of the following members:

(1)iithe members of the School Land Board;

(2)iithe chairman of the governing board of the agency or institution possessing the real property or his or her designated representative; [and]

(3)iithe mayor of the city or town within whose corporate boundaries or extraterritorial jurisdiction the real property [land] is located; and

(4)iithe county judge of the county within which the real property [land] is located.

(b)iiThe commissioner [Commissioner of the General Land Office] shall serve as chairman of the special board of review.

(c)iiIf the plan involves real property [land] belonging to the permanent school fund, the special board of review shall consist of the members of the School Land Board and the local officials, with the commissioner [Commissioner of the General Land Office] serving as chairman.

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(d)iiIf the real property [land] is not located within the corporate boundaries or the extraterritorial jurisdiction of a city or town, the board shall consist of the members of the School Land Board, the agency chairman, and the county judge, with the commissioner serving as chairman.

SECTIONi25.iiSections 31.166(b), (c), (d), (e), (f), and (g), Natural Resources Code, are amended to read as follows:

(b)iiHearings shall be conducted in accordance with rules promulgated by the land office [General Land Office] for conduct of such special review.

(c)iiIf real property [land] is located in more than one city or town, the hearings on any single tract of real property [land] may be combined.

(d)iiAny political subdivision in which the tract in question is located and the appropriate central appraisal district shall receive written notice of board hearings at least 14 days prior to the hearing.

(e)iiAt least one hearing shall be conducted in the county where the real property [land] is located.

(f)iiIf after the hearings, the special board of review determines that local zoning requirements are detrimental to the best interest of the state, it shall issue an order establishing a development plan to govern the use of the real property [land] as provided in this section.

(g)iiDevelopment of the real property [land] shall be in accordance with the plan and must comply with all local rules, regulations, orders, or ordinances except as specifically identified in an order of the special board of review issued pursuant to Subsection (f) of this section. In the event that substantial progress is not made toward development of the tract within five years of the date of adoption by the special board of review, local development policies and procedures shall become applicable to development of the tract, unless the special board of review promulgates a new plan.

SECTIONi26.iiSections 31.167(a) and (c), Natural Resources Code, are amended to read as follows:

(a)iiExcept as provided by this subsection, a development plan promulgated by the special board of review and any plan accepted by a local government shall be final and binding on the state, its lessees, successors in interest and assigns, and affected local governments or political subdivisions unless revised by the special board of review. If the division does not receive a bid or auction solicitation for the real property subject to the development plan, the division, at the direction of the commissioner, may revise the development plan to conserve and enhance the value and marketability of the real property.

(c)iiThe special board of review must file a copy of the development plan in the deed records of the county in which the real property [land] is located.

SECTIONi27.iiSection 31.307, Natural Resources Code, is amended to read as follows:

Sec.i31.307.iiDEDICATION OF ROADS. The commissioner may dedicate roads located on the real property [land] used as the site for the superconducting super collider research facility to the county in which the roads are located if the commissioner believes that the dedication will enhance the value of remaining state real property [land].

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SECTIONi28.iiSections 31.308(b) and (c), Natural Resources Code, are amended to read as follows:

(b)iiThe commissioner shall convey the state's interest in the subsurface estate underlying the surface estate of real property [land] used as the site for the superconducting super collider research facility if the owner of the surface estate pays a sum equal to the [fair] market value of the subsurface estate as determined by the commissioner. After the state conveys its interest in the subsurface estate as provided by this subsection, title to the subsurface estate is reunited with the title to the surface estate.

(c)iiUnless the instrument of conveyance provides otherwise, a conveyance of the surface estate of real property [land] by the state under this subchapter includes the conveyance of the subsurface estate to the extent of the state's interest in the subsurface estate.

SECTIONi29.iiSection 31.309, Natural Resources Code, is amended to read as follows:

Sec.i31.309.iiPREFERENCE RIGHT TO PURCHASE CERTAIN REAL PROPERTY [LAND]. (a) A person or the person's heirs who conveyed real property [land] to the state for use by the superconducting super collider research facility has a preference right to purchase the same tract of real property [land] previously conveyed before the tract is offered for sale by the state to any other person.

(b)iiA person who has a preference right under this section must pay at least the [fair] market value for the real property [land] as determined by an appraisal conducted by the land office.

(c)iiThis section does not apply to a subsurface estate as defined by Section 31.308.

(d)iiThe commissioner may adopt rules necessary to implement this section.

SECTIONi30.iiSubchapter B, Chapter 11, Natural Resources Code, is amended by adding Section 11.0111 to read as follows:

Sec.i11.0111.iiLOCATION OF COASTAL BOUNDARIES. (a) The commissioner shall:

(1)iihave the area between the coastline of the Gulf of Mexico and the Three Marine League line compiled and platted; and

(2)iilocate and set the boundary lines between the coastal counties from the coastline to the Three Marine League line.

(b)iiThe commissioner shall locate and set the boundary lines between the counties from the coastline to the Three Marine League line in accordance with established engineering practice.

(c)iiThe legal description of the boundary lines set between the counties from the coastline to the continental shelf shall be filed and recorded in the office of the county clerk of the affected county.

SECTIONi31.iiChapter 51, Natural Resources Code, is amended by adding Subchapter J to read as follows:

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SUBCHAPTERiJ.iiGRANTS

Sec.i51.501.iiAPPLICATION FOR GRANT. A lessee of real property owned by the permanent school fund and used for grazing or agricultural purposes may apply to the commissioner for a grant to construct a permanent improvement on the leased property.

Sec.i51.502.iiSOURCE OF GRANT MONEY. A grant under this subchapter shall be made from money collected for surface damages under Sections 52.297 and 53.155.

Sec.i51.503.iiAPPRAISAL REQUIRED. (a) Before a grant is made under Section 51.501, an appraiser employed by the land office must appraise the effect of the improvement for which a grant is sought on the value of the permanent school fund property.

(b)iiIf the appraiser finds that the improvement will increase the value of the real property in an amount at least equal to the amount the improvement will cost, the commissioner may authorize the disbursement of money to construct the improvement.

Sec.i51.504.iiEVIDENCE OF EXPENDITURE REQUIRED. The commissioner shall require each lessee who receives a grant to provide copies of receipts, vouchers, or other evidence of expenditures for the improvement.

Sec.i51.505.iiIMPROVEMENTS: REAL PROPERTY OF PERMANENT SCHOOL FUND. Any improvement constructed with money disbursed under this subchapter is the real property of the permanent school fund.

Sec.i51.506.iiMAINTENANCE. As a condition for a grant under this subchapter, the commissioner shall require the grantee to agree in writing to maintain the improvement in a manner that will protect the best interest of the permanent school fund.

Sec.i51.507.iiRULES. The commissioner shall adopt rules as necessary to administer this subchapter, including rules establishing a procedure for applying for a grant under Section 51.501 and for monitoring the maintenance of the improvement.

SECTIONi32.iiSubchapter F, Chapter 53, Natural Resources Code, is amended by adding Section 53.1631 to read as follows:

Sec.i53.1631.iiGROUNDWATER. (a) Unless otherwise expressly provided by statute, deed, patent, or other grant from the State of Texas, groundwater shall not be considered a mineral in any past or future reservation of title or rights to minerals by the State of Texas.

(b) Notwithstanding Subsection (a), the State of Texas shall retain any and all rights to reasonable use of the surface and groundwater for mineral development and production purposes.

SECTIONi33.iiThe following laws are repealed:

(1)iiSections 31.061, 31.062, 31.063, 31.151, 31.152, 31.160, 31.301, 31.302, 31.303, 31.304, 31.305, and 31.306, Natural Resources Code;

(2)iiSubchapter F, Chapter 31, Natural Resources Code; and

(3)iiSubchapter I, Chapter 31, Natural Resources Code.

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SECTIONi34.iiThis Act takes effect immediately 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, 2003.

Representative McReynolds moved to adopt the conference committee report on HBi2044.

A record vote was requested.

The motion prevailed by (Record 924): 146 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Edwards; Farrar.

HB 3042 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative R. Cook submitted the following conference committee report on HB 3042 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi3042 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Ellis, Rodney R. Cook

5760 78th LEGISLATURE — REGULAR SESSION


Armbrister Chisum
Bivins Solomons
Brimer Casteel
Wentworth
On the part of the senate On the part of the house

HB 3042, A bill to be entitled An Act relating to the administration and functions of the Texas Building and Procurement Commission and related matters.

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

ARTICLE 1. GENERAL ADMINISTRATION

SECTIONi1.01.iiSection 2152.058(b), Government Code, is amended to read as follows:

(b)iiThe commission shall meet at least quarterly [once each month]. The commission may meet at other times at the call of the presiding officer or as provided by the commission's rules.

SECTIONi1.02.iiSubchapter B, Chapter 2152, Government Code, is amended by adding Section 2152.065 to read as follows:

Sec.i2152.065.iiREPRESENTATION ON BOARD OR COMMITTEE. If the commission must be represented on a board or committee, the executive director or the executive director's designee shall serve as the commission's representative on the board or committee unless the presiding officer of the commission elects to personally serve as the commission's representative or appoints a specific person to serve as the commission's representative on the board or committee.

SECTIONi1.03.iiSection 2152.104(a), Government Code, is amended to read as follows:

(a)iiThe commission shall have an appropriate number of [three] associate deputy directors.

ARTICLE 2. FACILITIES MANAGEMENT SERVICES

SECTIONi2.01.iiSubchapter A, Chapter 2165, Government Code, is amended by adding Section 2165.007 to read as follows:

Sec.i2165.007.iiFACILITIES MANAGEMENT SERVICES. (a) In this section, "facilities management services" means any state agency facilities management service that is not unique to carrying out a program of the agency. The term includes services related to facilities construction, facilities management, general building and grounds maintenance, cabling, and facility reconfiguration.

(b)iiNotwithstanding any other law, the commission shall provide facilities management services in relation to all state agency facilities in Travis County or a county adjacent to Travis County. The commission's duty does not apply to:

(1)iia facility owned or operated by an institution of higher education;

(2)iimilitary facilities;

(3)iifacilities owned or operated by the Texas Department of Criminal Justice;

(4)iifacilities owned or operated by the Texas Youth Commission;

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(5)iifacilities owned or operated by the Texas Department of Transportation;

(6)iithe Capitol, including the Capitol Extension, the General Land Office building, the Bob Bullock Texas State History Museum, and any museum located on the Capitol grounds;

(7)iia facility determined by the commission to be completely residential;

(8)iia regional or field office of a state agency; or

(9)iia facility located within or on state park property.

SECTIONi2.02.iiSubchapter B, Chapter 2165, Government Code, is amended by adding Section 2165.057 to read as follows:

Sec.i2165.057.iiMANAGEMENT OF FACILITIES. (a) The commission shall develop and implement policies that clearly define the responsibilities of the commission and the commission's staff that relate to conducting facilities management services for state agency facilities under Section 2165.007.

(b)iiThe state energy conservation office shall provide utility management services for state agency facilities for which the commission provides facilities management services under Section 2165.007.

SECTIONi2.03.iiOn September 1, 2003:

(1)iiall powers and duties of a state agency that relate to the facilities management services treated by Section 2165.007(b), Government Code, as added by this article, are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;

(2)iiall obligations and contracts of a state agency that relate to the transferred services are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;

(3)iiall records and other property in the custody of a state agency that relate to the transferred services and all funds appropriated by the legislature to a state agency that relate to the transferred services are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;

(4)iiall complaints and investigations that are pending before a state agency that relate to the transferred services are transferred without change in status to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate; and

(5)iia rule or form adopted by a state agency that relates to the transferred services is considered to be a rule or form of the Texas Building and Procurement Commission and remains in effect until altered by the commission or the state energy conservation office, as appropriate.

ARTICLE 3. LEASE OF SPACE IN STATE-OWNED PARKING LOTS AND GARAGES

SECTIONi3.01.iiSubchapter E, Chapter 2165, Government Code, is amended by adding Section 2165.2035 to read as follows:

Sec.i2165.2035.iiLEASE OF SPACE IN STATE-OWNED PARKING LOTS AND GARAGES. (a) In this section, "lease" includes a management agreement.

5762 78th LEGISLATURE — REGULAR SESSION


(b)iiThe commission shall develop private, commercial uses for state-owned parking lots and garages located in the city of Austin at locations the commission determines are appropriate for commercial uses outside of regular business hours.

(c)iiThe commission may contract with a private vendor to manage the commercial use of state-owned parking lots and garages.

(d)iiMoney received from a lease under this program shall be deposited to the credit of the general revenue fund.

(e)iiOn or before December 1 of each even-numbered year, the commission shall submit a report to the legislature and the Legislative Budget Board describing the effectiveness of the program under this section.

(f)iiThe limitation on the amount of space allocated to private tenants prescribed by Section 2165.205(b) does not apply to the lease of a state-owned parking lot or garage under this section.

(g)iiAny lease of a state-owned parking lot or garage under this section must contain a provision that allows state employees who work hours other than regular working hours under Section 658.005 to retain their parking privileges in a state-owned parking lot or garage.

(h)iiNonprofit, charitable, and other community organizations may apply to use state parking lots and garages located in the city of Austin in the area bordered by West Fourth Street, Lavaca Street, West Third Street, and Nueces Street free of charge or at a reduced rate. The executive director of the commission shall develop a form to be used to make such applications. The form shall require information related to:

(1)iithe dates and times of the free use requested;

(2)iithe nature of the applicant's activities associated with the proposed use of state parking lots and garages; and

(3)iiany other information determined by the executive director of the commission to be necessary to evaluate an application.

(i)iiTo be considered timely, an application must be submitted at least one month before the proposed use, unless this provision is waived by the executive director of the commission.

(j)iiThe executive director of the commission may approve or reject an application made under Subsection (h).

ARTICLE 4. LEASE OF SPACE FOR STATE AGENCIES

SECTIONi4.01.iiSection 2167.001, Government Code, is amended to read as follows:

Sec.i2167.001.iiAPPLICABILITY. (a) This chapter applies to:

(1)iioffice space;

(2)iiwarehouse space;

(3)iilaboratory space;

(4)iistorage space exceeding 1,000 gross square feet; [and]

(5)iiboat storage space;

(6)iiaircraft hangar space other than hangar space and adjacent space leased by the State Aircraft Pooling Board at Austin-Bergstrom International Airport and operated for the purpose of providing air transportation services for the State of Texas;

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(7)iivehicle parking space; and

(8)iia combination of those kinds of space.

(b)iiThis chapter does not apply to:

(1)ii[aircraft hangar space;

[(2)]iiradio antenna space;

(2)i[(3)iiboat storage space;

[(4)iivehicle parking space;

[(5)]iiresidential space for a Texas Department of Mental Health and Mental Retardation program;

(3)i[(6)]iiresidential space for a Texas Youth Commission program;

(4)i[(7)]iispace to be used for less than one month for meetings, conferences, conventions, seminars, displays, examinations, auctions, or similar purposes;

(5)i[(8)]iidistrict office space for members of the legislature;

(6)i[(9)]iispace used by the Texas Workforce [Employment] Commission;

(7)i[(10)]iiresidential property acquired by the Texas Department of Housing and Community Affairs or the Texas State Affordable Housing Corporation that is offered for sale or rental to individuals and families of low or very low income or families of moderate income; or

(8)i[(11)]iiexcept as provided by Section 2167.007, classroom and instructional space for an institution of higher education.

SECTIONi4.02.iiSection 2167.005, Government Code, is amended by adding Subsection (d) to read as follows:

(d)iiThe commission may revoke a delegation of authority made under this section.

SECTIONi4.03.iiSection 2167.007(c), Government Code, is amended to read as follows:

(c)iiThe commission may [shall] establish a system of charges and billings to assure the recovery of the cost of providing services under Subsection (a) and may [shall] submit, after the close of each month, a purchase voucher or journal voucher to an agency for which services were provided.

SECTIONi4.04.iiSection 2167.054(d), Government Code, is amended to read as follows:

(d)iiAs provided in a request for proposals and under rules adopted by the commission, the commission may discuss acceptable or potentially acceptable proposals with offerors to assess an offeror's ability to meet the solicitation requirements and to obtain the most advantageous lease contract for the state. The commission may [shall] invite a leasing state agency to participate in discussions and negotiations conducted under this section. After receiving a proposal but before making an award, the commission may permit the offeror to revise the proposal to obtain the best final proposal.

SECTIONi4.05.iiSections 2167.055(d) and (f), Government Code, are amended to read as follows:

5764 78th LEGISLATURE — REGULAR SESSION


(d)iiA lease contract that does not contain an option to renew may, on agreement of the parties, be renewed under terms to which all parties to the contract agree [once under the provisions of the original contract for a term that does not exceed one year].

(f)iiThe obligation of the lessor to provide lease space and of the commission to accept the space is binding on the execution of the lease [award of the] contract.

SECTIONi4.06.iiSection 2167.101, Government Code, is amended to read as follows:

Sec.i2167.101.iiCERTIFICATION OF AVAILABLE MONEY. A state agency occupying space leased under this chapter shall certify to the commission, at least 60 days before the beginning of each fiscal biennium during the lease term, that money is available to pay for the lease until the end of the next fiscal biennium.

SECTIONi4.07.iiThe following laws are repealed:

(1)iiSection 2167.003(c), Government Code;

(2)iiSection 2167.004(b), Government Code; and

(3)iiSection 2167.106, Government Code.

SECTIONi4.08.iiA lease contract entered into by the Texas Building and Procurement Commission before September 1, 2003, under Chapter 2167, Government Code, is governed during the remaining term of the lease by Chapter 2167, Government Code, as it existed immediately before September 1, 2003, and the prior law is continued in effect for this purpose. Chapter 2167, Government Code, as amended by this article, applies to the renewal of a lease described by this section.

ARTICLE 5. ALLOCATION OF OFFICE SPACE TO STATE AGENCIES

SECTIONi5.01.iiSection 2165.104(c), Government Code, is amended to read as follows:

(c)iiTo the extent possible without sacrificing critical public or client services, the commission may not allocate usable office space, as defined by the commission, to a state agency under Article I, II, V, VI, VII, or VIII of the General Appropriations Act or to the Texas Higher Education Coordinating Board, the Texas Education Agency, the State Board for Educator Certification, the Telecommunications Infrastructure Fund Board, or the Office of Court Administration of the Texas Judicial System in an amount that exceeds an average of 135 [153] square feet per agency employee for each agency site. To the extent that any of those agencies allocates its own usable office space, as defined by the commission, the agency shall allocate the space to achieve the required ratio. This subsection does not apply to:

(1)iian agency site at which there are so few employees that it is not practical to apply this subsection to that site, as determined by the commission [fewer than 16 employees are located]; and

(2)iian agency site at which it is not practical to apply this subsection because of the site's type of space or use of space, as determined by the commission [warehouse space;

[(3)iilaboratory space;

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[(4)iistorage space exceeding 1,000 gross square feet;

[(5)iilibrary space;

[(6)iispace for hearing rooms used to conduct hearings required under the administrative procedure law, Chapter 2001; or

[(7)iianother type of space specified by commission rule, if the commission determines that it is not practical to apply this subsection to that space].

SECTIONi5.02.iiThis article applies only to a lease for usable office space entered into or renewed on or after September 1, 2003. A lease entered into or renewed before September 1, 2003, shall be reviewed by the Texas Building and Procurement Commission as the lease comes up for renewal to determine whether it would be cost-effective to bring the lease into compliance with Section 2165.104(c), Government Code, as amended by this article.

ARTICLE 6. WRITTEN COMMENTS BY THE GENERAL LAND OFFICE ON TEXAS BUILDING AND PROCUREMENT COMMISSION LEASES

SECTIONi6.01.iiThe following sections are repealed:

(1)iiSection 2165.154, Government Code; and

(2)iiSection 2165.204, Government Code.

ARTICLE 7. GENERAL STATE PROCUREMENT

SECTIONi7.01.iiSection 2171.101(a), Government Code, is amended to read as follows:

(a)iiThe office of vehicle fleet management shall establish a vehicle reporting system to assist each state agency in the management of its vehicle fleet. A state agency shall be required to submit the reports on a monthly basis [not more often than semiannually].

SECTIONi7.02.iiSections 2171.102(a) and (b), Government Code, are amended to read as follows:

(a)iiThe office of vehicle fleet management may, for a fee, [shall] provide routine periodic maintenance service to state agencies located in Travis County. [The office shall charge a fee for the service.]

(b)iiThe office may [shall] negotiate contracts for major overhauls and other extensive mechanical work.

SECTIONi7.03.iiSections 2171.104(c) and (d), Government Code, are amended to read as follows:

(c)iiThe management plan must address:

(1)iiopportunities for consolidating and privatizing the operation and management of vehicle fleets in areas where there is a concentration of state agencies, including the Capitol Complex and the Health and Human Services Complex in Austin;

(2)iithe number and type of vehicles owned by each agency and the purpose each vehicle serves;

(3)iiprocedures to increase vehicle use and improve the efficiency of the state vehicle fleet;

(4)iiprocedures to reduce the cost of maintaining state vehicles;

(5)iiprocedures to handle surplus or salvage [the sale of excess] state vehicles; and

5766 78th LEGISLATURE — REGULAR SESSION


(6)iilower-cost alternatives to using state-owned vehicles, including:

(A)iiusing rental cars; and

(B)iireimbursing employees for using personal vehicles.

(d)iiThe commission shall require a state agency to transfer surplus or salvage vehicles identified by the management plan to the commission and shall sell or dispose of the [excess] vehicles in accordance with the provisions of Chapter 2175 that provide for disposition of surplus or salvage property by the commission [identified by the management plan and deposit the proceeds from the sale into the account that the agency used to purchase the vehicles].

SECTIONi7.04.iiChapter 2151, Government Code, is amended by adding Section 2151.005 to read as follows:

Sec.i2151.005.iiEXEMPTIONS RELATED TO LEGAL SERVICES. This subtitle does not apply to:

(1)iiobtaining outside legal counsel services;

(2)iiobtaining expert witnesses; or

(3)iiprocuring litigation-related goods and services for which competitive procurement is not feasible under the circumstances.

SECTIONi7.05.iiSection 2155.078(k), Government Code, is amended to read as follows:

(k)iiThe commission shall require a reasonable number of [24] hours of continuing education [each year] to maintain a certification level. The commission may allow attendance at equivalent certification training recognized by the commission to count toward the required number of [up to 16] hours [of the continuing education requirement]. Maintenance of the certification level may be by yearly renewal or another reasonable renewal period comparable to nationally recognized certification requirements.

SECTIONi7.06.iiSection 2155.141, Government Code, is amended to read as follows:

Sec.i2155.141.ii[CERTAIN OTHER] PURCHASES FOR AUXILIARY ENTERPRISE NOT WITHIN COMMISSION'S PURCHASING AUTHORITY. The commission's authority does not extend to a purchase of goods and services[:

[(1)iifor resale;

[(2)]iifor an auxiliary enterprise[; or

[(3)iifor an organized activity relating to an instructional department of an institution of higher learning or a similar activity of another state agency].

SECTIONi7.07.iiSection 2155.144, Government Code, is amended by adding Subsection (b-1) to read as follows:

(b-1)iiAn agency to which this section applies is not delegated the authority to procure common commodities or services:

(1)iiincluding goods and services acquired for direct consumption or use by the agency in the day-to-day support of the agency's administrative operations, such as office supplies and equipment, building maintenance and cleaning services, or temporary employment services; and

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(2)iinot including consulting services, professional services, health care services, information resources technology, goods or services acquired for the benefit or on behalf of clients of programs operated by the agency, procurements specifically authorized or delegated to the agency by statute, or the contracting out of agency purchasing functions or other administrative or program functions.

SECTIONi7.08.iiSubchapter C, Chapter 2155, Government Code, is amended by adding Section 2155.148 to read as follows:

Sec.i2155.148.iiCERTAIN PURCHASES FOR TEXAS STATEWIDE EMERGENCY SERVICES PERSONNEL RETIREMENT FUND. (a) The fire fighters' pension commissioner is delegated all purchasing functions relating to the purchase of goods or services from funds other than general revenue funds for a purpose the state board of trustees of the Texas statewide emergency services personnel retirement fund determines relates to the fiduciary duties of the retirement fund.

(b)iiThe fire fighters' pension commissioner shall acquire goods or services by any procurement method approved by the state board of trustees of the Texas statewide emergency services personnel retirement fund that provides the best value to the retirement fund. The fire fighters' pension commissioner shall consider the best value standards provided by Section 2155.074.

(c)iiThe commission shall procure goods or services for the fire fighters' pension commissioner at the request of the pension commissioner, and the pension commissioner may use the services of the commission in procuring goods or services.

SECTIONi7.09.iiSubchapter I, Chapter 2155, Government Code, is amended by adding Section 2155.510 to read as follows:

Sec.i2155.510.iiREBATES. (a) The commission may collect a rebate from a vendor under a contract listed on a schedule developed under this subchapter.

(b)iiIf a purchase resulting in a rebate under this section is made in whole or in part with federal funds, the commission shall ensure that, to the extent the purchase was made with federal funds, the appropriate portion of the rebate is reported to the purchasing agency for reporting and reconciliation purposes with the appropriate federal funding agency.

SECTIONi7.10.iiThe heading to Subchapter B, Chapter 2157, Government Code, is amended to read as follows:

SUBCHAPTER B. CATALOG [CATALOGUE] PURCHASE METHOD

SECTIONi7.11.iiSection 2157.061, Government Code, is amended to read as follows:

Sec.i2157.061.iiUSE OF CATALOG [CATALOGUE] PURCHASE METHOD REQUIRED UNLESS BEST VALUE AVAILABLE ELSEWHERE. The commission or a state agency shall purchase an automated information system through the catalog [catalogue] procedure provided by this subchapter unless the commission or state agency determines that the best value may be obtained from another purchase method authorized by this subtitle.

SECTIONi7.12.iiSection 2157.0611, Government Code, is amended to read as follows:

5768 78th LEGISLATURE — REGULAR SESSION


Sec.i2157.0611.iiREQUIREMENT TO EVALUATE THREE OFFERS [PROPOSALS] WHEN POSSIBLE. A catalog [catalogue] purchase or lease that exceeds $2,000 or a greater amount prescribed by commission rule shall, when possible, be based on an evaluation of at least three catalog offers [catalogue proposals] made to the commission or other state agency by catalog [qualified] information systems vendors. If at least three catalog offers [catalogue proposals] are not evaluated by the commission or other state agency before a purchase or lease that exceeds the threshold amount is made, the commission or other agency shall document the reasons for that fact before making the purchase or lease under Section 2157.063.

SECTIONi7.13.iiSection 2157.062, Government Code, is amended to read as follows:

Sec.i2157.062.iiBASIC REQUIREMENTS FOR CATALOG [APPLICATION PROCESS FOR QUALIFICATION AS] VENDOR. [(a) To sell or lease an automated information system under this subchapter to a state agency, a vendor must apply to the commission for designation as a qualified information systems vendor. The commission shall prescribe the application process. The commission may allow or require a vendor to apply on-line.

[(b)]iiAt a minimum, a catalog information systems vendor must [the commission shall require an applicant to submit]:

(1)iimaintain an Internet catalog [a catalogue] containing each product and service eligible for purchase by a state agency, including for each product or service:

(A)iia description;

(B)iithe list price; and

(C)iithe price to a state agency;

(2)iimaintain a maintenance, repair, and support plan for each eligible product or service;

(3)iiprovide on request proof of the applicant's financial resources and ability to perform; and

(4)iiprovide a guarantee that the vendor will make available equivalent replacement parts for a product sold to the state until at least the third anniversary of the date the product is discontinued.

SECTIONi7.14.iiSection 2157.063(a), Government Code, is amended to read as follows:

(a)iiIf a purchase or lease is the best value available and is in the state's best interest, a state agency may under this subchapter purchase or lease an automated information system directly from a catalog [qualified] information systems vendor and may negotiate price and additional terms and conditions to be included in a contract relating to the purchase or lease.

SECTIONi7.15.iiSection 2157.066, Government Code, is amended by amending Subsections (a), (b), and (f) and adding Subsection (g) to read as follows:

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(a)iiA catalog [vendor designated by the commission as a qualified] information systems vendor shall publish and maintain a catalog [catalogue] described by Section 2157.062(1) [2157.062(b)(1)] in the manner required by the commission.

(b)iiThe vendor shall revise the catalog [catalogue] as necessary in the manner required by the commission.

(f)iiThe commission may audit a catalog [qualified] information systems vendor's catalog [approved catalogue] for compliance with rules adopted under Subsection (g) [(c)].

(g)iiThe commission shall adopt rules that specify the requirements for a catalog information systems vendor's maintenance of Internet catalogs, including:

(1)iiavailability;

(2)iiformat; and

(3)iiother relevant requirements.

SECTIONi7.16.iiSection 2157.067(a), Government Code, is amended to read as follows:

(a)iiThe commission shall make the catalog [catalogue] purchasing procedure available to a local government that qualifies for cooperative purchasing under Sections 271.082 and 271.083, Local Government Code.

SECTIONi7.17.iiSection 2157.068(b), Government Code, is amended to read as follows:

(b)iiThe department shall negotiate with catalog [qualified] information systems vendors to attempt to obtain a favorable price for all of state government on licenses for commodity software items, based on the aggregate volume of purchases expected to be made by the state. The terms and conditions of a license agreement between a vendor and the department under this section may not be less favorable to the state than the terms of similar license agreements between the vendor and retail distributors.

SECTIONi7.18.iiChapter 2254, Government Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. OUTSIDE LEGAL SERVICES

Sec.i2254.151.iiDEFINITION. In this subchapter, "state agency" means a department, commission, board, authority, office, or other agency in the executive branch of state government created by the state constitution or a state statute.

Sec.i2254.152.iiAPPLICABILITY. This subchapter does not apply to a contingent fee contract for legal services.

Sec.i2254.153.iiCONTRACTS FOR LEGAL SERVICES AUTHORIZED. Subject to Section 402.0212, a state agency may contract for outside legal services.

Sec.i2254.154.iiATTORNEY GENERAL; COMPETITIVE PROCUREMENT. The attorney general may require state agencies to obtain outside legal services through a competitive procurement process, under conditions prescribed by the attorney general.

SECTIONi7.19.iiSection 2262.001, Government Code, is amended by adding Subdivision (1-a) to read as follows:

5770 78th LEGISLATURE — REGULAR SESSION


(1-a)ii"Commission" means the Texas Building and Procurement Commission.

SECTIONi7.20.iiSections 2262.051(a) and (b), Government Code, are amended to read as follows:

(a)iiIn consultation with the attorney general [Texas Building and Procurement Commission], the Department of Information Resources, the comptroller, and the state auditor, the commission [attorney general] shall develop or [and] periodically update a contract management guide for use by state agencies.

(b)iiThe commission [attorney general] may adopt rules necessary to develop or update the guide.

SECTIONi7.21.iiSection 2262.052(b), Government Code, is amended to read as follows:

(b)iiThe state auditor shall:

(1)iiperiodically monitor compliance with this section;

(2)iireport any noncompliance to:

(A)iithe governor;

(B)iithe lieutenant governor;

(C)iithe speaker of the house of representatives; and

(D)iithe team; and

(3)iiassist, in coordination with the commission [attorney general] and the comptroller, a noncomplying state agency to comply with this section.

SECTIONi7.22.iiSection 2262.053(a), Government Code, is amended to read as follows:

(a)iiIn coordination with the [Texas Building and Procurement Commission, the] comptroller, [and the] Department of Information Resources, and [the] state auditor, the commission shall develop or administer a training program for contract managers.

SECTIONi7.23.iiSection 2262.054, Government Code, is amended to read as follows:

Sec.i2262.054.iiPUBLIC COMMENT. The commission [attorney general] by rule may establish procedures by which each state agency is required to invite public comment by publishing the proposed technical specifications for major contracts on the Internet through the information service known as the Texas Marketplace or through a suitable successor information service. The guide must define "technical specifications."

SECTIONi7.24.iiSection 2262.101, Government Code, is amended to read as follows:

Sec.i2262.101.iiCREATION; DUTIES. The Contract Advisory Team is created to assist state agencies in improving contract management practices by:

(1)iireviewing the solicitation of major contracts by state agencies;

(2)iireviewing any findings or recommendations made by the state auditor, including those made under Section 2262.052(b), regarding a state agency's compliance with the contract management guide; and

(3)iiproviding recommendations to the commission regarding:

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(A)ii[the attorney general regarding] the development of the contract management guide; and

(B)ii[the state auditor regarding] the training under Section 2262.053.

SECTIONi7.25.iiSections 2155.142, 2157.001(2), 2157.064, 2157.065, 2157.066(c) and (d), and 2261.001(e), Government Code, are repealed.

SECTIONi7.26.iiThe changes in law made by this article to Section 2155.141, Government Code, apply only to a purchase made on or after the effective date of this article. A purchase made before the effective date of this article is covered by the law in effect when the purchase was made, and the former law is continued in effect for that purpose.

SECTIONi7.27.ii(a) In this section, "commission" means the Texas Building and Procurement Commission.

(b)iiNot later than February 1, 2004:

(1)iithe attorney general and state auditor shall complete the transfer of powers and duties to the commission under Chapter 2262, Government Code, as amended by this article;

(2)iia rule or form adopted by the attorney general or state auditor under Chapter 2262, Government Code, is a rule or form of the commission and remains in effect until changed by the commission;

(3)iithe commission assumes, without a change in status, the position of the attorney general or state auditor with respect to any matter regarding which the duties of the attorney general or state auditor under Chapter 2262, Government Code, have been transferred to the commission;

(4)iiall property, including records, and rights and obligations of the attorney general and state auditor related to those entities' express duties under Chapter 2262, Government Code, are transferred to the commission; and

(5)iiall funds appropriated by the legislature to the attorney general and state auditor related to those entities' express powers and duties under Chapter 2262, Government Code, are transferred to the commission.

SECTIONi7.28.iiSection 2175.061, Government Code, is amended by adding Subsection (c) to read as follows:

(c)iiThe commission may by rule determine the best method of disposal for surplus and salvage property of the state under this chapter.

SECTIONi7.29.iiSection 2175.134, Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiProceeds from the sale of surplus or salvage property, less the cost of advertising the sale, the cost of selling the surplus or salvage property, including the cost of auctioneer services, and the amount of the fee collected under Section 2175.131, shall be deposited to the credit of the general revenue fund of the state treasury [appropriate appropriation item of the state agency for which the sale was made].

(c)iiProceeds from the sale of surplus and salvage property of the State Aircraft Pooling Board shall be deposited to the credit of the board.

SECTIONi7.30.iiSection 2175.182(a), Government Code, is amended to read as follows:

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(a)iiThe commission is responsible for the disposal of surplus or salvage property under this subchapter. The commission may take physical possession of the property. [A state agency maintains ownership of property throughout the disposal process.]

SECTIONi7.31.iiSection 2175.185(b), Government Code, is amended to read as follows:

(b)iiOn receiving notice under this section, the comptroller shall, if necessary, [:

[(1)iidebit and credit the proper appropriations; and

[(2)]iiadjust state property accounting records.

SECTIONi7.32.iiSection 2175.191, Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:

(a)iiProceeds from the sale of surplus or salvage property, less the cost of advertising the sale, the cost of selling the surplus or salvage property, including the cost of auctioneer services, and the amount of the fee collected under Section 2175.188, shall be deposited to the credit of the general revenue fund of the state treasury [appropriate appropriation item of the state agency for which the sale was made].

(c)iiProceeds from the sale of surplus and salvage property of the State Aircraft Pooling Board shall be deposited to the credit of the board.

SECTIONi7.33.iiSection 2175.361, Government Code, is amended to read as follows:

Sec.i2175.361.iiDEFINITIONS. In this subchapter:

(1)ii"Federal act" means the Federal Property and Administrative Services Act of 1949 (40 U.S.C. Section 541 et seq. [484]), as amended, or any other federal law providing for the disposal of federal surplus property.

(2)ii"Federal property" means federal surplus property acquired:

(A)iiby the commission or under the commission's jurisdiction under this subchapter; and

(B)iiunder 40 U.S.C. Section 483c, 549, or 550, or under any other federal law providing for the disposal [Section 484(j) or (k)] of [the] federal surplus property [act]. [The term includes federal real property acquired under Section 484(k) of the federal act.]

SECTIONi7.34.iiSection 2175.362(a), Government Code, is amended to read as follows:

(a)iiThe commission is the designated state agency under 40 U.S.C. Section 549 and any other federal law providing for the disposal [484(j)] of [the] federal surplus property [act].

SECTIONi7.35.iiSection 2175.364, Government Code, is amended to read as follows:

Sec.i2175.364.iiCOMMISSION ASSISTANCE IN PROCUREMENT AND USE OF PROPERTY. The commission may:

(1)iidisseminate information and assist a potential applicant regarding the availability of federal real property;

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(2)iiassist in the processing of an application for acquisition of federal real property and related personal property under 40 U.S.C. Section 550 or any other federal law providing for the disposal [484(k)] of [the] federal surplus property [act];

(3)iiact as an information clearinghouse for an entity that may be eligible to acquire federal property and, as necessary, assist the entity to obtain federal property;

(4)iiassist in assuring use of the property; and

(5)iiengage in an activity relating to the use of federal property by another state agency, institution, or organization engaging in or receiving assistance under a federal program.

SECTIONi7.36.iiSection 2175.367, Government Code, is amended to read as follows:

Sec.i2175.367.iiCONTRACTS. The commission may enter into an agreement, including:

(1)iia cooperative agreement with a federal agency under 40 U.S.C.iSection 549 or any other federal law providing for the disposal [484(n)] of [the] federal surplus property [act];

(2)iian agreement with a state agency for surplus property of a state agency that will promote the administration of the commission's functions under this subchapter; or

(3)iian agreement with a group or association of state agencies for surplus property that will promote the administration of the commission's functions under this subchapter.

SECTIONi7.37.iiSections 2175.134(b) and 2175.191(b), Government Code, are repealed.

SECTIONi7.38.iiThe changes in law made by this article to Chapter 2175, Government Code, apply only to surplus and salvage property of the state sold on or after September 1, 2003.

SECTIONi7.39.iiSection 2166.001(8), Government Code, is amended to read as follows:

(8)ii"Small construction project" means a project that:

(A)iihas an estimated value of less than $100,000 [$25,000]; and

(B)iirequires advance preparation of working plans or drawings.

SECTIONi7.40.iiSection 2166.2531(d), Government Code, is amended to read as follows:

(d)iiThe commission shall prepare a request for qualifications that includes general information on the project site, project scope, [budget,] special systems, selection criteria, and other information that may assist potential design-build firms in submitting proposals for the project. The commission shall also prepare a design criteria package that includes more detailed information on the project. If the preparation of the design criteria package requires engineering or architectural services that constitute the practice of engineering within the meaning of The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) or

5774 78th LEGISLATURE — REGULAR SESSION


the practice of architecture within the meaning of Chapter 478, Acts of the 45th Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas Civil Statutes), those services shall be provided in accordance with the applicable law.

SECTIONi7.41.iiSections 2166.2532(e) and (g), Government Code, are amended to read as follows:

(e)iiThe commission shall select the construction manager-at-risk in either a one-step or two-step process. The commission shall prepare a request for proposals, in the case of a one-step process, or a request for qualifications, in the case of a two-step process, that includes general information on the project site, project scope, schedule, selection criteria, [estimated budget,] and the time and place for receipt of proposals or qualifications, as applicable; a statement as to whether the selection process is a one-step or two-step process; and other information that may assist the commission in its selection of a construction manager-at-risk. The commission shall state the selection criteria in the request for proposals or qualifications, as applicable. The selection criteria may include the offeror's experience, past performance, safety record, proposed personnel and methodology, and other appropriate factors that demonstrate the capability of the construction manager-at-risk. If a one-step process is used, the commission may request, as part of the offeror's proposal, proposed fees and prices for fulfilling the general conditions. If a two-step process is used, the commission may not request fees or prices in step one. In step two, the commission may request that five or fewer offerors, selected solely on the basis of qualifications, provide additional information, including the construction manager-at-risk's proposed fee and its price for fulfilling the general conditions.

(g)iiAt each step, the commission shall receive, publicly open, and read aloud the names of the offerors. [At the appropriate step, the commission shall also read aloud the fees and prices, if any, stated in each proposal as the proposal is opened.] Within 45 days after the date of opening the proposals, the commission or its representative shall evaluate and rank each proposal submitted in relation to the criteria set forth in the request for proposals.

SECTIONi7.42.iiSections 2166.2533(d) and (f), Government Code, are amended to read as follows:

(d)iiThe commission shall prepare a request for competitive sealed proposals that includes construction documents, selection criteria, [estimated budget,] project scope, schedule, and other information that contractors may require to respond to the request. The commission shall state in the request for proposals all of the selection criteria that will be used in selecting the successful offeror.

(f)iiThe commission shall receive, publicly open, and read aloud the names of the offerors [and, if any are required to be stated, all prices stated in each proposal]. Within 45 days after the date of opening the proposals, the commission shall evaluate and rank each proposal submitted in relation to the published selection criteria.

SECTIONi7.43.iiSubchapter F, Chapter 2166, Government Code, is amended by adding Section 2166.260 to read as follows:

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Sec.i2166.260.iiAPPROVAL OF CERTAIN EXPENDITURES REQUIRED. A state agency may not spend more than the amount authorized for the cost of a project unless the governor and the Legislative Budget Board approve the expenditure. Once the cost of a project reaches the amount authorized for the project, each change to approved project plans must be approved by the governor and the Legislative Budget Board.

SECTIONi7.44.iiSection 2166.302, Government Code, is amended to read as follows:

Sec.i2166.302.iiADOPTION OF CONDITIONS. (a) Except as provided by Subsection (b), the [The] commission shall adopt uniform general conditions to be incorporated into all building construction contracts made by the state, including a contract for a project excluded from this chapter by Section 2166.003, but not including a contract for a project excluded from this chapter by Section 2166.004.

(b)iiThe commission is not required to adopt uniform general conditions for small construction projects, as defined by Section 2166.001.

SECTIONi7.45.iiSection 2166.305(b), Government Code, is amended to read as follows:

(b)iiA committee appointed by the commission shall perform the review. The committee consists of:

(1)iithe director of facilities construction and space management appointed under Section 2152.104, who serves [ex officio] as the presiding officer of the committee [and who votes only in case of a tie];

(2)iiseven individuals appointed by the commission, one each from the lists of nominees submitted respectively by the:

(A)iipresident of the Texas Society of Architects;

(B)iipresident of the Texas Society of Professional Engineers;

(C)iipresiding officer of the Executive Council of the Texas Associated General Contractors Chapters;

(D)iiexecutive secretary of the Mechanical Contractors Associations of Texas, Incorporated;

(E)iiexecutive secretary of the Texas Building and Construction Trades Council;

(F)iipresident of the Associated Builders and Contractors of Texas; and

(G)iiexecutive director of the National Association of Minority Contractors, with the list composed of persons who reside in this state;

(3)iione individual appointed by the commission representing an institution of higher education, as defined by Section 61.003, Education Code;

(4)iione individual appointed by the commission representing a state agency that has a substantial ongoing construction program; [and]

(5)iione individual appointed by the commission representing the attorney general's office; and

(6)iione individual appointed by the commission representing the interests of historically underutilized businesses.

SECTIONi7.46.iiSection 2166.201, Government Code, is repealed.

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SECTIONi7.47.iiThe changes in law made by this article to Sections 2166.2531, 2166.2532, and 2166.2533, Government Code, apply only in relation to a Texas Building and Procurement Commission request for qualifications or proposals made on or after September 1, 2003.

SECTIONi7.48.iiCARLOS F. TRUAN NATURAL RESOURCES CENTER. (a) The natural resources center located at Texas A&M University at Corpus Christi that was dedicated on August 6, 1996, shall be known as the Carlos F. Truan Natural Resources Center.

(b)iiThe Texas Building and Procurement Commission shall take appropriate action to ensure that the center is identified as provided by this section.

ARTICLE 8. TRAVEL SERVICES CONTRACTS

SECTIONi8.01.iiSections 2171.052(b) and (c), Government Code, are amended to read as follows:

(b)iiThe central travel office may [shall] negotiate contracts with private travel agents, with travel and transportation providers, and with credit card companies that provide travel services and other benefits to the state. The central travel office may [shall] negotiate with commercial lodging establishments to obtain the most cost-effective rates possible for state employees traveling on state business.

(c)iiThe commission may [shall] make contracts with travel agents that meet certain reasonable requirements prescribed by the central travel office, [allowing contracts to provide travel services by as many private travel agents as possible] with preference given to resident entities of this state.

SECTIONi8.02.iiSection 2171.052(e), Government Code, is repealed.

ARTICLE 9. SCHOOL BUS SAFETY STANDARDS

SECTIONi9.01.iiSection 34.002(a), Education Code, is amended to read as follows:

(a)iiThe Department of Public Safety, with the advice of the [General Services Commission and the] Texas Education Agency, shall establish safety standards for school buses used to transport students in accordance with Section 34.003 [34.002, Education Code].

SECTIONi9.02.iiSections 547.7015(a) and (b), Transportation Code, are amended to read as follows:

(a)iiThe department [General Services Commission, with the advice of the department,] shall adopt and enforce rules governing the design, color, lighting and other equipment, construction, and operation of a school bus for the transportation of schoolchildren that is:

(1)iiowned and operated by a school district in this state; or

(2)iiprivately owned and operated under a contract with a school district in this state.

(b)iiIn adopting rules under this section, the department [General Services Commission] shall emphasize:

(1)iisafety features; and

(2)iilong-range, maintenance-free factors.

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SECTIONi9.03.iiRules that were adopted under Section 547.7015, Transportation Code, before the effective date of this article and that are in effect on the effective date of this article are continued in effect as rules of the Department of Public Safety until the rules are amended, repealed, or superseded by an action of the department.

ARTICLE 10. CENTRAL SUPPLY STORE; REPAIR FACILITY

SECTIONi10.01.iiSection 2172.001(a), Government Code, is amended to read as follows:

[(a)]iiThe commission may [shall] operate a central supply store at which only state agencies, the legislature, and legislative agencies may obtain small supply items. If the commission operates a central supply store, the commission shall devise an appropriate method of billing a using entity for the supplies.

SECTIONi10.02.iiSection 2172.002(a), Government Code, is amended to read as follows:

(a)iiThe commission may [shall] maintain a facility for repairing office machines and may [shall] offer repair services to the following entities located in Austin:

(1)iistate agencies;

(2)iithe legislature; and

(3)iilegislative agencies.

SECTIONi10.03.iiSection 2172.001(b), Government Code, is repealed.

ARTICLE 11. EFFECTIVE DATE

SECTIONi11.01.iiThis Act takes effect immediately 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, 2003.

Representative R. Cook moved to adopt the conference committee report on HBi3042.

A record vote was requested.

The motion prevailed by (Record 925): 147 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts;

5778 78th LEGISLATURE — REGULAR SESSION


Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Burnam.

SBi1131 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Capelo submitted the conference committee report on SBi1131.

Representative Capelo moved to adopt the conference committee report on SBi1131.

The motion prevailed.

HB 1314 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Pitts submitted the following conference committee report on HB 1314 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1314 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Averitt Pitts
West, Royce West
Van de Putte Dawson
Shapiro
On the part of the senate On the part of the house

HB 1314, A bill to be entitled An Act relating to public school student discipline.

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

SECTIONi1.iiSubchapter D, Chapter 12, Education Code, is amended by adding Section 12.131 to read as follows:

Sec.i12.131.iiREMOVAL OF STUDENTS TO DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM; EXPULSION OF STUDENTS. (a) The governing body of an open-enrollment charter school shall adopt a code of conduct for its district or for each campus. In addition to establishing standards for behavior, the code of conduct shall outline generally the types of prohibited behaviors and their possible consequences. The code of conduct shall also outline the school's due process procedures with respect to expulsion.

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Notwithstanding any other provision of law, a final decision of the governing body of an open-enrollment charter school with respect to actions taken under the code of conduct may not be appealed.

(b)iiAn open-enrollment charter school may not elect to expel a student for a reason that is not authorized by Section 37.007 or specified in the school's code of conduct as conduct that may result in expulsion.

(c)iiNotwithstanding any other provision, Section 37.002 and its provisions, wherever referenced, are not applicable to an open-enrollment charter school unless the governing body of the school so determines.

SECTIONi2.iiSection 25.001(d), Education Code, is amended to read as follows:

(d)iiFor a person under the age of 18 years to establish a residence for the purpose of attending the public schools separate and apart from the person's parent, guardian, or other person having lawful control of the person under a court order, it must be established that the person's presence in the school district is not for the primary purpose of participation in extracurricular activities. The board of trustees shall determine whether an applicant for admission is a resident of the school district for purposes of attending the public schools and may adopt reasonable guidelines for making a determination as necessary to protect the best interests of students. The board of trustees is not required to admit a person under this subsection if the person:

(1)iihas engaged in conduct or misbehavior within the preceding year that has resulted in:

(A)iiremoval to a disciplinary [an] alternative education program; or

(B)iiexpulsion;

(2)iihas engaged in delinquent conduct or conduct in need of supervision and is on probation or other conditional release for that conduct; or

(3)iihas been convicted of a criminal offense and is on probation or other conditional release.

SECTIONi3.iiSection 25.085(d), Education Code, is amended to read as follows:

(d)iiUnless specifically exempted by Section 25.086, a student enrolled in a school district must attend:

(1)iian extended-year program for which the student is eligible that is provided by the district for students identified as likely not to be promoted to the next grade level or tutorial classes required by the district under Section 29.084;

(2)iian accelerated reading instruction program to which the student is assigned under Section 28.006(g);

(3)iian accelerated instruction program to which the student is assigned under Section 28.0211; [or]

(4)iia basic skills program to which the student is assigned under Section 29.086; or

(5)iia summer program provided under Section 37.008(l) or Section 37.021.

SECTIONi4.iiSection 37.001, Education Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

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(a)iiThe board of trustees of an independent school district shall, with the advice of its district-level committee established under Subchapter F, Chapter 11 [Section 11.251], adopt a student code of conduct for the district. The student code of conduct must be posted and prominently displayed at each school campus or made available for review at the office of the campus principal. In addition to establishing standards for student conduct, the student code of conduct must:

(1)iispecify the circumstances, in accordance with this subchapter, under which a student may be removed from a classroom, campus, or disciplinary alternative education program;

(2)iispecify conditions that authorize or require a principal or other appropriate administrator to transfer a student to a disciplinary [an] alternative education program; [and]

(3)iioutline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007;

(4)iispecify whether consideration is given to self-defense as a factor in a decision to order suspension, removal to a disciplinary alternative education program, or expulsion;

(5)iiprovide guidelines for setting the length of a term of:

(A)iia removal under Section 37.006; and

(B)iian expulsion under Section 37.007; and

(6)iiaddress the notification of a student's parent or guardian of a violation of the student code of conduct committed by the student that results in suspension, removal to a disciplinary alternative education program, or expulsion.

(d)iiEach school year, a school district shall provide parents notice of and information regarding the student code of conduct.

SECTIONi5.iiSections 37.002(c) and (d), Education Code, are amended to read as follows:

(c)iiIf a teacher removes a student from class under Subsection (b), the principal may place the student into another appropriate classroom, into in-school suspension, or into a disciplinary [an] alternative education program as provided by Section 37.008. The principal may not return the student to that teacher's class without the teacher's consent unless the committee established under Section 37.003 determines that such placement is the best or only alternative available. The terms of the removal may prohibit the student from attending or participating in school-sponsored or school-related activity.

(d)iiA teacher shall remove from class and send to the principal for placement in a disciplinary [an] alternative education program or for expulsion, as appropriate, a student who engages in conduct described under Section 37.006 or 37.007. The student may not be returned to that teacher's class without the teacher's consent unless the committee established under Section 37.003 determines that such placement is the best or only alternative available.

SECTIONi6.iiSection 37.0021, Education Code, is amended by amending Subsections (a) through (d) and adding Subsection (g) to read as follows:

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(a)iiIt is the policy of this state to treat with dignity and respect all students, including students with disabilities who receive special education services under Subchapter A, Chapter 29 [with dignity and respect]. A student with a disability who receives special education services under Subchapter A, Chapter 29, may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.

(b)iiIn this section:

(1)ii"Restraint" means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student's body.

(2)ii"Seclusion" means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:

(A)iiis designed solely to seclude a person; and

(B)iicontains less than 50 square feet of space.

(3)ii"Time-out" means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A)iithat is not locked; and

(B)iifrom which the exit [student] is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object [prevented from leaving].

(c)iiA school district employee or volunteer or an independent contractor of a district may not place a student in seclusion. This subsection does not apply to the use of seclusion in a court-ordered placement, other than a placement in an educational program of a school district, or in a placement or facility to which the following law, rules, or regulations apply:

(1)iithe Children's Health Act of 2000, Pub. L. No. 106-310, any subsequent amendments to that Act, any regulations adopted under that Act, or any subsequent amendments to those regulations;

(2)ii40 T.A.C. Sections 720.1001-720.1013; or

(3)ii25 T.A.C. Section 412.308(e).

(d)iiThe commissioner by rule shall adopt procedures for the use of restraint and time-out by a school district employee or volunteer or an independent contractor of a district in the case of a student with a disability receiving special education services under Subchapter A, Chapter 29. A procedure adopted under this subsection must:

(1)iibe consistent with:

(A)iiprofessionally accepted practices and standards of student discipline and techniques for behavior management; and

(B)iirelevant health and safety standards; and

(2)iiidentify any discipline management practice or behavior management technique that requires a district employee or volunteer or an independent contractor of a district to be trained before using that practice or technique.

(g)iiThis section and any rules or procedures adopted under this section do not apply to:

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(1)iia peace officer while performing law enforcement duties;

(2)iijuvenile probation, detention, or corrections personnel; or

(3)iian educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

SECTIONi7.iiSection 37.003, Education Code, is amended by adding Subsection (c) to read as follows:

(c)iiThe committee's placement determination regarding a student with a disability who receives special education services under Subchapter A, Chapter 29, is subject to the requirements of the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) and federal regulations, state statutes, and agency requirements necessary to carry out federal law or regulations or state law relating to special education.

SECTIONi8.iiSection 37.005(a), Education Code, is amended to read as follows:

(a)iiThe principal or other appropriate administrator may suspend a student who engages in conduct identified in the student code of conduct adopted under Section 37.001 as conduct for which a student may be suspended [for which the student may be placed in an alternative education program under this subchapter].

SECTIONi9.iiSection 37.006, Education Code, is amended by amending Subsections (a), (b), (c), (d), (f), (h), and (l) and adding Subsections (m) and (n) to read as follows:

(a)iiA [Except as provided by Section 37.007(a)(3) or (b), a] student shall be removed from class and placed in a disciplinary [an] alternative education program as provided by Section 37.008 if the student:

(1)iiengages in conduct involving a public school that contains the elements of the offense of false alarm or report under Section 42.06, Penal Code, or terroristic threat under Section 22.07, Penal Code; or

(2)iicommits the following on or within 300 feet of school property, as measured from any point on the school's real property boundary line, or while attending a school-sponsored or school-related activity on or off of school property:

(A)iiengages in conduct punishable as a felony;

(B)iiengages in conduct that contains the elements of the offense of assault under Section 22.01(a)(1), Penal Code;

(C)iisells, gives, or delivers to another person or possesses or uses or is under the influence of:

(i)iimarihuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; or

(ii)iia dangerous drug, as defined by Chapter 483, Health and Safety Code;

(D)iisells, gives, or delivers to another person an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code, commits a serious act or offense while under the influence of alcohol, or possesses, uses, or is under the influence of an alcoholic beverage;

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(E)iiengages in conduct that contains the elements of an offense relating to an abusable volatile chemical [glue or aerosol paint] under Sections 485.031 through 485.034 [485.035], Health and Safety Code[, or relating to volatile chemicals under Chapter 484, Health and Safety Code]; or

(F)iiengages in conduct that contains the elements of the offense of public lewdness under Section 21.07, Penal Code, or indecent exposure under Section 21.08, Penal Code.

(b)iiExcept as provided by Section 37.007(d), a student shall be removed from class and placed in a disciplinary [an] alternative education program under Section 37.008 if the student engages in conduct on or off of school property that contains the elements of the offense of retaliation under Section 36.06, Penal Code, against any school employee.

(c)iiIn addition to Subsections [Subsection] (a) and (b), a student shall be removed from class and placed in a disciplinary [an] alternative education program under Section 37.008 based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if:

(1)iithe student receives deferred prosecution under Section 53.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code;

(2)iia court or jury finds that the student has engaged in delinquent conduct under Section 54.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code; or

(3)iithe superintendent or the superintendent's designee has a reasonable belief that the student has engaged in a conduct defined as a felony offense in Title 5, Penal Code.

(d)iiIn addition to Subsections [Subsection] (a), (b), and (c), a student may be removed from class and placed in a disciplinary [an] alternative education program under Section 37.008 based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if:

(1)iithe superintendent or the superintendent's designee has a reasonable belief that the student has engaged in conduct defined as a felony offense other than those defined in Title 5, Penal Code; and

(2)iithe continued presence of the student in the regular classroom threatens the safety of other students or teachers or will be detrimental to the educational process.

(f)iiSubject to Section 37.007(e), a student who is younger than 10 years of age shall be removed from class and placed in a disciplinary [an] alternative education program under Section 37.008 if the student engages in conduct described by Section 37.007. An elementary school student may not be placed in a disciplinary [an] alternative education program with any other student who is not an elementary school student.

(h)iiOn receipt of notice under Article 15.27(g), Code of Criminal Procedure, the superintendent or the superintendent's designee shall review the student's placement in the disciplinary alternative education program. The student may not be returned to the regular classroom pending the review. The superintendent or the superintendent's designee shall schedule a review of the student's placement with the student's parent or guardian not later than the third

5784 78th LEGISLATURE — REGULAR SESSION


class day after the superintendent or superintendent's designee receives notice from the office or official designated by the court. After reviewing the notice and receiving information from the student's parent or guardian, the superintendent or the superintendent's designee may continue the student's placement in the disciplinary alternative education program if there is reason to believe that the presence of the student in the regular classroom threatens the safety of other students or teachers.

(l)iiNotwithstanding any other provision of this code, other than Section 37.007(e)(2), a student who is younger than six years of age may not be removed from class and placed in a disciplinary [an] alternative education program.

(m)iiRemoval to a disciplinary alternative education program under Subsection (a) is not required if the student is expelled under Section 37.007 for the same conduct for which removal would be required.

(n)iiA principal or other appropriate administrator may but is not required to remove a student to a disciplinary alternative education program for off-campus conduct for which removal is required under this section if the principal or other appropriate administrator does not have knowledge of the conduct before the first anniversary of the date the conduct occurred.

SECTIONi10.iiSections 37.007(a), (b), (e), and (g), Education Code, are amended to read as follows:

(a)iiA student shall be expelled from a school if the student, on school property or while attending a school-sponsored or school-related activity on or off of school property:

(1)iiuses, exhibits, or possesses:

(A)iia firearm as defined by Section 46.01(3), Penal Code;

(B)iian illegal knife as defined by Section 46.01(6), Penal Code, or by local policy;

(C)iia club as defined by Section 46.01(1), Penal Code; or

(D)iia weapon listed as a prohibited weapon under Section 46.05, Penal Code;

(2)iiengages in conduct that contains the elements of the offense of:

(A)iiaggravated assault under Section 22.02, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;

(B)iiarson under Section 28.02, Penal Code;

(C)iimurder under Section 19.02, Penal Code, capital murder under Section 19.03, Penal Code, or criminal attempt, under Section 15.01, Penal Code, to commit murder or capital murder;

(D)iiindecency with a child under Section 21.11, Penal Code; [or]

(E)iiaggravated kidnapping under Section 20.04, Penal Code;

(F)iiaggravated robbery under Section 29.03, Penal Code;

(G)iimanslaughter under Section 19.04, Penal Code; or

(H)iicriminally negligent homicide under Section 19.05, Penal Code; or

(3)iiengages in conduct specified by Section 37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.

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(b)iiA student may be expelled if the student:

(1)iiengages in conduct involving a public school that contains the elements of the offense of false alarm or report under Section 42.06, Penal Code, or terroristic threat under Section 22.07, Penal Code; [or]

(2)iiwhile on or within 300 feet of school property, as measured from any point on the school's real property boundary line, or while attending a school-sponsored or school-related activity on or off of school property:

(A)iisells, gives, or delivers to another person or possesses, uses, or is under the influence of any amount of:

(i)iimarihuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.;

(ii)iia dangerous drug, as defined by Chapter 483, Health and Safety Code; or

(iii)iian alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;

(B)iiengages in conduct that contains the elements of an offense relating to an abusable volatile chemical [glue or aerosol paint] under Sections 485.031 through 485.034 [485.035], Health and Safety Code[, or relating to volatile chemicals under Chapter 484, Health and Safety Code]; [or]

(C)iiengages in conduct that contains the elements of an offense under Section 22.01(a)(1), Penal Code, against a school district employee or a volunteer as defined by Section 22.053; or

(D)iiengages in conduct that contains the elements of the offense of deadly conduct under Section 22.05, Penal Code; or

(3)iisubject to Subsection (d), while within 300 feet of school property, as measured from any point on the school's real property boundary line:

(A)iiengages in conduct specified by Subsection (a); or

(B)iipossesses a firearm, as defined by 18 U.S.C. Section 921.

(e)iiIn accordance with 20 U.S.C. Section 7151 [federal law], a local educational agency, including a school district, home-rule school district, or open-enrollment charter school, shall expel a student who brings a firearm, as defined by 18 U.S.C. Section 921, to school. The student must be expelled from the student's regular campus for a period of at least one year, except that:

(1)iithe superintendent or other chief administrative officer of the school district or of the other local educational agency, as defined by 20 U.S.C. Section 7801 [2891], may modify the length of the expulsion in the case of an individual student;

(2)iithe district or other local educational agency shall provide educational services to an expelled student in a disciplinary [an] alternative education program as provided by Section 37.008 if the student is younger than 10 years of age on the date of expulsion; and

(3)iithe district or other local educational agency may provide educational services to an expelled student who is [older than] 10 years of age or older in a disciplinary [an] alternative education program as provided in Section 37.008.

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(g)iiA school district shall inform each teacher who has regular contact with a student through a classroom assignment of the conduct of a student who has engaged in any violation listed in this section. A teacher shall keep the information received in this subsection confidential. The State Board for Educator Certification may revoke or suspend the certification of a teacher who intentionally violates this subsection.

SECTIONi11.iiSection 37.008, Education Code, is amended to read as follows:

Sec.i37.008.iiDISCIPLINARY ALTERNATIVE EDUCATION PROGRAMS.ii(a)iiEach school district shall provide a disciplinary [an] alternative education program that:

(1)iiis provided in a setting other than a student's regular classroom;

(2)iiis located on or off of a regular school campus;

(3)iiprovides for the students who are assigned to the disciplinary alternative education program to be separated from students who are not assigned to the program;

(4)iifocuses on English language arts, mathematics, science, history, and self-discipline;

(5)iiprovides for students' educational and behavioral needs; [and]

(6)iiprovides supervision and counseling;

(7)iirequires that to teach in an off-campus disciplinary alternative education program, each teacher meet all certification requirements established under Subchapter B, Chapter 21; and

(8)iinotwithstanding Subdivision (7), requires that to teach in a disciplinary alternative education program of any kind, each teacher employed by a school district during the 2003-2004 school year or an earlier school year meet, not later than the beginning of the 2005-2006 school year, all certification requirements established under Subchapter B, Chapter 21.

(b)iiA disciplinary [An] alternative education program may provide for a student's transfer to:

(1)iia different campus;

(2)iia school-community guidance center; or

(3)iia community-based alternative school.

(c)iiAn off-campus disciplinary alternative education program is not subject to a requirement imposed by this title, other than a limitation on liability, a reporting requirement, or a requirement imposed by this chapter or by Chapter 39.

(d)iiA school district may provide a disciplinary [an] alternative education program jointly with one or more other districts.

(e)iiEach school district shall cooperate with government agencies and community organizations that provide services in the district to students placed in a disciplinary [an] alternative education program.

(f)iiA student removed to a disciplinary [an] alternative education program is counted in computing the average daily attendance of students in the district for the student's time in actual attendance in the program.

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(g)iiA school district shall allocate to a disciplinary [an] alternative education program the same expenditure per student attending the disciplinary alternative education program, including federal, state, and local funds, that would be allocated to the student's school if the student were attending the student's regularly assigned education program, including a special education program.

(h)iiA school district may not place a student, other than a student suspended as provided under Section 37.005 or expelled as provided under Section 37.007, in an unsupervised setting as a result of conduct for which a student may be placed in a disciplinary [an] alternative education program.

(i)iiOn request of a school district, a regional education service center may provide to the district information on developing a disciplinary [an] alternative education program that takes into consideration the district's size, wealth, and existing facilities in determining the program best suited to the district.

(j)iiIf a student placed in a disciplinary [an] alternative education program enrolls in another school district before the expiration of the period of placement, the board of trustees of the district requiring the placement shall provide to the district in which the student enrolls, at the same time other records of the student are provided, a copy of the placement order. The district in which the student enrolls may continue the disciplinary alternative education program placement under the terms of the order or may allow the student to attend regular classes without completing the period of placement. A district may take any action permitted by this subsection if:

(1)iithe student was placed in a disciplinary alternative education program by an open-enrollment charter school under Section 12.131 and the charter school provides to the district a copy of the placement order; or

(2)iithe student was placed in a disciplinary alternative education program by a school district in another state and:

(A)iithe out-of-state district provides to the district a copy of the placement order; and

(B)iithe grounds for the placement by the out-of-state district are grounds for placement in the district in which the student is enrolling.

(j-1)iiIf a student was placed in a disciplinary alternative education program by a school district in another state for a period that exceeds one year and a school district in this state in which the student enrolls continues the placement under Subsection (j), the district shall reduce the period of the placement so that the aggregate period does not exceed one year unless, after a review, the district determines that:

(1)iithe student is a threat to the safety of other students or to district employees; or

(2)iiextended placement is in the best interest of the student.

(k)iiA program of educational and support services may be provided to a student and the student's parents when the offense involves drugs or alcohol as specified under Section 37.006 or 37.007. A disciplinary [An] alternative education program that provides chemical dependency treatment services must be licensed under Chapter 464, Health and Safety Code.

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(l)iiA school district is [not] required to provide in the district's disciplinary alternative education program a course necessary to fulfill a student's high school graduation requirements only as provided by this subsection. A school district shall offer a student removed to a disciplinary alternative education program an opportunity to complete coursework before the beginning of the next school year. The school district may provide the student an opportunity to complete coursework through any method available, including a correspondence course, distance learning, or summer school. The district may not charge the student for a course provided under this subsection [other than a course specified by Subsection (a)].

(m)iiThe commissioner shall adopt rules necessary to evaluate annually the performance of each district's disciplinary alternative education program established under this subchapter. The evaluation required by this section shall be based on indicators defined by the commissioner, but must include student performance on assessment instruments required under Sections 39.023(a) and (c). Academically, the mission of disciplinary alternative education programs shall be to enable students to perform at grade level.

(m-1)iiThe commissioner shall develop a process for evaluating a school district disciplinary alternative education program electronically. The commissioner shall also develop a system and standards for review of the evaluation or use systems already available at the agency. The system must be designed to identify districts that are at high risk of having inaccurate disciplinary alternative education program data or of failing to comply with disciplinary alternative education program requirements. The commissioner shall notify the board of trustees of a district of any objection the commissioner has to the district's disciplinary alternative education program data or of a violation of a law or rule revealed by the data, including any violation of disciplinary alternative education program requirements, or of any recommendation by the commissioner concerning the data. If the data reflect that a penal law has been violated, the commissioner shall notify the county attorney, district attorney, or criminal district attorney, as appropriate, and the attorney general. The commissioner is entitled to access to all district records the commissioner considers necessary or appropriate for the review, analysis, or approval of disciplinary alternative education program data.

SECTIONi12.iiSubchapter A, Chapter 37, Education Code, is amended by adding Section 37.0081 to read as follows:

Sec.i37.0081.iiPLACEMENT OF CERTAIN STUDENTS IN DISCIPLINARY ALTERNATIVE EDUCATION PROGRAMS. (a) Notwithstanding any other provision of this subchapter, the board of trustees of a school district, or the board's designee, after an opportunity for a hearing may elect to place a student in a disciplinary alternative education program under Section 37.008 if:

(1)iithe student:

(A)iihas received deferred prosecution under Section 53.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code; or

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(B)iihas been found by a court or jury to have engaged in delinquent conduct under Section 54.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code; and

(2)iithe board or the board's designee determines that the student's presence in the regular classroom:

(A)iithreatens the safety of other students or teachers;

(B)iiwill be detrimental to the educational process; or

(C)iiis not in the best interests of the district's students.

(b)iiAny decision of the board of trustees or the board's designee under this section is final and may not be appealed.

(c)iiThe board of trustees or the board's designee may order placement in accordance with this section regardless of:

(1)iithe date on which the student's conduct occurred;

(2)iithe location at which the conduct occurred;

(3)iiwhether the conduct occurred while the student was enrolled in the district; or

(4)iiwhether the student has successfully completed any court disposition requirements imposed in connection with the conduct.

(d)iiNotwithstanding Section 37.009(c) or any other provision of this subchapter, the board of trustees or the board's designee may order placement in accordance with this section for any period considered necessary by the board or the board's designee in connection with the determination made under Subsection (a)(2). A student placed in a disciplinary alternative education program in accordance with this section is entitled to the periodic review prescribed by Section 37.009(e).

SECTIONi13.iiSection 37.009, Education Code, is amended by amending Subsections (a)-(e), (g), and (h) and adding Subsections (i) and (j) to read as follows:

(a)iiNot later than the third class day after the day on which a student is removed from class by the teacher under Section 37.002(b) or (d) or by the school principal or other appropriate administrator under Section 37.001(a)(2) or 37.006, the principal or other appropriate administrator shall schedule a conference among the principal or other appropriate administrator, a parent or guardian of the student, the teacher removing the student from class, if any, and the student. At the conference, the student is entitled to written or oral notice of the reasons for the removal, an explanation of the basis for the removal, and an opportunity to respond to the reasons for the removal. The student may not be returned to the regular classroom pending the conference. Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person's attendance, the principal shall order the placement of the student [as provided by Section 37.002 or 37.006, as applicable,] for a period consistent with the student code of conduct. If school district policy allows a student to appeal to the board of trustees or the board's designee a decision of the principal or other appropriate administrator, other than an expulsion under Section 37.007, the decision of the board or the board's designee is final and may not be appealed. If the period of the placement is

5790 78th LEGISLATURE — REGULAR SESSION


inconsistent with the guidelines included in the student code of conduct under Section 37.001(a)(5), the order must give notice of the inconsistency. The period of the placement may not exceed one year unless, after a review, the district determines that:

(1)iithe student is a threat to the safety of other students or to district employees; or

(2)iiextended placement is in the best interest of the student.

(b)iiIf a student's placement in a disciplinary [an] alternative education program is to extend beyond 60 days or the end of the next grading period, whichever is earlier, a student's parent or guardian is entitled to notice of and an opportunity to participate in a proceeding before the board of trustees of the school district or the board's designee, as provided by policy of the board of trustees of the district. Any decision of the board or the board's designee under this subsection is final and may not be appealed.

(c)iiBefore it may place a student in a disciplinary [an] alternative education program for a period that extends beyond the end of the school year, the board or the board's designee must determine that:

(1)iithe student's presence in the regular classroom program or at the student's regular campus presents a danger of physical harm to the student or to another individual; or

(2)iithe student has engaged in serious or persistent misbehavior that violates the district's student code of conduct.

(d)iiThe board or the board's designee shall set a term for a student's placement in a disciplinary [an] alternative education program. If the period of the placement is inconsistent with the guidelines included in the student code of conduct under Section 37.001(a)(5), the order must give notice of the inconsistency. The period of the placement may not exceed one year unless, after a review, the district determines that:

(1)iithe student is a threat to the safety of other students or to district employees; or

(2)iiextended placement is in the best interest of the student [under Section 37.002 or 37.006].

(e)iiA student placed in a disciplinary [an] alternative education program [under Section 37.002 or 37.006] shall be provided a review of the student's status, including a review of the student's academic status, by the board's designee at intervals not to exceed 120 days. In the case of a high school student, the board's designee, with the student's parent or guardian, shall review the student's progress towards meeting high school graduation requirements and shall establish a specific graduation plan for the student. The district is not required under this subsection to provide a course in the district's disciplinary alternative education program except as required by Section 37.008(l) [a course not specified under Section 37.008(a)]. At the review, the student or the student's parent or guardian must be given the opportunity to present arguments for the student's return to the regular classroom or campus. The student may not be returned to the classroom of the teacher who removed the student without that teacher's consent. The teacher may not be coerced to consent.

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(g)iiThe board or the board's designee shall deliver to the student and the student's parent or guardian a copy of the order placing the student in a disciplinary [an] alternative education program under Section 37.001, 37.002, or 37.006 or expelling the student under Section 37.007.

(h)iiIf the period of an expulsion is inconsistent with the guidelines included in the student code of conduct under Section 37.001 (a)(5), the order must give notice of the inconsistency. The period of an expulsion may not exceed one year unless, after a review, the district determines that:

(1)iithe student is a threat to the safety of other students or to district employees; or

(2)iiextended placement is in the best interest of the student. After a school district notifies the parents or guardians of a student that the student has been expelled, the parent or guardian shall provide adequate supervision of the student during the period of expulsion.

(i)iiIf a student withdraws from the district before an order for placement in a disciplinary alternative education program or expulsion is entered under this section, the principal or board, as appropriate, may complete the proceedings and enter an order. If the student subsequently enrolls in the district during the same or subsequent school year, the district may enforce the order at that time except for any period of the placement or expulsion that has been served by the student on enrollment in another district that honored the order. If the principal or board fails to enter an order after the student withdraws, the next district in which the student enrolls may complete the proceedings and enter an order.

(j)iiIf, during the term of a placement or expulsion ordered under this section, a student engages in additional conduct for which placement in a disciplinary alternative education program or expulsion is required or permitted, additional proceedings may be conducted under this section regarding that conduct and the principal or board, as appropriate, may enter an additional order as a result of those proceedings.

SECTIONi14.iiSubchapter A, Chapter 37, Education Code, is amended by adding Section 37.0091 to read as follows:

Sec.i37.0091.iiNOTICE TO NONCUSTODIAL PARENT. (a) A noncustodial parent may request in writing that a school district or school, for the remainder of the school year in which the request is received, provide that parent with a copy of any written notification relating to student misconduct under Section 37.006 or 37.007 that is generally provided by the district or school to a student's parent or guardian.

(b)iiA school district or school may not unreasonably deny a request authorized by Subsection (a).

(c)iiNotwithstanding any other provision of this section, a school district or school shall comply with any applicable court order of which the district or school has knowledge.

SECTIONi15.iiSection 37.010, Education Code, is amended by amending Subsections (a) and (c)-(g) and adding Subsection (g-1) to read as follows:

5792 78th LEGISLATURE — REGULAR SESSION


(a)iiNot later than the second business day after the date a hearing is held under Section 37.009, the board of trustees of a school district or the board's designee shall deliver a copy of the order placing a student in a disciplinary [an] alternative education program under Section 37.006 or expelling a student under Section 37.007 and any information required under Section 52.04, Family Code, to the authorized officer of the juvenile court in the county in which the student resides. In a county that operates a program under Section 37.011, an expelled student shall to the extent provided by law or by the memorandum of understanding immediately attend the educational program from the date of expulsion, except[; provided, however,] that in a county with a population greater than 125,000, every expelled student who is not detained or receiving treatment under an order of the juvenile court must be enrolled in an educational program.

(c)iiUnless the juvenile board for the county in which the district's central administrative office is located has entered into a memorandum of understanding with the district's board of trustees concerning the juvenile probation department's role in supervising and providing other support services for students in disciplinary alternative education programs, a court may not order a student expelled under Section 37.007 to attend a regular classroom, a regular campus, or a school district disciplinary alternative education program as a condition of probation.

(d)iiUnless the juvenile board for the county in which the district's central administrative office is located has entered into a memorandum of understanding as described by Subsection (c), if a court orders a student to attend a disciplinary [an] alternative education program as a condition of probation once during a school year and the student is referred to juvenile court again during that school year, the juvenile court may not order the student to attend a disciplinary [an] alternative education program in a district without the district's consent until the student has successfully completed any sentencing requirements the court imposes.

(e)iiAny placement in a disciplinary [an] alternative education program by a court under this section must prohibit the student from attending or participating in school-sponsored or school-related activities.

(f)iiIf a student is expelled under Section 37.007, on the recommendation of the committee established under Section 37.003 or on its own initiative, a district may readmit the student while the student is completing any court disposition requirements the court imposes. After the student has successfully completed any court disposition requirements the court imposes, including conditions of a deferred prosecution ordered by the court, or such conditions required by the prosecutor or probation department, if the student meets the requirements for admission into the public schools established by this title, a district may not refuse to admit the student, but the district may place the student in the disciplinary alternative education program. Notwithstanding Section 37.002(d), the student may not be returned to the classroom of the teacher under whose supervision the offense occurred without that teacher's consent. The teacher may not be coerced to consent.

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(g)iiIf an expelled student enrolls in another school district, the board of trustees of the district that expelled the student shall provide to the district in which the student enrolls, at the same time other records of the student are provided, a copy of the expulsion order and the referral to the authorized officer of the juvenile court. The district in which the student enrolls may continue the expulsion under the terms of the order, may place the student in a disciplinary [an] alternative education program for the period specified by the expulsion order, or may allow the student to attend regular classes without completing the period of expulsion. A district may take any action permitted by this subsection if the student was expelled by a school district in another state if:

(1)iithe out-of-state district provides to the district a copy of the expulsion order; and

(2)iithe grounds for the expulsion are also grounds for expulsion in the district in which the student is enrolling.

(g-1)iiIf a student was expelled by a school district in another state for a period that exceeds one year and a school district in this state continues the expulsion or places the student in a disciplinary alternative education program under Subsection (g), the district shall reduce the period of the expulsion or placement so that the aggregate period does not exceed one year unless, after a review, the district determines that:

(1)iithe student is a threat to the safety of other students or to district employees; or

(2)iiextended placement is in the best interest of the student.

SECTIONi16.iiSection 37.011, Education Code, is amended by amending Subsections (a), (b), (h), and (k) and adding Subsection (b-1) to read as follows:

(a)iiThe juvenile board of a county with a population greater than 125,000 shall develop a juvenile justice alternative education program, subject to the approval of the Texas Juvenile Probation Commission. The juvenile board of a county with a population of 125,000 or less may develop a juvenile justice alternative education program. For the purposes of this subchapter, only a disciplinary alternative education program operated under the authority of a juvenile board of a county is considered a juvenile justice alternative education program. A juvenile justice alternative education program in a county with a population of 125,000 or less:

(1)iiis not required to be approved by the Texas Juvenile Probation Commission; and

(2)iiis not subject to Subsection (c), (d), (f), or (g).

(b)iiIf a student admitted into the public schools of a school district under Section 25.001(b) is expelled from school for conduct for which expulsion is required under Section 37.007(a), (d), or (e), the juvenile court, the juvenile board, or the juvenile board's designee, as appropriate, shall:

(1)iiif the student is placed on probation under Section 54.04, Family Code, order the student to attend the juvenile justice alternative education program in the county in which the student resides from the date of disposition as a condition of probation, unless the child is placed in a post-adjudication treatment facility;

5794 78th LEGISLATURE — REGULAR SESSION


(2)iiif the student is placed on deferred prosecution under Section 53.03, Family Code, by the court, prosecutor, or probation department, require the student to immediately attend the juvenile justice alternative education program in the county in which the student resides for a period not to exceed six months as a condition of the deferred prosecution; [and]

(3)iiin determining the conditions of the deferred prosecution or court-ordered probation, consider the length of the school district's expulsion order for the student; and

(4)iiprovide timely educational services to the student in the juvenile justice alternative education program in the county in which the student resides, regardless of the student's age or whether the juvenile court has jurisdiction over the student.

(b-1)iiSubsection (b)(4) does not require that educational services be provided to a student who is not entitled to admission into the public schools of a school district under Section 25.001(b).

(h)iiAcademically, the mission of juvenile justice alternative education programs shall be to enable students to perform at grade level. For purposes of accountability under Chapter 39, a student enrolled in a juvenile justice alternative education program is reported as if the student were enrolled at the student's assigned campus in the student's regularly assigned education program, including a special education program. Annually the Texas Juvenile Probation Commission, with the agreement of the commissioner, shall develop and implement a system of accountability consistent with Chapter 39, where appropriate, to assure that students make progress toward grade level while attending a juvenile justice alternative education program. The Texas Juvenile Probation Commission shall adopt rules for the distribution of funds appropriated under this section to juvenile boards in counties required to establish juvenile justice alternative education programs. Except as determined by the commissioner, a student served by a juvenile justice alternative education program on the basis of an expulsion required under Section 37.007(a), (d), or (e) is not eligible for Foundation School Program funding under Chapter 42 or 31 if the juvenile justice alternative education program receives funding from the Texas Juvenile Probation Commission under this subchapter.

(k)iiEach school district in a county with a population greater than 125,000 and the county juvenile board shall annually enter into a joint memorandum of understanding that:

(1)iioutlines the responsibilities of the juvenile board concerning the establishment and operation of a juvenile justice alternative education program under this section;

(2)iidefines the amount and conditions on payments from the school district to the juvenile board for students of the school district served in the juvenile justice alternative education program whose placement was not made on the basis of an expulsion required under Section 37.007(a), (d), or (e);

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(3)iiidentifies those categories of conduct that the school district has defined in its student code of conduct as constituting serious or persistent misbehavior for which a student may be placed in the juvenile justice alternative education program;

(4)iiidentifies and requires a timely placement and specifies a term of placement for expelled students for whom the school district has received a notice under Section 52.041(d), Family Code;

(5)iiestablishes services for the transitioning of expelled students to the school district prior to the completion of the student's placement in the juvenile justice alternative education program;

(6)iiestablishes a plan that provides transportation services for students placed in the juvenile justice alternative education program;

(7)iiestablishes the circumstances and conditions under which a juvenile may be allowed to remain in the juvenile justice alternative education program setting once the juvenile is no longer under juvenile court jurisdiction; and

(8)iiestablishes a plan to address special education services required by law.

SECTIONi17.iiSection 37.012, Education Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

(a)iiSubject to Section 37.011(n), the school district in which a student is enrolled on the date the student is expelled for conduct for which expulsion is permitted but not required under Section 37.007 [on a basis other than Section 37.007(a), (d), or (e)] shall, if the student is served by the juvenile justice alternative education program, provide funding to the juvenile board for the portion of the school year for which the juvenile justice alternative education program provides educational services in an amount determined by the memorandum of understanding under Section 37.011(k)(2).

(d)iiA school district is not required to provide funding to a juvenile board for a student who is assigned by a court to a juvenile justice alternative education program but who has not been expelled.

SECTIONi18.iiSection 37.013, Education Code, is amended to read as follows:

Sec.i37.013.iiCOORDINATION BETWEEN SCHOOL DISTRICTS AND JUVENILE BOARDS. The board of trustees of the school district or the board's designee shall at the call of the president of the board of trustees regularly meet with the juvenile board for the county in which the district's central administrative office is located or the juvenile board's designee concerning supervision and rehabilitative services appropriate for expelled students and students assigned to disciplinary alternative education programs. Matters for discussion shall include service by probation officers at the disciplinary alternative education program site, recruitment of volunteers to serve as mentors and provide tutoring services, and coordination with other social service agencies.

SECTIONi19.iiSection 37.015(a), Education Code, is amended to read as follows:

5796 78th LEGISLATURE — REGULAR SESSION


(a)iiThe principal of a public or private primary or secondary school, or a person designated by the principal under Subsection (d), shall notify any school district police department and the police department of the municipality in which the school is located or, if the school is not in a municipality, the sheriff of the county in which the school is located if the principal has reasonable grounds to believe that any of the following activities occur in school, on school property, or at a school-sponsored or school-related activity on or off school property, whether or not the activity is investigated by school security officers:

(1)iiconduct that may constitute an offense listed under Section 508.149, Government Code;

(2)iideadly conduct under Section 22.05, Penal Code;

(3)iia terroristic threat under Section 22.07, Penal Code;

(4)iithe use, sale, or possession of a controlled substance, drug paraphernalia, or marihuana under Chapter 481, Health and Safety Code;

(5)iithe possession of any of the weapons or devices listed under Sections 46.01(1)-(14) or Section 46.01(16), Penal Code; [or]

(6)iiconduct that may constitute a criminal offense under Section 71.02, Penal Code; or

(7)iiconduct that may constitute a criminal offense for which a student may be expelled under Section 37.007(a), (d), or (e).

SECTIONi20.iiSections 37.019(a) and (c), Education Code, are amended to read as follows:

(a)iiThis subchapter does not prevent the principal or the principal's designee from ordering the immediate placement of a student in a disciplinary [the] alternative education program if the principal or the principal's designee reasonably believes the student's behavior is so unruly, disruptive, or abusive that it seriously interferes with a teacher's ability to communicate effectively with the students in a class, with the ability of the student's classmates to learn, or with the operation of school or a school-sponsored activity.

(c)iiAt the time of an emergency placement or expulsion, the student shall be given oral notice of the reason for the action. The reason must be a reason for which placement in a disciplinary alternative education program or expulsion may be made on a nonemergency basis. Within a reasonable time after the emergency placement or expulsion, but not later than the 10th day after the date of the placement or expulsion, the student shall be accorded the appropriate due process as required under Section 37.009. If the student subject to the emergency placement or expulsion is a student with disabilities who receives special education services, the [term of the student's] emergency placement or expulsion is subject to federal law and regulations and must be consistent with the consequences that would apply under this subchapter to a student without a disability [the requirements of 20 U.S.C. Section 1415(j) and (k)].

SECTIONi21.iiSection 37.020, Education Code, is amended to read as follows:

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Sec.i37.020.iiREPORTS RELATING TO EXPULSIONS AND DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM PLACEMENTS. (a) In the manner required by the commissioner, each school district shall annually report to the commissioner the information required by this section.

(b)iiFor[:

[(1)iifor] each placement in a disciplinary [an] alternative education program established under Section 37.008, the district shall report:

(1)i[(A)]iiinformation identifying the student, including the student's race, sex, and date of birth, that will enable the agency to compare placement data with information collected through other reports;

(2)i[(B)]iiinformation indicating whether the placement was based on:

(A)i[(i)]iiconduct violating the student code of conduct adopted under Section 37.001;

(B)i[(ii)]iiconduct for which a student may be removed from class under Section 37.002(b);

(C)i[(iii)]iiconduct for which placement in a disciplinary [an] alternative education program is required by Section 37.006; or

(D)i[(iv)]iiconduct occurring while a student was enrolled in another district and for which placement in a disciplinary [an] alternative education program is permitted by Section 37.008(j); [and]

(3)i[(C)]iithe number of full or partial days the student was assigned to the program and the number of full or partial days the student attended the program; and

(4)iithe number of placements that were inconsistent with the guidelines included in the student code of conduct under Section 37.001(a)(5).

(c)iiFor [(2)iifor] each expulsion under Section 37.007, the district shall report:

(1)i[(A)]iiinformation identifying the student, including the student's race, sex, and date of birth, that will enable the agency to compare placement data with information collected through other reports;

(2)i[(B)]iiinformation indicating whether the expulsion was based on:

(A)i[(i)]iiconduct for which expulsion is required under Section 37.007, including information specifically indicating whether a student was expelled on the basis of Section 37.007(e); or

(B)i[(ii)]iiconduct[, other than conduct described by Subparagraph (iii),] for which expulsion is permitted under Section 37.007; [or

[(iii)iiserious or persistent misbehavior occurring while the student was placed in an alternative education program;]

(3)i[(C)]iithe number of full or partial days the student was expelled; [and]

(4)i[(D)]iiinformation indicating whether:

(A)i[(i)]iithe student was placed in a juvenile justice alternative education program under Section 37.011;

(B)i[(ii)]iithe student was placed in a disciplinary [an] alternative education program; or

5798 78th LEGISLATURE — REGULAR SESSION


(C)i[(iii)]iithe student was not placed in a juvenile justice or other disciplinary alternative education program; and

(5)iithe number of expulsions that were inconsistent with the guidelines included in the student code of conduct under Section 37.001(a)(5).

SECTIONi22.iiSubchapter A, Chapter 37, is amended by adding Section 37.021 to read as follows:

Sec.i37.021.iiOPPORTUNITY TO COMPLETE COURSES DURING IN-SCHOOL AND CERTAIN OTHER PLACEMENTS. (a) If a school district removes a student from the regular classroom and places the student in in-school suspension or another setting other than a disciplinary alternative education program, the district shall offer the student the opportunity to complete before the beginning of the next school year each course in which the student was enrolled at the time of the removal.

(b)iiThe district may provide the opportunity to complete courses by any method available, including a correspondence course, distance learning, or summer school.

SECTIONi23.iiSection 37.121(b), Education Code, is amended to read as follows:

(b)iiA school district board of trustees or an educator shall recommend placing in a disciplinary [an] alternative education program any student under the person's control who violates Subsection (a).

SECTIONi24.iiSection 39.053(e), Education Code, is amended to read as follows:

(e)iiThe report may include the following information:

(1)iistudent information, including total enrollment, enrollment by ethnicity, socioeconomic status, and grade groupings and retention rates;

(2)iifinancial information, including revenues and expenditures;

(3)iistaff information, including number and type of staff by gender, ethnicity, years of experience, and highest degree held, teacher and administrator salaries, and teacher turnover;

(4)iiprogram information, including student enrollment by program, teachers by program, and instructional operating expenditures by program; and

(5)iithe number of students placed in a disciplinary [an] alternative education program under Chapter 37.

SECTIONi25.iiArticle 15.27(b), Code of Criminal Procedure, is amended to read as follows:

(b)iiOn conviction, deferred prosecution, or deferred adjudication or [on] an adjudication of delinquent conduct of an individual enrolled as a student in a public primary or secondary school, for an offense or for any conduct listed in Subsection (h) of this article, the office of the prosecuting attorney acting in the case shall orally notify the superintendent or a person designated by the superintendent in the school district in which the student is enrolled of the conviction or adjudication. Oral notification must be given within 24 hours of the time of the order [determination of guilt,] or on the next school day. The superintendent shall promptly notify all instructional and support personnel who have regular contact with the student. Within seven days after the date the oral

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5799


notice is given, the office of the prosecuting attorney shall mail written notice, which must contain a statement of the offense of which the individual is convicted or on which the adjudication, deferred adjudication, or deferred prosecution is grounded.

SECTIONi26.iiArticle 15.27(e)(2), Code of Criminal Procedure, is amended to read as follows:

(2)iiOn conviction, deferred prosecution, or deferred adjudication or an adjudication of delinquent conduct of an individual enrolled as a student in a private primary or secondary school, the office of prosecuting attorney shall make the oral and written notifications described by Subsection (b) of this article to the principal or a school employee designated by the principal of the school in which the student is enrolled.

SECTIONi27.iiArticle 15.27(g), Code of Criminal Procedure, is amended to read as follows:

(g)iiThe office of the prosecuting attorney or the office or official designated by the juvenile board shall, within two working days, notify the school district that removed a student to a disciplinary [an] alternative education program under Section 37.006, Education Code, if:

(1)iiprosecution of the student's case was refused for lack of prosecutorial merit or insufficient evidence and no formal proceedings, deferred adjudication, or deferred prosecution will be initiated; or

(2)iithe court or jury found the student not guilty or made a finding the child did not engage in delinquent conduct or conduct indicating a need for supervision and the case was dismissed with prejudice.

SECTIONi28.iiSection 164.006, Health and Safety Code, is amended to read as follows:

Sec.i164.006.iiSOLICITING AND CONTRACTING WITH CERTAIN REFERRAL SOURCES. A treatment facility or a person employed or under contract with a treatment facility, if acting on behalf of the treatment facility, may not:

(1)iicontact a referral source or potential client for the purpose of soliciting, directly or indirectly, a referral of a patient to the treatment facility without disclosing its soliciting agent's, employee's, or contractor's affiliation with the treatment facility;

(2)iioffer to provide or provide mental health or chemical dependency services to a public or private school in this state, on a part-time or full-time basis, the services of any of its employees or agents who make, or are in a position to make, a referral, if the services are provided on an individual basis to individual students or their families. Nothing herein prohibits a treatment facility from:

(A)iioffering or providing educational programs in group settings to public schools in this state if the affiliation between the educational program and the treatment facility is disclosed;

(B)iiproviding counseling services to a public school in this state in an emergency or crisis situation if the services are provided in response to a specific request by a school; provided that, under no circumstances may a student be referred to the treatment facility offering the services; or

5800 78th LEGISLATURE — REGULAR SESSION


(C)iientering into a contract under Section 464.020 with the board of trustees of a school district with a disciplinary [an] alternative education program [under Section 464.020], or with the board's designee, for the provision of chemical dependency treatment services;

(3)iiprovide to an entity of state or local government, on a part-time or full-time basis, the mental health or chemical dependency services of any of its employees, agents, or contractors who make or are in a position to make referrals unless:

(A)iithe treatment facility discloses to the governing authority of the entity:

(i)iithe employee's, agent's, or contractor's relationship to the facility; and

(ii)iithe fact that the employee, agent, or contractor might make a referral, if permitted, to the facility; and

(B)iithe employee, agent, or contractor makes a referral only if:

(i)iithe treatment facility obtains the governing authority's authorization in writing for the employee, agent, or contractor to make the referrals; and

(ii)iithe employee, agent, or contractor discloses to the prospective patient the employee's, agent's, or contractor's relationship to the facility at initial contact; or

(4)iiin relation to intervention and assessment services, contract with, offer to remunerate, or remunerate a person who operates an intervention and assessment service that makes referrals to a treatment facility for inpatient treatment of mental illness or chemical dependency unless the intervention and assessment service is:

(A)iioperated by a community mental health and mental retardation center funded by the Texas Department of Mental Health and Mental Retardation;

(B)iioperated by a county or regional medical society;

(C)iia qualified mental health referral service as defined by Section 164.007; or

(D)iiowned and operated by a nonprofit or not-for-profit organization offering counseling concerning family violence, help for runaway children, or rape.

SECTIONi29.iiSection 464.020, Health and Safety Code, is amended to read as follows:

Sec.i464.020.iiADDITIONAL REQUIREMENTS FOR DISCIPLINARY ALTERNATIVE EDUCATION TREATMENT PROGRAMS.ii(a)iiA disciplinary [An] alternative education program under Section 37.008, Education Code, may apply for a license under this chapter to offer chemical dependency treatment services.

(b)iiThe board of trustees of a school district with a disciplinary [an] alternative education program, or the board's designee, shall employ a mental health professional, as defined by Section 164.003, to provide the services authorized by a license issued under this chapter to the disciplinary alternative education program.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5801


(c)iiThe commission may not issue a license that authorizes a disciplinary [an] alternative education program to provide detoxification or residential services.

(d)iiThe board of trustees of a school district with a disciplinary [an] alternative education program, or the board's designee, may contract with a private treatment facility or a person employed by or under contract with a private treatment facility to provide chemical dependency treatment services. The contract may not permit the services to be provided at a site that offers detoxification or residential services. Section 164.006 applies to a contract made under this section.

SECTIONi30.iiSection 37.001(b), Education Code, is repealed.

SECTIONi31.ii(a) This Act applies beginning with the 2003-2004 school year, except that Section 37.008(a)(8), Education Code, as added by this Act, applies beginning with the 2004-2005 school year.

(b)iiExcept as provided by Subsection (c) of this section, the changes in law made by this Act relating to conduct for which a student may be removed to a disciplinary alternative education program or expelled apply to conduct that occurs on or after the effective date of this Act.

(c)iiSection 37.0081, Education Code, as added by this Act, applies to any student who attends school on or after the effective date of this Act and who engaged in conduct described by that section, regardless of the date on which the conduct occurred.

SECTIONi32.iiThis Act takes effect immediately 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, 2003.

Representative Pitts moved to adopt the conference committee report on HBi1314.

A record vote was requested.

The motion prevailed by (Record 926): 136 Yeas, 6 Nays, 2 Present, not voting.

Yeas — Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Canales; Capelo; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Martinez Fischer; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna;

5802 78th LEGISLATURE — REGULAR SESSION


Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Solis; Solomons; Stick; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Nays — Burnam; Casteel; Griggs; Jones, D.; McCall; Telford.

Present, not voting — Mr. Speaker; Wise(C).

Absent — Allen; Farrar; Grusendorf; Marchant; Paxton; Smithee.

STATEMENTS OF VOTE

When Record No. 926 was taken, I was temporarily out of the house chamber. I would have voted no.

Allen

I was shown voting yes on Record No. 926. I intended to vote no.

Berman

I was shown voting yes on Record No. 926. I intended to vote no.

B. Cook

I was shown voting yes on Record No. 926. I intended to vote no.

J. Davis

I was shown voting yes on Record No. 926. I intended to vote no.

Driver

I was shown voting yes on Record No. 926. I intended to vote no.

Flynn

I was shown voting yes on Record No. 926. I intended to vote no.

Hegar

I was shown voting yes on Record No. 926. I intended to vote no.

Hodge

I was shown voting yes on Record No. 926. I intended to vote no.

Hupp

I was shown voting yes on Record No. 926. I intended to vote no.

Isett

I was shown voting yes on Record No. 926. I intended to vote no.

Kuempel

I was shown voting yes on Record No. 926. I intended to vote no.

McClendon

I was shown voting yes on Record No. 926. I intended to vote no.

Merritt

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5803


I was shown voting yes on Record No. 926. I intended to vote no.

Quintanilla

I was shown voting yes on Record No. 926. I intended to vote no.

Rodriguez

I was shown voting yes on Record No. 926. I intended to vote no.

T. Smith

I was shown voting yes on Record No. 926. I intended to vote no.

Solomons

I was shown voting yes on Record No. 926. I intended to vote no.

Truitt

I was shown voting yes on Record No. 926. I intended to vote no.

Zedler

(B. Keffer in the chair)

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 4).

HR 1858 - ADOPTED
(by Chisum)

The following privileged resolution was laid before the house:

HR 1858

BE IT RESOLVED by the House of Representatives of the State of Texas, 78th Legislature, Regular Session, 2003, That House Rule 13, Section 9(a), be suspended in part as provided by House Rule 13, Section 9(f), to enable the conference committee appointed to resolve the differences on HB 2455, relating to the governmental entities subject to, and the confidentiality of records under, the sunset review process, to consider and take action on the following matter:

House Rule 13, Section 9(a)(4), is suspended to permit the committee to add new sections to the bill to read as follows:

SECTIONi1.03.iiTEXAS LOTTERY COMMISSION AND LOTTERY DIVISION. (a) Section 467.002, Government Code, is amended to read as follows:

Sec.i467.002.iiAPPLICATION OF SUNSET ACT. The commission is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this Act expires September 1, 2005 [2003]. In the review of the commission by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

5804 78th LEGISLATURE — REGULAR SESSION


(b)iiSection 466.003(a), Government Code, is amended to read as follows:

(a)iiThe lottery division is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the division is abolished and this chapter expires September 1, 2005 [2003]. In the review of the lottery division by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(c)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 467.002, Government Code, to extend the sunset date of the Texas Lottery Commission. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.04.iiTEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS. (a) Section 2306.022, Government Code, is amended to read as follows:

Sec.i2306.022.iiAPPLICATION OF SUNSET ACT. The Texas Department of Housing and Community Affairs is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished and this chapter expires September 1, 2005 [2003]. In the review of the department by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature and the extent to which the department has implemented laws enacted by the 77th Legislature in continuing the department. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(b)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 2306.022, Government Code, to extend the sunset date of the Texas Department of Housing and Community Affairs. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.05.iiTEXAS AFFORDABLE HOUSING CORPORATION. (a) Section 2306.5521, Government Code, is amended to read as follows:

Sec.i2306.5521.iiSUNSET PROVISION. The Texas State Affordable Housing Corporation is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the corporation is abolished and this subchapter expires September 1, 2005 [2003]. In the review of the corporation by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5805


(b)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 2306.5521, Government Code, to extend the sunset date of the Texas State Affordable Housing Corporation. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.06.iiTEXAS HIGHER EDUCATION COORDINATING BOARD. (a) Section 61.0211, Education Code, is amended to read as follows:

Sec.i61.0211.iiSUNSET PROVISION. The Texas Higher Education Coordinating Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005 [2003]. In the review of the board by the sunset commission, as required by this section, the commission shall limit its review to the appropriateness of recommendations made by the commission to the 78th Legislature. In the commissions report to the 79th Legislature, the commission may include any recommendations it considers appropriate.

(b)iiThis section only takes effect if the 78th Legislature. Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 61.0211, education Code, to extend the sunset date of the Texas Higher Education Coordinating Board. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi2.06.iiREGIONAL EDUCATION SERVICE CENTERS. If the 78th Legislature, Regular Session, 2003, enacts legislation that becomes law and that makes regional education service centers subject to Chapter 325, Government Code (Texas Sunset Act), the comptroller of public accounts shall assist the Sunset Advisory Commission in its review. The comptroller shall conduct a review of the regional education service centers and report the results of the review to the Sunset Advisory Commission before March 1, 2004. The comptroller shall consult the Sunset Advisory Commission regarding the scope of the review. The report shall also be transmitted to the presiding officers of the standing committee in the senate and the house of representatives responsible for public education.

Explanation: These additions are needed to ensure that the Texas Lottery Commission, the lottery division, the Texas Department of Housing and Community Affairs, the Texas Affordable Housing Corporation, the Texas Higher Education Coordinating Board, and regional education service centers are continued in existence but are reviewed without unnecessary delay by the Sunset Advisory Commission.

HR 1858 was adopted.

HB 2455 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Chisum submitted the following conference committee report on HB 2455 :

5806 78th LEGISLATURE — REGULAR SESSION


Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2455 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Nelson Chisum
Armbrister Hupp
Jackson Solomons
Ellis, Rodney McCall
Berman
On the part of the senate On the part of the house

HB 2455, A bill to be An Act relating to the governmental entities subject to, and the confidentiality of records under, the sunset review process.

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

ARTICLE 1. ENTITIES GIVEN 2005 SUNSET DATE

SECTIONi1.01.iiSTATE BOARD FOR EDUCATOR CERTIFICATION. Section 21.035, Education Code, is amended to read as follows:

Sec.i21.035.iiAPPLICATION OF SUNSET ACT. (a) The board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this subchapter expires September 1, 2005 [2003].

(b)iiThe board and the Texas Education Agency shall enter into a memorandum of understanding to consolidate administrative functions and services.

(c)iiThe sunset commission shall focus its review of the board on the appropriateness of recommendations made by the sunset commission to the 78th Legislature and compliance with the MOU to consolidate functions.

SECTIONi1.02.iiWINDHAM SCHOOL DISTRICT WITHIN TEXAS DEPARTMENT OF CRIMINAL JUSTICE. Chapter 19, Education Code, is amended by adding Section 19.0021 to read as follows:

Sec.i19.0021.iiSPECIAL PURPOSE REVIEW. (a) As part of its review of the Texas Education Agency for the 79th Legislature, the Sunset Advisory Commission shall conduct a special purpose review of the Windham School District.

(b)iiTo assist the Sunset Advisory Commission in its review, the Texas Education Agency shall:

(1)iiconduct a limited scope review of the structure, management, and operations of the Windham School District; and

(2)iireport the results of the review to the commission before March 1, 2004.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5807


(c)iiThe Texas Education Agency shall consult the Sunset Advisory Commission regarding the scope of the review to minimize the cost of the review.

(d)iiAfter considering the report of the Texas Education Agency, the Sunset Advisory Commission shall include in the commission's report to the 79th Legislature, Regular Session, 2005, any recommendations relating to the Windham School District that the commission considers appropriate.

(e)iiThis section expires September 1, 2005.

SECTIONi1.03.iiTEXAS LOTTERY COMMISSION AND LOTTERY DIVISION. (a) Section 467.002, Government Code, is amended to read as follows:

Sec.i467.002.iiAPPLICATION OF SUNSET ACT. The commission is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this Act expires September 1, 2005 [2003]. In the review of the commission by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(b)iiSection 466.003(a), Government Code, is amended to read as follows:

(a)iiThe lottery division is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the division is abolished and this chapter expires September 1, 2005 [2003]. In the review of the lottery division by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(c)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 467.002, Government Code, to extend the sunset date of the Texas Lottery Commission. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.04.iiTEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS. (a) Section 2306.022, Government Code, is amended to read as follows:

Sec.i2306.022.iiAPPLICATION OF SUNSET ACT. The Texas Department of Housing and Community Affairs is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished and this chapter expires September 1, 2005 [2003]. In the review of the department by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature and the extent to which the department has implemented laws enacted by the 77th

5808 78th LEGISLATURE — REGULAR SESSION


Legislature in continuing the department. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(b)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 2306.022, Government Code, to extend the sunset date of the Texas Department of Housing and Community Affairs. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.05.iiTEXAS AFFORDABLE HOUSING CORPORATION. (a) Section 2306.5521, Government Code, is amended to read as follows:

Sec.i2306.5521.iiSUNSET PROVISION. The Texas State Affordable Housing Corporation is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the corporation is abolished and this subchapter expires September 1, 2005 [2003]. In the review of the corporation by the Sunset Advisory Commission, as required by this section, the sunset commission shall limit its review to the appropriateness of recommendations made by the sunset commission to the 78th Legislature. In the Sunset Advisory Commission's report to the 79th Legislature, the sunset commission may include any recommendations it considers appropriate.

(b)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 2306.5521, Government Code, to extend the sunset date of the Texas State Affordable Housing Corporation. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

SECTIONi1.06.iiTEXAS HIGHER EDUCATION COORDINATING BOARD. (a) Section 61.0211, Education Code, is amended to read as follows:

Sec.i61.0211.iiSUNSET PROVISION. The Texas Higher Education Coordinating Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005 [2003]. In the review of the board by the sunset commission, as required by this section, the commission shall limit its review to the appropriateness of recommendations made by the commission to the 78th Legislature. In the commission's report to the 79th Legislature, the commission may include any recommendations it considers appropriate.

(b)iiThis section takes effect only if the 78th Legislature, Regular Session, 2003, does not enact other legislation that becomes law and that amends Section 61.0211, Education Code, to extend the sunset date of the Texas Higher Education Coordinating Board. If the 78th Legislature, Regular Session, 2003, enacts legislation of that kind, this section has no effect.

ARTICLE 2. ENTITIES GIVEN 2007 SUNSET DATE

SECTIONi2.01.iiTEXAS VETERANS COMMISSION. Section 434.002(a), Government Code, is amended to read as follows:

(a)iiThe Texas Veterans Commission is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished September 1, 2007 [2005].

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5809


SECTIONi2.02.iiTEXAS DEPARTMENT OF INSURANCE. Section 31.004, Insurance Code, is amended to read as follows:

Sec.i31.004.iiSUNSET PROVISION. The Texas Department of Insurance is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the department is abolished September 1, 2007 [2005].

SECTIONi2.03.iiOFFICE OF PUBLIC INSURANCE COUNSEL. Section 7, Article 1.35A, Insurance Code, is amended to read as follows:

Sec.i7.iiAPPLICABILITY OF SUNSET ACT. The office of public insurance counsel is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished September 1, 2007 [2005].

SECTIONi2.04.iiPRESCRIBED BURNING BOARD. Section 153.044, Natural Resources Code, is amended to read as follows:

Sec.i153.044.iiSUNSET PROVISION. The Prescribed Burning Board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2007 [2009].

SECTIONi2.05.iiVETERANS' LAND BOARD. Section 161.0111, Natural Resources Code, is amended to read as follows:

Sec.i161.0111.iiSUNSET PROVISION. The Veterans' Land Board is subject to review under Chapter 325, Government Code (Texas Sunset Act), but is not abolished under that chapter. The board shall be reviewed during the period in which state agencies abolished in 2007 [2005] and every 12th year after 2007 [2005] are reviewed.

SECTIONi2.06.iiREGIONAL EDUCATION SERVICE CENTERS. If the 78th Legislature, Regular Session, 2003, enacts legislation that becomes law and that makes regional education service centers subject to Chapter 325, Government Code (Texas Sunset Act), the comptroller of public accounts shall assist the Sunset Advisory Commission in its review. The comptroller shall conduct a review of the regional education service centers and report the results of the review to the Sunset Advisory Commission before March 1, 2004. The comptroller shall consult the Sunset Advisory Commission regarding the scope of the review. The report shall also be transmitted to the presiding officers of the standing committee in the senate and the house of representatives responsible for public education.

ARTICLE 3. ENTITIES GIVEN 2009 SUNSET DATE

SECTIONi3.01.iiEQUINE RESEARCH ACCOUNT ADVISORY COMMITTEE. Section 88.524(b), Education Code, is amended to read as follows:

(b)iiThe Equine Research Account Advisory Committee is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the advisory committee is abolished and this subchapter expires September 1, 2009 [2005].

5810 78th LEGISLATURE — REGULAR SESSION


SECTIONi3.02.iiTEXASONLINE DIVISION OF THE DEPARTMENT OF INFORMATION RESOURCES. Section 2054.2645, Government Code, is amended to read as follows:

Sec.i2054.2645.iiSUNSET PROVISION. The division is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the division is abolished September 1, 2009 [2005].

SECTIONi3.03.iiELECTRONIC GOVERNMENT PROGRAM MANAGEMENT OFFICE OF THE DEPARTMENT OF INFORMATION RESOURCES. Section 2055.003, Government Code, is amended to read as follows:

Sec.i2055.003.iiSUNSET PROVISION. The office is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished September 1, 2009 [2005].

SECTIONi3.04.iiSTATE BOARD OF EXAMINERS FOR SPEECH-LANGUAGE PATHOLOGY AND AUDIOLOGY. Section 401.002, Occupations Code, is amended to read as follows:

Sec.i401.002.iiAPPLICATION OF SUNSET ACT. The State Board of Examiners for Speech-Language Pathology and Audiology is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2009 [2005].

SECTIONi3.05.iiSTATE COMMITTEE OF EXAMINERS IN THE FITTING AND DISPENSING OF HEARING INSTRUMENTS. Section 402.002, Occupations Code, is amended to read as follows:

Sec.i402.002.iiAPPLICATION OF SUNSET ACT. The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the committee is abolished and this chapter expires September 1, 2009 [2005].

SECTIONi3.06.iiEXECUTIVE COUNCIL OF PHYSICAL THERAPY AND OCCUPATIONAL THERAPY EXAMINERS. Section 452.002, Occupations Code, is amended to read as follows:

Sec.i452.002.iiAPPLICATION OF SUNSET ACT. The Executive Council of Physical Therapy and Occupational Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the executive council is abolished and the following laws expire September 1, 2009 [2005]:

(1)iithis chapter;

(2)iiChapter 453; and

(3)iiChapter 454.

SECTIONi3.07.iiTEXAS BOARD OF PHYSICAL THERAPY EXAMINERS. Section 453.002, Occupations Code, is amended to read as follows:

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Sec.i453.002.iiAPPLICATION OF SUNSET ACT. The Texas Board of Physical Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2009 [2005].

SECTIONi3.08.iiTEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS. Section 454.003, Occupations Code, is amended to read as follows:

Sec.i454.003.iiAPPLICATION OF SUNSET ACT. The Texas Board of Occupational Therapy Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2009 [2005].

SECTIONi3.09.iiTEXAS RACING COMMISSION. Section 18.01(a), Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes), is amended to read as follows:

(a)iiThe Texas Racing Commission is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, and except as provided by Subsections (b) and (c) of this section, the commission is abolished and this Act expires September 1, 2009 [2005].

ARTICLE 4. ENTITIES GIVEN 2011 SUNSET DATE

SECTIONi4.01.iiCORRECTIONAL MANAGED HEALTH CARE COMMITTEE. Section 501.132, Government Code, is amended to read as follows:

Sec.i501.132.iiAPPLICATION OF SUNSET ACT. The Correctional Managed Health Care Committee is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the committee is abolished and this subchapter expires September 1, 2011 [2005].

ARTICLE 5. ENTITIES GIVEN 2013 SUNSET DATE

SECTIONi5.01.iiON-SITE WASTEWATER TREATMENT RESEARCH COUNCIL. Section 367.003(a), Health and Safety Code, is amended to read as follows:

(a)iiThe council is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this chapter expires September 1, 2013 [2005].

ARTICLE 6. ENTITIES REMOVED FROM SPECIFIC SUNSET REVIEW

SECTIONi6.01.iiREPEALER. The following laws are repealed:

(1)iiSection 50A.003, Agriculture Code (Texas Food for Health Advisory Council);

(2)iiSection 262.057, Occupations Code (Dental Hygiene Advisory Committee);

(3)iiSection 8, Chapter 105, Acts of the 76th Legislature, Regular Session, 1999 (Article 2654-3g, Vernon's Texas Civil Statutes) (Texas Environmental Education Partnership Fund); and

(4)iiSection 1.12, Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993 (Edwards Aquifer Authority).

5812 78th LEGISLATURE — REGULAR SESSION


ARTICLE 7. CONFIDENTIALITY OF SUNSET RECORDS

SECTIONi7.01.iiCONFIDENTIALITY. Chapter 325, Government Code, is amended by adding Section 325.0195 to read as follows:

Sec.i325.0195.iiRECORDS PROTECTED FROM DISCLOSURE. (a) A working paper, including all documentary or other information, prepared or maintained by the commission staff in performing its duties under this chapter or other law to conduct an evaluation and prepare a report is excepted from the public disclosure requirements of Section 552.021.

(b)iiA record held by another entity that is considered to be confidential by law and that the commission receives in connection with the performance of the commission's functions under this chapter or another law remains confidential and is excepted from the public disclosure requirements of Section 552.021.

ARTICLE 8. EFFECTIVE DATE

SECTIONi8.01.iiEFFECTIVE DATE. This Act takes effect September 1, 2003.

Representative Chisum moved to adopt the conference committee report on HBi2455.

The motion prevailed.

HR 1864 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1864, suspending the limitations on the conferees for SBi1370.

HB 1541 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Callegari submitted the following conference committee report on HB 1541 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1541 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Lindsay Callegari
Shapiro Escobar
Averitt Puente
Barrientos King
Armbrister Hardcastle
On the part of the senate On the part of the house

HB 1541, A bill to be An Act relating to the general powers and authority of water districts.

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

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SECTIONi1.iiSection 388.005(a), Health and Safety Code, is amended to read as follows:

(a)iiIn this section, "political subdivision" means:

(1)iian affected county; or

(2)iiany political subdivision in a nonattainment area or in an affected county other than:

(A)iia school district; or

(B)iia district as defined by Section 36.001 or 49.001, Water Code, that had a total annual electricity expense of less than $200,000 in the previous fiscal year of the district [in a nonattainment area or in an affected county].

SECTIONi2.iiSection 43.0751(a)(3), Local Government Code, is amended to read as follows:

(3)ii"Strategic partnership agreement" means a written agreement described by this section between a municipality and a district [that provides terms and conditions under which services will be provided and funded by the parties to the agreement and under which the district will continue to exist for an extended period of time if the land within the district is annexed for limited or full purposes by the municipality].

SECTIONi3.iiSection 43.0751, Local Government Code, is amended by amending Subsections (d), (f), and (i) and adding Subsection (q) to read as follows:

(d)iiBefore the governing body of a municipality or a district adopts a strategic partnership agreement, it shall conduct two public hearings at which members of the public who wish to present testimony or evidence regarding the proposed agreement shall be given the opportunity to do so. Notice of public hearings conducted by the governing body of a municipality under this subsection shall be published in a newspaper of general circulation in the municipality and in the district. The notice must be in the format prescribed by Section 43.123(b) and must be published at least once on or after the 20th day before each date. Notice of public hearings conducted by the governing body of a district under this subsection shall be given in accordance with the district's notification procedures for other matters of public importance. Any notice of a public hearing conducted under this subsection shall contain a statement of the purpose of the hearing, the date, time, and place of the hearing, and the location where copies of the proposed agreement may be obtained prior to the hearing. The governing bodies of a municipality and a district may conduct joint public hearings under this subsection, provided that at least one public hearing is conducted within the district. [A municipality may combine the public hearings and notices required by this subsection with the public hearings and notices required by Section 43.124.]

(f)iiA strategic partnership agreement may provide for the following:

(1)iilimited-purpose annexation of the district on terms acceptable to the municipality and the district [under the provisions of Subchapter F] provided that the district shall continue in existence during the period of limited-purpose annexation;

5814 78th LEGISLATURE — REGULAR SESSION


(2)iilimited-purpose annexation of a district located in a county with a population of more than 3.3 million:

(A)iionly if the municipality does not require services, permits, or inspections or impose fees for services, permits, or inspections within the district; and

(B)iiprovided that this subsection does not prevent the municipality from providing services within the district if:

(i)iithe provision of services is specified and agreed to in [such amendments to the timing requirements of Sections 43.123(d)(2) and 43.127(b) as may be necessary or convenient to effectuate the purposes of] the agreement;

(ii)iithe provision of services is not solely the result of a regulatory plan adopted by the municipality in connection with the limited-purpose annexation of the district; and

(iii)iithe district has obtained the authorization of the governmental entity currently providing the service;

(3)iipayments by the municipality to the district for services provided by the district;

(4)iiannexation of any commercial property in a district for full purposes by the municipality, notwithstanding any other provision of this code or the Water Code, except for the obligation of the municipality to provide, directly or through agreement with other units of government, full provision of municipal services to annexed territory, in lieu of any annexation of residential property or payment of any fee on residential property in lieu of annexation of residential property in the district authorized by this subsection;

(5)iia full-purpose annexation provision on terms acceptable to the municipality and the district [that specifies one of the following:

[(A)iithe date on which the land included within the district's boundaries shall be converted from the municipality's limited-purpose jurisdiction to its full-purpose jurisdiction, provided that such date shall not be later than 10 years after the effective date of the strategic partnership agreement; or

[(B)(i)iiterms for payment of an annual fee to the municipality by the district in lieu of full-purpose annexation, the form in which each such payment must be tendered, a method of calculating the fee, and the date by which each such payment must be made; failure by a district to timely make an annual payment in lieu of full-purpose annexation in the amount and form required by a strategic partnership agreement shall be the only ground for termination of the agreement with respect to annexation at the option of the municipality;

[(ii)iito determine a reasonable fee to be derived from residential property in a district, the municipality or the district may request a cost-of-service study by an independent third party agreeable to both parties if cost-of-service data prepared by the municipality is not acceptable. Both parties shall be equally responsible for the cost of the study, which shall include an evaluation of the estimated annual cost of providing municipal services to the residential portion of the district over the next 10 years and the estimated annual amount of ad valorem taxes from residential property the municipality would

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5815


receive on full-purpose annexation of the district over the next 10 years. The fee shall not exceed the estimated annual amount of residential ad valorem taxes that would be derived by full-purpose annexation of the district, less the estimated annual amount required to provide municipal services to the residential property in the district if annexed for full purposes. A fee determined through this methodology is subject to renegotiation every 10 years at the request of either party to the agreement following the same procedure used to set the fee in the original agreement. This methodology does not apply to fees from commercial property];

(6)iiconversion of the district to a limited district including some or all of the land included within the boundaries of the district, which conversion shall be effective on the full-purpose annexation conversion date established under Subdivision (5) [(5)(A)];

(7)iiagreements existing between districts and governmental bodies and private providers of municipal services in existence on the date a municipality evidences its intention by adopting a resolution to negotiate for a strategic partnership agreement with the district shall be continued and provision made for modifications to such existing agreements; and

(8)iisuch other lawful terms that the parties consider appropriate.

(i)iiA [district that is negotiating for or that has adopted a] strategic partnership agreement may provide that the district shall not incur additional debt, liabilities, or obligations, to construct additional utility facilities, or sell or otherwise transfer property without prior approval of the municipality[, which approval shall not be unreasonably withheld or delayed. An action taken in violation of this subsection is void].

(q)iiSubchapter F does not apply to a limited-purpose annexation under a strategic partnership agreement.

SECTIONi4.iiSection 43.123, Local Government Code, is amended by adding Subsection (e) to read as follows:

(e)iiThe deadline imposed by Subsection (d)(2) does not apply to an area that:

(1)iiis owned by the United States, this state, or a political subdivision of this state;

(2)iiis located outside the boundaries of a water control and improvement district or a municipal utility district; and

(3)iiis annexed for limited purposes in connection with a strategic partnership agreement under Section 43.0751.

SECTIONi5.iiSection 43.127(a), Local Government Code, is amended to read as follows:

(a)iiExcept as provided by Section 43.123(e), on [On] or before the date prescribed by the regulatory plan under Section 43.123(d)(2), the municipality must annex the area for full purposes. This requirement may be waived and the date for full-purpose annexation postponed by written agreement between the municipality and a majority of the affected landowners. A written agreement to waive the municipality's obligation to annex the area for full purposes binds all future owners of land annexed for limited purposes pursuant to that waiver.

5816 78th LEGISLATURE — REGULAR SESSION


SECTIONi6.iiSection 49.052, Water Code, is amended by adding Subsections (h) and (i) to read as follows:

(h)iiThis subsection applies only to a district that is located wholly within the boundaries of a municipality with a population of more than 1.5 million, that is governed by Chapter 375, Local Government Code, and that is governed by an appointed board consisting of nine or more members. Notwithstanding Subsection (f) or (g), a person is considered to have resigned from serving as a member of the board if the person fails to attend three consecutive meetings of the board. The remaining board members by majority vote may waive the resignation under this subsection if fairness requires that the absences be excused on the basis of illness or other good cause.

(i)iiNotwithstanding any other law, a director is eligible to serve on the board of a district governed by Chapter 375, Local Government Code, regardless of the municipality in which the director resides, if:

(1)iithe district is located within the boundaries of a municipality with a population of more than 1.8 million; and

(2)iiall or a part of the district is located more than five miles from the downtown city hall of that municipality.

SECTIONi7.iiSection 49.067, Water Code, is amended to read as follows:

Sec.i49.067.iiCONTRACTS. (a) A district shall contract, and be contracted with, in the name of the district.

(b)iiNotwithstanding any other law, a contract for technical, scientific, legal, fiscal, or other professional services must be approved by the board unless specifically delegated by board action. The terms and conditions of such a contract, including the terms for payment, are subject to the decision of the board unless specifically delegated by board action. The board through such action cannot abrogate its fiscal responsibility.

SECTIONi8.iiSection 49.068, Water Code, is amended to read as follows:

Sec.i49.068.iiCONTRACTS WITH GOVERNMENTAL AGENCIES. (a) The provisions of this chapter pertaining to bids and the Local Government Code notwithstanding, a district may purchase property from any governmental entity by negotiated contract without the necessity of securing appraisals or advertising for bids.

(b)iiThe provisions of other law or a home-rule municipal charter notwithstanding, a municipality may contract with a district. The term of a contract under this subsection may be of unlimited duration.

SECTIONi9.iiSection 49.103, Water Code, is amended by adding Subsection (h) to read as follows:

(h)iiIf authorized by the board in the proceedings calling a director election, the secretary of the board or the secretary's designee, on receipt of the certification required by Section 2.052(b), Election Code, shall post notice that the election is not to be held. The notice must be posted, on or before the commencement of early voting, at each polling place that would have been used in the election. If the notice is timely posted:

(1)iithe board or the board's designee is not required to:

(A)iipost or publish notice of the election;

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(B)iiprepare or print ballots and election materials; or

(C)iihold early and regular voting; and

(2)iithe board shall meet at the earliest practicable time to declare each unopposed candidate elected to office.

SECTIONi10.iiSection 49.106(a), Water Code, is amended to read as follows:

(a)iiBefore an election is held to authorize the issuance of bonds, other than refunding bonds, there shall be filed in the office of the district and open to inspection by the public an engineer's report covering the land, improvements, facilities, plants, equipment, and appliances to be purchased or constructed and their estimated cost, together with maps, plats, profiles, and data fully showing and explaining the report. The engineer's report is not:

(1)iipart of the proposition or propositions to be voted on; or

(2)iia contract with the voters.

SECTIONi11.iiSections 49.153(a) and (e), Water Code, are amended to read as follows:

(a)iiThe board, without the necessity of an election, may borrow money on negotiable or nonnegotiable notes of the district to be paid solely from the revenues derived from the ownership of all or any designated part of the district's works, plants, improvements, facilities, or equipment after deduction of the reasonable cost of maintaining and operating the facilities.

(e)iiSubsection (c) does not apply to:

(1)iia note issued to and approved by the:

(A)iiFarmers Home Administration;

(B)iiUnited States Department of Agriculture; [or]

(C)iiTexas Water Development Board; or

(D)iiNorth American Development Bank; or

(2)iia district described by Section 49.181(h).

SECTIONi12.iiSection 49.181(a), Water Code, is amended to read as follows:

(a)iiA district may not issue bonds unless the commission determines that the project to be financed by the bonds is feasible and issues an order approving the issuance of the bonds. This section does not apply to:

(1)iirefunding bonds if the commission issued an order approving the issuance of the bonds or notes that originally financed the project;

(2)iirefunding bonds that are issued by a district under an agreement between the district and a municipality allowing the issuance of the district's bonds to refund bonds issued by the municipality to pay the cost of financing facilities; or

(3)iibonds issued to and approved by the Farmers Home Administration, the United States Department of Agriculture, the North American Development Bank, or the Texas Water Development Board.

SECTIONi13.iiSections 49.183(a) and (b), Water Code, are amended to read as follows:

5818 78th LEGISLATURE — REGULAR SESSION


(a)iiExcept for refunding bonds, or bonds sold to a state or federal agency or to the North American Development Bank, bonds issued by a district shall be sold after advertising for and receiving competitive sealed bids and shall be awarded to the bidder whose bid produces the lowest net effective interest rate to the district.

(b)iiExcept for refunding bonds, or bonds sold to a state or federal agency or to the North American Development Bank, before any bonds are sold by a district, the board shall publish an appropriate notice of the sale:

(1)iiat least one time not less than 10 days before the date of sale in a newspaper of general circulation in the county or counties in which the district is located; and

(2)iiat least one time in one or more recognized financial publications of general circulation in the state as approved by the state attorney general.

SECTIONi14.iiSection 49.194, Water Code, is amended by adding Subsection (g) to read as follows:

(g)iiA submission to the executive director required by this section may be made electronically.

SECTIONi15.iiSubchapter H, Chapter 49, Water Code, is amended by adding Section 49.2125 to read as follows:

Sec.i49.2125.iiFEES AND OTHER CHARGES OF CERTAIN REGIONAL WATER AUTHORITIES AFTER ANNEXATION. (a) This section applies to a regional water authority that:

(1)iiwas established after January 1, 1999;

(2)iiis located entirely within a county with a population greater than 3.4 million according to the 2000 federal decennial census; and

(3)iihas a population greater than 375,000 according to the 2000 federal decennial census.

(b)iiNotwithstanding any other law, except to the extent an authority to which this section applies agrees in writing, a municipality's annexation of territory within the authority has no effect on the authority's ability to assess and collect inside the territory annexed by the municipality the types of fees, rates, charges, or special assessments that the authority was assessing and collecting at the time the municipality initiated the annexation; provided, however, that the authority's ability to assess and collect such fees, rates, charges, or special assessments shall terminate on the later to occur of (i) the date of final payment or defeasance of any bonds or other indebtedness, including any refunding bonds, that are secured by such fees, rates, charges, or special assessments or (ii) the date that the authority no longer provides services inside the annexed territory. An authority to which this section applies shall continue to provide services to the annexed territory in accordance with contracts in effect at the time of the annexation unless a written agreement between the governing body of the authority and the governing body of the municipality provides otherwise.

SECTIONi16.iiSections 49.226(a), (c), and (d), Water Code, are amended to read as follows:

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(a)iiAny personal property valued at more than $300 or any land or interest in land owned by the district which is found by the board to be surplus and is not needed by the district may be sold under order of the board either by public or private sale, or the land, interest in land, or personal property may be exchanged for other land, interest in land, or personal property needed by the district. Except as provided in Subsection (b), land, interest in land, or personal property must be exchanged for like fair market value, which value may be determined by the district. In connection with the sale of surplus land, the board, at its discretion, may impose restrictions on the development and use of the land.

(c)iiBefore [either] a public [or a private] sale of real property, the district shall give notice of the intent to sell by publishing notice once a week for two consecutive weeks in one or more newspapers with general circulation in the district.

(d)iiIf the district has outstanding bonds secured by a pledge of tax revenues, the proceeds of the sale of property originally acquired with bond proceeds shall be:

(1)iiapplied to retire outstanding bonds of the district; or

(2)iiheld and treated as surplus bond proceeds and spent only as provided by the rules of the commission relating to surplus bond proceeds.

SECTIONi17.iiSection 49.234(a), Water Code, as added by Section 15, Chapter 1423, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:

(a)iiA district or water supply corporation that operates a wastewater collection system to serve land within its boundaries by rule may prohibit the installation of private on-site wastewater holding or treatment facilities on land within the district that is not served by the district's or corporation's wastewater collection system. A district or corporation that has not received funding under Subchapter K, Chapter 17, may not require a property owner who has [already] installed an on-site wastewater holding or treatment facility before the adoption of the rule to connect to the district's or corporation's wastewater collection system.

SECTIONi18.iiSubchapter H, Chapter 49, Water Code, is amended by adding Section 49.236 to read as follows:

Sec.i49.236.iiNOTICE OF TAX HEARING. (a) Before the board adopts an ad valorem tax rate for the district for debt service, operation and maintenance purposes, or contract purposes, the board shall give notice of each meeting of the board at which the adoption of a tax rate will be considered. The notice must:

(1)iicontain a statement in substantially the following form:

"NOTICE OF PUBLIC HEARING ON TAX RATE

"The (name of the district) will hold a public hearing on a proposed tax rate for the tax year (year of tax levy) on (date and time) at (meeting place). Your individual taxes may increase or decrease, depending on the change in the taxable value of your property in relation to the change in taxable value of all other property and the tax rate that is adopted."; and

(2)iicontain the following information:

5820 78th LEGISLATURE — REGULAR SESSION


(A)iithe district's total adopted tax rate for the preceding year and the proposed tax rate, expressed as an amount per $100;

(B)iithe difference, expressed as an amount per $100 and as a percent increase or decrease, as applicable, in the proposed tax rate compared to the adopted tax rate for the preceding year;

(C)iithe average appraised value of a residence homestead in the district in the preceding year and in the current year; the district's total homestead exemption, other than an exemption available only to disabled persons or persons 65 years of age or older, applicable to that appraised value in each of those years; and the average taxable value of a residence homestead in the district in each of those years, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older;

(D)iithe amount of tax that would have been imposed by the district in the preceding year on a residence homestead appraised at the average appraised value of a residence homestead in that year, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older;

(E)iithe amount of tax that would be imposed by the district in the current year on a residence homestead appraised at the average appraised value of a residence homestead in that year, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older, if the proposed tax rate is adopted; and

(F)iithe difference between the amounts of tax calculated under Paragraphs (D) and (E), expressed in dollars and cents and described as the annual increase or decrease, as applicable, in the tax to be imposed by the district on the average residence homestead in the district in the current year if the proposed tax rate is adopted.

(b)iiNotice of the hearing shall be:

(1)iipublished at least once in a newspaper having general circulation in the district at least seven days before the date of the hearing; or

(2)iimailed to each owner of taxable property in the district, at the address for notice shown on the most recently certified tax roll of the district, at least 10 days before the date of the hearing.

SECTIONi19.iiSection 49.271, Water Code, is amended by adding Subsection (e) to read as follows:

(e)iiA district contract for construction work may include economic incentives for early completion of the work or economic disincentives for late completion of the work.

SECTIONi20.iiSection 49.273, Water Code, is amended by adding Subsection (l) to read as follows:

(l)iiThe board is not required to advertise or seek competitive bids for security or surveillance systems or components of or additions to district facilities relating to security or surveillance, including systems used for the prevention of terrorist or criminal acts and incidents or acts of war, if the board finds that doing so would compromise the safety and security of district facilities or residents.

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SECTIONi21.iiSection 49.278(a), Water Code, is amended to read as follows:

(a)iiThis subchapter does not apply to:

(1)iiequipment, materials, or machinery purchased by the district at an auction that is open to the public;

(2)iicontracts for personal or professional services or for a utility service operator;

(3)iicontracts made by a district engaged in the distribution and sale of electric energy to the public;

(4)iicontracts for services or property for which there is only one source or for which it is otherwise impracticable to obtain competition; [or]

(5)iihigh technology procurements; or

(6)iicontracts for the purchase of electricity for use by the district.

SECTIONi22.iiSection 49.303, Water Code, is amended to read as follows:

Sec.i49.303.iiEXCLUDING LAND OR OTHER PROPERTY FROM DISTRICT. (a) A district may exclude land or other property from the district under this subchapter if the district has no outstanding bonds payable in whole or in part from taxes.

(b)iiIf a district has no outstanding [Before a district orders an election for the authorization of] bonds payable in whole or in part from taxes, the board may, on its own motion, call a hearing on the question of the exclusion of land or other property from the district under the provisions of this subchapter [section and Sections 49.304 through 49.307], if the exclusions are practicable, just, or desirable.

[(b)iiThe board must call a hearing on the exclusion of land or other property from the district on the written petition of any landowner or property owner in the district filed with the secretary of the board before the first election on the question of whether bonds should be issued payable in whole or in part from taxes is ordered.]

(c)iiIf a district has no outstanding bonds payable in whole or in part from taxes, the [The] board may hold a hearing on the exclusion of land or other property from the district [if the district has not issued bonds payable in whole or in part from taxes, and] if a landowner or property owner submits a signed petition to the secretary of the board evidencing the consent of the owners of a majority of the acreage proposed to be excluded and a majority of the taxable property in the district, as reflected by the most recent certified tax roll of the district.

(d)iiA district that has previously held an election at which approval was given for the issuance of bonds payable in whole or in part from taxes may not rely on that election for the issuance of the bonds if after the bond election, but before the bonds are issued, land or other property is excluded from the district as provided by this subchapter. The board must call and hold another bond election and receive voter approval [as provided by this subchapter] before issuing those bonds.

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(e)iiA district may not exclude land or other property from the district under this section if the district has issued bonds payable in whole or in part from taxes and those bonds are outstanding.

SECTIONi23.iiSection 49.304(a), Water Code, is amended to read as follows:

(a)iiIf the board determines that an exclusion hearing should be held as provided by Section 49.303[(a) or (c), or if a written petition requesting an exclusion hearing is filed with the secretary of the board as provided by Section 49.303(b)], the board shall give notice of the time and place of a hearing to announce its own conclusions relating to land or other property to be excluded and to receive petitions for exclusion of land or other property.

SECTIONi24.iiSections 49.351(a), (k), and (l), Water Code, are amended to read as follows:

(a)iiA district providing potable water or sewer service to household users may establish, operate, and maintain a fire department to perform all fire-fighting services [activities] within the district as provided in this subchapter and may issue bonds or impose a mandatory fee, with voter approval, for financing a plan approved in accordance with this section, including the construction and purchase of necessary buildings, facilities, land, and equipment and the provision of an adequate water supply.

(k)iiIn this section, "fire-fighting services [activities]" means all of the customary and usual services [activities] of a fire department, including fire suppression, fire prevention, training, safety education, maintenance, communications, medical emergency services, photography, and administration.

(l)iiNotwithstanding the requirements of Subsections (a)-(j), a district providing potable water or sewer service to household users may as part of its billing process collect from its customers a voluntary contribution on behalf of organizations providing fire-fighting services [activities] to the district. A district that chooses to collect a voluntary contribution under this subsection must give reasonable notice to its customers that the contribution is voluntary. Water and sewer service may not be terminated as a result of failure to pay the voluntary contribution.

SECTIONi25.iiSection 49.455(d), Water Code, is amended to read as follows:

(d)iiThe information form required by this section shall be filed with the county clerk [within 48 hours after the effective date of this section or] within 48 hours after the district is officially created[, whichever time comes first]. For purposes of this section, the words "officially created" mean the date and hour in which the results of the election to confirm the creation of the district are declared.

SECTIONi26.iiSection 53.029, Water Code, is amended by adding Subsection (e) to read as follows:

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(e)iiA district that has adopted the rights, authority, privileges, and functions of a road district in the manner provided by Subsection (c) may, following approval of a construction contract by the district's governing body, reimburse expenditures as provided by Sections 257.003(a) and (b), Transportation Code, without any additional approval under Section 257.003, Transportation Code.

SECTIONi27.iiSection 54.201(b), Water Code, is amended to read as follows:

(b)iiA district is authorized to purchase, construct, acquire, own, operate, maintain, repair, improve, or extend inside and outside its boundaries any and all works, improvements, facilities, plants, equipment, and appliances necessary to accomplish the purposes of the district authorized by the constitution, this code, or other law [its creation], including all works, improvements, facilities, plants, equipment, and appliances incident, helpful, or necessary to:

(1)iisupply water for municipal uses, domestic uses, power, and commercial purposes and all other beneficial uses or controls;

(2)iicollect, transport, process, dispose of, and control all domestic, industrial, or communal wastes whether in fluid, solid, or composite state;

(3)iigather, conduct, divert, and control local storm water or other local harmful excesses of water in a district;

(4)iiirrigate the land in a district;

(5)iialter land elevation in a district where it is needed;

(6)iinavigate coastal and inland waters of the district; and

(7)iprovide parks and recreational facilities for the inhabitants in the district, subject to the provisions of Chapter 49 [Subchapter I of this chapter].

SECTIONi28.iiSubchapter D, Chapter 54, Water Code, is amended by adding Section 54.2052 to read as follows:

Sec.i54.2052.iiPLUMBING CODE. Notwithstanding any other law, a district is not required to adopt a plumbing code. A district may adopt and enforce one or more plumbing codes meeting the standards and requirements of the rules and laws of this state and may amend any code adopted to conform to local concerns if the amendment does not substantially vary from rules or laws of this state. If a municipal regulation conflicts with a district regulation, the municipal regulation prevails.

SECTIONi29.iiSection 54.234, Water Code, is amended to read as follows:

Sec.i54.234.iiACQUIRING ROAD UTILITY DISTRICT POWERS. Any district, which has the power to levy taxes, may[, with the approval of the commission,] petition the commission [Texas Transportation Commission] to acquire the powers granted to road utility districts operating pursuant to Chapter 441, Transportation Code, under the authority of Article III, Section 52, Texas Constitution. As soon as practicable after such petition has been filed with the commission [Texas Transportation Commission], the commission [Texas Transportation Commission shall conduct a hearing in accordance with Chapter 441, Transportation Code, and] shall issue an order [in accordance with Chapter 441, Transportation Code,] either approving or denying such petition. [Any district so petitioning the Texas Transportation Commission shall conform to the rules applicable to the creation and administration of such districts as provided by

5824 78th LEGISLATURE — REGULAR SESSION


Chapter 441, Transportation Code.] In the event of any conflict between the provisions of the Water Code and the general laws of this state applicable to the district and the provisions of Chapter 441, Transportation Code, the provisions of the Water Code and the general laws of this state applicable to the district shall prevail.

SECTIONi30.iiSection 54.503, Water Code, is amended to read as follows:

Sec.i54.503.iiMANNER OF REPAYMENT OF BONDS. The board may provide for the payment of principal of and interest and redemption price on the bonds in any one of the following manners:

(1)iifrom the levy and collection of ad valorem taxes on all taxable property within the district;

(2)iiby pledging all or any part of the designated revenues to result from the ownership or operation of the district's works, improvements, facilities, plants, equipment, and appliances or under specific contracts for the period of time the board determines;

(3)iiby pledging all or part of any funds or revenues available to the district; or

(4)iia combination of the sources set forth in Subdivisions (1), [and] (2), and (3) of this section.

SECTIONi31.iiSection 54.505, Water Code, is amended to read as follows:

Sec.i54.505.iiELECTION ON TAX BONDS. Bonds payable solely from revenues may be issued by resolution or order of the board without an election, but no bonds, except refunding bonds, payable wholly or partially from ad valorem taxes shall be issued until authorized by a majority vote of the resident electors of the district voting in an election called and held for that purpose. An election is not required to pledge revenues to the payment of bonds.

SECTIONi32.iiSections 54.739 and 54.744, Water Code, are amended to read as follows:

Sec.i54.739.iiSUBSTITUTING LAND OF EQUAL [ACREAGE AND] VALUE. After the district is organized and acquires facilities with which to function for the purposes for which it was organized, and votes, issues and sells bonds for such purposes, land within the district boundaries subject to taxation that does not need or utilize the services of the district may be excluded and other land not within the boundaries of the district may be included within the boundaries of the district without impairment of the security for payment of the bonds or invalidation of any prior bond election, as provided by [the provisions of] this section and Sections 54.740 [54.741] through 54.747 [54.748 subject to commission approval].

Sec.i54.744.iiIMPAIRMENT OF SECURITY. For purposes of the board's consideration of the applications, the lands proposed for inclusion shall be deemed to be sufficient to avoid an impairment of the security for payment of obligations of the district if:

(1)iiaccording to the most recent [county] tax roll of the district or the most recently certified estimates of taxable value from the chief appraiser of the appropriate appraisal district [rolls], the taxable value of such included lands equals or exceeds the taxable value of the excluded lands;

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(2)iieither the estimated costs of providing district facilities and services to such included lands is equal to or less than the estimated costs of providing district facilities and services to the excluded lands or any increased estimated costs of providing district facilities and services to the included land, as determined by the district's engineer, can be amortized at prevailing bond interest rates and maturity schedules and the prevailing debt service tax rate of the district, as determined by the district's professional financial advisor, when applied to the increase in taxable value of the included land over the taxable value of the excluded land; and

(3)iithe district's outstanding bonds or contract obligations are payable in whole or in part by a pledge of net revenues from the ownership or operation of the district's facilities, and the projected net revenues to be derived from the lands to be included during the succeeding 12-month period, as determined by the district's engineer, equals or exceeds the projected net revenues that would otherwise have been derived from the lands to be excluded during the same period.

SECTIONi33.iiSubchapter H, Chapter 54, Water Code, is amended by adding Sections 54.748 and 54.749 to read as follows:

Sec.i54.748.iiEXCLUSION OF LAND FOR FAILURE TO PROVIDE SUFFICIENT SERVICES; BONDS OUTSTANDING. (a) This section applies only to a district that has a total area of more than 5,000 acres.

(b)iiThe board shall call a hearing on the exclusion of land from the district on a written petition filed with the secretary of the board by a landowner whose land has been included in and taxable by the district for more than 28 years if any bonds issued by the district payable in whole or in part from taxes of the district are outstanding and the petition:

(1)iiincludes a signed petition evidencing the consent of the owners of a majority of the acreage proposed to be excluded, as reflected by the most recent certified tax roll of the district;

(2)iiincludes a claim that the district has not provided the land with utility services;

(3)iidescribes the property to be excluded;

(4)iiprovides, at the petitioner's expense, facts necessary for the board to make the findings required by Subsection (c); and

(5)iiis filed before August 31, 2005.

(c)iiThe board may exclude land under this section only on finding that:

(1)iithe district has never provided utility services to the land described by the petition;

(2)iithe district has imposed a tax on the land for more than 28 years;

(3)iiall taxes the district has levied and assessed against the land and all fees and assessments the district has imposed against the land or the owner that are due and payable on or before the date of the petition are fully paid; and

(4)iithe executive director has reviewed the economic impact of the proposed exclusion of land and does not oppose the exclusion.

5826 78th LEGISLATURE — REGULAR SESSION


(d)iiIf evidence presented at the hearing conclusively demonstrates that the requirements and grounds for exclusion described by Subsections (b) and (c) have been met, the board may enter an order excluding the land from the district. If the board enters an order excluding the land, the board shall redefine in the order the boundaries of the district to embrace all land not excluded.

(e)iiA copy of an order excluding land and redefining the boundaries of the district shall be filed in the deed records of the county in which the district is located.

(f)iiThe exclusion of land under this section does not impair the rights of holders of any outstanding bonds, warrants, or other certificates of indebtedness of the district.

(g)iiAfter any land is excluded under this section, the district may issue any unissued additional debt approved by the voters of the district before exclusion of the land under this section without holding a new election. Additional debt issued after land is excluded from the district may not be payable from and does not create a lien against the taxable value of the excluded land.

(h)iiFor purposes of this section and Section 54.749, "land" includes any improvements to the land, and when used in the context of property taxes, "land" has the meaning assigned to "real property" by Section 1.04, Tax Code.

Sec.i54.749.iiTAX LIABILITY OF EXCLUDED LAND; BONDS OUTSTANDING. (a) Land excluded from the district under Section 54.748 that is pledged as security for any outstanding debt of the district remains pledged for its pro rata share of the debt until final payment is made. The district shall continue to levy and collect taxes on the excluded land at the same rate levied on land remaining in the district until the amount of taxes collected from the excluded land equals the land's pro rata share of the district's debt outstanding at the time the land was excluded from the district.

(b)iiThe district shall apply the taxes collected on the excluded land only to the payment of the excluded land's pro rata share of the debt.

SECTIONi34.iiSection 57.015(b), Water Code, is amended to read as follows:

(b)iiThe notice shall be posted at the courthouse door and at a place [four different places] inside the proposed district. If the district is located in more than one county, the person posting the notice shall post a copy at the courthouse door in each county in which any portion of the proposed district is located and at a place [four separate places] inside the boundaries of that portion of the district located in each county. The notice shall be posted for at least 10 days before the date of the hearing.

SECTIONi35.iiSection 57.092(a), Water Code, is amended to read as follows:

(a)iiThe district may enter into all necessary and proper contracts and employ all persons and means necessary to purchase, acquire, build, construct, complete, carry out, maintain, protect, and, in case of necessity, add to and rebuild all works and improvements necessary or proper to fully accomplish the purposes of the district, including the reclamation of land within the district [a reclamation plan lawfully adopted for the district].

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SECTIONi36.iiSection 57.104, Water Code, is amended to read as follows:

Sec.i57.104.iiCONSTRUCTION OF [DUTY TO CONSTRUCT APPROVED] IMPROVEMENTS. The district may [shall] construct all improvements necessary or convenient to accomplish the purposes of the district [included in the plan of reclamation approved by the commission].

SECTIONi37.iiSection 57.108(b), Water Code, is amended to read as follows:

(b)iiContracts may be awarded or entered in sections for the purpose of the purchase, acquisition, construction, and improvement of pumping equipment, reservoirs, culverts, bridges, and drainage improvements as these may become necessary[, but as funds are available, the district shall comply with Section 57.104].

SECTIONi38.iiThe heading to Section 57.116, Water Code, is amended to read as follows:

Sec.i57.116.iiENGINEER'S CONSTRUCTION REPORT.

SECTIONi39.iiSection 57.116(a), Water Code, is amended to read as follows:

(a)iiAs [the] work [on the plan of reclamation] progresses on the district's improvements, the engineer shall make a report to the board, showing in detail whether or not the contract is being fulfilled.

SECTIONi40.iiSection 57.117(b), Water Code, is amended to read as follows:

(b)iiIf the executive director finds that the work has not been done in strict accordance with the contract, he shall officially certify this fact, and in the certificate he shall state where the contractor has failed to comply with the contract [approved plan of reclamation].

SECTIONi41.iiSection 57.118, Water Code, is amended to read as follows:

Sec.i57.118.iiCOMPLIANCE WITH CONTRACT. After the board receives a report that the contractor has failed to comply with the contract, it shall demand that the contractor comply with the requirements of the contract [approved plan of reclamation] at his own expense, and no further accounts, claims, or vouchers submitted by the contractor shall be approved or paid until the contractor complies with the requirements of the executive director by constructing the improvement in accordance with the contract [plan of reclamation].

SECTIONi42.iiThe heading to Subchapter E, Chapter 57, Water Code, is amended to read as follows:

SUBCHAPTER E. ENGINEER'S REPORT [PLAN OF RECLAMATION]

SECTIONi43.iiSections 57.177(a) and (c), Water Code, are amended to read as follows:

(a)iiIf the district wants to carry out its purposes [plan of reclamation] without issuing bonds, the board may arrange for contributions from landowners or other sources to provide the funds required to complete the improvements.

(c)iiIf the district creates an indebtedness under this section, the indebtedness may not be more than:

(1)iithe cost of construction of the improvements included in the engineer's report [plan of reclamation];

5828 78th LEGISLATURE — REGULAR SESSION


(2)iithe cost [as approved by the commission] of maintaining the improvements for two years; and

(3)iian additional amount equal to 10 percent to meet emergencies, modifications, and changes lawfully made, plus damages awarded against the district.

SECTIONi44.iiSection 57.208(b), Water Code, is amended to read as follows:

(b)iiThe bonds shall be known as "Levee Improvement Bonds" [and shall state on their face the purpose for which they are issued].

SECTIONi45.iiSection 57.216, Water Code, is amended to read as follows:

Sec.i57.216.iiPROVIDING FOR ADDITIONAL FUNDS. (a) If the improvements in the engineer's report [plan of reclamation adopted for the district] are insufficient to reclaim all of the land and other property inside the district, extensive repairs or additions to the improvements are necessary, or additional funds are needed to complete improvements, the board may provide additional funds for the district by following the provisions of this chapter for raising funds [for the original plan of reclamation].

(b)iiIf the board creates additional indebtedness or issues additional bonds, the indebtedness or bonds are subject to the provisions of this chapter relating to the issuance of bonds. [The new or amended plan of reclamation must be approved by the commission.]

SECTIONi46.iiSection 57.260(a), Water Code, is amended to read as follows:

(a)iiIf a district levies taxes on the benefit basis, the commissioners court of each county in which any portion of that district is located shall levy and have assessed and collected taxes on all taxable property inside the district, based on the net benefits which the commissioners of appraisement find will accrue to each piece of property from the improvements described in the engineer's report [completion of the plan of reclamation] or other authorized improvements [improvement].

SECTIONi47.iiSection 57.261, Water Code, is amended to read as follows:

Sec.i57.261.iiAPPOINTMENT OF COMMISSIONERS OF APPRAISEMENT. The [After the plan of reclamation is approved and adopted, the] commissioners court of the county of jurisdiction in a district levying taxes on the benefit basis shall appoint three disinterested commissioners, known as "commissioners of appraisement."

SECTIONi48.iiSections 57.265(c) and (d), Water Code, are amended to read as follows:

(c)iiThe commissioners of appraisement shall view:

(1)iithe land inside the district;

(2)iiother land which will be affected by the engineer's report [plan of reclamation] if carried out;

(3)iiall public roads, railroads, rights-of-way, and other property or improvements located on the land; and

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(4)iiland inside or outside the district which may be acquired under the provisions of this chapter for any purpose connected with or incident to carrying out the engineer's report [plan of reclamation].

(d)iiThe commissioners of appraisement shall assess the amounts of benefits and all damages that will accrue to any tract of land inside the district or any land outside the district which may be affected by the engineer's report [plan of reclamation], or any public highway, railroad, right-of-way, roadway, or other property.

SECTIONi49.iiSection 57.266(a), Water Code, is amended to read as follows:

(a)iiThe commissioners of appraisement shall prepare a report of their findings. The report shall include:

(1)iithe name of the owner of each piece of property examined and assessed;

(2)iia description which will identify each piece of property; and

(3)iithe value of all property to be taken or acquired for rights-of-way or any other purposes connected with carrying out the engineer's report [plan of reclamation as finally approved by the commission].

SECTIONi50.iiSections 57.267(b), (c), and (d), Water Code, are amended to read as follows:

(b)iiThe notice shall be published in a newspaper published in each county in which any part of the district is located, or in which any land lies that will be in any way affected by the proposed engineer's report [plan of reclamation]. The notice shall be published once a week for two consecutive weeks before the date of the hearing.

(c)iiThe notice shall be in substantially the following form:

To the owners and all other persons having any interest in land lying in ______ County, take notice, that a copy of the engineer's report [plan of reclamation] of the ______ Levee Improvement District has been filed in the district's office [with the county clerk of this county] and that the commissioners of appraisement have been appointed to assess benefits and damages accruing to land or other property inside or outside the levee improvement district which will be benefited, taken, damaged, or affected in some way by the carrying out of the engineer's report [plan of reclamation]. The report of the commissioners of appraisement has been filed in my office at ______, and all interested persons may examine the report and make an objection to all or any part of the report. A person who claims damage to his land and to whose land no damages have been assessed in the report must file a claim for damage in my office on or before ______, [19]___. A person who fails to make an objection or to file a claim for damages is deemed to have waived his right to object or claim damages. The commissioners of appraisement will meet on ______, [19]___, to hear and act on objections to their report and claims for damages.

_____________________________

Secretary, Board of Directors

______________ Levee Improvement District

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(d)iiThe secretary shall mail written notice to each person whose property is listed in the report of the commissioners of appraisement, if the office address is known. This notice shall state in substance:

(1)iithat the report of the commissioners of appraisement assessing benefits and damages accruing to land and other property because of the engineer's report [plan of reclamation] for the district has been filed in the district's [secretary's] office;

(2)iithat all persons interested may examine the report and make objections to it in whole or in part; and

(3)iithat the commissioners of appraisement will meet on the day and at the place named to hear and act on objections to the report.

SECTIONi51.iiSections 57.269(a) and (b), Water Code, are amended to read as follows:

(a)iiAn owner of land or other property affected by the report of the commissioners of appraisement or by the engineer's report [plan of reclamation] may file an objection to any or all parts of the report of the commissioners of appraisement at or before the hearing on the report.

(b)iiA person on whose land no damages have been assessed and who believes that his land will be damaged by prosecution of the engineer's report [plan of reclamation] may file with the secretary of the board a claim for damages.

SECTIONi52.iiSections 57.270(e), (j), and (k), Water Code, are amended to read as follows:

(e)iiThe secretary in not less than five days after the appeal is filed shall send to the district clerk:

(1)iithe engineer's report [plan of reclamation] or a certified copy of it;

(2)iia transcript of that part of the commissioners of appraisement's report affecting the lands concerned in the appeal;

(3)iia transcript of the claim for damages; and

(4)iia transcript of the action of the commissioners of appraisement on the claim.

(j)iiNo appeal may delay carrying out the engineer's report [plan of reclamation], and if the board pays to the district clerk the amount of damages awarded by the commissioners of appraisement to a claimant who is appealing their decree, and if the board makes bond to pay to the claimant any additional amount that he may be awarded on his appeal, title to the condemned property that is the subject of the appeal vests in the district, and the district is entitled to immediate possession.

(k)iiNo person may claim damages against the district, its board, officers, or agents because of the prosecution of the engineer's report [plan of reclamation] if he owns or has an interest in land in a county in which [a copy of the plan of reclamation has been filed and in which] notice has been published of the hearing before the commissioners of appraisement, and he has failed to file a claim for damages or an objection to the damages assessed by the commissioners of appraisement against his land, or if he has filed a claim or objection but has failed to appeal from an adverse ruling on his claim or objection.

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SECTIONi53.iiSection 57.273(b), Water Code, is amended to read as follows:

(b)iiIf the engineer's report [plan of reclamation] is changed or modified, or if extensive repairs or additions to the engineer's report [plan of reclamation] are desired, the board shall file a petition with the commissioners court describing the changes, modifications, repairs, or additions.

SECTIONi54.iiSection 57.274(b), Water Code, is amended to read as follows:

(b)iiThe commissioners court shall order a reassessment of benefits if it finds that the aggregate amount of assessed benefits as shown by the previous final judgment and decree is insufficient to carry out the original engineer's report [plan of reclamation] or changes, repairs, or additions to the report [plan] or there has been a material change in the relative value of the benefits conferred on the property in the district, or for some reason the assessment of benefits is inadequate or inequitable.

SECTIONi55.iiSection 57.275(d), Water Code, is amended to read as follows:

(d)iiIf the engineer's report [plan of reclamation] is modified, or if extensive repairs or additions are made, the provisions of this section apply to districts that levy taxes on the ad valorem basis, but the commissioners of appraisement shall assess only the damages which will accrue to the property inside or outside the district as a result of the changes in the report [plan].

SECTIONi56.iiSection 67.010(d), Water Code, is amended to read as follows:

(d)iiA political subdivision may contract with a corporation under Section 402.014, Local Government Code, to carry out this chapter. If a corporation issues bonds secured by a contract entered into under Section 402.014, Local Government Code, the corporation is considered to be acting for or on behalf of that political subdivision for the purposes of Section 1201.002(1), Government Code. A political subdivision is authorized to approve by ordinance, resolution, or order the articles of incorporation and the bylaws of a corporation that is created for the purpose of constructing facilities under a contract as provided by Section 402.014, Local Government Code.

SECTIONi57.iiThe following provisions are repealed:

(1)iiSections 54.0163(e), 54.508, 57.094, 57.108(a), 57.154(b), and 57.156, Water Code;

(2)iiSection 402.908, Local Government Code; and

(3)iiSubchapter C, Chapter 441, Transportation Code.

SECTIONi58.ii(a)iiExcept as provided by this section, a provision of a strategic partnership agreement entered into before December 31, 2003, that does not comply with Section 43.0751(f)(2), Local Government Code, as amended by this Act, is not enforceable after December 31, 2003, to the extent of the noncompliance.

(b)iiA permit issued before December 31, 2003, by a municipality with a population of 1.9 million or more remains valid until its expiration and shall be recognized by the county.

5832 78th LEGISLATURE — REGULAR SESSION


(c)iiA municipality with a population of 1.9 million or more may not enforce, under a strategic partnership agreement, a code provision that would otherwise require a building permit from the municipality after the effective date of this Act.

(d)iiThis section does not affect the validity or enforceability of a provision of a strategic partnership agreement that requires services or imposes fees if the services or fees relate to emergency services that were specifically requested by the board of a municipal utility district or if the services or fees have been approved by a state agency or a political subdivision that is not a party to the strategic partnership agreement.

SECTIONi59.ii(a)iiSection 43.127(a), Local Government Code, as amended by this Act, applies to an area described by Section 43.123(e), Local Government Code, as added by this Act, that is annexed for limited purposes in connection with a strategic partnership agreement before, on, or after September 1, 2003.

(b)iiFor the 2003 tax year, the change in law made by Section 49.236, Water Code, applies only to a conservation and reclamation district created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, and governed by Chapter 49, Water Code, that adopts its tax rate on or after September 1, 2003. For the 2003 tax year, a district that adopts its tax rate before September 1, 2003, is governed by the law as it existed prior to the effective date of this Act, and that law is continued in effect for that purpose.

SECTIONi60.iiThis Act takes effect immediately 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, 2003.

Representative Callegari moved to adopt the conference committee report on HBi1541.

A record vote was requested.

The motion prevailed by (Record 927): 148 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith,

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5833


T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Keffer, B.(C).

SBi127 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Seaman submitted the conference committee report on SBi127.

Representative Seaman moved to adopt the conference committee report on SBi127.

A record vote was requested.

The motion prevailed by (Record 928): 146 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Keffer, B.(C).

Absent — Hochberg; Merritt.

SBi1108 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Grusendorf submitted the conference committee report on SBi1108.

SBi1108 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE HOCHBERG: Chairman Grusendorf, is there anything, to your knowledge, in SBi1108 that would allow the commissioner of education in coordination with an accredited senior college or university to establish a pilot program that permits a public school to use technology, including the Internet, to deliver a significant portion of the school's instruction outside of a central campus to students statewide?

5834 78th LEGISLATURE — REGULAR SESSION


REPRESENTATIVE GRUSENDORF: No, there is not.

REMARKS ORDERED PRINTED

Representative Hochberg moved to print remarks between Representative Hochberg and Representative Grusendorf.

The motion prevailed without objection.

Representative Grusendorf moved to adopt the conference committee report on SBi1108.

A record vote was requested.

The motion prevailed by (Record 929): 146 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, E.; Jones, J.; Keel; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Keffer, B.(C).

Absent — Geren; Jones, D.

STATEMENT OF VOTE

When Record No. 929 was taken, my vote failed to register. I would have voted no.

D. Jones

HCR 285 - ADOPTED
(by Grusendorf)

The following privileged resolution was laid before the house:

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5835


HCR 285

WHEREAS, the conference committee report for SBi1108 has been adopted by the senate and the house of representatives and is being prepared for enrollment; and

WHEREAS, The bill contains technical errors that should be corrected; now, therefore, be it

RESOLVED by the 78th Legislature of the State of Texas, That the enrolling clerk of the senate be instructed to correct SBi1108 by striking Section 7 of the bill and renumbering the sections of the bill appropriately. The text of the section to be stricken reads:

SECTIONi7.iiSection 25.081, Education Code, is amended by adding Subsection (c) to read as follows:

(c)iiA school may not operate on the Memorial Day holiday.

HCR 285 was adopted.

HB 425 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Christian submitted the following conference committee report on HB 425 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi425 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

West, Royce Christian
Armbrister J. Keffer
Ratliff Bonnen
Harris Eissler
On the part of the senate On the part of the house

HB 425, A bill to be entitled An Act relating to procedures to help ensure that certain state agency actions are consistent with the meaning and intent of applicable legislative enactments.

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

SECTIONi1.iiChapter 322, Government Code, is amended by adding Section 322.015 to read as follows:

Sec.i322.015.iiLETTERS OF LEGISLATIVE INTENT. (a) The board may issue a letter to a state governmental entity clarifying or explaining meaning or legislative intent on matters relating to:

(1)iithe General Appropriations Act; or

(2)iianother legislative enactment that makes an appropriation or qualifies, details, limits, or restricts an appropriation.

5836 78th LEGISLATURE — REGULAR SESSION


(b)iiA state governmental entity, in interpreting a provision of law described by Subsection (a), may rely on a letter of legislative intent issued by the board under this section.

SECTIONi2.iiSection 2001.032, Government Code, is amended to read as follows:

Sec.i2001.032.iiLEGISLATIVE REVIEW AND NOTIFICATION. (a) In the process of developing new rules and before a state agency gives notice of its intention of adopting a rule under Sections 2001.023 and 2001.024, the agency shall research the legislative history of the law and prepare a legislative history document on the bill or amendment that authorizes a state agency to adopt the rule. To effectively research and prepare a legislative history document, the state agency must:

(1)iiconfirm the names of the primary author and sponsor of the legislation or amendment that authorizes the state agency to adopt the rule with the chief clerk of the house of representatives, the secretary of the senate, or an automated information system operated by the Texas Legislative Council or some other reliable information service;

(2)iidetermine whether a statement or discussion of legislative intent was entered into the journals of the senate or house of representatives in connection with legislation that became law and that added, amended, or clearly affected the law under which the rule would be adopted;

(3)iiverify the standing of each legislative author or sponsor identified in Subdivision (1) as to their current membership in the legislature; and

(4)iiassemble the information gathered under Subdivisions (1), (2), and (3) into a legislative history document to be used by the state agency during the deliberative process of developing new rules.

(b)iiIn this section, a reference to the law under which a rule is or would be adopted includes a reference to the law that authorizes a state agency to adopt the rule and to the law that the rule would implement or enforce.

(c)iiBefore a state agency gives notice of its intention to adopt a rule under Sections 2001.023 and 2001.024, the agency shall establish an internal review process to ensure that the proposed rule is consistent with the legislative history in enacting or otherwise affecting the law under which the rule would be adopted.

(d)iiBefore a state agency gives notice of its intention to adopt a rule under Sections 2001.023 and 2001.024, the agency shall inform the primary author and sponsor of legislation that became law and that added, amended, or clearly affected the law under which the rule would be adopted, if the primary author or sponsor is still a member of the legislature, that the adoption of a rule related to the member's legislation is being considered.

(e)iiConcurrently with the state agency's filing of the notice with the secretary of state, the agency shall deliver a copy of the notice of the proposed rule required by Sections 2001.023 and 2001.024 to the primary author and sponsor as described in the legislative history if the primary author or sponsor is still a member of the legislature.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5837


(f)iiNot later than the seventh day before the date the state agency considers the rule for final adoption, the agency shall deliver to the primary author and sponsor a copy of the rule as proposed for final adoption if the text of the rule differs from the text of the proposed rule published under Section 2001.024 and if the author or sponsor is still a member of the legislature. The state agency also shall notify the primary author and sponsor in a timely manner of the time and place of a public hearing held in connection with the contemplated rulemaking if the primary author or sponsor is still a member of the legislature.

(g)iiThe state agency shall deliver a copy of an emergency rule adopted under Section 2001.034 and the written reasons for its adoption to the primary author and sponsor as determined by the legislative history with respect to the law under which the emergency rule was adopted concurrently with the agency's filing of the rule and the reasons for its adoption with the secretary of state. If the state agency gives an abbreviated notice or conducts a hearing in connection with the adoption of the emergency rule, the agency shall also promptly furnish the primary author and sponsor with a copy of the notice and shall timely inform the primary author and sponsor of the time and place of the hearing.

(h)iiFailure to provide notice under this section does not invalidate an action taken or rule adopted. [Each house of the legislature by rule shall establish a process under which the presiding officer of each house refers each proposed state agency rule to the appropriate standing committee for review before the rule is adopted.

[(b)iiA state agency shall deliver to the lieutenant governor and the speaker of the house of representatives a copy of the notice of a proposed rule when the agency files notice with the secretary of state under Section 2001.023.

[(c)iiOn the vote of a majority of its members, a standing committee may send to a state agency a statement supporting or opposing adoption of a proposed rule.]

SECTIONi3.iiSection 2001.024(a), Government Code, is amended to read as follows:

(a)iiThe notice of a proposed rule must include:

(1)iia brief explanation of the proposed rule;

(2)iithe text of the proposed rule, except any portion omitted under Section 2002.014, prepared in a manner to indicate any words to be added or deleted from the current text;

(3)iia statement of the statutory or other authority under which the rule is proposed to be adopted, including:

(A)iia concise explanation of the particular statutory or other provisions under which the rule is proposed;

(B)iithe section or article of the code affected; [and]

(C)iia certification that the proposed rule has been reviewed by legal counsel and found to be within the state agency's authority to adopt; and

(D)iia copy of the legislative history developed and used by the agency during the proposal process;

5838 78th LEGISLATURE — REGULAR SESSION


(4)iia fiscal note showing the name and title of the officer or employee responsible for preparing or approving the note and stating for each year of the first five years that the rule will be in effect:

(A)iithe additional estimated cost to the state and to local governments expected as a result of enforcing or administering the rule;

(B)iithe estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rule;

(C)iithe estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rule; and

(D)iiif applicable, that enforcing or administering the rule does not have foreseeable implications relating to cost or revenues of the state or local governments;

(5)iia note about public benefits and costs showing the name and title of the officer or employee responsible for preparing or approving the note and stating for each year of the first five years that the rule will be in effect:

(A)iithe public benefits expected as a result of adoption of the proposed rule; and

(B)iithe probable economic cost to persons required to comply with the rule;

(6)iithe local employment impact statement prepared under Section 2001.022, if required;

(7)iia request for comments on the proposed rule from any interested person; and

(8)iiany other statement required by law.

SECTIONi4.iiSection 2001.033, Government Code, is amended to read as follows:

Sec.i2001.033.iiSTATE AGENCY ORDER ADOPTING RULE. (a) A state agency order finally adopting a rule must include:

(1)iia reasoned justification for the rule as adopted consisting solely of:

(A)iia summary of comments received from parties and of any written comments received from members of the legislature interested in the rule that shows the names of interested groups or associations offering comment on the rule and of members of the legislature offering written comment on the rule and whether they were for or against its adoption;

(B)iia summary of the factual basis for the rule as adopted which demonstrates a rational connection between the factual basis for the rule and the rule as adopted; and

(C)iithe reasons why the agency disagrees with party submissions and proposals and with any written comments or proposals offered by a member of the legislature;

(2)iia concise restatement of the particular statutory provisions under which the rule is adopted and of how the agency interprets the provisions as authorizing or requiring the rule; and

(3)iia certification that the rule, as adopted, has been reviewed by legal counsel and found to be:

(A)iia valid exercise of the agency's legal authority; and

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5839


(B)iiconsistent with the intent of the legislature in enacting or otherwise affecting the law under which the rule is adopted, as described by Section 2001.032(a).

(b)iiNothing in this section shall be construed to require additional analysis of alternatives not adopted by an agency beyond that required by Subsection (a)(1)(C) [Subdivision (1)(C)] or to require the reasoned justification to be stated separately from the statements required in Subsection (a)(1) [Subdivision (1)].

SECTIONi5.iiThe changes in law made by this Act relating to the process of state agency rulemaking apply only in relation to:

(1)iia state agency rule for which notice of the rule as proposed is first published in the Texas Register under Sections 2001.023 and 2001.024, Government Code, on or after October 1, 2003; or

(2)iian emergency rule adopted on or after September 15, 2003.

SECTIONi6.iiThis Act takes effect September 1, 2003.

Representative Christian moved to adopt the conference committee report on HBi425.

The motion prevailed.

SBi1387 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Homer submitted the conference committee report on SBi1387.

Representative Homer moved to adopt the conference committee report on SBi1387.

The motion prevailed.

HR 1852 - ADOPTED
(by Bonnen)

The following privileged resolution was laid before the house:

HR 1852

BE IT RESOLVED by the House of Representatives of the State of Texas, 78th Legislature, Regular Session, 2003, That House Rule 13, Section 9(a), be suspended in part as provided by House Rule 13, Section 9(f), to enable the conference committee appointed to resolve the differences on HB 1365, relating to the Texas emissions reduction plan, to consider and take action on the following matter:

(1)iiHouse Rule 13, Section (9)(a)(2), is suspended in order to allow the committee to omit text from Section 151.0515(a), Tax Code, as amended by both houses, so that the section reads as follows:

(a)iiIn this section, "equipment" includes all off-road, heavy-duty diesel equipment [classified as construction equipment], other than implements of husbandry used solely for agricultural purposes, including:

(1)iipavers;

(2)iitampers/rammers;

(3)iiplate compactors;

(4)iiconcrete pavers;

5840 78th LEGISLATURE — REGULAR SESSION


(5)iirollers;

(6)iiscrapers;

(7)iipaving equipment;

(8)iisurface equipment;

(9)iisignal boards/light plants;

(10)iitrenchers;

(11)iibore/drill rigs;

(12)iiexcavators;

(13)iiconcrete/industrial saws;

(14)iicement and mortar mixers;

(15)iicranes;

(16)iigraders;

(17)iioff-highway trucks;

(18)iicrushing/processing equipment;

(19)iirough terrain forklifts;

(20)iirubber tire loaders;

(21)iirubber tire tractors/dozers;

(22)iitractors/loaders/backhoes;

(23)iicrawler tractors/dozers;

(24)iiskid steer loaders;

(25)iioff-highway tractors; [and]

(26)iiDumpsters/tenders; and

(27)iimining equipment.

Explanation:iiThis change is necessary to provide that only mining equipment but not certain drilling equipment is added to the kinds of equipment subject to the sale, lease, or rental surcharge on new or used equipment.

(2)iiHouse Rule 13, Sections (9)(a)(3) and (4), are suspended to allow the committee to add the following text to Section 27 of the bill to read as follows:

(c)iiThe change in law made by Section 25 of this Act does not affect speed limits that have been approved by the Texas Transportation Commission before the effective date of this Act.

Explanation:iiThis change is necessary to make clear that a speed limit approved by the Texas Transportation Commission before the effective date of the Act is not affected by the change in law made by Section 25 of the Act.

HR 1852 was adopted.

HB 1365 - 24 HOUR LAYOUT RULE SUSPENDED

Representative Bonnen moved to suspend Rule 13, Section 10 of the house rules to consider the conference committee report on HBi1365 which was ineligible for consideration at this time.

The motion prevailed.

HB 1365 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Bonnen submitted the following conference committee report on HB 1365 :

Austin, Texas, May 31, 2003

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5841


The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi1365 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Harris Bonnen
Averitt Capelo
Armbrister Chisum
Jackson McCall
Ogden Wilson
On the part of the senate On the part of the house

HB 1365, A bill to be entitled An Act relating to the Texas emissions reduction plan.

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

SECTIONi1.iiSection 386.001(2), Health and Safety Code, is amended to read as follows:

(2)ii"Affected county" includes:

(A)iiBastrop County;

(B)iiBexar County;

(C)iiCaldwell County;

(D)iiComal County;

(E)iiEllis County;

(F)iiGregg County;

(G)iiGuadalupe County;

(H)iiHarrison County;

(I)iiHays County;

(J)iiHenderson County;

(K)iiHood County;

(L)iiHunt County;

(M) Johnson County;

(N) [(K)] Kaufman County;

(O) [(L)] Nueces County;

(P) [(M)] Parker County;

(Q) [(N)] Rockwall County;

(R) [(O)] Rusk County;

(S) [(P)] San Patricio County;

(T) [(Q)] Smith County;

(U) [(R)] Travis County;

(V) [(S)] Upshur County;

(W) [(T)] Victoria County;

(X) [(U)] Williamson County; [and]

(Y) [(V)] Wilson County; and

5842 78th LEGISLATURE — REGULAR SESSION


(Z)iiany other county designated as an affected county by commission rule because of deteriorating air quality.

SECTIONi2.iiSection 386.053(d), Health and Safety Code, is amended to read as follows:

(d)iiThe commission may propose revisions to the guidelines and criteria adopted under this section as necessary to improve the ability of the plan to achieve its goals. Revisions may include, among other changes, adding additional pollutants, adding stationary engines or engines used in stationary applications, adding vehicles and equipment that use fuels other than diesel, or adjusting eligible program categories, as appropriate, to ensure that incentives established under this chapter achieve the maximum possible emissions reductions. The commission shall make a proposed revision available to the public before the 45th day preceding the date of final adoption of the revision and shall hold at least one public meeting to consider public comments on the proposed revision before final adoption.

SECTIONi3.iiSections 386.101(6) and (9), Health and Safety Code, are amended to read as follows:

(6)ii"On-road diesel" means an on-road diesel-powered motor vehicle that has a gross vehicle weight rating of 8,500 [10,000] pounds or more.

(9)ii"Repower" means to replace an old engine powering an on-road or non-road diesel with a new engine, a used engine, a remanufactured engine, or electric motors, drives, or fuel cells[:

[(A) a new engine that emits at least 30 percent less than the oxides of nitrogen emissions standard required by federal regulation for the current model year for that engine;

[(B) an engine manufactured later than 1987 that emits at least 30 percent less than the oxides of nitrogen emissions standard emitted by a new engine certified to the baseline oxides of nitrogen emissions standard for that engine;

[(C) an engine manufactured before 1988 that emits not more than 50 percent of the oxides of nitrogen emissions standard emitted by a new engine certified to the baseline oxides of nitrogen emissions standard for that engine; or

[(D) electric motors, drives, or fuel cells].

SECTIONi4.iiSection 386.102(b), Health and Safety Code, is amended to read as follows:

(b)iiProjects that may be considered for a grant under the program include:

(1)iipurchase or lease of on-road or non-road diesels;

(2)iiemissions-reducing retrofit projects for on-road or non-road diesels;

(3)iiemissions-reducing repower projects for on-road or non-road diesels;

(4)iipurchase and use of emissions-reducing add-on equipment for on-road or non-road diesels;

(5)iidevelopment and demonstration of practical, low-emissions retrofit technologies, repower options, and advanced technologies for on-road or non-road diesels with lower emissions of oxides of nitrogen;

(6)iiuse of qualifying fuel; [and]

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5843


(7)iiimplementation of infrastructure projects; and

(8)iireplacement of on-road or non-road diesels with newer on-road or non-road diesels.

SECTIONi5.iiSection 386.103(a), Health and Safety Code, is amended to read as follows:

(a)iiAny person as defined by Section 382.003 that owns one or more on-road or non-road diesels that operate primarily within a nonattainment area or affected county of this state or that otherwise contributes to the state inventory of emissions of oxides of nitrogen may apply for a grant under the program. The commission may adopt guidelines to allow a person other than the owner to apply for and receive a grant in order to improve the ability of the program to achieve its goals.

SECTIONi6.iiSection 386.104(f), Health and Safety Code, is amended to read as follows:

(f)iiA proposed retrofit, repower, replacement, or add-on equipment project must document, in a manner acceptable to the commission, a reduction in emissions of oxides of nitrogen of at least 30 percent compared with the baseline emissions adopted by the commission for the relevant engine year and application. After study of available emissions reduction technologies, after public notice and comment, and after consultation with the advisory board, the commission may revise the minimum percentage reduction in emissions of oxides of nitrogen required by this subsection to improve the ability of the program to achieve its goals.

SECTIONi7.iiSection 386.105, Health and Safety Code, is amended by adding Subsection (e) to read as follows:

(e)iiThe commission may allow for the apportionment of credits associated with a project between the plan and another program or entity if the part of the credit assigned to the program that is part of the plan still meets any applicable cost-effectiveness criteria.

SECTIONi8.iiSection 386.106(a), Health and Safety Code, is amended to read as follows:

(a)iiExcept as provided by Section 386.107 and except for infrastructure projects and infrastructure purchases that are part of a broader retrofit, repower, replacement, or add-on equipment project, the commission may not award a grant for a proposed project the cost-effectiveness of which, calculated in accordance with Section 386.105 and criteria developed under that section, exceeds $13,000 per ton of oxides of nitrogen emissions reduced in the nonattainment area or affected county for which the project is proposed. This subsection does not restrict commission authority under other law to require emissions reductions with a cost-effectiveness that exceeds $13,000 per ton.

SECTIONi9.iiSection 386.112(b), Health and Safety Code, is amended to read as follows:

(b)iiThe program shall authorize statewide incentives for the reimbursement of incremental costs for the purchase or lease, according to the schedule provided by Section 386.113, of new on-road diesels that are certified by the United States Environmental Protection Agency or the California Air Resources Board to an

5844 78th LEGISLATURE — REGULAR SESSION


emissions standard provided by Section 386.113 if the purchaser or lessee of the on-road diesel agrees to register the vehicle in this state and to operate the on-road diesel in this state for not less than 75 percent of the on-road diesel's annual mileage.

SECTIONi10.iiSubchapter C, Chapter 386, Health and Safety Code, is amended by adding Sections 386.115 and 386.116 to read as follows:

Sec.i386.115.iiMODIFICATION OF VEHICLE ELIGIBILITY. After evaluating the availability of vehicles meeting the emissions standards and after public notice and comment, the commission, in consultation with the advisory board, may expand the program to include other on-road vehicles, regardless of fuel type used, that meet the emissions standards, have a gross vehicle weight rating of greater than 8,500 pounds, and are purchased or leased in lieu of a new on-road diesel.

Sec.i386.116.iiSMALL BUSINESS INCENTIVES. (a) In this section, "small business" means a business owned by a person who:

(1)iiowns and operates not more than two vehicles, one of which is:

(A)iian on-road diesel with a pre-1994 engine model; or

(B)iia non-road diesel with an engine with uncontrolled emissions; and

(2)iihas owned the vehicle described by Subdivision (1)(A) or (B) for more than one year.

(b)iiThe commission by rule shall develop a method of providing fast and simple access to grants under this subchapter for a small business.

(c)iiThe commission shall publicize and promote the availability of grants under this section to encourage the use of vehicles that produce fewer emissions.

(d)iiOn or before December 1 of each even-numbered year, the commission shall report commission actions and results under this section to the governor, lieutenant governor, and speaker of the house of representatives.

SECTIONi11.iiSection 386.202(b), Health and Safety Code, is amended to read as follows:

(b)iiPrograms approved under this subchapter and other energy efficiency programs administered by the utility commission must include energy conservation programs for the retirement of materials and appliances that contribute to energy consumption or peak energy demand to ensure the reduction of energy consumption, energy demand, or peak loads, and associated emissions of air contaminants.

SECTIONi12.iiSection 386.252, Health and Safety Code, is amended to read as follows:

Sec.i386.252.iiUSE OF FUND. (a) Money in the fund may be used only to implement and administer programs established under the plan and shall be allocated as follows:

(1)iifor the diesel emissions reduction incentive program, 87.5 [72] percent of the money in the fund, of which not more than [three percent may be used for infrastructure projects and not more than] 10 percent may be used for on-road diesel purchase or lease incentives;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5845


(2)ii[for the motor vehicle purchase or lease incentive program, 15 percent of the money in the fund;

[(3) for the energy efficiency grant program, 7.5 percent of the money in the fund;

[(4)] for the new technology research and development program, 9.5 [7.5] percent of the money in the fund, of which up to $250,000 is allocated for administration, up to $200,000 is allocated for a health effects study, [and] $500,000 is to be deposited in the state treasury to the credit of the clean air account created under Section 382.0622 to supplement funding for air quality planning activities in affected counties, and not less than 20 percent is to be allocated each year to support research related to air quality for the Houston-Galveston-Brazoria and Dallas-Fort Worth nonattainment areas by a nonprofit organization based in Houston; [and]

(3) [(5)] for administrative costs incurred by [the utility commission,] the commission[, the comptroller,] and the laboratory, three percent.

(b)iiUp to 25 [15] percent of the money allocated under Subsection (a) to a particular program and not expended under that program by January [March] 1 of the second fiscal year of a fiscal biennium may be used for another program under the plan as determined by the commission in consultation with the advisory board.

SECTIONi13.iiSection 387.003(b), Health and Safety Code, is amended to read as follows:

(b)iiUnder the program, the Texas Council on Environmental Technology shall provide grants to be used to support development of emissions-reducing technologies that may be used for projects eligible for awards under Chapter 386 and other new technologies that show promise for commercialization. The primary objective of this chapter is to promote the development of commercialization technologies that will support projects that may be funded under Chapter 386 and this chapter, including advanced technologies such as fuel cells, catalysts, and fuel additives.

SECTIONi14.iiSection 387.006(a), Health and Safety Code, is amended to read as follows:

(a)iiAn application for a technology grant under this chapter must show clear and compelling evidence that:

(1)iithe proposed technology project has a strong commercialization plan and organization; and

(2)iithe technology proposed for funding:

(A)iiis likely to be offered for commercial sale in this state as soon as practicable but no later than [within] five years after the date of the application for funding; and

(B)iionce commercialized, will offer opportunities for projects eligible for funding under Chapter 386.

SECTIONi15.iiSection 388.003, Health and Safety Code, is amended by adding Subsection (i) to read as follows:

5846 78th LEGISLATURE — REGULAR SESSION


(i)iiA building certified by a national, state, or local accredited energy efficiency program and determined by the laboratory to be in compliance with the energy efficiency requirements of this section may, at the option of the municipality, be considered in compliance. The United States Environmental Protection Agency's Energy Star Program certification of energy code equivalency shall be considered in compliance.

SECTIONi16.iiSection 388.004, Health and Safety Code, is amended to read as follows:

Sec.i388.004.iiENFORCEMENT OF ENERGY STANDARDS OUTSIDE OF MUNICIPALITY. (a) For construction outside of the local jurisdiction of a municipality:

(1)iia building certified by a national, state, or local accredited energy efficiency program shall be considered in compliance;

(2)iia building with inspections from private code-certified inspectors using the energy efficiency chapter of the International Residential Code or International Energy Conservation Code shall be considered in compliance; and

(3)iia builder who does not have access to either of the above methods for a building shall certify compliance using a form provided by the laboratory, enumerating the code-compliance features of the building.

(b)iiA builder shall retain until the third anniversary of the date on which compliance is achieved the original copy of any documentation that establishes compliance under this section. The builder on receipt of any compliance documentation shall provide a copy to the owner of the building.

(c)iiA single-family residence built in the unincorporated area of a county the construction of which was completed on or after September 1, 2001, but not later than August 31, 2002, shall be considered in compliance.

SECTIONi17.iiChapter 388, Health and Safety Code, is amended by adding Sections 388.009 and 388.010 to read as follows:

Sec.i388.009.iiENERGY-EFFICIENT BUILDING PROGRAM. (a) In this section, "National Housing Act" means Section 203(b), (i), or (k) of the National Housing Act (12 U.S.C. Sections 1709(b), (i), and (k)), as amended.

(b)iiThe General Land Office, in consultation with the laboratory, the commission, and an advisory committee appointed by the General Land Office, may develop an energy-efficient building accreditation program for buildings that exceed the building energy performance standards under Section 388.003 by 15 percent or more.

(c)iiIf the General Land Office adopts a program under this section, the General Land Office, in consultation with the laboratory, shall update the program on or before December 1 of each even-numbered year using the best available energy-efficient building practices.

(d)iiIf the General Land Office adopts a program under this section, the program shall use a checklist system to produce an energy-efficient building scorecard to help:

(1)iihome buyers compare potential homes and, by providing a copy of the completed scorecard to a mortgage lender, qualify for energy-efficient mortgages under the National Housing Act; and

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(2)iicommunities qualify for emissions reduction credits by adopting codes that meet or exceed the energy-efficient building or energy performance standards established under this chapter.

(e)iiThe General Land Office may establish a public information program to inform homeowners, sellers, buyers, and others regarding energy-efficient building ratings.

(f)iiIf the General Land Office adopts a program under this section, the laboratory shall establish a system to measure the reduction in energy and emissions produced under the energy-efficient building program and report those savings to the commission.

Sec.i388.010.iiOUTREACH TO NEAR-NONATTAINMENT AREAS. The commission shall conduct outreach to near-nonattainment areas and affected counties on the benefits of implementing energy efficiency initiatives, including the promotion of energy-efficient building programs and urban heat island mitigation techniques, as a way to meet air quality attainment goals under the federal Clean Air Act (42 U.S.C. Section 7401 et seq.), as amended.

SECTIONi18.iiChapter 389, Health and Safety Code, is amended by adding Section 389.003 to read as follows:

Sec.i389.003.iiCOMPUTING ENERGY EFFICIENCY EMISSIONS REDUCTIONS. The commission shall develop a method to use in computing emissions reductions obtained through energy efficiency initiatives.

SECTIONi19.iiSubchapter H, Chapter 2155, Government Code, is amended by adding Section 2155.451 to read as follows:

Sec.i2155.451.iiVENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) This section applies only to a contract to be performed, wholly or partly, in an affected county, as that term is defined by Section 386.001, Health and Safety Code.

(b)iiThe commission and state agencies procuring goods or services may:

(1)iigive preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality; or

(2)iirequire that a vendor demonstrate that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality.

(c)iiThe preference may be given only if the cost to the state for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards.

SECTIONi20.iiSubchapter Z, Chapter 271, Local Government Code, is amended by adding Section 271.907 to read as follows:

Sec.i271.907.iiVENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) In this section, "governmental agency" has the meaning assigned by Section 271.003.

(b)iiThis section applies only to a contract to be performed, wholly or partly, in an affected county, as that term is defined by Section 386.001, Health and Safety Code.

(c)iiA governmental agency procuring goods or services may:

5848 78th LEGISLATURE — REGULAR SESSION


(1)iigive preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality; or

(2)iirequire that a vendor demonstrate that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality.

(d)iiThe preference may be given only if the cost to the governmental agency for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards.

SECTIONi21.iiSection 151.0515, Tax Code, is amended by amending Subsections (a), (b), and (c) and adding Subsection (b-1) to read as follows:

(a)iiIn this section, "equipment" includes all off-road, heavy-duty diesel equipment [classified as construction equipment], other than implements of husbandry used solely for agricultural purposes, including:

(1)iipavers;

(2)iitampers/rammers;

(3)iiplate compactors;

(4)iiconcrete pavers;

(5)iirollers;

(6)iiscrapers;

(7)iipaving equipment;

(8)iisurface equipment;

(9)iisignal boards/light plants;

(10)iitrenchers;

(11)iibore/drill rigs;

(12)iiexcavators;

(13)iiconcrete/industrial saws;

(14)iicement and mortar mixers;

(15)iicranes;

(16)iigraders;

(17)iioff-highway trucks;

(18)iicrushing/processing equipment;

(19)iirough terrain forklifts;

(20)iirubber tire loaders;

(21)iirubber tire tractors/dozers;

(22)iitractors/loaders/backhoes;

(23)iicrawler tractors/dozers;

(24)iiskid steer loaders;

(25)iioff-highway tractors; [and]

(26)iiDumpsters/tenders; and

(27)iimining equipment.

(b)iiIn each county in this state, a surcharge is imposed on the retail sale, lease, or rental of new or used equipment in an amount equal to two [one] percent of the sale price or the lease or rental amount.

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5849


(b-1) In each county in this state, a surcharge is imposed on the storage, use, or other consumption in this state of new or used equipment. The surcharge is at the same percentage rate as is provided by Subsection (b) on the sales price or the lease or rental amount of the equipment.

(c)iiThe surcharge shall be collected at the same time and in the same manner and shall be administered and enforced in the same manner as the tax imposed under this chapter [subchapter]. The comptroller shall adopt any additional procedures needed for the collection, administration, and enforcement of the surcharge authorized by this section and shall deposit all remitted surcharges to the credit of the Texas emissions reduction plan fund.

SECTIONi22.iiSection 152.0215(a), Tax Code, is amended to read as follows:

(a)iiA surcharge is imposed on every retail sale, [or] lease, or use of every on-road diesel motor vehicle that is over 14,000 pounds [and is of a model year 1996 or earlier] and that is sold, [or] leased, or used in this state. The amount of the surcharge for a vehicle of a model year 1996 or earlier is 2.5 percent of the total consideration and for a vehicle of a model year 1997 or later, one percent of the total consideration.

SECTIONi23.iiSection 224.153, Transportation Code, is amended by adding Subsection (d) to read as follows:

(d)iiThe department may not authorize vehicles addressed in Subsection (c) to use a high occupancy vehicle lane if such use would violate federal transit or highway funding restrictions.

SECTIONi24.iiSections 501.138(a) and (b), Transportation Code, are amended to read as follows:

(a)iiAn applicant for a certificate of title, other than the state or a political subdivision of the state, must pay the county assessor-collector a fee of:

(1)ii$33 if the applicant's residence is a county located within a nonattainment area as defined under Section 107(d) of the federal Clean Air Act (42 U.S.C. Section 7407), as amended, or is an affected county, as defined by Section 386.001, Health and Safety Code;

(2)ii$28 if the applicant's residence is any other county; or

(3)iion or after September 1, 2008, $28 regardless of the county in which the applicant resides [$13].

(b)iiThe county assessor-collector shall send:

(1)ii$5 of the fee to the county treasurer for deposit in the officers' salary fund; [and]

(2)ii$8 of the fee to the department:

(A)iitogether with the application within the time prescribed by Section 501.023; or

(B)iiif the fee is deposited in an interest-bearing account or certificate in the county depository or invested in an investment authorized by Subchapter A, Chapter 2256, Government Code, not later than the 35th day after the date on which the fee is received; and

(3)iithe following amount to the comptroller at the time and in the manner prescribed by the comptroller:

5850 78th LEGISLATURE — REGULAR SESSION


(A)ii$20 of the fee if the applicant's residence is a county located within a nonattainment area as defined under Section 107(d) of the federal Clean Air Act (42 U.S.C. Section 7407), as amended, or is an affected county, as defined by Section 386.001, Health and Safety Code;

(B)ii$15 of the fee if the applicant's residence is any other county; or

(C)iiFees collected under this subsection to be sent to the comptroller shall be deposited as follows:

(i)iibefore September 1, 2008, to the credit of the Texas emissions reduction fund; and

(ii)iiafter September 1, 2008, to the credit of the Texas Mobility Fund.

SECTIONi25.iiSection 545.353, Transportation Code, is amended by adding Subsection (j) to read as follows:

(j)iiThe commission may not determine or declare, or agree to determine or declare, a prima facie speed limit for environmental purposes on a part of the highway system.

SECTIONi26.iiSections 386.157 and 386.159, Health and Safety Code, are repealed.

SECTIONi27.ii(a) Except as provided by Subsection (b) of this section, this Act takes effect immediately 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, 2003.

(b)iiSections 21 and 22 of this Act take effect on the first day of the first month beginning on or after the earliest date on which this Act may take effect 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 effect before September 1, 2003, Sections 21 and 22 of this Act take effect September 1, 2003. The comptroller of public accounts may adopt emergency rules for the implementation of Sections 21 and 22 of this Act.

(c)iiThe change in law made by Section 25 of this Act does not affect speed limits that have been approved by the Texas Transportation Commission before the effective date of this Act.

Representative Bonnen moved to adopt the conference committee report on HBi1365.

A record vote was requested.

The motion prevailed by (Record 930): 132 Yeas, 11 Nays, 4 Present, not voting.

Yeas — Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Escobar; Farabee;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5851


Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hupp; Isett; Jones, J.; Keel; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Nixon; Oliveira; Paxton; Peña; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Seaman; Smith, T.; Smith, W.; Solis; Solomons; Stick; Swinford; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Nays — Dukes; Hodge; Jones, D.; Laney; Merritt; Noriega; Olivo; Phillips; Rose; Smithee; Telford.

Present, not voting — Mr. Speaker; Hunter; Keffer, B.(C); Talton.

Absent — Giddings; Jones, E.; Naishtat.

STATEMENTS OF VOTE

I was shown voting yes on Record No. 930. I intended to vote no.

Menendez

I was shown voting yes on Record No. 930. I intended to vote no.

Pickett

I was shown voting yes on Record No. 930. I intended to vote no.

Reyna

HR 1865 - ADOPTED
(by Edwards)

Representative Lewis moved to suspend all necessary rules to take up and consider at this time HRi1865.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 1865, Recognizing the importance of Juneteenth.

HR 1865 was adopted without objection.

On motion of Representative Giddings, the names of all the members of the house were added to HRi1865 as signers thereof.

HB 2020 - 24 HOUR LAYOUT RULE SUSPENDED

Representative Farabee moved to suspend Rule 13, Section 10 of the house rules to consider the conference committee report on HBi2020 which was ineligible for consideration at this time.

The motion prevailed.

5852 78th LEGISLATURE — REGULAR SESSION


HB 2020 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative Farabee submitted the following conference committee report on HB 2020 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2020 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Duncan Farabee
Estes West
Bivins B. Keffer
Armbrister
On the part of the senate On the part of the house

HB 2020, A bill to be entitled An Act relating to financial security requirements for certain persons performing operations within the jurisdiction of the Railroad Commission of Texas.

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

SECTIONi1.iiSection 91.104(b), Natural Resources Code, is amended to read as follow:

(b)iiA person required to file a bond or alternate form of financial security under Section 91.103 may choose to file:

(1)iian individual bond as provided under Section 91.1041;

(2)iia blanket bond as provided under Section 91.1042;

(3)iia letter of credit or cash deposit in the same amount as required for an individual bond under Section 91.1041 or a blanket bond under Section 91.1042; or

(4)iia nonrefundable annual fee [of $1,000, if:

[(A)iithe commission determines that individual and blanket bonds as specified by Subdivisions (1) and (2) are not obtainable at reasonable prices; and

[(B)iithe person can demonstrate to the commission an acceptable record of compliance with all commission rules, orders, licenses, permits, or certificates that relate to safety or the prevention or control of pollution for the previous 48 months and the person and, if a firm, partnership, joint stock association, corporation, or other organization, its officers, directors, general partners, or owners of more than 25 percent ownership interest or any trustee:

[(i)iihas no outstanding violations of such commission rules, orders, licenses, permits, or certificates;

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5853


[(ii)iihas paid all administrative, civil, and criminal penalties, if any, relating to any violation of such commission rules, orders, licenses, permits, or certificates; and

[(iii)iihas paid all reimbursements of any costs and expenses incurred by the commission in relation to any violation of such commission rules, orders, licenses, permits, or certificates; or

[(5)iia nonrefundable annual fee] equal to 10 [12 1/2] percent of the bond that otherwise would be required.

SECTIONi2.iiSection 91.1042, Natural Resources Code, is amended to read as follows:

Sec.i91.1042.iiBLANKET BOND. (a)iiA person required to file a bond or alternate form of financial security under Section 91.103 who operates wells may file a blanket bond to cover all wells and operations for which a bond or alternate form of financial security is required as follows:

(1)iia person who operates at least one well but not more than 10 wells [10 or fewer wells or performs other operations] shall file a $15,000 [$25,000] blanket bond;

(2)iia person who operates more than 10 but fewer than 25 [100] wells shall file a $35,000 [$50,000] blanket bond; [and]

(3)iia person who operates 25 [100] or more wells but fewer than 100 wells shall file a $50,000 [$250,000] blanket bond;

(4)iia person who operates 100 or more wells but fewer than 150 wells shall file a $100,000 blanket bond;

(5)iia person who operates 150 or more wells but fewer than 200 wells shall file a $175,000 blanket bond; and

(6)iia person who operates 200 or more wells shall file a $250,000 blanket bond.

(b)iiNotwithstanding Subsection (a), the commission by rule shall set the amount of the bond for an operator of bay or offshore wells at a reasonable amount that exceeds the amount provided by Subsection (a)(1), (2), [or] (3), (4), (5), or (6), as applicable.

SECTIONi3.iiEffective June 1, 2005, Section 91.1042(a), Natural Resources Code, is amended to read as follows:

(a)iiA person required to file a bond, letter of credit, or cash deposit [or alternate form of financial security] under Section 91.103 who operates wells may file a blanket bond to cover all wells and operations for which a bond, letter of credit, or cash deposit [or alternate form of financial security] is required as follows:

(1)iia person who operates at least one well but not more than 10 wells [10 or fewer wells or performs other operations] shall file a $15,000 [$25,000] blanket bond;

(2)iia person who operates more than 10 but fewer than 25 [100] wells shall file a $35,000 [$50,000] blanket bond; [and]

(3)iia person who operates 25 [100] or more wells but fewer than 100 wells shall file a $50,000 [$250,000] blanket bond;

5854 78th LEGISLATURE — REGULAR SESSION


(4)iia person who operates 100 or more wells but fewer than 150 wells shall file a $100,000 blanket bond;

(5)iia person who operates 150 or more wells but fewer than 200 wells shall file a $175,000 blanket bond; and

(6)iia person who operates 200 or more wells shall file a $250,000 blanket bond.

SECTIONi4.iiSection 24, Chapter 1233, Acts of the 77th Legislature, Regular Session, 2001, is repealed.

SECTIONi5.iiThe changes in law made by this Act apply only to a person required to file a bond or alternate form of financial security under Section 91.103, Natural Resources Code, on or after the effective date of this Act. A person required to file a bond or alternate form of financial security under Section 91.103, Natural Resources Code, before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTIONi6.iiThis Act takes effect September 1, 2003.

Representative Farabee moved to adopt the conference committee report on HBi2020.

The motion prevailed.

HR 1868 - NOTICE OF INTRODUCTION

Pursuant to the provisions of Rule 13, Section 9(f) of the House Rules, the chair announced the introduction of HRi1868, suspending the limitations on the conferees for SBi463.

HB 2424 - 24 HOUR LAYOUT RULE SUSPENDED

Representative McCall moved to suspend Rule 13, Section 10 of the house rules to consider the conference committee report on HBi2424 which was ineligible for consideration at this time.

The motion prevailed.

HR 1860 - ADOPTED
(by McCall)

The following privileged resolution was laid before the house:

HR 1860

BE IT RESOLVED, by the House of Representatives of the State of Texas, 78th Legislature, Regular Session, 2003, That House Rule 13, Section 9(a), be suspended in part as provided by House Rule 13, Section 9(f), to enable the conference committee appointed to resolve the differences on HB 2424, relating to technical changes to taxes and fees administered by the comptroller and providing penalties, to consider and take action on the following matter:

(1)iiHouse Rule 13, Section 9(a)(2), is suspended to permit the committee to omit text that amends Sections 153.013(a), 153.117, 153.120, 153.205 as amended by Chapters 1263 and 1444, Acts of the 77th Legislature, Regular

Sunday, June 1, 2003 HOUSE JOURNAL — 84th Day 5855


Session, 2001, 153.208(d), 153.219(c), 153.222(a), 153.223, and 153.403, Tax Code, to impose certain administrative requirements on certain users and suppliers of motor fuels.

Explanation:iiThis omission is necessary to conform to the repeal of Chapter 153, Tax Code, and the adoption of new Chapter 162, Tax Code, by HB 2458, Acts of the 78th Legislature, Regular Session, 2003.

(2)iiHouse Rule 13, Section 9(a)(4), is suspended to permit the committee to add Section 105 to the bill to read as follows:

SECTIONi105.iiContingent on HB 2458, Acts of the 78th Legislature, Regular Session, 2003, being enacted and becoming law, and effective January 1, 2004, Sections 162.405(a) and (d), Tax Code, are amended to read as follows:

(a)iiAn offense under Section 162.403(1), (2), (3), (4), (5), (6), [(7),] or (8) is a Class C misdemeanor.

(d)iiAn offense under Section 162.403(7), (22), (23), (24), (25), (26), (27), (28), or (29) is a felony of the third degree.

Explanation:iiThis addition is necessary to ensure that an offense under Section 162.403(7), Tax Code, as added by HB 2458, Acts of the 78th Legislature, Regular Session, 2003, is classified in accordance with the severity of the offense.

(3)iiHouse Rule 13, Section 9(a)(4), is suspended to permit the committee to add Section 107 to the bill to read as follows:

SECTIONi107.ii(a) Section 141.008(a-1), Local Government Code, as added by HB 2425, Acts of the 78th Legislature, Regular Session, 2003, is repealed.

(b)iiIf HB 2425, Acts of the 78th Legislature, Regular Session, 2003, does not become law, this section has no effect.

Explanation:iiThis addition is necessary to eliminate a requirement that municipalities make certain payroll deductions for municipal employees.

(Hopson in the chair)

HR 1860 was adopted.

HB 2424 - ADOPTION OF CONFERENCE COMMITTEE REPORT

Representative McCall submitted the following conference committee report on HB 2424 :

Austin, Texas, May 31, 2003

The Honorable David Dewhurst

President of the Senate

The Honorable Tom Craddick

Speaker of the House of Representatives

Sirs: We, your conference committee, appointed to adjust the differences between the senate and the house of representatives on HBi2424 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.

Armbrister McCall

5856 78th LEGISLATURE — REGULAR SESSION


Staples Paxton
Ellis, Rodney Ritter
Brimer Pitts
Bivins
On the part of the senate On the part of the house

HB 2424, A bill to be entitled An Act relating to technical changes to taxes and fees administered by the comptroller; providing penalties.

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

SECTIONi1.iiSection 161.122, Health and Safety Code, is amended by adding Subsection (f) to read as follows:

(f)iiA person commits an offense if the person places or authorizes the placement of a sign in violation of this section. An offense under this subsection is a Class C misdemeanor.

SECTIONi2.iiArticle 1.16(b), Insurance Code, is amended to read as follows:

(b)iiAssessments for the expenses of such domestic examination which shall be sufficient to meet all the expenses and disbursements necessary to comply with the provisions of the laws of Texas relating to the examination of insurance companies and to comply with the provisions of this Article and Articles 1.17 and 1.18 of this Code, shall be made by the State Board of Insurance upon the corporations or associations to be examined taking into consideration annual premium receipts, and/or admitted assets that are not attributable to 90 percent of pension plan contracts as defined in Section 818(a) of the Internal Revenue Code of 1986 (26 U.S.C. Section 818(a)), and/or insurance in force; provided such assessments shall be made and collected as follows: (1) expenses attributable directly to a specific examination including employees' salaries and expenses and expenses provided by Article 1.28 of this Code shall be collected at the time of examination; (2) assessments calculated annually for each corporation or association which take into consideration annual premium receipts, and/or admitted assets that are not attributable to 90 percent of pension plan contracts as defined in Section 818(a) of the Internal Revenue Code of 1986 (26 U.S.C. Section 818(a)), and/or insurance in force shall be assessed annually for each such corporation or association. In computing the assessments, the board may not consider insurance premiums for insurance contracted for by a state or federal governmental entity to provide welfare benefits to designated welfare recipients or contracted for in accordance with or in furtherance of Title 2, Human Resources Code, or the federal Social Security Act (42 U.S.C. Section 301 et seq.). The amount of all examination and evaluation fees [the assessments] paid in each taxable year to [or for the use of] the State of Texas by an [any] insurance carrier [corporation or association hereby affected] shall be allowed as a credit on the amount of premium taxes due under this article [to be paid by any such insurance corporation or association for such taxable year except as provided by Article 1.28 of this Code]. The limitations provided by Sections 803.007(1) and (2)(B) of this code for domestic insurance companies apply to foreign insurance companies.

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SECTIONi3.iiSection 1, Article 4.10, Insurance Code, is amended to read as follows:

Sec.i1.iiPAYMENT OF TAX. Every insurance carrier, including Lloyd's and reciprocal or interinsurance exchanges and any other organization or concern receiving gross premiums from the business of fire, marine, marine inland, accident, credit, livestock, fidelity, guaranty, surety, casualty, workers' compensation, employers' liability, or any other kind or character of insurance, except title insurance and except as provided in Sections 2, 3, and 4 of this article, shall pay to the comptroller a tax upon such gross premium receipts as provided in this article. Any such insurance carrier doing other kinds of insurance business shall pay the tax levied upon its gross premiums received from such other kinds of business as provided in Articles 4.03 and 4.11 of this code.

SECTIONi4.iiSection 13, Article 4.10, Insurance Code, is amended to read as follows:

Sec.i13.iiEXAMINATION AND EVALUATION FEE CREDITS. The amount of all examination and evaluation fees paid in each taxable year to [or for the use of] the State of Texas by an insurance carrier shall be allowed as a credit on the amount of premium taxes due under this article [except as provided by Article 1.28 of this code]. The limitations provided by Sections 803.007(1) and (2)(B) of this code for domestic insurance companies apply to foreign insurance companies. Any credit allowed by the provisions of this section is in addition to any other credits allowable by statute.

SECTIONi5.iiSection 8, Article 4.11, Insurance Code, is amended to read as follows:

Sec.i8.iiEXAMINATION AND EVALUATION [VALUATION] FEES ALLOWED AS CREDITS. The amount of all examination and evaluation [valuation] fees paid in [during] each taxable [tax] year to [or for the use of] the State of Texas by an insurance carrier shall be allowed as a credit on the amount of premium taxes due under this article [except as provided by Article 1.28 of this code]. The limitations provided by Sections 803.007(1) and (2)(B) of this code for domestic insurance companies apply to foreign insurance companies. Any credit allowed by the provisions of this section is in addition to any other credits allowable by statute.

SECTIONi6.iiArticle 4.17(a), Insurance Code, is amended to read as follows:

(a)iiThe commissioner shall annually determine the rate of assessment of a maintenance tax to be paid on an annual, semiannual, or other periodic basis, as determined by the comptroller. The rate of assessment may not exceed .04 percent of the correctly reported gross premiums of life, health, and accident insurance coverages and the gross considerations for annuity and endowment contracts collected by all authorized insurers writing life, health, and accident insurance, annuity, or endowment contracts in this state. The comptroller shall collect the maintenance tax. For purposes of this article, the gross premiums on which an assessment is based may not include:

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(1)iipremiums received from this state or the United States for insurance contracted for by this state or the United States for the purpose of providing welfare benefits to designated welfare recipients or for insurance contracted for by this state or the United States in accordance with or in furtherance of Title 2, Human Resources Code, or the federal Social Security Act (42 U.S.C. Section 301 et seq.); or

(2)iipremiums paid on group health, accident, and life policies in which the group covered by the policy consists of a single nonprofit trust established to provide coverage primarily for employees of:

(A)iia municipality, county, or hospital district in this state; or

(B)iia county or municipal hospital, without regard to whether the employees are employees of the county or municipality or of an entity operating the hospital on behalf of the county or municipality.

SECTIONi7.iiSection 7, Article 9.59, Insurance Code, is amended to read as follows:

Sec.i7.iiEXAMINATION AND EVALUATION FEE CREDITS. The amount of all examination and evaluation fees paid in each taxable year to [or for the use of] the State of Texas by a title insurance company shall be allowed as a credit on the amount of premium taxes due under this article [except as provided by Article 1.28 of this code]. The limitations provided by Sections 803.007(1) and (2)(B) of this code for domestic insurance companies apply to foreign insurance companies. Any credit allowed by this section is in addition to any other credits allowed by law.

SECTIONi8.iiArticle 20A.33(d), Insurance Code, is amended to read as follows:

(d)iiThe commissioner shall annually determine the rate of assessment of a per capita maintenance tax to be paid on an annual or semiannual basis, on the correctly reported gross revenues for the issuance of health maintenance certificates or contracts collected by all authorized health maintenance organizations issuing such coverages in this state. The rate of assessment may not exceed $2 for each enrollee. The rate of assessment may differ between basic health care plans, limited health care service plans, and single health care service plans and shall equitably reflect any differences in regulatory resources attributable to each type of plan. The comptroller shall collect the maintenance tax. For purposes of this section, the amount of maintenance tax assessed may not be computed on:

(1)iienrollees who as individual certificate holders or their dependents are covered by a master group policy paid for by revenues received from this state or the United States for insurance contracted for by this state or the United States for the purpose of providing welfare benefits to designated welfare recipients or for insurance contracted for by this state or the United States in accordance with or in furtherance of Title 2, Human Resources Code, or the federal Social Security Act (42 U.S.C. Section 301 et seq.); or

(2)iirevenues paid on group health, accident, and life certificates or contracts in which the group covered by the certificate or contract consists of a single nonprofit trust established to provide coverage primarily for employees of:

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(A)iia municipality, county, or hospital district in this state; or

(B)iia county or municipal hospital, without regard to whether the employees are employees of the county or municipality or of an entity operating the hospital on behalf of the county or municipality.

SECTIONi9.iiSection 101.053(b), Insurance Code, as effective June 1, 2003, is amended to read as follows:

(b)iiSections 101.051 and 101.052 do not apply to:

(1)iithe lawful transaction of surplus lines insurance under Chapter 981;

(2)iithe lawful transaction of reinsurance by insurers;

(3)iia transaction in this state that:

(A)iiinvolves a policy that:

(i)iiis lawfully solicited, written, and delivered outside this state; and

(ii)iicovers, at the time the policy is issued, only subjects of insurance that are not resident, located, or expressly to be performed in this state; and

(B)iitakes place after the policy is issued;

(4)iia transaction:

(A)iithat involves an insurance contract independently procured by the insured from an insurance company not authorized to do insurance business in this state through negotiations occurring entirely outside this state;

(B)iithat is reported; and

(C)iion which premium tax is paid in accordance with this chapter;

(5)iia transaction in this state that:

(A)iiinvolves group life, health, or accident insurance, other than credit insurance, and group annuities in which the master policy for the group was lawfully issued and delivered in a state in which the insurer or person was authorized to do insurance business; and

(B)iiis authorized by a statute of this state;

(6)iian activity in this state by or on the sole behalf of a nonadmitted captive insurance company that insures solely:

(A)iidirectors' and officers' liability insurance for the directors and officers of the company's parent and affiliated companies;

(B)iithe risks of the company's parent and affiliated companies; or

(C)iiboth the individuals and entities described by Paragraphs (A) and (B);

(7)iithe issuance of a qualified charitable gift annuity under Chapter 102; or

(8)iia lawful transaction by a servicing company of the Texas workers' compensation employers' rejected risk fund under Section 4.08, Article 5.76-2, as that article existed before its repeal.

SECTIONii9A.iiSubchapter L, Chapter 843, Insurance Code, is amended to read as follows:

Sec.i843.409.iiEXAMINATION EXPENSES.ii(a)iiA credit against the amount of premium taxes to be paid by a health maintenance organization in a taxable year may not be allowed on:

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(1)iian examination fee or expense paid to another state; or

(2)iian examination expense:

(A)iidirectly attributable to an examination of the books, records, accounts, or principal offices of a health maintenance organization located outside this state; or

(B)iipaid in a different taxable year.

(b)iiThe limitations provided by Subsections (a)(1) and (a)(2)(B) apply to foreign health maintenance organizations.

SECTIONi10.iiSection 912.002(b), Insurance Code, as effective June 1, 2003, is amended to read as follows:

(b)iiA county mutual insurance company is subject to:

(1)iiSections 38.001 and 822.204; and

(2)iiArticles 1.15, 1.15A, 1.16, 1.35B, 2.10, 4.10, 5.12, 5.37, 5.38, 5.39, 5.40, 5.49, 21.21, and 21.49.

SECTIONi11.iiSection 376.470, Local Government Code, as added by Chapter 1433, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Subsection (d) to read as follows:

(d)iiChapter 321, Tax Code, applies to the imposition, computation, administration, enforcement, and collection of the sales and use tax imposed by this section except to the extent it is inconsistent with this chapter.

SECTIONi12.iiSection 2153.153(a), Occupations Code, is amended to read as follows:

(a)iiA license applicant must file with the comptroller a license application that:

(1)iicontains a complete statement about the ownership of the business that is the subject of the application, including:

(A)iithe nature of the business entity; and

(B)iiexcept as provided by Subsection (b), the name and residence address of each person who has a financial interest in the business, including the nature, type, and extent of the interest;

(2)iidesignates:

(A)iian individual, as described by Subsection (c), responsible for maintaining a record of and reporting to the comptroller information as required by Section 2153.202; and

(B)iian office located in this state where the applicant proposes to maintain the records required by this chapter, a rule adopted under this chapter, or other law;

(3)iiis accompanied by:

(A)iia written statement executed by the individual designated under Subdivision (2) that the individual accepts the responsibility described by that subdivision; and

(B)iia cashier's check, [or] money order, personal check, or other method of payment authorized by the comptroller, in an amount equal to the annual license fee under Section 2153.154;

(4)iiincludes any other relevant information required by the comptroller; and

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(5)iistates that the information contained in the application is true and correct.

SECTIONi13.iiSection 111.0046, Tax Code, is amended to read as follows:

Sec.i111.0046.ii[REFUSAL TO] PERMIT OR LICENSE. (a) The comptroller shall refuse to issue or renew any permit or license to a person who:

(1)iiis not permitted or licensed as required by law for a different tax or activity administered by the comptroller, except if the issuance or renewal of such license or permit is pending before the comptroller; or

(2)iiis currently delinquent in the payment of any tax collected by the comptroller.

(b)iiThe comptroller by rule may establish a minimum age for a person to be eligible to apply for a permit or license issued by the comptroller.

SECTIONi14.iiSections 111.012(a) and (g), Tax Code, are amended to read as follows:

(a)iiIf the comptroller finds that a tax imposed by this title is insecure, the comptroller may require a taxpayer [who is delinquent in the payment of the tax] to:

(1)iiprovide security for the payment of taxes; or

(2)iiestablish a tax escrow account at a bank or other financial institution.

(g)iiIf a taxpayer does not furnish security to the comptroller or establish a tax escrow account as required by the comptroller before the expiration of 10 days following the day on which notice is received, the comptroller may:

(1)iibring suit in a district court in Travis County for an order enjoining the taxpayer from engaging in business until the security is furnished or the tax escrow account is established; or

(2)iipursue any other remedies or collection actions available to the comptroller under this chapter or Chapter 113 to ensure the security is furnished or the tax escrow account is established. [Venue for a suit under this section is in Travis County.]

SECTIONi15.iiSection 113.006(b), Tax Code, is amended to read as follows:

(b)iiOne tax lien notice is sufficient to cover all taxes of any [the same] nature administered by the comptroller, including penalty and interest computed by reference to the amount of tax, that may have accrued before or after the filing of the notice.

SECTIONi16.iiSection 151.0035, Tax Code, is amended to read as follows:

Sec.i151.0035.ii"DATA PROCESSING SERVICE." "Data processing service" includes word processing, data entry, data retrieval, data search, information compilation, payroll and business accounting data production, the performance of a totalisator service with the use of computational equipment [equipment] required by the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes), and other computerized data and information storage or manipulation. "Data processing service" also includes the use of a computer or computer time for data processing whether the processing is performed by the provider of the computer or computer time or by the purchaser or other

5862 78th LEGISLATURE — REGULAR SESSION


beneficiary of the service. "Data processing service" does not include the transcription of medical dictation by a medical transcriptionist. "Data storage," as used in this section, does not include a classified advertisement, banner advertisement, vertical advertisement, or link when the item is displayed on an Internet website owned by another person.

SECTIONi17.iiSection 151.005, Tax Code, is amended to read as follows:

Sec.i151.005.ii"SALE" OR "PURCHASE." "Sale" or "purchase" means any of the following when done or performed for consideration:

(1)iia transfer of title or possession of tangible personal property;

(2)iithe exchange, barter, lease, or rental of tangible personal property;

(3)iithe performance of a taxable service, the charge for an extended warranty or service contract for the performance of a taxable service, or, in the case of an amusement service, a transfer of title to or possession of a ticket or other admission document, the collection of an admission fee, whether by individual performance, subscription series, or membership privilege, the collection of dues or a fee, charge, or assessment, including an initiation fee, by a club or organization for membership or a special privilege, status, or membership classification in the club or organization, or the use of a coin-operated machine;

(4)iithe production, fabrication, processing, printing, or imprinting of tangible personal property for consumers who directly or indirectly furnish the materials used in the production, fabrication, processing, printing, or imprinting;

(5)iithe furnishing and distribution of tangible personal property by a social club or fraternal organization to anyone;

(6)iithe furnishing, preparation, or service of food, meals, or drinks;

(7)iia transfer of the possession of tangible personal property if the title to the property is retained by the seller as security for the payment of the price; or

(8)iia transfer of the title or possession of tangible personal property that has been produced, fabricated, or printed to the special order of the customer.

SECTIONi18.iiSection 151.056, Tax Code, is amended by adding Subsection (f) to read as follows:

(f)iiA contractor is not eligible for the exemption provided by Section 151.318 on items used in the performance of a contract to improve real property.

SECTIONi19.iiSection 151.313(a), Tax Code, is amended to read as follows:

(a)iiThe following items are exempted from the taxes imposed by this chapter:

(1)iia drug or medicine, other than insulin, if prescribed or dispensed for a human or animal by a licensed practitioner of the healing arts;

(2)iiinsulin;

(3)iisubject to Subsection (c), a drug or medicine, without regard to whether it is prescribed or dispensed by a licensed practitioner of the healing arts;

(4)iia hypodermic syringe or needle;

(5)iia brace; hearing aid or audio loop; orthopedic, dental, or prosthetic device; ileostomy, colostomy, or ileal bladder appliance; or supplies or replacement parts for the listed items;

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(6)iia therapeutic appliance, device, and any related supplies specifically designed for those products, if dispensed or prescribed by a licensed practitioner of the healing arts, when those items are purchased and used by an individual for whom the items listed in this subdivision were dispensed or prescribed;

(7)iicorrective lens and necessary and related supplies, if dispensed or prescribed by an ophthalmologist or optometrist;

(8)iispecialized printing or signalling equipment used by the deaf for the purpose of enabling the deaf to communicate through the use of an ordinary telephone and all materials, paper, and printing ribbons used in that equipment;

(9)iia braille wristwatch, braille writer, braille paper and braille electronic equipment that connects to computer equipment, and the necessary adaptive devices and adaptive computer software;

(10)iieach of the following items if purchased for use by the blind to enable them to function more independently: a slate and stylus, print enlarger, light probe, magnifier, white cane, talking clock, large print terminal, talking terminal, or harness for guide dog;

(11)iihospital beds;

(12)iiblood glucose monitoring test strips;

(13)iian adjustable eating utensil used to facilitate independent eating if purchased for use by a person, including a person who is elderly or physically disabled, has had a stroke, or is a burn victim, who does not have full use or control of the person's hands or arms; [and]

(14)iisubject to Subsection (d), a dietary supplement; and

(15)iiintravenous systems, supplies, and replacement parts used in the treatment of humans.

SECTIONi20.iiSection 151.314(e), Tax Code, is amended to read as follows:

(e)iiFood products, candy, carbonated beverages, and diluted juices are exempted from the taxes imposed by this chapter if sold at an exempt sale qualifying under this subsection or if stored or used by the purchaser of the item at the exempt sale. A sale is exempted under this subsection if:

(1)iithe sale is made by a [person under 19 years old who is a] member of or volunteer for a nonprofit organization devoted to the exclusive purpose of education or religious or physical training or by a group associated with a public or private elementary or secondary school;

(2)iithe sale is made as a part of a fund-raising drive sponsored by the organization or group; and

(3)iiall net proceeds from the sale go to the organization or group for its exclusive use.

SECTIONi21.iiSection 151.319(f), Tax Code, is amended to read as follows:

(f)iiIn this section, "newspaper" means a publication that is printed on newsprint, the average sales price of which for each copy over a 30-day period does not exceed $1.50 [75 cents], and that is printed and distributed at a daily, weekly, or other short interval for the dissemination of news of a general character and of a general interest. "Newspaper" does not include a magazine,

5864 78th LEGISLATURE — REGULAR SESSION


handbill, circular, flyer, sales catalog, or similar printed item unless the printed item is printed for distribution as a part of a newspaper and is actually distributed as a part of a newspaper. For the purposes of this section, an advertisement is news of a general character and of a general interest. Notwithstanding any other provision of this subsection, "newspaper" includes:

(1)iia publication containing articles and essays of general interest by various writers and advertisements that is produced for the operator of a licensed and certified carrier of persons and distributed by the operator to its customers during their travel on the carrier; and

(2)iia publication for the dissemination of news of a general character and of a general interest that is printed on newsprint and distributed to the general public free of charge at a daily, weekly, or other short interval.

SECTIONi22.iiSection 151.323, Tax Code, is amended to read as follows:

Sec.i151.323.iiCERTAIN TELECOMMUNICATIONS SERVICES. (a) There are exempted from the taxes imposed by this chapter the receipts from the sale, use, or other consumption in this state of:

(1)iilong-distance telecommunications services that are not both originated from and billed to a telephone number or billing or service address within Texas;

(2)iiaccess to a local exchange telephone company's network by a regulated provider of telecommunications services; and

(3)iibroadcasts, other than cable television service, by commercial radio or television stations licensed or regulated by the Federal Communications Commission.

(b)iiThe exemption provided by this section does not apply to mobile telecommunications services.

SECTIONi23.iiSubchapter H, Chapter 151, Tax Code, is amended by adding Section 151.3501 to read as follows:

Sec.i151.3501.iiLABOR TO RESTORE, REPAIR, OR REMODEL HISTORIC SITES. (a) Labor to restore, repair, or remodel an improvement to real property is exempted from the taxes imposed by this chapter if:

(1)iithe amount of the charge for labor is separately itemized; and

(2)iithe restoration, repair, or remodeling is performed on an improvement to real property listed in the National Register of Historic Places.

(b)iiThe exemption provided by this section does not apply to tangible personal property transferred by the service provider to the purchaser as part of the service.

SECTIONi24.iiSection 151.355, Tax Code, as amended by Chapters 966 and 1234, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:

Sec.i151.355.iiWATER-RELATED EXEMPTIONS. The following are exempted from taxes imposed by this chapter:

(1)iirainwater harvesting equipment or supplies, water recycling and reuse equipment or supplies, or other equipment, services, or supplies used solely to reduce or eliminate water use;

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(2)iiequipment, services, or supplies used solely for desalination of surface water or groundwater;

(3)iiequipment, services, or supplies used solely for brush control designed to enhance the availability of water;

(4)iiequipment, services, or supplies used solely for precipitation enhancement;

(5)iiequipment, services, or supplies used solely to construct or operate a water or wastewater system certified by the Texas Commission on Environmental Quality [Natural Resource Conservation Commission] as a regional system; and

(6)iiequipment, services, or supplies used solely to construct or operate a water supply or wastewater system by a private entity as a public-private partnership as certified by the political subdivision that is a party to the project.

SECTIONi25.iiSection 152.086(a), Tax Code, is amended to read as follows:

(a)iiThe taxes imposed by this chapter do not apply to the sale or use of a motor vehicle that:

(1)iihas been or will be modified before the second anniversary of the date of purchase for operation by, or for the transportation of, an orthopedically handicapped person; and

(2)iiis driven by or used for the transportation of an orthopedically handicapped person.

SECTIONi26.iiSubchapter F, Chapter 152, Tax Code, is amended by adding Section 152.106 to read as follows:

Sec.i152.106.iiPROHIBITED ADVERTISING; CRIMINAL PENALTY. (a) A person who is required by Chapter 503, Transportation Code, to hold a dealer's general distinguishing number commits an offense if the person directly or indirectly advertises, holds out, or states to a customer or to the public that the person:

(1)iiwill assume, absorb, or refund a part of the tax imposed by this chapter; or

(2)iiwill not add the tax imposed by this chapter to the sales price of the motor vehicle sold, leased, or rented.

(b)iiAn offense under this section is a Class C misdemeanor.

SECTIONi35A. iiSection 155.002, Tax Code, is amended to read as follows:

Sec.i155.002.iiSTORAGE. (a) The commercial business location where tobacco products are stored or kept cannot be a residence or a unit in a public storage facility.

(b)iiThis section does not apply to a manufacturer's representative.

SECTIONi36.iiSection 156.051(a), Tax Code, is amended to read as follows:

(a)iiA tax is imposed on a person who, under a lease, concession, permit, right of access, license, contract, or agreement, pays for the use or possession or for the right to the use or possession of a room or space in a hotel costing $15 [$2] or more each day.

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SECTIONi37.iiSection 156.102(b), Tax Code, is amended to read as follows:

(b)iiFor purposes of this section:

(1)iia corporation or association that is organized and operated exclusively for the cleaning of beaches and that has no part of its net earnings inure to the benefit of a private shareholder or individual is organized and operated exclusively for a charitable purpose; and

(2)iia public or private institution of higher education is organized and operated exclusively for an educational purpose only if the institution is defined as a Texas [an] institution of higher education or as a Texas private or independent institution of higher education under any subdivision of Section 61.003, Education Code.

SECTIONi38.iiSubchapter C, Chapter 156, Tax Code, is amended by adding Section 156.104 to read as follows:

Sec.i156.104.iiEXEMPTION CERTIFICATE. (a) The right to use or possess a room or space in a hotel is exempt from taxation under this chapter if the person required to collect the tax receives, in good faith from a guest, a properly completed exemption certificate stating that the guest is qualified for an exemption under Section 156.102 or 156.103. An exemption certificate must be supported by the documentation required under rules adopted by the comptroller.

(b)iiThe comptroller shall produce and maintain a list of entities that have been provided a letter of exemption from the state hotel occupancy tax under Section 156.102. The comptroller shall make the list available on the comptroller's Internet website.

SECTIONi39.iiSection 171.001(a), Tax Code, is amended to read as follows:

(a)iiA franchise tax is imposed on:

(1)iieach corporation that does business in this state or that is chartered [or authorized to do business] in this state; [,] and

(2)iieach limited liability company that does business in this state or that is organized under the laws of this state [or is authorized to do business in this state].

SECTIONi40.iiSection 171.001(b)(2), Tax Code, is amended to read as follows:

(2)ii"Beginning date" means:

(A)iifor a corporation chartered in this state, the date on which the corporation's charter takes effect; and

(B)iifor a foreign corporation, [the earlier of] the date on which[:

[(i)iithe corporation's certificate of authority takes effect; or

[(ii)] the corporation begins doing business in this state.

SECTIONi41.iiSection 171.052, Tax Code, is amended to read as follows:

Sec.i171.052.iiCERTAIN CORPORATIONS. An insurance organization, title insurance company, or title insurance agent authorized to engage in insurance business in this state now required to pay an annual tax under Chapter 4 or 9, Insurance Code, measured by its gross premium receipts is exempted from the franchise tax. A [An insurance organization performing management or

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accounting activities in this state on behalf of a] nonadmitted [captive] insurance organization [company under Chapter 101, Insurance Code,] that is required to pay a gross premium receipts tax during a tax year is exempted from the franchise tax for that same tax year. Farm mutuals, local mutual aid associations, and burial associations are not subject to the franchise tax.

SECTIONi42.iiSection 171.084(c), Tax Code, is amended to read as follows:

(c)iiIn this section, "wholesale center" means a permanent wholesale facility that has permanent tenants and that promotes at least four national or regional trade shows in a calendar year. A tenant leasing space at a wholesale center for a period longer than the period prescribed by Subsection (b) may qualify for the exemption provided by this section only if the tenant solicits orders on an occasional basis at the trade show as prescribed by Subsection (b).

SECTIONi43.iiSection 171.1032(b), Tax Code, is amended to read as follows:

(b)iiA corporation shall deduct from its gross receipts computed under Subsection (a) any amount to the extent included under Subsection (a) because of the application of Section 78 or Sections 951-964, Internal Revenue Code, any amount excludable under Section 171.110(k), and dividends received from a subsidiary, associate, or affiliated corporation that does not transact a substantial portion of its business or regularly maintain a substantial portion of its assets in the United States.

SECTIONi44.iiSection 171.1051(c), Tax Code, is amended to read as follows:

(c)iiA corporation shall deduct from its gross receipts computed under Subsection (a) any amount to the extent included in Subsection (a) because of the application of Section 78 or Sections 951-964, Internal Revenue Code, any amount excludable under Section 171.110(k), and dividends received from a subsidiary, associate, or affiliated corporation that does not transact a substantial portion of its business or regularly maintain a substantial portion of its assets in the United States.

SECTIONi45.iiSection 171.106, Tax Code, is amended by adding Subsection (i) to read as follows:

(i)iiReceipts from services that a defense readjustment project performs in a defense economic readjustment zone are not receipts from business done in this state.

SECTIONi46.iiSection 171.109, Tax Code, is amended by adding Subsection (a-1) to read as follows:

(a-1)iiA legally enforceable obligation that requires the return of a like-kind property that was borrowed will be considered debt if it is a liability according to generally accepted accounting principles and if the return must be made within an ascertainable period of time or on demand. The amount that will be considered debt is the fair market value measured on the last day on which the report is based as required by Section 171.153. For purposes of this subsection, "like-kind property" means the same quantity, quality, and nature or character as the property borrowed.

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SECTIONi47.iiSection 171.110, Tax Code, is amended by amending Subsection (a) and adding Subsections (k) and (l) to read as follows:

(a)iiThe net taxable earned surplus of a corporation is computed by:

(1)iidetermining the corporation's reportable federal taxable income, subtracting from that amount any amount excludable under Subsection (k), any amount included in reportable federal taxable income under Section 78 or Sections 951-964, Internal Revenue Code, and dividends received from a subsidiary, associate, or affiliated corporation that does not transact a substantial portion of its business or regularly maintain a substantial portion of its assets in the United States, and adding to that amount any compensation of officers or directors, or if a bank, any compensation of directors and executive officers, to the extent excluded in determining federal taxable income to determine the corporation's taxable earned surplus;

(2)iiapportioning the corporation's taxable earned surplus to this state as provided by Section 171.106(b) or (c), as applicable, to determine the corporation's apportioned taxable earned surplus;

(3)iiadding the corporation's taxable earned surplus allocated to this state as provided by Section 171.1061; and

(4)iisubtracting from that amount any allowable deductions and any business loss that is carried forward to the tax reporting period and deductible under Subsection (e).

(k)iiDividends and interest received from federal obligations are not included in earned surplus or gross receipts for earned surplus purposes.

(l)iiIn this section:

(1)ii"Federal obligations" means:

(A)iistocks and other direct obligations of, and obligations unconditionally guaranteed by, the United States government and United States government agencies; and

(B)iidirect obligations of a United States government-sponsored agency.

(2)ii"Obligation" means any bond, debenture, security, mortgage-backed security, pass-through certificate, or other evidence of indebtedness of the issuing entity. The term does not include a deposit, a repurchase agreement, a loan, a lease, a participation in a loan or pool of loans, a loan collateralized by an obligation of a United States government agency, or a loan guaranteed by a United States government agency.

(3)ii"United States government" means any department or ministry of the federal government, including a federal reserve bank. The term does not include a state or local government, a commercial enterprise owned wholly or partly by the United States government, or a local governmental entity or commercial enterprise whose obligations are guaranteed by the United States government.

(4)ii"United States government agency" means an instrumentality of the United States government whose obligations are fully and explicitly guaranteed as to the timely payment of principal and interest by the full faith and credit of the United States government. The term includes the Government National Mortgage

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Association, the Department of Veterans Affairs, the Federal Housing Administration, the Farmers Home Administration, the Export-Import Bank, the Overseas Private Investment Corporation, the Commodity Credit Corporation, the Small Business Administration, and any successor agency.

(5)ii"United States government-sponsored agency" means an agency originally established or chartered by the United States government to serve public purposes specified by the United States Congress but whose obligations are not explicitly guaranteed by the full faith and credit of the United States government. The term includes the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Farm Credit System, the Federal Home Loan Bank System, the Student Loan Marketing Association, and any successor agency.

SECTIONi48.iiSections 171.110(b) and (c), Tax Code, are amended to read as follows:

(b)iiExcept as provided by Subsection (c), a [A] corporation is not required to add the compensation of officers or directors as required by Subsection (a)(1) if the corporation is:

(1)iia corporation that has not more than 35 shareholders; or

(2)iian S corporation, as that term is defined by Section 1361, Internal Revenue Code.

(c)iiA subsidiary corporation may not claim the exclusion under Subsection (b) if it has a parent corporation that does not qualify for the exclusion. For purposes of this subsection, a corporation qualifies as a parent if it ultimately controls the subsidiary, even if the control arises through a series or group of other subsidiaries or entities. Control is presumed if a parent corporation directly or indirectly owns, controls, or holds a majority of the outstanding voting stock of a corporation or ownership interests in another entity [Subsection (b) does not apply to a subsidiary corporation unless it applies to the subsidiary's parent corporation].

SECTIONi49.iiSection 171.203, Tax Code, is amended by adding Subsection (f) to read as follows:

(f)iiA public information report that is filed electronically complies with the signature and certification requirements prescribed by Subsection (d).

SECTIONi50.iiSubchapter O, Chapter 171, Tax Code, is amended by adding Section 171.731 to read as follows:

Sec.i171.731.iiASSIGNMENT PROHIBITED. A corporation may not convey, assign, or transfer the credit allowed under this subchapter to another entity unless all of the assets of the corporation are conveyed, assigned, or transferred in the same transaction.

SECTIONi51.iiSection 171.751(1), Tax Code, is amended to read as follows:

(1)ii"Agricultural processing" means an establishment primarily engaged in activities described in categories 0724, 2011-2099, 2211, 2231, 2824, 2833, 2834, 2835, 2836, 2841, 3111-3199, 3262, or 3952, in product classes

5870 78th LEGISLATURE — REGULAR SESSION


28692 or 28698 of category 2869, or in product classes 28992 or 28994 of category 2899 of the 1987 Standard Industrial Classification Manual published by the federal Office of Management and Budget.

SECTIONi52.iiSubchapter P, Chapter 171, Tax Code, is amended by adding Section 171.7515 to read as follows:

Sec.i171.7515.ii"QUALIFIED BUSINESS." (a) In addition to the meaning assigned by Section 171.751(8), "qualified business" also means a corporation that has been designated as an enterprise project or as a defense readjustment project and is certified by the Texas Department of Economic Development as a qualified business under Section 2303.402 or 2310.302, Government Code.

(b)iiThis section expires January 1, 2005.

SECTIONi53.iiSection 171.753, Tax Code, is amended to read as follows:

Sec.i171.753.iiCALCULATION OF CREDIT. A corporation may establish a credit equal to five percent of the total wages and salaries paid by the corporation for qualifying jobs during the period upon which the tax is based, on each of five consecutive reports beginning with the report based on the period during which the qualifying jobs were created.

SECTIONi54.iiSubchapter P, Chapter 171, Tax Code, is amended by adding Section 171.7541 to read as follows:

Sec.i171.7541.iiLENGTH OF CREDIT. Notwithstanding Section 171.753, a corporation that has been designated as an enterprise project or as a defense readjustment project on or after September 1, 2001, may, beginning on the date the project is designated, establish a credit equal to 25 percent of the total wages and salaries paid by the corporation for qualifying jobs. Subject to Section 171.755, the corporation may claim the entire credit earned on a report originally due on or after September 1, 2003, and before January 1, 2005. This section expires January 1, 2005.

SECTIONi55.iiSection 171.802, Tax Code, is amended by adding Subsections (d) and (e) to read as follows:

(d)iiA corporation that has been designated as an enterprise project or as a defense readjustment project and is certified by the Texas Department of Economic Development as a qualified business under Section 2303.402 or 2310.302, Government Code, may qualify for the credit provided by this subchapter, regardless of whether the corporation meets the qualifications prescribed by Subsection (b). This subsection expires January 1, 2005.

(e)iiA corporation may claim a credit or take a carryforward credit for a qualified capital investment made on or after Januaryi1, 2003, without regard to whether the county in which it makes the qualified capital investment has lost its designation as a strategic investment area if:

(1)iithe corporation committed to the investment in that county before January 2003;

(2)iiat the time the corporation made the commitment, the county was designated as a strategic investment area;

(3)iithe total investment is at least $100 million;

(4)iithe county has a population of less than 15,700; and

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(5)iithe corporation made a qualified capital investment in the county in each of the two years preceding the year in which the corporation made the qualified capital investment under this subsection.

SECTIONi56.iiSection 171.803, Tax Code, is amended to read as follows:

Sec.i171.803.iiCALCULATION OF CREDIT. (a) Except as provided by Subsection (b), a [A] corporation may establish a credit equal to 7.5 percent of the qualified capital investment during the period upon which the tax is based.

(b)iiA corporation that has been designated as an enterprise project or as a defense readjustment project on or after September 1, 2001, may, beginning on the date the project is designated, establish a credit equal to 7.5 percent of the qualified capital investment. This subsection expires January 1, 2005.

SECTIONi57.iiSection 171.804(b), Tax Code, as effective September 1, 2003, is amended to read as follows:

(b)iiSubject to Section 171.805, a corporation that has been designated as an enterprise project or as a defense readjustment project may claim the entire credit earned on a report originally due on or after September 1, 2003, and before January 1, 2006 [during an accounting period against the taxes imposed for the corresponding reporting period].

SECTIONi58.iiSection 171.853(c), Tax Code, is amended to read as follows:

(c)iiThe credit claimed for each privilege period may not exceed 50 percent of the amount of [net] franchise tax due, before [after] any other applicable tax credits, for the privilege period.

SECTIONi59.iiChapter 171, Tax Code, is amended by adding Subchapter U to read as follows:

SUBCHAPTERiU.iiTAX CREDIT FOR TITLE INSURANCE HOLDING

COMPANIES

Sec.i171.891.iiAPPLICABILITY OF DEFINITIONS. In this subchapter:

(1)ii"Control" has the meaning described by Sections 823.005 and 823.151, Insurance Code.

(2)ii"Controlled insurer," "domestic insurer," and "holding company" have the meanings assigned by Section 823.002, Insurance Code.

(3)ii"Title insurance," "title insurance agent,