By Saunders H.B. No. 2125
74R1021 RJA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to nonsubstantive additions to and corrections in enacted
1-3 codes, including the nonsubstantive codification of various laws
1-4 omitted from enacted codes, and to conforming codifications enacted
1-5 by the 73rd Legislature to other Acts of that legislature.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. GENERAL PROVISIONS
1-8 SECTION 1.01. This Act is enacted as part of the state's
1-9 continuing statutory revision program under Chapter 323, Government
1-10 Code. This Act is a revision for purposes of Article III, Section
1-11 43, of the Texas Constitution and has the purposes of:
1-12 (1) codifying without substantive change various
1-13 statutes that were omitted from enacted codes;
1-14 (2) conforming codifications enacted by the 73rd
1-15 Legislature to other Acts of that legislature that amended the laws
1-16 codified or added new law to subject matter codified;
1-17 (3) making necessary corrections to enacted
1-18 codifications; and
1-19 (4) renumbering titles, chapters, and sections of
1-20 codes that duplicate title, chapter, or section numbers.
1-21 SECTION 1.02. (a) The repeal of a statute by this Act does
1-22 not affect an amendment, revision, or reenactment of the statute by
1-23 the 74th Legislature, Regular Session, 1995. The amendment,
1-24 revision, or reenactment is preserved and given effect as part of
2-1 the code provision that revised the statute so amended, revised, or
2-2 reenacted.
2-3 (b) If any provision of this Act conflicts with a statute
2-4 enacted by the 74th Legislature, Regular Session, 1995, the statute
2-5 controls.
2-6 SECTION 1.03. (a) A transition or savings provision of a
2-7 law codified by this Act applies to the codified law to the same
2-8 extent as it applied to the original law.
2-9 (b) The repeal of a transition or savings provision by this
2-10 Act does not affect the application of the provision to the
2-11 codified law.
2-12 (c) In this section, "transition provision" includes any
2-13 temporary provision providing for a special situation in the
2-14 transition period between the existing law and the establishment or
2-15 implementation of the new law.
2-16 SECTION 1.04. (a) For the purposes of Section 403.094,
2-17 Government Code, the revision and codification by this Act of a
2-18 statute relating to a fund in existence on or before August 31,
2-19 1993, does not re-create the fund and does not constitute the
2-20 reenactment of a dedication of revenue.
2-21 (b) A fund or account, the existence of which is derived
2-22 from a statute revised by this Act and which is abolished under
2-23 Section 403.094, Government Code, before the effective date of this
2-24 Act is not revived or re-created by this Act.
2-25 (c) The application of Sections 403.094 and 403.095,
2-26 Government Code, to a fund or to the permissible uses of revenue or
2-27 fund balances is not affected by this Act.
3-1 ARTICLE 2. CHANGES RELATING TO AGRICULTURE CODE
3-2 SECTION 2.01. (a) Title 2, Agriculture Code, is amended to
3-3 codify Chapter 224, Acts of the 55th Legislature, Regular Session,
3-4 1957 (Article 6701i, Vernon's Texas Civil Statutes), by adding
3-5 Chapter 19 to read as follows:
3-6 CHAPTER 19. BRAKE FLUID REGULATION
3-7 SUBCHAPTER A. GENERAL PROVISIONS
3-8 Sec. 19.001. DEFINITIONS. In this chapter:
3-9 (1) "Brake fluid" means the liquid medium through
3-10 which force is transmitted in the hydraulic brake system of a motor
3-11 vehicle operated on a highway of this state.
3-12 (2) "Labeling" means a written or graphic
3-13 representation in any form printed on or affixed to a package.
3-14 (3) "Package" means the immediate container in which
3-15 brake fluid is packed for sale but does not include a:
3-16 (A) carton or wrapping containing several
3-17 packages; or
3-18 (B) tank car or truck.
3-19 (4) "Packer" means a person who fills with brake fluid
3-20 a package that is later distributed for sale in this state.
3-21 (5) "Sell" means:
3-22 (A) conveying;
3-23 (B) bartering, trading, or exchanging;
3-24 (C) keeping, offering, exposing, or advertising
3-25 for sale;
3-26 (D) delivering for or after sale; and
3-27 (E) distributing.
4-1 Sec. 19.002. MISBRANDING. A brake fluid is misbranded under
4-2 this chapter if its labeling:
4-3 (1) is false or misleading; or
4-4 (2) does not contain in clear and legible type:
4-5 (A) the name and address of the manufacturer,
4-6 packer, or seller;
4-7 (B) the words "brake fluid" and a designation of
4-8 the contents as described by department rule; and
4-9 (C) an accurate statement of the liquid measure
4-10 of the net contents.
4-11 Sec. 19.003. ADULTERATION. A brake fluid is adulterated
4-12 under this chapter if:
4-13 (1) the formula for or proportions of the brake
4-14 fluid's contents have been changed since the brake fluid was most
4-15 recently registered; or
4-16 (2) the quality or characteristics of the brake fluid
4-17 do not meet the standards and specifications for brake fluid
4-18 established by the department.
4-19 Sec. 19.004. RULES. (a) The department shall adopt rules:
4-20 (1) relating to the enforcement of this chapter; and
4-21 (2) establishing as minimum standards and
4-22 specifications for brake fluids and brake fluid packages the
4-23 applicable standards adopted by the United States Department of
4-24 Transportation.
4-25 (b) The department by rule may provide for the collection of
4-26 a fee to pay for the cost of administering this chapter. Fees
4-27 collected may not exceed the estimated cost of administering this
5-1 chapter.
5-2 (Sections 19.005-19.010 reserved for expansion
5-3 SUBCHAPTER B. REGISTRATION
5-4 Sec. 19.011. APPLICATION FOR REGISTRATION. A manufacturer,
5-5 packer, or distributor, or the agent or representative of a
5-6 manufacturer, packer, or distributor, may submit to the department:
5-7 (1) a written application for registration of brake
5-8 fluid;
5-9 (2) a sample of the brake fluid proposed to be
5-10 marketed, as required by the department for testing; and
5-11 (3) the laboratory report required by Section 19.012.
5-12 Sec. 19.012. LABORATORY REPORT. (a) An applicant for
5-13 registration of brake fluid under this subchapter must submit to
5-14 the department a report by an independent testing laboratory
5-15 approved by the department that:
5-16 (1) analyzes the contents of the brake fluid submitted
5-17 to the laboratory; and
5-18 (2) shows that the quality of the laboratory sample
5-19 meets standards and specifications for brake fluid established by
5-20 department rule.
5-21 (b) The applicant must sign and attach to the report a sworn
5-22 statement certifying that the formula for and proportions of the
5-23 sample submitted to the laboratory are the same as the formula for
5-24 and proportions of the:
5-25 (1) sample submitted to the department under Section
5-26 19.011; and
5-27 (2) brake fluid being manufactured or packaged for
6-1 sale.
6-2 Sec. 19.013. DEPARTMENT TESTS. (a) The department shall
6-3 require tests that are necessary to determine if a brake fluid
6-4 sample submitted to the department conforms to the standards and
6-5 specifications adopted under this chapter.
6-6 (b) The department may submit a brake fluid sample to The
6-7 University of Texas for testing under this section.
6-8 Sec. 19.014. CERTIFICATE OF REGISTRATION. After completion
6-9 of testing considered necessary by the department of a brake fluid
6-10 sample, the department, if the sample meets standards and
6-11 specifications adopted under this chapter, shall issue to the
6-12 applicant a certificate of registration that authorizes the
6-13 manufacture, packing, and sale in this state of the brake fluid
6-14 that the sample represents during the time specified by the
6-15 certificate.
6-16 Sec. 19.015. DENIAL OF REGISTRATION. (a) If the department
6-17 finds that a sample of brake fluid does not meet the standards and
6-18 specifications established under this chapter, it shall deny
6-19 registration of the brake fluid and notify the applicant by
6-20 registered or certified mail of the decision.
6-21 (b) The department shall specify in the notice required by
6-22 Subsection (a) its reasons for denying registration.
6-23 (c) Not later than the 30th day after the date of receiving
6-24 notice of denial of registration, an applicant may request that the
6-25 department hold a hearing on the department's decision.
6-26 Sec. 19.016. REVOCATION OF REGISTRATION. After providing
6-27 notice and an opportunity for hearing, the department may revoke
7-1 registration and cancel a certificate of registration for brake
7-2 fluid if the department finds that:
7-3 (1) a portion of the brake fluid is misbranded or
7-4 adulterated; or
7-5 (2) the registrant has failed since registration to
7-6 comply with a requirement of this chapter or a rule adopted under
7-7 this chapter.
7-8 Sec. 19.017. APPEAL. Appeal from a department decision
7-9 issued after a hearing under Section 19.015 or Section 19.016 is by
7-10 trial de novo.
7-11 (Sections 19.018-19.030 reserved for expansion
7-12 SUBCHAPTER C. ENFORCEMENT
7-13 Sec. 19.031. CRIMINAL OFFENSE; PENALTY. (a) A person
7-14 commits an offense if the person recklessly manufactures, packs,
7-15 sells, or adds to the hydraulic brake system of a motor vehicle in
7-16 this state a brake fluid that is:
7-17 (1) misbranded;
7-18 (2) adulterated; or
7-19 (3) not registered under this chapter.
7-20 (b) An offense under this section is a Class B misdemeanor.
7-21 Sec. 19.032. STOP-SALE ORDER. (a) If brake fluid is
7-22 manufactured, packed, or sold in violation of Section 19.031, the
7-23 department may issue and enforce a written stop-sale order
7-24 prohibiting the further manufacture, packing, or sale of brake
7-25 fluid of the same brand name on the premises on which the violation
7-26 occurred.
7-27 (b) The department shall terminate a stop-sale order after
8-1 remedy of the violation or after voluntary destruction or other
8-2 disposal, under department supervision, of the fluid that is the
8-3 subject of the violation.
8-4 (c) The owner or custodian of brake fluid to which a
8-5 stop-sale order applies may appeal the stop-sale order to a
8-6 district court in the county in which the brake fluid is located.
8-7 Appeal under this subsection is by trial de novo.
8-8 Sec. 19.033. INJUNCTION. (a) The department may institute
8-9 an action in a district court in the county in which a violation of
8-10 Section 19.031 occurs for an order prohibiting further violations
8-11 of this chapter.
8-12 (b) A bond may not be required for issuing an injunction
8-13 under this section.
8-14 Sec. 19.034. DEPARTMENT INSPECTION; SEARCH AND SEIZURE. (a)
8-15 To enforce this chapter, the department may enter, during
8-16 reasonable hours, premises on which brake fluid is manufactured,
8-17 packed, or sold. The department may inspect, sample, analyze, and
8-18 test brake fluid found on the premises.
8-19 (b) Before the department requests entrance to premises on
8-20 which brake fluid is manufactured, packed, or sold, or on refusal
8-21 of a request for entrance, the department may request a magistrate
8-22 in the county in which the premises are located to issue a search
8-23 warrant authorizing entry and inspection of the premises. The
8-24 magistrate shall issue the warrant without prior notice to the
8-25 owner or custodian of the premises if the department shows:
8-26 (1) specific evidence of a violation of this chapter
8-27 or a rule adopted under this chapter; or
9-1 (2) that the department has complied with reasonable
9-2 administrative standards for conducting inspections under this
9-3 chapter.
9-4 (c) A search warrant issued under this section may authorize
9-5 the department to seize misbranded, unregistered, or adulterated
9-6 brake fluid found during a search. Brake fluid seized under a
9-7 warrant issued under this section is subject to disposition in the
9-8 manner provided for disposition of brake fluid seized under Section
9-9 19.035.
9-10 (d) The department shall by rule prescribe reasonable
9-11 administrative standards for conducting inspections under this
9-12 chapter.
9-13 Sec. 19.035. ENFORCEMENT BY COUNTY OR DISTRICT ATTORNEY;
9-14 CONDEMNATION. (a) A county or district attorney for the county in
9-15 which misbranded, unregistered, or adulterated brake fluid sold in
9-16 this state is found may:
9-17 (1) bring enforcement proceedings in an appropriate
9-18 county or district court; and
9-19 (2) seize the brake fluid for confiscation by process
9-20 of libel for condemnation.
9-21 (b) On entry of a condemnation decree by a court, brake
9-22 fluid seized under this section shall be disposed of by destruction
9-23 or sale, as directed by the court. Sale proceeds, less legal
9-24 costs, shall be paid to the state treasury. Brake fluid seized
9-25 under this section may not be sold contrary to the provisions of
9-26 this chapter.
9-27 (c) On the payment of costs and the execution and delivery
10-1 of a good and sufficient bond approved by the court, issued on the
10-2 condition that the brake fluid not be disposed of unlawfully, the
10-3 court may direct that brake fluid seized under this section be
10-4 delivered to the owner for relabeling or reprocessing.
10-5 Sec. 19.036. COOPERATION WITH FEDERAL AGENCIES. The
10-6 department shall cooperate with the National Highway Traffic Safety
10-7 Administration of the United States Department of Transportation in
10-8 enforcing this chapter and the National Traffic and Motor Vehicle
10-9 Safety Act, 15 U.S.C. Section 1391 et seq., relating to motor
10-10 vehicle safety standards.
10-11 (b) Chapter 224, Acts of the 55th Legislature, Regular
10-12 Session, 1957 (Article 6701i, Vernon's Texas Civil Statutes), is
10-13 repealed.
10-14 ARTICLE 3. CHANGES RELATING TO CODE OF CRIMINAL PROCEDURE
10-15 SECTION 3.01. Article 18.17(c), Code of Criminal Procedure,
10-16 as amended by Section 1, Chapter 157, and Section 3, Chapter 321,
10-17 Acts of the 73rd Legislature, Regular Session, 1993, is amended to
10-18 read as follows:
10-19 (c) If the property has a fair market value of $500 or more
10-20 and the owner or the address of the owner is unknown, the person
10-21 designated by the municipality, the county purchasing agent, or the
10-22 sheriff, as the case may be, shall cause to be published once in a
10-23 paper of general circulation in the municipality or county a notice
10-24 containing a general description of the property held, the name of
10-25 the owner if known, the name and address of the officer holding
10-26 such property, and a statement that if the owner does not claim
10-27 such property within 90 days from the date of the publication such
11-1 property will be disposed of and the proceeds, after deducting the
11-2 reasonable expense of keeping such property and the costs of the
11-3 disposition, placed in the treasury of the municipality or county
11-4 disposing of the property. If the property has a fair market value
11-5 of less than $500 and the owner or the address of the owner is
11-6 unknown, the person designated by the municipality, the <municipal
11-7 or> county purchasing agent, or the sheriff may sell or donate the
11-8 property. The person designated by the municipality, the
11-9 purchasing agent, or the sheriff shall deposit the sale proceeds,
11-10 after deducting the reasonable expense of keeping the property and
11-11 costs of the sale, in the treasury of the municipality or county
11-12 selling or donating the property.
11-13 SECTION 3.02. Article 18.17(d), Code of Criminal Procedure,
11-14 as amended by Section 1, Chapter 157, and Section 3, Chapter 321,
11-15 Acts of the 73rd Legislature, Regular Session, 1993, is revised to
11-16 read as follows:
11-17 (d) The sale under this article of any property that has a
11-18 fair market value of $500 or more shall be preceded by a notice
11-19 published once at least 14 days prior to the date of such sale in a
11-20 newspaper of general circulation in the municipality or county
11-21 where the sale is to take place, stating the general description of
11-22 the property, the names of the owner if known, and the date and
11-23 place that such sale will occur. This article does not require
11-24 disposition by sale.
11-25 SECTION 3.03. Article 18.17(f), Code of Criminal Procedure,
11-26 as amended by Section 1, Chapter 157, and Section 2, Chapter 321,
11-27 Acts of the 73rd Legislature, Regular Session, 1993, is amended to
12-1 read as follows:
12-2 (f) For the purposes of this article:
12-3 (1) "Person designated by a municipality" means an
12-4 officer or employee of a municipality who is designated by the
12-5 municipality to be primarily responsible for the disposition of
12-6 property under this article.
12-7 (2) "Property held as evidence" means property related
12-8 to a charge that has been filed or to a matter that is being
12-9 investigated for the filing of a charge<, "purchasing agent of the
12-10 municipality" means the person who is primarily responsible for
12-11 making purchases on behalf of a municipality or a person designated
12-12 by the municipality. "Person designated by a municipality" means an
12-13 officer or employee of a municipality who is designated by the
12-14 municipality to be primarily responsible for the disposition of
12-15 property under this article>.
12-16 SECTION 3.04. Article 18.17(h), Code of Criminal Procedure,
12-17 as amended by Section 1, Chapter 157, and Section 1, Chapter 321,
12-18 Acts of the 73rd Legislature, Regular Session, 1993, is revised to
12-19 read as follows:
12-20 (h) If the abandoned or unclaimed personal property is
12-21 money, the person designated by the municipality, the county
12-22 purchasing agent, or the sheriff of the county, as appropriate,
12-23 may, after giving notice under Subsection (b) or (c) of this
12-24 article, deposit the money in the treasury of the municipality or
12-25 county giving notice without conducting the sale as required by
12-26 Subsection (d) of this article.
12-27 SECTION 3.05. Article 18.17(i), Code of Criminal Procedure,
13-1 as added by Section 4, Chapter 321, Acts of the 73rd Legislature,
13-2 Regular Session, 1993, is amended to conform to Section 1, Chapter
13-3 157, Acts of the 73rd Legislature, Regular Session, 1993, to read
13-4 as follows:
13-5 (i) While offering the property for sale under this article,
13-6 if a person designated by a municipality, <municipal or> county
13-7 purchasing agent, or sheriff considers any bid as insufficient, the
13-8 person, agent, or sheriff may decline the bid and reoffer the
13-9 property for sale.
13-10 SECTION 3.06. Section 5(c), Article 42.12, Code of Criminal
13-11 Procedure, is amended to conform to Section 4.01, Chapter 900, Acts
13-12 of the 73rd Legislature, Regular Session, 1993, to read as follows:
13-13 (c) On expiration of a community supervision period imposed
13-14 under Subsection (a) of this section, if the judge has not
13-15 proceeded to adjudication of guilt, the judge shall dismiss the
13-16 proceedings against the defendant and discharge him. The judge may
13-17 dismiss the proceedings and discharge the defendant prior to the
13-18 expiration of the term of community supervision if in the judge's
13-19 opinion the best interest of society and the defendant will be
13-20 served. A dismissal and discharge under this section may not be
13-21 deemed a conviction for the purposes of disqualifications or
13-22 disabilities imposed by law for conviction of an offense, except
13-23 that:
13-24 (1) upon conviction of a subsequent offense, the fact
13-25 that the defendant had previously received community supervision
13-26 with a deferred adjudication of guilt shall be admissible before
13-27 the court or jury to be considered on the issue of penalty;
14-1 (2) if the defendant is an applicant for a license or
14-2 is a licensee under Chapter 42, Human Resources Code, the Texas
14-3 Department of Human Services may consider the fact that the
14-4 defendant previously has received community supervision with a
14-5 deferred adjudication of guilt under this section in issuing,
14-6 renewing, denying, or revoking a license under that chapter; and
14-7 (3) if the defendant is a person who has applied for
14-8 registration to provide mental health or medical services for the
14-9 rehabilitation of sex offenders, the Interagency Council on Sex
14-10 Offender Treatment may consider the fact that the defendant has
14-11 received community supervision <probation> under this section in
14-12 issuing, renewing, denying, or revoking a license or registration
14-13 issued by that council.
14-14 SECTION 3.07. (a) Section 10(a), Article 42.12, Code of
14-15 Criminal Procedure, is amended to conform to Section 4.01, Chapter
14-16 900, Acts of the 73rd Legislature, Regular Session, 1993, to read
14-17 as follows:
14-18 (a) Only the court in which the defendant was tried may
14-19 grant community supervision, impose conditions, revoke the
14-20 community supervision, or discharge the defendant, unless the judge
14-21 <court> has transferred jurisdiction of the case to another court
14-22 with the latter's consent. Except as provided by Subsection (d) of
14-23 this section, only the judge <court> may alter conditions of
14-24 community supervision. In a felony case, only the judge who
14-25 originally sentenced the defendant may suspend execution thereof
14-26 and place the defendant under community supervision pursuant to
14-27 Section 6 of this article. If the judge who originally sentenced
15-1 the defendant is deceased or disabled or if the office is vacant
15-2 and the judge who originally sentenced the defendant is deceased or
15-3 disabled or if the office is vacant and a motion is filed in
15-4 accordance with Section 6 of this article, the clerk of the court
15-5 shall promptly forward a copy of the motion to the presiding judge
15-6 of the administrative judicial district for that court, who may
15-7 deny the motion without a hearing or appoint a judge to hold a
15-8 hearing on the motion. <If the court revokes the probation of a
15-9 defendant for an offense under Article 6701l-1, Revised Statutes,
15-10 and the driver's license or privilege to operate a motor vehicle
15-11 has not previously been ordered by the court to be suspended, or if
15-12 the suspension was previously probated, the court shall suspend the
15-13 license or privilege for a period provided under Section 24,
15-14 Chapter 173, Acts of the 47th Legislature, Regular Session, 1941
15-15 (Article 6687b, Vernon's Texas Civil Statutes). The suspension
15-16 shall be reported to the Department of Public Safety as provided
15-17 under Section 25, Chapter 173, Acts of the 47th Legislature,
15-18 Regular Session, 1941 (Article 6687b, Vernon's Texas Civil
15-19 Statutes).>
15-20 (b) Section 13, Article 42.12, Code of Criminal Procedure,
15-21 is amended to conform to Section 4.01, Chapter 900, Acts of the
15-22 73rd Legislature, Regular Session, 1993, by adding Subsection (m)
15-23 to read as follows:
15-24 (m) If a judge revokes the community supervision of a
15-25 defendant for an offense under Section 49.04, Penal Code, or an
15-26 offense involving the operation of a motor vehicle under Section
15-27 49.07, Penal Code, and the driver's license or privilege to operate
16-1 a motor vehicle has not previously been ordered by the judge to be
16-2 suspended, or if the suspension was previously probated, the judge
16-3 shall suspend the license or privilege for a period provided under
16-4 Section 24, Chapter 173, Acts of the 47th Legislature, Regular
16-5 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes). The
16-6 suspension shall be reported to the Department of Public Safety as
16-7 provided under Section 25, Chapter 173, Acts of the 47th
16-8 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
16-9 Civil Statutes).
16-10 SECTION 3.08. Section 11(a), Article 42.12, Code of Criminal
16-11 Procedure, as amended by Section 2, Chapter 806, and Section 4.01,
16-12 Chapter 900, Acts of the 73rd Legislature, Regular Session, 1993,
16-13 is revised and amended to read as follows:
16-14 (a) The judge of the court having jurisdiction of the case
16-15 shall determine the conditions of community supervision and may, at
16-16 any time, during the period of community supervision alter or
16-17 modify the conditions as provided by Sections 10 and 22 of this
16-18 article. The judge may impose any reasonable condition that is
16-19 designed to protect or restore the community, protect or restore
16-20 the victim, or punish, rehabilitate, or reform the defendant.
16-21 Conditions of community supervision may include, but shall not be
16-22 limited to, the conditions that the defendant shall:
16-23 (1) Commit no offense against the laws of this State
16-24 or of any other State or of the United States;
16-25 (2) Avoid injurious or vicious habits;
16-26 (3) Avoid persons or places of disreputable or harmful
16-27 character;
17-1 (4) Report to the supervision officer as directed by
17-2 the judge or supervision officer and obey all rules and regulations
17-3 of the community supervision and corrections department;
17-4 (5) Permit the supervision officer to visit him at his
17-5 home or elsewhere;
17-6 (6) Work faithfully at suitable employment as far as
17-7 possible;
17-8 (7) Remain within a specified place;
17-9 (8) Pay his fine, if one be assessed, and all court
17-10 costs whether a fine be assessed or not, in one or several sums;
17-11 (9) Support his dependents;
17-12 (10) Participate, for a time specified by the judge in
17-13 any community-based program, including a community-service work
17-14 program under Section 16 of this article;
17-15 (11) Reimburse the county in which the prosecution was
17-16 instituted for compensation paid to appointed counsel for defending
17-17 him in the case, if counsel was appointed, or if he was represented
17-18 by a county-paid public defender, in an amount that would have been
17-19 paid to an appointed attorney had the county not had a public
17-20 defender;
17-21 (12) Remain under custodial supervision in a community
17-22 corrections facility, obey all rules and regulations of such
17-23 facility, and pay a percentage of his income to the facility for
17-24 room and board;
17-25 (13) Pay a percentage of his income to his dependents
17-26 for their support while under custodial supervision in a community
17-27 corrections facility;
18-1 (14) Submit to testing for alcohol or controlled
18-2 substances;
18-3 (15) Attend counseling sessions for substance abusers
18-4 or participate in substance abuse treatment services in a program
18-5 or facility approved or licensed by the Texas Commission on Alcohol
18-6 and Drug Abuse;
18-7 (16) Register under Article 6252-13c.1, Revised
18-8 Statutes;
18-9 (17) With the consent of the victim of a misdemeanor
18-10 offense or of any offense under Title 7, Penal Code, participate
18-11 in victim-defendant mediation;
18-12 (18) <(19)> Submit to electronic monitoring;
18-13 (19) <(20)> Reimburse the general revenue fund <crime
18-14 victims compensation fund created under the Crime Victims
18-15 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes)>
18-16 for any amounts paid under the Crime Victims' Compensation Act
18-17 (Subchapter B, Chapter 56, of this code) from that fund to a
18-18 victim, as defined by Article 56.01 of this code, of the
18-19 defendant's offense;
18-20 (20) <(21)> Reimburse a law enforcement agency for the
18-21 analysis, storage, or disposal of raw materials, controlled
18-22 substances, chemical precursors, drug paraphernalia, or other
18-23 materials seized in connection with the offense;
18-24 (21) <(22)> Pay all or part of the reasonable and
18-25 necessary costs incurred by the victim for psychological counseling
18-26 made necessary by the offense or for counseling and education
18-27 relating to acquired immune deficiency syndrome or human
19-1 immunodeficiency virus made necessary by the offense; and
19-2 (22) <(23)> Make one payment in an amount not to
19-3 exceed $50 to a local crime stoppers program as defined by Section
19-4 414.001, Government Code, and as certified by the Crime Stoppers
19-5 Advisory Council.
19-6 SECTION 3.09. Section 14(b), Article 42.12, Code of Criminal
19-7 Procedure, as amended by Section 4.01, Chapter 900, Acts of the
19-8 73rd Legislature, Regular Session, 1993, is amended to conform to
19-9 Section 1.01, Chapter 900, Acts of the 73rd Legislature, Regular
19-10 Session, 1993, to read as follows:
19-11 (b) A judge may impose the condition of community
19-12 supervision created under this section if:
19-13 (1) the judge places the defendant on community
19-14 supervision under this article;
19-15 (2) the defendant is charged with or convicted of a
19-16 felony other than a felony under Section 21.11, 22.011, or 22.021,
19-17 <or 25.06,> Penal Code; and
19-18 (3) the judge makes an affirmative finding that:
19-19 (A) drug or alcohol abuse significantly
19-20 contributed to the commission of the crime or violation of
19-21 community supervision; and
19-22 (B) the defendant is a suitable candidate for
19-23 treatment, as determined by the suitability criteria established by
19-24 the Texas Board of Criminal Justice under Section 493.009(b),
19-25 Government Code.
19-26 SECTION 3.10. Section 15(h), Article 42.12, Code of Criminal
19-27 Procedure, as added by Section 4.01, Chapter 900, Acts of the 73rd
20-1 Legislature, Regular Session, 1993, is amended to correct a
20-2 reference error to read as follows:
20-3 (h)(1) A defendant confined in a state jail felony facility
20-4 after revocation of community supervision does not earn good
20-5 conduct time for time served in the facility.
20-6 (2) A judge may credit against any time a defendant is
20-7 subsequently required to serve in a state jail felony facility
20-8 after revocation of community supervision time served by the
20-9 defendant in county jail:
20-10 (A) from the time of the defendant's arrest and
20-11 confinement until sentencing by the trial court;
20-12 (B) as a condition of community supervision
20-13 under Subsection (c) <(d)> of this section; and
20-14 (C) after modification of community supervision.
20-15 (3) A judge shall credit against any time a defendant
20-16 is subsequently required to serve in a state jail felony facility
20-17 after revocation of community supervision any time served by the
20-18 defendant in a state jail felony facility after sentencing.
20-19 SECTION 3.11. Section 15, Article 42.12, Code of Criminal
20-20 Procedure, as amended by Section 3, Chapter 806, Acts of the 73rd
20-21 Legislature, Regular Session, 1993, is repealed to conform to
20-22 Section 4.01, Chapter 900, Acts of the 73rd Legislature, Regular
20-23 Session, 1993.
20-24 SECTION 3.12. (a) Section 16(e), Article 42.12, Code of
20-25 Criminal Procedure, as amended by Section 3, Chapter 201, Acts of
20-26 the 73rd Legislature, Regular Session, 1993, is repealed to conform
20-27 to Sections 4.01 and 5.03, Chapter 900, Acts of the 73rd
21-1 Legislature, Regular Session, 1993.
21-2 (b) Section 16(e), Article 42.12, Code of Criminal
21-3 Procedure, as added by Section 3, Chapter 987, Acts of the 73rd
21-4 Legislature, Regular Session, 1993, is amended to conform to
21-5 Section 4.01, Chapter 900, Acts of the 73rd Legislature, Regular
21-6 Session, 1993, to read as follows:
21-7 (e) If the court makes an affirmative finding under Article
21-8 42.014 of this code<, Code of Criminal Procedure>, the judge
21-9 <court> may order the defendant to perform community service under
21-10 this section at a project designated by the judge <court> that
21-11 primarily serves the person or group who was the target of the
21-12 defendant. If the judge <court> orders community service under
21-13 this subsection the judge <court> shall order the defendant to
21-14 perform not less than:
21-15 (1) 100 hours of service if the offense is a
21-16 misdemeanor; or
21-17 (2) 300 hours of service if the offense is a felony.
21-18 SECTION 3.13. Article 42.20(a), Code of Criminal Procedure,
21-19 as added by Section 5.03, Chapter 900, Acts of the 73rd
21-20 Legislature, Regular Session, 1993, is amended to conform to
21-21 Sections 2, 3, and 4, Chapter 201, Acts of the 73rd Legislature,
21-22 Regular Session, 1993, to read as follows:
21-23 (a) An individual listed in Subsection (c) of this article
21-24 and the governmental entity that the individual serves as an
21-25 officer or employee are not liable for damages arising from an act
21-26 or failure to act by the individual or governmental entity in
21-27 connection with a community service program or work program
22-1 established under this chapter or in connection with an inmate,
22-2 offender, or releasee programmatic or nonprogrammatic activity,
22-3 including work, educational, and treatment activities, if the act
22-4 or failure to act:
22-5 (1) was performed pursuant to a court order or was
22-6 otherwise performed in an official capacity; and
22-7 (2) was not performed with conscious indifference for
22-8 the safety of others.
22-9 SECTION 3.14. Article 42.036(h), Code of Criminal Procedure,
22-10 as amended by Section 2, Chapter 201, Acts of the 73rd Legislature,
22-11 Regular Session, 1993, is repealed to conform to Section 5.03,
22-12 Chapter 900, Acts of the 73rd Legislature, Regular Session, 1993.
22-13 SECTION 3.15. Section 29, Article 42.12, Code of Criminal
22-14 Procedure, as added by Section 4, Chapter 201, Acts of the 73rd
22-15 Legislature, Regular Session, 1993, is repealed to conform to
22-16 Section 5.03, Chapter 900, Acts of the 73rd Legislature, Regular
22-17 Session, 1993.
22-18 SECTION 3.16. Section 18(e), Article 42.12, Code of Criminal
22-19 Procedure, is amended to correct a reference error and to conform
22-20 to Section 4.01, Chapter 900, Acts of the 73rd Legislature, Regular
22-21 Session, 1993, to read as follows:
22-22 (e) No later than 18 months after the date on which a
22-23 defendant is granted community supervision under this section, the
22-24 community corrections facility director shall file with the
22-25 community supervision and corrections department director a copy of
22-26 an evaluation made by the director of the defendant's behavior and
22-27 attitude at the center. The director shall examine the evaluation,
23-1 make written comments on the evaluation that he considers relevant,
23-2 and file the evaluation and comments with the judge who granted
23-3 community supervision to the defendant. If the report indicates
23-4 that the defendant has made significant progress toward
23-5 court-ordered conditions of community supervision, the judge
23-6 <court> shall modify the judge's <its> sentence and release the
23-7 defendant in the same manner as provided by Subsection (d) <(e)> of
23-8 this section. If the report indicates that the defendant would
23-9 benefit from continued participation in the community corrections
23-10 facility program, the judge <court> may order the defendant to
23-11 remain at the community corrections facility for a period
23-12 determined by the judge <court>. If the report indicates that the
23-13 defendant has not made significant progress toward rehabilitation,
23-14 the judge <court> may revoke community supervision and order the
23-15 defendant to the term of confinement specified in the defendant's
23-16 sentence.
23-17 SECTION 3.17. Sections 19(e) and (f), Article 42.12, Code of
23-18 Criminal Procedure, are amended to conform to Sections 1.01 and
23-19 4.01, Chapter 900, Acts of the 73rd Legislature, Regular Session,
23-20 1993, to read as follows:
23-21 (e) If the judge <court> grants community supervision
23-22 <probation> to a defendant <person> convicted of an offense under
23-23 Section 21.08, 21.11, 22.011, 22.021, 25.02, <25.06,> 43.25, or
23-24 43.26, Penal Code, the judge <court> shall require as a condition
23-25 of community supervision <probation> that the defendant <person>
23-26 pay to the community corrections and supervision department
23-27 <probation> officer supervising the defendant <person> a community
24-1 supervision <probation> fee of $5 each month during the period of
24-2 community supervision <probation>. The fee is in addition to court
24-3 costs or any other fee imposed on the defendant <person>.
24-4 (f) A community corrections and supervision <probation>
24-5 department shall remit fees collected under Subsection (e) of this
24-6 section to the comptroller. The comptroller shall deposit the fee
24-7 in the special revenue fund to the credit of the sexual assault
24-8 program established under Section 44.0061, Health and Safety Code.
24-9 SECTION 3.18. Section 22(a), Article 42.12, Code of Criminal
24-10 Procedure, is amended to conform to Section 1.01, Chapter 900, Acts
24-11 of the 73rd Legislature, Regular Session, 1993, to read as follows:
24-12 (a) If after a hearing under Section 21 of this article a
24-13 judge continues or modifies community supervision after determining
24-14 that the defendant violated a condition of community supervision,
24-15 the judge may impose any other conditions the judge determines are
24-16 appropriate, including:
24-17 (1) a requirement that the defendant perform community
24-18 service for a number of hours specified by the court under Section
24-19 16 of this article, or an increase in the number of hours that the
24-20 defendant has previously been required to perform under those
24-21 sections in an amount not to exceed double the number of hours
24-22 permitted by Section 16;
24-23 (2) an increase in the period of community
24-24 supervision, in the manner described by Subsection (b) of this
24-25 section;
24-26 (3) an increase in the defendant's fine, in the manner
24-27 described by Subsection (d) of this section; or
25-1 (4) the placement of the defendant in a substance
25-2 abuse felony punishment program operated under Section 493.009,
25-3 Government Code, if:
25-4 (A) the defendant is convicted of a felony other
25-5 than a felony under Section 21.11, 22.011, or 22.021, <or 25.06,>
25-6 Penal Code; and
25-7 (B) the judge makes an affirmative finding that:
25-8 (i) drug or alcohol abuse significantly
25-9 contributed to the commission of the crime or violation of
25-10 community supervision; and
25-11 (ii) the defendant is a suitable candidate
25-12 for treatment, as determined by the suitability criteria
25-13 established by the Texas Board of Criminal Justice under Section
25-14 493.009(b), Government Code.
25-15 SECTION 3.19. Article 43.10, Code of Criminal Procedure, as
25-16 amended by Section 3, Chapter 578, Acts of the 73rd Legislature,
25-17 Regular Session, 1993, is amended to conform to Section 5.04,
25-18 Chapter 900, Acts of the 73rd Legislature, Regular Session, 1993,
25-19 to read as follows:
25-20 Art. 43.10. MANUAL LABOR. <(a)> Where the punishment
25-21 assessed in a conviction for misdemeanor is confinement in jail for
25-22 more than one day, or where in such conviction the punishment is
25-23 assessed only at a pecuniary fine and the party so convicted is
25-24 unable to pay the fine and costs adjudged against him, or where the
25-25 party convicted is required to serve a period of confinement as a
25-26 condition of community supervision, or where the party is sentenced
25-27 to jail for a felony or is confined in jail after conviction of a
26-1 felony, the party convicted or required to serve the period of
26-2 confinement shall be required to work in the county jail industries
26-3 program or shall be required to do manual labor in accordance with
26-4 the provisions of this article under the following rules and
26-5 regulations:
26-6 1. Each commissioners court may provide for the
26-7 erection of a workhouse and the establishment of a county farm in
26-8 connection therewith for the purpose of utilizing the labor of said
26-9 parties so convicted or required to serve a period of confinement;
26-10 2. Such farms and workhouses shall be under the
26-11 control and management of the sheriff, and the sheriff may adopt
26-12 such rules and regulations not inconsistent with the rules and
26-13 regulations of the Commission on Jail Standards and with the laws
26-14 as the sheriff deems necessary;
26-15 3. Such overseers and guards may be employed by the
26-16 sheriff under the authority of the commissioners court as may be
26-17 necessary to prevent escapes and to enforce such labor, and they
26-18 shall be paid out of the county treasury such compensation as the
26-19 commissioners court may prescribe;
26-20 4. They shall be put to labor upon public works and
26-21 maintenance projects, including public works and maintenance
26-22 projects for a political subdivision located in whole or in part in
26-23 the county;
26-24 5. One who from age, disease, or other physical or
26-25 mental disability is unable to do manual labor shall not be
26-26 required to work. His inability to do manual labor may be
26-27 determined by a physician appointed for that purpose by the county
27-1 judge or the commissioners court, who shall be paid for such
27-2 service such compensation as said court may allow; and
27-3 6. For each day of manual labor, in addition to any
27-4 other credits allowed by law, a defendant is entitled to have one
27-5 day deducted from each sentence or period of confinement he is
27-6 serving. The deduction authorized by this article, when combined
27-7 with the deduction required by Article 42.10 of this code, may not
27-8 exceed two-thirds (2/3) of the sentence or period of confinement.
27-9 <(b) A sheriff, employee of a sheriff's department, county
27-10 commissioner, county employee, county judge, and employee of a
27-11 community corrections and supervision department, restitution
27-12 center, or officer or employee of a political subdivision other
27-13 than a county is not liable for damages arising from an act or
27-14 failure to act in connection with manual labor performed by an
27-15 inmate pursuant to this article if the act or failure to act:>
27-16 <(1) was performed pursuant to court-ordered
27-17 confinement; and>
27-18 <(2) was not intentional, wilfully or wantonly
27-19 negligent, or performed with conscious indifference or reckless
27-20 disregard for the safety of others.>
27-21 SECTION 3.20. Article 43.101, Code of Criminal Procedure, as
27-22 amended by Section 1, Chapter 86, and Section 5.04, Chapter 900,
27-23 Acts of the 73rd Legislature, Regular Session, 1993, is revised and
27-24 amended to read as follows:
27-25 Art. 43.101. VOLUNTARY WORK. (a) A defendant confined in
27-26 county jail awaiting trial or a defendant confined in county jail
27-27 after conviction of a felony or revocation of community
28-1 supervision, parole, or mandatory supervision and awaiting transfer
28-2 to the institutional division of the Texas Department of Criminal
28-3 Justice may volunteer to participate in any work program operated
28-4 by the sheriff that uses the labor of convicted defendants.
28-5 (b) The sheriff may accept a defendant as a volunteer under
28-6 Subsection (a) of this section if the defendant is not awaiting
28-7 trial for an offense involving violence or is not awaiting transfer
28-8 to the institutional division of the Texas Department of Criminal
28-9 Justice after conviction of a felony involving violence, and if the
28-10 sheriff determines that the inmate has not engaged previously in
28-11 violent conduct and does not pose a security risk to the general
28-12 public if allowed to participate in the work program.
28-13 (c) A defendant participating in a work program under this
28-14 section is not an <a state> employee for the purposes of Chapter
28-15 501 or 504, Labor Code <Article 8309g or 8309h, Revised Statutes>.
28-16 SECTION 3.21. Article 60.061, Code of Criminal Procedure, as
28-17 added by Section 38, Chapter 790, and Section 2, Chapter 1025, Acts
28-18 of the 73rd Legislature, Regular Session, 1993, is revised and
28-19 amended to read as follows:
28-20 Art. 60.061. INFORMATION ON PERSONS LICENSED BY CERTAIN
28-21 AGENCIES. (a) The Texas State Board of Medical Examiners, the
28-22 Texas State Board of Podiatry Examiners, the State Board of Dental
28-23 Examiners, the State Board of Pharmacy, and the State Board of
28-24 Veterinary Medical Examiners shall provide to the Department of
28-25 Public Safety through electronic means, magnetic tape, or disk, as
28-26 specified by the department, a list including the name, date of
28-27 birth, and any other personal descriptive information required by
29-1 the department for each person licensed by the respective agency.
29-2 Each agency shall update this information and submit to the
29-3 Department of Public Safety the updated information monthly.
29-4 (b) The Department of Public Safety shall perform at least
29-5 monthly a computer match of the licensing list against the
29-6 convictions maintained in the computerized criminal history system.
29-7 The Department of Public Safety shall report to the appropriate
29-8 licensing agency for verification and administrative action, as
29-9 considered appropriate by the licensing agency, the name of any
29-10 person found to have a record of conviction, except a defendant
29-11 whose prosecution is deferred during a period of community
29-12 supervision <probation> without an adjudication or plea of guilt.
29-13 (c) The transmission of information by electronic means
29-14 under Subsection (a) of this article does not affect whether the
29-15 information is subject to disclosure under Chapter 552, Government
29-16 Code <the open records law, Chapter 424, Acts of the 63rd
29-17 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
29-18 Texas Civil Statutes)>.
29-19 SECTION 3.22. Article 104.002(d), Code of Criminal
29-20 Procedure, as amended by Section 284(19), Chapter 14, and Section
29-21 1, Chapter 434, Acts of the 72nd Legislature, Regular Session,
29-22 1991, is amended to read as follows:
29-23 <(d) A person who is or was a prisoner in a county jail and
29-24 received medical, dental, or health related services shall be
29-25 required to pay for such services when they are rendered. If such
29-26 prisoner cannot pay for such services because of indigence, as
29-27 defined in Chapter 61, Health and Safety Code, said county shall
30-1 assist the prisoner in applying for reimbursement through that
30-2 chapter or the hospital district of which he is a resident. A
30-3 prisoner who does not meet the eligibility for assistance payments
30-4 shall remain obligated to reimburse the county for any medical,
30-5 dental, or health services provided and that county shall have
30-6 authority to recover the amount expended in a civil action.>
30-7 (d) A person who is or was a prisoner in a county jail and
30-8 received medical, dental, or health related services from a county
30-9 or a hospital district shall be required to pay for such services
30-10 when they are rendered. If such prisoner is an eligible county
30-11 resident as defined in Section 61.002, Health and Safety Code, the
30-12 county or hospital district providing the services has a right of
30-13 subrogation to the prisoner's right of recovery from any source,
30-14 limited to the cost of services provided. A prisoner, unless the
30-15 prisoner fully pays for the cost of services received, shall remain
30-16 obligated to reimburse the county or hospital district for any
30-17 medical, dental, or health services provided, and the county or
30-18 hospital district may apply for reimbursement in the manner
30-19 provided by Chapter 61, Health and Safety Code. A county or
30-20 hospital district shall have authority to recover the amount
30-21 expended in a civil action.
30-22 ARTICLE 4. CHANGES RELATING TO EDUCATION CODE
30-23 SECTION 4.01. The heading to Subchapter F, Chapter 11,
30-24 Education Code, is amended to reflect the transfer by Chapter 843,
30-25 Acts of the 72nd Legislature, Regular Session, 1991, of the duties
30-26 of the State Property Tax Board relating to school district
30-27 property values, to the comptroller, to read as follows:
31-1 SUBCHAPTER F. SCHOOL DISTRICT PROPERTY VALUES
31-2 <STATE PROPERTY TAX BOARD>
31-3 SECTION 4.02. Section 51.306(n), Education Code, as added by
31-4 Chapter 273, Acts of the 73rd Legislature, 1993, is redesignated as
31-5 Section 51.307, Subchapter F, Chapter 51, Education Code, and
31-6 amended to read as follows:
31-7 Sec. 51.307. RULES. <(n)> The Texas Higher Education
31-8 Coordinating Board <board> shall adopt rules necessary for the
31-9 administration of this subchapter.
31-10 SECTION 4.03. The heading to Chapter 135, Education Code, is
31-11 amended to reflect the change of name of the Texas State Technical
31-12 Institute to the Texas State Technical College System to read as
31-13 follows:
31-14 CHAPTER 135. TEXAS STATE TECHNICAL COLLEGE SYSTEM <INSTITUTE>
31-15 ARTICLE 5. CHANGE TO TITLES 5, 6, AND 10,
31-16 GOVERNMENT CODE
31-17 SECTION 5.01. (a) Subchapter D, Chapter 551, Government
31-18 Code, is amended to conform to Section 1, Chapter 194, Acts of the
31-19 73rd Legislature, Regular Session, 1993, by adding Sections
31-20 551.0811 and 551.0812 to read as follows:
31-21 Sec. 551.0811. FINANCE COMMISSION OF TEXAS. This chapter
31-22 does not require the Finance Commission of Texas to conduct an open
31-23 meeting to deliberate a matter made confidential by law.
31-24 Sec. 551.0812. STATE BANKING BOARD. This chapter does not
31-25 require the State Banking Board to conduct an open meeting to
31-26 deliberate a matter made confidential by law.
31-27 (b) Section 1, Chapter 194, Acts of the 73rd Legislature,
32-1 Regular Session, 1993, is repealed.
32-2 SECTION 5.02. (a) Subchapter D, Chapter 551, Government
32-3 Code, is amended to conform to Section 1, Chapter 329, Acts of the
32-4 73rd Legislature, Regular Session, 1993, by adding Section 551.085
32-5 to read as follows:
32-6 Sec. 551.085. BOARD OF DIRECTORS OF MUNICIPAL HOSPITAL OR
32-7 MUNICIPAL HOSPITAL AUTHORITY. This chapter does not require the
32-8 board of directors of a municipal hospital or of a municipal
32-9 hospital authority to conduct an open meeting to deliberate:
32-10 (1) pricing or financial planning information relating
32-11 to a bid or negotiation in which the hospital offers services or
32-12 product lines as a contract service provider to another person if
32-13 disclosure of the information would give advantage to competitors
32-14 of the hospital; or
32-15 (2) information relating to a proposed new service or
32-16 product line of the hospital before the hospital publicly announces
32-17 the service or product line.
32-18 (b) Section 1, Chapter 329, Acts of the 73rd Legislature,
32-19 Regular Session, 1993, is repealed.
32-20 SECTION 5.03. (a) Subchapter C, Chapter 552, Government
32-21 Code, is amended to conform to Section 1, Chapter 98, Acts of the
32-22 73rd Legislature, Regular Session, 1993, by adding Section 552.124
32-23 to read as follows:
32-24 Sec. 552.124. EXCEPTION: RECORDS OF LIBRARY OR LIBRARY
32-25 SYSTEM. (a) A record of a library or library system, supported in
32-26 whole or in part by public funds, that identifies or serves to
32-27 identify a person who requested, obtained, or used a library
33-1 material or service is excepted from the requirements of Section
33-2 552.021 unless the record is disclosed:
33-3 (1) because the library or library system determines
33-4 that disclosure is reasonably necessary for the operation of the
33-5 library or library system and the record is not confidential under
33-6 other state or federal law;
33-7 (2) under Section 552.023; or
33-8 (3) to a law enforcement agency or a prosecutor under
33-9 a court order or subpoena obtained after a showing to a district
33-10 court that:
33-11 (A) disclosure of the record is necessary to
33-12 protect the public safety; or
33-13 (B) the record is evidence of an offense or
33-14 constitutes evidence that a particular person committed an offense.
33-15 (b) A record of a library or library system that is excepted
33-16 from required disclosure under this section is confidential.
33-17 (b) Section 1, Chapter 98, Acts of the 73rd Legislature,
33-18 Regular Session, 1993, is repealed.
33-19 SECTION 5.04. (a) Subchapter F, Chapter 552, Government
33-20 Code, is amended to conform to Section 5, Chapter 428, Acts of the
33-21 73rd Legislature, Regular Session, 1993, by adding Section 552.2611
33-22 to read as follows:
33-23 Sec. 552.2611. CHARGES FOR PUBLIC RECORDS BY STATE AGENCY.
33-24 (a) The General Services Commission by rule shall specify the
33-25 methods and procedures that a state agency may use in determining
33-26 the amounts that the agency should charge to recover the full cost
33-27 to the agency of providing copies of public records under this
34-1 chapter.
34-2 (b) Each state agency by rule shall specify the charges the
34-3 agency will make for copies of public records. A state agency may
34-4 establish a charge for a copy of a public record that is equal to
34-5 the full cost to the agency of providing the copy.
34-6 (c) A state agency shall pay to the comptroller for deposit
34-7 in an unobligated account designated by the comptroller in the
34-8 general revenue fund all money collected by the agency for
34-9 providing copies of public records.
34-10 (d) Of the total amount of money deposited in the general
34-11 revenue fund under Subsection (c), the comptroller may transfer 25
34-12 percent of the money collected for providing copies of mailing
34-13 lists, and 15 percent of the money collected for providing copies
34-14 of other public records, to the general revenue fund.
34-15 (e) The comptroller shall adopt rules to administer
34-16 Subsections (c) and (d).
34-17 (f) In this section, "state agency" has the meaning assigned
34-18 by Section 1.02, State Purchasing and General Services Act (Article
34-19 601b, Vernon's Texas Civil Statutes).
34-20 (b) Section 5, Chapter 428, Acts of the 73rd Legislature,
34-21 Regular Session, 1993, is repealed.
34-22 SECTION 5.05. (a) Section 552.122, Government Code, is
34-23 amended to conform to Section 8.30, Chapter 347, Acts of the 73rd
34-24 Legislature, Regular Session, 1993, to read as follows:
34-25 Sec. 552.122. EXCEPTION: <CURRICULUM OBJECTIVES AND> TEST
34-26 ITEMS. (a) A <curriculum objective or> test item developed by an
34-27 educational institution that is funded wholly or in part by state
35-1 revenue is excepted from the requirements of Section 552.021.
35-2 (b) A test item developed by a licensing agency or
35-3 governmental body is excepted from the requirements of Section
35-4 552.021.
35-5 (b) Section 8.30, Chapter 347, Acts of the 73rd Legislature,
35-6 Regular Session, 1993, is repealed.
35-7 SECTION 5.06. (a) Sections 572.003(b) and (c), Government
35-8 Code, are amended to read as follows to conform to:
35-9 (1) Section 16, Chapter 260, Acts of the 73rd
35-10 Legislature, Regular Session, 1993;
35-11 (2) Section 34, Chapter 284, Acts of the 73rd
35-12 Legislature, Regular Session, 1993; and
35-13 (3) Section 12, Chapter 408, Acts of the 73rd
35-14 Legislature, Regular Session, 1993:
35-15 (b) The term means:
35-16 (1) the Banking Commissioner of The Banking Department
35-17 of Texas;
35-18 (2) the fire fighters' pension commissioner;
35-19 (3) the administrative director of the Office of Court
35-20 Administration of the Texas Judicial System;
35-21 (4) the chief executive of the Office of Public
35-22 Utility Counsel;
35-23 (5) the executive director of the State Bar of Texas;
35-24 (6) the director of the lottery division of the Texas
35-25 Lottery Commission <in the office of the comptroller>;
35-26 (7) the deputy in charge of the department of security
35-27 in the lottery division of the Texas Lottery Commission <in the
36-1 office of the comptroller>; <or>
36-2 (8) the director of the bingo division of the Texas
36-3 Lottery Commission; or
36-4 (9) the secretary of state.
36-5 (c) The term means a member of:
36-6 (1) the Public Utility Commission of Texas;
36-7 (2) the Texas Department of Commerce;
36-8 (3) the Texas Natural Resource Conservation
36-9 Commission;
36-10 (4) the Texas Alcoholic Beverage Commission;
36-11 (5) The Finance Commission of Texas;
36-12 (6) the General Services Commission;
36-13 (7) the Texas Board of Criminal Justice;
36-14 (8) the board of trustees of the Employees Retirement
36-15 System of Texas;
36-16 (9) the Texas Transportation Commission;
36-17 (10) the Texas Workers' Compensation Commission;
36-18 (11) the State Board of Insurance;
36-19 (12) the Parks and Wildlife Commission;
36-20 (13) the Public Safety Commission;
36-21 (14) the Texas Ethics Commission;
36-22 (15) the State Securities Board;
36-23 (16) the Texas Water Development Board;
36-24 (17) the governing board of a public senior college or
36-25 university as defined by Section 61.003, Education Code, or of The
36-26 University of Texas Southwestern Medical Center at Dallas, The
36-27 University of Texas Medical Branch at Galveston, The University of
37-1 Texas Health Science Center at Houston, The University of Texas
37-2 Health Science Center at San Antonio, The University of Texas
37-3 System Cancer Center, The University of Texas Health Science Center
37-4 at Tyler, University of North Texas Health Science Center at Fort
37-5 Worth <Texas College of Osteopathic Medicine>, Texas Tech
37-6 University Health Sciences Center, Texas State Technical College
37-7 <Institute>--Amarillo, Texas State Technical College
37-8 <Institute>--Harlingen, Texas State Technical College
37-9 <Institute>--Sweetwater, or Texas State Technical College
37-10 <Institute>--Waco;
37-11 (18) the Texas Higher Education Coordinating Board;
37-12 (19) the Texas Employment Commission;
37-13 (20) the State Banking Board;
37-14 (21) the board of trustees of the Teacher <Teachers>
37-15 Retirement System of Texas;
37-16 (22) the Credit Union Commission;
37-17 (23) the School Land Board;
37-18 (24) the board of the Texas Department of Housing and
37-19 Community Affairs;
37-20 (25) the Texas Racing Commission;
37-21 (26) the State Board of Dental Examiners;
37-22 (27) the Texas Board of Licensure for Nursing Home
37-23 Administrators;
37-24 (28) the Texas State Board of Medical Examiners;
37-25 (29) the Board of Pardons and Paroles;
37-26 (30) the State Board of Pharmacy;
37-27 (31) the Department of Information Resources governing
38-1 board;
38-2 (32) the Motor Vehicle Board;
38-3 (33) the Texas Real Estate Commission;
38-4 (34) the board of directors of the State Bar of Texas;
38-5 (35) the bond review board;
38-6 (36) the Texas Board of Health;
38-7 (37) the Texas Board of Mental Health and Mental
38-8 Retardation;
38-9 (38) the Texas Board on Aging;
38-10 (39) the Texas Board of Human Services;
38-11 (40) the Texas Funeral Service Commission; <or>
38-12 (41) the board of directors of a river authority
38-13 created under the Texas Constitution or a statute of this state; or
38-14 (42) the Texas Lottery Commission.
38-15 (b) The following are repealed:
38-16 (1) Section 16, Chapter 260, Acts of the 73rd
38-17 Legislature, Regular Session, 1993;
38-18 (2) Section 34, Chapter 284, Acts of the 73rd
38-19 Legislature, Regular Session, 1993; and
38-20 (3) Section 12, Chapter 408, Acts of the 73rd
38-21 Legislature, Regular Session, 1993.
38-22 SECTION 5.07. (a) Section 573.061, Government Code, is
38-23 amended to conform to Section 1, Chapter 283, Acts of the 73rd
38-24 Legislature, Regular Session, 1993, to read as follows:
38-25 Sec. 573.061. GENERAL EXCEPTIONS. Section 573.041 does not
38-26 apply to:
38-27 (1) an appointment to the office of a notary public or
39-1 to the confirmation of that appointment;
39-2 (2) an appointment of a page, secretary, attendant, or
39-3 other employee by the legislature for attendance on any member of
39-4 the legislature who, because of physical infirmities, is required
39-5 to have a personal attendant;
39-6 (3) a confirmation of the appointment of an appointee
39-7 appointed to a first term on a date when no individual related to
39-8 the appointee within a degree described by Section 573.002 was a
39-9 member of or a candidate for the legislature, or confirmation on
39-10 reappointment of the appointee to any subsequent consecutive term;
39-11 <or>
39-12 (4) an appointment or employment of a substitute
39-13 teacher or bus driver by a school district if:
39-14 (A) the district is located wholly in a county
39-15 with a population of less than 35,000; or
39-16 (B) the district is located in more than one
39-17 county and the county in which the largest part of the district is
39-18 located has a population of less than 35,000; or
39-19 (5) an appointment or employment of a personal
39-20 attendant by an officer of the state or a political subdivision of
39-21 the state for attendance on the officer who, because of physical
39-22 infirmities, is required to have a personal attendant.
39-23 (b) Section 1, Chapter 283, Acts of the 73rd Legislature,
39-24 Regular Session, 1993, is repealed.
39-25 SECTION 5.08. (a) Section 604.003(a), Government Code, is
39-26 amended to conform to Section 5, Chapter 449, Acts of the 73rd
39-27 Legislature, Regular Session, 1993, to read as follows:
40-1 (a) Except as provided by Subsection (b) or other law, the
40-2 officer approving the bond of an officer required by law to give an
40-3 official bond payable to the governor or the state shall deposit
40-4 the bond with the comptroller.
40-5 (b) Section 5, Chapter 449, Acts of the 73rd Legislature,
40-6 Regular Session, 1993, is repealed.
40-7 SECTION 5.09. (a) Section 608.010(a), Government Code, is
40-8 amended to conform to Section 9, Chapter 449, Acts of the 73rd
40-9 Legislature, Regular Session, 1993, to read as follows:
40-10 (a) A department administrator or disbursing officer shall
40-11 stop deducting money under this chapter from the compensation of an
40-12 officer or employee if:
40-13 (1) the individual stops being an officer or employee
40-14 of the department or political subdivision;
40-15 (2) the individual <in writing> notifies the
40-16 department administrator or disbursing officer by electronic means
40-17 or in writing that the individual elects to cancel the
40-18 authorization; or
40-19 (3) the arrangement for deducting money by department
40-20 administrators or disbursing officers is terminated.
40-21 (b) Section 608.002(b), Government Code, is amended to
40-22 conform to Section 9, Chapter 449, Acts of the 73rd Legislature,
40-23 Regular Session, 1993, to read as follows:
40-24 (b) An authorization must:
40-25 (1) be in writing or recorded by electronic means; and
40-26 (2) <must> state:
40-27 (A) <(1)> the period for which the authorization
41-1 is to be in effect; and
41-2 (B) <(2)> the amount to be deducted.
41-3 (c) Chapter 608, Government Code, is amended to conform to
41-4 Section 9, Chapter 449, Acts of the 73rd Legislature, Regular
41-5 Session, 1993, by adding Section 608.012 to read as follows:
41-6 Sec. 608.012. TRANSFER BY ELECTRONIC MEANS. A disbursement,
41-7 deposit, or purchase required by this chapter to be made by warrant
41-8 may instead be made by electronic means.
41-9 (d) Section 9, Chapter 449, Acts of the 73rd Legislature,
41-10 Regular Session, 1993, is repealed.
41-11 SECTION 5.10. (a) Sections 609.503, 609.504, and 609.508,
41-12 Government Code, are amended to conform to Section 10, Chapter 449,
41-13 Acts of the 73rd Legislature, Regular Session, 1993, to read as
41-14 follows:
41-15 Sec. 609.503. CHANGING AMOUNT DEFERRED. An employee may
41-16 change the amount to be deferred by notifying <giving written
41-17 notification of the change to> the board of trustees in accordance
41-18 with the requirements of the board of trustees.
41-19 Sec. 609.504. INVESTMENT AND TRANSFER OF DEFERRED AMOUNTS
41-20 AND INCOME. After execution of a contract under Section 609.007,
41-21 the board of trustees shall:
41-22 (1) invest the deferred amounts and investment income
41-23 of the employee in the qualified investment products designated <in
41-24 writing> by the employee; and
41-25 (2) promptly transfer the deferred amounts and
41-26 investment income of the employee from one qualified investment
41-27 product to another in accordance with the requirements of the board
42-1 of trustees <on the employee's written request>.
42-2 Sec. 609.508. RULES. The board of trustees may adopt rules,
42-3 including plans and procedures, and orders necessary to carry out
42-4 the purposes of this subchapter, including rules or orders relating
42-5 to:
42-6 (1) the selection and regulation of vendors for a
42-7 deferred compensation plan;
42-8 (2) the regulation of the practices of agents employed
42-9 by vendors;
42-10 (3) the disclosure of information concerning
42-11 investment products;
42-12 (4) the regulation of advertising materials to be used
42-13 by vendors; <and>
42-14 (5) the submission of financial information by a
42-15 vendor; and
42-16 (6) the development of a system to facilitate
42-17 electronic authorization, distribution, transfer, and investment of
42-18 deferrals.
42-19 (b) Section 10, Chapter 449, Acts of the 73rd Legislature,
42-20 Regular Session, 1993, is repealed.
42-21 SECTION 5.11. (a) Section 612.003, Government Code, is
42-22 amended to conform to Section 1, Chapter 1000, Acts of the 73rd
42-23 Legislature, Regular Session, 1993, by adding Subsection (c) to
42-24 read as follows:
42-25 (c) A state agency that operates a habilitative or
42-26 rehabilitative work program for individuals who are mentally ill or
42-27 developmentally disabled may purchase from the proceeds of the
43-1 program insurance to cover liability arising from the operation of
43-2 the program if a contractor under the program does not accept
43-3 indemnification provisions by the state as sufficient.
43-4 (b) Section 1, Chapter 1000, Acts of the 73rd Legislature,
43-5 Regular Session, 1993, is repealed.
43-6 SECTION 5.12. (a) Section 615.021, Government Code, is
43-7 amended to conform to Section 1, Chapter 572, Acts of the 73rd
43-8 Legislature, Regular Session, 1993, to read as follows:
43-9 Sec. 615.021. Eligible Survivors. A survivor of an
43-10 individual listed under Section 615.003 is eligible for the payment
43-11 of assistance under this chapter if:
43-12 (1) the listed individual died in the course of the
43-13 individual's duty performed in the individual's position as
43-14 described by Section 615.003 as a result of exposure to a risk:
43-15 (A) that is inherent in the duty; or <and>
43-16 (B) to which the general public is not
43-17 customarily exposed; and
43-18 (2) the survivor is:
43-19 (A) the surviving spouse of the listed
43-20 individual;
43-21 (B) a minor child of the listed individual;
43-22 (C) a surviving parent of the listed individual,
43-23 if:
43-24 (i) there is no surviving spouse or minor
43-25 child; and
43-26 (ii) the parent was claimed as a dependent
43-27 on the income tax return filed with the Internal Revenue Service by
44-1 the listed individual in the year preceding the year in which the
44-2 listed individual died; or
44-3 (D) a surviving sibling of the listed individual
44-4 and is younger than 18 years of age, if:
44-5 (i) there is no surviving spouse or minor
44-6 child; and
44-7 (ii) the sibling was claimed as a
44-8 dependent on the income tax return filed with the Internal Revenue
44-9 Service by the listed individual in the year preceding the year in
44-10 which the listed individual died.
44-11 (b) Section 615.003, Government Code, is amended to conform
44-12 to Sections 1 and 2, Chapter 572, Acts of the 73rd Legislature,
44-13 Regular Session, 1993, to read as follows:
44-14 Sec. 615.003. Applicability. This chapter applies only to
44-15 eligible survivors of the following individuals:
44-16 (1) an individual elected, appointed, or employed as a
44-17 peace officer by the state or a political subdivision of the state
44-18 under <as defined by> Article 2.12, Code of Criminal Procedure, or
44-19 other law;
44-20 (2) a paid probation officer appointed by the director
44-21 of a community supervision and corrections department who has the
44-22 duties set out in Section 2 and the qualifications set out in
44-23 Section 5, Article 42.131, Code of Criminal Procedure, or who was
44-24 appointed in accordance with prior law;
44-25 (3) a parole officer employed by the pardons and
44-26 paroles division of the Texas Department of Criminal Justice who
44-27 has the duties set out in Section 2 and the qualifications set out
45-1 in Section 19, Article 42.18, Code of Criminal Procedure, or in
45-2 prior law;
45-3 (4) a paid jailer;
45-4 (5) a member of an organized police reserve or
45-5 auxiliary unit who regularly assists peace officers in enforcing
45-6 criminal laws;
45-7 (6) a member of the class of employees of the
45-8 institutional division of the Texas Department of Criminal Justice
45-9 formally designated as custodial personnel under Section 615.006 by
45-10 the Texas Board of Criminal Justice or its predecessor in function;
45-11 (7) a jailer or guard of a county jail who is
45-12 appointed by the sheriff and who:
45-13 (A) performs a security, custodial, or
45-14 supervisory function over the admittance, confinement, or discharge
45-15 of prisoners; and
45-16 (B) is certified by the Texas Commission on Law
45-17 Enforcement Officer Standards and Education;
45-18 (8) a juvenile correctional employee of the Texas
45-19 Youth Commission;
45-20 (9) an employee of <the maximum security unit of> the
45-21 Texas Department of Mental Health and Mental Retardation who:
45-22 (A) works at the department's maximum security
45-23 unit; or
45-24 (B) performs on-site services for the Texas
45-25 Department of Criminal Justice;
45-26 (10) an individual who is employed by the state or a
45-27 political or legal subdivision and is subject to certification by
46-1 the Texas Commission on Fire Protection;
46-2 (11) an individual employed by the state or a
46-3 political or legal subdivision whose principal duties are aircraft
46-4 crash and rescue fire fighting; or
46-5 (12) a member of an organized volunteer fire-fighting
46-6 unit that:
46-7 (A) renders fire-fighting services without
46-8 remuneration;
46-9 (B) consists of not fewer than 20 active
46-10 members, a majority of which are present at each meeting; and
46-11 (C) conducts a minimum of two drills each month,
46-12 each two hours long<; or>
46-13 <(13) a game warden who is an employee of the state
46-14 and who receives full-time pay for the enforcement of game laws and
46-15 rules>.
46-16 (c) Sections 615.022 and 615.024, Government Code, are
46-17 amended to conform to Section 2, Chapter 572, Acts of the 73rd
46-18 Legislature, Regular Session, 1993, to read as follows:
46-19 Sec. 615.022. Payment to Surviving Spouse. The state shall
46-20 pay $50,000 <$20,000> to an eligible surviving spouse.
46-21 Sec. 615.024. Payment to Surviving Dependent Parent. The
46-22 state shall pay an eligible surviving dependent parent:
46-23 (1) $50,000, <$20,000,> if there is only one eligible
46-24 surviving dependent parent; or
46-25 (2) $25,000 <$10,000> each, if there are two eligible
46-26 surviving dependent parents.
46-27 (d) Sections 1 and 2, Chapter 572, Acts of the 73rd
47-1 Legislature, Regular Session, 1993, are repealed.
47-2 SECTION 5.13. (a) Chapter 615, Government Code, is amended
47-3 to codify Articles 6228f.1 and 6228f.2, Revised Statutes, as added
47-4 by Sections 6 and 7, Chapter 572, Acts of the 73rd Legislature,
47-5 Regular Session, 1993, and to conform to Sections 3-5, Chapter 572,
47-6 Acts of the 73rd Legislature, Regular Session, 1993, by adding
47-7 Subchapters D and E to read as follows:
47-8 SUBCHAPTER D. HEALTH INSURANCE COVERAGE FOR ELIGIBLE SURVIVORS
47-9 Sec. 615.071. APPLICABILITY. This subchapter applies only
47-10 to eligible survivors of:
47-11 (1) an individual listed in Section 615.003(1), (6),
47-12 or (7); or
47-13 (2) an individual listed in Section 615.003(10) or
47-14 (11) who is employed by a political subdivision of the state.
47-15 Sec. 615.072. ELIGIBLE SURVIVORS. A survivor of an
47-16 individual listed under Section 615.071 is eligible for the health
47-17 insurance benefits provided under this subchapter if:
47-18 (1) the listed individual died in the course of the
47-19 individual's duty performed in the individual's position as
47-20 described by Section 615.071 as a result of exposure to a risk:
47-21 (A) that is inherent in the duty; or
47-22 (B) to which the general public is not
47-23 customarily exposed; and
47-24 (2) the survivor is:
47-25 (A) the surviving spouse of the listed
47-26 individual; or
47-27 (B) a dependent of the listed individual.
48-1 Sec. 615.073. BENEFIT TO SURVIVING SPOUSE. (a) An eligible
48-2 surviving spouse of a deceased individual listed in Section 615.071
48-3 who was employed by the state is entitled to purchase continued
48-4 health insurance benefits under the Texas Employees Uniform Group
48-5 Insurance Benefits Act (Article 3.50-2, Vernon's Texas Insurance
48-6 Code), as provided by this subchapter.
48-7 (b) An eligible surviving spouse of a deceased individual
48-8 listed in Section 615.071 who was employed by a political
48-9 subdivision of the state is entitled to purchase continued health
48-10 insurance benefits from the political subdivision that employed the
48-11 deceased individual, including health coverage:
48-12 (1) provided by or through a political subdivision
48-13 under a self-insured health benefits plan; or
48-14 (2) under Chapter 172, Local Government Code.
48-15 (c) The surviving spouse is entitled to continue to purchase
48-16 health insurance coverage until the earlier of:
48-17 (1) the date the surviving spouse remarries;
48-18 (2) the date the surviving spouse becomes eligible for
48-19 group health insurance through another employer; or
48-20 (3) the date the surviving spouse becomes eligible for
48-21 federal Medicare benefits.
48-22 Sec. 615.074. BENEFIT TO DEPENDENT. (a) An eligible
48-23 surviving dependent who is a minor child is entitled to continue
48-24 health insurance coverage until the dependent:
48-25 (1) reaches the age of 21 years; or
48-26 (2) becomes eligible for group health insurance
48-27 through another employer.
49-1 (b) An eligible surviving dependent who is not a minor child
49-2 is entitled to continue health insurance coverage until the earlier
49-3 of:
49-4 (1) the date the dependent marries;
49-5 (2) the date the dependent becomes eligible for group
49-6 health insurance through another employer; or
49-7 (3) the date the dependent becomes eligible for
49-8 federal Medicare benefits.
49-9 Sec. 615.075. NOTICE. (a) An employing entity shall
49-10 provide written notice to an eligible survivor to whom this
49-11 subchapter may apply of the survivor's rights under this subchapter
49-12 not later than the 10th day after the date of the decedent's death.
49-13 (b) If an eligible survivor is a minor child, the employing
49-14 entity shall also, at the same time, provide the notice to the
49-15 child's parent or guardian, unless, after reasonable effort, the
49-16 parent or guardian cannot be located.
49-17 (c) To receive continued coverage under this subchapter, the
49-18 employing entity must be informed not later than the 90th day after
49-19 the date the decedent died that the eligible survivor elects to
49-20 continue coverage.
49-21 Sec. 615.076. LEVEL OF COVERAGE. (a) An eligible survivor
49-22 may elect to continue coverage at any level of benefits currently
49-23 offered by the employing entity to dependents of an active
49-24 employee.
49-25 (b) An eligible survivor may elect to continue coverage at a
49-26 reduced level of benefits if the employing entity offers that
49-27 option.
50-1 Sec. 615.077. PAYMENTS; RATE. An eligible survivor who is
50-2 entitled to continued coverage under this subchapter is entitled
50-3 to:
50-4 (1) make payments for the coverage or have payments
50-5 made on the survivor's behalf at the same time and to the same
50-6 entity that payments for coverage are made by current employees of
50-7 the employing entity; and
50-8 (2) purchase the coverage at the group rate for that
50-9 coverage that exists at the time of payment.
50-10 Sec. 615.078. CERTAIN PRACTICES NOT PROHIBITED OR AFFECTED.
50-11 This subchapter does not:
50-12 (1) prohibit an employing entity from uniformly
50-13 changing the group health insurance plan or group health coverage
50-14 plan provided for its employees and employees' dependents;
50-15 (2) affect the definition of a dependent or the
50-16 eligibility requirements for a dependent under a plan;
50-17 (3) prohibit an employing entity from increasing the
50-18 cost of group health coverage to its employees and to eligible
50-19 survivors covered under this subchapter to reflect any increased
50-20 cost attributable to compliance with this subchapter; or
50-21 (4) affect the right of a political subdivision to
50-22 self-insure or provide coverage under Chapter 172, Local Government
50-23 Code.
50-24 Sec. 615.079. BENEFITS ADDITIONAL. The benefits provided by
50-25 this subchapter are in addition to any other benefits provided by
50-26 this chapter.
50-27 (Sections 615.080-615.100 reserved for expansion
51-1 SUBCHAPTER E. ADDITIONAL BENEFITS FOR ELIGIBLE SURVIVORS
51-2 Sec. 615.101. DEFINITION. In this subchapter, "governmental
51-3 entity" includes the state, an agency or institution of the state,
51-4 or a political subdivision of the state.
51-5 Sec. 615.102. DUTY WEAPON AND BADGE. (a) This section
51-6 applies only to:
51-7 (1) an individual listed in Section 615.003(1) who is
51-8 employed by a political subdivision of the state;
51-9 (2) a peace officer under Article 2.12, Code of
51-10 Criminal Procedure, or other law who is employed by the state,
51-11 including any state agency or any institution of higher education
51-12 under Section 61.003, Education Code; or
51-13 (3) an individual listed in Section 615.003(7).
51-14 (b) On the death of an individual listed in Subsection (a),
51-15 the employing governmental entity shall provide, at no cost, the
51-16 deceased individual's duty weapon, if any, and badge to the
51-17 individual's:
51-18 (1) designated beneficiary; or
51-19 (2) estate if the individual did not designate a
51-20 beneficiary.
51-21 (c) A governmental entity that employs an individual listed
51-22 in Subsection (a) shall provide the individual a form on which the
51-23 individual may designate the individual's beneficiaries for
51-24 purposes of this section.
51-25 (d) A governmental entity is not liable for damages caused
51-26 by the use or misuse of a duty weapon provided to a designated
51-27 beneficiary or estate under this section.
52-1 Sec. 615.103. BURIAL WITH UNIFORM. (a) This section
52-2 applies only to:
52-3 (1) an individual listed in Section 615.003(1) who is
52-4 employed by a political subdivision of the state;
52-5 (2) a peace officer under Article 2.12, Code of
52-6 Criminal Procedure, or other law who is employed by the state,
52-7 including any state agency or any institution of higher education
52-8 under Section 61.003, Education Code;
52-9 (3) an individual listed in Section 615.003(7); or
52-10 (4) an individual listed in Section 615.003(10) or
52-11 (11) who is employed by a political subdivision of the state.
52-12 (b) If an individual listed in Subsection (a) dies and is to
52-13 be buried in the individual's uniform, the employing governmental
52-14 entity shall provide the uniform at no cost.
52-15 Sec. 615.104. BENEFITS ADDITIONAL. The benefits provided by
52-16 this subchapter are in addition to any other benefits provided by
52-17 this chapter.
52-18 (b) Articles 6228f.1 and 6228f.2, Revised Statutes, and
52-19 Sections 3-5, Chapter 572, Acts of the 73rd Legislature, Regular
52-20 Session, 1993, are repealed.
52-21 SECTION 5.14. (a) Section 659.002, Government Code, is
52-22 amended to conform to Section 15, Chapter 449, Acts of the 73rd
52-23 Legislature, Regular Session, 1993, by adding Subsection (c) to
52-24 read as follows:
52-25 (c) To the extent that the laws, regulations, and rules of
52-26 this state or the United States do not specify the priority of
52-27 deductions, the comptroller by rule may determine the priority for
53-1 compensation paid by a state governmental body.
53-2 (b) Section 15, Chapter 449, Acts of the 73rd Legislature,
53-3 Regular Session, 1993, is repealed.
53-4 SECTION 5.15. (a) Subchapter E, Chapter 659, Government
53-5 Code, is amended to conform to Section 1, Chapter 85, Acts of the
53-6 73rd Legislature, Regular Session, 1993, by adding Section 659.063
53-7 to read as follows:
53-8 Sec. 659.063. HAZARDOUS DUTY PAY: TEXAS YOUTH COMMISSION
53-9 EMPLOYEES. (a) An employee of the Texas Youth Commission who has
53-10 routine direct contact with youth placed in a residential facility
53-11 of the Texas Youth Commission or with youth released under the
53-12 commission's supervision may receive hazardous duty pay in an
53-13 amount that does not exceed the amount authorized by Section
53-14 659.062(a).
53-15 (b) Hazardous duty pay under this section:
53-16 (1) is subject to the conditions and limitations in
53-17 Section 659.062 and the General Appropriations Act; and
53-18 (2) may not be made:
53-19 (A) from funds authorized for payment of an
53-20 across-the-board employee salary increase; or
53-21 (B) to an employee who works at the central
53-22 office of the commission or an employee whose work for the
53-23 commission involves only occasional contact with youth.
53-24 (c) The receipt of a payment under this section by an
53-25 employee does not qualify the employee for retirement benefits from
53-26 the law enforcement and custodial officer supplemental retirement
53-27 fund.
54-1 (b) Section 1, Chapter 85, Acts of the 73rd Legislature,
54-2 Regular Session, 1993, is repealed.
54-3 SECTION 5.16. (a) Chapter 659, Government Code, is amended
54-4 to codify Article 6813g, Revised Statutes, and conform to Section
54-5 1, Chapter 922, Acts of the 73rd Legislature, Regular Session,
54-6 1993, by adding Subchapter G to read as follows:
54-7 SUBCHAPTER G. SUPPLEMENTAL DEDUCTIONS
54-8 Sec. 659.101. DEFINITION. In this subchapter, "state
54-9 agency" means a department, commission, board, office, or other
54-10 agency of any branch of state government, including an institution
54-11 of higher education as defined by Section 61.003, Education Code.
54-12 Sec. 659.102. DEDUCTION FOR SUPPLEMENTAL OPTIONAL BENEFITS
54-13 PROGRAM. (a) An employee of a state agency may authorize in
54-14 writing a deduction each pay period from the employee's salary or
54-15 wage payment for coverage of the employee under an eligible
54-16 supplemental optional benefits program.
54-17 (b) The Employees Retirement System of Texas shall designate
54-18 supplemental optional benefits programs that are eligible under
54-19 this section and that promote the interests of the state and state
54-20 agency employees.
54-21 (c) The supplemental optional benefits program may include
54-22 permanent life insurance, catastrophic illness insurance,
54-23 disability insurance, or prepaid legal services.
54-24 Sec. 659.103. DEDUCTION TO CREDIT UNION. (a) An employee
54-25 of a state agency may authorize in writing a deduction each pay
54-26 period from the employee's salary or wage payment for payment to a
54-27 credit union to be credited to a share or deposit account of the
55-1 employee.
55-2 (b) A designation by the Employees Retirement System of
55-3 Texas is not necessary for a deduction under this section.
55-4 Sec. 659.104. AUTHORIZATION. (a) An authorization for a
55-5 deduction under this subchapter must direct the comptroller or, if
55-6 applicable, the appropriate financial officer of an institution of
55-7 higher education to transfer the withheld funds to the program or
55-8 credit union designated by the employee.
55-9 (b) The comptroller or financial officer shall comply with
55-10 the direction.
55-11 Sec. 659.105. FORM AND MANNER. A deduction under this
55-12 subchapter must be made in a form and manner prescribed by the
55-13 comptroller or the appropriate financial officer of an institution
55-14 of higher education.
55-15 Sec. 659.106. DURATION. (a) An employee authorizing a
55-16 deduction under this subchapter or a person designated by the
55-17 employee may change or revoke the authorization by delivering
55-18 written notice of the change or revocation to the comptroller or
55-19 the appropriate financial officer of an institution of higher
55-20 education.
55-21 (b) An authorization is effective until the comptroller or
55-22 financial officer receives the notice.
55-23 (c) The notice must be given in the form and manner
55-24 prescribed by the comptroller or financial officer.
55-25 Sec. 659.107. AUTHORIZATION VOLUNTARY. The making of an
55-26 authorization for a deduction under this subchapter by the employee
55-27 is voluntary.
56-1 Sec. 659.108. WITHHOLDING OF ADMINISTRATIVE FEE. (a) The
56-2 state may withhold from the employee's salary or wage payment an
56-3 administrative fee for making a deduction under this subchapter.
56-4 (b) An institution of higher education that is authorized to
56-5 operate a payroll system reimbursable from the state treasury may
56-6 withhold from the employee's salary or wage payment an
56-7 administrative fee for making the deduction under this subchapter.
56-8 (c) The administrative fee may not exceed the lower of the
56-9 actual administrative cost of making the deduction or the highest
56-10 fee charged by the state or institution, as appropriate, for making
56-11 another similar deduction.
56-12 Sec. 659.109. ALLOCATION AND APPROPRIATION OF ADMINISTRATIVE
56-13 FEES. (a) The state shall allocate and pay to each state agency
56-14 that incurs costs in administering this subchapter the agency's
56-15 proportional amount of the administrative fees collected by the
56-16 state under this subchapter.
56-17 (b) An administrative fee withheld under this subchapter may
56-18 be used, without further appropriation, by the comptroller and the
56-19 state agencies incurring costs in administering this subchapter.
56-20 (b) Section 1, Chapter 922, Acts of the 73rd Legislature,
56-21 Regular Session, 1993, is repealed.
56-22 SECTION 5.17. (a) Chapter 659, Government Code, is amended
56-23 to codify Article 6813h, Revised Statutes, as added by Section 2,
56-24 Chapter 922, Acts of the 73rd Legislature, Regular Session, 1993,
56-25 by adding Subchapter H to read as follows:
56-26 SUBCHAPTER H. CHARITABLE CONTRIBUTIONS
56-27 Sec. 659.131. DEFINITIONS. In this subchapter:
57-1 (1) "Campaign manager" means a local campaign manager
57-2 or state campaign manager.
57-3 (2) "Charitable organization" means an organization
57-4 that:
57-5 (A) is organized for charitable purposes under
57-6 the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq.,
57-7 Vernon's Texas Civil Statutes) or holds a certificate of authority
57-8 issued under that Act;
57-9 (B) is exempt from taxation under Section 501(a)
57-10 of the Internal Revenue Code of 1986 as an organization described
57-11 in Section 501(c)(3) of that code and to which contributions are
57-12 deductible for income tax purposes under Section 170 of that code;
57-13 (C) complies with all applicable federal
57-14 nondiscrimination law, including Chapter 21, Title 42, United
57-15 States Code;
57-16 (D) complies with all state statutes and rules
57-17 relating to charitable organizations; and
57-18 (E) is not a private foundation.
57-19 (3) "Direct services" means providing funds or
57-20 programs for health and human services that directly benefit the
57-21 recipients.
57-22 (4) "Eligible charitable organization" means a
57-23 charitable organization eligible to participate in the state
57-24 employee charitable contribution campaign as provided by Section
57-25 659.146.
57-26 (5) "Federated community campaign organization" means
57-27 a federation or fund that:
58-1 (A) has demonstrated expertise in conducting
58-2 workplace charitable campaigns; and
58-3 (B) distributes funds raised through a
58-4 cooperative community campaign to at least five agencies that
58-5 provide direct services to residents of the campaign area.
58-6 (6) "Federation or fund" means a fund-raising entity
58-7 that:
58-8 (A) is a charitable organization;
58-9 (B) acts as an agent for at least five
58-10 charitable organizations;
58-11 (C) is not organized exclusively to solicit
58-12 contributions from state employees; and
58-13 (D) is supported by voluntary contributions by
58-14 the public and is:
58-15 (i) incorporated in this state and has an
58-16 established physical presence in this state in the form of an
58-17 office or service facility that is staffed at least 20 hours a
58-18 week; or
58-19 (ii) incorporated outside this state,
58-20 includes at least 10 affiliated charitable organizations, has
58-21 existed at least three years, and participates in state employee
58-22 charitable campaigns in at least 10 other states.
58-23 (7) "Health and human services" means services
58-24 provided by a charitable organization that:
58-25 (A) benefit residents of this state, including
58-26 children, youth, adults, elderly individuals, ill or infirm
58-27 individuals, or individuals with a mental or physical disability;
59-1 and
59-2 (B) consist of:
59-3 (i) human care, medical or other research
59-4 in the field of human health, education, social adjustment, or
59-5 rehabilitation;
59-6 (ii) relief for victims of natural
59-7 disaster or other emergencies; or
59-8 (iii) assistance to impoverished
59-9 individuals in need of food, shelter, clothing, or other basic
59-10 needs.
59-11 (8) "Indirect services" means health and human
59-12 services that:
59-13 (A) are not direct services; and
59-14 (B) demonstrably benefit residents of this
59-15 state.
59-16 (9) "Institution of higher education" has the meaning
59-17 assigned by Section 61.003, Education Code.
59-18 (10) "International federation or fund" means a
59-19 federation or fund whose affiliated charities provide direct and
59-20 substantial health and human services to needy individuals of other
59-21 nations.
59-22 (11) "Local campaign area" means the county or
59-23 counties in which a local campaign manager conducts a state
59-24 employee charitable campaign.
59-25 (12) "Local campaign manager" means the local campaign
59-26 manager selected by the local employee committee as provided by
59-27 Section 659.144.
60-1 (13) "Local charitable organization" means a
60-2 charitable organization that:
60-3 (A) provides direct or indirect health and human
60-4 services; and
60-5 (B) is accessible to state employees in the
60-6 local campaign area by maintaining:
60-7 (i) a publicly identified office with a
60-8 professional or volunteer staff within the local campaign area that
60-9 is open at least 20 hours a week during normal working hours; and
60-10 (ii) a locally listed telephone number.
60-11 (14) "Local employee committee" means a local state
60-12 employee charitable campaign committee selected as provided by
60-13 Section 659.143.
60-14 (15) "State advisory committee" means the state
60-15 employee charitable campaign advisory committee appointed under
60-16 Section 659.142.
60-17 (16) "State agency" means a department, commission,
60-18 board, office, institution of higher education, or other agency of
60-19 state government.
60-20 (17) "State campaign manager" means the state campaign
60-21 manager selected by the state policy committee under Section
60-22 659.140(e)(2).
60-23 (18) "State employee" means an employee of a state
60-24 agency.
60-25 (19) "State employee charitable campaign" means an
60-26 annual campaign conducted in communities or areas in which state
60-27 employees solicit contributions to an eligible charitable
61-1 organization.
61-2 (20) "State policy committee" means the state employee
61-3 charitable campaign policy committee appointed under Section
61-4 659.140.
61-5 (21) "Statewide charitable organization" means a
61-6 federation or fund and its affiliated agencies that:
61-7 (A) provide direct or indirect health and human
61-8 services to residents of two or more noncontiguous standard
61-9 metropolitan statistical areas of this state; and
61-10 (B) have demonstrated the federation or fund is
61-11 accessible to state employees by maintaining:
61-12 (i) a staff or volunteer representative
61-13 residing in this state who is accessible at least 20 hours a week
61-14 during normal working hours; and
61-15 (ii) a toll-free long-distance telephone
61-16 number.
61-17 Sec. 659.132. DEDUCTION AUTHORIZED. (a) A state employee
61-18 may authorize a deduction each pay period from the employee's
61-19 salary or wage payment for a charitable contribution as provided by
61-20 this subchapter.
61-21 (b) An authorization must direct the comptroller to
61-22 distribute the deducted funds to a participating federation or fund
61-23 and a local campaign manager as prescribed by rule.
61-24 (c) A deduction under this subchapter must be in the form
61-25 prescribed by the comptroller.
61-26 (d) A state agency other than an institution of higher
61-27 education is not required to permit an employee to authorize a
62-1 deduction under this subchapter until the first full payroll period
62-2 after the agency converts to a system in which uniform statewide
62-3 payroll procedures are followed.
62-4 (e) The comptroller by rule may establish a reasonable
62-5 minimum deduction for each pay period.
62-6 Sec. 659.133. VOLUNTARY PARTICIPATION. (a) Participation
62-7 by a state employee in a state employee charitable campaign is
62-8 voluntary. Each campaign manager, local employee committee,
62-9 charitable organization, state employee, and state agency shall
62-10 inform state employees that deductions are voluntary.
62-11 (b) The comptroller shall adopt rules establishing a process
62-12 for hearing employee complaints regarding coercive activity in a
62-13 state employee charitable campaign.
62-14 Sec. 659.134. DESIGNATION OF AN ELIGIBLE CHARITABLE
62-15 ORGANIZATION. (a) A state employee may designate in the
62-16 authorization an eligible charitable organization to receive the
62-17 deductions.
62-18 (b) If a state employee does not designate an eligible
62-19 charitable organization, the employee's deductions shall be
62-20 distributed to each participating federation or fund and eligible
62-21 local charitable organization in the proportion that the deductions
62-22 designated for that charitable organization bear to the total of
62-23 designated deductions in the local state employee charitable
62-24 campaign.
62-25 Sec. 659.135. CONFIDENTIALITY. (a) Except as necessary to
62-26 administer this subchapter or on written authorization of the
62-27 employee, the following information is confidential:
63-1 (1) whether a state employee has authorized a
63-2 deduction under this subchapter;
63-3 (2) the amount of the deduction; and
63-4 (3) the name of a federation or fund or local
63-5 charitable organization that a state employee has designated to
63-6 receive contributions.
63-7 (b) The designation of a charitable organization by a state
63-8 employee is not confidential if the employee executes a written
63-9 pledge card or other document indicating that the employee wishes
63-10 to receive an acknowledgement from the charitable organization.
63-11 Sec. 659.136. REVOCATION OR CHANGE OF AUTHORIZATION. (a) A
63-12 state employee may revoke or change an authorization by giving
63-13 notice to the employing state agency.
63-14 (b) The notice must be in the form and manner prescribed by
63-15 the comptroller.
63-16 (c) A revocation or change takes effect when it is approved
63-17 by the comptroller.
63-18 Sec. 659.137. DURATION OF DEDUCTION. A deduction by a state
63-19 employee under this subchapter ends on:
63-20 (1) the first anniversary of the date it begins; or
63-21 (2) the effective date of a revocation of or change in
63-22 the authorization by the employee.
63-23 Sec. 659.138. TIME OF CAMPAIGN. A state employee charitable
63-24 campaign shall be conducted each autumn.
63-25 Sec. 659.139. FAIR AND EQUITABLE MANAGEMENT OF CAMPAIGN. A
63-26 state employee charitable campaign must be managed fairly and
63-27 equitably in accordance with this subchapter and the policies and
64-1 procedures established by the state policy committee.
64-2 Sec. 659.140. STATE EMPLOYEE CHARITABLE CAMPAIGN POLICY
64-3 COMMITTEE. (a) The state employee charitable campaign policy
64-4 committee consists of not more than 10 members.
64-5 (b) The governor may appoint not more than four members.
64-6 The lieutenant governor and the comptroller may appoint not more
64-7 than three members each.
64-8 (c) Each member of the state policy committee must be a
64-9 state employee. The membership must represent employees at
64-10 different levels of employee classification.
64-11 (d) Appointments shall be made to the state policy committee
64-12 to ensure that the committee reflects the race, ethnicity, and
64-13 national origin of the residents of this state.
64-14 (e) The state policy committee shall:
64-15 (1) establish local campaign areas based on
64-16 recommendations by the state advisory committee;
64-17 (2) select an eligible federated community campaign
64-18 organization to be the state campaign manager;
64-19 (3) determine the eligibility of a federation or fund
64-20 and its affiliated agencies for statewide participation in the
64-21 state employee charitable campaign;
64-22 (4) approve the recommended campaign plan, budget, and
64-23 generic materials to be used by campaign managers;
64-24 (5) oversee the state employee charitable campaign to
64-25 ensure that all campaign activities are conducted fairly and
64-26 equitably to promote unified solicitation on behalf of all
64-27 participants; and
65-1 (6) perform other duties prescribed by the
65-2 comptroller's rules.
65-3 Sec. 659.141. STATE CAMPAIGN MANAGER. The state campaign
65-4 manager shall:
65-5 (1) develop a campaign plan;
65-6 (2) prepare a statewide campaign budget in cooperation
65-7 with local campaign managers;
65-8 (3) prepare generic materials to be used by campaign
65-9 managers;
65-10 (4) coordinate and facilitate campaign services to
65-11 state employees throughout the state;
65-12 (5) ensure that all state employee charitable campaign
65-13 activities are conducted fairly and equitably to promote unified
65-14 solicitation on behalf of all participants; and
65-15 (6) perform other duties prescribed by the
65-16 comptroller's rules.
65-17 Sec. 659.142. STATE EMPLOYEE CHARITABLE CAMPAIGN ADVISORY
65-18 COMMITTEE. (a) The state employee charitable campaign advisory
65-19 committee consists of eight members appointed by the governor.
65-20 (b) Four members must represent campaign managers. Four
65-21 members must represent federations or funds that are not campaign
65-22 managers.
65-23 (c) The governor shall appoint members to the state advisory
65-24 committee to ensure that the committee reflects the race,
65-25 ethnicity, and national origin of the residents of this state.
65-26 (d) With the advice of the state advisory committee, the
65-27 comptroller shall adopt rules for the administration of this
66-1 subchapter.
66-2 (e) The state advisory committee shall:
66-3 (1) advise the comptroller and state policy committee
66-4 in adopting rules and establishing procedures for the operation and
66-5 management of the state employee charitable campaign;
66-6 (2) recommend the number, not to exceed 50, and
66-7 geographic scope of local campaign areas to the state policy
66-8 committee; and
66-9 (3) review and submit the recommended campaign plan,
66-10 budget, and generic materials to be used by campaign managers.
66-11 Sec. 659.143. LOCAL STATE EMPLOYEE CHARITABLE CAMPAIGN
66-12 COMMITTEE. (a) The state policy committee shall appoint the
66-13 presiding officer of a local state employee charitable campaign
66-14 committee in each local campaign area.
66-15 (b) The presiding officer of a local employee committee
66-16 shall recruit at least five but not more than 10 additional
66-17 members. The members must represent different levels of employee
66-18 classification.
66-19 (c) Each member of a local employee committee may vote on
66-20 matters before the committee.
66-21 (d) The state policy committee shall make the appointments
66-22 to a local employee committee to ensure that the committee reflects
66-23 the race, ethnicity, and national origin of the residents of the
66-24 local campaign area.
66-25 (e) The local employee committee shall:
66-26 (1) contract with a federated community campaign
66-27 organization to serve as the local campaign manager;
67-1 (2) determine the eligibility of local charitable
67-2 organizations to participate in the state employee charitable
67-3 campaign;
67-4 (3) in consultation with the local campaign manager,
67-5 approve the recommended campaign plan, budget, and generic
67-6 materials to be used by campaign managers;
67-7 (4) oversee the local state employee charitable
67-8 campaign to ensure that all local campaign activities are conducted
67-9 fairly and equitably to promote unified solicitation on behalf of
67-10 all participants; and
67-11 (5) perform other duties prescribed by the
67-12 comptroller's rules.
67-13 Sec. 659.144. LOCAL CAMPAIGN MANAGER. (a) A local employee
67-14 committee shall select a federated community campaign organization
67-15 to be the local campaign manager.
67-16 (b) A local campaign manager must have demonstrated
67-17 expertise to:
67-18 (1) provide effective campaign counsel and management;
67-19 and
67-20 (2) serve as fiscal agent for the eligible local
67-21 charitable organizations.
67-22 (c) A local campaign manager shall:
67-23 (1) in consultation with the local employee committee,
67-24 develop a cooperative plan, budget, and local campaign materials
67-25 for the local state employee charitable campaign;
67-26 (2) manage the local state employee charitable
67-27 campaign in the campaign area and provide for the effective
68-1 involvement of each participating federation or fund;
68-2 (3) ensure that all local state employee charitable
68-3 campaign activities are conducted fairly and equitably to promote
68-4 unified solicitation on behalf of all participants; and
68-5 (4) perform other duties prescribed by the
68-6 comptroller's rules.
68-7 Sec. 659.145. TERMS OF COMMITTEE MEMBERS; COMPENSATION. (a)
68-8 A member of the state advisory committee, the state policy
68-9 committee, or a local employee committee serves a two-year term.
68-10 (b) A member of the state advisory committee, the state
68-11 policy committee, or a local employee committee may not receive
68-12 compensation for serving on the committee and is not entitled to
68-13 reimbursement for expenses incurred in performing functions as a
68-14 member of the committee.
68-15 Sec. 659.146. ELIGIBILITY OF CHARITABLE ORGANIZATIONS FOR
68-16 STATEWIDE PARTICIPATION. (a) To be eligible to participate in a
68-17 state employee charitable campaign, a charitable organization must:
68-18 (1) be governed by a voluntary board of residents of
68-19 this state that meets at least twice each year to set policy and
68-20 manage the affairs of the organization;
68-21 (2) if the organization's annual budget:
68-22 (A) is less than $100,000, provide a completed
68-23 Internal Revenue Service Form 990 and an accountant's review that
68-24 offers full and open disclosure of the organization's internal
68-25 operations; or
68-26 (B) is equal to or more than $100,000, be
68-27 audited annually in accordance with generally accepted auditing
69-1 standards of the American Institute of Certified Public
69-2 Accountants; and
69-3 (3) not spend more than 25 percent of its annual
69-4 revenue for administrative and fund-raising expenses.
69-5 (b) The state policy committee may grant a charitable
69-6 organization a temporary exemption from the requirement of
69-7 Subsection (a)(3) if the committee finds that:
69-8 (1) the organization's administrative and fund-raising
69-9 expenses are reasonable under the circumstances; and
69-10 (2) the organization has a practical plan to reduce
69-11 its administrative and fund-raising expenses to 25 percent of its
69-12 annual revenue within the next three years.
69-13 (c) A federation or fund that seeks statewide participation
69-14 in a state employee charitable campaign must apply on behalf of
69-15 itself and its affiliated agencies to the state policy committee
69-16 during the annual eligibility determination period specified by the
69-17 committee. The state policy committee shall review each
69-18 application and may approve a federation or fund for statewide
69-19 participation only if the federation or fund qualifies as a
69-20 statewide charitable organization or as an international federation
69-21 or fund. The state policy committee may approve an affiliated
69-22 charitable organization for statewide participation only if the
69-23 organization qualifies as a statewide charitable organization or is
69-24 an affiliated agency of an international federation or fund.
69-25 (d) The state policy committee may use outside expertise and
69-26 resources available to it to assess the eligibility of a charitable
69-27 organization that seeks to participate in a state employee
70-1 charitable campaign.
70-2 (e) An appeal from a decision of the state policy committee
70-3 shall be conducted in the manner prescribed by the committee. The
70-4 appeals process must permit a charitable organization that is not
70-5 approved for statewide participation to apply for participation in
70-6 a local state employee charitable campaign.
70-7 Sec. 659.147. ELIGIBILITY OF CHARITABLE ORGANIZATIONS FOR
70-8 LOCAL PARTICIPATION. (a) A charitable organization that seeks
70-9 local participation in a state employee charitable campaign must
70-10 apply to the appropriate local employee committee during the annual
70-11 eligibility determination period specified by the state policy
70-12 committee.
70-13 (b) The local employee committee shall review each
70-14 application and may approve a charitable organization for local
70-15 participation only if the organization qualifies as a local
70-16 charitable organization and is:
70-17 (1) an unaffiliated local organization; or
70-18 (2) a federation or fund or an affiliate of a
70-19 federation or fund that is not approved for statewide
70-20 participation.
70-21 (c) An affiliated organization of an eligible federation or
70-22 fund that does not qualify as a statewide charitable organization
70-23 under Section 659.146 because it does not provide services in two
70-24 or more noncontiguous standard metropolitan statistical areas may
70-25 apply to a local employee committee for participation in a local
70-26 state employee charitable campaign.
70-27 (d) An appeal from a decision of a local employee committee
71-1 shall be conducted in the manner prescribed by the state policy
71-2 committee.
71-3 Sec. 659.148. FEES. (a) A campaign manager may not charge
71-4 a fee to the comptroller, a state agency, or a state employee for
71-5 the services the campaign manager provides in connection with a
71-6 state employee charitable campaign.
71-7 (b) A campaign manager may charge a reasonable and necessary
71-8 fee for actual campaign expenses to the participating charitable
71-9 organizations in the same proportion that the contributions to that
71-10 charitable organization bear to the total of contributions in the
71-11 state employee charitable campaign.
71-12 (c) A fee under Subsection (b) must be based on the combined
71-13 expenses of the state campaign manager and each local campaign
71-14 manager and may not exceed 10 percent of the total amount collected
71-15 in the state employee charitable campaign unless the state policy
71-16 committee approves a higher amount to accommodate reasonable
71-17 documented costs.
71-18 (d) The comptroller shall charge an administrative fee to
71-19 cover costs incurred by the comptroller and employing state
71-20 agencies in the implementation of this subchapter to the charitable
71-21 organizations participating in the first state employee charitable
71-22 campaign conducted under this subchapter in the same proportion
71-23 that the contributions to that charitable organization bear to the
71-24 total of contributions in that campaign. The comptroller shall
71-25 charge an administrative fee to cover costs incurred by the
71-26 comptroller and employing state agencies in the administration of
71-27 this subchapter to the charitable organizations in each subsequent
72-1 state employee charitable campaign in the same proportion that the
72-2 contributions to that charitable organization bear to the total of
72-3 contributions in that campaign. The comptroller shall determine
72-4 the most efficient and effective method of collecting the
72-5 administrative fee and shall adopt rules for the implementation of
72-6 this section.
72-7 (e) An institution of higher education that is authorized to
72-8 operate a payroll system reimbursable from the state treasury shall
72-9 charge an administrative fee to the participating charitable
72-10 organizations to cover the actual costs incurred in the
72-11 administration of this subchapter. The fee shall be assessed and
72-12 collected annually and shall be charged in the same proportion that
72-13 the contributions to the charitable organization bear to the total
72-14 contributions in that campaign.
72-15 Sec. 659.149. Fund-raising Practices. The fund-raising
72-16 practices of a participating charitable organization must:
72-17 (1) be truthful and consumer-oriented;
72-18 (2) clearly identify and distinguish community-based
72-19 organizations from statewide and international organizations; and
72-20 (3) ensure protection against:
72-21 (A) unauthorized use of a list of contributors
72-22 to the organization;
72-23 (B) payment of commissions, kickbacks, finder
72-24 fees, percentages, bonuses, or overrides for fund-raising;
72-25 (C) mailing of unordered merchandise or tickets
72-26 with a request for money in return; and
72-27 (D) general telephone solicitation of the
73-1 public.
73-2 Sec. 659.150. LIMITATION ON THE USE OF CONTRIBUTIONS. (a)
73-3 A participating charitable organization may use contributions under
73-4 this subchapter only to provide health and human services or to
73-5 fund a charitable organization that provides health and human
73-6 services.
73-7 (b) A participating charitable organization may not use
73-8 contributions under this subchapter to:
73-9 (1) conduct litigation; or
73-10 (2) make expenditures that would require the
73-11 organization to register under Chapter 305 if the organization were
73-12 not an entity exempt from registration under that chapter.
73-13 Sec. 659.151. MISAPPLICATION OF CONTRIBUTIONS; AUDIT. (a)
73-14 The state policy committee may request the comptroller or state
73-15 auditor to audit a participating charitable organization, a
73-16 campaign manager, or a local employee the committee reasonably
73-17 believes has misapplied contributions under this subchapter.
73-18 (b) If an audit under this section reveals gross negligence
73-19 or intentional misconduct on the part of a campaign manager or a
73-20 local employee committee, the state policy committee shall remove
73-21 the campaign manager or local employee committee. A person removed
73-22 under this subsection is not eligible to serve in the capacity from
73-23 which the person was removed before the fifth anniversary of the
73-24 date the person was removed.
73-25 (c) If an audit under this section reveals intentional
73-26 misconduct on the part of a campaign manager or a local employee
73-27 committee, the state policy committee shall forward its findings to
74-1 the appropriate law enforcement agency.
74-2 (d) The attorney general may bring an action to recover
74-3 misapplied contributions.
74-4 (e) If an investigation or lawsuit results in a recovery of
74-5 misapplied contributions and there is not a judgment distributing
74-6 the amounts recovered, the state policy committee shall instruct
74-7 the comptroller as to the manner of refunding contributions to the
74-8 appropriate state employees.
74-9 Sec. 659.152. EXEMPTION FOR INTERNATIONAL FEDERATION OR
74-10 FUND. An international federation or fund is exempt from the
74-11 requirements of this subchapter relating to the provision of health
74-12 and human services to residents of this state.
74-13 (b) Article 6813h, Revised Statutes, is repealed.
74-14 SECTION 5.18. Section 661.032(b), Government Code, is
74-15 amended to read as follows:
74-16 (b) The estates of the following are not entitled to
74-17 payments under this subchapter:
74-18 (1) an individual employed on a piecework basis;
74-19 (2) an individual who holds an office that is normally
74-20 filled by vote of the people;
74-21 (3) an independent contractor or an employee of an
74-22 independent contractor;
74-23 (4) an operator of equipment or a driver of a team
74-24 whose wages are included in the rental paid by a state agency to
74-25 the owner of the equipment or team; or
74-26 (5) an individual covered by:
74-27 (A) the Judicial Retirement System of Texas Plan
75-1 One;
75-2 (B) the Judicial Retirement System of Texas Plan
75-3 Two; or
75-4 (C) the Teacher Retirement System of Texas,
75-5 other than an individual described by Section 661.031(2)(C) or (D).
75-6 SECTION 5.19. Section 661.062(e), Government Code, is
75-7 amended to read as follows:
75-8 (e) The following are not entitled to payments under this
75-9 subchapter:
75-10 (1) an individual who holds an office that is normally
75-11 filled by vote of the people;
75-12 (2) an independent contractor or an employee of an
75-13 independent contractor;
75-14 (3) an operator of equipment or a driver of a team
75-15 whose wages are included in the rental paid by a state agency to
75-16 the owner of the equipment or team;
75-17 (4) an individual employed on a piecework basis; or
75-18 (5) an individual covered by:
75-19 (A) the Judicial Retirement System of Texas Plan
75-20 One;
75-21 (B) the Judicial Retirement System of Texas Plan
75-22 Two; or
75-23 (C) the Teacher Retirement System of Texas,
75-24 other than an individual described by Section 661.061(2)(E) or (F).
75-25 SECTION 5.20. (a) Section 2001.103, Government Code, is
75-26 amended to conform to Section 11, Chapter 449, Acts of the 73rd
75-27 Legislature, Regular Session, 1993, to read as follows:
76-1 Sec. 2001.103. EXPENSES <MILEAGE AND PER DIEM> OF WITNESS OR
76-2 DEPONENT. (a) A witness or deponent in a contested case who is
76-3 not a party and who is subpoenaed or otherwise compelled to attend
76-4 a hearing or proceeding to give a deposition or to produce books,
76-5 records, papers, or other objects that may be necessary and proper
76-6 for the purposes of a proceeding under this chapter is entitled to
76-7 receive:
76-8 (1) 10 cents for each mile, or a greater amount
76-9 prescribed by state agency rule, for going to and returning from
76-10 the place of the hearing or deposition if the place is more than 25
76-11 miles from the person's place of residence<;> and the person uses
76-12 the person's personally owned or leased motor vehicle for the
76-13 travel;
76-14 (2) reimbursement of the transportation expenses of
76-15 the witness or deponent for going to and returning from the place
76-16 where the hearing is held or the deposition is taken, if the place
76-17 is more than 25 miles from the person's place of residence and the
76-18 person does not use the person's personally owned or leased motor
76-19 vehicle for the travel;
76-20 (3) reimbursement of the meal and lodging expenses of
76-21 the witness or deponent while going to and returning from the place
76-22 where the hearing is held or deposition is taken, if the place is
76-23 more than 25 miles from the person's place of residence; and
76-24 (4) $10, or a greater amount prescribed by state
76-25 agency rule, for each day or part of a day that the person is
76-26 necessarily present.
76-27 (b) Amounts required to be reimbursed or paid under this
77-1 section shall be reimbursed or paid by <On the presentation of
77-2 proper vouchers sworn by the witness and approved by the state
77-3 agency,> the party or agency at whose request the witness appears
77-4 or the deposition is taken. An agency required to make a payment
77-5 or reimbursement shall present to the comptroller vouchers:
77-6 (1) sworn by the witness or deponent; and
77-7 (2) approved by the agency in accordance with Chapter
77-8 2103 <shall pay the amounts to which the witness is entitled under
77-9 this section>.
77-10 (c) An agency may directly pay a commercial transportation
77-11 company for the transportation expenses or a commercial lodging
77-12 establishment for the lodging expenses of a witness or deponent if
77-13 this section otherwise requires the agency to reimburse the witness
77-14 or deponent for those expenses.
77-15 (d) An agency may not pay a commercial transportation
77-16 company or commercial lodging establishment or reimburse a witness
77-17 or deponent for transportation, meal, or lodging expenses under
77-18 this section at a rate that exceeds the maximum rates provided by
77-19 law for state employees. An agency may not adopt rules that
77-20 provide for payment or reimbursement rates that exceed those
77-21 maximum rates.
77-22 (e) In this section:
77-23 (1) "Commercial lodging establishment" means a motel,
77-24 hotel, inn, apartment, or similar entity that offers lodging to the
77-25 public in exchange for compensation.
77-26 (2) "Commercial transportation company" means an
77-27 entity that offers transportation of people or goods to the public
78-1 in exchange for compensation.
78-2 (b) Section 11, Chapter 449, Acts of the 73rd Legislature,
78-3 Regular Session, 1993, is repealed.
78-4 SECTION 5.21. (a) Chapter 2001, Government Code, is amended
78-5 to conform to Section 1, Chapter 1017, Acts of the 73rd
78-6 Legislature, Regular Session, 1993, by adding Section 2001.1775 to
78-7 read as follows:
78-8 Sec. 2001.1775. MODIFICATION OF AGENCY FINDINGS OR DECISION.
78-9 Except as provided by Section 2001.175(c), an agency may not modify
78-10 its findings or decision in a contested case after proceedings for
78-11 judicial review of the case have been instituted under Section
78-12 2001.176 and during the time that the case is under judicial
78-13 review.
78-14 (b) Section 1, Chapter 1017, Acts of the 73rd Legislature,
78-15 Regular Session, 1993, is repealed.
78-16 SECTION 5.22. (a) Section 2001.221, Government Code, is
78-17 amended to conform to Section 14, Chapter 886, Acts of the 73rd
78-18 Legislature, Regular Session, 1993, to read as follows:
78-19 Sec. 2001.221. DRIVER'S LICENSES. This chapter does not
78-20 apply to a suspension, revocation, cancellation, denial, or
78-21 disqualification of a driver's license or commercial driver's
78-22 license as authorized by:
78-23 (1) Article IV, Chapter 173, Acts of the 47th
78-24 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
78-25 Civil Statutes);
78-26 (2) the Texas Commercial Driver's License Act (Article
78-27 6687b-2, Revised Statutes);
79-1 (3) the Texas Motor Vehicle Safety-Responsibility Act
79-2 (Article 6701h, Vernon's Texas Civil Statutes); or
79-3 (4) <Chapter 434, Acts of the 61st Legislature,
79-4 Regular Session, 1969 (Article 6701l-5, Vernon's Texas Civil
79-5 Statutes); or>
79-6 <(5)> Section 13, Article 42.12, Code of Criminal
79-7 Procedure.
79-8 (b) Section 14, Chapter 886, Acts of the 73rd Legislature,
79-9 Regular Session, 1993, is repealed.
79-10 SECTION 5.23. (a) Chapters 2001 and 2002, Government Code,
79-11 are amended under this section to conform to Section 9.01, Chapter
79-12 988, Acts of the 73rd Legislature, Regular Session, 1993.
79-13 (b) Subchapter I, Chapter 2001, Government Code, is amended
79-14 by adding Section 2001.226 to read as follows:
79-15 Sec. 2001.226. TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND
79-16 TEXAS BOARD OF CRIMINAL JUSTICE. This chapter does not apply to a
79-17 rule or internal procedure of the Texas Department of Criminal
79-18 Justice or Texas Board of Criminal Justice that applies to an
79-19 inmate or any other person under the custody or control of the
79-20 department or to an action taken under that rule or procedure.
79-21 (c) Section 2002.023, Government Code, is amended to read as
79-22 follows:
79-23 Sec. 2002.023. EXCEPTIONS. This subchapter does not apply
79-24 to:
79-25 (1) a suspension, revocation, cancellation, denial, or
79-26 disqualification of a driver's license or commercial driver's
79-27 license as authorized by:
80-1 (A) Article IV, Chapter 173, Acts of the 47th
80-2 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
80-3 Civil Statutes);
80-4 (B) the Texas Commercial Driver's License Act
80-5 (Article 6687b-2, Revised Statutes);
80-6 (C) the Texas Motor Vehicle
80-7 Safety-Responsibility Act (Article 6701h, Vernon's Texas Civil
80-8 Statutes);
80-9 (D) Chapter 434, Acts of the 61st Legislature,
80-10 Regular Session, 1969 (Article 6701l-5, Vernon's Texas Civil
80-11 Statutes); or
80-12 (E) Section 13, Article 42.12, Code of Criminal
80-13 Procedure;
80-14 (2) matters related solely to the internal personnel
80-15 rules and practices of a state agency; <or>
80-16 (3) the Texas Employment Commission, other than to
80-17 matters of unemployment insurance maintained by the commission; or
80-18 (4) a rule or internal procedure of the Texas
80-19 Department of Criminal Justice or Texas Board of Criminal Justice
80-20 that applies to an inmate or any other person under the custody or
80-21 control of the department or to an action taken under that rule or
80-22 procedure.
80-23 (d) Section 9.01, Chapter 988, Acts of the 73rd Legislature,
80-24 Regular Session, 1993, is repealed.
80-25 SECTION 5.24. (a) Section 2052.202, Government Code, is
80-26 amended to conform to Section 39(a), Chapter 449, Acts of the 73rd
80-27 Legislature, Regular Session, 1993, to read as follows:
81-1 Sec. 2052.202. PUBLICATION REQUEST FORM. <(a)> A state
81-2 agency that distributes publications to a person shall distribute a
81-3 publication request form on request or with each copy of the last
81-4 publication that it distributes before January 1 of each year.
81-5 <(b) The comptroller shall:>
81-6 <(1) print the publication request form; and>
81-7 <(2) furnish to a state agency that distributes
81-8 publications a sufficient number of publication request forms to
81-9 enable the agency annually to distribute a form to each person that
81-10 receives a publication.>
81-11 (b) Section 39(a), Chapter 449, Acts of the 73rd
81-12 Legislature, Regular Session, 1993, is repealed.
81-13 SECTION 5.25. (a) Sections 2052.203(c) and (d), Government
81-14 Code, are repealed to conform to the repeal of the law from which
81-15 those sections were derived by Section 39(b), Chapter 449, Acts of
81-16 the 73rd Legislature, Regular Session, 1993.
81-17 (b) Section 39(b), Chapter 449, Acts of the 73rd
81-18 Legislature, Regular Session, 1993, is repealed.
81-19 SECTION 5.26. (a) Section 2054.007, Government Code, is
81-20 amended to conform to Section 1.27, Chapter 906, Acts of the 73rd
81-21 Legislature, Regular Session, 1993, to read as follows:
81-22 Sec. 2054.007. EXCEPTION: STATE LOTTERY OPERATIONS. (a)
81-23 The lottery division in the office of the comptroller is not
81-24 included in the agency strategic plan<, initial operating plan,> or
81-25 biennial <final> operating plan of the comptroller. The lottery
81-26 division is not subject to the planning and procurement
81-27 requirements of this chapter.
82-1 (b) The electronic funds transfer system for the operation
82-2 of the state lottery is not included in the agency strategic plan<,
82-3 initial operating plan,> or biennial <final> operating plan of the
82-4 state treasurer. Operations of the state treasurer that relate to
82-5 the state lottery are not subject to the planning and procurement
82-6 requirements of this chapter.
82-7 (b) Section 2054.052(c), Government Code, is amended to
82-8 conform to Section 1.20, Chapter 906, Acts of the 73rd Legislature,
82-9 Regular Session, 1993, to read as follows:
82-10 (c) At the request of a state agency, the <The> department
82-11 may provide technical and managerial assistance relating to
82-12 information resources management, including automation feasibility
82-13 studies, systems analysis, and design, training, and technology
82-14 evaluation <at the request of a state agency>.
82-15 (c) Section 2054.055, Government Code, is amended to conform
82-16 to Section 1.21, Chapter 906, Acts of the 73rd Legislature, Regular
82-17 Session, 1993, to read as follows:
82-18 Sec. 2054.055. PERFORMANCE <ANNUAL> REPORT. (a) Not later
82-19 than November <February> 1 of each even-numbered year, the board
82-20 shall review and approve and the department shall present a
82-21 <department's annual> report on the use of information resources
82-22 technologies by <management activities of> state government<,
82-23 derived from the annual performance reports submitted to the
82-24 department by state agencies under Section 2054.111>.
82-25 (b) The <annual> report must:
82-26 (1) assess the progress made toward meeting the goals
82-27 and objectives of the state strategic plan for information
83-1 resources management;
83-2 (2) describe major accomplishments of the state or a
83-3 specific <and each> state agency in information resources
83-4 management;
83-5 (3) describe major problems in information resources
83-6 management confronting the state or a specific state <the existing
83-7 major data bases and applications in each> agency;
83-8 (4) <describe all existing interagency computer
83-9 networks;>
83-10 <(5)> provide a summary of the total expenditures for
83-11 information resources and information resources technologies by
83-12 <each agency and> the state;
83-13 <(6) provide an inventory list, by major categories,
83-14 of the state's information resources technologies;> and
83-15 (5) <(7) identify and> make recommendations for
83-16 improving the effectiveness and cost-efficiency of the state's use
83-17 of information resources <regarding opportunities for multiagency
83-18 information resources management activities>.
83-19 (c) The department shall submit the report to the governor
83-20 and to the legislature <Legislative Budget Board the approved
83-21 annual report>.
83-22 (d) The department may make interim reports that it
83-23 considers necessary.
83-24 (e) The department is entitled to obtain any information
83-25 about a state agency's information resources and information
83-26 resources technologies that the department determines is necessary
83-27 to prepare a report under this section.
84-1 (d) Section 2054.056, Government Code, is amended to conform
84-2 to Sections 1.20 and 1.29, Chapter 906, Acts of the 73rd
84-3 Legislature, Regular Session, 1993, to read as follows:
84-4 Sec. 2054.056. COMPUTER SERVICES <SERVICE FACILITY>.
84-5 <(a)> The department may <shall operate a self-supporting computer
84-6 service facility and> provide computer services under interagency
84-7 contracts to state agencies that choose to contract with the
84-8 department <subscribe to the service>.
84-9 <(b) Services provided under this section may include:>
84-10 <(1) automation feasibility studies;>
84-11 <(2) systems analysis and design;>
84-12 <(3) program development and maintenance;>
84-13 <(4) computer operation;>
84-14 <(5) remote device installation and services;>
84-15 <(6) management of data processing facilities;>
84-16 <(7) consulting services;>
84-17 <(8) training;>
84-18 <(9) technology evaluation;>
84-19 <(10) installation and maintenance of interagency
84-20 networks;>
84-21 <(11) operation of a disaster recovery site to prevent
84-22 loss of information; and>
84-23 <(12) other related services.>
84-24 (e) Section 2054.074, Government Code, is amended to conform
84-25 to Section 1.25, Chapter 906, Acts of the 73rd Legislature, Regular
84-26 Session, 1993, to read as follows:
84-27 Sec. 2054.074. RESPONSIBILITY OF INFORMATION RESOURCES
85-1 MANAGER. The information resources manager shall prepare the
85-2 biennial operating plans under Subchapter E <and the annual
85-3 performance report under Section 2054.111>.
85-4 (f) Section 2054.100, Government Code, is amended to conform
85-5 to Section 1.23, Chapter 906, Acts of the 73rd Legislature, Regular
85-6 Session, 1993, to read as follows:
85-7 Sec. 2054.100. BIENNIAL <FINAL> OPERATING PLAN OF STATE
85-8 AGENCY. (a) Each state agency shall submit an <a final> operating
85-9 plan to the department each state fiscal biennium not later than
85-10 the <earliest of the following dates of each odd-numbered year:>
85-11 <(1) September 1;>
85-12 <(2) the 60th day after the date the General
85-13 Appropriations Act becomes law if it becomes law on or before July
85-14 31 of that year; or>
85-15 <(3) the> 30th day after the date the General
85-16 Appropriations Act for the biennium becomes law <if it becomes law
85-17 after July 31 of that year>.
85-18 (b) The <At a minimum, the> plan must describe the agency's
85-19 current and proposed projects for the biennium <include, in
85-20 addition to the information required in the initial operating plan,
85-21 the following:>
85-22 <(1) the amount of money related to information
85-23 resources actually appropriated to the state agency for the
85-24 biennium beginning September 1; and>
85-25 <(2) an identification of changes, if any, in the
85-26 agency's priorities for projects and associated procurements stated
85-27 in the initial operating plan>.
86-1 (c) <The department may consult the comptroller to verify a
86-2 state agency's approved funds.>
86-3 <(d)> A state agency shall amend its biennial <final>
86-4 operating plan when necessary to<:>
86-5 <(1)> reflect changes in the plan during a biennium<;
86-6 or>
86-7 <(2) show the impact of a consulting services contract
86-8 or report that may affect software development, hardware
86-9 configuration, or changes in the agency's management of information
86-10 resources.>
86-11 <(e) The substance of any amendment submitted to a final
86-12 operating plan must also be included in an appropriate approved
86-13 agency strategic plan or approved agency strategic plan amendment>.
86-14 (g) Section 2054.101, Government Code, is amended to conform
86-15 to Section 1.24, Chapter 906, Acts of the 73rd Legislature, Regular
86-16 Session, 1993, to read as follows:
86-17 Sec. 2054.101. INSTRUCTIONS FOR PREPARING OPERATING PLANS.
86-18 (a) The department by rule shall adopt instructions to guide state
86-19 agencies in their preparation of biennial <initial operating plans
86-20 and final> operating plans.
86-21 (b) The instructions must:
86-22 (1) specify the format of the plans;
86-23 (2) specify <require the submission of> the
86-24 information required to be included in the plans <by this chapter>;
86-25 and
86-26 (3) list the general criteria that the department will
86-27 use to evaluate the plans.
87-1 (h) Section 2054.102, Government Code, is amended to conform
87-2 to Section 1.24, Chapter 906, Acts of the 73rd Legislature, Regular
87-3 Session, 1993, to read as follows:
87-4 Sec. 2054.102. EVALUATION <APPROVAL OR DISAPPROVAL> OF
87-5 OPERATING PLANS BY DEPARTMENT. <(a)> The department shall
87-6 specify procedures for the submission, review, approval, and
87-7 disapproval of plans and amendments, including procedures for
87-8 review or reconsideration of the department's disapproval of a plan
87-9 or plan amendment <notify a state agency in writing of the
87-10 department's approval or disapproval of an initial operating plan>.
87-11 <The notification shall be sent not later than the 120th day after
87-12 the date the department receives the plan.>
87-13 <(b) The department shall notify a state agency in writing
87-14 of the department's approval or disapproval of a final operating
87-15 plan. The notification shall be sent not later than the 30th day
87-16 after the date the department receives the plan. If the
87-17 department's determination is due after September 1 of an
87-18 odd-numbered year, a state agency may operate as if the plan had
87-19 been approved until the department actually makes its
87-20 determination.>
87-21 <(c) If the department disapproves a state agency's initial
87-22 operating plan or final operating plan, the department shall
87-23 provide to the agency in writing the reasons for the disapproval.
87-24 If the agency cannot resolve the problems that caused disapproval
87-25 within 30 days after the date the notice of disapproval is
87-26 received, the agency shall notify the department in writing of the
87-27 reasons why the problems cannot be resolved. The notification
88-1 shall be sent to the department not later than the 30th day after
88-2 the date the agency receives notice of the department's
88-3 disapproval.>
88-4 <(d) Before a state agency may amend its final operating
88-5 plan, the agency must submit the proposed amendment to the
88-6 department for approval. All amendments affecting operations
88-7 during a fiscal year must be submitted not later than June 1 of
88-8 that fiscal year. The department shall notify the agency of the
88-9 department's approval or disapproval not later than the 30th day
88-10 after the date the proposed amendment is received. If the
88-11 department disapproves a proposed amendment, the department shall
88-12 state the reasons for the disapproval in writing to the agency's
88-13 information resources manager. The department shall adopt rules
88-14 for the procedures a state agency must follow when submitting a
88-15 revision of proposed amendments to the department after the
88-16 department has disapproved the amendments.>
88-17 <(e) The department may not approve a state agency's initial
88-18 operating plan or final operating plan unless the agency has
88-19 submitted and the department has approved a current agency
88-20 strategic plan.>
88-21 <(f) A state agency that disagrees with the department's
88-22 disapproval of an initial operating plan, final operating plan, or
88-23 an amendment to either of those plans may submit a written request
88-24 to the department for special review. On receipt of a request, the
88-25 executive director shall inform the board. The board shall
88-26 consider the merits of the agency's position and make its decision
88-27 on the matter at the next regularly scheduled board meeting. The
89-1 state agency may appear and present its position at that meeting.
89-2 The decision of the board is final. The board shall adopt rules
89-3 for the fair and efficient administration of this subsection.>
89-4 (i) Section 2054.103, Government Code, is amended to conform
89-5 to Section 1.24, Chapter 906, Acts of the 73rd Legislature, Regular
89-6 Session, 1993, to read as follows:
89-7 Sec. 2054.103. SUBMISSION OF OPERATING PLANS <AND CERTAIN
89-8 PROCUREMENT INFORMATION>. <(a)> Each state agency shall send a
89-9 copy of its biennial <final> operating plan, as approved by the
89-10 department, to the governor, the Legislative Budget Board, and the
89-11 state auditor not later than the 30th day after the date the
89-12 department approves the plan.
89-13 <(b) As a consequence of evaluating an initial operating
89-14 plan or a final operating plan, the department may require a state
89-15 agency to submit or obtain certain information as part of its
89-16 procurement process when:>
89-17 <(1) an agency is planning a noncompetitive
89-18 procurement;>
89-19 <(2) an agency is planning a system conversion; or>
89-20 <(3) the department determines that the information
89-21 would be necessary or appropriate.>
89-22 (j) Section 2054.104, Government Code, is amended to conform
89-23 to Section 1.24, Chapter 906, Acts of the 73rd Legislature, Regular
89-24 Session, 1993, to read as follows:
89-25 Sec. 2054.104. DENIAL OF ACCESS TO APPROPRIATIONS ON FAILURE
89-26 TO SUBMIT OPERATING PLAN <AND CERTAIN PROCUREMENT INFORMATION>.
89-27 (a) If a state agency fails to comply with Section 2054.103, the
90-1 governor may direct the comptroller to deny the agency access to
90-2 the agency's appropriations that relate to the management of
90-3 information resources.
90-4 (b) The denial of access may continue until the governor is
90-5 satisfied with the state agency's compliance with this section.
90-6 (k) Subchapter F, Chapter 2054, Government Code, is amended
90-7 to conform to Section 1.22, Chapter 906, Acts of the 73rd
90-8 Legislature, Regular Session, 1993, by adding Section 2054.118 to
90-9 read as follows:
90-10 Sec. 2054.118. MAJOR INFORMATION RESOURCES PROJECT. (a) A
90-11 state agency may not spend appropriated funds for a major
90-12 information resources project unless the project has been approved
90-13 by the department in the agency's biennial operating plan.
90-14 (b) The department shall develop rules or guidelines for its
90-15 review of major information resources projects.
90-16 (c) In this section, "major information resources project"
90-17 means any information resources technology project identified in a
90-18 state agency's biennial operating plan with development costs that
90-19 exceed $1 million and that:
90-20 (1) requires one year or longer to reach operations
90-21 status;
90-22 (2) involves more than one state agency; or
90-23 (3) substantially alters work methods of state agency
90-24 personnel or the delivery of services to clients.
90-25 (l) Subchapter F, Chapter 2054, Government Code, is amended
90-26 to conform to Section 1.26, Chapter 906, Acts of the 73rd
90-27 Legislature, Regular Session, 1993, by adding Section 2054.119 to
91-1 read as follows:
91-2 Sec. 2054.119. BIDS OR PROPOSALS FOR INTERAGENCY CONTRACTS.
91-3 (a) A state agency may not enter into an interagency contract for
91-4 the receipt of information resources technologies, including a
91-5 contract with the department, unless the agency complies with this
91-6 section.
91-7 (b) A state agency that proposes to receive information
91-8 resources technologies under a contract with another state agency
91-9 must first give public notice of a request for proposals or a
91-10 request for bids.
91-11 (c) A state agency may not enter into an interagency
91-12 contract to receive information resources technologies if the
91-13 agency receives a bid or proposal under Subsection (b) under which
91-14 the agency can receive the same or substantially the same
91-15 technologies from a private vendor for less than the cost that
91-16 would be incurred by the agency under the interagency contract. If
91-17 a bid or proposal is received under Subsection (b) that would allow
91-18 the agency to accomplish the application or project at an
91-19 acceptable level of quality and for an acceptable period for a
91-20 total cost to the state of less than the total cost to the state of
91-21 the best proposed interagency contract, as that cost is determined
91-22 by the department, a contract for the accomplishment of the
91-23 application or project shall be awarded to the bidder with the
91-24 lowest and best bid or to the offeror whose proposal is most
91-25 advantageous to the state as determined from competitive sealed
91-26 proposals.
91-27 (d) The department by rule may define circumstances in which
92-1 certain interagency contracts that will cost less than a minimum
92-2 amount established by the department are excepted from the
92-3 requirements of this section or this chapter, if the department
92-4 determines that it would be more cost-effective for the state.
92-5 (m) Sections 2054.008, 2054.009, and 2054.111-2054.114,
92-6 Government Code, are repealed to conform to Section 1.28, Chapter
92-7 906, Acts of the 73rd Legislature, Regular Session, 1993.
92-8 (n) Section 2054.073, Government Code, is repealed to
92-9 conform to Section 1.25, Chapter 906, Acts of the 73rd Legislature,
92-10 Regular Session, 1993.
92-11 (o) Section 2054.099, Government Code, is repealed to
92-12 conform to Section 1.22, Chapter 906, Acts of the 73rd Legislature,
92-13 Regular Session, 1993.
92-14 (p) Sections 2054.034, 2054.057, 2054.058, and 2054.116,
92-15 Government Code, are repealed to conform to Section 1.29, Chapter
92-16 906, Acts of the 73rd Legislature, Regular Session, 1993.
92-17 (q) Sections 1.20-1.29, Chapter 906, Acts of the 73rd
92-18 Legislature, Regular Session, 1993, are repealed.
92-19 SECTION 5.27. (a) Subchapter A, Chapter 2054, Government
92-20 Code, is amended to conform to Section 13, Chapter 660, Acts of the
92-21 73rd Legislature, Regular Session, 1993, by adding Section 2054.011
92-22 to read as follows:
92-23 Sec. 2054.011. STATEWIDE NETWORK APPLICATIONS ACCOUNT. (a)
92-24 The statewide network applications account is established in the
92-25 general revenue fund.
92-26 (b) Amounts credited to the statewide network applications
92-27 account may be appropriated only for the purchase, improvement, or
93-1 maintenance of information resources, information resources
93-2 technologies or applications, or related services or items for use
93-3 by a network of state agencies that may include agencies in the
93-4 legislative branch of state government.
93-5 (b) Section 13, Chapter 660, Acts of the 73rd Legislature,
93-6 Regular Session, 1993, is repealed.
93-7 SECTION 5.28. (a) Section 2054.059(b), Government Code, is
93-8 amended to conform to Section 57, Chapter 684, Acts of the 73rd
93-9 Legislature, Regular Session, 1993, to read as follows:
93-10 (b) The department, comptroller, and General Services
93-11 Commission shall develop a statewide telecommunications operating
93-12 plan for all state agencies. The plan shall implement a statewide
93-13 network and include technical specifications that are binding on
93-14 the managing and operating agency. A representative of the Central
93-15 Education Agency and a representative of the Texas Higher Education
93-16 Coordinating Board shall review and comment on the operating plan
93-17 as part of the representatives' duties under Section 10.02(g),
93-18 State Purchasing and General Services Act (Article 601b, Vernon's
93-19 Texas Civil Statutes).
93-20 (b) Section 57, Chapter 684, Acts of the 73rd Legislature,
93-21 Regular Session, 1993, is repealed.
93-22 SECTION 5.29. (a) Chapter 2056, Government Code, is amended
93-23 to conform to Sections 2-4, Chapter 963, Acts of the 73rd
93-24 Legislature, Regular Session, 1993, by amending Sections 2056.001,
93-25 2056.002, 2056.004, 2056.005, 2056.006, and 2056.009 and adding
93-26 Section 2056.011 to read as follows:
93-27 Sec. 2056.001. DEFINITION. In this chapter, "state agency"
94-1 means a department <an agency>, board, commission, or other entity
94-2 <office of the executive branch> of state government, including a
94-3 university system and an institution of higher education as defined
94-4 by Section 61.003, Education Code, that:
94-5 (1) has authority that is not limited to a
94-6 geographical portion of the state;
94-7 (2) was created by the constitution or a state statute
94-8 with an ongoing mission and responsibilities;
94-9 (3) is not the office of the governor or lieutenant
94-10 governor;
94-11 (4) is not within the judicial or legislative branch
94-12 of government;
94-13 (5) is not a committee created under state law whose
94-14 primary function is to advise an agency; and
94-15 (6) is not a state-funded junior or community college
94-16 <other than the office of the lieutenant governor>.
94-17 Sec. 2056.002. STRATEGIC PLANS. (a) A state agency shall
94-18 make a strategic plan for its operations. Each <Not later than
94-19 March 1 of each> even-numbered year, the agency shall issue a plan
94-20 covering five fiscal years beginning with the next odd-numbered
94-21 fiscal year <six years beginning on that date>.
94-22 (b) The Legislative Budget Board and the Governor's Office
94-23 of Budget and Planning shall determine the elements required to be
94-24 included in each agency's strategic plan. Unless modified by the
94-25 Legislative Budget Board and the Governor's Office of Budget and
94-26 Planning, and except <Except> as provided by Subsection (c), a plan
94-27 must include:
95-1 (1) a statement of the mission and goals of the state
95-2 agency;
95-3 (2) a description of the indicators developed under
95-4 this chapter and used to measure the output and outcome of the
95-5 agency;
95-6 (3) identification of the groups of people served by
95-7 the agency, including those having service priorities, or other
95-8 service measures established by law, and estimates of changes in
95-9 those groups expected during the term of the plan;
95-10 (4) an analysis of the use of the agency's resources
95-11 to meet the agency's needs, including future needs, and an estimate
95-12 of additional resources that may be necessary to meet future needs;
95-13 (5) an analysis of expected changes in the services
95-14 provided by the agency because of changes in state or federal law;
95-15 (6) a description of the means and strategies for
95-16 meeting the agency's needs, including future needs, and achieving
95-17 the goals established under Section 2056.006 for each area of state
95-18 government for which the agency provides services; <and>
95-19 (7) a description of the capital improvement needs of
95-20 the agency during the term of the plan and a statement, if
95-21 appropriate, of the priority of those needs; and
95-22 (8) other information that may be required.
95-23 (c) A state agency's plan that does not include an item
95-24 described by Subsection (b) must include the reason the item does
95-25 not apply to the agency.
95-26 (d) A state agency shall send two copies of each plan to
95-27 both the Legislative Reference Library and the state publications
96-1 clearinghouse of the Texas State Library and one copy each to:
96-2 (1) the governor;
96-3 (2) the lieutenant governor;
96-4 (3) the speaker of the house of representatives;
96-5 (4) the Legislative Budget Board;
96-6 (5) the Sunset Advisory Commission;
96-7 (6) the state auditor; and
96-8 (7) the comptroller.
96-9 (e) In this section, "capital improvement" means any
96-10 building or infrastructure project that will be owned by the state
96-11 and built with direct appropriations or with the proceeds of
96-12 state-issued bonds or paid from revenue sources other than general
96-13 revenue.
96-14 Sec. 2056.004. ASSISTANCE FOR AGENCIES. The Governor's
96-15 Office of Budget and Planning and the Legislative Budget Board
96-16 shall work with each state agency to determine acceptable measures
96-17 of <workload,> output, <and> outcome, unit cost, and
96-18 cost-effectiveness for use in the agency's plan.
96-19 Sec. 2056.005. INFORMATION PROVIDED TO AGENCIES. (a) Not
96-20 later than March <September> 1 of each even-numbered <odd-numbered>
96-21 year, the comptroller shall provide a long-term forecast of the
96-22 state's economy and population to each state agency for use in the
96-23 agency's strategic planning.
96-24 (b) The comptroller, the Governor's Office of Budget and
96-25 Planning, and the Legislative Budget Board jointly shall determine
96-26 the information to be included in the forecast.
96-27 Sec. 2056.006. GOALS. (a) The governor, in cooperation
97-1 with the Legislative Budget Board, shall establish and adopt
97-2 achievement goals for each functional area of state government.
97-3 Unless modified by the Governor's Office of Budget and Planning and
97-4 the Legislative Budget Board, the functional areas must include<,
97-5 including>:
97-6 (1) education;
97-7 (2) regulation;
97-8 (3) natural resources;
97-9 (4) health;
97-10 (5) human services;
97-11 (6) transportation;
97-12 (7) public safety and corrections;
97-13 (8) general government; and
97-14 (9) state employee benefits.
97-15 (b) The <Not later than October 1 of each odd-numbered year,
97-16 the> governor shall provide to each state agency a statement of the
97-17 goals for each area in which the agency provides services.
97-18 Sec. 2056.009. STATE PLAN. (a) The Governor's Office of
97-19 Budget and Planning and the Legislative Budget Board jointly may
97-20 <shall> compile a long-range strategic plan for state government
97-21 using the state agency plans issued under Section 2056.002 and
97-22 information obtained under Section 2056.007.
97-23 (b) The state plan shall be sent to the governor, lieutenant
97-24 governor, comptroller, and each member of the legislature not later
97-25 than the seventh working day of each regular session of the
97-26 legislature <September 1 of each even-numbered year>.
97-27 (c) The state plan serves as the strategic plan for the
98-1 governor.
98-2 Sec. 2056.011. CONSOLIDATED PUBLIC JUNIOR AND COMMUNITY
98-3 COLLEGE PLAN. The Texas Higher Education Coordinating Board, in
98-4 conjunction with all state-funded junior and community colleges,
98-5 shall develop a consolidated public junior and community college
98-6 strategic plan under this chapter.
98-7 (b) Sections 2-4, Chapter 963, Acts of the 73rd Legislature,
98-8 Regular Session, 1993, are repealed.
98-9 SECTION 5.30. (a) Section 2101.035(a), Government Code, is
98-10 amended to conform to Section 2, Chapter 449, Acts of the 73rd
98-11 Legislature, Regular Session, 1993, to read as follows:
98-12 (a) The comptroller is responsible for the administration,
98-13 maintenance, and modification of the uniform statewide accounting
98-14 system. The comptroller may <and shall> adopt procedures and rules
98-15 for the effective operation of the system, including procedures and
98-16 rules relating to the method used to compute the net compensation
98-17 of a state officer or employee.
98-18 (b) Subchapter B, Chapter 403, Government Code, is amended
98-19 to conform to Section 2, Chapter 449, Acts of the 73rd Legislature,
98-20 Regular Session, 1993, by adding Section 403.024 to read as
98-21 follows:
98-22 Sec. 403.024. REVIEW BY COMPTROLLER: RECORDS MANAGEMENT.
98-23 (a) The comptroller may periodically review and analyze the
98-24 effectiveness and efficiency of the policies and management of a
98-25 state governmental committee or state agency that is involved in:
98-26 (1) analyzing and recommending improvements to the
98-27 state's system of records management; and
99-1 (2) preserving the essential records of this state,
99-2 including records relating to financial management information.
99-3 (b) In this section, "state agency" has the meaning assigned
99-4 by Section 403.013.
99-5 (c) Section 2, Chapter 449, Acts of the 73rd Legislature,
99-6 Regular Session, 1993, is repealed.
99-7 SECTION 5.31. (a) Section 2103.001, Government Code, is
99-8 amended to conform to Section 13, Chapter 449, Acts of the 73rd
99-9 Legislature, Regular Session, 1993, to read as follows:
99-10 Sec. 2103.001. DEFINITION. In this chapter, "state agency"
99-11 means a department, board, commission, committee, council, agency,
99-12 office, or other entity in the executive, legislative, or judicial
99-13 branch of state government, the jurisdiction of which is not
99-14 limited to a geographical portion of this state. The term includes
99-15 an institution of higher education as defined by Section 61.003,
99-16 Education Code<, other than a public junior college>.
99-17 (b) Section 13, Chapter 449, Acts of the 73rd Legislature,
99-18 Regular Session, 1993, is repealed.
99-19 SECTION 5.32. (a) Section 2103.032, Government Code, is
99-20 amended to conform to Section 14, Chapter 449, Acts of the 73rd
99-21 Legislature, Regular Session, 1993, by adding Subsection (d) to
99-22 read as follows:
99-23 (d) A system for the electronic submission and approval of
99-24 vouchers may provide for the secretary of state to approve the
99-25 comptroller's account electronically.
99-26 (b) Section 14, Chapter 449, Acts of the 73rd Legislature,
99-27 Regular Session, 1993, is repealed.
100-1 SECTION 5.33. (a) Section 2108.023, Government Code, is
100-2 amended to conform to Section 1, Chapter 333, Acts of the 73rd
100-3 Legislature, Regular Session, 1993, by adding Subsection (g) to
100-4 read as follows:
100-5 (g) The commission shall divide any bonus for a suggestion
100-6 submitted by more than one employee among the employees submitting
100-7 it.
100-8 (b) Section 1, Chapter 333, Acts of the 73rd Legislature,
100-9 Regular Session, 1993, is repealed.
100-10 SECTION 5.34. (a) Section 2108.101(1), Government Code, is
100-11 amended to conform to Section 2, Chapter 333, Acts of the 73rd
100-12 Legislature, Regular Session, 1993, to read as follows:
100-13 (1) "Division" means a unit of a state agency that:
100-14 (A) has an identifiable self-contained budget;
100-15 <or>
100-16 (B) maintains its financial records under an
100-17 accounting system that permits the accurate identification of the
100-18 unit's expenditures and receipts; or
100-19 (C) is a group of employees identified by the
100-20 agency and approved by the commission.
100-21 (b) Section 2, Chapter 333, Acts of the 73rd Legislature,
100-22 Regular Session, 1993, is repealed.
100-23 SECTION 5.35. (a) Section 2108.102(c), Government Code, is
100-24 amended to conform to Section 3, Chapter 333, Acts of the 73rd
100-25 Legislature, Regular Session, 1993, to read as follows:
100-26 (c) Not later than the 30th day after the date of the open
100-27 meeting at which the commission considers <receives> the plan, the
101-1 commission shall approve or reject the plan and inform the
101-2 executive director in writing of its decision.
101-3 (b) Section 2108.102, Government Code, is amended to conform
101-4 to Section 3, Chapter 333, Acts of the 73rd Legislature, Regular
101-5 Session, 1993, by adding Subsection (d) to read as follows:
101-6 (d) The commission shall act on an agency's plan as early as
101-7 practicable after receiving it.
101-8 (c) Section 3, Chapter 333, Acts of the 73rd Legislature,
101-9 Regular Session, 1993, is repealed.
101-10 SECTION 5.36. (a) Section 2108.104(c), Government Code, is
101-11 amended to conform to Section 4, Chapter 333, Acts of the 73rd
101-12 Legislature, Regular Session, 1993, to read as follows:
101-13 (c) The commission shall consider as legitimate savings a
101-14 reduction in expenditures made possible by:
101-15 (1) reduction in:
101-16 (A) overtime for eligible employees;
101-17 (B) <(2) elimination of:>
101-18 <(A)> consultant fees;
101-19 (C) <(B)> budgeted positions;
101-20 (D) <(C) unnecessary> travel, printing, and
101-21 mailing; and
101-22 (E) <(D)> payments for <unnecessary>
101-23 advertising, membership dues, and subscriptions and other
101-24 nonessential expenditures of the agency's or division's funds;
101-25 (2) <(3)> increased efficiency in energy use;
101-26 (3) <(4)> improved office procedures and systems; and
101-27 (4) <(5)> another practice or device that the
102-1 commission determines has resulted in verifiable savings.
102-2 (b) Section 4, Chapter 333, Acts of the 73rd Legislature,
102-3 Regular Session, 1993, is repealed.
102-4 SECTION 5.37. (a) Section 2108.106, Government Code, is
102-5 amended to conform to Section 5, Chapter 333, Acts of the 73rd
102-6 Legislature, Regular Session, 1993, by amending Subsection (b) and
102-7 adding Subsection (d) to read as follows:
102-8 (b) An eligible employee who worked for less than 12 months
102-9 of the <entire fiscal> year or who worked part-time is entitled to
102-10 a proportional share computed on the fraction <part> of the
102-11 <fiscal> year <or the average part of the work week, as
102-12 applicable,> that the employee worked.
102-13 (d) The commission may grant a request by an agency or
102-14 division not to pay a bonus if a negligible reduction in cost
102-15 occurred.
102-16 (b) Section 5, Chapter 333, Acts of the 73rd Legislature,
102-17 Regular Session, 1993, is repealed.
102-18 SECTION 5.38. (a) Section 2203.001(b), Government Code, is
102-19 amended to conform to Section 12, Chapter 449, Acts of the 73rd
102-20 Legislature, Regular Session, 1993, to read as follows:
102-21 (b) The report must be made daily on a form prescribed by
102-22 the General Services Commission <comptroller>.
102-23 (b) Section 12, Chapter 449, Acts of the 73rd Legislature,
102-24 Regular Session, 1993, is repealed.
102-25 SECTION 5.39. (a) Section 2205.043, Government Code, is
102-26 amended to conform to Section 9, Chapter 300, Acts of the 73rd
102-27 Legislature, Regular Session, 1993, to read as follows:
103-1 Sec. 2205.043. AIRCRAFT MARKING. (a) Each aircraft owned
103-2 or leased by the state, other than an aircraft used for law
103-3 enforcement purposes, shall be marked:
103-4 (1) with the <Texas> state seal on each side of the
103-5 aircraft's vertical stabilizer; and
103-6 (2) with the words "The State of Texas" on each side
103-7 of the aircraft's fuselage.
103-8 (b) The board shall adopt rules, consistent with federal
103-9 regulations and Article 6139f, Revised Statutes, governing the
103-10 color, size, and location of marks of identification required by
103-11 this section.
103-12 (b) Section 9, Chapter 300, Acts of the 73rd Legislature,
103-13 Regular Session, 1993, is repealed.
103-14 SECTION 5.40. (a) Section 2251.001, Government Code, is
103-15 amended by amending Subdivisions (5)-(7) and adding Subdivision (8)
103-16 to conform to Section 11, Chapter 660, Acts of the 73rd
103-17 Legislature, Regular Session, 1993, to read as follows:
103-18 (5) "Service" includes gas and water utility service.
103-19 (6) "State agency" means:
103-20 (A) a board, commission, department, office, or
103-21 other agency in the executive branch of state government that is
103-22 created by the constitution or a statute of this state, including a
103-23 river authority and an institution of higher education as defined
103-24 by Section 61.003, Education Code;
103-25 (B) the legislature or a legislative agency; or
103-26 (C) the Supreme Court of Texas, the Court of
103-27 Criminal Appeals of Texas, a court of appeals, a state judicial
104-1 agency, or the State Bar of Texas.
104-2 (7) <(6)> "Subcontractor" means a person who contracts
104-3 with a vendor to work or contribute toward completing work for a
104-4 governmental entity.
104-5 (8) <(7)> "Vendor" means a person who supplies goods
104-6 or services to a governmental entity.
104-7 (b) Section 11, Chapter 660, Acts of the 73rd Legislature,
104-8 Regular Session, 1993, is repealed.
104-9 SECTION 5.41. (a) Section 2251.002, Government Code, is
104-10 amended to conform to Section 12, Chapter 660, and Section 2,
104-11 Chapter 1012, Acts of the 73rd Legislature, Regular Session, 1993,
104-12 by amending Subsection (a) and adding Subsection (c) to read as
104-13 follows:
104-14 (a) This chapter does not apply to a payment made by a
104-15 governmental entity, vendor, or subcontractor if:
104-16 (1) there is a bona fide dispute between the
104-17 governmental entity and a vendor, contractor, subcontractor, or
104-18 supplier about the goods delivered or the services performed that
104-19 causes the payment to be late <the terms of a contract specify
104-20 another time or method of payment or method of resolving a dispute
104-21 or interest owed on a delinquent payment>;
104-22 (2) there is a bona fide dispute between a vendor and
104-23 a subcontractor or between a subcontractor and its supplier about
104-24 the goods delivered or the services performed that causes the
104-25 payment to be late;
104-26 (3) the terms of a federal contract, grant,
104-27 regulation, or statute prevent the governmental entity from making
105-1 a timely payment with federal funds; or
105-2 (4) the invoice is not mailed to the person to whom it
105-3 is addressed in strict accordance with any instruction on the
105-4 purchase order relating to the payment.
105-5 (c) Notwithstanding Subsection (a), this chapter applies to
105-6 a payment made by a state agency for gas or water utility service
105-7 regardless of any contractual provision.
105-8 (b) Section 12, Chapter 660, and Section 2, Chapter 1012,
105-9 Acts of the 73rd Legislature, Regular Session, 1993, are repealed.
105-10 SECTION 5.42. (a) Section 2251.021, Government Code, is
105-11 amended to conform to Section 1, Chapter 1012, Acts of the 73rd
105-12 Legislature, Regular Session, 1993, to read as follows:
105-13 Sec. 2251.021. TIME FOR PAYMENT BY GOVERNMENTAL ENTITY.
105-14 (a) A payment under a contract executed on or after September 1,
105-15 1993, owed by a governmental entity whose governing body meets more
105-16 frequently than once a month <by a governmental entity under a
105-17 contract executed on or after September 1, 1987,> is overdue on the
105-18 31st day after the later of:
105-19 (1) the date the governmental entity receives the
105-20 goods under the contract;
105-21 (2) the date the performance of the service under the
105-22 contract is completed; or
105-23 (3) the date the governmental entity receives an
105-24 invoice for the goods or services.
105-25 (b) A payment under a contract executed on or after
105-26 September 1, 1993, owed by a governmental entity whose governing
105-27 body meets only once a month or less frequently is overdue on the
106-1 46th day after the later event described by Subsections (a)(1)
106-2 through (3).
106-3 (c) A payment by a governmental entity under a contract
106-4 executed on or after September 1, 1987, and before September 1,
106-5 1993, is overdue on the 31st day after the later event described by
106-6 Subsections (a)(1) through (3).
106-7 (d) <(b)> For a contract executed on or after July 1, 1986,
106-8 and before September 1, 1987, a payment by a governmental entity
106-9 under that contract is overdue on the 46th day after the later
106-10 event described by Subsections (a)(1) through (3).
106-11 (b) Section 1, Chapter 1012, Acts of the 73rd Legislature,
106-12 Regular Session, 1993, is repealed.
106-13 SECTION 5.43. (a) Section 2253.021(a), Government Code, is
106-14 amended to conform to Section 1, Chapter 865, Acts of the 73rd
106-15 Legislature, Regular Session, 1993, to read as follows:
106-16 (a) A governmental entity that makes a public work contract
106-17 <for more than $25,000> with a prime contractor shall require the
106-18 contractor, before beginning the work, to execute to the
106-19 governmental entity:
106-20 (1) a performance bond if the contract is in excess of
106-21 $100,000; and
106-22 (2) a payment bond if the contract is in excess of
106-23 $25,000.
106-24 (b) Section 2253.022, Government Code, is repealed to
106-25 conform to the repeal of the language from which that section was
106-26 derived by Section 1, Chapter 865, Acts of the 73rd Legislature,
106-27 Regular Session, 1993.
107-1 (c) Section 1, Chapter 865, Acts of the 73rd Legislature,
107-2 Regular Session, 1993, is repealed.
107-3 SECTION 5.44. (a) Section 2254.021(4), Government Code, is
107-4 amended to conform to Section 50, Chapter 684, Acts of the 73rd
107-5 Legislature, Regular Session, 1993, and Section 1.03, Chapter 906,
107-6 Acts of the 73rd Legislature, Regular Session, 1993, to read as
107-7 follows:
107-8 (4) "State agency" has the meaning assigned by Section
107-9 1.02, State Purchasing and General Services Act (Article 601b,
107-10 Vernon's Texas Civil Statutes) <means a state department,
107-11 commission, board, office, institution, facility, or other agency
107-12 the jurisdiction of which is not limited to a geographical portion
107-13 of the state. The term includes a university system and an
107-14 institution of higher education, other than a public junior
107-15 college, as those terms are defined by Section 61.003, Education
107-16 Code>.
107-17 (b) Section 50, Chapter 684, Acts of the 73rd Legislature,
107-18 Regular Session, 1993, and Section 1.03, Chapter 906, Acts of the
107-19 73rd Legislature, Regular Session, 1993, are repealed.
107-20 SECTION 5.45. (a) Section 2256.006, Government Code, as
107-21 amended by Section 2, Chapter 820, Acts of the 73rd Legislature,
107-22 Regular Session, 1993, is amended to conform to Section 1, Chapter
107-23 946, Acts of the 73rd Legislature, Regular Session, 1993, to read
107-24 as follows:
107-25 Sec. 2256.006. AUTHORIZED INVESTMENTS: OBLIGATIONS OF, OR
107-26 GUARANTEED BY, GOVERNMENTAL ENTITIES. The following are
107-27 authorized investments under this subchapter:
108-1 (1) obligations of the United States or its
108-2 instrumentalities;
108-3 (2) direct obligations of this state or its agencies;
108-4 (3) collateralized mortgage obligations directly
108-5 issued by a federal agency or instrumentality of the United States,
108-6 the underlying security for which is guaranteed by an agency or
108-7 instrumentality of the United States;
108-8 (4) other obligations, the principal and interest of
108-9 which are unconditionally guaranteed or insured by, or backed by
108-10 the full faith and credit of, this state or the United States or
108-11 its instrumentalities; and
108-12 (5) obligations of states, agencies, counties, cities,
108-13 and other political subdivisions of any state rated as to
108-14 investment quality by a nationally recognized investment rating
108-15 firm not less than A or its equivalent.
108-16 (b) Section 2256.008(a), Government Code, is amended to
108-17 conform to Section 1, Chapter 946, Acts of the 73rd Legislature,
108-18 Regular Session, 1993, to read as follows:
108-19 (a) A fully collateralized repurchase agreement is an
108-20 authorized investment under this subchapter if the repurchase
108-21 agreement:
108-22 (1) has a defined termination date;
108-23 (2) is secured by obligations described by Section
108-24 2256.006(1);
108-25 (3) is pledged to the entity and deposited with a
108-26 third party selected and <or> approved by the entity; and
108-27 (4) is placed through a primary government securities
109-1 dealer, as defined by the Federal Reserve, or a bank domiciled in
109-2 this state.
109-3 (c) Section 2256.011(a), Government Code, is amended to
109-4 conform to Section 1, Chapter 946, Acts of the 73rd Legislature,
109-5 Regular Session, 1993, to read as follows:
109-6 (a) A no-load money market mutual fund is an authorized
109-7 investment under this subchapter if the mutual fund:
109-8 (1) is regulated by <registered with> the Securities
109-9 and Exchange Commission;
109-10 (2) has a dollar-weighted average stated <portfolio>
109-11 maturity of 90 <120> days or fewer; and
109-12 (3) <is invested exclusively in obligations described
109-13 by Sections 2256.006 through 2256.010; and>
109-14 <(4)> includes in its investment objectives the
109-15 maintenance of a stable net asset value of $1 for each share.
109-16 (d) Section 2256.012, Government Code, is amended to conform
109-17 to Section 1, Chapter 946, Acts of the 73rd Legislature, Regular
109-18 Session, 1993, to read as follows:
109-19 Sec. 2256.012. AUTHORIZED INVESTMENTS BY INSTITUTIONS OF
109-20 HIGHER EDUCATION. The following are additional authorized
109-21 investments under this subchapter for an institution of higher
109-22 education:
109-23 (1) a cash management and fixed income fund sponsored
109-24 by an organization exempt from federal income taxation under
109-25 Section 501(f), Internal Revenue Code of 1986;
109-26 (2) a negotiable certificate of deposit issued by a
109-27 bank:
110-1 (A) that has a certificate of deposit rating of
110-2 at least 1 or the equivalent by a nationally recognized credit
110-3 rating agency; or
110-4 (B) that is associated with a holding company
110-5 having a commercial paper rating of at least A-1, P-1, or the
110-6 equivalent by a nationally recognized credit rating agency; and
110-7 (3) a corporate bond, debenture, or similar debt
110-8 obligation rated by a nationally recognized investment rating firm
110-9 in one of the two highest long-term rating categories, without
110-10 regard to gradations within those categories. <: COMMON TRUST
110-11 FUNDS. (a) A qualified common trust fund is an authorized
110-12 investment for the local funds of an institution of higher
110-13 education and for the bond proceeds and reserves and other funds
110-14 held for debt service of a municipality, county, school district,
110-15 or navigation district if the common trust fund:>
110-16 <(1) is owned or administered by a bank domiciled in
110-17 this state;>
110-18 <(2) consists exclusively of assets that are
110-19 obligations described by Sections 2256.006 through 2256.010;>
110-20 <(3) complies with the Internal Revenue Code of 1986
110-21 and applicable federal regulations governing the investment of bond
110-22 proceeds and reserves and other funds held for debt service; and>
110-23 <(4) meets the cash flow requirements and the
110-24 investment needs of the political subdivision or institution.>
110-25 <(b) In this section, "common trust fund" includes a
110-26 comparable investment device.>
110-27 (e) Subchapter A, Chapter 2256, Government Code, is amended
111-1 to conform to Section 1, Chapter 946, Acts of the 73rd Legislature,
111-2 Regular Session, 1993, by amending Sections 2256.013 and 2256.014
111-3 and adding Section 2256.0141 to read as follows:
111-4 Sec. 2256.013. AUTHORIZED INVESTMENTS: PUBLIC FUNDS
111-5 INVESTMENT POOL. A public funds investment pool operating in the
111-6 manner described by Section 2256.014 and eligible to receive funds
111-7 as provided by Section 2256.0141 is an authorized investment under
111-8 this subchapter if the governing body of the entity by resolution
111-9 authorizes investment in the pool. <BIDS FOR COMMON TRUST FUND
111-10 INVESTMENTS. (a) An institution of higher education or a
111-11 municipality, county, school district, or navigation district may
111-12 invest in a common trust fund under Section 2256.012 only after
111-13 soliciting orally or in another manner competitive bids from at
111-14 least three banks.>
111-15 <(b) The solicitations for bids required by Subsection (a)
111-16 for a county shall be made only to banks located in the county
111-17 unless there are fewer than three banks available for the
111-18 investment located in the county; in which case, the solicitations
111-19 shall be made to each bank in the county and, as necessary to
111-20 complete the solicitations, to banks located in this state.>
111-21 <(c) The solicitations for bids required by Subsection (a)
111-22 for a municipality or a school district shall be made only to banks
111-23 located in the municipality or school district unless there are
111-24 fewer than three banks available for the investments located in the
111-25 municipality or school district; in which case, the solicitations
111-26 shall be made to each bank in the municipality or school district
111-27 and, as necessary to complete the solicitations, to banks in a
112-1 county in which the municipality or school district is located. If
112-2 there are fewer than three banks available for investments in the
112-3 municipality or school district and in the counties in which the
112-4 municipality or school district is located, the solicitations shall
112-5 be made to each bank in the municipality or school district and in
112-6 the counties in which the municipality or school district is
112-7 located, and, as necessary to complete the solicitations, to banks
112-8 located in this state.>
112-9 <(d) This section applies to a nonprofit corporation acting
112-10 on behalf of a municipality, county, or school district as it
112-11 applies to the municipality, county, or school district.>
112-12 Sec. 2256.014. OPERATION OF PUBLIC FUNDS INVESTMENT POOL.
112-13 (a) A public funds investment pool may invest public funds jointly
112-14 on behalf of the entities that participate in the pool.
112-15 (b) A public funds investment pool may invest the funds it
112-16 receives in any investment authorized by this subchapter other than
112-17 an investment authorized for an institution of higher education
112-18 under Section 2256.012.
112-19 (c) The priority of the investment objectives of a public
112-20 funds investment pool is:
112-21 (1) safety of principal;
112-22 (2) liquidity; and
112-23 (3) income.
112-24 (d) A public funds investment pool shall establish an
112-25 advisory board composed of participants in the pool and other
112-26 persons who are qualified to advise the pool. <BANK UNWILLING TO
112-27 BID; PRESUMPTION. A governmental entity or nonprofit corporation
113-1 that is notified by a bank that the bank is unable or unwilling to
113-2 bid for investments under Section 2256.012 may presume that the
113-3 bank continues to be unable or unwilling to bid for investments
113-4 until the bank in writing notifies the entity otherwise.>
113-5 Sec. 2256.0141. ELIGIBILITY OF PUBLIC FUNDS INVESTMENT POOL
113-6 TO RECEIVE FUNDS. (a) A public funds investment pool is eligible
113-7 to receive funds from an entity making an authorized investment
113-8 under this subchapter only if the pool provides to the chief
113-9 financial officer or other authorized representative of the entity
113-10 an offering circular or other similar disclosure instrument that
113-11 contains at least the following information:
113-12 (1) the types of investments in which money is allowed
113-13 to be invested;
113-14 (2) the maximum average dollar-weighted maturity
113-15 allowed, based on the stated maturity date, of the pool;
113-16 (3) the maximum stated maturity date any investment
113-17 security in the portfolio may have;
113-18 (4) the objectives of the pool;
113-19 (5) the size of the pool;
113-20 (6) the names of the members of the advisory board of
113-21 the pool and the dates their terms expire;
113-22 (7) the custodian bank that keeps the pool's assets;
113-23 (8) whether the intent of the pool is to maintain a
113-24 net asset value of one dollar and, in relation to that intent, the
113-25 risk of market price fluctuation;
113-26 (9) whether the only sources of payment are the assets
113-27 of the pool at market value;
114-1 (10) if there are sources of payment other than the
114-2 assets of the pool, including insurance and guarantees, a
114-3 description of those sources;
114-4 (11) the name and address of the independent auditor
114-5 of the pool;
114-6 (12) the requirements for an entity to deposit funds
114-7 in and withdraw funds from the pool, including any deadlines and
114-8 other operating policies; and
114-9 (13) the performance history of the pool, including
114-10 yield, average dollar-weighted maturities, and expense ratios.
114-11 (b) A public funds investment pool may maintain its
114-12 eligibility to receive funds from an entity making an authorized
114-13 investment under this subchapter only if the pool provides to the
114-14 chief financial officer or other authorized representative of the
114-15 entity:
114-16 (1) investment transaction confirmations; and
114-17 (2) a monthly report described by Subsection (c).
114-18 (c) The monthly report required to maintain eligibility
114-19 under Subsection (b) must contain at least the following
114-20 information:
114-21 (1) the types of securities in which the pool has
114-22 invested and the percentage of total investments attributable to
114-23 each type;
114-24 (2) the current average dollar-weighted maturity,
114-25 based on the stated maturity date, of the pool;
114-26 (3) the current percentage of the pool's portfolio in
114-27 investments that have stated maturities of more than one year;
115-1 (4) a comparison of the carrying value and the market
115-2 value of the pool's portfolio, using amortized cost valuation;
115-3 (5) the size of the pool;
115-4 (6) the number of participants in the pool;
115-5 (7) the custodian bank that keeps the pool's assets;
115-6 (8) a listing of the daily transaction activity of the
115-7 entity in the pool;
115-8 (9) the yield and expense ratio of the pool;
115-9 (10) the names of portfolio managers of the pool; and
115-10 (11) any change or addition to the information in the
115-11 pool's offering circular or other similar disclosure statement.
115-12 (f) Chapter 946, Acts of the 73rd Legislature, Regular
115-13 Session, 1993, is repealed.
115-14 SECTION 5.46. (a) Subchapter A, Chapter 2256, Government
115-15 Code, is amended to conform to Section 1, Chapter 858, Acts of the
115-16 73rd Legislature, Regular Session, 1993, by adding Section 2256.017
115-17 to read as follows:
115-18 Sec. 2256.017. STATE OF ISRAEL BONDS. Each of the following
115-19 entities may invest in bonds issued, assumed, or guaranteed by the
115-20 State of Israel:
115-21 (1) the state;
115-22 (2) an entity of state government, including a
115-23 department, commission, board, or office; or
115-24 (3) an entity listed in Section 2256.003.
115-25 (b) Section 1, Chapter 858, Acts of the 73rd Legislature,
115-26 Regular Session, 1993, is repealed.
115-27 SECTION 5.47. (a) Subchapter A, Chapter 113, Local
116-1 Government Code, is amended to conform to Section 1, Chapter 181,
116-2 Acts of the 73rd Legislature, Regular Session, 1993, by adding
116-3 Section 113.007 to read as follows:
116-4 Sec. 113.007. TRANSFER OR INVESTMENT OF AD VALOREM TAXES BY
116-5 ELECTRONIC MEANS. A county tax assessor-collector may use
116-6 electronic means to transfer or invest ad valorem taxes collected
116-7 on behalf of the county or under a contract with another taxing
116-8 unit.
116-9 (b) Section 1, Chapter 181, Acts of the 73rd Legislature,
116-10 Regular Session, 1993, is repealed.
116-11 SECTION 5.48. (a) Section 2257.002(6), Government Code, is
116-12 amended to conform to Section 2, Chapter 234, Acts of the 73rd
116-13 Legislature, Regular Session, 1993, to read as follows:
116-14 (6) "Investment security" means:
116-15 (A) an obligation that in the opinion of the
116-16 attorney general of the United States is a general obligation of
116-17 the United States and backed by its full faith and credit;
116-18 (B) a general or special obligation issued by a
116-19 public agency that<:>
116-20 <(i)> is payable from taxes, revenues, or
116-21 a combination of taxes and revenues;
116-22 <(ii) is rated as to investment quality by
116-23 a nationally recognized rating agency; and>
116-24 <(iii) has a current rating of not less
116-25 than A or its equivalent;> or
116-26 (C) a security in which a public entity may
116-27 invest under Subchapter A, Chapter 2256.
117-1 (b) Section 2, Chapter 234, Acts of the 73rd Legislature,
117-2 Regular Session, 1993, is repealed.
117-3 SECTION 5.49. (a) Subtitle F, Title 10, Government Code, is
117-4 amended to codify Chapter 45, General Laws, Acts of the 43rd
117-5 Legislature, Regular Session, 1933 (Article 5159a, Vernon's Texas
117-6 Civil Statutes), by adding Chapter 2258 to read as follows:
117-7 CHAPTER 2258. PREVAILING WAGE RATES
117-8 SUBCHAPTER A. GENERAL PROVISIONS
117-9 Sec. 2258.001. DEFINITIONS. In this chapter:
117-10 (1) "Locality in which the work is performed" means:
117-11 (A) for a contract for a public work awarded by
117-12 the state, the political subdivision of the state in which the
117-13 public work is located, which may include a county, municipality,
117-14 county and municipality, or district; or
117-15 (B) for a contract for a public work awarded by
117-16 a political subdivision of the state, the geographical limits of
117-17 the political subdivision.
117-18 (2) "Public body" means a public body awarding a
117-19 contract for a public work on behalf of the state or a political
117-20 subdivision of the state.
117-21 (3) "Worker" includes a laborer or mechanic.
117-22 Sec. 2258.002. APPLICABILITY OF CHAPTER TO PUBLIC WORKS.
117-23 (a) This chapter applies only to the construction of a public
117-24 work, including a building, highway, road, excavation, and repair
117-25 work or other project development or improvement, paid for in whole
117-26 or in part from public funds, without regard to whether the work is
117-27 done under public supervision or direction.
118-1 (b) This chapter does not apply to work done directly by a
118-2 public utility company under an order of a public authority.
118-3 Sec. 2258.003. LIABILITY. An officer, agent, or employee of
118-4 a public body is not liable in a civil action for any act or
118-5 omission implementing or enforcing this chapter unless the action
118-6 was made in bad faith.
118-7 (Sections 2258.004-2258.020 reserved for expansion
118-8 SUBCHAPTER B. PAYMENT OF PREVAILING WAGE RATES
118-9 Sec. 2258.021. DUTY OF GOVERNMENTAL ENTITY TO PAY PREVAILING
118-10 WAGE RATES. (a) The state or any political subdivision of the
118-11 state shall pay a worker employed by it or on behalf of it:
118-12 (1) not less than the general prevailing rate of per
118-13 diem wages for work of a similar character in the locality in which
118-14 the work is performed; and
118-15 (2) not less than the general prevailing rate of per
118-16 diem wages for legal holiday and overtime work.
118-17 (b) Subsection (a) does not apply to maintenance work.
118-18 (c) A worker is employed on a public work for the purposes
118-19 of this section if the worker is employed by a contractor or
118-20 subcontractor in the execution of a contract for the public work
118-21 with the state, a political subdivision of the state, or any
118-22 officer or public body of the state or a political subdivision of
118-23 the state.
118-24 Sec. 2258.022. DETERMINATION OF PREVAILING WAGE RATES. (a)
118-25 A public body shall determine the general prevailing rate of per
118-26 diem wages in the locality in which the public work is to be
118-27 performed for each craft or type of worker needed to execute the
119-1 contract and the prevailing rate for legal holiday and overtime
119-2 work by:
119-3 (1) conducting a survey of the wages received by
119-4 classes of workers employed on projects of a character similar to
119-5 the contract work in the political subdivision of the state in
119-6 which the public work is to be performed; or
119-7 (2) using the prevailing wage rate as determined by
119-8 the U.S. Department of Labor in accordance with the Davis-Bacon Act
119-9 (40 U.S.C. Section 276a et seq.), if the survey used to determine
119-10 that rate was conducted within a three-year period preceding the
119-11 date the public body calls for bids for the public work.
119-12 (b) The public body shall determine the general prevailing
119-13 rate of per diem wages as a sum certain, expressed in dollars and
119-14 cents.
119-15 (c) A public body shall specify in the call for bids for the
119-16 contract and in the contract itself the wage rates determined under
119-17 this section.
119-18 Sec. 2258.023. PREVAILING WAGE RATES TO BE PAID BY
119-19 CONTRACTOR AND SUBCONTRACTOR; PENALTY. (a) The contractor who is
119-20 awarded a contract by a public body or a subcontractor of the
119-21 contractor shall pay not less than the rates determined under
119-22 Section 2258.022 to a worker employed by it in the execution of the
119-23 contract.
119-24 (b) A contractor or subcontractor who violates this section
119-25 shall pay to the state or a political subdivision of the state on
119-26 whose behalf the contract is made, $60 for each worker employed for
119-27 each calendar day or part of the day that the worker is paid less
120-1 than the wage rates stipulated in the contract. A public body
120-2 awarding a contract shall specify this penalty in the contract.
120-3 (c) A contractor or subcontractor does not violate this
120-4 section if a public body awarding a contract does not determine the
120-5 prevailing wage rates and specify the rates in the contract as
120-6 provided by Section 2258.022.
120-7 (d) The public body shall use any money collected under this
120-8 section to offset the costs incurred in the administration of this
120-9 chapter.
120-10 (e) A municipality is entitled to collect a penalty under
120-11 this section only if the municipality has a population of more than
120-12 10,000.
120-13 Sec. 2258.024. RECORDS. (a) A contractor and subcontractor
120-14 shall keep a record showing:
120-15 (1) the name and occupation of each worker employed by
120-16 the contractor or subcontractor in the construction of the public
120-17 work; and
120-18 (2) the actual per diem wages paid to each worker.
120-19 (b) The record shall be open at all reasonable hours to
120-20 inspection by the officers and agents of the public body.
120-21 Sec. 2258.025. PAYMENT GREATER THAN PREVAILING RATE NOT
120-22 PROHIBITED. This chapter does not prohibit the payment to a worker
120-23 employed on a public work an amount greater than the general
120-24 prevailing rate of per diem wages.
120-25 Sec. 2258.026. RELIANCE ON CERTIFICATE OF SUBCONTRACTOR. A
120-26 contractor is entitled to rely on a certificate by a subcontractor
120-27 regarding the payment of all sums due those working for the
121-1 subcontractor until the contrary has been determined.
121-2 (Sections 2258.027-2258.050 reserved for expansion
121-3 SUBCHAPTER C. ENFORCEMENT; CIVIL AND CRIMINAL PENALTIES
121-4 Sec. 2258.051. DUTY OF PUBLIC BODY TO HEAR COMPLAINTS AND
121-5 WITHHOLD PAYMENT. A public body awarding a contract, and an agent
121-6 or officer of the public body, shall:
121-7 (1) take cognizance of complaints of all violations of
121-8 this chapter committed in the execution of the contract; and
121-9 (2) withhold money forfeited or required to be
121-10 withheld under this chapter from the payments to the contractor
121-11 under the contract, except that the public body may not withhold
121-12 money from other than the final payment without a determination by
121-13 the public body that there is good cause to believe that the
121-14 contractor has violated this chapter.
121-15 Sec. 2258.052. COMPLAINT; INITIAL DETERMINATION. (a) On
121-16 receipt of information, including a complaint by a worker,
121-17 concerning an alleged violation of Section 2258.023 by a contractor
121-18 or subcontractor, a public body shall make an initial determination
121-19 as to whether good cause exists to believe that the violation
121-20 occurred.
121-21 (b) A public body must make its determination under
121-22 Subsection (a) before the 31st day after the date the public body
121-23 receives the information.
121-24 (c) A public body shall notify in writing the contractor or
121-25 subcontractor and any affected worker of its initial determination.
121-26 (d) A public body shall retain any amount due under the
121-27 contract pending a final determination of the violation.
122-1 Sec. 2258.053. ARBITRATION REQUIRED FOR UNRESOLVED ISSUE.
122-2 (a) An issue relating to an alleged violation of Section 2258.023,
122-3 including a penalty owed to a public body or an affected worker,
122-4 shall be submitted to binding arbitration in accordance with the
122-5 Texas General Arbitration Act (Article 224 et seq., Revised
122-6 Statutes) if the contractor or subcontractor and any affected
122-7 worker do not resolve the issue by agreement before the 15th day
122-8 after the date the public body makes its initial determination
122-9 under Section 2258.052.
122-10 (b) If the persons required to arbitrate under this section
122-11 do not agree on an arbitrator before the 11th day after the date
122-12 that arbitration is required under Subsection (a), a district court
122-13 shall appoint an arbitrator on the petition of any of the persons.
122-14 (c) A public body is not a party in the arbitration.
122-15 Sec. 2258.054. ARBITRATION AWARD; COSTS. (a) If an
122-16 arbitrator determines that Section 2258.023 has been violated, the
122-17 arbitrator shall assess and award against the contractor or
122-18 subcontractor:
122-19 (1) penalties as provided by Section 2258.023 and this
122-20 section; and
122-21 (2) all amounts owed to the affected worker.
122-22 (b) An arbitrator shall assess and award all reasonable
122-23 costs, including the arbitrator's fee, against the party who does
122-24 not prevail. Costs may be assessed against the worker only if the
122-25 arbitrator finds that the claim is frivolous. If the arbitrator
122-26 does not find that the claim is frivolous and does not make an
122-27 award to the worker, costs are shared equally by the parties.
123-1 Sec. 2258.055. ARBITRATION DECISION AND AWARD FINAL. The
123-2 decision and award of the arbitrator is final and binding on all
123-3 parties and may be enforced in any court of competent jurisdiction.
123-4 Sec. 2258.056. PAYMENT BY PUBLIC BODY TO WORKER; ACTION TO
123-5 RECOVER PAYMENT. (a) A public body shall use any amounts retained
123-6 under this chapter to pay the worker the difference between the
123-7 amount the worker received in wages for labor on the public work at
123-8 the rate paid by the contractor or subcontractor and the amount the
123-9 worker would have received at the general prevailing wage rate as
123-10 provided in the arbitrator's award.
123-11 (b) The public body may adopt rules, orders, or ordinances
123-12 relating to the manner in which a reimbursement is made.
123-13 (c) If the amounts retained by a public body under this
123-14 chapter are not sufficient for the public body to pay the worker
123-15 the full amount owed, the worker has a right of action against the
123-16 contractor or subcontractor and the surety of the contractor or
123-17 subcontractor to recover the amount owed, reasonable attorney's
123-18 fees, and court costs.
123-19 Sec. 2258.057. WITHHOLDING BY CONTRACTOR. (a) A contractor
123-20 may withhold from a subcontractor sufficient money to cover an
123-21 amount withheld from the contractor by a public body because the
123-22 subcontractor violated this chapter.
123-23 (b) If the contractor has made a payment to the
123-24 subcontractor, the contractor may withhold money from any future
123-25 payments owed to the subcontractor or sue the subcontractor or the
123-26 subcontractor's surety for the amount withheld from the contractor
123-27 by a public body because of the subcontractor's violation.
124-1 Sec. 2258.058. CRIMINAL OFFENSE. (a) An officer, agent, or
124-2 representative of the state or of a political subdivision of the
124-3 state commits an offense if the person wilfully violates or does
124-4 not comply with a provision of this chapter.
124-5 (b) A contractor or subcontractor of a public work under
124-6 this chapter, or an agent or representative of the contractor or
124-7 subcontractor, commits an offense if the person violates Section
124-8 2258.024.
124-9 (c) An offense under this section is punishable by:
124-10 (1) a fine not to exceed $500;
124-11 (2) confinement in jail for a term not to exceed six
124-12 months; or
124-13 (3) both a fine and confinement.
124-14 (b) Chapter 45, General Laws, Acts of the 43rd Legislature,
124-15 Regular Session, 1933 (Article 5159a, Vernon's Texas Civil
124-16 Statutes), is repealed.
124-17 SECTION 5.50. Section 2303.003, Government Code, is amended
124-18 to conform to Section 6, Chapter 231, Acts of the 73rd Legislature,
124-19 Regular Session, 1993, by adding Subdivision (8) to read as
124-20 follows:
124-21 (8) "Qualified hotel project" means a hotel proposed
124-22 to be constructed by a municipality or a nonprofit municipally
124-23 sponsored local government corporation created under the Texas
124-24 Transportation Corporation Act (Article 1528l, Vernon's Texas Civil
124-25 Statutes) that is within 1,000 feet of a convention center owned by
124-26 a municipality having a population of 1,500,000 or more, including
124-27 shops, parking facilities, and any other facilities ancillary to
125-1 the hotel.
125-2 SECTION 5.51. (a) Section 2303.304, Government Code, is
125-3 amended to conform to Section 4, Chapter 974, Acts of the 73rd
125-4 Legislature, Regular Session, 1993, by adding Subsections (f) and
125-5 (g) to read as follows:
125-6 (f) A neighborhood enterprise association may enter into a
125-7 contract and participate in a joint venture with the state or a
125-8 state agency or institution.
125-9 (g) A neighborhood enterprise association may receive money
125-10 without approval of the governing body of the enterprise zone.
125-11 (b) Section 4, Chapter 974, Acts of the 73rd Legislature,
125-12 Regular Session, 1993, is repealed.
125-13 SECTION 5.52. (a) Subchapter F, Chapter 2303, Government
125-14 Code, is amended to conform to Sections 26 and 27, Chapter 986,
125-15 Acts of the 73rd Legislature, Regular Session, 1993, Sections 1-3,
125-16 Chapter 974, Acts of the 73rd Legislature, Regular Session, 1993,
125-17 and Sections 5 and 8, Chapter 231, Acts of the 73rd Legislature,
125-18 Regular Session, 1993, to read as follows:
125-19 SUBCHAPTER F. QUALIFIED BUSINESSES AND ENTERPRISE PROJECTS
125-20 Sec. 2303.401. DEFINITION. In this subchapter, "new
125-21 permanent job" means a new employment position created by a
125-22 qualified business as described by Section 2303.402 that:
125-23 (1) has provided at least 1,040 hours of employment a
125-24 year to a qualified employee; and
125-25 (2) is intended to exist during the period that the
125-26 qualified business is designated as an enterprise project under
125-27 Section 2303.406.
126-1 Sec. 2303.402 <2303.401>. Qualified Business. (a) A person
126-2 is a qualified business if the department, for the purpose of state
126-3 benefits under this chapter, or the governing body of an enterprise
126-4 zone, for the purpose of local benefits, certifies that:
126-5 (1) the person is engaged in or has provided
126-6 substantial commitment to initiate the active conduct of a trade or
126-7 business in the enterprise zone; and
126-8 (2) at least 25 percent of the person's new employees
126-9 in the enterprise zone are:
126-10 (A) residents of any enterprise zone in the
126-11 jurisdiction of the governing body of the enterprise zone; or
126-12 (B) economically disadvantaged individuals.
126-13 (b) A person who is a builder is a qualified business if the
126-14 department, for the purpose of state benefits under this chapter,
126-15 or the governing body of an enterprise zone, for the purpose of
126-16 local benefits, certifies that the person has demonstrated:
126-17 (1) proficiency in residential construction in this
126-18 state by providing:
126-19 (A) at least five satisfactory homeowner
126-20 references for properties constructed by the builder in the
126-21 preceding three years that include the name of the property and the
126-22 builder of the property; and
126-23 (B) copies of inspection reports performed by
126-24 code-certified residential inspectors or municipal inspectors on
126-25 the residences, or other satisfactory evidence;
126-26 (2) financial stability by providing bank references,
126-27 financial compilations, and copies of tax returns for the previous
127-1 two years, or other satisfactory evidence; and
127-2 (3) participation in a 10-year insured warranty
127-3 program.
127-4 (c) A person is a qualified business if the department, for
127-5 the purpose of state benefits under this chapter, or the governing
127-6 body of an enterprise zone, for the purpose of local benefits,
127-7 certifies that the person is a qualified hotel project.
127-8 (d) The governing body of an enterprise zone may certify a
127-9 franchise or subsidiary of a new or existing business as a
127-10 qualified business if the franchise or subsidiary:
127-11 (1) is located entirely in the enterprise zone; and
127-12 (2) maintains separate books and records of the
127-13 business activity conducted in the zone.
127-14 (e) <(c)> For the purposes of this section, an economically
127-15 disadvantaged individual is an individual who:
127-16 (1) was unemployed for at least three months before
127-17 obtaining employment with the qualified business;
127-18 (2) receives public assistance benefits, including
127-19 welfare payments or food stamps, based on need and intended to
127-20 alleviate poverty;
127-21 (3) is an economically disadvantaged individual, as
127-22 defined by Section 4(8), Job Training Partnership Act (29 U.S.C.
127-23 Section 1503(8));
127-24 (4) is an individual with handicaps, as defined by 29
127-25 U.S.C. Section 706(8);
127-26 (5) is an inmate, as defined by Section 498.001;
127-27 (6) is entering the workplace after being confined in
128-1 a unit of the institutional division of the Texas Department of
128-2 Criminal Justice or a correctional facility authorized by Chapter
128-3 495; or
128-4 (7) meets the current low income or moderate income
128-5 limits developed under Section 8, United States Housing Act of 1937
128-6 (42 U.S.C. Section 1437f et seq.).
128-7 Sec. 2303.403 <2303.402>. Prohibition on Qualified Business
128-8 Certification. If the department determines that the governing
128-9 body of an enterprise zone is not complying with this chapter, the
128-10 department shall prohibit the certification of a qualified business
128-11 in the zone until the department determines that the governing body
128-12 is complying with this chapter.
128-13 Sec. 2303.404. REQUEST FOR APPLICATION FOR ENTERPRISE
128-14 PROJECT DESIGNATION. (a) A qualified business in an enterprise
128-15 zone described by Subsection (b) may request that the governing
128-16 body of the enterprise zone apply to the department for designation
128-17 of the business as an enterprise project. The request must also be
128-18 made to the enterprise zone's administrative authority, if one
128-19 exists.
128-20 (b) A request may be made under this section only to the
128-21 governing body of an enterprise zone that has:
128-22 (1) an unemployment rate that is at least one and
128-23 one-half times the state average; or
128-24 (2) a population loss of at least:
128-25 (A) 12 percent during the most recent six-year
128-26 period; or
128-27 (B) four percent during the most recent
129-1 three-year period.
129-2 Sec. 2303.405. APPLICATION FOR ENTERPRISE PROJECT
129-3 DESIGNATION. (a) If the governing body of an enterprise zone or
129-4 the governing body and administrative authority of an enterprise
129-5 zone, as appropriate, approve a request made under Section
129-6 2303.404, the governing body may apply to the department for the
129-7 designation of the qualified business as an enterprise project.
129-8 (b) An application must:
129-9 (1) describe completely the conditions in the
129-10 enterprise zone that constitute pervasive poverty, unemployment,
129-11 and economic distress for purposes of Section 2303.101;
129-12 (2) describe the procedures and efforts of the
129-13 governmental entity or entities that applied to have the area
129-14 designated as an enterprise zone to facilitate and encourage
129-15 participation by and negotiation among all affected entities in the
129-16 zone in which the qualified business is located;
129-17 (3) contain an economic analysis of the plans of the
129-18 qualified business for expansion, revitalization, or other activity
129-19 in the enterprise zone, including:
129-20 (A) the number of anticipated new permanent jobs
129-21 the business will create;
129-22 (B) the anticipated number of permanent jobs the
129-23 business will retain;
129-24 (C) the amount of investment to be made in the
129-25 zone; and
129-26 (D) other information the department requires;
129-27 and
130-1 (4) describe the local effort made by the governmental
130-2 entity or entities that applied to have the area designated as an
130-3 enterprise zone, the administrative authority, if one exists, the
130-4 qualified business, and other affected entities to develop and
130-5 revitalize the zone.
130-6 (c) In addition to the requirements of Subsection (b), an
130-7 application by a qualified business that is a builder proposing a
130-8 housing project must also include a complete description of the new
130-9 residential housing to be constructed, including:
130-10 (1) preliminary plans;
130-11 (2) the number of units to be constructed;
130-12 (3) the estimated sales price of homes;
130-13 (4) a statement of affirmative action participation in
130-14 employment practices; and
130-15 (5) a statement of coordinated use of other federal,
130-16 state, or local funds to enhance the project and other enhancements
130-17 to the project.
130-18 (d) For the purposes of this section, local effort to
130-19 develop and revitalize an enterprise zone is:
130-20 (1) the willingness of public entities in the zone to
130-21 provide services, incentives, and regulatory relief authorized by
130-22 this chapter and to negotiate with the qualified business for which
130-23 application is made and with neighborhood enterprise associations
130-24 and other local groups or businesses to achieve the public purposes
130-25 of this chapter; and
130-26 (2) the effort of the qualified business and other
130-27 affected entities to cooperate in achieving those public purposes.
131-1 (e) Factors to be considered in evaluating the local effort
131-2 of a public entity include:
131-3 (1) tax abatement, deferral, refunds, or other tax
131-4 incentives;
131-5 (2) regulatory relief, including:
131-6 (A) zoning changes or variances;
131-7 (B) exemptions from unnecessary building code
131-8 requirements, impact fees, or inspection fees; and
131-9 (C) streamlined permitting;
131-10 (3) enhanced municipal services, including:
131-11 (A) improved police and fire protection;
131-12 (B) institution of community crime prevention
131-13 programs; and
131-14 (C) special public transportation routes or
131-15 reduced fares;
131-16 (4) improvements in community facilities, including:
131-17 (A) capital improvements in water and sewer
131-18 facilities;
131-19 (B) road repair; and
131-20 (C) creation or improvement of parks;
131-21 (5) improvements to housing, including:
131-22 (A) low-interest loans for housing
131-23 rehabilitation, improvement, or new construction; and
131-24 (B) transfer of abandoned housing to individuals
131-25 or community groups;
131-26 (6) business and industrial development services,
131-27 including:
132-1 (A) low-interest loans for business;
132-2 (B) use of surplus school buildings or other
132-3 underutilized publicly owned facilities as small business
132-4 incubators;
132-5 (C) provision of publicly owned land for
132-6 development purposes, including residential, commercial, or
132-7 industrial development;
132-8 (D) creation of special one-stop permitting and
132-9 problem resolution centers or ombudsmen; and
132-10 (E) promotion and marketing services; and
132-11 (7) job training and employment services, including:
132-12 (A) retraining programs;
132-13 (B) literacy and employment skills programs;
132-14 (C) vocational education; and
132-15 (D) customized job training.
132-16 (f) Factors to be considered in evaluating the local effort
132-17 of a private entity include:
132-18 (1) the willingness to negotiate or cooperate in the
132-19 achievement of the purposes of this chapter;
132-20 (2) commitments to hire underskilled, inexperienced,
132-21 disadvantaged, or displaced workers who reside in the enterprise
132-22 zone;
132-23 (3) commitments to hire minority workers and to
132-24 contract with minority-owned businesses; and
132-25 (4) the willingness to make contributions to the
132-26 well-being of the community, such as job training, the donation of
132-27 land for parks or other public purposes, or the provision of child
133-1 care for employees.
133-2 Sec. 2303.406. ENTERPRISE PROJECT DESIGNATION. (a) The
133-3 department may designate a business as an enterprise project only
133-4 if the department determines that:
133-5 (1) the business is a qualified business under Section
133-6 2303.402 that is located in or has made a substantial commitment to
133-7 locate in an enterprise zone described by Section 2303.404(b);
133-8 (2) the governing body of the enterprise zone making
133-9 the application has demonstrated that a high level of cooperation
133-10 exists among public, private, and neighborhood entities in the
133-11 zone; and
133-12 (3) the designation will contribute significantly to
133-13 the achievement of the plans of the governing body making the
133-14 application for development and revitalization of the zone.
133-15 (b) The department shall designate qualified businesses as
133-16 enterprise projects on a competitive basis. The department shall
133-17 make its designation decisions using a weighted scale in which:
133-18 (1) 60 percent of the evaluation depends on the
133-19 economic distress of the enterprise zone in which a proposed
133-20 enterprise project is located; and
133-21 (2) 40 percent of the evaluation depends on the local
133-22 effort to achieve development and revitalization of the enterprise
133-23 zone.
133-24 (c) The designation of an enterprise project is effective
133-25 until the fifth anniversary of the date on which the designation is
133-26 made.
133-27 (d) The department may remove an enterprise project
134-1 designation if it determines that the business is not complying
134-2 with a requirement for its designation.
134-3 Sec. 2303.407. DESIGNATION OF QUALIFIED HOTEL PROJECT AS
134-4 ENTERPRISE PROJECT. (a) The governing body of an enterprise zone
134-5 in which a qualified hotel project is located may apply to the
134-6 department for designation of the qualified hotel project as an
134-7 enterprise project, and the department may designate the qualified
134-8 hotel project as an enterprise project.
134-9 (b) For purposes of Subsection (a), a qualified hotel
134-10 project meets the employment, income, and other criteria of a
134-11 qualified business and enterprise project under this subchapter.
134-12 (c) For purposes of Subsection (a), an enterprise zone in
134-13 which a qualified hotel project is located meets the requirements
134-14 of this chapter.
134-15 (d) In determining the number of enterprise projects that
134-16 the department may approve under this chapter, the department may
134-17 not consider new permanent jobs or retained jobs created by a
134-18 qualified hotel project.
134-19 Sec. 2303.408. ALLOCATION OF JOBS ELIGIBLE FOR TAX REFUND.
134-20 When the department designates a business as an enterprise project,
134-21 the department shall allocate to the project the maximum number of
134-22 new permanent jobs or retained jobs eligible to be included in a
134-23 computation of a tax refund for the project. The number may not
134-24 exceed 625 or a number equal to 110 percent of the number of
134-25 anticipated new permanent jobs or retained jobs specified in the
134-26 application for designation of the business as an enterprise
134-27 project under Section 2303.405, whichever is less.
135-1 <Sec. 2303.403. ENTERPRISE PROJECT DESIGNATION. (a) After
135-2 August 31, 1993, the department may not designate a business as an
135-3 enterprise project. The department's designation of a qualified
135-4 business as an enterprise project before that date is effective
135-5 until the fifth anniversary of the date on which the designation is
135-6 made.>
135-7 <(b) The department may remove an enterprise project
135-8 designation if it determines that the business is not complying
135-9 with a requirement for its designation.>
135-10 (b) The following are repealed:
135-11 (1) Sections 26 and 27, Chapter 986, Acts of the 73rd
135-12 Legislature, Regular Session, 1993;
135-13 (2) Sections 1-3, Chapter 974, Acts of the 73rd
135-14 Legislature, Regular Session, 1993; and
135-15 (3) Sections 5 and 8, Chapter 231, Acts of the 73rd
135-16 Legislature, Regular Session, 1993.
135-17 SECTION 5.53. (a) Subchapter G, Chapter 2303, Government
135-18 Code, is amended to conform to Sections 6 and 7, Chapter 231, Acts
135-19 of the 73rd Legislature, Regular Session, 1993, by adding Section
135-20 2303.5055 to read as follows:
135-21 Sec. 2303.5055. REFUND, REBATE, OR PAYMENT OF TAX PROCEEDS
135-22 TO QUALIFIED HOTEL PROJECT. (a) For a period that may not exceed
135-23 10 years, a governmental body, including a municipality, county, or
135-24 political subdivision, may agree to rebate, refund, or pay eligible
135-25 taxable proceeds to the owner of a qualified hotel project at which
135-26 the eligible taxable proceeds were generated.
135-27 (b) A municipality with a population of 1,500,000 or more
136-1 may agree to guarantee from hotel occupancy taxes the bonds or
136-2 other obligations of a municipally sponsored local government
136-3 corporation created under the Texas Transportation Corporation Act
136-4 (Article 1528l, Vernon's Texas Civil Statutes) that were issued or
136-5 incurred to pay the cost of construction, remodeling, or
136-6 rehabilitation of a qualified hotel project.
136-7 (c) An agreement under this section must be in writing,
136-8 contain an expiration date, and require the beneficiary to provide
136-9 documentation necessary to support a claim.
136-10 (d) A governmental body that makes an agreement under this
136-11 section shall make the rebate, refund, or payment directly to the
136-12 beneficiary.
136-13 (e) In this section, "eligible taxable proceeds" means
136-14 taxable proceeds generated, paid, or collected by a qualified hotel
136-15 project or a business at a qualified hotel project, including hotel
136-16 occupancy taxes, ad valorem taxes, sales and use taxes, and mixed
136-17 beverage taxes.
136-18 (b) Sections 6 and 7, Chapter 231, Acts of the 73rd
136-19 Legislature, Regular Session, 1993, are repealed.
136-20 SECTION 5.54. (a) Subchapter B, Chapter 2303, Government
136-21 Code, is amended to conform to Section 25, Chapter 986, Acts of the
136-22 73rd Legislature, Regular Session, 1993, by adding Section
136-23 2303.0525 to read as follows:
136-24 Sec. 2303.0525. COST-BENEFIT ANALYSIS. (a) On or before
136-25 December 1 of each year, the department shall prepare an annual
136-26 cost-benefit analysis of the enterprise zone program.
136-27 (b) The department shall submit the analysis to the state
137-1 auditor for review and comment on the methodology and conclusions
137-2 of the analysis.
137-3 (c) Before each regular session of the legislature convenes,
137-4 the state auditor shall submit the analyses for the two previous
137-5 years and the state auditor's comments on the analyses to the
137-6 governor, the lieutenant governor, and the speaker of the house of
137-7 representatives.
137-8 (b) Section 25, Chapter 986, Acts of the 73rd Legislature,
137-9 Regular Session, 1993, is repealed.
137-10 SECTION 5.55. Section 2303.003(6), Government Code, is
137-11 amended to conform to the changes required by Chapters 231, 974,
137-12 and 986, Acts of the 73rd Legislature, Regular Session, 1993, to
137-13 read as follows:
137-14 (6) "Qualified business" means a person certified as a
137-15 qualified business under Section 2303.402 <2303.401>.
137-16 SECTION 5.56. Section 2303.501(e), Government Code, is
137-17 amended to conform to the changes required by Chapters 231, 974,
137-18 and 986, Acts of the 73rd Legislature, Regular Session, 1993, to
137-19 read as follows:
137-20 (e) For the purposes of this section, property is classified
137-21 as qualified property if the property is:
137-22 (1) tangible personal property located in the
137-23 enterprise zone that was:
137-24 (A) acquired by a taxpayer not earlier than the
137-25 90th day before the date on which the area was designated as an
137-26 enterprise zone; and
137-27 (B) used predominantly by the taxpayer in the
138-1 active conduct of a trade or business;
138-2 (2) real property located in the enterprise zone that
138-3 was:
138-4 (A) acquired by a taxpayer not earlier than the
138-5 90th day before the date on which the area was designated as an
138-6 enterprise zone and was used predominantly by the taxpayer in the
138-7 active conduct of a trade or business; or
138-8 (B) the principal residence of the taxpayer on
138-9 the date of the sale or exchange; or
138-10 (3) an interest in an entity that was certified as a
138-11 qualified business under Section 2303.402 <2303.401> for the
138-12 entity's most recent tax year ending before the date of the sale or
138-13 exchange.
138-14 SECTION 5.57. Section 151.429(e), Tax Code, as amended by
138-15 Section 9, Chapter 231, Acts of the 73rd Legislature, Regular
138-16 Session, 1993, and Section 41, Chapter 268, Acts of the 73rd
138-17 Legislature, Regular Session, 1993, is amended to read as follows:
138-18 (e) In this section:
138-19 (1) "Enterprise project" means a person designated by
138-20 the Texas Department of Commerce as an enterprise project under
138-21 Chapter 2303, Government Code.
138-22 (2) "Enterprise zone," "qualified employee," and
138-23 "qualified hotel project" have the meanings assigned to those terms
138-24 by Section 2303.003, Government Code.
138-25 (3) "New permanent job" means a new employment
138-26 position created by a qualified business as described by Section
138-27 2303.402 <2303.401>, Government Code, that:
139-1 (A) has provided at least 1,040 hours of
139-2 employment a year to a qualified employee; and
139-3 (B) is intended to exist during the period that
139-4 the qualified business is designated as an enterprise project under
139-5 Chapter 2303, Government Code.
139-6 SECTION 5.58. Section 151.431(e)(3), Tax Code, is amended to
139-7 conform to the changes to Chapter 2303, Government Code, required
139-8 by Chapters 231, 974, and 986, Acts of the 73rd Legislature,
139-9 Regular Session, 1993, to read as follows:
139-10 (3) "Qualified business" means a person that is
139-11 certified as a qualified business under Section 2303.402
139-12 <2303.401>, Government Code.
139-13 SECTION 5.59. Sections 171.501(e)(3) and (4), Tax Code, are
139-14 amended to conform to the changes to Chapter 2303 required by
139-15 Chapters 231, 974, and 986, Acts of the 73rd Legislature, Regular
139-16 Session, 1993, to read as follows:
139-17 (3) "New job" has the meaning assigned "permanent new
139-18 job" <means a new employment position created by a qualified
139-19 business as described> by Section 2303.401, Government Code<, that:>
139-20 <(A) has provided at least 1,040 hours of
139-21 employment a year to a qualified employee; and>
139-22 <(B) is intended to exist during the period that
139-23 the qualified business is designated as an enterprise project under
139-24 Chapter 2303, Government Code>.
139-25 (4) "Qualified business" means a person that is
139-26 certified as a qualified business under Section 2303.402
139-27 <2303.401>, Government Code.
140-1 SECTION 5.60. (a) Section 2306.002(a), Government Code, is
140-2 amended to conform to Section 1, Chapter 725, Acts of the 73rd
140-3 Legislature, Regular Session, 1993, to read as follows:
140-4 (a) The legislature finds that:
140-5 (1) every resident of this state should have a decent,
140-6 safe, and affordable living environment; <and>
140-7 (2) government at all levels should be involved in
140-8 assisting individuals and families of low income in obtaining a
140-9 decent, safe, and affordable living environment; and
140-10 (3) the development and diversification of the
140-11 economy, the elimination of unemployment or underemployment, and
140-12 the development or expansion of commerce in this state should be
140-13 encouraged.
140-14 (b) Section 1, Chapter 725, Acts of the 73rd Legislature,
140-15 Regular Session, 1993, is repealed.
140-16 SECTION 5.61. (a) Sections 2306.004(8), (14), and (15),
140-17 Government Code, are amended to conform to Section 2, Chapter 725,
140-18 Acts of the 73rd Legislature, Regular Session, 1993, to read as
140-19 follows:
140-20 (8) "Federal government" means the United States of
140-21 America and includes any corporate or other instrumentality of the
140-22 United States of America, including the Resolution Trust
140-23 Corporation.
140-24 (14) "Individuals and families of low income" means
140-25 individuals and families earning not more than 80 percent of the
140-26 area median income or applicable federal poverty line, as
140-27 determined under Section 2306.123.
141-1 (15) "Individuals and families of very low income"
141-2 means individuals and families earning not more than 60 percent of
141-3 the area median income or applicable federal poverty line, as
141-4 determined under Section 2306.123.
141-5 (b) Section 2, Chapter 725, Acts of the 73rd Legislature,
141-6 Regular Session, 1993, is repealed.
141-7 SECTION 5.62. (a) Section 2306.032, Government Code, is
141-8 amended to conform to Section 3, Chapter 725, Acts of the 73rd
141-9 Legislature, Regular Session, 1993, to read as follows:
141-10 Sec. 2306.032. Board Meetings. (a) <The board shall meet
141-11 at least three times annually at the call of the presiding officer
141-12 and other times the board determines are necessary. The time and
141-13 place of the other meetings are to be fixed by a majority vote of
141-14 the board.>
141-15 <(b)> The board may hold <special> meetings when called by
141-16 the presiding officer, the director, or three of the members.
141-17 (b) <(c)> The board shall keep complete minutes of board
141-18 meetings. The accounts, minutes, and other records shall be kept
141-19 at the principal office of the department.
141-20 (b) Section 2306.051, Government Code, is repealed to
141-21 conform to the repeal of the language from which that section was
141-22 derived by Section 3, Chapter 725, Acts of the 73rd Legislature,
141-23 Regular Session, 1993.
141-24 (c) Section 2306.053, Government Code, is amended to conform
141-25 to Sections 3 and 5, Chapter 725, Acts of the 73rd Legislature,
141-26 Regular Session, 1993, to read as follows:
141-27 Sec. 2306.053. Department Powers and Duties. (a) The
142-1 department shall<:>
142-2 <(1)> maintain suitable headquarters and other offices
142-3 in this state that the director determines are necessary<; and>
142-4 <(2) furnish the information, equipment, and staff
142-5 necessary to implement the work of the board>.
142-6 (b) The department may:
142-7 (1) sue and be sued, or plead and be impleaded;
142-8 (2) act for and on behalf of this state;
142-9 (3) adopt an official seal or alter it;
142-10 (4) adopt and enforce bylaws and rules;
142-11 (5) contract with the federal government, state, any
142-12 public agency, mortgage lender, person, or other entity;
142-13 (6) designate mortgage lenders to act for the
142-14 department for the origination, processing, and servicing of the
142-15 department's mortgage loans under conditions agreed to by the
142-16 parties;
142-17 (7) provide, contract, or arrange for consolidated
142-18 processing of a housing development to avoid duplication;
142-19 (8) encourage homeless individuals and individuals of
142-20 low or very low income to attend the department's educational
142-21 programs and assist those individuals in attending the programs;
142-22 (9) appoint and determine the qualifications, duties,
142-23 and tenure of its agents, counselors, and professional advisors,
142-24 including accountants, appraisers, architects, engineers, financial
142-25 consultants, housing construction and financing experts, and real
142-26 estate consultants; <and>
142-27 (10) administer federal housing, community affairs, or
143-1 community development programs, including the low income housing
143-2 tax credit program;
143-3 (11) establish eligibility criteria for individuals
143-4 and families of low, very low, and moderate income to participate
143-5 in and benefit from programs administered by the department; and
143-6 (12) do all things necessary, convenient, or desirable
143-7 to carry out the powers expressly granted or necessarily implied by
143-8 this chapter.
143-9 (d) Sections 3 and 5, Chapter 725, Acts of the 73rd
143-10 Legislature, Regular Session, 1993, are repealed.
143-11 SECTION 5.63. (a) Subchapter C, Chapter 2306, Government
143-12 Code, is amended to conform to Section 4, Chapter 725, Acts of the
143-13 73rd Legislature, Regular Session, 1993, by adding Section 2306.056
143-14 to read as follows:
143-15 Sec. 2306.056. COMMITTEES. (a) The presiding officer may
143-16 appoint a committee composed of board members to carry out the
143-17 board's duties.
143-18 (b) The board may consider a recommendation of a committee
143-19 in making a decision under this chapter.
143-20 (b) Section 4, Chapter 725, Acts of the 73rd Legislature,
143-21 Regular Session, 1993, is repealed.
143-22 SECTION 5.64. (a) Section 2306.052(b), Government Code, is
143-23 amended to conform to Section 6, Chapter 725, Acts of the 73rd
143-24 Legislature, Regular Session, 1993, to read as follows:
143-25 (b) The director shall:
143-26 (1) administer and organize the work of the department
143-27 consistent with this chapter and with sound organizational
144-1 management that promotes efficient and effective operation;
144-2 (2) appoint and remove <officers and other> personnel
144-3 employed by the department<, subject to the annual budget and any
144-4 resolution authorizing the issuance of bonds under this chapter>;
144-5 (3) submit, through and with the approval of the
144-6 governor, requests for appropriations and other money to operate
144-7 the department;
144-8 (4) administer all money entrusted to the department;
144-9 (5) administer all money and investments of the
144-10 department subject to:
144-11 (A) department indentures and contracts;
144-12 (B) Sections 2306.118-2306.120; and
144-13 (C) an action of the board under Section
144-14 2306.351 <make an annual report to the governor and the legislature
144-15 of the department's operations and provide other reports requested
144-16 by the governor or the legislature>; and
144-17 (6) perform other functions that may be assigned by
144-18 the governor.
144-19 (b) Section 6, Chapter 725, Acts of the 73rd Legislature,
144-20 Regular Session, 1993, is repealed.
144-21 SECTION 5.65. (a) Subchapter D, Chapter 2306, Government
144-22 Code, is amended to conform to Section 7, Chapter 725, Acts of the
144-23 73rd Legislature, Regular Session, 1993, by adding Section
144-24 2306.0705 to read as follows:
144-25 Sec. 2306.0705. GENERAL APPROPRIATIONS ACT. Except as
144-26 specifically provided by this chapter, the department is subject to
144-27 the General Appropriations Act.
145-1 (b) Section 2306.071, Government Code, is amended to conform
145-2 to Section 7, Chapter 725, Acts of the 73rd Legislature, Regular
145-3 Session, 1993, by amending Subsections (b) and (c) and adding
145-4 Subsection (d) to read as follows:
145-5 (b) The funds and revenues of the housing finance division
145-6 shall be kept separate from the funds and revenues of the other
145-7 divisions, and the other divisions may <not> use funds and revenues
145-8 of the housing finance division only to administer housing-related
145-9 programs <for any purpose>.
145-10 (c) Except for legislative appropriations, funds necessary
145-11 for the operation of the housing finance division, and trustee-held
145-12 funds of the department under a multifamily bond indenture, <which
145-13 shall be kept in the state treasury,> all funds and revenue
145-14 received by the housing finance division are to be kept outside the
145-15 state treasury.
145-16 (d) Legislative appropriations to the housing finance
145-17 division and the operating funds of the division shall be kept in
145-18 the state treasury. Trustee-held funds of the department under a
145-19 multifamily bond indenture are held by the trustee as provided by
145-20 the indenture.
145-21 (c) Section 2306.091, Government Code, is repealed to
145-22 conform to the repeal of the language from which that section was
145-23 derived by Section 7, Chapter 725, Acts of the 73rd Legislature,
145-24 Regular Session, 1993.
145-25 (d) Section 7, Chapter 725, Acts of the 73rd Legislature,
145-26 Regular Session, 1993, is repealed.
145-27 SECTION 5.66. (a) Subchapter D, Chapter 2306, Government
146-1 Code, is amended to conform to Sections 8 and 11, Chapter 725, Acts
146-2 of the 73rd Legislature, Regular Session, 1993, by amending Section
146-3 2306.072 and adding Sections 2306.0721-2306.0723 to read as
146-4 follows:
146-5 Sec. 2306.072. Annual Report. (a) Not later than the 100th
146-6 day after the last day of the fiscal year, the director shall
146-7 prepare and submit to the board an annual report of the
146-8 department's activities for the preceding fiscal year.
146-9 (b) Not later than the 30th day after the date the board
146-10 receives the report, the board shall submit the report to the
146-11 governor and legislature.
146-12 (c) The report must include:
146-13 (1) a complete operating and financial statement of
146-14 the department;
146-15 (2) a comprehensive statement of the activities of the
146-16 department during the preceding fiscal year to address the needs
146-17 identified in the state low income housing plan prepared as
146-18 required by Section 2306.0721, including:
146-19 (A) a statistical and narrative analysis of the
146-20 department's performance in addressing the housing needs of
146-21 individuals and families of low and very low income;
146-22 (B) the ethnic and racial composition of
146-23 individuals and families applying for and receiving assistance from
146-24 each housing-related program operated by the department; and
146-25 (C) the department's progress in meeting the
146-26 goals established in the previous housing plan;
146-27 (3) an explanation of the efforts made by the
147-1 department to ensure the participation of individuals of low income
147-2 and their community-based institutions in every aspect of
147-3 department programs that affect them;
147-4 (4) a statement of the evidence that the department
147-5 has made an affirmative effort to ensure the involvement of
147-6 individuals of low income and their community-based institutions in
147-7 the allocation of funds and the planning process;
147-8 (5) a statistical analysis, delineated according to
147-9 each ethnic and racial group served by the department, that
147-10 indicates the progress made by the department in implementing the
147-11 state low income housing plan in each of the uniform state service
147-12 regions; and
147-13 (6) an analysis of fair housing opportunities in each
147-14 housing development that receives financial assistance from the
147-15 department that includes the following information for each housing
147-16 development that contains 20 or more living units:
147-17 (A) the street address and municipality or
147-18 county in which the property is located;
147-19 (B) the total number of units reported by
147-20 bedroom size;
147-21 (C) the total number of units designed for
147-22 individuals who are physically challenged or who have special needs
147-23 and the number of these individuals served annually as reported by
147-24 each housing sponsor;
147-25 (D) a statistical analysis of average rents
147-26 reported by region, as defined in the comprehensive housing
147-27 affordability strategy;
148-1 (E) the race or ethnic makeup of each project as
148-2 reported annually by each housing sponsor;
148-3 (F) the number of units occupied by individuals
148-4 receiving government-supported housing assistance as reported by
148-5 each housing sponsor;
148-6 (G) a statement as to whether the department has
148-7 been notified of a violation of the fair housing law that has been
148-8 filed with the United States Department of Housing and Urban
148-9 Development, the Commission on Human Rights, or the United States
148-10 Department of Justice; and
148-11 (H) a statement as to whether the development
148-12 has any instances of material noncompliance with bond indentures or
148-13 deed restrictions discovered through the normal monitoring
148-14 activities and procedures that include meeting occupancy
148-15 requirements or rent restrictions imposed by deed restriction or
148-16 financing agreements. <The department shall file annually with the
148-17 governor and the presiding officer of each house of the legislature
148-18 a complete and detailed written report accounting for all funds
148-19 received and disbursed by the department during the preceding
148-20 fiscal year. The annual report must be in the form and reported in
148-21 the time provided by the General Appropriations Act.>
148-22 <(b) On or before January 1 of each year, the department
148-23 shall prepare a report of its activities for the preceding fiscal
148-24 year for the governor and the legislature. The report must include
148-25 a complete operating and financial statement.>
148-26 Sec. 2306.0721. LOW INCOME HOUSING PLAN. (a) Not later
148-27 than the 100th day after the last day of the fiscal year, the
149-1 director shall prepare and submit to the board an integrated state
149-2 low income housing plan for the next year.
149-3 (b) Not later than the 30th day after the date the board
149-4 receives the plan, the board shall submit the plan to the governor
149-5 and legislature.
149-6 (c) The plan must include:
149-7 (1) an estimate and analysis of the housing needs of
149-8 the following populations in the state:
149-9 (A) individuals and families of moderate, low,
149-10 and very low income;
149-11 (B) individuals with special needs; and
149-12 (C) homeless individuals;
149-13 (2) a proposal to use all available housing resources
149-14 to address the housing needs of the populations described by
149-15 Subdivision (1) by establishing funding levels for all
149-16 housing-related programs;
149-17 (3) an estimate of the number of federally assisted
149-18 housing units available for individuals and families of low and
149-19 very low income and individuals with special needs in each uniform
149-20 state service region in the state;
149-21 (4) a description of state rules and policies that
149-22 govern the use of all available housing resources;
149-23 (5) a resource allocation plan that targets all
149-24 available housing resources to individuals and families of low and
149-25 very low income and individuals with special needs;
149-26 (6) a description of the department's efforts to
149-27 monitor and analyze the unused or underused federal resources of
150-1 other state agencies for housing-related services and services for
150-2 homeless individuals and the department's recommendations to ensure
150-3 the full use by the state of all available federal resources for
150-4 those services; and
150-5 (7) strategies to provide housing for individuals and
150-6 families with special needs.
150-7 Sec. 2306.0722. PREPARATION OF PLAN AND REPORT. In
150-8 preparing the annual report under Section 2306.072 and the state
150-9 low income housing plan under Section 2306.0721, the director
150-10 shall:
150-11 (1) coordinate local, state, and federal housing
150-12 resources, including tax exempt housing bond financing and low
150-13 income housing tax credits;
150-14 (2) set priorities for the available housing resources
150-15 to help the neediest individuals;
150-16 (3) evaluate the success of publicly supported housing
150-17 programs;
150-18 (4) survey and identify the unmet housing needs of
150-19 individuals the department is required to assist;
150-20 (5) ensure that housing programs benefit an individual
150-21 without regard to the individual's race, ethnicity, sex, or
150-22 national origin;
150-23 (6) develop housing opportunities for individuals of
150-24 low and very low income and individuals with special housing needs;
150-25 (7) develop housing programs through an open, fair,
150-26 and public process;
150-27 (8) set priorities for assistance in a manner that is
151-1 appropriate and consistent with the housing needs of the
151-2 populations described by Section 2306.0721(c)(1); and
151-3 (9) incorporate recommendations that are consistent
151-4 with the comprehensive housing affordability strategy and
151-5 performance report submitted annually by the state to the United
151-6 States Department of Housing and Urban Development.
151-7 Sec. 2306.0723. PUBLIC HEARINGS. (a) The department shall
151-8 hold a public hearing on the annual report and the state low income
151-9 housing plan before the director submits the report and the plan to
151-10 the board.
151-11 (b) The board shall hold a public hearing on the state low
151-12 income housing plan before the board submits the plan to the
151-13 governor and legislature.
151-14 (c) The board shall include with the plan the board submits
151-15 to the governor and legislature a written report of public comments
151-16 on the plan.
151-17 (b) Section 2306.074(a), Government Code, is amended to
151-18 conform to Section 8, Chapter 725, Acts of the 73rd Legislature,
151-19 Regular Session, 1993, to read as follows:
151-20 (a) The state auditor or a certified public accountant shall
151-21 audit the department's books and accounts each fiscal year and file
151-22 a copy of the audit with the governor and the legislature on or
151-23 before March <January> 1 of each year. If the state auditor is
151-24 conducting the audit and it is not available by March <January> 1,
151-25 it must be filed as soon as it is available.
151-26 (c) Subchapter D, Chapter 2306, Government Code, is amended
151-27 to conform to Section 11, Chapter 725, Acts of the 73rd
152-1 Legislature, Regular Session, 1993, by adding Section 2306.076 to
152-2 read as follows:
152-3 Sec. 2306.076. INSURANCE. (a) The board may purchase from
152-4 department funds liability insurance for the director and board
152-5 members and officers.
152-6 (b) The board may purchase the insurance in an amount the
152-7 board considers reasonably necessary to:
152-8 (1) insure against reasonably foreseeable liabilities;
152-9 and
152-10 (2) provide for all costs of defending against those
152-11 liabilities, including court costs and attorney's fees.
152-12 (d) Chapter 2306, Government Code, is amended to conform to
152-13 Section 11, Chapter 725, Acts of the 73rd Legislature, Regular
152-14 Session, 1993, by adding Subchapter Y to read as follows:
152-15 SUBCHAPTER Y. TEXAS HOUSING CORPORATION
152-16 Sec. 2306.551. DEFINITION. In this subchapter,
152-17 "corporation" means the Texas Housing Corporation.
152-18 Sec. 2306.552. CREATION. (a) The existence of the Texas
152-19 Housing Corporation, or any similarly named corporation, begins on
152-20 the date that the secretary of state issues the certificate of
152-21 incorporation.
152-22 (b) The charter of the corporation must establish the
152-23 corporation as nonprofit and specifically dedicate the
152-24 corporation's activities to the benefit of the department.
152-25 (c) The creation of the corporation does not limit or impair
152-26 the rights, powers, and duties of the department under this
152-27 chapter.
153-1 Sec. 2306.553. PURPOSES. (a) The corporation shall carry
153-2 out the public purposes of this chapter on behalf of the state.
153-3 (b) The corporation may engage only in the performance of
153-4 charitable functions.
153-5 Sec. 2306.554. BOARD OF DIRECTORS. The members of the board
153-6 serve as the board of directors of the corporation.
153-7 Sec. 2306.555. POWERS. (a) The corporation has the powers
153-8 and is subject to the limitations provided for the department under
153-9 this chapter.
153-10 (b) Except as specifically provided by this subchapter, the
153-11 corporation has the rights and powers of a nonprofit corporation
153-12 incorporated under the Texas Non-Profit Corporation Act (Article
153-13 1396-1.01 et seq., Vernon's Texas Civil Statutes).
153-14 (c) The corporation may contract with the department and
153-15 with bond counsel, financial advisors, or underwriters.
153-16 Sec. 2306.556. TAX EXEMPT. The corporation is exempt from
153-17 all taxation by the state or a political subdivision of the state,
153-18 including a municipality.
153-19 Sec. 2306.557. DISTRIBUTION OF EARNINGS. Any part of
153-20 earnings remaining after payment of expenses may not inure to any
153-21 person except that the corporation shall deposit these earnings to
153-22 the credit of the general revenue fund for the benefit of the
153-23 department if the corporation's board of directors determines that
153-24 sufficient provision has been made for the full payment of the
153-25 expenses, bonds, and other obligations of the corporation.
153-26 Sec. 2306.558. ALTERATION AND TERMINATION. (a) Subject to
153-27 this subchapter and the prohibition on the impairment of contracts
154-1 in the law of this state, the corporation's board of directors by
154-2 written resolution may alter the structure, organization, programs,
154-3 or activities of the corporation or terminate and dissolve the
154-4 corporation.
154-5 (b) The corporation's board of directors shall dissolve the
154-6 corporation if the board by resolution determines that:
154-7 (1) the purposes for which the corporation was formed
154-8 have been substantially fulfilled; and
154-9 (2) all bonds issued by the corporation have been
154-10 fully paid.
154-11 (c) On dissolution, the title to funds and properties
154-12 previously owned by the corporation shall be transferred to the
154-13 department.
154-14 Sec. 2306.559. ANNUAL REPORT. (a) The corporation shall
154-15 file an annual report of the financial activity of the corporation
154-16 with the department.
154-17 (b) The corporation shall file the report before the 90th
154-18 day after the last day of the corporation's fiscal year.
154-19 (c) The corporation shall prepare the report in accordance
154-20 with generally accepted accounting principles.
154-21 (d) The report must include:
154-22 (1) a statement of support, revenue, and expenses and
154-23 change in fund balances;
154-24 (2) a statement of functional expenses; and
154-25 (3) balance sheets for all funds.
154-26 (e) Sections 8 and 11, Chapter 725, Acts of the 73rd
154-27 Legislature, Regular Session, 1993, are repealed.
155-1 SECTION 5.67. (a) Section 2306.073(a), Government Code, is
155-2 amended to conform to Section 9, Chapter 725, Acts of the 73rd
155-3 Legislature, Regular Session, 1993, to read as follows:
155-4 (a) The director, with the approval of the board, shall
155-5 appoint an internal auditor who reports directly to the board and
155-6 serves at the pleasure of the board <on matters concerning housing
155-7 finance, the community affairs division, or any other division>.
155-8 (b) Section 9, Chapter 725, Acts of the 73rd Legislature,
155-9 Regular Session, 1993, is repealed.
155-10 SECTION 5.68. (a) Section 2306.069, Government Code, is
155-11 amended to conform to Section 10, Chapter 725, Acts of the 73rd
155-12 Legislature, Regular Session, 1993, to read as follows:
155-13 Sec. 2306.069. <Outside> Legal Counsel. (a) The department
155-14 shall obtain and evaluate information regarding the affirmative
155-15 action policies and practices of proposed outside legal counsel.
155-16 The department must include the evaluation in a request to the
155-17 attorney general for outside legal counsel.
155-18 (b) The department may hire in-house legal counsel. The
155-19 director shall prescribe the duties of the legal counsel.
155-20 (b) Section 10, Chapter 725, Acts of the 73rd Legislature,
155-21 Regular Session, 1993, is repealed.
155-22 SECTION 5.69. (a) Section 2306.092, Government Code, is
155-23 amended to conform to Section 12, Chapter 725, Acts of the 73rd
155-24 Legislature, Regular Session, 1993, to read as follows:
155-25 Sec. 2306.092. Duties. The department, through the
155-26 community affairs division or any other division, shall:
155-27 (1) maintain communication with local governments and
156-1 act as an advocate for local governments at the state and federal
156-2 levels;
156-3 (2) assist local governments with advisory and
156-4 technical services;
156-5 (3) provide financial aid to local governments and
156-6 combinations of local governments for programs that are authorized
156-7 to receive assistance;
156-8 (4) provide information about and referrals for state
156-9 and federal programs and services that affect local governments;
156-10 (5) administer, conduct, or jointly sponsor
156-11 educational and training programs for local government officials;
156-12 (6) conduct research on problems of general concern to
156-13 local governments;
156-14 (7) collect, publish, and distribute information
156-15 useful to local governments, including information on:
156-16 (A) local government finances and employment;
156-17 (B) housing;
156-18 (C) population characteristics; and
156-19 (D) land-use patterns;
156-20 (8) encourage cooperation among local governments as
156-21 appropriate;
156-22 (9) advise and inform the governor and the legislature
156-23 about the affairs of local governments and recommend necessary
156-24 action;
156-25 (10) assist the governor in coordinating federal and
156-26 state activities affecting local governments;
156-27 (11) administer, as appropriate:
157-1 (A) state responsibilities for programs created
157-2 under the federal Economic Opportunity Act of 1964 (42 U.S.C.
157-3 Section 2701 et seq.);
157-4 (B) programs assigned to the department under
157-5 the Omnibus Budget Reconciliation Act of 1981 (Pub.L. No. 97-35);
157-6 and
157-7 (C) other federal acts creating economic
157-8 opportunity programs assigned to the department;
157-9 (12) adopt rules that are necessary and proper to
157-10 carry out programs and responsibilities assigned by the legislature
157-11 or the governor; and
157-12 (13) perform other duties relating to local government
157-13 that are assigned by the legislature or the governor.
157-14 (b) Section 12, Chapter 725, Acts of the 73rd Legislature,
157-15 Regular Session, 1993, is repealed.
157-16 SECTION 5.70. (a) Section 2306.094, Government Code, is
157-17 amended and redesignated as Section 2306.054, Subchapter C, Chapter
157-18 2306, Government Code, to conform to Section 13, Chapter 725, Acts
157-19 of the 73rd Legislature, Regular Session, 1993, to read as follows:
157-20 Sec. 2306.054 <2306.094>. Special Advisory Councils.
157-21 (a) The governor or director may<, with the advice of the
157-22 director,> appoint special advisory councils to:
157-23 (1) assist the department <board> in adopting basic
157-24 policy <for the community affairs division>; or
157-25 (2) offer advice on technical aspects of certain
157-26 programs <that the community affairs division administers>.
157-27 (b) A special advisory council is dissolved on completion of
158-1 its stated purpose unless continued by the governor or director.
158-2 (b) Section 13, Chapter 725, Acts of the 73rd Legislature,
158-3 Regular Session, 1993, is repealed.
158-4 SECTION 5.71. (a) Section 2306.095, Government Code, is
158-5 amended and redesignated as Section 2306.055, Subchapter C, Chapter
158-6 2306, Government Code, to conform to Section 14, Chapter 725, Acts
158-7 of the 73rd Legislature, Regular Session, 1993, to read as follows:
158-8 Sec. 2306.055 <2306.095>. Transfers from Governor. The
158-9 governor may transfer to any <the community affairs> division
158-10 personnel, equipment, records, obligations, appropriations,
158-11 functions, and duties of appropriate divisions of the governor's
158-12 office.
158-13 (b) Section 14, Chapter 725, Acts of the 73rd Legislature,
158-14 Regular Session, 1993, is repealed.
158-15 SECTION 5.72. (a) Section 2306.097(b), Government Code, is
158-16 amended to conform to Section 15, Chapter 725, Acts of the 73rd
158-17 Legislature, Regular Session, 1993, to read as follows:
158-18 (b) The program shall operate in conjunction with the
158-19 community services <service> block grant program and has
158-20 jurisdiction and responsibility for administration of the following
158-21 elements of the State Low-Income Energy Assistance Program, from
158-22 whatever sources funded:
158-23 (1) the Energy Crisis Intervention Program; <and>
158-24 (2) the weatherization program; and
158-25 (3) the Home Energy Assistance Program.
158-26 (b) Section 15, Chapter 725, Acts of the 73rd Legislature,
158-27 Regular Session, 1993, is repealed.
159-1 SECTION 5.73. (a) Section 2306.098(a), Government Code, is
159-2 amended to conform to Section 16, Chapter 725, Acts of the 73rd
159-3 Legislature, Regular Session, 1993, to read as follows:
159-4 (a) The department<, through the community affairs
159-5 division,> shall, under the Omnibus Budget Reconciliation Act of
159-6 1981 (Pub.L. No. 97-35) and 24 CFR, Part 570, Subpart I, administer
159-7 the state's allocation of federal funds provided under the
159-8 community development block grant nonentitlement program authorized
159-9 by Title I of the Housing and Community Development Act of 1974 (42
159-10 U.S.C. Section 5301 et seq.).
159-11 (b) Section 16, Chapter 725, Acts of the 73rd Legislature,
159-12 Regular Session, 1993, is repealed.
159-13 SECTION 5.74. (a) Section 2306.099, Government Code, is
159-14 amended to conform to Section 17, Chapter 725, Acts of the 73rd
159-15 Legislature, Regular Session, 1993, to read as follows:
159-16 Sec. 2306.099. Transfer of Federal Funds. (a) The
159-17 department may enter into an interagency agreement with the Texas
159-18 Department of Commerce to reimburse the Texas Department of
159-19 Commerce for providing on behalf of the department marketing and
159-20 underwriting services on the portion of the federal funds allocated
159-21 by the department for economic development activities.
159-22 (b) The department shall allocate <transfer> not more than
159-23 20 percent of the federal funds received by the department to the
159-24 Texas Department of Commerce to be used for economic development
159-25 activities.
159-26 (c) The activities by <(b) Federal funds transferred under
159-27 this section include the amount of federal funds designated for
160-1 administrative expenses under federal law.>
160-2 <(c) Income received from economic development programs of
160-3 the Texas Department of Commerce remain with that agency.>
160-4 <(d) Use of funds transferred under this section must be
160-5 approved by the department.>
160-6 <(e) A rule of> the Texas Department of Commerce <relating
160-7 to funds transferred> under this section must be approved by the
160-8 department.
160-9 <(f) The Texas Department of Commerce shall return to the
160-10 department under an interagency agreement federal funds transferred
160-11 under this section that are not used in a timely manner under
160-12 federal guidelines.>
160-13 (b) Section 17, Chapter 725, Acts of the 73rd Legislature,
160-14 Regular Session, 1993, is repealed.
160-15 SECTION 5.75. (a) Section 2306.111, Government Code, is
160-16 amended to conform to Section 18, Chapter 725, Acts of the 73rd
160-17 Legislature, Regular Session, 1993, to read as follows:
160-18 Sec. 2306.111. Housing Funds <Assistance Goal>. (a) The
160-19 department, through any division, shall administer the federal
160-20 housing funds provided to the state under the Cranston-Gonzalez
160-21 National Affordable Housing Act (42 U.S.C. Section 12704 et seq.).
160-22 (b) The housing finance division shall adopt a goal to apply
160-23 a minimum of 25 percent of the division's total housing funds
160-24 toward housing assistance for individuals and families of very low
160-25 income.
160-26 (b) Section 18, Chapter 725, Acts of the 73rd Legislature,
160-27 Regular Session, 1993, is repealed.
161-1 SECTION 5.76. (a) Subchapter F, Government Code, is amended
161-2 to conform to Section 19, Chapter 725, Acts of the 73rd
161-3 Legislature, Regular Session, 1993, by adding Section 2306.1231 to
161-4 read as follows:
161-5 Sec. 2306.1231. FEDERAL POVERTY LINE. The department shall
161-6 use the applicable federal poverty line in determining eligibility
161-7 for each federal or state program administered by the department
161-8 that requires poverty instead of area median income to be used as a
161-9 criterion of program eligibility.
161-10 (b) Section 19, Chapter 725, Acts of the 73rd Legislature,
161-11 Regular Session, 1993, is repealed.
161-12 SECTION 5.77. (a) The heading of Subchapter K, Chapter
161-13 2306, Government Code, is amended to conform to Section 20, Chapter
161-14 725, Acts of the 73rd Legislature, Regular Session, 1993, to read
161-15 as follows:
161-16 SUBCHAPTER K. <HOUSING FINANCE DIVISION:> HOUSING PROGRAMS
161-17 (b) Sections 2306.251(c) and (d), Government Code, are
161-18 amended to conform to Section 20, Chapter 725, Acts of the 73rd
161-19 Legislature, Regular Session, 1993, to read as follows:
161-20 (c) The department <housing finance division> may use money
161-21 from the housing trust fund, <or> unencumbered fund balances, or
161-22 appropriations, allocations, grants, or gifts from any public or
161-23 private source to purchase property under this section.
161-24 (d) The housing finance division may not use more than 10
161-25 percent of the yearly balance of the housing trust fund to acquire
161-26 real property.
161-27 (e) <(d)> If the department acquires property under this
162-1 section, the department <housing finance division> shall have an
162-2 independent audit conducted annually to analyze the property
162-3 ownership program's:
162-4 (1) financial stability;
162-5 (2) cost-effectiveness; and
162-6 (3) effectiveness in serving individuals of low and
162-7 very low income.
162-8 (c) Section 20, Chapter 725, Acts of the 73rd Legislature,
162-9 Regular Session, 1993, is repealed.
162-10 SECTION 5.78. Sections 2306.096 and 2306.513(d), Government
162-11 Code, are repealed to conform to the repeal of the substantive
162-12 statutes from which those sections were derived by Section 21,
162-13 Chapter 725, Acts of the 73rd Legislature, Regular Session, 1993.
162-14 SECTION 5.79. The heading of Subchapter E, Chapter 2306,
162-15 Government Code, is amended to conform to various changes made by
162-16 Chapter 725, Acts of the 73rd Legislature, Regular Session, 1993,
162-17 to read as follows:
162-18 SUBCHAPTER E. COMMUNITY AFFAIRS <DIVISION>
162-19 SECTION 5.80. (a) Subtitle G, Title 10, Government Code, is
162-20 amended to conform to Section 1, Chapter 141, Acts of the 73rd
162-21 Legislature, Regular Session, 1993, by adding Chapter 2307 to read
162-22 as follows:
162-23 CHAPTER 2307. TEXAS INTERAGENCY COUNCIL FOR THE HOMELESS
162-24 Sec. 2307.001. DEFINITIONS. In this chapter:
162-25 (1) "Council" means the Texas Interagency Council for
162-26 the Homeless.
162-27 (2) "Department" means the Texas Department of Housing
163-1 and Community Affairs.
163-2 Sec. 2307.002. MEMBERSHIP. (a) The Texas Interagency
163-3 Council for the Homeless is composed of:
163-4 (1) one representative from each of the following
163-5 agencies, appointed by the administrative head of that agency:
163-6 (A) the Texas Department of Health;
163-7 (B) the Texas Department of Human Services;
163-8 (C) the Texas Department of Mental Health and
163-9 Mental Retardation;
163-10 (D) the Texas Department of Criminal Justice;
163-11 (E) the Texas Department on Aging;
163-12 (F) the Texas Rehabilitation Commission;
163-13 (G) the Central Education Agency;
163-14 (H) the Texas Commission on Alcohol and Drug
163-15 Abuse;
163-16 (I) the Department of Protective and Regulatory
163-17 Services;
163-18 (J) the Health and Human Services Commission;
163-19 (K) the Texas Employment Commission;
163-20 (L) the Texas Youth Commission;
163-21 (M) the Texas Veterans Commission; and
163-22 (N) the workforce development division of the
163-23 Texas Department of Commerce;
163-24 (2) one representative from the office of the
163-25 comptroller appointed by the comptroller;
163-26 (3) two representatives from the department, one each
163-27 from the community affairs division and the housing finance
164-1 division, appointed by the director; and
164-2 (4) three members representing service providers to
164-3 the homeless, one each appointed by the governor, the lieutenant
164-4 governor, and the speaker of the house of representatives.
164-5 (b) A member of the council serves at the pleasure of the
164-6 appointing official or until termination of the member's employment
164-7 with the entity the member represents.
164-8 Sec. 2307.003. OPERATION OF COUNCIL. (a) The members of
164-9 the council shall annually elect one member to serve as presiding
164-10 officer.
164-11 (b) The council shall meet at least quarterly.
164-12 (c) An action taken by the council must be approved by a
164-13 majority vote of the members present.
164-14 (d) The council may select and use advisors.
164-15 (e) The department shall provide clerical and advisory
164-16 support staff to the council.
164-17 Sec. 2307.004. DUTIES OF COUNCIL. The council shall:
164-18 (1) survey current resources for services for the
164-19 homeless in this state;
164-20 (2) initiate an evaluation of the current and future
164-21 needs for the services;
164-22 (3) assist in coordinating and providing statewide
164-23 services for all homeless individuals in this state;
164-24 (4) increase the flow of information among separate
164-25 providers and appropriate authorities;
164-26 (5) develop guidelines to monitor the provision of
164-27 services for the homeless and the methods of delivering those
165-1 services;
165-2 (6) provide technical assistance to the housing
165-3 finance division of the department in assessing the need for
165-4 housing for individuals with special needs in different localities;
165-5 (7) establish a central resource and information
165-6 center for the homeless in this state; and
165-7 (8) develop, in cooperation with the department and
165-8 the Health and Human Services Commission, a strategic plan to
165-9 address the needs of the homeless in this state.
165-10 Sec. 2307.005. REPORT. The council shall submit annually a
165-11 progress report to the governing bodies of the agencies represented
165-12 on the council.
165-13 Sec. 2307.006. TRANSITION HOUSING PILOT PROGRAM. (a) If
165-14 funds are available, the department shall operate a transitional
165-15 housing pilot program in four areas of the state.
165-16 (b) The program must address the needs of the homeless for:
165-17 (1) interim housing;
165-18 (2) physical and mental health services;
165-19 (3) literacy training;
165-20 (4) job training;
165-21 (5) family counseling;
165-22 (6) credit counseling;
165-23 (7) education services; and
165-24 (8) other services that will prevent homelessness.
165-25 Sec. 2307.007. SUNSET. The council is subject to Chapter
165-26 325 (Texas Sunset Act). Unless continued in existence as provided
165-27 by that chapter, the council is abolished and this chapter expires
166-1 September 1, 1999.
166-2 Sec. 2307.008. GIFTS AND GRANTS. The council may accept
166-3 gifts and grants from a public or private source for use in
166-4 carrying out the council's duties under this chapter.
166-5 (b) Section 1, Chapter 141, Acts of the 73rd Legislature,
166-6 Regular Session, 1993, is repealed.
166-7 SECTION 5.81. (a) Subtitle G, Title 10, Government Code, is
166-8 amended to codify Articles 1-6, Chapter 668, Acts of the 73rd
166-9 Legislature, Regular Session, 1993, by adding Chapter 2308 to read
166-10 as follows:
166-11 CHAPTER 2308. WORKFORCE AND ECONOMIC COMPETITIVENESS ACT
166-12 SUBCHAPTER A. GENERAL PROVISIONS
166-13 Sec. 2308.001. SHORT TITLE. This chapter may be cited as
166-14 the Workforce and Economic Competitiveness Act.
166-15 Sec. 2308.002. DEFINITIONS. In this chapter:
166-16 (1) "Administering state agency" means the agency
166-17 designated by the governor to administer the federal Job Training
166-18 Partnership Act (29 U.S.C. Section 1501 et seq.) in this state.
166-19 (2) "Council" means the Council on Workforce and
166-20 Economic Competitiveness.
166-21 (3) "Workforce development" includes workforce
166-22 education and workforce training and services.
166-23 (4) "Workforce education" means articulated
166-24 career-path programs and the constituent courses of those programs
166-25 that lead to initial or continuing licensing or certification or
166-26 associate degree-level accreditation and that are subject to:
166-27 (A) initial and ongoing state approval or
167-1 regional or specialized accreditation;
167-2 (B) a formal state evaluation that provides the
167-3 basis for program continuation or termination;
167-4 (C) state accountability and performance
167-5 standards; and
167-6 (D) a regional or statewide documentation of the
167-7 market demand for labor according to employers' needs.
167-8 (5) "Workforce training and services" means training
167-9 and services programs that are not workforce education.
167-10 Sec. 2308.003. CONTRACTING FOR PRIVATE SERVICES NOT
167-11 RESTRICTED. This chapter does not restrict a person's authority to
167-12 contract for the provision of workforce development without state
167-13 or federal funds.
167-14 Sec. 2308.004. PROGRAM YEAR. Under this chapter, a program
167-15 year begins on July 1 and ends on June 30.
167-16 Sec. 2308.005. APPLICATION OF SUNSET ACT. The Council on
167-17 Workforce and Economic Competitiveness is subject to Chapter 325
167-18 (Texas Sunset Act). Unless continued in existence as provided by
167-19 that chapter, the council is abolished September 1, 2001.
167-20 (Sections 2308.006-2308.050 reserved for expansion
167-21 SUBCHAPTER B. COUNCIL MEMBERSHIP AND ADMINISTRATION
167-22 Sec. 2308.051. COUNCIL. The Council on Workforce and
167-23 Economic Competitiveness is a state agency that acts as a human
167-24 resources investment council under the Job Training Reform
167-25 Amendments of 1992 (29 U.S.C. Section 1501 et seq.).
167-26 Sec. 2308.052. MEMBERSHIP. (a) The governor shall appoint
167-27 the members of the council as provided by this section.
168-1 (b) The council is composed of:
168-2 (1) the following ex officio voting members:
168-3 (A) the commissioner of education;
168-4 (B) the commissioner of higher education;
168-5 (C) the commissioner of health and human
168-6 services;
168-7 (D) the executive director of the Texas
168-8 Department of Commerce; and
168-9 (E) the administrator of the Texas Employment
168-10 Commission;
168-11 (2) six voting members who represent education, at
168-12 least one of whom represents local public education, one of whom
168-13 represents public postsecondary education, one of whom represents
168-14 secondary vocational education, and one of whom represents
168-15 postsecondary vocational education;
168-16 (3) seven voting members who represent organized labor
168-17 appointed from recommendations made by recognized labor
168-18 organizations;
168-19 (4) seven voting members who represent business and
168-20 industry, including business members serving on local workforce
168-21 development boards or private industry councils;
168-22 (5) one voting member who represents a community-based
168-23 organization;
168-24 (6) one voting member who represents a joint-sponsored
168-25 apprenticeship program as defined by the United States Department
168-26 of Labor's Bureau of Apprenticeship and Training appointed from a
168-27 list of three nominees submitted to the governor by the
169-1 Apprenticeship and Training Association of Texas;
169-2 (7) one voting member who represents a community-based
169-3 adult literacy organization;
169-4 (8) one voting member who represents adult basic and
169-5 continuing education programs;
169-6 (9) six voting members, each of whom represents not
169-7 more than one of the following categories:
169-8 (A) literacy groups;
169-9 (B) local welfare or public housing agencies;
169-10 (C) units of local government;
169-11 (D) adult education organizations;
169-12 (E) teachers or counselors;
169-13 (F) local service delivery organizations;
169-14 (G) special needs populations;
169-15 (H) rural and agricultural organizations;
169-16 (I) proprietary schools;
169-17 (J) members of the state legislature; and
169-18 (K) other groups and organizations; and
169-19 (10) the following ex officio nonvoting members:
169-20 (A) the chair of the State Board of Education;
169-21 (B) the chair of the Texas Higher Education
169-22 Coordinating Board;
169-23 (C) the presiding officer of the Texas Board of
169-24 Human Services;
169-25 (D) the presiding officer of the governing board
169-26 of the Texas Department of Commerce;
169-27 (E) the chairman of the Texas Employment
170-1 Commission;
170-2 (F) the commissioner of the Texas Rehabilitation
170-3 Commission; and
170-4 (G) the executive director of the Texas
170-5 Commission for the Blind.
170-6 (c) The membership of the council must represent the ethnic
170-7 and geographic diversity of this state.
170-8 Sec. 2308.053. PRESIDING OFFICER. (a) The governor shall
170-9 designate one of the business or labor representatives on the
170-10 council to serve as presiding officer.
170-11 (b) The presiding officer of the council shall designate a
170-12 member of the council as assistant presiding officer to preside in
170-13 the absence of the presiding officer.
170-14 Sec. 2308.054. TERMS. (a) A member of the council who does
170-15 not serve as an ex officio member serves a six-year term.
170-16 One-third of these members' terms expire in each odd-numbered year.
170-17 (b) An ex officio member serves as a member of the council
170-18 as long as the member continues to serve in the designated office.
170-19 Sec. 2308.055. DESIGNATED REPLACEMENTS. (a) A member of
170-20 the council may designate another person to attend a meeting for
170-21 the member.
170-22 (b) The designated person may participate in the activities
170-23 and discussions of the council but may not vote.
170-24 Sec. 2308.056. GROUNDS FOR REMOVAL. (a) It is a ground for
170-25 removal from the council that a member who is not an ex officio
170-26 member:
170-27 (1) does not have at the time of appointment the
171-1 qualifications required by Section 2308.052;
171-2 (2) does not maintain during service on the council
171-3 the qualifications required by Section 2308.052;
171-4 (3) cannot discharge the member's duties for a
171-5 substantial part of the term for which the member is appointed
171-6 because of illness or disability;
171-7 (4) is absent from more than one-fourth of the
171-8 regularly scheduled council meetings that the member is eligible to
171-9 attend during a calendar year; or
171-10 (5) is absent from two consecutive council meetings
171-11 for which the member received notice not less than 48 hours before
171-12 the time of the meeting.
171-13 (b) The validity of an action of the council is not affected
171-14 by the fact that it is taken when a ground for removal of a council
171-15 member exists.
171-16 (c) If the executive director has knowledge that a potential
171-17 ground for removal exists, the executive director shall notify the
171-18 presiding officer of the council of the ground. The presiding
171-19 officer shall notify the governor that a potential ground for
171-20 removal exists.
171-21 Sec. 2308.057. MEETINGS. The council shall meet at least
171-22 quarterly and at other times at the call of the presiding officer
171-23 or as provided by rules adopted by the council.
171-24 Sec. 2308.058. SUBCOMMITTEES; TECHNICAL ADVISORY COMMITTEES.
171-25 (a) The presiding officer of the council may appoint subcommittees
171-26 consisting of members of the council for any purpose consistent
171-27 with the duties and responsibilities of the council under this
172-1 chapter.
172-2 (b) The presiding officer of the council may appoint
172-3 technical advisory committees composed of council members, persons
172-4 who are not council members, or both members and nonmembers.
172-5 Sec. 2308.059. FISCAL AGENT. The council may designate
172-6 another state agency to serve as the council's fiscal agent if the
172-7 designated agent agrees to the designation.
172-8 Sec. 2308.060. EXECUTIVE DIRECTOR. (a) The presiding
172-9 officer of the council shall appoint an executive director of the
172-10 council.
172-11 (b) The executive director shall:
172-12 (1) report to the presiding officer of the council;
172-13 (2) perform duties assigned by the council and under
172-14 state law;
172-15 (3) administer the daily operations of the council;
172-16 (4) appoint officers, accountants, attorneys, experts,
172-17 and other employees for the council and assign duties for these
172-18 employees to perform the council's powers and duties under this
172-19 chapter; and
172-20 (5) delegate authority to persons appointed under this
172-21 section as the executive director considers to be reasonable and
172-22 proper for the effective administration of the council.
172-23 (c) The executive director may adopt the administrative and
172-24 personnel procedures of the council's fiscal agent rather than
172-25 adopt new procedures for the council.
172-26 Sec. 2308.061. STAFF. (a) The council shall have an
172-27 independent staff with expertise sufficient to perform all duties
173-1 and responsibilities of the council.
173-2 (b) The staff may be supplemented by staff from other state
173-3 agencies who are temporarily assigned to assist with special
173-4 projects.
173-5 Sec. 2308.062. PERSONNEL POLICIES. (a) The executive
173-6 director of the council shall develop an intra-agency career ladder
173-7 program. The program shall require the intra-agency posting of all
173-8 non-entry-level positions concurrently with any public posting.
173-9 (b) The executive director shall develop a system of annual
173-10 performance evaluations based on measurable job tasks. All merit
173-11 pay for council employees must be based on the system established
173-12 under this subsection.
173-13 Sec. 2308.063. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a)
173-14 The executive director shall prepare and maintain a written policy
173-15 statement to ensure implementation of a program of equal employment
173-16 opportunity under which all personnel transactions are made without
173-17 regard to race, color, disability, sex, religion, age, or national
173-18 origin. The policy statement must include:
173-19 (1) personnel policies, including policies relating to
173-20 recruitment, evaluation, selection, application, training, and
173-21 promotion of personnel that are in compliance with Chapter 21,
173-22 Labor Code;
173-23 (2) a comprehensive analysis of the council's
173-24 workforce that meets federal and state guidelines;
173-25 (3) procedures by which a determination can be made of
173-26 significant underuse in the council's workforce of all persons for
173-27 whom federal or state guidelines encourage a more equitable
174-1 balance; and
174-2 (4) reasonable methods to appropriately address those
174-3 areas of underuse.
174-4 (b) A policy statement under Subsection (a) must cover an
174-5 annual period, be updated annually, be reviewed by the Commission
174-6 on Human Rights for compliance with Subsection (a)(1), and be filed
174-7 with the governor's office.
174-8 (c) The governor's office shall deliver a biennial report to
174-9 the legislature based on the information received under Subsection
174-10 (b). The report may be made separately or as part of other
174-11 biennial reports to the legislature.
174-12 Sec. 2308.064. BUDGET. (a) The council shall adopt a
174-13 budget to carry out the council's duties and responsibilities under
174-14 this chapter.
174-15 (b) The budget must be submitted to the governor and the
174-16 Legislative Budget Board for approval.
174-17 Sec. 2308.065. FUNDING. (a) Federal funding for the
174-18 operation of the council shall be allocated according to federal
174-19 requirements.
174-20 (b) A state agency represented on the council shall provide
174-21 funds for the support of the council in proportion to the agency's
174-22 financial participation in the workforce development system.
174-23 (Sections 2308.066-2308.100 reserved for expansion
174-24 SUBCHAPTER C. COUNCIL DUTIES AND POWERS
174-25 Sec. 2308.101. GENERAL DUTIES. The council shall:
174-26 (1) promote the development of a well-educated, highly
174-27 skilled workforce in this state through literacy, adult basic
175-1 education, community education, apprenticeship, and
175-2 state-of-the-art occupational skills education and training
175-3 programs;
175-4 (2) serve as an advocate for the development of an
175-5 integrated workforce development system to provide quality services
175-6 addressing the needs of business and workers in this state;
175-7 (3) promote and assist in the development of an
175-8 industry-based skills standards and certification system for
175-9 occupations requiring less than a baccalaureate-level education and
175-10 training;
175-11 (4) promote the development of workplaces of high
175-12 productivity in this state;
175-13 (5) recommend to the governor the components of a
175-14 school and training-to-work transition process;
175-15 (6) recommend to the governor the designation of
175-16 workforce development areas for the local planning and delivery of
175-17 workforce development;
175-18 (7) identify and recommend to the governor incentives
175-19 to encourage the consolidation of local boards, councils, and
175-20 committees;
175-21 (8) design and implement a combined state and local
175-22 planning process for the state's workforce training and services;
175-23 (9) review plans for local workforce training and
175-24 services and make recommendations to the governor for approval;
175-25 (10) implement a statewide system for evaluating the
175-26 effectiveness of all workforce development using the administrative
175-27 records of the state's unemployment compensation program and other
176-1 sources as appropriate;
176-2 (11) support research and demonstration projects
176-3 designed to develop new programs and approaches to service
176-4 delivery;
176-5 (12) provide for training and professional development
176-6 for council members, local chief elected officials, local workforce
176-7 development boards and staff, and private industry councils and
176-8 staff;
176-9 (13) serve as an advocate at the state and federal
176-10 levels for the local workforce development boards;
176-11 (14) establish and operate a comprehensive labor
176-12 market information system that serves employers, students, workers,
176-13 and state and local planning organizations;
176-14 (15) ensure that occupational skills training is:
176-15 (A) provided in occupations that are locally in
176-16 demand; and
176-17 (B) directed toward high-skill and high-wage
176-18 jobs;
176-19 (16) oversee the operation of the state's workforce
176-20 development programs to assess the degree to which these programs
176-21 are effective in achieving state and local goals and objectives;
176-22 (17) develop and recommend to the governor criteria
176-23 for the establishment of local workforce development boards;
176-24 (18) develop objective criteria for granting waivers
176-25 allowed under this chapter;
176-26 (19) develop and recommend to the governor a plan to
176-27 ensure the accessibility of workforce development to clients that
177-1 includes a uniform statewide client application system to determine
177-2 an applicant's eligibility for workforce development for which
177-3 state or federal financial assistance is available; and
177-4 (20) carry out the federal and state duties and
177-5 responsibilities of advisory councils under applicable federal and
177-6 state workforce development.
177-7 Sec. 2308.102. ASSUMPTION OF DUTIES AND RESPONSIBILITIES.
177-8 (a) The council shall assume the duty to:
177-9 (1) develop, with the assistance of each appropriate
177-10 state agency, and recommend to the governor state plans required by
177-11 applicable federal law in order for the state to receive federal
177-12 funds;
177-13 (2) make policy recommendations to the governor on
177-14 goals and priorities for formula and discretionary funds for all
177-15 applicable programs;
177-16 (3) participate directly in the development of the
177-17 master plan for vocational education, as required by law, and
177-18 recommend the plan to the State Board of Education, the Texas
177-19 Higher Education Coordinating Board, and the governor;
177-20 (4) ensure that general revenue funds previously
177-21 available to the Texas Literacy Council are used to support the
177-22 efforts of local literacy councils in a manner consistent with the
177-23 state strategic plan;
177-24 (5) recommend to the State Board of Vocational
177-25 Education the division of federal funds between secondary and
177-26 postsecondary educational agencies under the Carl D. Perkins
177-27 Vocational and Applied Technology Education Act (20 U.S.C. Section
178-1 2301 et seq.); and
178-2 (6) make recommendations to the Texas Employment
178-3 Commission on unemployment insurance issues pertinent to the
178-4 responsibilities of the council.
178-5 (b) The council shall assume the responsibilities assigned
178-6 to the state advisory council under the following federal laws:
178-7 (1) the Job Training Partnership Act (29 U.S.C.
178-8 Section 1501 et seq.);
178-9 (2) the Carl D. Perkins Vocational and Applied
178-10 Technology Education Act (20 U.S.C. Section 2301 et seq.);
178-11 (3) the National and Community Service Act of 1990 (42
178-12 U.S.C. Section 12501 et seq.);
178-13 (4) the Adult Education Act (20 U.S.C. Section 1201 et
178-14 seq.);
178-15 (5) the Wagner-Peyser Act (29 U.S.C. Section 49 et
178-16 seq.);
178-17 (6) Part F, Subchapter IV, Social Security Act (42
178-18 U.S.C. Section 681 et seq.);
178-19 (7) the employment program established under Section
178-20 6(d)(4), Food Stamp Act of 1977 (7 U.S.C. Section 2015(d)(4)); and
178-21 (8) the National Literacy Act of 1991 (20 U.S.C.
178-22 Section 1201 et seq.).
178-23 (c) The council shall assume the responsibilities formerly
178-24 exercised by the following state advisory councils:
178-25 (1) the State Job Training Coordinating Council;
178-26 (2) the Texas Council on Vocational Education;
178-27 (3) the technical advisory committee to the State
179-1 Occupational Information Coordinating Council;
179-2 (4) the Texas Literacy Council; and
179-3 (5) the Apprenticeship and Training Advisory
179-4 Committee.
179-5 Sec. 2308.103. ADDITIONAL POWERS AND LIMITATIONS. (a) The
179-6 council may:
179-7 (1) adopt rules essential to the internal functions
179-8 and duties of the council;
179-9 (2) make expenditures, enter into contracts with
179-10 public, private, and nonprofit organizations or agencies, require
179-11 reports to be made, conduct investigations, and take other actions
179-12 necessary or suitable to fulfill the council's duties under this
179-13 chapter;
179-14 (3) delegate to the executive director any power or
179-15 duty imposed on the council by law, including the authority to make
179-16 a final order or decision;
179-17 (4) provide for the mediation or arbitration of
179-18 disputes between agencies that perform functions for state and
179-19 federal programs as provided by this chapter;
179-20 (5) accept gifts, grants, and donations of money,
179-21 goods, or services to be used only to accomplish the council's
179-22 duties under this chapter; and
179-23 (6) share employees with another state agency.
179-24 (b) The council may not:
179-25 (1) adopt rules related to the operation of workforce
179-26 development; or
179-27 (2) delegate to the executive director the authority
180-1 to adopt rules.
180-2 Sec. 2308.104. STRATEGIC PLAN. (a) The council shall
180-3 develop and recommend to the governor a single strategic plan that
180-4 establishes the framework for the budgeting and operation of all
180-5 workforce development administered by agencies represented on the
180-6 council.
180-7 (b) In addition to the other requirements of this chapter,
180-8 the strategic plan recommended by the council must recognize and
180-9 address literacy and basic education as activities that are
180-10 critical to the well-being of individuals and the state without
180-11 regard to whether the training and education is directed at
180-12 preparing an individual for employment.
180-13 (c) The council shall include in the strategic plan goals,
180-14 objectives, and performance measures for all workforce development
180-15 of state agencies that are represented on the council.
180-16 (d) On approval of the plan by the governor, an agency
180-17 represented on the council shall use the strategic plan to develop
180-18 the agency's operational plan.
180-19 Sec. 2308.105. LOCAL SERVICE INTEGRATION. The governor,
180-20 with the council and the local workforce development boards, shall:
180-21 (1) identify specific barriers to integrated service
180-22 delivery at the local level;
180-23 (2) request waivers from federal and state
180-24 regulations; and
180-25 (3) advocate changes in federal and state laws to
180-26 promote local service integration.
180-27 Sec. 2308.106. COUNCIL ASSISTANCE. The council shall assist
181-1 a local workforce development board in designing effective measures
181-2 to accomplish the board's responsibilities under Section 2308.302.
181-3 (Sections 2308.107-2308.150 reserved for expansion
181-4 SUBCHAPTER D. INFORMATION AND TRAINING
181-5 Sec. 2308.151. ESTABLISHMENT OF EVALUATION SYSTEM. The
181-6 council shall establish and maintain an automated follow-up and
181-7 evaluation system derived from appropriate available information,
181-8 including:
181-9 (1) unemployment insurance wage records maintained by
181-10 the Texas Employment Commission; and
181-11 (2) student follow-up information available through
181-12 the Texas Higher Education Coordinating Board.
181-13 Sec. 2308.152. USE OF EVALUATION SYSTEM. The follow-up and
181-14 evaluation system shall be used to assist the council, local
181-15 workforce development boards, institution boards, the Texas Higher
181-16 Education Coordinating Board, the Central Education Agency, and
181-17 other agencies in evaluating the labor market success and
181-18 effectiveness of workforce development in this state.
181-19 Sec. 2308.153. INFORMATION AND DATA FOR EVALUATION SYSTEM.
181-20 (a) Each state agency represented on the council shall provide
181-21 information to support the council's follow-up and evaluation
181-22 system as requested.
181-23 (b) Evaluation data in the system must include:
181-24 (1) placement rates;
181-25 (2) wages paid;
181-26 (3) retention in employment statistics;
181-27 (4) the number of education and training-related
182-1 placements; and
182-2 (5) other appropriate factors, including the pursuit
182-3 of additional education.
182-4 (c) The council may develop a method for collecting
182-5 occupational information to supplement wage record information
182-6 collected by the Texas Employment Commission. The council may
182-7 request employers, providers, and other appropriate sources to
182-8 provide placement, employment, and earnings information to the
182-9 council.
182-10 Sec. 2308.154. ANALYSIS. At least annually, the council
182-11 shall issue an analysis, by occupation and by the provider of the
182-12 job placement performance, of each workforce education program for
182-13 the previous one-year, three-year, and five-year periods to:
182-14 (1) each provider of workforce education or workforce
182-15 training and services;
182-16 (2) the Texas Higher Education Coordinating Board for
182-17 each provider of workforce education approved and administered by
182-18 the board; and
182-19 (3) each local workforce development board for each
182-20 provider of workforce training and services within the workforce
182-21 development area.
182-22 Sec. 2308.155. USE BY TEXAS HIGHER EDUCATION COORDINATING
182-23 BOARD. The Texas Higher Education Coordinating Board shall use the
182-24 job placement information received under this subchapter and other
182-25 information to:
182-26 (1) evaluate the effectiveness of workforce education;
182-27 (2) determine whether a public or private workforce
183-1 education program is not effective in placing persons who
183-2 successfully complete the program in jobs related to the persons'
183-3 training; and
183-4 (3) determine whether to continue, expand, or
183-5 terminate a program established under Section 61.051, Education
183-6 Code.
183-7 Sec. 2308.156. USE BY COUNCIL AND LOCAL WORKFORCE
183-8 DEVELOPMENT BOARD. The council and each local workforce
183-9 development board shall use the information under this subchapter
183-10 and other information to determine whether a specific workforce
183-11 training and services program administered by the local board is
183-12 effective and whether to continue the training and services
183-13 program.
183-14 Sec. 2308.157. STATE OCCUPATIONAL INFORMATION COORDINATING
183-15 COUNCIL. (a) The executive director of the State Occupational
183-16 Information Coordinating Council shall report to the executive
183-17 director of the council and shall provide to the council and its
183-18 staff as requested:
183-19 (1) labor market information;
183-20 (2) information relevant to workforce program
183-21 evaluation; and
183-22 (3) technical assistance.
183-23 (b) The executive director of the State Occupational
183-24 Information Coordinating Council may enter into contracts for
183-25 products and services with State Occupational Information
183-26 Coordinating Council membership agencies and other organizations if
183-27 consistent with the state strategic plan.
184-1 Sec. 2308.158. COUNCIL TRAINING; STANDARDS OF CONDUCT
184-2 INFORMATION. (a) Each council member shall comply with the member
184-3 training requirements established by any other state agency that is
184-4 given authority to establish the requirements for the council.
184-5 (b) The executive director shall provide to the council's
184-6 members and employees, as often as necessary, information regarding
184-7 their qualifications for office or employment under this chapter
184-8 and their responsibilities under applicable laws relating to
184-9 standards of conduct for state officers and employees.
184-10 Sec. 2308.159. TRAINING FOR LOCAL WORKFORCE DEVELOPMENT
184-11 BOARD MEMBERS. (a) The council shall provide management and board
184-12 development training for all members of local workforce development
184-13 boards.
184-14 (b) The training must:
184-15 (1) include information regarding the importance of
184-16 high-quality workforces to the economic prosperity of the
184-17 communities of the local workforce development board members; and
184-18 (2) encourage local workforce development board
184-19 members to be advocates in their communities for effective and
184-20 efficient workforce development.
184-21 (c) A member of a local workforce development board must
184-22 receive the training under this section not later than the third
184-23 month after beginning service on a certified board or the member is
184-24 not eligible to continue serving on the board.
184-25 (d) Training may be provided directly by the council or by
184-26 another person who has demonstrated experience in providing
184-27 training to local workforce development or similar boards.
185-1 (e) Local workforce development boards shall provide 25
185-2 percent of the costs for members' management and board development
185-3 training.
185-4 (Sections 2308.160-2308.200 reserved for expansion
185-5 SUBCHAPTER E. COUNCIL RECOMMENDATIONS AND IMPLEMENTATION
185-6 BY STATE AGENCIES
185-7 Sec. 2308.201. DEVELOPMENT OF RECOMMENDATIONS. The council
185-8 shall develop recommendations periodically in each of the council's
185-9 areas of responsibility and shall submit the recommendations to the
185-10 governor.
185-11 Sec. 2308.202. CONSIDERATION OF RECOMMENDATIONS BY THE
185-12 GOVERNOR. (a) The governor shall consider the recommendations
185-13 submitted under this subchapter.
185-14 (b) The governor shall approve, disapprove, or modify the
185-15 recommendations.
185-16 (c) The governor shall:
185-17 (1) return the recommendations to the council to be
185-18 forwarded as appropriate; or
185-19 (2) forward an approved or modified recommendation
185-20 without returning the recommendation to the council.
185-21 (d) A recommendation that is not approved, disapproved, or
185-22 modified by the governor before the 60th day after the date the
185-23 recommendation is submitted shall be considered approved by the
185-24 governor.
185-25 (e) A recommendation that is approved or modified shall be
185-26 forwarded to the appropriate agency for implementation.
185-27 (f) A recommendation that is approved or modified and that
186-1 requires a change in state or federal law shall be forwarded to the
186-2 appropriate legislative body for its consideration.
186-3 Sec. 2308.203. ACTION BY STATE AGENCIES. (a) A state
186-4 agency that is responsible for the administration of human
186-5 resources and workforce development in this state shall implement a
186-6 recommendation under this subchapter if the recommendation does not
186-7 violate a federal or state law, regulation, or rule.
186-8 (b) A state agency shall:
186-9 (1) provide requested information to the council in a
186-10 timely manner;
186-11 (2) report on the implementation of the council's
186-12 recommendations at the time and in the format requested by the
186-13 council; and
186-14 (3) notify the governor, the executive director, and
186-15 the presiding officer of the council if the agency determines that
186-16 a recommendation cannot be implemented.
186-17 Sec. 2308.204. JOB TRAINING PARTNERSHIP ACT. A
186-18 recommendation approved by the governor with regard to Chapter 301,
186-19 Labor Code, or the federal Job Training Partnership Act (29 U.S.C.
186-20 Section 1501 et seq.) shall be implemented by the administering
186-21 state agency.
186-22 Sec. 2308.205. FUND AVAILABILITY AND SERVICES. A state
186-23 agency represented on the council shall provide to the council and
186-24 each local workforce development board an estimate of fund
186-25 availability and services provided by the state agency in each
186-26 local workforce development area.
186-27 Sec. 2308.206. PROVISION OF SERVICES BY STATE AGENCIES. A
187-1 state agency represented on the council shall, consistent with
187-2 state and federal law, provide workforce training and services in
187-3 accordance with the local workforce development plan developed by
187-4 the local workforce development board and approved by the governor
187-5 and shall implement rules and policies consistent with the plan.
187-6 (Sections 2308.207-2308.250 reserved for expansion
187-7 SUBCHAPTER F. CREATION AND ADMINISTRATION OF LOCAL WORKFORCE
187-8 DEVELOPMENT AREAS AND LOCAL WORKFORCE DEVELOPMENT BOARDS
187-9 Sec. 2308.251. DEFINITION. In this subchapter, "board"
187-10 means a local workforce development board.
187-11 Sec. 2308.252. DESIGNATION OF WORKFORCE DEVELOPMENT AREAS.
187-12 (a) The governor shall, after receiving the recommendations of the
187-13 council, publish a proposed designation of local workforce
187-14 development areas for the planning and delivery of workforce
187-15 development.
187-16 (b) A local workforce development area:
187-17 (1) is composed of more than one contiguous unit of
187-18 general local government that includes at least one county;
187-19 (2) is consistent with either a local labor market
187-20 area, a metropolitan statistical area, one of the 24 substate
187-21 planning areas, or one of the 10 uniform state service regions; and
187-22 (3) is of a size sufficient to have the administrative
187-23 resources necessary to provide for the effective planning,
187-24 management, and delivery of workforce development.
187-25 (c) Units of general local government, business and labor
187-26 organizations, and other affected persons and organizations must be
187-27 given an opportunity to comment on and request revisions to the
188-1 proposed designation of a workforce development area.
188-2 (d) After considering all comments and requests for changes,
188-3 the governor shall make the final designation of workforce
188-4 development areas.
188-5 (e) The governor may redesignate workforce development areas
188-6 not more than once every two years. A redesignation must be made
188-7 not later than four months before the beginning of a program year.
188-8 Sec. 2308.253. CREATION OF LOCAL WORKFORCE DEVELOPMENT
188-9 BOARDS. (a) The chief elected officials in a workforce
188-10 development area may form, in accordance with rules established by
188-11 the council, a local workforce development board to:
188-12 (1) plan and oversee the delivery of workforce
188-13 training and services; and
188-14 (2) evaluate workforce development in the workforce
188-15 development area.
188-16 (b) The chief elected officials shall consider the views of
188-17 all affected local organizations, including private industry
188-18 councils and quality workforce planning committees, before making a
188-19 final decision on the formation of a board.
188-20 (c) An agreement on the formation of a board must be in
188-21 writing and must include:
188-22 (1) the purpose for the agreement;
188-23 (2) the process to be used to select the chief elected
188-24 official who will act on behalf of the other chief elected
188-25 officials;
188-26 (3) the initial size of the board;
188-27 (4) the process, consistent with applicable federal
189-1 and state law, for the appointment of the board members; and
189-2 (5) the terms of office of the board members.
189-3 Sec. 2308.254. LIMITATION ON EXERCISE OF BOARD POWERS.
189-4 (a) A power or duty granted a board under this chapter may not be
189-5 exercised in a workforce development area until:
189-6 (1) the chief elected officials in that area agree on
189-7 the establishment of a board; and
189-8 (2) the board is certified by the governor.
189-9 (b) A private industry council in an area in which a board
189-10 is not created or in which the chief elective officers are unable
189-11 to agree on the establishment of a board may not exercise any of
189-12 the powers granted a board by this chapter, except for a power
189-13 granted under the federal Job Training Partnership Act (29 U.S.C.
189-14 Section 1501 et seq.).
189-15 Sec. 2308.255. APPOINTMENT OF BOARD. (a) The chief elected
189-16 officials shall appoint the board.
189-17 (b) The appointments must:
189-18 (1) be consistent with the local government agreement
189-19 and applicable federal and state law; and
189-20 (2) reflect the ethnic and geographic diversity of the
189-21 workforce development area.
189-22 (c) To provide continuity, the chief elected officials shall
189-23 consider appointing persons to the local workforce development
189-24 board who are serving or who have served previously on a private
189-25 industry council, a quality workforce planning committee, a job
189-26 service employer committee, and any other entity affected by this
189-27 chapter.
190-1 (d) Board members serve fixed and staggered terms as
190-2 provided by the local government agreement or applicable federal or
190-3 state law and may continue to serve until successors are appointed.
190-4 Sec. 2308.256. BOARD MEMBERSHIP. (a) A board is composed
190-5 as follows:
190-6 (1) representatives of the private sector, who:
190-7 (A) constitute a majority of the membership of
190-8 the board; and
190-9 (B) are owners of business concerns, chief
190-10 executives or chief operating officers of nongovernmental
190-11 employers, or other private sector executives who have substantial
190-12 management or policy responsibilities;
190-13 (2) representatives of organized labor and
190-14 community-based organizations, who constitute not less than 15
190-15 percent of the membership of the board; and
190-16 (3) representatives of each of the following:
190-17 (A) educational agencies, including secondary
190-18 and postsecondary practitioners representing vocational education,
190-19 that are representative of all educational agencies in the service
190-20 delivery area;
190-21 (B) vocational rehabilitation agencies;
190-22 (C) public assistance agencies;
190-23 (D) economic development agencies;
190-24 (E) the public employment service;
190-25 (F) local literacy councils; and
190-26 (G) adult basic and continuing education
190-27 organizations.
191-1 (b) Private sector representatives on the board are selected
191-2 from individuals nominated by general-purpose business
191-3 organizations that have consulted with and received recommendations
191-4 from other business organizations in the workforce development
191-5 area. The number of the nominations may not be less than 150
191-6 percent of the number of individuals to be appointed under
191-7 Subsection (a)(1). The nominations and the individuals selected
191-8 from the nominations must reasonably represent the industrial and
191-9 demographic composition of the business community. Not less than
191-10 one-half of the business and industry representatives must be, if
191-11 possible, representatives of small businesses, including minority
191-12 businesses.
191-13 (c) The education representatives on the board are selected
191-14 from individuals nominated by regional or local educational
191-15 agencies, vocational education institutions, institutions of higher
191-16 education, including entities offering adult education, and general
191-17 organizations of the institutions within the workforce development
191-18 area.
191-19 (d) The labor representatives on the board are selected from
191-20 individuals recommended by recognized state and local labor
191-21 federations. If a state or local labor federation does not
191-22 nominate a number of individuals sufficient to meet the labor
191-23 representation requirements of Subsection (a)(2), individual
191-24 workers may be included on the council to complete the labor
191-25 representation.
191-26 (e) The remaining members of the board are selected from
191-27 individuals recommended by interested organizations.
192-1 (f) In this section:
192-2 (1) "General-purpose business organization" means an
192-3 organization that admits for membership any for-profit business
192-4 operating within the workforce development area.
192-5 (2) "Small business" means a private, for-profit
192-6 enterprise that employs not more than 500 employees.
192-7 Sec. 2308.257. RECUSAL. A member of a board shall avoid the
192-8 appearance of conflict of interest by not voting in a vote of the
192-9 board that directly affects the funding of the member's
192-10 organization or of any organization the member represents.
192-11 Sec. 2308.258. PRESIDING OFFICER. The presiding officer of
192-12 a board is selected from the members of the board who represent the
192-13 private sector.
192-14 Sec. 2308.259. BOARD COMMITTEES. A board may create
192-15 committees as needed to carry out its duties and responsibilities.
192-16 Sec. 2308.260. TECHNICAL ADVISORY GROUPS. A board may
192-17 create technical advisory groups composed of both council and
192-18 noncouncil members to provide assistance to the board.
192-19 Sec. 2308.261. CERTIFICATION OF BOARD. (a) The governor
192-20 shall certify a board on determining that the board's composition
192-21 is consistent with applicable federal and state law and
192-22 requirements and meets established state criteria.
192-23 (b) The governor shall certify or deny certification not
192-24 later than the 30th day after the date a certification request is
192-25 submitted to the governor.
192-26 Sec. 2308.262. BUDGET. A board shall adopt a budget for the
192-27 board that must be included in the local workforce development plan
193-1 submitted to the council.
193-2 Sec. 2308.263. APPROVAL OF FISCAL AGENT. (a) The
193-3 administering state agency must approve the fiscal agent selected
193-4 by a board before any federal or state workforce development funds
193-5 may be disbursed to the board.
193-6 (b) The agency shall base its approval on an audit of the
193-7 financial capability of the fiscal agent to ensure that fiscal
193-8 controls and fund accounting procedures necessary to guarantee the
193-9 proper disbursal of and accounting for federal and state funds are
193-10 in place.
193-11 Sec. 2308.264. CONTRACTING FOR SERVICE DELIVERY. (a) A
193-12 board may not directly provide workforce training and services.
193-13 (b) A board may request from the council a waiver of
193-14 Subsection (a).
193-15 (c) The request for a waiver must include a detailed
193-16 justification based on the lack of an existing qualified
193-17 alternative for delivery of workforce training and services in the
193-18 workforce development area.
193-19 (d) If a board receives a waiver to provide workforce
193-20 training and services, the evaluation of results and outcomes is
193-21 provided by the council.
193-22 Sec. 2308.265. INCENTIVES AND WAIVERS. (a) A board
193-23 certified by the governor is eligible for incentives and program
193-24 waivers to promote and support integrated planning and evaluation
193-25 of workforce development.
193-26 (b) To the extent feasible under federal and state workforce
193-27 development law, incentives include priority for discretionary
194-1 funding, including financial incentives for the consolidation of
194-2 service delivery areas authorized under the federal Job Training
194-3 Partnership Act (29 U.S.C. Section 1501 et seq.).
194-4 Sec. 2308.266. NONPROFIT STATUS; ABILITY TO SOLICIT FUNDS.
194-5 (a) A board may apply for and receive a charter as a private,
194-6 nonprofit corporation under the laws of this state and may choose
194-7 to be recognized as a Section 501(c)(3) organization under the
194-8 Internal Revenue Code of 1986 (26 U.S.C. Section 501(c)(3)).
194-9 (b) In addition to receiving funds specified in this
194-10 chapter, a board may solicit additional funds from other public and
194-11 private sources.
194-12 (c) A board may not solicit or accept money from an entity
194-13 with which the board contracts for the delivery of services.
194-14 Sec. 2308.267. STAFF. (a) A board may employ professional,
194-15 technical, and support staff to carry out its strategic planning,
194-16 oversight, and evaluation functions.
194-17 (b) A board's staff shall be separate from and independent
194-18 of any organization providing workforce education or workforce
194-19 training and services in the workforce development area.
194-20 (c) The requirement for separate staffing does not preclude
194-21 a board from designating a qualified organization to provide staff
194-22 services to the board if the board:
194-23 (1) arranges for independent evaluation of any other
194-24 workforce services provided by the staffing organization; and
194-25 (2) requests and obtains from the council a waiver of
194-26 the separate staffing requirement.
194-27 (d) A request for a waiver under Subsection (c)(2) must
195-1 contain a detailed justification for the waiver, including:
195-2 (1) cost-effectiveness;
195-3 (2) prior experience;
195-4 (3) geographic or budgetary considerations; and
195-5 (4) availability of qualified applicants.
195-6 Sec. 2308.268. ASSISTANCE AND SANCTIONS FOR NONPERFORMANCE.
195-7 (a) The council shall provide technical assistance to local
195-8 workforce development areas that do not meet performance standards
195-9 established under this chapter and other applicable federal and
195-10 state law.
195-11 (b) If a local workforce development area does not meet
195-12 performance standards for two consecutive program years, the
195-13 council shall develop and impose a reorganization plan that may
195-14 include:
195-15 (1) restructuring the board;
195-16 (2) prohibiting the use of designated service
195-17 providers, including state agencies; and
195-18 (3) merging the local workforce development area with
195-19 another area.
195-20 (c) If nonperformance is directly attributable to a specific
195-21 state agency, the council may select an alternative provider.
195-22 (d) A local workforce development area that is the subject
195-23 of a reorganization plan may appeal to the governor to rescind or
195-24 revise the plan not later than the 30th day after the date of
195-25 receiving notice of the plan.
195-26 Sec. 2308.269. SANCTIONS FOR LACK OF FISCAL ACCOUNTABILITY.
195-27 If, as a result of financial and compliance audits or for another
196-1 reason, the administering state agency finds a substantial
196-2 violation of a specific provision of this chapter or another
196-3 federal or state law or regulation and corrective action has not
196-4 been taken, the council shall:
196-5 (1) issue a notice of intent to revoke all or part of
196-6 the affected local plan;
196-7 (2) issue a notice of intent to cease immediately
196-8 reimbursement of local program costs; or
196-9 (3) impose a reorganization plan under Section
196-10 2308.268 for the local workforce development area.
196-11 (Sections 2308.270-2308.300 reserved for expansion
196-12 SUBCHAPTER G. RESPONSIBILITIES AND DUTIES OF LOCAL WORKFORCE
196-13 DEVELOPMENT BOARDS
196-14 Sec. 2308.301. DEFINITION. In this subchapter, "board"
196-15 means a local workforce development board.
196-16 Sec. 2308.302. RESPONSIBILITY OF BOARD. (a) A board is
196-17 directly responsible and accountable to the council for the
196-18 planning and oversight of all workforce training and services in
196-19 the workforce development area. A board shall ensure effective
196-20 outcomes consistent with statewide goals, objectives, and
196-21 performance standards approved by the governor.
196-22 (b) A board is directly responsible to the administering
196-23 state agency.
196-24 Sec. 2308.303. BOARD DUTIES. (a) A board shall:
196-25 (1) serve as a single point of contact for local
196-26 businesses to communicate their skill needs and to influence the
196-27 direction of all workforce development programs in the workforce
197-1 development area;
197-2 (2) develop a local plan to address the workforce
197-3 development needs of the workforce development area that:
197-4 (A) is responsive to the goals, objectives, and
197-5 performance standards established by the governor;
197-6 (B) targets services to meet local needs,
197-7 including the identification of industries and employers likely to
197-8 employ workers who complete job training programs; and
197-9 (C) ensures that the workforce development
197-10 system, including the educational system, has the flexibility to
197-11 meet the needs of local businesses;
197-12 (3) designate the board or another entity as the
197-13 board's fiscal agent to be responsible and accountable for the
197-14 management of all workforce development funds available to the
197-15 board;
197-16 (4) create local workforce development centers under
197-17 Section 2308.312;
197-18 (5) review plans for workforce education to ensure
197-19 that the plans address the needs of local businesses and recommend
197-20 appropriate changes in the delivery of education services;
197-21 (6) assume the functions and responsibilities of local
197-22 workforce development advisory boards, councils, and committees
197-23 authorized by federal or state law, including private industry
197-24 councils, quality workforce planning committees, job service
197-25 employer committees, and local general vocational program advisory
197-26 committees;
197-27 (7) monitor and evaluate the effectiveness of the
198-1 workforce development centers, state agencies and other contractors
198-2 providing workforce training and services, and vocational and
198-3 technical education programs operated by local education agencies
198-4 and institutions of higher education to ensure that performance is
198-5 consistent with state and local goals and objectives;
198-6 (8) promote cooperation and coordination among public
198-7 organizations, community organizations, and private businesses
198-8 providing workforce development; and
198-9 (9) review applications for consistency with rules
198-10 developed by the Texas Department of Commerce for funds under the
198-11 smart jobs fund program under Subchapter J, Chapter 481.
198-12 (b) In performing its duties under Subsection (a)(9), a
198-13 board may provide to the department relevant labor market
198-14 information and information regarding the availability of existing
198-15 workforce development.
198-16 (c) A provider must respond to a change recommended by a
198-17 board under Subsection (a)(5) not later than the 30th day after the
198-18 date the provider receives the recommendation.
198-19 Sec. 2308.304. LOCAL PLAN. (a) A board shall adopt a
198-20 single plan for the delivery of all workforce training and services
198-21 in the board's service area under the following:
198-22 (1) Chapter 301, Labor Code;
198-23 (2) postsecondary vocational and technical job
198-24 training programs that are not part of approved courses or programs
198-25 that lead to licensing, certification, or an associate degree under
198-26 Chapters 61, 108, 130, and 135, or Subchapter E, Chapter 88,
198-27 Education Code;
199-1 (3) adult education programs under Section 11.18,
199-2 Education Code;
199-3 (4) apprenticeship programs under Chapter 33,
199-4 Education Code;
199-5 (5) the trade adjustment assistance program under Part
199-6 2, Subchapter II, Trade Act of 1974 (19 U.S.C. Section 2271 et
199-7 seq.);
199-8 (6) the senior citizens employment program under
199-9 Chapter 101, Human Resources Code;
199-10 (7) Subtitle A, Title 4, Labor Code;
199-11 (8) literacy funds available to the state under the
199-12 National Literacy Act of 1991 (20 U.S.C. Section 1201 et seq.);
199-13 (9) the National and Community Service Act of 1990 (42
199-14 U.S.C. Section 12501 et seq.);
199-15 (10) the job opportunities and basic skills program
199-16 under Part F, Subchapter IV, Social Security Act (42 U.S.C. Section
199-17 682); and
199-18 (11) the food stamp employment and training program
199-19 authorized under 7 U.S.C. Section 2015(d).
199-20 (b) A local plan must identify:
199-21 (1) goals, objectives, and performance measures;
199-22 (2) the people and groups to be served;
199-23 (3) the types of services to be provided;
199-24 (4) the service providers; and
199-25 (5) the structure of the delivery system.
199-26 Sec. 2308.305. LABOR MARKET INFORMATION SYSTEM. A board, in
199-27 conjunction with the council, shall establish and operate an
200-1 automated, interactive labor market information system to identify,
200-2 by occupation, the labor demand by employers in each workforce
200-3 development area.
200-4 Sec. 2308.306. REPORT. A board shall periodically provide a
200-5 report summarizing by occupation the labor demand to:
200-6 (1) each public postsecondary institution providing
200-7 vocational and technical education; and
200-8 (2) each entity under contract to the board to provide
200-9 workforce training and services in a workforce development area.
200-10 Sec. 2308.307. FILLING EDUCATIONAL NEEDS. (a) If a need in
200-11 the availability of workforce education is indicated by the labor
200-12 market information system provided by the board, by a direct
200-13 request of employers located in the workforce area, or as the
200-14 result of economic development incentives designed to attract or
200-15 retain an employer, an institution may apply to the Texas Higher
200-16 Education Coordinating Board for approval to offer the needed
200-17 workforce education.
200-18 (b) An institution that desires to provide the needed
200-19 workforce education must apply to the coordinating board not later
200-20 than the 30th day after the date the need is identified.
200-21 (c) The coordinating board shall give immediate priority to
200-22 the institution's application and shall notify the institution of
200-23 the board's approval or disapproval not later than the 100th day
200-24 after the date the application is received.
200-25 (d) If more than one institution in a workforce development
200-26 area applies to provide the needed workforce education, the
200-27 coordinating board shall select one or more institutions to offer
201-1 the needed education as provided by Section 61.051, Education Code.
201-2 (e) If an institution approved by the coordinating board
201-3 does not offer the approved workforce education in a timely manner,
201-4 a board may solicit another qualified provider to apply to the
201-5 coordinating board to provide needed education to be funded through
201-6 state-appropriated formula funds.
201-7 Sec. 2308.308. PUBLIC COMMUNITY COLLEGE. A public community
201-8 college shall promptly provide workforce training and services that
201-9 are requested:
201-10 (1) by a board if the need for the training and
201-11 services is based on the board's labor market information system
201-12 for the board's area;
201-13 (2) by employers located in the college's taxing
201-14 district when the request is presented directly to the college by
201-15 the employers or through the board; or
201-16 (3) as part of economic development incentives
201-17 designed to attract or retain an employer, including incentives
201-18 offered under the smart jobs fund program under Subchapter J,
201-19 Chapter 481.
201-20 Sec. 2308.309. INSTITUTION OF HIGHER EDUCATION. (a) An
201-21 institution of higher education that has local taxing authority and
201-22 is governed by a locally elected board of trustees is the primary
201-23 provider of local workforce training and services that are needed
201-24 by an employer within the taxing district and funded fully or in
201-25 part by local funds, except in Cameron, McLennan, and Potter
201-26 counties, or by technical vocational funds administered by the
201-27 Texas Higher Education Coordinating Board.
202-1 (b) A board shall select another qualified local or
202-2 statewide provider if the local institution does not promptly
202-3 provide locally needed workforce training and services.
202-4 Sec. 2308.310. CERTAIN EDUCATIONAL SERVICES NOT PROHIBITED.
202-5 This subchapter does not prohibit an institution of higher
202-6 education from offering workforce education or workforce training
202-7 and services that:
202-8 (1) are needed by an employer located in the
202-9 institution's taxing district and that meet all applicable
202-10 standards; or
202-11 (2) have been approved under applicable law and that
202-12 are reviewed by the Texas Higher Education Coordinating Board.
202-13 Sec. 2308.311. LIST OF PUBLICLY FUNDED PROGRAMS AND CLASSES.
202-14 (a) Each local education agency and public or private
202-15 postsecondary educational institution shall provide the board in
202-16 its area a list of all vocational-technical programs and classes
202-17 the agency or institution offers that are funded by state or
202-18 federal funds.
202-19 (b) A board, with the assistance of the labor demand
202-20 occupation report, shall evaluate the supply of
202-21 vocational-technical programs in relation to the demand for the
202-22 programs and report any discrepancies between supply and demand to
202-23 the appropriate educational institution, the Central Education
202-24 Agency, the Texas Higher Education Coordinating Board, the council,
202-25 and the Legislative Budget Board.
202-26 Sec. 2308.312. WORKFORCE DEVELOPMENT CENTERS. (a) A board
202-27 shall establish workforce development centers accessible to
203-1 students, workers, and employers throughout the workforce
203-2 development area. The board shall establish the centers not later
203-3 than the 180th day after the date the board is certified.
203-4 (b) Each center shall provide information and services
203-5 available in the workforce development area and shall address the
203-6 individual needs of students, workers, and employers.
203-7 (c) The services available at a center must include:
203-8 (1) labor market information, including:
203-9 (A) skills available in the workforce area;
203-10 (B) job openings; and
203-11 (C) education, training, and employment
203-12 opportunities in the local area, in the state, and, as feasible, in
203-13 the nation;
203-14 (2) uniform eligibility requirements and application
203-15 procedures for all workforce development;
203-16 (3) independent assessment of individual needs and the
203-17 development of an individual service strategy;
203-18 (4) centralized and continuous case management and
203-19 counseling;
203-20 (5) individual referral for services, including basic
203-21 education, classroom skills training, on-the-job training, and
203-22 customized training; and
203-23 (6) support services, including child care assistance,
203-24 loans, and other forms of financial assistance required to
203-25 participate in and complete training.
203-26 Sec. 2308.313. RIGHT TO KNOW. A workforce development
203-27 center shall provide to each person, before the person participates
204-1 in a vocational or technical training program, a document that
204-2 informs the person of:
204-3 (1) current employment prospects; and
204-4 (2) the current wage level for a person who completes
204-5 the vocational or technical training program in which the person is
204-6 considering participating.
204-7 (b) Articles 1-6, Chapter 668, Acts of the 73rd Legislature,
204-8 Regular Session, 1993, are repealed.
204-9 SECTION 5.82. (a) Subchapter A, Chapter 301, Labor Code, is
204-10 amended to conform to Section 7.03, Chapter 668, Acts of the 73rd
204-11 Legislature, Regular Session, 1993, by adding Section 301.006 to
204-12 read as follows:
204-13 Sec. 301.006. PRIVATE INDUSTRY COUNCIL; LOCAL WORKFORCE
204-14 DEVELOPMENT BOARD. For the purposes of this chapter, "private
204-15 industry council" refers to both:
204-16 (1) the entity described as a private industry council
204-17 by the federal Act; and
204-18 (2) a local workforce development board in a local
204-19 market area in which a local workforce development board created
204-20 under Subchapter F, Chapter 2308, Government Code, has been
204-21 established.
204-22 (b) Section 7.03, Chapter 668, Acts of the 73rd Legislature,
204-23 Regular Session, 1993, is repealed.
204-24 SECTION 5.83. (a) Subtitle G, Title 10, Government Code, is
204-25 amended by adding Chapter 2309 to read as follows:
204-26 CHAPTER 2309. NATIONAL DEFENSE IMPACTED REGION ASSISTANCE
204-27 SUBCHAPTER A. GENERAL PROVISIONS
205-1 Sec. 2309.001. SHORT TITLE. This chapter may be cited as
205-2 the National Defense Impacted Region Assistance Act. (V.A.C.S.
205-3 Art. 689a-4d, Art. 1, Sec. 1.)
205-4 Sec. 2309.002. PURPOSE; FINDINGS. (a) The purpose of this
205-5 chapter is to provide significant state financial assistance to an
205-6 impacted region so that a governmental entity in the impacted
205-7 region may better serve the people of the region, including the
205-8 assigned military personnel, by ensuring the adequate provision of
205-9 government services.
205-10 (b) The legislature finds that the construction and
205-11 operation of a significant new naval military facility in the state
205-12 provides substantial financial benefit to the state and that the
205-13 state is better protected in the event of enemy attack. (V.A.C.S.
205-14 Art. 689a-4d, Art. 1, Secs. 2, 3.)
205-15 Sec. 2309.003. DEFINITIONS. In this chapter:
205-16 (1) "Fund" means the Texas home port trust fund.
205-17 (2) "Impacted region" means a county:
205-18 (A) in which a significant new naval military
205-19 facility is located; or
205-20 (B) that has a common boundary with a county in
205-21 which the facility is located.
205-22 (3) "Significant new naval military facility" means a
205-23 new United States Navy installation or an addition and expansion of
205-24 an existing naval installation that involves:
205-25 (A) the acquisition of at least 60 acres of
205-26 land;
205-27 (B) the construction of facilities and
206-1 improvements that have a cost of at least $65 million; and
206-2 (C) the assignment of the facility as the home
206-3 port of at least 2,000 additional active duty members of the armed
206-4 forces. (New; V.A.C.S. Art. 689a-4d, Art. 1, Sec. 4.)
206-5 (Sections 2309.004-2309.020 reserved for expansion
206-6 SUBCHAPTER B. FUND
206-7 Sec. 2309.021. FUND ADMINISTRATION. (a) The Texas home
206-8 port trust fund is administered by the state treasurer and may be
206-9 paid only on written authorization of the governor.
206-10 (b) Before authorizing the use of money under this section,
206-11 the governor shall notify the speaker of the house, the lieutenant
206-12 governor, and the comptroller of the proposed authorizations and
206-13 shall consider their recommendations and requests. (V.A.C.S.
206-14 Art. 689a-4d, Art. 9, Sec. 1 (part).)
206-15 Sec. 2309.022. FUND PAYMENTS. Payments may be made from the
206-16 fund to a navigation district or to any other political
206-17 subdivision, as determined by the governor to be appropriate, to be
206-18 used only to:
206-19 (1) make a public works improvement, including docks,
206-20 dredging, bulkheads, and utilities, related to the naval facility;
206-21 or
206-22 (2) provide a permanent berthing location for a United
206-23 States Navy aircraft carrier. (V.A.C.S. Art. 689a-4d, Art. 9, Sec.
206-24 1 (part).)
206-25 Sec. 2309.023. IMPROVEMENT MADE WITH FUND PAYMENT. (a) An
206-26 improvement made with funds authorized under Section 2309.022(1)
206-27 must be of a nature that would benefit the state if the facility
207-1 were not used as a military installation.
207-2 (b) The improvement may be leased to the United States
207-3 government, but ownership of the improvement remains with the
207-4 state, the navigation district, or the political subdivision.
207-5 (V.A.C.S. Art. 689a-4d, Art. 9, Secs. 1 (part), 6.)
207-6 Sec. 2309.024. INTEREST ON FUND. Interest earned by the
207-7 fund shall be deposited to the credit of the general revenue fund.
207-8 (V.A.C.S. Art. 689a-4d, Art. 9, Sec. 1 (part).)
207-9 Sec. 2309.025. LAPSE OF FUND. The fund lapses on the fourth
207-10 anniversary of the date on which construction begins. At that
207-11 time, any balance remaining in the fund shall be deposited to the
207-12 credit of the general revenue fund. (V.A.C.S. Art. 689a-4d,
207-13 Art. 9, Sec. 5.)
207-14 (Sections 2309.026-2309.040 reserved for expansion
207-15 SUBCHAPTER C. GOVERNOR'S PROCLAMATION
207-16 Sec. 2309.041. GOVERNOR'S PROCLAMATION. When the Department
207-17 of the Navy of the United States Department of Defense makes a
207-18 final determination to locate a significant new naval military
207-19 facility in this state, the governor shall issue an official
207-20 proclamation declaring that determination. (V.A.C.S. Art. 689a-4d,
207-21 Art. 10, Sec. 1.)
207-22 (b) Article 1; Sections 1, 2, 5, and 6, Article 9; and
207-23 Sections 1 and 2, Article 10, Chapter 69, Acts of the 69th
207-24 Legislature, Regular Session, 1985 (Article 689a-4d, Vernon's Texas
207-25 Civil Statutes), are repealed.
207-26 SECTION 5.84. (a) Sections 56.31-56.61, Subchapter B,
207-27 Chapter 56, Code of Criminal Procedure, are redesignated as
208-1 Articles 56.31-56.61, Subchapter B, Chapter 56, Code of Criminal
208-2 Procedure.
208-3 (b) Each reference to a "Section," a "section," "Sections,"
208-4 or "sections" of Subchapter B, Chapter 56, Code of Criminal
208-5 Procedure, that occurs in Articles 56.31-56.61, Code of Criminal
208-6 Procedure, as redesignated by Subsection (a) of this section, is
208-7 replaced by "Article," "article," "Articles," or "articles," as
208-8 appropriate.
208-9 SECTION 5.85. (a) Subchapter B, Chapter 56, Code of
208-10 Criminal Procedure, is amended to conform to Section 1, Chapter
208-11 983, Acts of the 73rd Legislature, Regular Session, 1993, by adding
208-12 Article 56.385 to read as follows:
208-13 Art. 56.385. UTILIZATION REVIEW. (a) The attorney general
208-14 may adopt rules under which the attorney general may conduct or
208-15 contract for a utilization review of applications for benefits or
208-16 claims for pecuniary loss relating to psychological, psychiatric,
208-17 or other mental health services.
208-18 (b) In this article, "utilization review" means a system for
208-19 prospective, concurrent, or retrospective review of the necessity
208-20 and appropriateness of services being provided or proposed to be
208-21 provided to a victim.
208-22 (b) Article 56.47(c), Code of Criminal Procedure, as
208-23 redesignated by Section 5.81 of this Act, is amended to conform to
208-24 Section 2, Chapter 983, Acts of the 73rd Legislature, Regular
208-25 Session, 1993, to read as follows:
208-26 (c) An order on reconsideration may not require refund of
208-27 amounts previously paid unless the award was paid by mistake or
209-1 obtained by fraud.
209-2 (c) Subchapter B, Chapter 56, Code of Criminal Procedure, is
209-3 amended to conform to Section 3, Chapter 983, Acts of the 73rd
209-4 Legislature, Regular Session, 1993, by adding Articles 56.62-56.64
209-5 to read as follows:
209-6 Art. 56.62. PUBLIC LETTER OF REPRIMAND. (a) The attorney
209-7 general may issue a letter of reprimand against a person if the
209-8 attorney general finds that the person has filed or has caused to
209-9 be filed under this subchapter an application for benefits or claim
209-10 for pecuniary loss that contains a statement or representation that
209-11 the person knows to be false.
209-12 (b) The attorney general must give the person notice of the
209-13 proposed action before issuing the letter.
209-14 (c) A proposal to issue a letter of reprimand is a contested
209-15 case under Chapter 2001, Government Code.
209-16 (d) A letter of reprimand issued under this article is
209-17 public information.
209-18 Art. 56.63. CIVIL PENALTY. (a) A person is subject to a
209-19 civil penalty of not less than $2,500 or more than $25,000 for each
209-20 application for benefits or claim for pecuniary loss that:
209-21 (1) the person files or causes to be filed under this
209-22 subchapter; and
209-23 (2) contains a statement or representation that the
209-24 person knows to be false.
209-25 (b) The attorney general shall institute and conduct the
209-26 suit authorized by this article in the name of this state.
209-27 (c) A civil penalty recovered under this article shall be
210-1 deposited to the credit of the compensation to victims of crime
210-2 fund.
210-3 (d) The civil penalty authorized by this article is in
210-4 addition to any other civil, administrative, or criminal penalty
210-5 provided by law.
210-6 (e) In addition to the civil penalty authorized by this
210-7 article, the attorney general may recover all expenses incurred by
210-8 the attorney general in the investigation, institution, and
210-9 prosecution of the suit, including investigative costs, witness
210-10 fees, attorney's fees, and deposition expenses.
210-11 Art. 56.64. ADMINISTRATIVE PENALTY. (a) A person who
210-12 presents or causes to be presented to the attorney general an
210-13 application for benefits or claim for pecuniary loss that contains
210-14 a statement or representation the person knows to be false is
210-15 liable to the attorney general for:
210-16 (1) the amount paid because of the false application
210-17 for benefits or claim for pecuniary loss and interest on that
210-18 amount determined at the rate provided by law for legal judgments
210-19 and accruing from the date on which the payment was made;
210-20 (2) payment of an administrative penalty not to exceed
210-21 twice the amount paid because of the false application for benefits
210-22 or claim for pecuniary loss; and
210-23 (3) payment of an administrative penalty of not more
210-24 than $10,000 for each item or service for which payment was
210-25 claimed.
210-26 (b) In determining the amount of the penalty to be assessed
210-27 under Subsection (a)(3), the attorney general shall consider:
211-1 (1) the seriousness of the violation;
211-2 (2) whether the person had previously submitted a
211-3 false application for benefits or claim for pecuniary loss; and
211-4 (3) the amount necessary to deter the person from
211-5 submitting future false applications for benefits or claims for
211-6 pecuniary loss.
211-7 (c) If the attorney general determines that a violation has
211-8 occurred, the attorney general may issue a report that states the
211-9 facts on which the determination is made and the attorney general's
211-10 recommendation on the imposition of a penalty, including a
211-11 recommendation on the amount of the penalty.
211-12 (d) The attorney general shall give written notice of the
211-13 report to the person. The notice may be given by certified mail.
211-14 The notice must:
211-15 (1) include a brief summary of the alleged violation;
211-16 (2) include a statement of the amount of the
211-17 recommended penalty; and
211-18 (3) inform the person that the person has a right to a
211-19 hearing on the occurrence of the violation, the amount of the
211-20 penalty, or both the occurrence of the violation and the amount of
211-21 the penalty.
211-22 (e) Within 20 days after the date the person receives the
211-23 notice, the person in writing may:
211-24 (1) accept the determination and recommended penalty
211-25 of the attorney general; or
211-26 (2) make a written request for a hearing on the
211-27 occurrence of the violation, the amount of the penalty, or both the
212-1 occurrence of the violation and the amount of the penalty.
212-2 (f) If the person accepts the determination and recommended
212-3 penalty of the attorney general, the attorney general by order
212-4 shall approve the determination and impose the recommended penalty.
212-5 (g) If the person requests a hearing or fails to respond in
212-6 a timely manner to the notice, the attorney general shall set a
212-7 hearing and give notice of the hearing to the person. The
212-8 administrative law judge shall make findings of fact and
212-9 conclusions of law and promptly issue to the attorney general a
212-10 proposal for a decision about the occurrence of the violation and
212-11 the amount of a proposed penalty. According to the findings of
212-12 fact, conclusions of law, and proposal for a decision, the attorney
212-13 general by order may find that a violation has occurred and impose
212-14 a penalty or may find that a violation has not occurred.
212-15 (h) The notice of the attorney general's order given to the
212-16 person under Chapter 2001, Government Code, must include a
212-17 statement of the right of the person to judicial review of the
212-18 order.
212-19 (i) Within 30 days after the date the attorney general's
212-20 order is final under Section 2001.144, Government Code, the person
212-21 shall:
212-22 (1) pay the amount of the penalty;
212-23 (2) pay the amount of the penalty and file a petition
212-24 for judicial review contesting the occurrence of the violation, the
212-25 amount of the penalty, or both the occurrence of the violation and
212-26 the amount of the penalty; or
212-27 (3) without paying the amount of the penalty, file a
213-1 petition for judicial review contesting the occurrence of the
213-2 violation, the amount of the penalty, or both the occurrence of the
213-3 violation and the amount of the penalty.
213-4 (j) Within the 30-day period, a person who acts under
213-5 Subsection (i)(3) may:
213-6 (1) stay enforcement of the penalty by:
213-7 (A) paying the amount of the penalty to the
213-8 court for placement in an escrow account; or
213-9 (B) giving to the court a supersedeas bond
213-10 approved by the court for the amount of the penalty and that is
213-11 effective until all judicial review of the attorney general's order
213-12 is final; or
213-13 (2) request the court to stay enforcement of the
213-14 penalty by:
213-15 (A) filing with the court a sworn affidavit of
213-16 the person stating that the person is financially unable to pay the
213-17 amount of the penalty and is financially unable to give the
213-18 supersedeas bond; and
213-19 (B) giving a copy of the affidavit to the
213-20 attorney general by certified mail.
213-21 (k) On the attorney general's receipt of a copy of an
213-22 affidavit under Subsection (j)(2), the attorney general may file
213-23 with the court, within five days after the date the copy is
213-24 received, a contest to the affidavit. The court shall hold a
213-25 hearing on the facts alleged in the affidavit as soon as
213-26 practicable and shall stay the enforcement of the penalty on
213-27 finding that the alleged facts are true. The person who files an
214-1 affidavit has the burden of proving that the person is financially
214-2 unable to pay the amount of the penalty and to give a supersedeas
214-3 bond.
214-4 (l) If the person does not pay the amount of the penalty and
214-5 the enforcement of the penalty is not stayed, the attorney general
214-6 may file suit for collection of the amount of the penalty.
214-7 (m) Judicial review of the order of the attorney general:
214-8 (1) is instituted by filing a petition as provided by
214-9 Section 2001.176, Government Code; and
214-10 (2) is under the substantial evidence rule.
214-11 (n) If the court sustains the occurrence of the violation,
214-12 the court may uphold or reduce the amount of the penalty and order
214-13 the person to pay the full or reduced amount of the penalty. If
214-14 the court does not sustain the occurrence of the violation, the
214-15 court shall order that a penalty is not owed.
214-16 (o) When the judgment of the court becomes final, the court
214-17 shall proceed under this subsection. If the person paid the amount
214-18 of the penalty and if that amount is reduced or is not upheld by
214-19 the court, the court shall order that the appropriate amount plus
214-20 accrued interest be remitted to the person. The rate of the
214-21 interest is the rate charged on loans to depository institutions by
214-22 the New York Federal Reserve Bank, and the interest shall be paid
214-23 for the period beginning on the date the penalty was paid and
214-24 ending on the date the penalty is remitted. If the person gave a
214-25 supersedeas bond and if the amount of the penalty is not upheld by
214-26 the court, the court shall order the release of the bond. If the
214-27 person gave a supersedeas bond and if the amount of the penalty is
215-1 reduced, the court shall order the release of the bond after the
215-2 person pays the amount.
215-3 (p) A penalty collected under this article shall be sent to
215-4 the comptroller and deposited to the credit of the compensation to
215-5 victims of crime fund.
215-6 (q) All proceedings under this article are subject to
215-7 Chapter 2001, Government Code.
215-8 (r) In addition to the administrative penalty authorized by
215-9 this article, the attorney general may recover all expenses
215-10 incurred by the attorney general in the investigation, institution,
215-11 and prosecution of the suit, including investigative costs, witness
215-12 fees, attorney's fees, and deposition expenses.
215-13 (d) Sections 1-3, Chapter 983, Acts of the 73rd Legislature,
215-14 Regular Session, 1993, are repealed.
215-15 SECTION 5.86. (a) Subchapter B, Chapter 56, Code of
215-16 Criminal Procedure, is amended to conform to Sections 5 and 6,
215-17 Chapter 780, Acts of the 73rd Legislature, Regular Session, 1993,
215-18 by adding Articles 56.65-56.67 to read as follows:
215-19 Art. 56.65. SUBMISSION OF CONTRACT FOR REENACTMENT OF CRIME
215-20 TO THE ATTORNEY GENERAL. A contract cannot be finally executed
215-21 unless it is first submitted to the attorney general if:
215-22 (1) one of the parties to the contract is a person who
215-23 is accused or convicted of a crime in this state, or the
215-24 representative or assignee of that person; and
215-25 (2) the contract involves the reenactment of the crime
215-26 in a movie, book, magazine article, tape recording, phonograph
215-27 record, radio or television presentation, or live entertainment.
216-1 Art. 56.66. CERTAIN ACTIONS VOID. An action taken by a
216-2 person to defeat the purpose of this subchapter is void as against
216-3 public policy, including the execution of a power of attorney or
216-4 the creation of a corporate entity.
216-5 Art. 56.67. VICTIM FIRST COMPENSATED FROM FUNDS COLLECTED
216-6 FROM PERPETRATOR. Notwithstanding this subchapter or any other
216-7 law, the victim of a crime shall be the first one compensated from
216-8 any revenue collected from the perpetrator of the crime for that
216-9 purpose.
216-10 (b) Sections 5 and 6, Chapter 780, Acts of the 73rd
216-11 Legislature, Regular Session, 1993, are repealed.
216-12 SECTION 5.87. Chapter 2055, Government Code, is repealed to
216-13 conform to Sections 4(17) and 5(6), Chapter 398, Acts of the 73rd
216-14 Legislature, Regular Session, 1993.
216-15 SECTION 5.88. Chapter 2202, Government Code, is repealed to
216-16 conform to Section 2.13(1), Chapter 906, Acts of the 73rd
216-17 Legislature, Regular Session, 1993.
216-18 SECTION 5.89. (a) Subchapter C, Chapter 401, Government
216-19 Code, is amended to codify Section 6, Chapter 206, General Laws,
216-20 Acts of the 42nd Legislature, Regular Session, 1931 (Article
216-21 689a-5, Vernon's Texas Civil Statutes), by adding Section 401.0445
216-22 to read as follows:
216-23 Sec. 401.0445. COMPILATION OF THE BUDGET. (a) The governor
216-24 shall compile the biennial appropriation budget using information:
216-25 (1) submitted to the governor in the uniform budget
216-26 estimate forms; and
216-27 (2) obtained at public hearings, from inspections, and
217-1 from other sources.
217-2 (b) In the budget, the governor shall show:
217-3 (1) the list of appropriations for the current year
217-4 preceding the biennium for which appropriations are sought and
217-5 recommended;
217-6 (2) expenditures for each of the two full years
217-7 preceding the current year; and
217-8 (3) the amounts requested by the various agencies and
217-9 the amounts recommended by the governor for each of the years of
217-10 the biennium.
217-11 (b) Section 6, Chapter 206, General Laws, Acts of the 42nd
217-12 Legislature, Regular Session, 1931 (Article 689a-5, Vernon's Texas
217-13 Civil Statutes), is repealed.
217-14 SECTION 5.90. Section 403.022, Government Code, is amended
217-15 to follow more closely the source law from which it was derived by
217-16 adding Subsection (d) to read as follows:
217-17 (d) In this section, "state agency" has the meaning assigned
217-18 by Section 2056.001.
217-19 SECTION 5.91. Article 59.01(3), Code of Criminal Procedure,
217-20 is amended to reenact a definition at a more appropriate location
217-21 to read as follows:
217-22 (3) "Crime of violence" means:
217-23 (A) any criminal offense defined in the Penal
217-24 Code or in a federal criminal law that results in a personal injury
217-25 to a victim; or
217-26 (B) an act that is not an offense under the
217-27 Penal Code involving the operation of a motor vehicle, aircraft, or
218-1 water vehicle that results in injury or death sustained in an
218-2 accident caused by a driver in violation of Section 38, Uniform Act
218-3 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
218-4 Statutes) <has the meaning assigned by Section 3, Crime Victims
218-5 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes)>.
218-6 SECTION 5.92. Section 401.021, Labor Code, is amended to
218-7 correct references to read as follows:
218-8 Sec. 401.021. Application of Other Acts. Except as
218-9 otherwise provided by this subtitle:
218-10 (1) a proceeding, hearing, judicial review, or
218-11 enforcement of a commission order, decision, or rule is governed by
218-12 the following subchapters and sections of Chapter 2001, Government
218-13 Code:
218-14 (A) Subchapters A, B, D, G, and H, excluding
218-15 Sections 2001.004(3) and 2001.005;
218-16 (B) Sections 2001.051-2001.053;
218-17 (C) Sections 2001.056-2001.062; and
218-18 (D) Section 2001.141(c) <Sections 1 through 12,
218-19 other than Sections 4(a)(3) and 4(b), and by Sections 13, 14, 14a,
218-20 15, 17, 19, and 19A, Administrative Procedure and Texas Register
218-21 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>;
218-22 (2) Chapter 551, Government Code, <the open meetings
218-23 law, Chapter 271, Acts of the 60th Legislature, Regular Session,
218-24 1967 (Article 6252-17, Vernon's Texas Civil Statutes),> applies to
218-25 a proceeding under this subtitle, other than:
218-26 (A) a benefit review conference;
218-27 (B) a contested case hearing;
219-1 (C) an appeals panel proceeding;
219-2 (D) arbitration; or
219-3 (E) another proceeding involving a determination
219-4 on a workers' compensation claim; and
219-5 (3) Chapter 552, Government Code, <the open records
219-6 law, Chapter 424, Acts of the 63rd Legislature, Regular Session,
219-7 1973 (Article 6252-17a, Vernon's Texas Civil Statutes),> applies to
219-8 a record of the commission or the research center.
219-9 SECTION 5.93. Section 410.153, Labor Code, is amended to
219-10 correct references to read as follows:
219-11 Sec. 410.153. APPLICATION OF ADMINISTRATIVE PROCEDURE <AND
219-12 TEXAS REGISTER> ACT. Chapter 2001, Government Code, <The
219-13 Administrative Procedure and Texas Register Act (Article 6252-13a,
219-14 Vernon's Texas Civil Statutes)> applies to a contested case hearing
219-15 to the extent that the commission finds appropriate, except that
219-16 the following do not apply:
219-17 (1) Section 2001.054;
219-18 (2) Sections 2001.061-2001.062;
219-19 (3) Section 2001.202; and
219-20 (4) Subchapters F, G, I, and Z, except for Section
219-21 2001.141(c) <Sections 15 through 23 of that Act do not apply>.
219-22 SECTION 5.94. REPEALER. Chapter 873, Acts of the 69th
219-23 Legislature, Regular Session, 1985 (Article 6252-28, Vernon's Texas
219-24 Civil Statutes), is repealed.
219-25 SECTION 5.95. CROSS-REFERENCE CORRECTIONS. In the following
219-26 table of cross-reference amendments, a reference described in
219-27 Column A is amended to read as provided by the corresponding
220-1 reference described in Column B at each place at which the
220-2 reference appears in a code cited in Column C:
220-3 TABLE OF CROSS-REFERENCE AMENDMENTS
220-4 Column A Column B Column C
220-5 Reference To New Reference Law In Which The
220-6 Be Amended Reference Appears
220-7 (1) "Article 12, (1) "Subchapter G, (1) Section
220-8 Revised Civil Chapter 316, 101.006, Tax Code
220-9 Statutes of Texas, Government Code"
220-10 1925, as amended"
220-11 (2) "Chapter 359, (2) "Section (2) Section
220-12 Acts of the 50th 312.016, Government 101.003(7), Tax Code
220-13 Legislature, Regular Code"
220-14 Session, 1947
220-15 (Article 23a,
220-16 Vernon's Texas Civil
220-17 Statutes)"
220-18 (3) "Chapter 84, (3) "Subchapter C, (3) Sections
220-19 Acts of the 43rd Chapter 2051, 271.049(a) and
220-20 Legislature, 1st Government Code" 271.055(b)(1), Local
220-21 Called Session, 1933 Government Code
220-22 Column A Column B Column C
220-23 Reference To New Reference Law In Which The
220-24 Be Amended Reference Appears
220-25 (Article 28a,
220-26 Vernon's Texas Civil
220-27 Statutes)"
221-1 (4) "Chapter 549, (4) "Chapter 111, (4) Section
221-2 Acts of the 60th Local Government 18.0841(d), Water
221-3 Legislature, Regular Code" Code
221-4 Session, 1967
221-5 (Article 29e,
221-6 Vernon's Texas Civil
221-7 Statutes)"
221-8 (5) "Article 601e, (5) "Chapter 2201, (5) Section
221-9 Revised Statutes" Government Code" 533.084(b), Health
221-10 and Safety Code; and
221-11 Sections 31.158(b)
221-12 and (c)(9), Natural
221-13 Resources Code
221-14 (6) "Chapter 82, (6) "Chapter 2251" (6) Section
221-15 Acts of the 69th 403.056(e),
221-16 Legislature, Regular Government Code
221-17 Session, 1985
221-18 Column A Column B Column C
221-19 Reference To New Reference Law In Which The
221-20 Be Amended Reference Appears
221-21 (Article 601f,
221-22 Vernon's Texas Civil
221-23 Statutes)"
221-24 (7) "Chapter 82, (7) "Chapter 2251, (7) Section
221-25 Acts of the 69th Government Code" 13.142(b), Water
221-26 Legislature, Regular Code
221-27 Session, 1985
222-1 (Article 601f,
222-2 Vernon's Texas Civil
222-3 Statutes), and its
222-4 subsequent
222-5 amendments"
222-6 (8) "Chapter 82, (8) "Chapter 2251, (8) Section
222-7 Acts of the 69th Government Code" 26.3573(k), Water
222-8 Legislature, Regular Code
222-9 Session, 1985
222-10 (Article 601f,
222-11 Vernon's Texas Civil
222-12 Statutes)"
222-13 Column A Column B Column C
222-14 Reference To New Reference Law In Which The
222-15 Be Amended Reference Appears
222-16 (9) "the (9) "Subchapter A, (9) Section
222-17 Professional Chapter 2254, 271.022, Local
222-18 Services Procurement Government Code" Government Code
222-19 Act (Article 664-4,
222-20 Vernon's Texas Civil
222-21 Statutes)"
222-22 (10) "Sections 2, (10) "Chapter 401" (10) Section
222-23 3, and 5 through 8, 322.007(c),
222-24 Chapter 206, General Government Code
222-25 Laws, Acts of the
222-26 42nd Legislature,
222-27 Regular Session,
223-1 1931 (Articles
223-2 689a-1; 689a-2;
223-3 689a-4; 689a-5
223-4 through 689a-8,
223-5 Vernon's Texas Civil
223-6 Statutes)"
223-7 (11) "the Public (11) "Subchapter A, (11) Sections
223-8 Funds Investment Act Chapter 2256, 105.072, 116.112(b),
223-9 Column A Column B Column C
223-10 Reference To New Reference Law In Which The
223-11 Be Amended Reference Appears
223-12 of 1987 (Article Government Code" 172.009(a) and (b),
223-13 842a-2, Vernon's and 375.096(a)(4),
223-14 Texas Civil Local Government
223-15 Statutes)" Code; and Section
223-16 60.347(a), Water
223-17 Code
223-18 (12) "the Public (12) "Chapter 2257, (12) Sections
223-19 Funds Collateral Act Government Code" 105.031(b),
223-20 (Article 2529d, 105.034(a)(5), and
223-21 Vernon's Texas Civil 105.054, Local
223-22 Statutes)" Government Code
223-23 (13) "Article 3913, (13) "Chapter 603, (13) Sections
223-24 Revised Statutes" Government Code" 5.174(b) and
223-25 6.153(b), Water Code
223-26 (14) "the (14) "Chapter 2054" (14) Section
223-27 Information 466.105(a),
224-1 Resources Management Government Code
224-2 Act (Article
224-3 4413(32j), Revised
224-4 Statutes)"
224-5 Column A Column B Column C
224-6 Reference To New Reference Law In Which The
224-7 Be Amended Reference Appears
224-8 (15) "Article 4591, (15) "Section (15) Sections
224-9 Revised Statutes" 662.021, Government 462.001(6) and
224-10 Code" 571.003(10), Health
224-11 and Safety Code; and
224-12 Section 48.002(9),
224-13 Human Resources Code
224-14 (16) "Chapter 135, (16) "Chapter 617, (16) Section
224-15 Acts of the 50th Government Code" 13.216, Education
224-16 Legislature, 1947 Code; and Section
224-17 (Article 5154c, 155.004, Local
224-18 Vernon's Texas Civil Government Code
224-19 Statutes)"
224-20 (17) "Article 5160, (17) "Chapter 2253, (17) Sections
224-21 Revised Statutes" Government Code" 286.078(c),
224-22 362.013(a), and
224-23 383.013(b), Health
224-24 and Safety Code;
224-25 Sections 212.073,
224-26 252.044(a)(3) and
224-27 (c), 262.032(b),
225-1 Column A Column B Column C
225-2 Reference To New Reference Law In Which The
225-3 Be Amended Reference Appears
225-4 271.059(2), and
225-5 281.048(e), Local
225-6 Government Code; and
225-7 Sections 60.411(d)
225-8 and 65.225, Water
225-9 Code
225-10 (18) "Article 5160, (18) "Chapter 2253, (18) Section
225-11 Revised Civil Government Code" 54.226, Water Code
225-12 Statutes of Texas,
225-13 1925, as amended"
225-14 (19) "Article 5160, (19) "Chapter 2253, (19) Sections
225-15 Revised Civil Government Code" 63.168(b) and
225-16 Statutes of Texas, 63.171(c), Water
225-17 1925" Code
225-18 (20) "the Texas (20) "Chapter 2303" (20) Sections
225-19 Enterprise Zone Act 481.023(b),
225-20 (Article 5190.7, 481.160(b)(5),
225-21 Vernon's Texas Civil 481.195(b)(2),
225-22 Statutes)" 481.372, Government
225-23 Code
225-24 Column A Column B Column C
225-25 Reference To New Reference Law In Which The
225-26 Be Amended Reference Appears
225-27 (21) "Section 3, (21) "Chapter 2303, (21) Section
226-1 Texas Enterprise Government Code" 151.429(e), Tax Code
226-2 Zone Act (Article
226-3 5190.7, Vernon's
226-4 Texas Civil
226-5 Statutes)"
226-6 (22) "the Texas (22) "Chapter 2303, (22) Sections
226-7 Enterprise Zone Act Government Code" 171.1015(a),
226-8 (Article 5190.7, 171.501(a),
226-9 Vernon's Texas Civil 311.0031, 312.2011,
226-10 Statutes)" and 312.4011, Tax
226-11 Code
226-12 (23) "Section 21, (23) "Subchapters E (23) Section
226-13 Texas Enterprise and G, Chapter 2303, 311.010(b), Tax Code
226-14 Zone Act (Article Government Code"
226-15 5190.7, Vernon's
226-16 Texas Civil
226-17 Statutes)"
226-18 (24) "Article 5242, (24) "Section (24) Sections
226-19 Revised Statutes" 2204.101, Government 263.201(a) and
226-20 Column A Column B Column C
226-21 Reference To New Reference Law In Which The
226-22 Be Amended Reference Appears
226-23 Code" 272.002(a)(2), Local
226-24 Government Code
226-25 (25) "Article (25) "Chapter 573, (25) Sections
226-26 5996a, Revised Government Code" 31.0021(a)(1) and
226-27 Statutes" (2), Election Code;
227-1 and Section 6.05(g),
227-2 Tax Code
227-3 (26) "Articles (26) "Chapter 573, (26) Sections
227-4 5996a et seq., Government Code" 141.031(4)(L) and
227-5 Revised Statutes" 252.0032(a),
227-6 Election Code
227-7 (27) "Article (27) "Chapter 573, (27) Sections
227-8 5996h, Revised Government Code" 201.002(3) and
227-9 Statutes" 252.023(d),
227-10 Agriculture Code;
227-11 Articles 19.08,
227-12 30.01, and 35.16(b)
227-13 and (c), and Section
227-14 1(1)(A), Article
227-15 42.141, Code of
227-16 Column A Column B Column C
227-17 Reference To New Reference Law In Which The
227-18 Be Amended Reference Appears
227-19 Criminal Procedure;
227-20 Section 72.001,
227-21 Civil Practice and
227-22 Remedies Code;
227-23 Sections 21.916(a)
227-24 and 86.52(b)(4)(B),
227-25 Education Code;
227-26 Sections
227-27 16.031(b)(3),
228-1 32.054(a),
228-2 33.033(a),
228-3 102.003(c)(2),
228-4 103.001(a)(1), and
228-5 243.007(b)(1),
228-6 Election Code;
228-7 Section 71.01(b)(3),
228-8 Family Code;
228-9 Sections
228-10 193.007(c)(2)(B),
228-11 242.002(6)(B)(i),
228-12 246.002(3)(A),
228-13 Column A Column B Column C
228-14 Reference To New Reference Law In Which The
228-15 Be Amended Reference Appears
228-16 249.001(3), 402.014,
228-17 713.010, and
228-18 713.025(2), Health
228-19 and Safety Code;
228-20 Section
228-21 51.002(2)(A), Human
228-22 Resources Code;
228-23 Sections
228-24 61.001(3)(A) and
228-25 204.083, Labor Code;
228-26 Sections 171.002(c),
228-27 212.017(c), and
229-1 232.0048(c), Local
229-2 Government Code;
229-3 Sections 25.06(b),
229-4 32.441(c), and
229-5 38.01(8), Penal
229-6 Code; Sections
229-7 6.035(a), (b), and
229-8 (d), 6.05(f) and
229-9 (g), 6.412(a) and
229-10 Column A Column B Column C
229-11 Reference To New Reference Law In Which The
229-12 Be Amended Reference Appears
229-13 (b), and 41.69, Tax
229-14 Code; and Sections
229-15 50.023(a)(1),
229-16 50.026(a)(1),
229-17 51.0851(a)(1),
229-18 51.235(a)(4),
229-19 53.0721(a)(1),
229-20 53.089(e),
229-21 54.1231(a)(1), and
229-22 57.262, Water Code
229-23 (28) "Article (28) "Chapter 573" (28) Sections
229-24 5996h, Revised 21.005, 52.011(d),
229-25 Statutes" 62.105(3), 82.066,
229-26 404.011(d),
229-27 411.091(a)(2)(E),
230-1 415.114, and
230-2 496.003(a),
230-3 Government Code
230-4 (29) "the State (29) "Chapter 653, (29) Section
230-5 Employee Bonding Act Government Code" 201.079(d),
230-6 Column A Column B Column C
230-7 Reference To New Reference Law In Which The
230-8 Be Amended Reference Appears
230-9 (Article 6003b, Agriculture Code
230-10 Vernon's Texas Civil
230-11 Statutes)"
230-12 (30) "Chapter 383, (30) "Chapter 653, (30) Sections
230-13 Acts of the 56th Government Code" 11.22(h) and
230-14 Legislature, Regular 11.51(d), Education
230-15 Session, 1959 Code
230-16 (Article 6003b,
230-17 Vernon's Texas Civil
230-18 Statutes)"
230-19 (31) "Section 2, (31) "Chapter 615" (31) Section
230-20 Chapter 86, Acts of 419.032(f),
230-21 the 60th Government Code
230-22 Legislature, Regular
230-23 Session, 1967
230-24 (Article 6228f,
230-25 Vernon's Texas Civil
230-26 Statutes)"
230-27 (32) "Chapter 86, (32) "Chapter 615" (32) Section
231-1 Acts of the 60th 804.001(3)(H),
231-2 Column A Column B Column C
231-3 Reference To New Reference Law In Which The
231-4 Be Amended Reference Appears
231-5 Legislature, Regular Government Code
231-6 Session, 1967
231-7 (Article 6228f,
231-8 Vernon's Texas Civil
231-9 Statutes)"
231-10 (33) "Chapter 86, (33) "Chapter 615, (33) Section
231-11 Acts of the 60th Government Code" 142.003(b), Local
231-12 Legislature, Regular Government Code
231-13 Session, 1967
231-14 (Article 6228f,
231-15 Vernon's Texas Civil
231-16 Statutes)"
231-17 (34) "Article (34) "Chapter 610" (34) Sections
231-18 6252-3d, Revised 811.001(7),
231-19 Statutes" 822.201(b)(2), and
231-20 836.001(11),
231-21 Government Code
231-22 (35) "Chapter 401, (35) "Subchapter C, (35) Section
231-23 Acts of the 60th Chapter 2256, 252.083, Agriculture
231-24 Legislature, Regular Government Code" Code
231-25 Column A Column B Column C
231-26 Reference To New Reference Law In Which The
231-27 Be Amended Reference Appears
232-1 Session, 1967
232-2 (Article 6252-5a,
232-3 Vernon's Texas Civil
232-4 Statutes)"
232-5 (36) "the Texas (36) "Chapter 2102, (36) Section
232-6 Internal Auditing Government Code" 34.24(b), Family
232-7 Act (Article Code
232-8 6252-5d, Vernon's
232-9 Texas Civil
232-10 Statutes)"
232-11 (37) "Section 6A, (37) "Section (37) Section
232-12 Texas Internal 2102.009" 321.013(j),
232-13 Auditing Act Government Code
232-14 (Article 6252-5d,
232-15 Vernon's Texas Civil
232-16 Statutes)"
232-17 (38) "Chapter 421, (38) "Chapter 572, (38) Section
232-18 Acts of the 63rd Government Code" 51.912(a), Education
232-19 Legislature, Regular Code; Section
232-20 Session, 1973 21.004(c), Human
232-21 Column A Column B Column C
232-22 Reference To New Reference Law In Which The
232-23 Be Amended Reference Appears
232-24 (Article 6252-9b, Resources Code;
232-25 Vernon's Texas Civil Sections 159.012(a)
232-26 Statutes)" and 159.034(c),
232-27 Local Government
233-1 Code; and Section
233-2 36.10(a)(3), Penal
233-3 Code
233-4 (39) "Chapter 421, (39) "Chapter 572, (39) Section
233-5 Acts of the 63rd Government Code" 86.52(k), Education
233-6 Legislature, Regular Code
233-7 Session, 1973, as
233-8 amended (Article
233-9 6252-9b, Vernon's
233-10 Texas Civil
233-11 Statutes)"
233-12 (40) "Chapter 421, (40) "Chapter 572" (40) Sections
233-13 Acts of the 63rd 30.004(j),
233-14 Legislature, Regular 305.011(c), and
233-15 Session, 1973 405.018(a)(3)(A),
233-16 (Article 6252-9b, Government Code
233-17 Column A Column B Column C
233-18 Reference To New Reference Law In Which The
233-19 Be Amended Reference Appears
233-20 Vernon's Texas Civil
233-21 Statutes)"
233-22 (41) "the Texas (41) "Chapter 572" (41) Section
233-23 conflict of interest 81.031(a),
233-24 law, Chapter 421, Government Code
233-25 Acts of the 63rd
233-26 Legislature, Regular
233-27 Session, 1973
234-1 (Article 6252-9b,
234-2 Vernon's Texas Civil
234-3 Statutes)"
234-4 (42) "Section 2, (42) "Subchapter A, (42) Section
234-5 Chapter 421, Acts of Chapter 572, 31.401(c), Natural
234-6 the 63rd Government Code" Resources Code
234-7 Legislature, Regular
234-8 Session, 1973
234-9 (Article 6252-9b,
234-10 Vernon's Texas Civil
234-11 Statutes)"
234-12 Column A Column B Column C
234-13 Reference To New Reference Law In Which The
234-14 Be Amended Reference Appears
234-15 (43) "Section 4, (43) "Subchapter B, (43) Section
234-16 Chapter 421, Acts of Chapter 572" 825.212(b),
234-17 the 63rd Government Code
234-18 Legislature, Regular
234-19 Session, 1973
234-20 (Article 6252-9b,
234-21 Vernon's Texas Civil
234-22 Statutes)"
234-23 (44) "Section 1.28, (44) "Subchapter F, (44) Section 11(l),
234-24 Chapter 304, Acts of Chapter 571, Article 42.18, Code
234-25 the 72nd Government Code" of Criminal
234-26 Legislature, Regular Procedure
234-27 Session, 1991
235-1 (Article 6252-9d.1,
235-2 Vernon's Texas Civil
235-3 Statutes)"
235-4 (45) "the Position (45) "Chapter 654" (45) Section
235-5 Classification Act 447.009(d),
235-6 of 1961 (Article Government Code
235-7 6252-11, Vernon's
235-8 Column A Column B Column C
235-9 Reference To New Reference Law In Which The
235-10 Be Amended Reference Appears
235-11 Texas Civil
235-12 Statutes)"
235-13 (46) "Chapter 454, (46) "Subchapter B, (46) Section
235-14 Acts of the 65th Chapter 2254" 465.008(b),
235-15 Legislature, Regular Government Code
235-16 Session, 1977
235-17 (Article 6252-11c,
235-18 Vernon's Texas Civil
235-19 Statutes)"
235-20 (47) "Chapter 454, (47) "Subchapter B, (47) Section
235-21 Acts of the 65th Chapter 2254, 301.053(a), Labor
235-22 Legislature, Regular Government Code" Code; Section
235-23 Session, 1977 31.159(d)(2),
235-24 (Article 6252-11c, Natural Resources
235-25 Vernon's Texas Civil Code
235-26 Statutes)"
235-27 (48) "Chapter 492, (48) "Chapter 655, (48) Section
236-1 Acts of the 69th Government Code" 202.041(a), Labor
236-2 Legislature, Regular Code
236-3 Session, 1985
236-4 Column A Column B Column C
236-5 Reference To New Reference Law In Which The
236-6 Be Amended Reference Appears
236-7 (Article 6252-11g,
236-8 Vernon's Texas Civil
236-9 Statutes)"
236-10 (49) "the (49) "Chapter 2001, (49) Sections
236-11 Administrative Government Code" 12.020(i),
236-12 Procedure and Texas 13.204(d),
236-13 Register Act 13.207(i),
236-14 (Article 6252-13a, 13.2555(c),
236-15 Vernon's Texas Civil 13.306(d),
236-16 Statutes)" 13.356(d),
236-17 14.015(e),
236-18 61.0135(c),
236-19 63.128(a),
236-20 75.0055(c),
236-21 76.076(d),
236-22 76.1555(h),
236-23 76.181(a),
236-24 76.182(a),
236-25 101.007(d),
236-26 101.012(c),
236-27 102.007(d),
237-1 Column A Column B Column C
237-2 Reference To New Reference Law In Which The
237-3 Be Amended Reference Appears
237-4 102.012(c),
237-5 103.006(b),
237-6 125.016(d),
237-7 132.072(c),
237-8 141.128(a), and
237-9 252.028(c),
237-10 Agriculture Code;
237-11 Sections 5.43,
237-12 5.44(b) and (c),
237-13 28.17(a), 32.22(a),
237-14 201.075(a),
237-15 201.53(a),
237-16 203.13(a), and
237-17 206.09(a), Alcoholic
237-18 Beverage Code;
237-19 Section 17.08(d),
237-20 Business & Commerce
237-21 Code; Sections
237-22 21.920(e),
237-23 36.011(c), 61.027,
237-24 61.310(b), and
237-25 Column A Column B Column C
237-26 Reference To New Reference Law In Which The
237-27 Be Amended Reference Appears
238-1 88.524(a), Education
238-2 Code; Sections
238-3 31.045(e) and
238-4 243.011(c), Election
238-5 Code; Section
238-6 14.801, Family Code;
238-7 Sections 33.016(f),
238-8 61.004(g),
238-9 101.007(b),
238-10 142.011(d),
238-11 142.027(b),
238-12 142.028(e),
238-13 146.010(b),
238-14 146.017(b),
238-15 241.058(i) and (r),
238-16 242.068(e),
238-17 242.156(b),
238-18 242.157(e),
238-19 243.011(b),
238-20 244.011(b),
238-21 245.012(b),
238-22 Column A Column B Column C
238-23 Reference To New Reference Law In Which The
238-24 Be Amended Reference Appears
238-25 247.041(b),
238-26 248.051(b), 248.052,
238-27 249.009(b),
239-1 250.004(d) and (f),
239-2 313.005, 341.049(g),
239-3 361.024(e),
239-4 361.063(h),
239-5 361.079(b),
239-6 361.0791(d),
239-7 361.089(d),
239-8 361.184(e),
239-9 361.186(c),
239-10 361.187(c),
239-11 361.191(c),
239-12 361.251(l),
239-13 361.252(h),
239-14 361.322(c),
239-15 361.431(a),
239-16 366.077(b),
239-17 382.017(d),
239-18 382.023(c),
239-19 Column A Column B Column C
239-20 Reference To New Reference Law In Which The
239-21 Be Amended Reference Appears
239-22 382.0561(a),
239-23 382.063(i),
239-24 382.088(h),
239-25 401.054(a),
239-26 401.114(a),
239-27 401.264(a), 401.341,
240-1 401.388(e),
240-2 401.428(c), 402.093,
240-3 403.006, 431.161(c),
240-4 431.207(c),
240-5 431.226(c), 431.242,
240-6 431.244(d)(2) and
240-7 (e), 431.279(c),
240-8 432.013(c), 435.011,
240-9 436.115(a) and (b),
240-10 437.018(i) and (r),
240-11 439.003(c),
240-12 439.004(b),
240-13 440.005(a),
240-14 440.013(d),
240-15 464.014(i),
240-16 Column A Column B Column C
240-17 Reference To New Reference Law In Which The
240-18 Be Amended Reference Appears
240-19 464.019(i) and (r),
240-20 466.027(c),
240-21 466.041(c),
240-22 481.063(h),
240-23 483.003(a), 485.015,
240-24 502.0142(j),
240-25 505.012(i),
240-26 507.011(i),
240-27 571.025(i) and (r),
241-1 578.006(g),
241-2 597.054(c),
241-3 773.052(e),
241-4 773.061(b),
241-5 773.062(c),
241-6 773.117(b), 824.012,
241-7 826.053(b), and
241-8 827.009, Health and
241-9 Safety Code;
241-10 Sections 22.018(a),
241-11 22.019(b),
241-12 32.021(d)(2) and
241-13 Column A Column B Column C
241-14 Reference To New Reference Law In Which The
241-15 Be Amended Reference Appears
241-16 (e)(3),
241-17 32.0215(b)(3),
241-18 32.0281(d) and (e),
241-19 32.034(a),
241-20 32.039(j),
241-21 34.006(e), 42.024,
241-22 42.072(d),
241-23 42.073(d),
241-24 44.035(d),
241-25 50.0065(c)(7)(C),
241-26 and 103.009(b),
241-27 Human Resources
242-1 Code; Sections
242-2 61.058(b),
242-3 407.046(b), 410.003,
242-4 411.049(b),
242-5 413.031(d),
242-6 415.034(a), and
242-7 415.035(a), Labor
242-8 Code; Sections
242-9 375.097(b) and
242-10 Column A Column B Column C
242-11 Reference To New Reference Law In Which The
242-12 Be Amended Reference Appears
242-13 375.124, Local
242-14 Government Code;
242-15 Sections 31.166(h),
242-16 33.207, 33.236(b),
242-17 40.007(b),
242-18 40.160(e),
242-19 40.257(b),
242-20 51.176(a),
242-21 51.186(d),
242-22 51.188(a),
242-23 51.189(c),
242-24 131.049(c), 131.301,
242-25 and 211.033(i) and
242-26 (r), Natural
242-27 Resources Code;
243-1 Section 12.027,
243-2 Parks and Wildlife
243-3 Code; Sections
243-4 111.1042(b),
243-5 151.157(f),
243-6 151.712(g),
243-7 Column A Column B Column C
243-8 Reference To New Reference Law In Which The
243-9 Be Amended Reference Appears
243-10 153.006(c),
243-11 153.0061(d),
243-12 154.1145, and
243-13 155.0595, Tax Code;
243-14 Sections 5.103(c),
243-15 6.101(c), 11.456(c),
243-16 11.502(1), 13.003,
243-17 13.4151(g),
243-18 26.0191(e),
243-19 26.136(h),
243-20 26.3573(j),
243-21 26.404(e),
243-22 27.018(c),
243-23 27.1015(h),
243-24 28.067(h),
243-25 31.008(c),
243-26 31.010(b),
243-27 32.009(c),
244-1 33.007(c),
244-2 34.004(c),
244-3 34.011(h),
244-4 Column A Column B Column C
244-5 Reference To New Reference Law In Which The
244-6 Be Amended Reference Appears
244-7 52.024(e),
244-8 52.053(a),
244-9 66.018(b), 66.020,
244-10 and 66.202(f), Water
244-11 Code
244-12 (50) "the (50) "Chapter 2001" (50) Sections
244-13 Administrative 404.012(b),
244-14 Procedure and Texas 411.067(c),
244-15 Register Act 415.009(c),
244-16 (Article 6252-13a, 419.905(a),
244-17 Vernon's Texas Civil 419.906(a),
244-18 Statutes)" 434.002(b),
244-19 435.003(b),
244-20 441.001(k), 441.166,
244-21 442.002(k),
244-22 444.002(b), 447.002,
244-23 447.004(a) and
244-24 (c)(6), 465.012(c),
244-25 466.160(c), 499.110,
244-26 751.022(b)(8),
244-27 783.007(b), and
245-1 Column A Column B Column C
245-2 Reference To New Reference Law In Which The
245-3 Be Amended Reference Appears
245-4 804.003(b),
245-5 Government Code
245-6 (51) "the (51) "Chapter 2001, (51) Sections
245-7 Administrative Government Code" 146.019(i) and (r),
245-8 Procedure and Texas 241.053(d),
245-9 Register Act 241.0531(c), and
245-10 (Article 6252-13a, 241.059(i) and (r),
245-11 Vernon's Texas Civil Health and Safety
245-12 Statutes) and its Code; Section
245-13 subsequent 71.003(3), Human
245-14 amendments" Resources Code
245-15 (52) "Subsection (52) "Subchapter F, (52) Section
245-16 (c), Section 16, Chapter 2001, 12.020(k),
245-17 Administrative Government Code" Agriculture Code
245-18 Procedure and Texas
245-19 Register Act
245-20 (Article 6252-13a,
245-21 Vernon's Texas Civil
245-22 Statutes)"
245-23 Column A Column B Column C
245-24 Reference To New Reference Law In Which The
245-25 Be Amended Reference Appears
245-26 (53) "Section 19, (53) "Subchapter G, (53) Sections
245-27 Administrative Chapter 2001, 12.020(n),
246-1 Procedure and Texas Government Code" 75.021(f), and
246-2 Register Act 76.1555(n),
246-3 (Article 6252-13a, Agriculture Code;
246-4 Vernon's Texas Civil Sections
246-5 Statutes)" 241.058(n)(1),
246-6 241.059(n)(1),
246-7 361.251(q),
246-8 361.252(n),
246-9 366.0924(j),
246-10 372.004(e),
246-11 382.089(d),
246-12 401.389(e),
246-13 437.018(n)(1),
246-14 464.019(n)(1),
246-15 502.0142(g)(1),
246-16 505.012(f)(1),
246-17 507.011(f)(1), and
246-18 571.025(n)(1),
246-19 Health and Safety
246-20 Column A Column B Column C
246-21 Reference To New Reference Law In Which The
246-22 Be Amended Reference Appears
246-23 Code; Section
246-24 32.039(o), Human
246-25 Resources Code;
246-26 Section 410.255(a),
246-27 Labor Code; Sections
247-1 40.254(g)(4),
247-2 81.0533(e),
247-3 141.015(e), and
247-4 211.033(n)(1),
247-5 Natural Resources
247-6 Code; and Sections
247-7 13.4151(k),
247-8 26.136(l),
247-9 27.1013(e),
247-10 27.1015(l),
247-11 28.067(l),
247-12 29.049(e), and
247-13 34.011(m), Water
247-14 Code
247-15 (54) "Section 19, (54) "Subchapter G, (54) Section
247-16 Administrative Chapter 2001" 500.002(d),
247-17 Column A Column B Column C
247-18 Reference To New Reference Law In Which The
247-19 Be Amended Reference Appears
247-20 Procedure and Texas Government Code
247-21 Register Act
247-22 (Article 6252-13a,
247-23 Vernon's Texas Civil
247-24 Statutes)"
247-25 (55) "Section 19, (55) "Subchapter G, (55) Sections
247-26 Administrative Chapter 2001, 146.019(n)(1) and
247-27 Procedure and Texas Government Code" 241.059(n)(1),
248-1 Register Act Health and Safety
248-2 (Article 6252-13a, Code
248-3 Vernon's Texas Civil
248-4 Statutes), and its
248-5 subsequent
248-6 amendments"
248-7 (56) "Section 17, (56) "Section (56) Section
248-8 Administrative 2001.061, Government 361.0831(a), Health
248-9 Procedure and Texas Code" and Safety Code
248-10 Register Act
248-11 (Article 6252-13a,
248-12 Vernon's Texas Civil
248-13 Column A Column B Column C
248-14 Reference To New Reference Law In Which The
248-15 Be Amended Reference Appears
248-16 Statutes)"
248-17 (57) "Section 18, (57) "Section (57) Section
248-18 Administrative 2001.054, Government 401.427(d), Health
248-19 Procedure and Texas Code" and Safety Code
248-20 Register Act
248-21 (Article 6252-13a,
248-22 Vernon's Texas Civil
248-23 Statutes)"
248-24 (58) "Section 5, (58) "Subchapter B, (58) Section
248-25 Administrative Chapter 2001, 76.1555(b),
248-26 Procedure and Texas Government Code" Agriculture Code;
248-27 Register Act and Section
249-1 (Article 6252-13a, 52.054(a), Water
249-2 Vernon's Texas Civil Code
249-3 Statutes)"
249-4 (59) "Section (59) "Subchapter F, (59) Section
249-5 16(c), Chapter 2001, 76.1555(j),
249-6 Administrative Government Code" Agriculture Code;
249-7 Procedure and Texas Sections 146.019(j),
249-8 Register Act 241.058(j),
249-9 Column A Column B Column C
249-10 Reference To New Reference Law In Which The
249-11 Be Amended Reference Appears
249-12 (Article 6252-13a, 341.049(i),
249-13 Vernon's Texas Civil 437.018(j),
249-14 Statutes)" 464.019(j),
249-15 502.0142(b),
249-16 505.012(b),
249-17 507.011(b), and
249-18 571.025(j), Health
249-19 and Safety Code;
249-20 Sections 81.0533(b),
249-21 141.015(b), and
249-22 211.033(j), Natural
249-23 Resources Code;
249-24 Sections 13.4151(i),
249-25 26.136(j),
249-26 27.1013(b),
249-27 27.1015(j),
250-1 28.067(j),
250-2 29.049(b),
250-3 32.011(g),
250-4 33.009(g), and
250-5 34.011(j), Water
250-6 Column A Column B Column C
250-7 Reference To New Reference Law In Which The
250-8 Be Amended Reference Appears
250-9 Code
250-10 (60) "Section (60) "Subchapter F, (60) Section
250-11 16(c), Chapter 2001, 241.059(j), Health
250-12 Administrative Government Code" and Safety Code
250-13 Procedure and Texas
250-14 Register Act
250-15 (Article 6252-13a,
250-16 Vernon's Texas Civil
250-17 Statutes), and its
250-18 subsequent
250-19 amendments"
250-20 (61) "Subsection (61) "Section (61) Section
250-21 (2) of Section 3, 2001.003, Government 11.86(e), Education
250-22 Administrative Code" Code
250-23 Procedure and Texas
250-24 Register Act
250-25 (Article 6252-13a,
250-26 Vernon's Texas Civil
250-27 Statutes)"
251-1 Column A Column B Column C
251-2 Reference To New Reference Law In Which The
251-3 Be Amended Reference Appears
251-4 (62) "Section 3, (62) "Section (62) Section
251-5 Administrative 2001.003, Government 361.068(b), Health
251-6 Procedure and Texas Code" and Safety Code
251-7 Register Act
251-8 (Article 6252-13a,
251-9 Vernon's Texas Civil
251-10 Statutes)"
251-11 (63) "the (63) "Chapter 2001, (63) Sections
251-12 Administrative Government Code" 21.463 and 86.52(k),
251-13 Procedure and Texas Education Code;
251-14 Register Act, as Sections 50.004(g),
251-15 amended (Article 50.022(b), and
251-16 6252-13a, Vernon's 122.019, Human
251-17 Texas Civil Resources Code;
251-18 Statutes)" Section 191.021(a),
251-19 Natural Resources
251-20 Code; and Sections
251-21 12.052(d) and (e),
251-22 28.028(c), and
251-23 28.030(b), Water
251-24 Code
251-25 Column A Column B Column C
251-26 Reference To New Reference Law In Which The
251-27 Be Amended Reference Appears
252-1 (64) "Section 5(f), (64) "Chapter (64) Sections
252-2 Administrative 2001.031" 417.0041(b),
252-3 Procedure and Texas 419.023(c),
252-4 Register Act 419.054(c), and
252-5 (Article 6252-13a, 419.072(c),
252-6 Vernon's Texas Civil Government Code
252-7 Statutes)"
252-8 (65) "Sections (65) "Chapter 2001, (65) Sections
252-9 12-20, Government Code" 31.006(f),
252-10 Administrative 31.009(d),
252-11 Procedure and Texas 32.008(f), and
252-12 Register Act 32.011(d), Health
252-13 (Article 6252-13a, and Safety Code
252-14 Vernon's Texas Civil
252-15 Statutes)"
252-16 (66) "Sections 13 (66) "Chapter 2001, (66) Sections
252-17 through 20, Government Code" 33.034(c),
252-18 Administrative 33.036(c),
252-19 Procedure and Texas 35.004(f),
252-20 Register Act 35.006(d),
252-21 Column A Column B Column C
252-22 Reference To New Reference Law In Which The
252-23 Be Amended Reference Appears
252-24 (Article 6252-13a, 42.006(b),
252-25 Vernon's Texas Civil 42.008(c),
252-26 Statutes)" 43.006(d), and
252-27 43.009(c), Health
253-1 and Safety Code
253-2 (67) "Section (67) "Section (67) Section
253-3 13(e), 2001.056, Government 50.0223(a)(1), Human
253-4 Administrative Code" Resources Code
253-5 Procedure and Texas
253-6 Register Act
253-7 (Article 6252-13a,
253-8 Vernon's Texas Civil
253-9 Statutes)"
253-10 (68) "Section (68) "Section (68) Section
253-11 18(c), 2001.054, Government 50.0223(a)(2), Human
253-12 Administrative Code" Resources Code
253-13 Procedure and Texas
253-14 Register Act
253-15 (Article 6252-13a,
253-16 Vernon's Texas Civil
253-17 Column A Column B Column C
253-18 Reference To New Reference Law In Which The
253-19 Be Amended Reference Appears
253-20 Statutes)"
253-21 (69) "Subsection (69) "Section (69) Section
253-22 (c), Section 18, 2001.054, Government 85.164, Natural
253-23 Administrative Code" Resources Code
253-24 Procedure and Texas
253-25 Register Act
253-26 (Article 6252-13a,
253-27 Vernon's Texas Civil
254-1 Statutes)"
254-2 (70) "Section 13 (70) "Sections (70) Section
254-3 and Subsection (c) 2001.052 and 12.502, Parks and
254-4 of Section 18 of the 2001.054, Government Wildlife Code
254-5 Administrative Code"
254-6 Procedure and Texas
254-7 Register Act
254-8 (Article 6252-13a,
254-9 Vernon's Texas Civil
254-10 Statutes)"
254-11 (71) "Section (71) "Section (71) Section
254-12 4(a)(2), 2001.004, Government 5.121(a), Water Code
254-13 Column A Column B Column C
254-14 Reference To New Reference Law In Which The
254-15 Be Amended Reference Appears
254-16 Administrative Code"
254-17 Procedure and Texas
254-18 Register Act
254-19 (Article 6252-13a,
254-20 Vernon's Texas Civil
254-21 Statutes)"
254-22 (72) "Section (72) "Section (72) Section
254-23 4(a)(3), 2001.004, Government 5.121(b), Water Code
254-24 Administrative Code"
254-25 Procedure and Texas
254-26 Register Act
254-27 (Article 6252-13a,
255-1 Vernon's Texas Civil
255-2 Statutes)"
255-3 (73) "Section 5 of (73) "Subchapter B, (73) Section
255-4 the Administrative Chapter 2001, 52.026(a), Water
255-5 Procedure and Texas Government Code" Code
255-6 Register Act
255-7 (Article 6252-13a,
255-8 Vernon's Texas Civil
255-9 Column A Column B Column C
255-10 Reference To New Reference Law In Which The
255-11 Be Amended Reference Appears
255-12 Statutes)"
255-13 (74) "Section 12 of (74) "Section (74) Section
255-14 the Administrative 2001.038, Government 52.053(b), Water
255-15 Procedure and Texas Code" Code
255-16 Register Act
255-17 (Article 6252-13a,
255-18 Vernon's Texas Civil
255-19 Statutes)"
255-20 (75) "Section (75) "Subchapter G, (75) Sections
255-21 19(e), Chapter 2001, 151.162(c) and
255-22 Administrative Government Code" 151.163(d), Water
255-23 Procedure and Texas Code
255-24 Register Act
255-25 (Article 6252-13a,
255-26 Vernon's Texas Civil
255-27 Statutes)"
256-1 (76) "Chapter 591, (76) "Chapter 2003" (76) Section
256-2 Acts of the 72nd 411.067(c),
256-3 Legislature, Regular Government Code
256-4 Session, 1991
256-5 Column A Column B Column C
256-6 Reference To New Reference Law In Which The
256-7 Be Amended Reference Appears
256-8 (Article 6252-13f,
256-9 Vernon's Texas Civil
256-10 Statutes)"
256-11 (77) "Chapter 832, (77) "Chapter 554, (77) Section
256-12 Acts of the 68th Government Code" 504.003, Labor Code
256-13 Legislature, Regular
256-14 Session, 1983
256-15 (Article 6252-16a,
256-16 Vernon's Texas Civil
256-17 Statutes)"
256-18 (78) "Chapter 271, (78) "Chapter 551, (78) Section
256-19 Acts of the 60th Government Code" 62.0021(a),
256-20 Legislature, Regular Agriculture Code;
256-21 Session, 1967 Section 35.030(a),
256-22 (Article 6252-17, Education Code;
256-23 Vernon's Texas Civil Section 394.901(b),
256-24 Statutes)" Local Government
256-25 Code; and Sections
256-26 15.006, 15.217,
256-27 16.002, 17.002, and
257-1 Column A Column B Column C
257-2 Reference To New Reference Law In Which The
257-3 Be Amended Reference Appears
257-4 65.109(c), Water
257-5 Code
257-6 (79) "Chapter 271, (79) "Chapter 551" (79) Sections
257-7 Acts of the 60th 441.095(d) and
257-8 Legislature, Regular 825.212(d),
257-9 Session, 1967 Government Code
257-10 (Article 6252-17,
257-11 Vernon's Texas Civil
257-12 Statutes)"
257-13 (80) "Chapter 271, (80) "Chapter 551, (80) Section
257-14 Acts of the 60th Government Code" 54.109(d), Water
257-15 Legislature, Regular Code
257-16 Session, 1967, as
257-17 amended (Article
257-18 6252-17, Vernon's
257-19 Texas Civil
257-20 Statutes)"
257-21 (81) "the open (81) "Chapter 551, (81) Section
257-22 meetings law, Government Code" 86.52(k), Education
257-23 Chapter 271, Acts of Code; and Sections
257-24 Column A Column B Column C
257-25 Reference To New Reference Law In Which The
257-26 Be Amended Reference Appears
257-27 the 60th 50.004(g) and
258-1 Legislature, Regular 122.019, Human
258-2 Session, 1967, as Resources Code
258-3 amended (Article
258-4 6252-17, Vernon's
258-5 Texas Civil
258-6 Statutes)"
258-7 (82) "the open (82) "Chapter 551, (82) Sections
258-8 meetings law, Government Code" 57.11(c),
258-9 Chapter 271, Acts of 61.083(d)(2)(F), and
258-10 the 60th 88.524(a), Education
258-11 Legislature, Regular Code; Sections
258-12 Session, 1967 11.011(c),
258-13 (Article 6252-17, 61.063(b),
258-14 Vernon's Texas Civil 101.007(b),
258-15 Statutes)" 224.018(b),
258-16 262.035(e),
258-17 286.023(c),
258-18 402.021(b),
258-19 504.006(b),
258-20 534.006(b)(5),
258-21 Column A Column B Column C
258-22 Reference To New Reference Law In Which The
258-23 Be Amended Reference Appears
258-24 597.054(c),
258-25 772.106(j),
258-26 772.206(j), and
258-27 772.306(m), Health
259-1 and Safety Code;
259-2 Sections
259-3 50.0065(c)(7)(A),
259-4 115.004(c), Human
259-5 Resources Code;
259-6 Section 401.021(2),
259-7 Labor Code; Sections
259-8 143.007(a) and
259-9 211.0075, Local
259-10 Government Code; and
259-11 Sections 26.404(e),
259-12 32.006(j),
259-13 34.003(i),
259-14 34.004(c),
259-15 52.115(c),
259-16 52.160(f),
259-17 151.072(a), and
259-18 Column A Column B Column C
259-19 Reference To New Reference Law In Which The
259-20 Be Amended Reference Appears
259-21 151.125(b), Water
259-22 Code
259-23 (83) "the open (83) "Chapter 551" (83) Sections
259-24 meetings law, 24.946(a),
259-25 Chapter 271, Acts of 81.021(a),
259-26 the 60th 82.003(a),
259-27 Legislature, Regular 325.011(12),
260-1 Session, 1967 404.012(b),
260-2 (Article 6252-17, 415.009(c),
260-3 Vernon's Texas Civil 434.002(b),
260-4 Statutes)" 435.003(b),
260-5 441.001(k),
260-6 442.002(k),
260-7 444.002(b), and
260-8 466.015(b),
260-9 Government Code
260-10 (84) "the open (84) "Chapter 551, (84) Sections
260-11 meetings law Government Code" 534.009(b) and (c),
260-12 (Article 6252-17, Health and Safety
260-13 Vernon's Texas Civil Code
260-14 Column A Column B Column C
260-15 Reference To New Reference Law In Which The
260-16 Be Amended Reference Appears
260-17 Statutes)"
260-18 (85) "the open (85) "Subchapter C, (85) Section
260-19 meetings law, Chapter 551, 51.095(d), Water
260-20 Section 3A, Chapter Government Code" Code
260-21 271, Acts of the
260-22 60th Legislature,
260-23 Regular Session,
260-24 1967 (Article
260-25 6252-17, Vernon's
260-26 Texas Civil
260-27 Statutes)"
261-1 (86) "the open (86) "Chapter 551, (86) Section
261-2 meetings law, Government Code" 71.003(1), Human
261-3 Chapter 271, Acts of Resources Code
261-4 the 60th
261-5 Legislature, Regular
261-6 Session, 1967
261-7 (Article 6252-17,
261-8 Vernon's Texas Civil
261-9 Statutes), and its
261-10 Column A Column B Column C
261-11 Reference To New Reference Law In Which The
261-12 Be Amended Reference Appears
261-13 subsequent
261-14 amendments"
261-15 (87) "the open (87) "Chapter 551, (87) Section
261-16 meetings act, Government Code" 191.021(a), Natural
261-17 Chapter 271, Acts of Resources Code
261-18 the 60th
261-19 Legislature, Regular
261-20 Session, 1967, as
261-21 amended (Article
261-22 6252-17, Vernon's
261-23 Texas Civil
261-24 Statutes)"
261-25 (88) "the open (88) "Chapter 552, (88) Section
261-26 records law, Chapter Government Code" 131.045(c),
261-27 424, Acts of the Agriculture Code;
262-1 63rd Legislature, Article 60.061(c),
262-2 Regular Session, Code of Criminal
262-3 1973 (Article Procedure; Sections
262-4 6252-17a, Vernon's 35.086 and
262-5 Texas Civil 61.083(d)(2)(F),
262-6 Column A Column B Column C
262-7 Reference To New Reference Law In Which The
262-8 Be Amended Reference Appears
262-9 Statutes)" Education Code;
262-10 Section 1.012(c),
262-11 Election Code;
262-12 Sections 87.002(b),
262-13 87.062(c), 161.0213,
262-14 224.024, 242.049(b)
262-15 and (d), 242.134(d),
262-16 262.035(e),
262-17 361.508(a) and (e),
262-18 370.006(b),
262-19 401.067(a),
262-20 505.006(h),
262-21 506.006(g),
262-22 507.006(h),
262-23 534.006(b)(5), and
262-24 597.054(c), Health
262-25 and Safety Code;
262-26 Section
262-27 50.0065(c)(7)(B),
263-1 Human Resources
263-2 Code; Sections
263-3 Column A Column B Column C
263-4 Reference To New Reference Law In Which The
263-5 Be Amended Reference Appears
263-6 401.021(3) and
263-7 410.105(c), Labor
263-8 Code; Sections
263-9 237.002(e),
263-10 253.007(b), and
263-11 382.015, Local
263-12 Government Code;
263-13 Sections 154.042(d),
263-14 154.051(m),
263-15 154.101(g), and
263-16 155.041(g), Tax
263-17 Code; and Section
263-18 26.404(e), Water
263-19 Code
263-20 (89) "the open (89) "Chapter 552, (89) Section
263-21 records law, Chapter Government Code" 71.003(2), Human
263-22 424, Acts of the Resources Code
263-23 63rd Legislature,
263-24 Regular Session,
263-25 1973 (Article
263-26 6252-17a, Vernon's
263-27 Column A Column B Column C
264-1 Reference To New Reference Law In Which The
264-2 Be Amended Reference Appears
264-3 Texas Civil
264-4 Statutes), and its
264-5 subsequent
264-6 amendments"
264-7 (90) "Chapter 424, (90) "Chapter 552, (90) Sections
264-8 Acts of the 63rd Government Code" 35.008, 51.914,
264-9 Legislature, Regular Education Code;
264-10 Session, 1973 Sections 81.046(b),
264-11 (Article 6252-17a, 82.009(b),
264-12 Vernon's Texas Civil 245.011(d), 361.493,
264-13 Statutes)" Health and Safety
264-14 Code; Sections
264-15 201.003(8)(F),
264-16 201.009(a) and (b),
264-17 202.002(b),
264-18 202.003(b),
264-19 202.006(b),
264-20 203.050(a),
264-21 204.004(c)(3), and
264-22 351.133(d), Local
264-23 Government Code;
264-24 Column A Column B Column C
264-25 Reference To New Reference Law In Which The
264-26 Be Amended Reference Appears
264-27 Section 91.553(a),
265-1 Natural Resources
265-2 Code; Section
265-3 39.06(d), Penal
265-4 Code; and Sections
265-5 15.006, 15.217,
265-6 16.002, 17.002, and
265-7 50.029(b), Water
265-8 Code
265-9 (91) "the open (91) "Chapter 551, (91) Section
265-10 meetings law, Government Code" 51.923(d), Education
265-11 Chapter 424, Acts of Code
265-12 the 63rd
265-13 Legislature, Regular
265-14 Session, 1973
265-15 (Article 6252-17a,
265-16 Vernon's Texas Civil
265-17 Statutes)"
265-18 (92) "Article (92) "Chapter 552, (92) Section
265-19 6252-17a, Revised Government Code" 51.927(i), Education
265-20 Column A Column B Column C
265-21 Reference To New Reference Law In Which The
265-22 Be Amended Reference Appears
265-23 Statutes" Code
265-24 (93) "the Texas (93) "Chapter 552" (93) Section
265-25 open records law, 81.033(a),
265-26 Chapter 424, Acts of Government Code
265-27 the 63rd
266-1 Legislature, 1973
266-2 (Article 6252-17a,
266-3 Vernon's Texas Civil
266-4 Statutes)"
266-5 (94) "the open (94) "Chapter 552" (94) Sections
266-6 records law, Chapter 82.003(a),
266-7 424, Acts of the 325.011(12),
266-8 63rd Legislature, 404.055(a),
266-9 Regular Session, 466.015(b), and
266-10 1973 (Article 466.022, Government
266-11 6252-17a, Vernon's Code
266-12 Texas Civil
266-13 Statutes)"
266-14 (95) "Section 9, (95) "Subchapter F, (95) Section
266-15 Chapter 424, Acts of Chapter 552" 323.014(c),
266-16 Column A Column B Column C
266-17 Reference To New Reference Law In Which The
266-18 Be Amended Reference Appears
266-19 the 63rd Government Code
266-20 Legislature, Regular
266-21 Session, 1973
266-22 (Article 6252-17a,
266-23 Vernon's Texas Civil
266-24 Statutes)"
266-25 (96) "Chapter 424, (96) "Chapter 552" (96) Sections
266-26 Acts of the 63rd 405.031(d),
266-27 Legislature, Regular 441.091(1)(F),
267-1 Session, 1973 441.151(8)(F), and
267-2 (Article 6252-17a, 803.402, Government
267-3 Vernon's Texas Civil Code
267-4 Statutes)"
267-5 (97) "Section (97) "Section (97) Sections
267-6 3(a)(1), Chapter 552.101" 815.503, 825.507(a),
267-7 424, Acts of the 845.115(a), and
267-8 63rd Legislature, 855.115(a),
267-9 Regular Session, Government Code
267-10 1973 (Article
267-11 6252-17a, Vernon's
267-12 Column A Column B Column C
267-13 Reference To New Reference Law In Which The
267-14 Be Amended Reference Appears
267-15 Texas Civil
267-16 Statutes)"
267-17 (98) "Subdivision (98) "Section (98) Section
267-18 (1), Subsection (a), 552.101" 840.402, Government
267-19 Section 3, Chapter Code
267-20 424, Acts of the
267-21 63rd Legislature,
267-22 Regular Session,
267-23 1973 (Article
267-24 6252-17a, Vernon's
267-25 Texas Civil
267-26 Statutes)"
267-27 (99) "Section 9(a) (99) "Section (99) Section
268-1 of the open records 552.261, Government 118.123(e), Local
268-2 law, Chapter 424, Code" Government Code
268-3 Acts of the 63rd
268-4 Legislature, Regular
268-5 Session, 1973
268-6 (Article 6252-17a,
268-7 Vernon's Texas Civil
268-8 Column A Column B Column C
268-9 Reference To New Reference Law In Which The
268-10 Be Amended Reference Appears
268-11 Statutes)"
268-12 (100) "Section 9, (100) "Subchapter (100) Section
268-13 Chapter 424, Acts of F, Chapter 552, 253.007(d), Local
268-14 the 63rd Government Code" Government Code; and
268-15 Legislature, Regular Section 41.461(b),
268-16 Session, 1973 Tax Code
268-17 (Article 6252-17a,
268-18 Vernon's Texas Civil
268-19 Statutes)"
268-20 (101) "Section 3, (101) "Subchapter (101) Section
268-21 Chapter 424, Acts of C, Chapter 552, 192.0031(a), Health
268-22 the 63rd Government Code" and Safety Code; and
268-23 Legislature, Regular Section 26.0151(e),
268-24 Session, 1973 Water Code
268-25 (Article 6252-17a,
268-26 Vernon's Texas Civil
268-27 Statutes)"
269-1 (102) "Article (102) "Chapter (102) Section
269-2 6252-31, Revised 2103" 403.005(b)(1),
269-3 Statutes, as added Government Code
269-4 Column A Column B Column C
269-5 Reference To New Reference Law In Which The
269-6 Be Amended Reference Appears
269-7 by Chapter 461, Acts
269-8 of the 72nd
269-9 Legislature, Regular
269-10 Session, 1991"
269-11 (103) "Article (103) "Chapter (103) Section
269-12 6252-31, Revised 2056, Government 533.032, Health and
269-13 Statutes, as added Code" Safety Code
269-14 by Chapter 384, Acts
269-15 of the 72nd
269-16 Legislature, Regular
269-17 Session, 1991"
269-18 (104) "Chapter 46, (104) "Subchapter (104) Sections
269-19 Acts of the 59th B, Chapter 659" 31.003(b) and
269-20 Legislature, Regular 82.005(b),
269-21 Session, 1965 Government Code
269-22 (Article 6813b,
269-23 Vernon's Texas Civil
269-24 Statutes)"
269-25 (105) "the Travel (105) "Chapter 660" (105) Sections
269-26 Regulations Act of 24.019(a) and
269-27 Column A Column B Column C
270-1 Reference To New Reference Law In Which The
270-2 Be Amended Reference Appears
270-3 1959 (Article 6823a, 43.004(a),
270-4 Vernon's Texas Civil Government Code
270-5 Statutes)"
270-6 (106) "Subsection (106) "Chapter 660" (106) Section
270-7 c, Section 6, Travel 73.003(c),
270-8 Regulations Act of Government Code
270-9 1959 (Article 6823a,
270-10 Vernon's Texas Civil
270-11 Statutes)"
270-12 (107) "the Travel (107) "Chapter 660, (107) Section
270-13 Regulation Act of Government Code" 40.303(h), Natural
270-14 1959 (Article 6823a, Resources Code
270-15 Vernon's Texas Civil
270-16 Statutes)"
270-17 (108) "the Crime (108) "Subchapter (108) Articles
270-18 Victims Compensation B, Chapter 56" 56.02(a)(6),
270-19 Act (Article 8309-1, 56.03(c), 56.07(2),
270-20 Vernon's Texas Civil and 56.08(a)(4),
270-21 Statutes)" Code of Criminal
270-22 Procedure
270-23 Column A Column B Column C
270-24 Reference To New Reference Law In Which The
270-25 Be Amended Reference Appears
270-26 (109) "Section 14, (109) "Article (109) Sections
270-27 Crime Victims 56.54, Code of 497.004(b)(4) and
271-1 Compensation Act Criminal Procedure" 499.051(c)(4),
271-2 (Article 8309-1, Government Code
271-3 Vernon's Texas Civil
271-4 Statutes)"
271-5 (110) "the Crime (110) "Subchapter (110) Section
271-6 Victims Compensation B, Chapter 56, Code 57.002(6), Family
271-7 Act (Article 8309-1, of Criminal Code
271-8 Vernon's Texas Civil Procedure"
271-9 Statutes)"
271-10 (111) "the Crime (111) "Subchapter (111) Article
271-11 Victims Compensation B, Chapter 56" 42.037(i), Code of
271-12 Act (Article 8309-1, Criminal Procedure
271-13 Vernon's Texas Civil
271-14 Statutes) and its
271-15 subsequent
271-16 amendments"
271-17 (112) "Section 3, (112) "Article (112) Articles
271-18 Crime Victims 56.32" 59.01(3) and
271-19 Column A Column B Column C
271-20 Reference To New Reference Law In Which The
271-21 Be Amended Reference Appears
271-22 Compensation Act 59.06(i), Code of
271-23 (Article 8309-1, Criminal Procedure
271-24 Vernon's Texas Civil
271-25 Statutes)"
271-26 ARTICLE 6. CHANGES RELATING TO LOTTERY PROVISIONS
271-27 IN GOVERNMENT CODE
272-1 SECTION 6.01. Section 466.002, Government Code, is amended
272-2 to conform to Section 2, Chapter 284, Acts of the 73rd Legislature,
272-3 Regular Session, 1993, to read as follows:
272-4 Sec. 466.002. DEFINITIONS. In this chapter:
272-5 (1) "Commission" means the Texas Lottery Commission.
272-6 (2) "Director" means the director of the division.
272-7 (3) <(2)> "Division" means the lottery division
272-8 established by the commission under Chapter 467 <in the office of
272-9 the comptroller under this chapter>.
272-10 (4) "Executive director" means the executive director
272-11 of the commission.
272-12 (5) <(3)> "Lottery" means the procedures operated by
272-13 the state under this chapter through which prizes are awarded or
272-14 distributed by chance among persons who have paid, or
272-15 unconditionally agreed to pay, for a chance or other opportunity to
272-16 receive a prize.
272-17 (6) <(4)> "Lottery game" includes a lottery activity.
272-18 (7) <(5)> "Lottery operator" means a person selected
272-19 under Section 466.014(b) to operate a lottery.
272-20 (8) <(6)> "Player" means a person who contributes any
272-21 part of the consideration for a ticket.
272-22 (9) <(7)> "Sales agent" or "sales agency" means a
272-23 person licensed under this chapter to sell tickets.
272-24 (10) <(8)> "Ticket" means any tangible evidence issued
272-25 to provide participation in a lottery game authorized by this
272-26 chapter.
272-27 SECTION 6.02. Section 466.012, Government Code, is amended
273-1 to conform to Section 36, Chapter 284, Acts of the 73rd
273-2 Legislature, Regular Session, 1993, and to correct a reference to
273-3 read as follows:
273-4 Sec. 466.012. DIVISION EMPLOYEES. <(a) Except as otherwise
273-5 provided by law, the director may appoint deputies, assistants,
273-6 other officers and employees, committees, and consultants and may
273-7 prescribe their powers and their expenses. Division employees
273-8 serve at the will of the director.>
273-9 <(b) The director may not employ any person who would be
273-10 denied a license as a sales agent under Section 466.155.>
273-11 <(c)> Division employees are specifically exempted from
273-12 Chapter 654 <the Position Classification Act of 1961 (Article
273-13 6252-11, Vernon's Texas Civil Statutes)>. The director shall set
273-14 the salaries of these employees.
273-15 SECTION 6.03. Section 466.014, Government Code, is amended
273-16 to conform to Sections 4 and 18, Chapter 284, Acts of the 73rd
273-17 Legislature, Regular Session, 1993, to read as follows:
273-18 Sec. 466.014. POWERS AND DUTIES OF COMMISSION AND EXECUTIVE
273-19 <COMPTROLLER,> DIRECTOR<, AND DIVISION>. (a) The commission
273-20 <comptroller> and executive director have broad authority and shall
273-21 exercise strict control and close supervision over all lottery
273-22 games conducted in this state to promote and ensure integrity,
273-23 security, honesty, and fairness in the operation and administration
273-24 of the lottery.
273-25 (b) The executive director may contract with or employ a
273-26 person to perform a function, activity, or service in connection
273-27 with the operation of the lottery as prescribed by the executive
274-1 director. A person with whom the executive director contracts to
274-2 operate a lottery must be eligible for a sales agent license under
274-3 Section 466.155.
274-4 (c) The executive director may award a contract for lottery
274-5 supplies or services, including a contract under Subsection (b),
274-6 pending the completion of any investigation authorized by this
274-7 chapter. A contract awarded under this subsection must include a
274-8 provision permitting the executive director to terminate the
274-9 contract without penalty if the investigation reveals that the
274-10 person to whom the contract is awarded would not be eligible for a
274-11 sales agent license under Section 466.155. <The director's
274-12 authority to award a contract under this subsection expires
274-13 September 1, 1993. This subsection expires January 1, 1995.>
274-14 SECTION 6.04. Sections 466.015 and 466.016, Government Code,
274-15 are amended to conform to Section 4, Chapter 284, Acts of the 73rd
274-16 Legislature, Regular Session, 1993, and to correct references to
274-17 read as follows:
274-18 Sec. 466.015. RULES. (a) The commission <comptroller>
274-19 shall adopt all rules necessary to administer this chapter. The
274-20 executive director may propose rules to be adopted by the
274-21 commission <comptroller>, but the executive director's proposed
274-22 rules have no effect until adopted by the commission <comptroller>.
274-23 (b) The commission <comptroller> shall adopt rules to the
274-24 extent they are not inconsistent with Chapters 551 and 552 <the
274-25 open meetings law, Chapter 271, Acts of the 60th Legislature,
274-26 Regular Session, 1967 (Article 6252-17, Vernon's Texas Civil
274-27 Statutes), and the open records law, Chapter 424, Acts of the 63rd
275-1 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
275-2 Texas Civil Statutes),> governing the:
275-3 (1) security for the lottery and the commission
275-4 <division>, including the development of an internal security plan;
275-5 (2) apportionment of the total revenues from the sale
275-6 of tickets and from all other sources in the amounts provided by
275-7 this chapter;
275-8 (3) enforcement of prohibitions on the sale of tickets
275-9 to or by an individual younger than 18 years of age; and
275-10 (4) enforcement of prohibitions on a person playing a
275-11 lottery game by telephone.
275-12 (c) The commission <comptroller> may adopt rules governing
275-13 the establishment and operation of the lottery, including rules
275-14 governing:
275-15 (1) the type of lottery games to be conducted;
275-16 (2) the price of each ticket;
275-17 (3) the number of winning tickets and amount of the
275-18 prize paid on each winning ticket;
275-19 (4) the frequency of the drawing or selection of a
275-20 winning ticket;
275-21 (5) the number and types of locations at which a
275-22 ticket may be sold;
275-23 (6) the method to be used in selling a ticket;
275-24 (7) the use of vending machines or electronic or
275-25 mechanical devices of any kind, other than machines or devices that
275-26 dispense currency or coins as prizes;
275-27 (8) the manner of paying a prize to the holder of a
276-1 winning ticket;
276-2 (9) the investigation of possible violations of this
276-3 chapter or any rule adopted under this chapter;
276-4 (10) the means of advertising to be used for the
276-5 lottery;
276-6 (11) the qualifications of vendors of lottery services
276-7 or equipment;
276-8 (12) the confidentiality of information relating to
276-9 the operation of the lottery, including:
276-10 (A) trade secrets;
276-11 (B) security measures, systems, or procedures;
276-12 (C) security reports;
276-13 (D) bids or other information regarding the
276-14 commission's <division's> contracts, if disclosure of the
276-15 information would impair the commission's <division's> ability to
276-16 contract for facilities, goods, or services on terms favorable to
276-17 the commission <division>;
276-18 (E) personnel information unrelated to
276-19 compensation, duties, qualifications, or responsibilities; and
276-20 (F) information obtained by commission
276-21 <division> security officers or investigators;
276-22 (13) the development and availability of a model
276-23 agreement governing the division of a prize among multiple
276-24 purchasers of a winning ticket purchased through a group purchase
276-25 or pooling arrangement;
276-26 (14) the criteria to be used in evaluating bids for
276-27 contracts for lottery facilities, goods, and services; or
277-1 (15) any other matter necessary or desirable as
277-2 determined by the commission <comptroller>, to promote and ensure:
277-3 (A) the integrity, security, honesty, and
277-4 fairness of the operation and administration of the lottery; and
277-5 (B) the convenience of players and holders of
277-6 winning tickets.
277-7 Sec. 466.016. ANNUAL REPORT. The commission <comptroller>
277-8 shall make an annual report to the governor and the legislature
277-9 that provides a summary of lottery revenues, prize disbursements,
277-10 and other expenses for the fiscal year preceding the report. The
277-11 report must be in the form and reported in the time provided by the
277-12 General Appropriations Act.
277-13 SECTION 6.05. Subchapter B, Chapter 466, Government Code, is
277-14 amended to conform to Section 5, Chapter 284, Acts of the 73rd
277-15 Legislature, Regular Session, 1993, by adding Section 466.0161 to
277-16 read as follows:
277-17 Sec. 466.0161. REVIEW BY COMPTROLLER. (a) Annually, the
277-18 comptroller shall review the management and operations of the
277-19 lottery. The comptroller may examine books, records, documents,
277-20 things, or persons as necessary for that purpose.
277-21 (b) The comptroller shall report the results of the review
277-22 to the governor, the lieutenant governor, and the speaker of the
277-23 house of representatives.
277-24 SECTION 6.06. Section 466.017, Government Code, is amended
277-25 to conform to Sections 4 and 10, Chapter 284, Acts of the 73rd
277-26 Legislature, Regular Session, 1993, to read as follows:
277-27 Sec. 466.017. AUDITS. (a) The executive director shall
278-1 provide for a certified public accountant to conduct an independent
278-2 audit for each fiscal year of all accounts and transactions of the
278-3 lottery. The certified public accountant may not have, as
278-4 determined by the executive director, a significant financial
278-5 interest in a sales agent, lottery vendor, or lottery operator.
278-6 The certified public accountant shall present an audit report to
278-7 the executive director, the commission <comptroller>, the governor,
278-8 and the legislature not later than April 1 of the year following
278-9 the fiscal year for which the audit was performed. The report must
278-10 contain recommendations to enhance the earnings capability of the
278-11 lottery and improve the efficiency of lottery operations. The
278-12 state auditor may review the results of and working papers related
278-13 to the audit.
278-14 (b) Each lottery operator's and sales agent's records are
278-15 subject to audit by the commission <division, the comptroller,> and
278-16 the state auditor. For the purpose of carrying out this chapter,
278-17 the executive director<, comptroller,> or state auditor may examine
278-18 all books, records, papers, or other objects that the executive
278-19 director<, comptroller,> or state auditor determines are necessary
278-20 for conducting a complete examination under this chapter and may
278-21 also examine under oath any officer, director, or employee of a
278-22 lottery operator or sales agent. The executive director<,
278-23 comptroller,> or state auditor may conduct an examination at the
278-24 principal office or any other office of the lottery operator or
278-25 sales agent or may require the lottery operator or sales agent to
278-26 produce the records at the office of the commission <division,
278-27 comptroller,> or state auditor. If a sales agent refuses to permit
279-1 an examination or to answer any question authorized by this
279-2 subsection, the executive director <comptroller> may summarily
279-3 suspend the license of the sales agent under Section 466.160 until
279-4 the examination is completed as required. Section 321.013(h) does
279-5 not apply to an audit of a lottery operator or sales agent.
279-6 SECTION 6.07. Sections 466.018 and 466.019, Government Code,
279-7 are amended to conform to Section 10, Chapter 284, Acts of the 73rd
279-8 Legislature, Regular Session, 1993, to read as follows:
279-9 Sec. 466.018. Investigations. The attorney general, the
279-10 district attorney for Travis County, or the district attorney,
279-11 criminal district attorney, or county attorney performing the
279-12 duties of district attorney for the county in which the violation
279-13 or alleged violation occurred may investigate a violation or
279-14 alleged violation of this chapter and of the penal laws of this
279-15 state by the commission <division> or its employees, a sales agent,
279-16 a lottery vendor, or a lottery operator.
279-17 Sec. 466.019. Enforcement. (a) The executive director
279-18 <comptroller> or designated personnel of the commission <division>
279-19 may investigate violations of this chapter and violations of the
279-20 rules adopted under this chapter. After conducting investigations,
279-21 the executive director <comptroller>, a person designated by the
279-22 commission <comptroller>, or any law enforcement agency may file a
279-23 complaint with the district attorney of Travis County or with the
279-24 district attorney of the county in which a violation is alleged to
279-25 have occurred.
279-26 (b) The executive director <comptroller> has the
279-27 administrative, enforcement, and collection powers provided by
280-1 Subtitle B, Title 2, Tax Code, in regard to the lottery. For
280-2 purposes of the application of Title 2 of the Tax Code:
280-3 (1) <,> the state's share of proceeds from the sale of
280-4 lottery tickets is treated as if it were a tax; and
280-5 (2) a power granted to the comptroller may be
280-6 exercised by the commission.
280-7 SECTION 6.08. Sections 466.020(a)-(f), Government Code, are
280-8 amended to conform to Section 12, Chapter 284, Acts of the 73rd
280-9 Legislature, Regular Session, 1993, to read as follows:
280-10 (a) The executive director shall maintain a department of
280-11 security in the commission <division>. The executive director
280-12 shall appoint a deputy to administer the department. The deputy
280-13 must be qualified by training and experience in law enforcement or
280-14 security to supervise, direct, and administer the activities of the
280-15 department.
280-16 (b) The executive director may employ security officers or
280-17 investigators as the executive director considers necessary and may
280-18 commission security officers or investigators as peace officers.
280-19 The deputy and all investigators employed by the department of
280-20 security as peace officers must meet the requirements under Chapter
280-21 415 for employment and commission as peace officers.
280-22 (c) A security officer or investigator employed by the
280-23 department of security or a peace officer who is working in
280-24 conjunction with the commission <comptroller> or the Department of
280-25 Public Safety in the enforcement of this chapter, without a search
280-26 warrant, may search and seize a lottery vending machine, lottery
280-27 computer terminal, or other lottery equipment that is located on
281-1 premises for which a person holds a sales agent license issued
281-2 under this chapter.
281-3 (d) The Department of Public Safety, at the commission's
281-4 <comptroller's> request, shall perform a full criminal background
281-5 investigation of a prospective deputy or investigator of the
281-6 department of security. The commission <comptroller> shall
281-7 reimburse the Department of Public Safety for the actual costs of
281-8 an investigation.
281-9 (e) At least once every two years, the executive director
281-10 shall employ an independent firm that is experienced in security,
281-11 including computer security and systems security, to conduct a
281-12 comprehensive study of all aspects of lottery security, including:
281-13 (1) lottery personnel security;
281-14 (2) sales agent security;
281-15 (3) lottery operator and vendor security;
281-16 (4) security against ticket counterfeiting and
281-17 alteration and other means of fraudulent winning;
281-18 (5) security of lottery drawings;
281-19 (6) lottery computer, data communications, database,
281-20 and systems security;
281-21 (7) lottery premises and warehouse security;
281-22 (8) security of distribution of tickets;
281-23 (9) security of validation and payment procedures;
281-24 (10) security involving unclaimed prizes;
281-25 (11) security aspects of each lottery game;
281-26 (12) security against the deliberate placement of
281-27 winning tickets in lottery games that involve preprinted winning
282-1 tickets by persons involved in the production, storage,
282-2 transportation, or distribution of tickets; and
282-3 (13) other security aspects of lottery operations.
282-4 (f) The executive director shall provide the commission
282-5 <comptroller> with a complete report of the security study
282-6 conducted under Subsection (e). The commission <comptroller> shall
282-7 provide the governor and the legislature, before the convening of
282-8 each regular legislative session, with a summary of the security
282-9 study that shows the overall evaluation of the lottery's security.
282-10 SECTION 6.09. Sections 466.021 and 466.022, Government Code,
282-11 are amended to conform to Section 13, Chapter 284, Acts of the 73rd
282-12 Legislature, Regular Session, 1993, and to correct a reference to
282-13 read as follows:
282-14 Sec. 466.021. DEMOGRAPHIC STUDIES. (a) The executive
282-15 director shall, every two years, employ an independent firm
282-16 experienced in demographic analysis to conduct a demographic study
282-17 of lottery players. The study must include the income, age, sex,
282-18 race, education, and frequency of participation of players.
282-19 (b) The executive director shall report the results of the
282-20 demographic study conducted under Subsection (a) to the commission
282-21 <comptroller>, the governor, and the legislature before the
282-22 convening of each regular legislative session.
282-23 Sec. 466.022. Confidential Information. The following
282-24 information is confidential and is exempt from disclosure under
282-25 Chapter 552 <the open records law, Chapter 424, Acts of the 63rd
282-26 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
282-27 Texas Civil Statutes)>:
283-1 (1) security plans and procedures of the commission
283-2 <division or the office of the comptroller> designed to ensure the
283-3 integrity and security of the operation of the lottery;
283-4 (2) information of a nature that is designed to ensure
283-5 the integrity and security of the selection of winning tickets or
283-6 numbers in the lottery, other than information describing the
283-7 general procedures for selecting winning tickets or numbers; and
283-8 (3) the street address and telephone number of a prize
283-9 winner, if the prize winner has not consented to the release of the
283-10 information.
283-11 SECTION 6.10. Section 466.023(b), Government Code, is
283-12 amended to conform to Section 14, Chapter 284, Acts of the 73rd
283-13 Legislature, Regular Session, 1993, to read as follows:
283-14 (b) An investigation report or other document submitted by
283-15 the Department of Public Safety to the commission <division>
283-16 becomes part of the investigative files of the commission
283-17 <division> and is subject to discovery by a person that is the
283-18 subject of the investigation report or other document.
283-19 SECTION 6.11. Sections 466.024(a) and (b), Government Code,
283-20 are amended to conform to Sections 4 and 6, Chapter 284, Acts of
283-21 the 73rd Legislature, Regular Session, 1993, to read as follows:
283-22 (a) The executive director or a lottery operator may not
283-23 establish or operate a lottery game in which the winner is chosen
283-24 on the basis of the outcome of a sports event.
283-25 (b) The commission <comptroller> shall adopt rules
283-26 prohibiting the operation of any game using a video lottery machine
283-27 or machine.
284-1 SECTION 6.12. Sections 466.101-466.104, Government Code, are
284-2 amended to conform to Section 7, Chapter 284, Acts of the 73rd
284-3 Legislature, Regular Session, 1993, to read as follows:
284-4 Sec. 466.101. PROCUREMENT PROCEDURES. (a) The executive
284-5 director may establish procedures for the purchase or lease of
284-6 facilities, goods, and services and make any purchases, leases, or
284-7 contracts that are necessary for carrying out the purposes of this
284-8 chapter. The procedures must, as determined feasible and
284-9 appropriate by the executive director, promote competition to the
284-10 maximum extent possible.
284-11 (b) In all procurement decisions, the executive director
284-12 shall take into account the particularly sensitive nature of the
284-13 lottery and shall act to promote and ensure integrity, security,
284-14 honesty, and fairness in the operation and administration of the
284-15 lottery and the objective of producing revenues for the state
284-16 treasury.
284-17 (c) The procurement procedures adopted by the executive
284-18 director must, as determined feasible and appropriate by the
284-19 executive director, afford any party who is aggrieved by the terms
284-20 of a solicitation or the award of a contract an opportunity to
284-21 protest the executive director's action to the commission
284-22 <comptroller>. The protest procedures must provide for an
284-23 expedient resolution of the protest in order to avoid substantially
284-24 delaying a solicitation or contract award that is necessary for the
284-25 timely implementation of a lottery game. A protest must be in
284-26 writing and be filed with the commission <comptroller> not later
284-27 than 72 hours after receipt of notice of the executive director's
285-1 action.
285-2 (d) A party who is aggrieved by the commission's
285-3 <comptroller's> resolution of a protest under Subsection (c) may
285-4 file an action in the district court of Travis County. The court
285-5 shall give preference to hearings and trials of actions under this
285-6 section. If the party filing the action seeks to enjoin the
285-7 implementation of a solicitation or contract, the party shall post
285-8 a bond that is payable to the state if the party does not prevail
285-9 in the appeal, and is in an amount sufficient to compensate the
285-10 state for the revenue that would be lost due to the delay in
285-11 lottery operations.
285-12 (e) The commission <comptroller> shall require any person
285-13 seeking to contract for goods or services relating to the
285-14 implementation and administration of this chapter to submit to
285-15 competitive bidding procedures in accordance with rules adopted by
285-16 the commission <comptroller>. The procedures must be for the
285-17 purpose of ensuring fairness and integrity.
285-18 Sec. 466.102. LIQUIDATED DAMAGES; PERFORMANCE BOND. A
285-19 contract for the acquisition or provision of facilities, supplies,
285-20 equipment, materials, or services related to the operation of the
285-21 lottery must provide for liquidated damages and a performance bond
285-22 in an amount equal to the executive director's best available
285-23 estimate of the revenue that would be lost if the contractor fails
285-24 to meet deadlines specified in the contract.
285-25 Sec. 466.103. PROHIBITED CONTRACTS. The executive director
285-26 may not award a contract for the purchase or lease of facilities,
285-27 goods, or services related to lottery operations to a person who
286-1 would be denied a license as a sales agent under Section 466.155.
286-2 Sec. 466.104. ASSISTANCE OF GENERAL SERVICES COMMISSION. On
286-3 request of the executive director, the General Services Commission
286-4 shall assist the executive director in:
286-5 (1) acquiring facilities, supplies, materials,
286-6 equipment, and services under the State Purchasing and General
286-7 Services Act (Article 601b, Vernon's Texas Civil Statutes); or
286-8 (2) establishing procedures for the executive
286-9 director's accelerated acquisition of facilities, supplies,
286-10 materials, equipment, and services for the operation of the
286-11 lottery.
286-12 SECTION 6.13. Section 466.105, Government Code, is amended
286-13 to conform to Sections 7 and 36, Chapter 284, Acts of the 73rd
286-14 Legislature, Regular Session, 1993, and to correct references to
286-15 read as follows:
286-16 Sec. 466.105. APPLICABILITY OF OTHER LAW. (a) A contract
286-17 for the acquisition or provision of facilities, supplies,
286-18 equipment, materials, or services related to the operation of the
286-19 lottery is not subject to:
286-20 (1) Chapter 2054 or 2254; or
286-21 (2) the State Purchasing and General Services Act
286-22 (Article 601b, Vernon's Texas Civil <the Information Resources
286-23 Management Act (Article 4413(32j), Revised> Statutes).
286-24 (b) Notwithstanding the provisions of the Public Utility
286-25 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), the
286-26 commission <comptroller> may negotiate rates and execute contracts
286-27 with telecommunications service providers for the interexchange
287-1 services necessary for the operation of the lottery. The
287-2 commission <comptroller> may acquire transmission facilities by
287-3 lease, purchase, or lease-purchase. The acquisition of
287-4 transmission facilities must be done on a competitive bid basis if
287-5 possible.
287-6 SECTION 6.14. Section 466.106(a), Government Code, is
287-7 amended to conform to Section 8, Chapter 284, Acts of the 73rd
287-8 Legislature, Regular Session, 1993, to read as follows:
287-9 (a) In all contracts for lottery equipment, supplies,
287-10 services, and advertising, the commission <division> and each
287-11 lottery operator shall give preference to equipment or supplies
287-12 produced in this state or services or advertising offered by
287-13 bidders from this state, the cost to the state and quality being
287-14 equal.
287-15 SECTION 6.15. Sections 466.107(a) and (c), Government Code,
287-16 are amended to conform to Section 9, Chapter 284, Acts of the 73rd
287-17 Legislature, Regular Session, 1993, to read as follows:
287-18 (a) The executive director<, the division,> and each lottery
287-19 operator shall take positive steps to:
287-20 (1) inform minority businesses of opportunities to:
287-21 (A) provide lottery equipment and supplies to
287-22 the commission <division>;
287-23 (B) provide services, including advertising, to
287-24 the commission <division> for the operation of the lottery; or
287-25 (C) obtain a license to sell lottery tickets;
287-26 (2) waive or modify bond requirements, if feasible;
287-27 (3) award contracts for lottery equipment or supplies
288-1 to minority businesses when possible;
288-2 (4) award contracts for lottery services, including
288-3 advertising, to minority businesses when possible;
288-4 (5) license minority businesses as sales agents;
288-5 (6) monitor the effectiveness of the efforts to
288-6 increase the ability of minority businesses to do business with the
288-7 commission <division>; and
288-8 (7) require all bidders or contractors, when
288-9 appropriate, to include specific plans or arrangements to use
288-10 subcontracts with minority businesses.
288-11 (c) The commission <comptroller> shall annually report to
288-12 the legislature and the governor on the level of minority business
288-13 participation as pertains to both the commission's <division's>
288-14 contracts and the licensing of sales agents. The report must
288-15 include recommendations for the improvement of minority business
288-16 opportunities in lottery-related business.
288-17 SECTION 6.16. Sections 466.108 and 466.109, Government Code,
288-18 are amended to conform to Section 10, Chapter 284, Acts of the 73rd
288-19 Legislature, Regular Session, 1993, to read as follows:
288-20 Sec. 466.108. TELEVISION CONTRACTS. If the drawing or
288-21 selection of winning tickets is televised under a contract with the
288-22 commission <division>, the contract must be awarded by competitive
288-23 bid. The commission <comptroller> shall adopt rules governing the
288-24 competitive bidding process. Money received under the contract
288-25 shall be deposited in the state lottery account established under
288-26 Section 466.355.
288-27 Sec. 466.109. PUBLICITY OF INDIVIDUALS PROHIBITED. (a) A
289-1 state officer <or employee>, including a commission member or <the
289-2 comptroller,> the executive director, or an officer or employee of
289-3 the commission <comptroller's office or the division>, may not
289-4 appear in an advertisement or promotion for the lottery that is
289-5 sponsored by the commission <comptroller's office or the division>
289-6 or in a televised lottery drawing. An advertisement or promotion
289-7 for the lottery may not contain the likeness or name of a state
289-8 officer <or employee>, including a commission member or <the
289-9 comptroller,> the executive director, or an officer or employee of
289-10 the commission <comptroller's office or the division>.
289-11 (b) In connection with providing security for the lottery,
289-12 this section does not prohibit a security officer or investigator
289-13 employed by the commission <division> from appearing in a televised
289-14 lottery drawing or other promotion for the lottery that is
289-15 sponsored by the commission <comptroller's office or the division>.
289-16 (c) Notwithstanding this section, the executive director may
289-17 designate an employee of the commission <division> to participate
289-18 in a promotional event<, the purpose of which is to award a prize>.
289-19 SECTION 6.17. Section 466.110, Government Code, is amended
289-20 to conform to Section 3, Chapter 284, Acts of the 73rd Legislature,
289-21 Regular Session, 1993, to read as follows:
289-22 Sec. 466.110. PROHIBITED ADVERTISEMENTS. The legislature
289-23 intends that advertisements or promotions sponsored by the
289-24 commission <comptroller's office> or the division for the lottery
289-25 not be of a nature that unduly influences any person to purchase a
289-26 lottery ticket or number.
289-27 SECTION 6.18. Sections 466.151(a) and (b), Government Code,
290-1 are amended to conform to Section 4, Chapter 284, Acts of the 73rd
290-2 Legislature, Regular Session, 1993, to read as follows:
290-3 (a) If the executive director authorizes a person who is not
290-4 an employee of the commission <division> to sell tickets, the
290-5 person must be licensed as a sales agent by the commission
290-6 <division>.
290-7 (b) The executive director may establish a provisional
290-8 license or other classes of licenses necessary to regulate and
290-9 administer the quantity and type of lottery games provided at each
290-10 licensed location.
290-11 SECTION 6.19. Section 466.152(a), Government Code, is
290-12 amended to conform to Section 15, Chapter 284, Acts of the 73rd
290-13 Legislature, Regular Session, 1993, to read as follows:
290-14 (a) An applicant for a license under this subchapter must
290-15 apply to the division under rules adopted by the commission
290-16 <comptroller>, provide information necessary to determine the
290-17 applicant's eligibility for a license under Section 466.155, and
290-18 provide other information considered necessary by the commission
290-19 <comptroller>.
290-20 SECTION 6.20. Section 466.154, Government Code, is amended
290-21 to conform to Section 15, Chapter 284, Acts of the 73rd
290-22 Legislature, Regular Session, 1993, to read as follows:
290-23 Sec. 466.154. RULES. The commission <comptroller> shall
290-24 adopt rules under which, before issuing a license to an applicant,
290-25 the director shall consider:
290-26 (1) the financial responsibility and security of the
290-27 applicant and the business or activity in which the applicant is
291-1 engaged;
291-2 (2) the public accessibility of the applicant's place
291-3 of business or activity;
291-4 (3) the sufficiency of existing sales agents to serve
291-5 the public convenience;
291-6 (4) whether individuals under 18 years of age
291-7 constitute a majority of the applicant's customers or as customers
291-8 provide a majority of the applicant's sales volume;
291-9 (5) the volume of expected sales; and
291-10 (6) any other factor that the director considers
291-11 appropriate.
291-12 SECTION 6.21. Sections 466.155(a) and (b), Government Code,
291-13 are amended to conform to Section 16, Chapter 284, Acts of the 73rd
291-14 Legislature, Regular Session, 1993, to read as follows:
291-15 (a) After a hearing, the director shall deny an application
291-16 for a license or the commission <comptroller> shall suspend or
291-17 revoke a license if the director or commission <comptroller>, as
291-18 applicable, finds that the applicant or sales agent:
291-19 (1) is an individual who:
291-20 (A) has been convicted of a felony, criminal
291-21 fraud, gambling or a gambling-related offense, or a misdemeanor
291-22 involving moral turpitude, if less than 10 years has elapsed since
291-23 the termination of the sentence, parole, mandatory supervision, or
291-24 probation served for the offense;
291-25 (B) is or has been a professional gambler; <or>
291-26 (C) is married to <or related in the first
291-27 degree of consanguinity or affinity to> an individual:
292-1 (i) described in Paragraph (A) or (B); or
292-2 (ii) who is currently delinquent in the
292-3 payment of any state tax;
292-4 (D) is an officer or employee of the commission
292-5 or a lottery operator; or
292-6 (E) is a spouse, child, brother, sister, or
292-7 parent residing as a member of the same household in the principal
292-8 place of residence of a person described by Paragraph (D);
292-9 (2) is not an individual, and an individual described
292-10 in Subdivision (1):
292-11 (A) is an officer or director of the applicant
292-12 or sales agent;
292-13 (B) holds more than 10 percent of the stock in
292-14 the applicant or sales agent;
292-15 (C) holds an equitable interest greater than 10
292-16 percent in the applicant or sales agent;
292-17 (D) is a creditor of the applicant or sales
292-18 agent who holds more than 10 percent of the applicant's or sales
292-19 agent's outstanding debt;
292-20 (E) is the owner or lessee of a business that
292-21 the applicant or sales agent conducts or through which the
292-22 applicant will conduct a ticket sales agency;
292-23 (F) shares or will share in the profits, other
292-24 than stock dividends, of the applicant or sales agent; or
292-25 (G) participates in managing the affairs of the
292-26 applicant or sales agent; <or>
292-27 <(H) is an employee of the applicant or sales
293-1 agent who is or will be involved in:>
293-2 <(i) selling tickets; or>
293-3 <(ii) handling money from the sale of
293-4 tickets;>
293-5 (3) is currently delinquent in the payment of any
293-6 state tax;
293-7 (4) is a person whose location for the sales agency
293-8 is:
293-9 (A) a racetrack at which wagering is authorized
293-10 under the Texas Racing Act (Article 179e, Vernon's Texas Civil
293-11 Statutes);
293-12 (B) a location licensed for games of bingo under
293-13 the Bingo Enabling Act (Article 179d, Vernon's Texas Civil
293-14 Statutes);
293-15 (C) on land that is owned by:
293-16 (i) this state; or
293-17 (ii) a political subdivision of this
293-18 state, other than land used as a mass transportation facility that
293-19 is used by commercial carriers; or
293-20 (D) a location for which a person holds a wine
293-21 and beer retailer's permit, mixed beverage permit, mixed beverage
293-22 late hours permit, private club registration permit, or private
293-23 club late hours permit issued under Chapter 25, 28, 29, 32, or 33,
293-24 Alcoholic Beverage Code; or
293-25 (5) has violated this chapter or a rule adopted under
293-26 this chapter.
293-27 (b) If the director proposes to deny an application for a
294-1 license or the commission <comptroller> proposes to suspend or
294-2 revoke a license under this section, the applicant or sales agent
294-3 is entitled to written notice of the time and place of the hearing.
294-4 A notice may be served on an applicant or sales agent personally or
294-5 sent by certified or registered mail, return receipt requested, to
294-6 the person's mailing address as it appears on the commission's
294-7 <division's> records. A notice must be served or mailed not later
294-8 than the 20th day before the date of the hearing. The commission
294-9 shall provide for a formal administrative hearings process.
294-10 SECTION 6.22. Sections 466.156 and 466.157, Government Code,
294-11 are amended to conform to Section 4, Chapter 284, Acts of the 73rd
294-12 Legislature, Regular Session, 1993, to read as follows:
294-13 Sec. 466.156. BOND; INSURANCE. (a) Each sales agent shall
294-14 post a cash bond, surety bond, letter of credit, certificate of
294-15 deposit, or other security approved by the executive director,
294-16 including the contribution of cash to a pooled bond fund
294-17 established by the executive director to protect the state from
294-18 possible losses. The amount of the security shall be determined by
294-19 the executive director and must reflect the possible losses to the
294-20 state from the operation of the sales agent.
294-21 (b) The executive director may also require a sales agent to
294-22 maintain insurance if necessary to protect the interests of the
294-23 state.
294-24 Sec. 466.157. DISPLAY OF LICENSE. As prescribed by rule
294-25 <division rules>, each sales agent shall prominently display the
294-26 license in each place of business or activity at which the sales
294-27 agent sells tickets.
295-1 SECTION 6.23. Section 466.158(b), Government Code, is
295-2 amended to conform to Section 15, Chapter 284, Acts of the 73rd
295-3 Legislature, Regular Session, 1993, to read as follows:
295-4 (b) The commission <comptroller> shall adopt rules for the
295-5 renewal of licenses. The director shall set the fee for a renewal
295-6 of a license in an amount at least sufficient to cover the cost of
295-7 processing the renewal.
295-8 SECTION 6.24. Section 466.160, Government Code, is amended
295-9 to conform to Section 17, Chapter 284, Acts of the 73rd
295-10 Legislature, Regular Session, 1993, and to correct a reference to
295-11 read as follows:
295-12 Sec. 466.160. SUMMARY SUSPENSION OF LICENSE. (a) The
295-13 commission <comptroller> may suspend a sales agent's license
295-14 summarily without notice or hearing if the commission <comptroller>
295-15 finds that the action is necessary to maintain the integrity,
295-16 security, honesty, or fairness of the operation or administration
295-17 of the lottery or to prevent financial loss to the state and:
295-18 (1) the sales agent fails to deposit money received
295-19 from ticket sales under Section 466.351;
295-20 (2) an event occurs that would render the sales agent
295-21 ineligible for a license under Section 466.155;
295-22 (3) the sales agent refuses to permit the executive
295-23 director, the director, the commission <comptroller>, or the state
295-24 auditor to examine the agent's books, records, papers, or other
295-25 objects under Section 466.017(b); or
295-26 (4) the executive director learns the sales agent has
295-27 failed to disclose information that would, if disclosed, render the
296-1 sales agent ineligible for a license under Section 466.155.
296-2 (b) The commission <comptroller> may summarily suspend a
296-3 sales agent's license if proceedings for a preliminary hearing
296-4 before the commission <comptroller> or the commission's
296-5 <comptroller's> representative are initiated simultaneously with
296-6 the summary suspension. The preliminary hearing shall be set for a
296-7 date not later than 10 days after the date of the summary
296-8 suspension, unless the parties agree to a later date.
296-9 (c) At the preliminary hearing, the sales agent must show
296-10 cause why the license should not remain suspended pending a final
296-11 hearing on suspension or revocation. Chapter 2001 <The
296-12 Administrative Procedure and Texas Register Act (Article 6252-13a,
296-13 Vernon's Texas Civil Statutes)> does not apply <to the comptroller>
296-14 in the administration and enforcement of the summary suspension of
296-15 a license under this section. The rules governing a hearing on any
296-16 other license suspension or revocation under this chapter govern a
296-17 final administrative hearing under this subsection.
296-18 (d) To initiate a proceeding to summarily suspend a sales
296-19 agent's license, the commission <comptroller> must serve notice to
296-20 the sales agent informing the agent of the right to a preliminary
296-21 hearing <before the comptroller or the comptroller's
296-22 representative> and of the time and place of the preliminary
296-23 hearing. The notice must be personally served on the sales agent
296-24 or an officer, employee, or agent of the sales agent or sent by
296-25 certified or registered mail, return receipt requested, to the
296-26 sales agent's mailing address as it appears on the commission's
296-27 <division's> records. The notice must state the alleged violations
297-1 that constitute grounds for summary suspension. The suspension is
297-2 effective at the time the notice is served. If notice is served in
297-3 person, the sales agent shall immediately surrender the license to
297-4 the commission <comptroller or to the comptroller's
297-5 representative>. If notice is served by mail, the sales agent
297-6 shall immediately return the license to the commission
297-7 <comptroller>. If the sales agent uses an on-line electronic
297-8 terminal to sell tickets, the director or a lottery operator on the
297-9 instructions of the director may terminate the connection of the
297-10 terminal to the commission's <division's> lottery computer at the
297-11 time:
297-12 (1) the proceeding to summarily suspend the license is
297-13 initiated; or
297-14 (2) the division discovers the sales agent has failed
297-15 to deposit money received from ticket sales, if the sales agent's
297-16 license is being summarily suspended under Subsection (a)(1).
297-17 SECTION 6.25. Section 466.201, Government Code, is amended
297-18 to conform to Section 18, Chapter 284, Acts of the 73rd
297-19 Legislature, Regular Session, 1993, to read as follows:
297-20 Sec. 466.201. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION.
297-21 (a) The commission <comptroller> is entitled to conduct an
297-22 investigation of and is entitled to obtain criminal history record
297-23 information maintained by the Department of Public Safety, the
297-24 Federal Bureau of Investigation Identification Division, or another
297-25 law enforcement agency to assist in the investigation of:
297-26 (1) a sales agent or an applicant for a sales agent
297-27 license;
298-1 (2) a person required to be named in a license
298-2 application;
298-3 (3) a lottery operator or prospective lottery
298-4 operator;
298-5 (4) an employee of a lottery operator or prospective
298-6 lottery operator, if the employee is or will be directly involved
298-7 in lottery operations;
298-8 (5) a person who manufactures or distributes lottery
298-9 equipment or supplies, or a representative of a person who
298-10 manufactures or distributes lottery equipment or supplies offered
298-11 to the lottery;
298-12 (6) a person who has submitted a written bid or
298-13 proposal to the commission <division> in connection with the
298-14 procurement of goods or services by the commission <division>, if
298-15 the amount of the bid or proposal exceeds $500;
298-16 (7) an employee or other person who works for or will
298-17 work for a sales agent or an applicant for a sales agent license;
298-18 (8) a person who proposes to enter into or who has a
298-19 contract with the commission <division> to supply goods or services
298-20 to the commission <division>; or
298-21 (9) if a person described in Subdivisions (1) through
298-22 (8) is not an individual, an individual who:
298-23 (A) is an officer or director of the person;
298-24 (B) holds more than 10 percent of the stock in
298-25 the person;
298-26 (C) holds an equitable interest greater than 10
298-27 percent in the person;
299-1 (D) is a creditor of the person who holds more
299-2 than 10 percent of the person's outstanding debt;
299-3 (E) is the owner or lessee of a business that
299-4 the person conducts or through which the person will conduct
299-5 lottery-related activities;
299-6 (F) shares or will share in the profits, other
299-7 than stock dividends, of the person;
299-8 (G) participates in managing the affairs of the
299-9 person; or
299-10 (H) is an employee of the person who is or will
299-11 be involved in:
299-12 (i) selling tickets; or
299-13 (ii) handling money from the sale of
299-14 tickets.
299-15 (b) The commission <comptroller> shall conduct an
299-16 investigation of and obtain criminal history record information
299-17 maintained by the Department of Public Safety, the Federal Bureau
299-18 of Investigation Identification Division, or another law
299-19 enforcement agency to assist in the investigation of:
299-20 (1) the executive director or a prospective executive
299-21 director <of the division>; or
299-22 (2) an employee or prospective employee of the
299-23 commission <division>.
299-24 (c) Not later than the first anniversary after the date of
299-25 each renewal, the commission <comptroller> shall obtain criminal
299-26 history record information maintained by the Department of Public
299-27 Safety on a sales agent whose license is renewed under Section
300-1 466.158.
300-2 SECTION 6.26. Section 466.202, Government Code, is amended
300-3 to conform to Section 18, Chapter 284, and Section 46(19), Chapter
300-4 790, Acts of the 73rd Legislature, Regular Session, 1993, to read
300-5 as follows:
300-6 Sec. 466.202. FINGERPRINTS. (a) The executive director may
300-7 discharge from employment an employee of the commission <division>
300-8 who fails to provide a complete legible set of fingerprints on
300-9 request. The executive director may refuse to consider a
300-10 prospective employee of the commission <division> who fails to
300-11 provide a complete legible set of fingerprints on request.
300-12 (b) The executive director may deny an application for a
300-13 license or the commission <comptroller> may suspend or revoke a
300-14 license if the applicant or sales agent fails on request to provide
300-15 a complete legible set of fingerprints of<:>
300-16 <(1)> a person required to be named in a license
300-17 application<; or>
300-18 <(2) an employee or other person who works or will
300-19 work for the applicant or sales agent, if the person:>
300-20 <(A) is or will be involved in the sale of
300-21 tickets; or>
300-22 <(B) handles or will handle money from the sale
300-23 of tickets.>
300-24 <(c) All fingerprints submitted to the Department of Public
300-25 Safety must be on a form prescribed by the department>.
300-26 SECTION 6.27. Sections 466.203 and 466.204, Government Code,
300-27 are amended to conform to Section 18, Chapter 284, Acts of the 73rd
301-1 Legislature, Regular Session, 1993, to read as follows:
301-2 Sec. 466.203. DEPARTMENT OF PUBLIC SAFETY ASSISTANCE; COSTS
301-3 OF INVESTIGATION. (a) The executive director may request the
301-4 cooperation of the Department of Public Safety to perform a
301-5 background investigation of a person listed in Section 466.201(a)
301-6 or (b). The executive director shall reimburse the department for
301-7 the actual cost of an investigation.
301-8 (b) The executive director may require a person who is
301-9 subject to investigation to pay all costs of the investigation and
301-10 to provide any information, including fingerprints, necessary to
301-11 carry out the investigation or facilitate access to state or
301-12 federal criminal history record information. Payments made to the
301-13 executive director under this subsection shall be deposited in the
301-14 general revenue fund and may be used to reimburse the Department of
301-15 Public Safety for the actual costs of an investigation.
301-16 (c) Unless otherwise prohibited by law, the Department of
301-17 Public Safety may retain any record or information submitted to it
301-18 under this section. The department shall notify the executive
301-19 director of any change in information provided to the executive
301-20 director when the department learns of the change.
301-21 Sec. 466.204. ACCESS TO INTERNAL REVENUE SERVICE
301-22 INFORMATION. The executive director may obtain information
301-23 relating to a person's qualification for licensing, employment, or
301-24 contracting under this chapter from the Internal Revenue Service
301-25 under a contract between the comptroller and the Internal Revenue
301-26 Service on:
301-27 (1) a sales agent or an applicant for a sales agent
302-1 license;
302-2 (2) an employee or prospective employee of the
302-3 commission <division>;
302-4 (3) a person required to be named in a license
302-5 application;
302-6 (4) a lottery operator or prospective lottery
302-7 operator;
302-8 (5) an employee of a lottery operator or prospective
302-9 lottery operator, if the employee is or will be directly involved
302-10 in lottery operations;
302-11 (6) a person who manufactures or distributes lottery
302-12 equipment or supplies, or a representative of a person who
302-13 manufactures or distributes lottery equipment or supplies offered
302-14 to the lottery;
302-15 (7) a person who has submitted a written bid or
302-16 proposal to the commission <division> in connection with the
302-17 procurement of goods or services by the commission <division>;
302-18 (8) an employee or other person who works for or will
302-19 work for a sales agent or an applicant for a sales agent license;
302-20 or
302-21 (9) a person who proposes to enter into or who has a
302-22 contract with the commission <division> to supply goods or services
302-23 to the commission <division>.
302-24 SECTION 6.28. Section 466.205, Government Code, is amended
302-25 to conform to Section 18, Chapter 284, and Section 46(19), Chapter
302-26 790, Acts of the 73rd Legislature, Regular Session, 1993, to read
302-27 as follows:
303-1 Sec. 466.205. CONFIDENTIAL INFORMATION<; OFFENSE>. (a)
303-2 <All criminal history record information received by the director
303-3 is privileged information and is for the exclusive use of the
303-4 director and employees of the division designated by the director.
303-5 Except on court order or as provided by Subsection (c), the
303-6 information may not be released or otherwise disclosed to any other
303-7 person or agency.>
303-8 <(b)> All information received by the executive director
303-9 from the Internal Revenue Service is confidential and may only be
303-10 used as provided by the contract between the comptroller and the
303-11 Internal Revenue Service under which the information was obtained.
303-12 (b) The commission shall adopt rules governing the custody
303-13 and use of criminal history record information obtained under this
303-14 subchapter. <(c) The director or an employee of the division may
303-15 not provide any person being investigated under this subchapter
303-16 with a copy of the person's criminal history record obtained from
303-17 the Department of Public Safety, the Federal Bureau of
303-18 Investigation Identification Division, or another law enforcement
303-19 agency. This subsection does not prevent the director from
303-20 disclosing to the person the dates and places of arrests, offenses,
303-21 and dispositions contained in the criminal history records.>
303-22 <(d)> The comptroller shall adopt necessary rules governing
303-23 the custody and use of information obtained from the Internal
303-24 Revenue Service under this subchapter.
303-25 <(e) A person commits an offense if the person releases or
303-26 discloses information received by the comptroller under this
303-27 subchapter except on court order or as provided by Subsection (c).
304-1 An offense under this subsection is a Class A misdemeanor.>
304-2 SECTION 6.29. Section 466.251(a), Government Code, is
304-3 amended to conform to Section 19, Chapter 284, Acts of the 73rd
304-4 Legislature, Regular Session, 1993, to read as follows:
304-5 (a) The executive director shall prescribe the form of
304-6 tickets.
304-7 SECTION 6.30. Section 466.252(a), Government Code, is
304-8 amended to conform to Section 19, Chapter 284, Acts of the 73rd
304-9 Legislature, Regular Session, 1993, to read as follows:
304-10 (a) By purchasing a ticket in a particular lottery game, a
304-11 player agrees to abide by and be bound by the commission's
304-12 <division's> rules, including the rules applicable to the
304-13 particular lottery game involved. The player also acknowledges
304-14 that the determination of whether the player is a valid winner is
304-15 subject to:
304-16 (1) the commission's <division's> rules and claims
304-17 procedures, including those developed for the particular lottery
304-18 game involved; and
304-19 (2) any validation tests established by the commission
304-20 <division> for the particular lottery game involved.
304-21 SECTION 6.31. Section 466.253, Government Code, is
304-22 transferred to Subchapters G and I, Chapter 466, Government Code,
304-23 renumbered and revised as Section 466.3051 of Subchapter G and
304-24 Section 466.409 of Subchapter I, and amended to conform to Section
304-25 20, Chapter 284, Acts of the 73rd Legislature, Regular Session,
304-26 1993, to read as follows:
304-27 Sec. 466.3051 <466.253>. SALE OF TICKET TO PERSON YOUNGER
305-1 THAN 18 YEARS. (a) A sales agent or an employee of a sales agent
305-2 commits an offense if the person <may not> intentionally or
305-3 knowingly sells or offers <sell or offer> to sell a ticket to an
305-4 individual that the person knows is younger than 18 years of age.
305-5 (b) A person 18 years of age or older may purchase a ticket
305-6 to give as a gift to another person, including an individual
305-7 younger than 18 years of age.
305-8 (c) An offense under this section is a Class C misdemeanor.
305-9 Sec. 466.409. TREATMENT OF PRIZE PAYABLE ON TICKET PURCHASED
305-10 BY INELIGIBLE PERSON. If an individual listed in Section 466.254
305-11 purchases a ticket or claims or otherwise attempts to collect or
305-12 receive a lottery prize or a share of a lottery prize or an
305-13 individual younger than 18 years of age directly purchases a
305-14 ticket, the individual is not eligible to receive a prize or share
305-15 of a prize, and the prize or share of a prize otherwise payable on
305-16 the ticket is treated as an unclaimed prize as provided by Section
305-17 466.408.
305-18 SECTION 6.32. Section 466.254, Government Code, is amended
305-19 to conform to Section 20, Chapter 284, Acts of the 73rd
305-20 Legislature, Regular Session, 1993, to read as follows:
305-21 Sec. 466.254. PURCHASE <SALE> OF TICKET BY OR PAYMENT OF
305-22 PRIZE TO CERTAIN PERSONS. A person may not purchase <sell> a
305-23 ticket or claim, collect, or receive <pay> a lottery prize or a
305-24 share of a lottery prize if <to another person that> the person
305-25 <knows> is:
305-26 (1) a member, officer, or employee of a person that
305-27 has a contract with the commission <division> to sell or lease
306-1 goods or services used in the lottery;
306-2 (2) a member, officer, or employee of a lottery
306-3 operator;
306-4 (3) an officer or employee of the commission
306-5 <comptroller>; or
306-6 (4) a spouse, child, brother, sister, or parent
306-7 residing as a member of the same household in the principal place
306-8 of residence of a person described by Subdivision (1), (2), or (3).
306-9 SECTION 6.33. Section 466.255, Government Code, is
306-10 transferred to Subchapter G, Chapter 466, Government Code,
306-11 renumbered and revised as Sections 466.3052 and 466.3053, and
306-12 amended to conform to Section 20, Chapter 284, Acts of the 73rd
306-13 Legislature, Regular Session, 1993, to read as follows:
306-14 Sec. 466.3052 <466.255>. SALE OF <CERTAIN> TICKET FOR FOOD
306-15 STAMPS, CREDIT OR DEBIT CARD, OR BY TELEPHONE OR MAIL ORDER
306-16 <PURCHASES PROHIBITED>. (a) A person commits an offense if the
306-17 person intentionally or knowingly sells <may not purchase> a ticket
306-18 and:
306-19 (1) the person accepts <through the use of>:
306-20 (A) a food stamp coupon issued under the food
306-21 stamp program administered under Chapter 33, Human Resources Code,
306-22 as payment; or
306-23 (B) a credit card or a debit card as a source of
306-24 payment;
306-25 (2) the sale is made over the telephone; or
306-26 (3) the sale is made by mail-order sales.
306-27 (b) An offense under this section is a Class C misdemeanor.
307-1 Sec. 466.3053. PURCHASE OF TICKET WITH PROCEEDS OF AFDC
307-2 CHECK OR FOOD STAMPS. (a) A person commits an offense if the
307-3 person intentionally or knowingly purchases <may not pay for> a
307-4 ticket with:
307-5 (1) the proceeds of a check issued as a payment under
307-6 the Aid to Families with Dependent Children program administered
307-7 under Chapter 31, Human Resources Code; or
307-8 (2) a food stamp coupon issued under the food stamp
307-9 program administered under Chapter 33, Human Resources Code.
307-10 (b) An offense under this section is a Class C misdemeanor.
307-11 SECTION 6.34. Subchapter F, Chapter 466, Government Code, is
307-12 amended to conform to Section 19, Chapter 284, Acts of the 73rd
307-13 Legislature, Regular Session, 1993, by adding Section 466.256 to
307-14 read as follows:
307-15 Sec. 466.256. REPRESENTATIONS BY PERSON CLAIMING LOTTERY
307-16 PRIZE. A person claiming or attempting to claim a lottery prize or
307-17 a share of a lottery prize represents that the ticket or other item
307-18 showing that the person is entitled to the prize or share was
307-19 lawfully obtained, is not stolen, forged, or altered, and has not
307-20 previously been redeemed.
307-21 SECTION 6.35. Subchapter G, Chapter 466, Government Code, is
307-22 amended to conform to Sections 11 and 25, Chapter 284, Acts of the
307-23 73rd Legislature, Regular Session, 1993, by adding Sections
307-24 466.3011 and 466.3012 to read as follows:
307-25 Sec. 466.3011. VENUE. Venue is proper in Travis County or
307-26 any county in which venue is proper under Chapter 13, Code of
307-27 Criminal Procedure, for:
308-1 (1) an offense under this chapter;
308-2 (2) an offense under the Penal Code, if the accused:
308-3 (A) is a lottery operator, lottery vendor, sales
308-4 agent, or employee of the division; and
308-5 (B) is alleged to have committed the offense
308-6 while engaged in lottery activities; or
308-7 (3) an offense that involves property consisting of or
308-8 including lottery tickets under Title 7 or 11, Penal Code.
308-9 Sec. 466.3012. AGGREGATION OF AMOUNTS INVOLVED. When
308-10 amounts are claimed, attempted to be claimed, or obtained in
308-11 violation of this chapter pursuant to one scheme or continuing
308-12 course of conduct, whether from the same or several sources, the
308-13 conduct may be considered as one offense and the amounts aggregated
308-14 in determining the grade of the offense.
308-15 SECTION 6.36. Section 466.302(a), Government Code, is
308-16 amended to conform to Section 20, Chapter 284, Acts of the 73rd
308-17 Legislature, Regular Session, 1993, to read as follows:
308-18 (a) A person commits an offense if the person intentionally
308-19 or knowingly sells a ticket at a price the person knows is greater
308-20 than that fixed by the commission <division> or by the lottery
308-21 operator authorized to set that price.
308-22 SECTION 6.37. Section 466.303(b), Government Code, is
308-23 amended to conform to Section 20, Chapter 284, Acts of the 73rd
308-24 Legislature, Regular Session, 1993, to read as follows:
308-25 (b) A lottery operator may sell tickets to a sales agent. A
308-26 person who is not a sales agent may distribute tickets as premiums
308-27 to customers, employees, or other persons who deal with the person
309-1 if no purchase <or service> is required to entitle the recipient to
309-2 the ticket. A qualified organization as defined in Section 2,
309-3 Charitable Raffle Enabling Act (Article 179f, Revised Statutes, as
309-4 added by Chapter 957, Acts of the 71st Legislature, Regular
309-5 Session, 1989), may distribute tickets as a prize in a raffle
309-6 authorized by that Act.
309-7 SECTION 6.38. Subchapter G, Chapter 466, Government Code, is
309-8 amended to conform to Section 20, Chapter 284, Acts of the 73rd
309-9 Legislature, Regular Session, 1993, by adding Section 466.3054 to
309-10 read as follows:
309-11 Sec. 466.3054. GROUP PURCHASE ARRANGEMENTS. (a) A person
309-12 commits an offense if, for financial gain, the person establishes
309-13 or promotes a group purchase or pooling arrangement under which
309-14 tickets are purchased on behalf of the group or pool and any prize
309-15 is divided among the members of the group or pool, and the person
309-16 intentionally or knowingly:
309-17 (1) uses any part of the funds solicited or accepted
309-18 for a purpose other than purchasing tickets on behalf of the group
309-19 or pool; or
309-20 (2) retains a share of any prize awarded as
309-21 compensation for establishing or promoting the group purchase or
309-22 pooling arrangement.
309-23 (b) An offense under this section is a felony of the third
309-24 degree.
309-25 SECTION 6.39. Section 466.308, Government Code, is amended
309-26 to conform to Section 21, Chapter 284, Acts of the 73rd
309-27 Legislature, Regular Session, 1993, to read as follows:
310-1 Sec. 466.308. CLAIMING LOTTERY PRIZE BY FRAUD. (a) A
310-2 person commits an offense if the person intentionally or knowingly:
310-3 (1) claims a lottery prize or a share of a lottery
310-4 prize by means of fraud, deceit, or misrepresentation; or
310-5 (2) aids or agrees to aid another person or persons to
310-6 claim a lottery prize or a share of a lottery prize by means of
310-7 fraud, deceit, or misrepresentation.
310-8 (b) In this section, "claim" includes an attempt to claim,
310-9 without regard to whether the attempt is successful.
310-10 (c) An offense under this section is a Class A misdemeanor
310-11 unless it is shown on the trial of the offense that:
310-12 (1) the amount claimed <or attempted to be claimed> is
310-13 greater than $200 but not more than $10,000, in which event the
310-14 offense is a felony of the third degree;
310-15 (2) the amount claimed <or attempted to be claimed> is
310-16 greater than $10,000, in which event the offense is a felony of the
310-17 second degree; or
310-18 (3) the person has previously been convicted of an
310-19 offense under Section 466.306, 466.307, 466.309, 466.310, or this
310-20 section, in which event the offense is a felony of the third
310-21 degree, unless the offense is designated as a felony of the second
310-22 degree under Subdivision (2).
310-23 SECTION 6.40. Section 466.311(b), Government Code, is
310-24 amended to conform to Section 22, Chapter 284, Acts of the 73rd
310-25 Legislature, Regular Session, 1993, to read as follows:
310-26 (b) A person commits an offense if the person knowingly
310-27 refuses to produce for inspection by the director, executive
311-1 director, commission <comptroller>, or state auditor a book,
311-2 record, or document required to be maintained or made by this
311-3 chapter or a rule adopted under this chapter.
311-4 SECTION 6.41. Section 466.312(a), Government Code, is
311-5 amended to conform to Section 23, Chapter 284, Acts of the 73rd
311-6 Legislature, Regular Session, 1993, to read as follows:
311-7 (a) A person commits an offense if the person intentionally
311-8 or<,> knowingly<, recklessly, or with criminal negligence> makes a
311-9 material and false, incorrect, or deceptive statement to a person
311-10 conducting an investigation or exercising discretion under this
311-11 chapter or a rule adopted under this chapter.
311-12 SECTION 6.42. Sections 466.314(a) and (b), Government Code,
311-13 are amended to conform to Section 24, Chapter 284, Acts of the 73rd
311-14 Legislature, Regular Session, 1993, to read as follows:
311-15 (a) A commission member, the executive director <The
311-16 comptroller, the state treasurer>, the director, or an employee of
311-17 the division may not knowingly accept a gift or political
311-18 contribution from:
311-19 (1) a person that has a significant financial interest
311-20 in the lottery;
311-21 (2) a person related in the first degree of
311-22 consanguinity or affinity to a person that has a significant
311-23 financial interest in the lottery;
311-24 (3) a person that owns more than a 10 percent interest
311-25 in an entity that has a significant financial interest in the
311-26 lottery;
311-27 (4) a political committee that is directly
312-1 established, administered, or controlled, in whole or in part, by a
312-2 person that has a significant financial interest in the lottery; or
312-3 (5) a person who, within the two years preceding the
312-4 date of the gift or contribution, won a lottery prize exceeding
312-5 $600 in amount or value.
312-6 (b) A person may not knowingly make a gift or political
312-7 contribution to a commission member, the executive director <the
312-8 comptroller, the state treasurer>, the director, or an employee of
312-9 the division if the person:
312-10 (1) has a significant financial interest in the
312-11 lottery;
312-12 (2) is related in the first degree of consanguinity or
312-13 affinity to a person that has a significant financial interest in
312-14 the lottery;
312-15 (3) owns more than a 10 percent interest in an entity
312-16 that has a significant financial interest in the lottery;
312-17 (4) is a political committee that is directly
312-18 established, administered, or controlled, in whole or in part, by a
312-19 person that has a significant financial interest in the lottery;
312-20 or
312-21 (5) within the two years preceding the date of the
312-22 gift or contribution, won a lottery prize exceeding $600 in amount
312-23 or value.
312-24 SECTION 6.43. Section 466.315, Government Code, is amended
312-25 to conform to Sections 24 and 36, Chapter 284, Acts of the 73rd
312-26 Legislature, Regular Session, 1993, to read as follows:
312-27 Sec. 466.315. GIFT OR POLITICAL CONTRIBUTION TO FORMER
313-1 OFFICER OR EMPLOYEE. (a) A former commission member, former
313-2 executive director <comptroller, former state treasurer>, former
313-3 director, or former employee of the division may not, before the
313-4 second anniversary of the date that the person's service in office
313-5 or employment with the division ceases, knowingly accept a gift or
313-6 political contribution from:
313-7 (1) a person that has a significant financial interest
313-8 in the lottery;
313-9 (2) a person related in the first degree of
313-10 consanguinity or affinity to a person that has a significant
313-11 financial interest in the lottery;
313-12 (3) a person that owns more than a 10 percent interest
313-13 in an entity that has a significant financial interest in the
313-14 lottery;
313-15 (4) a political committee that is directly
313-16 established, administered, or controlled, in whole or in part, by a
313-17 person that has a significant financial interest in the lottery; or
313-18 (5) a person who, within the two years preceding the
313-19 date of the gift or contribution, won a lottery prize exceeding
313-20 $600 in amount or value.
313-21 (b) A person may not knowingly make a gift or political
313-22 contribution to a former commission member, former executive
313-23 director <comptroller, former state treasurer>, former director, or
313-24 former employee of the division before the second anniversary of
313-25 the date that the person's service in office or employment with the
313-26 division ceases, if the person:
313-27 (1) has a significant financial interest in the
314-1 lottery;
314-2 (2) is related in the first degree of consanguinity or
314-3 affinity to a person that has a significant financial interest in
314-4 the lottery;
314-5 (3) owns more than a 10 percent interest in an entity
314-6 that has a significant financial interest in the lottery;
314-7 (4) is a political committee that is directly
314-8 established, administered, or controlled, in whole or in part, by a
314-9 person that has a significant financial interest in the lottery;
314-10 or
314-11 (5) within the two years preceding the date of the
314-12 gift or contribution, won a lottery prize exceeding $600 in amount
314-13 or value.
314-14 (c) <This section does not apply to a former comptroller or
314-15 former state treasurer who left office on or before August 10,
314-16 1991. This section does not apply to a person who makes a gift or
314-17 political contribution to a former comptroller or former state
314-18 treasurer if the former comptroller or former state treasurer left
314-19 office on or before August 10, 1991.>
314-20 <(d)> A person commits an offense if the person violates
314-21 this section. An offense under this section is a Class A
314-22 misdemeanor.
314-23 SECTION 6.44. Section 466.316, Government Code, is amended
314-24 to conform to Sections 24 and 36, Chapter 284, Acts of the 73rd
314-25 Legislature, Regular Session, 1993, to read as follows:
314-26 Sec. 466.316. REPRESENTATION BY FORMER OFFICER OR EMPLOYEE.
314-27 (a) A former commission member, former executive director
315-1 <comptroller, former state treasurer>, or former director may not:
315-2 (1) for compensation, represent a person that has made
315-3 or intends to make a bid to operate the lottery before the
315-4 commission <comptroller> before the second anniversary of the date
315-5 that the person's service in office or employment with the division
315-6 ceases;
315-7 (2) represent any person or receive compensation for
315-8 services rendered on behalf of any person regarding a particular
315-9 matter in which the former officer or employee participated during
315-10 the period of service or employment with the division, either
315-11 through personal involvement or because the matter was within the
315-12 scope of the officer's or employee's official responsibility; or
315-13 (3) for compensation, communicate directly with a
315-14 member of the legislative branch to influence legislation on behalf
315-15 of a person that has a significant financial interest in the
315-16 lottery, before the second anniversary of the date that the
315-17 person's service in office or employment with the division ceases.
315-18 (b) <This section does not apply to a former comptroller or
315-19 former state treasurer who left office on or before August 10,
315-20 1991.>
315-21 <(c)> A person commits an offense if the person violates
315-22 this section. An offense under this section is a Class A
315-23 misdemeanor.
315-24 SECTION 6.45. Section 466.351(b), Government Code, is
315-25 amended to conform to Section 26, Chapter 284, Acts of the 73rd
315-26 Legislature, Regular Session, 1993, to read as follows:
315-27 (b) The director may require sales agents to establish
316-1 separate electronic funds transfer accounts for the purposes of
316-2 depositing money from ticket sales, making payments to the
316-3 division, and receiving payments from the division. The commission
316-4 <comptroller> by rule shall establish the procedures for depositing
316-5 money from ticket sales into electronic funds transfer accounts, as
316-6 well as other procedures regarding the handling of money from
316-7 ticket sales.
316-8 SECTION 6.46. Section 466.354(b), Government Code, is
316-9 amended to conform to Section 27, Chapter 284, Acts of the 73rd
316-10 Legislature, Regular Session, 1993, to read as follows:
316-11 (b) The state treasurer periodically shall file reports with
316-12 the executive director providing information regarding the revenue
316-13 credited to the state lottery account, the investments of the money
316-14 in the account, and the distributions made from the account.
316-15 SECTION 6.47. Section 466.355(b), Government Code, is
316-16 amended to conform to Section 1, Chapter 25 and Section 27, Chapter
316-17 284, Acts of the 73rd Legislature, Regular Session, 1993, to read
316-18 as follows:
316-19 (b) Money in the state lottery account may be used only for
316-20 the following purposes and shall be distributed as follows:
316-21 (1) the payment of prizes to the holders of winning
316-22 tickets;
316-23 (2) the payment of costs incurred in the operation and
316-24 administration of the lottery, including any fees received by a
316-25 lottery operator, provided that the costs incurred in a fiscal
316-26 biennium may not exceed an amount equal to 15 percent of the gross
316-27 revenue accruing from the sale of tickets in that biennium;
317-1 (3) the establishment of a pooled bond fund, lottery
317-2 prize reserve fund, unclaimed prize fund, and prize payment account
317-3 <transfer of amounts to the state lottery stabilization fund as
317-4 provided by Section 466.356>; and
317-5 (4) the balance, after creation of a reserve
317-6 sufficient to pay the amounts needed or estimated to be needed
317-7 under <provided by> Subdivisions (1) through (3) <and (2)>, to be
317-8 transferred to the unobligated portion of the general revenue fund,
317-9 on or before the 15th day of each month.
317-10 SECTION 6.48. Sections 466.407(a) and (c), Government Code,
317-11 are amended to conform to Section 29, Chapter 284, Acts of the 73rd
317-12 Legislature, Regular Session, 1993, to read as follows:
317-13 (a) The executive director shall deduct the amount of a
317-14 delinquent tax or other money from the winnings of a person who has
317-15 been finally determined to be:
317-16 (1) delinquent in the payment of a tax or other money
317-17 collected by the comptroller, the state treasurer, or the Texas
317-18 Alcoholic Beverage Commission;
317-19 (2) delinquent in making child support payments
317-20 administered or collected by the attorney general; <or>
317-21 (3) in default on a loan made under Chapter 52,
317-22 Education Code; or
317-23 (4) in default on a loan guaranteed under Chapter 57,
317-24 Education Code.
317-25 (c) The attorney general, comptroller, state treasurer,
317-26 Texas Alcoholic Beverage Commission, Texas Higher Education
317-27 Coordinating Board, and Texas Guaranteed Student Loan Corporation
318-1 shall each provide the executive director with a report of persons
318-2 who have been finally determined to be delinquent in the payment of
318-3 a tax or other money collected by the agency. The commission
318-4 <comptroller> shall adopt rules regarding the form and frequency of
318-5 reports under this subsection.
318-6 SECTION 6.49. Section 467.025(c), Government Code, is
318-7 amended to correct a reference to read as follows:
318-8 (c) In this section, "person that has a significant
318-9 financial interest in the lottery" has the meaning assigned by
318-10 Section 466.301 <4.06, State Lottery Act (Article 179g, Vernon's
318-11 Texas Civil Statutes)>.
318-12 SECTION 6.50. Section 467.032(b), Government Code, is
318-13 amended to correct a reference to read as follows:
318-14 (b) The executive director holds office at the will of the
318-15 commission and is specifically exempted from Chapter 654 <the
318-16 Position Classification Act of 1961 (Article 6252-11, Vernon's
318-17 Texas Civil Statutes)>.
318-18 SECTION 6.51. Section 467.033, Government Code, is amended
318-19 to correct a reference to read as follows:
318-20 Sec. 467.033. Division Directors. The executive director
318-21 shall employ a director to oversee each division. A division
318-22 director serves at the will of the executive director and is
318-23 specifically exempted from Chapter 654 <the Position Classification
318-24 Act of 1961 (Article 6252-11, Vernon's Texas Civil Statutes)>.
318-25 SECTION 6.52. Sections 467.101(a) and (c), Government Code,
318-26 are amended to correct references to read as follows:
318-27 (a) The commission has broad authority and shall exercise
319-1 strict control and close supervision over all activities authorized
319-2 and conducted in this state under:
319-3 (1) the Bingo Enabling Act (Article 179d, Vernon's
319-4 Texas Civil Statutes); and
319-5 (2) Chapter 466 <the State Lottery Act (Article 179g,
319-6 Vernon's Texas Civil Statutes)>.
319-7 (c) The commission also has the powers and duties granted
319-8 under:
319-9 (1) the Bingo Enabling Act (Article 179d, Vernon's
319-10 Texas Civil Statutes); and
319-11 (2) Chapter 466 <the State Lottery Act (Article 179g,
319-12 Vernon's Texas Civil Statutes)>.
319-13 SECTION 6.53. (a) Sections 466.011 and 466.013, Government
319-14 Code, are repealed to conform to Section 36, Chapter 284, Acts of
319-15 the 73rd Legislature, Regular Session, 1993.
319-16 (b) Section 466.356, Government Code, is repealed to conform
319-17 to Section 2, Chapter 25, Acts of the 73rd Legislature, Regular
319-18 Session, 1993.
319-19 SECTION 6.54. Section 411.108, Government Code, is amended
319-20 to conform to Chapter 284, Acts of the 73rd Legislature, Regular
319-21 Session, 1993, and to correct a reference to read as follows:
319-22 Sec. 411.108. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:
319-23 TEXAS LOTTERY COMMISSION <COMPTROLLER OF PUBLIC ACCOUNTS>. (a)
319-24 The Texas Lottery Commission <comptroller> is entitled to obtain
319-25 from the department criminal history record information maintained
319-26 by the department that relates to a person who, under Chapter 466
319-27 <the State Lottery Act (Article 179g, Vernon's Texas Civil
320-1 Statutes)>, is:
320-2 (1) a sales agent or an applicant for a sales agent
320-3 license;
320-4 (2) a person required to be named in a license
320-5 application;
320-6 (3) a lottery operator or prospective lottery
320-7 operator;
320-8 (4) an employee of a lottery operator or prospective
320-9 lottery operator, if the employee is or will be directly involved
320-10 in lottery operations;
320-11 (5) a person who manufactures or distributes lottery
320-12 equipment or supplies or a representative of a person who
320-13 manufactures or distributes lottery equipment or supplies offered
320-14 to the lottery;
320-15 (6) a person who has submitted a written bid or
320-16 proposal to the commission <division> in connection with the
320-17 procurement of goods or services by the commission <division>, if
320-18 the amount of the bid or proposal exceeds $500;
320-19 (7) an employee or other person who works for or will
320-20 work for a sales agent or an applicant for a sales agent license;
320-21 (8) a person who proposes to enter into or who has a
320-22 contract with the commission <division> to supply goods or services
320-23 to the commission <division>;
320-24 (9) if a person described in Subdivisions (1) through
320-25 (8) of this section is not an individual, an individual who:
320-26 (A) is an officer or director of the person;
320-27 (B) holds more than 10 percent of the stock in
321-1 the person;
321-2 (C) holds an equitable interest greater than 10
321-3 percent in the person;
321-4 (D) is a creditor of the person who holds more
321-5 than 10 percent of the person's outstanding debt;
321-6 (E) is the owner or lessee of a business that
321-7 the person conducts or through which the person will conduct
321-8 lottery-related activities;
321-9 (F) shares or will share in the profits, other
321-10 than stock dividends, of the person;
321-11 (G) participates in managing the affairs of the
321-12 person; or
321-13 (H) is an employee of the person who is or will
321-14 be involved in:
321-15 (i) selling tickets; or
321-16 (ii) handling money from the sale of
321-17 tickets;
321-18 (10) the executive director or a prospective executive
321-19 director of the commission <lottery division>;
321-20 (11) an employee or prospective employee of the
321-21 commission <lottery division>; or
321-22 (12) a sales agent whose license is renewed under
321-23 Section 466.158 <3.01(h) of that Act>.
321-24 (b) Criminal history record information obtained by the
321-25 commission <comptroller> under Subsection (a) may not be released
321-26 or disclosed to any person except on court order or as provided by
321-27 Subsection (c).
322-1 (c) The commission <comptroller> is not prohibited from
322-2 disclosing to the person who is the subject of the criminal history
322-3 record information the dates and places of arrests, offenses, and
322-4 dispositions contained in the criminal history record information.
322-5 SECTION 6.55. The following provisions of the Acts of the
322-6 73rd Legislature, Regular Session, 1993, are repealed:
322-7 (1) Chapter 25; and
322-8 (2) Sections 2-29, Chapter 284.
322-9 ARTICLE 7. CHANGES RELATING TO CERTAIN CRIMINAL JUSTICE
322-10 PROVISIONS IN GOVERNMENT CODE AND CODE OF CRIMINAL PROCEDURE
322-11 SECTION 7.01. Subtitle G, Title 4, Government Code, is
322-12 amended by adding Chapter 509 to read as follows:
322-13 CHAPTER 509. COMMUNITY JUSTICE ASSISTANCE DIVISION
322-14 Sec. 509.001. DEFINITIONS. In this chapter:
322-15 (1) "Community corrections facility" means a physical
322-16 structure, established by a judicial district after authorization
322-17 of the establishment of the structure has been included in the
322-18 local community justice plan, that is operated by a department or
322-19 operated for a department by an entity under contract with the
322-20 department, for the purpose of confining persons placed on
322-21 community supervision and providing services and programs to modify
322-22 criminal behavior, deter criminal activity, protect the public, and
322-23 restore victims of crime. The term includes:
322-24 (A) a restitution center;
322-25 (B) a court residential treatment facility;
322-26 (C) a substance abuse treatment facility;
322-27 (D) a custody facility or boot camp;
323-1 (E) a facility for an offender with a mental
323-2 impairment, as defined by Section 614.001, Health and Safety Code;
323-3 (F) an intermediate sanction facility; and
323-4 (G) a state jail felony facility.
323-5 (2) "Department" means a community supervision and
323-6 corrections department established under Chapter 76.
323-7 (3) "Division" means the community justice assistance
323-8 division.
323-9 (4) "State aid" means funds appropriated by the
323-10 legislature to the division to provide financial assistance to:
323-11 (A) judicial districts, for:
323-12 (i) the administration of departments;
323-13 (ii) the development and improvement of
323-14 community supervision services and community-based correctional
323-15 programs;
323-16 (iii) the establishment and operation of
323-17 community corrections facilities; and
323-18 (iv) assistance in conforming with
323-19 standards and policies of the division and the board; and
323-20 (B) state agencies, counties, municipalities,
323-21 and nonprofit organizations for the implementation and
323-22 administration of community-based sanctions and programs.
323-23 Sec. 509.002. PURPOSE. The purpose of this chapter is to:
323-24 (1) allow localities to increase their involvement and
323-25 responsibility in developing sentencing programs that provide
323-26 effective sanctions for criminal defendants;
323-27 (2) provide increased opportunities for criminal
324-1 defendants to make restitution to victims of crime through
324-2 financial reimbursement or community service;
324-3 (3) provide increased use of community penalties
324-4 designed specifically to meet local needs; and
324-5 (4) promote efficiency and economy in the delivery of
324-6 community-based correctional programs consistent with the
324-7 objectives defined by Section 1.02, Penal Code.
324-8 Sec. 509.003. STANDARDS AND PROCEDURES. (a) The division
324-9 shall propose and the board shall adopt reasonable rules
324-10 establishing:
324-11 (1) minimum standards for programs, community
324-12 corrections facilities and other facilities, equipment, and other
324-13 aspects of the operation of departments;
324-14 (2) a list and description of core services that
324-15 should be provided by each department;
324-16 (3) methods for measuring the success of community
324-17 supervision and corrections programs, including methods for
324-18 measuring rates of diversion, program completion, and recidivism;
324-19 and
324-20 (4) a format for community justice plans.
324-21 (b) In establishing standards relating to the operation of
324-22 departments, the division shall consider guidelines developed and
324-23 presented by the advisory committee on community supervision and
324-24 corrections department management to the judicial advisory council
324-25 established under Section 493.003(b).
324-26 (c) After consultation with the Texas Commission on Alcohol
324-27 and Drug Abuse, the division by rule shall establish standards for
325-1 the operation of substance abuse facilities and programs by the
325-2 division and by departments. A facility or program operating under
325-3 the standards is not required to be licensed or otherwise approved
325-4 by any other state or local agency.
325-5 Sec. 509.004. RECORDS, REPORTS, AND INFORMATION SYSTEMS.
325-6 (a) The division shall require each department to:
325-7 (1) keep financial and statistical records determined
325-8 necessary by the division;
325-9 (2) submit a community justice plan and all supporting
325-10 information requested by the division;
325-11 (3) present data requested by the division as
325-12 necessary to determine the amount of state aid for which the
325-13 department is eligible; and
325-14 (4) submit periodic financial audits and statistical
325-15 reports to the division.
325-16 (b) The division shall develop an automated tracking system
325-17 that:
325-18 (1) is capable of receiving tracking data from
325-19 community supervision and corrections departments' caseload
325-20 management and accounting systems;
325-21 (2) is capable of tracking the defendant and the
325-22 sentencing event at which the defendant was placed on community
325-23 supervision by name, arrest charge code, and incident number;
325-24 (3) provides the division with the statistical data it
325-25 needs to support budget requests and satisfy requests for
325-26 information; and
325-27 (4) is compatible with the requirements of Chapter 60,
326-1 Code of Criminal Procedure, and the information systems used by the
326-2 institutional division and the pardons and paroles division of the
326-3 department.
326-4 Sec. 509.005. INSPECTIONS; AUDITS; EVALUATIONS. (a) The
326-5 division may inspect and evaluate a department or conduct an audit
326-6 of financial records of a department at any reasonable time to
326-7 determine compliance with the division's rules and standards.
326-8 (b) The division shall authorize payments under Section
326-9 509.011(a)(1) only if the division determines that the department
326-10 has made a reasonable effort to maintain workloads established by
326-11 the division for supervising officers that do not exceed the
326-12 following ratios:
326-13 (1) one officer or full-time equivalent per 25 cases,
326-14 with a workload unit value of 4 per case;
326-15 (2) one officer or full-time equivalent per 40 cases,
326-16 with a workload unit value of 2.5 per case;
326-17 (3) one officer or full-time equivalent per 75 cases,
326-18 with a workload unit value of 1.33 per case; and
326-19 (4) one officer or full-time equivalent per 100 cases,
326-20 with a workload unit value of 1 per case.
326-21 Sec. 509.006. COMMUNITY CORRECTIONS FACILITIES. (a) To
326-22 establish and maintain community corrections facilities, the
326-23 division may:
326-24 (1) fund division-managed facilities;
326-25 (2) fund contracts for facilities that are managed by
326-26 departments, counties, or vendors;
326-27 (3) provide funds to departments for the renovation of
327-1 leased or donated buildings for use as facilities;
327-2 (4) accept ownership of real property pursuant to an
327-3 agreement under which the division agrees to construct a facility
327-4 and offer the facility for lease;
327-5 (5) allow departments, counties, or municipalities to
327-6 accept and use buildings provided by units of local governments,
327-7 including rural hospital districts, for use as facilities;
327-8 (6) provide funds to departments, counties, or
327-9 municipalities to lease, purchase, or construct buildings or to
327-10 lease or purchase land or other real property for use as
327-11 facilities, lease or purchase equipment necessary for the operation
327-12 of facilities, and pay other costs as necessary for the management
327-13 and operation of facilities; and
327-14 (7) be a party to a contract for correctional services
327-15 or approve a contract for those services if the state, on a
327-16 biennial appropriations basis, commits to fund a portion of the
327-17 contract.
327-18 (b) The division may require that community corrections
327-19 facilities comply with state and local safety laws and may develop
327-20 standards for:
327-21 (1) the physical plant and operation of community
327-22 corrections facilities;
327-23 (2) programs offered by community corrections
327-24 facilities;
327-25 (3) disciplinary rules for residents of community
327-26 corrections facilities; and
327-27 (4) emergency furloughs for residents of community
328-1 corrections facilities.
328-2 (c) Minimum standards for community corrections facilities
328-3 must include requirements that a facility:
328-4 (1) provide levels of security appropriate for the
328-5 population served by the facility, including as a minimum a
328-6 monitored and structured environment in which a resident's interior
328-7 and exterior movements and activities can be supervised by specific
328-8 destination and time; and
328-9 (2) accept only those residents who are physically and
328-10 mentally capable of participating in any program offered at the
328-11 facility that requires strenuous physical activity, if
328-12 participation in the program is required of all residents of the
328-13 facility.
328-14 (d) Standards developed by the division that relate to state
328-15 jail felony facilities must meet minimum requirements adopted by
328-16 the board for the operation of state jail felony facilities. The
328-17 board may adopt rules and procedures for the operation of more than
328-18 one type of state jail felony facility.
328-19 (e) With the consent of the department operating or
328-20 contracting for the operation of the facility, the board may
328-21 designate any community corrections facility that is an
328-22 intermediate sanction facility as a state jail felony facility and
328-23 confine state jail felons in that facility.
328-24 Sec. 509.007. COMMUNITY JUSTICE PLAN. (a) The division
328-25 shall require as a condition to payment of state aid to a
328-26 department or county under Section 509.011 and eligibility for
328-27 payment of costs under Section 499.124 that a community justice
329-1 plan be submitted for the department. The community justice
329-2 council shall submit the plan required by this subsection. A
329-3 community justice council may not submit a plan under this section
329-4 unless the plan is first approved by the district judges who manage
329-5 the department served by the council. The council shall submit a
329-6 revised plan to the division each odd-numbered year by a date
329-7 designated by the division. A plan may be amended at any time with
329-8 the approval of the division.
329-9 (b) A community justice plan required under this section
329-10 must include:
329-11 (1) a statement of goals and priorities and of
329-12 commitment by the community justice council, the district judges
329-13 who manage the department, and the department to achieve a targeted
329-14 level of alternative sanctions;
329-15 (2) a description of methods for measuring the success
329-16 of programs provided by the department or provided by an entity
329-17 served by the department; and
329-18 (3) a proposal for the use of state jail felony
329-19 facilities and, at the discretion of the community justice council,
329-20 a regional proposal for the construction, operation, maintenance,
329-21 or management of a state jail felony facility by a county, a
329-22 community supervision and corrections department, or a private
329-23 vendor under a contract with a county or a community supervision
329-24 and corrections department.
329-25 Sec. 509.008. OFFICER CERTIFICATION. (a) The division
329-26 shall establish officer certification programs for department
329-27 residential officers and department supervision officers. A
330-1 program must include coursework relating to the proper performance
330-2 of the officer's duties and an examination prepared by the division
330-3 administered at the conclusion of the coursework. The examination
330-4 must test officers on knowledge required for the proper performance
330-5 of their duties. An officer who satisfactorily completes the
330-6 coursework and examination shall be certified.
330-7 (b) Except as provided by Subsections (d), (e), and (f), a
330-8 department may not continue to employ an officer unless the officer
330-9 was exempt from certification requirements on September 1, 1989, or
330-10 satisfactorily completes the coursework and examination required by
330-11 this section not later than the first anniversary of the date on
330-12 which the officer begins employment with the department.
330-13 (c) The division shall provide adequate notification of the
330-14 results of examinations and provide other relevant information
330-15 regarding examinations as requested by examinees.
330-16 (d) The division may extend the period for the coursework
330-17 and examination requirements for an officer under Subsection (b) or
330-18 (f) for an additional period not to exceed one year because:
330-19 (1) the department has a need to increase hiring to
330-20 reduce caseloads to a level necessary to receive full state aid; or
330-21 (2) an extenuating circumstance, as determined by the
330-22 division director, prevents the officer from completing the
330-23 coursework and examination within the required period.
330-24 (e) The division may waive certification requirements other
330-25 than a fee requirement for an applicant with a valid certificate
330-26 from another state that has certification requirements
330-27 substantially similar to those of this state.
331-1 (f) A department may not continue to employ a residential
331-2 officer unless the officer successfully completes the coursework
331-3 and examination requirement under this section before the first
331-4 anniversary of the date on which the officer begins the officer's
331-5 assignment to a residential facility.
331-6 (g) The division may deny, revoke, or suspend a
331-7 certification or may reprimand an officer for a violation of this
331-8 chapter or a rule of the board.
331-9 (h) If the division proposes to deny, revoke, or suspend an
331-10 officer's certification or to reprimand an officer, the officer is
331-11 entitled to a hearing before the division or a hearings examiner
331-12 appointed by the division. The division shall adopt procedures for
331-13 appeals by officers of decisions made by the division to deny,
331-14 revoke, or suspend a certification or to reprimand an officer.
331-15 Sec. 509.009. TRAINING. The division may provide
331-16 pre-service, in-service, and educational training and technical
331-17 assistance to departments to promote compliance with the standards
331-18 under this chapter and to assist departments in improving the
331-19 operation of department services.
331-20 Sec. 509.010. PUBLIC MEETING. (a) The division may not
331-21 take an action under Sections 509.006(a)(1)-(6) relating to a
331-22 community corrections facility established after August 31, 1989,
331-23 unless a public meeting is held about the proposed action before
331-24 the action is taken.
331-25 (b) Before the 30th day before the date of the meeting, the
331-26 division, the department that the facility is to serve, or a vendor
331-27 proposing to operate the facility shall:
332-1 (1) publish notice of the date, hour, place, and
332-2 subject of the hearing required by Subsection (a) in three
332-3 consecutive issues of a newspaper of, or in newspapers that
332-4 collectively have, general circulation in the county in which the
332-5 proposed facility is to be located; and
332-6 (2) mail a copy of the notice to each city council
332-7 member, county commissioner, state representative, and state
332-8 senator who represents the area in which the proposed facility is
332-9 to be located, unless the proposed facility has been previously
332-10 authorized to operate at a particular location by a community
332-11 justice council under Section 76.003.
332-12 (c) If a private vendor, other than a private vendor that
332-13 operates as a nonprofit corporation, proposes to operate a facility
332-14 that is the subject of a public meeting under this section, the
332-15 private vendor is responsible for the costs of providing notice and
332-16 holding the public meeting required by this section.
332-17 (d) In describing the subject of a hearing for purposes of
332-18 publishing notice under this section, the notice must specifically
332-19 state the address of the facility on which a proposed action is to
332-20 be taken and describe the proposed action.
332-21 (e) The division, a department, or a private vendor shall
332-22 hold a public meeting required by Subsection (a) at a site as close
332-23 as practicable to the location at which the proposed action is to
332-24 be taken.
332-25 (f) A department, a county, a municipality, or a combination
332-26 involving more than one of those entities may not take an action
332-27 under Section 76.010 unless the community justice council serving
333-1 the entity or entities holds a public meeting before the action is
333-2 taken, with notice provided and the hearing to be held in the same
333-3 manner as provided by Subsections (a)-(e).
333-4 Sec. 509.011. PAYMENT OF STATE AID. (a) If the division
333-5 determines that a department complies with division standards and
333-6 if the department or judges managing the department have submitted
333-7 a community justice plan under Section 76.003 and the supporting
333-8 information required by the division and the division determines
333-9 the plan and supporting information are acceptable, the division
333-10 shall prepare and submit to the comptroller vouchers for payment to
333-11 the department as follows:
333-12 (1) for per capita funding, a per diem amount for each
333-13 felony defendant directly supervised by the department pursuant to
333-14 lawful authority;
333-15 (2) for per capita funding, a per diem amount for a
333-16 period not to exceed 182 days for each defendant supervised by the
333-17 department pursuant to lawful authority, other than a felony
333-18 defendant; and
333-19 (3) for formula funding, an annual amount as computed
333-20 by multiplying a percentage determined by the allocation formula
333-21 established under Section 499.071(b) times the total amount
333-22 provided in the General Appropriations Act for payments under this
333-23 subdivision.
333-24 (b) The division may use discretionary grant funds to
333-25 further the purposes of this chapter by contracting for services
333-26 with state agencies or nonprofit organizations. The division may
333-27 also make discretionary grants to departments, municipalities, or
334-1 counties for the following purposes:
334-2 (1) development and operation of pretrial and
334-3 presentencing services;
334-4 (2) electronic monitoring services, surveillance
334-5 supervision programs, and controlled substances testing services;
334-6 (3) research projects to evaluate the effectiveness of
334-7 community corrections programs, if the research is conducted in
334-8 cooperation with the Criminal Justice Policy Council;
334-9 (4) contract services for felony defendants;
334-10 (5) residential services for misdemeanor defendants
334-11 who exhibit levels of risk or needs indicating a need for
334-12 confinement and treatment, as described by Section 509.005(b);
334-13 (6) establishment or operation of county correctional
334-14 centers under Subchapter H, Chapter 351, Local Government Code, or
334-15 community corrections facilities for which the division has
334-16 established standards under Section 509.006; and
334-17 (7) other purposes determined appropriate by the
334-18 division and approved by the board.
334-19 (c) Each department, county, or municipality shall deposit
334-20 all state aid received from the division in a special fund of the
334-21 county treasury or municipal treasury, as appropriate, to be used
334-22 solely for the provision of services, programs, and facilities
334-23 under this chapter or Subchapter H, Chapter 351, Local Government
334-24 Code.
334-25 (d) The division shall provide state aid to each department
334-26 on a biennial basis, pursuant to the community justice plan for the
334-27 biennium submitted by the department. A department with prior
335-1 division approval may transfer funds from one program or function
335-2 to another program or function.
335-3 (e) In establishing per diem payments authorized by
335-4 Subsections (a)(1) and (a)(2), the division shall consider the
335-5 amounts appropriated in the General Appropriations Act for basic
335-6 supervision as sufficient to provide basic supervision in each year
335-7 of the fiscal biennium.
335-8 Sec. 509.012. REFUSAL OR SUSPENSION OF STATE AID. (a) The
335-9 division shall take one or more of the following actions against a
335-10 department that the division determines is not in substantial
335-11 compliance with division standards or requirements adopted under
335-12 Sections 509.003-509.006:
335-13 (1) a reduction, refusal, or suspension of payment of
335-14 state aid to the department; or
335-15 (2) an imposition of budget control over the
335-16 department.
335-17 (b) The board shall provide for notice and a hearing in
335-18 cases in which the division proposes to take an action authorized
335-19 by this section. The division shall define with specificity the
335-20 conduct that constitutes substantial noncompliance with division
335-21 standards and shall establish the procedures to be used in imposing
335-22 or waiving a sanction authorized by this section, subject to
335-23 approval of the definition and the procedures by adoption by the
335-24 board.
335-25 SECTION 7.02. Section 18(a), Article 42.12, Code of Criminal
335-26 Procedure, is amended to read as follows:
335-27 (a) In this section, "community corrections facility" has
336-1 the meaning assigned <means a facility described> by <Subsection
336-2 (b)(2) of> Section 509.001, Government Code <1, Article 42.13, of
336-3 this code>.
336-4 SECTION 7.03. Section 25(c), Article 42.18, Code of Criminal
336-5 Procedure, is amended to read as follows:
336-6 (c) The pardons and paroles division may not establish,
336-7 enter into a contract for a community-based facility, change the
336-8 use of a community-based facility, significantly increase the
336-9 capacity of a community-based facility, or increase the capacity of
336-10 a community-based facility to more than 500 residents, regardless
336-11 of whether that increase is significant, unless the pardons and
336-12 paroles division provides notice of the proposed action and a
336-13 hearing on the issues in the same manner required of the community
336-14 justice assistance division under Section 509.010, Government Code,
336-15 <10, Article 42.13, of this code> before the division takes an
336-16 action under Section 509.006, Government Code <5 of that article>.
336-17 This subsection applies to any residential facility that the
336-18 pardons and paroles division establishes or contracts for under
336-19 this article, under Subchapter C, Chapter 497, Government Code, or
336-20 under Subchapter A, Chapter 499, Government Code.
336-21 SECTION 7.04. Section 491.001(a)(3), Government Code, is
336-22 amended to read as follows:
336-23 (3) "Department" means the Texas Department of
336-24 Criminal Justice, except in Chapter 509.
336-25 SECTION 7.05. Section 499.0021(b), Government Code, is
336-26 amended to read as follows:
336-27 (b) The pardons and paroles division may assume custody of
337-1 an inmate who is eligible for transfer under this section not
337-2 earlier than one year before the inmate's presumptive parole date.
337-3 The inmate becomes a pre-parolee on the date the pardons and
337-4 paroles division assumes custody, and the pardons and paroles
337-5 division immediately shall transfer the pre-parolee to a facility
337-6 under contract with the division, which may be a community
337-7 residential facility, a community corrections facility listed in
337-8 Section 509.001 <1(b), Article 42.13, Code of Criminal Procedure>,
337-9 or a county correctional facility. A pre-parolee transferred under
337-10 this section is considered to be in the actual physical custody of
337-11 the pardons and paroles division.
337-12 SECTION 7.06. Section 499.071(b), Government Code, is
337-13 amended to read as follows:
337-14 (b) The board shall adopt and enforce an allocation formula
337-15 that fairly and equitably allocates community corrections program
337-16 funding to each community supervision and corrections department,
337-17 in the manner provided by Section 509.011(a)(3) <10(a)(3), Article
337-18 42.13, Code of Criminal Procedure>. In devising the formula, the
337-19 board shall use the factors listed in Subsection (a), but may
337-20 assign different weights to those factors than those used in
337-21 developing the admissions allocation formula. The board also may
337-22 use factors not listed in Subsection (a) in devising the formula
337-23 under this subsection.
337-24 SECTION 7.07. Section 89.001(1), Health and Safety Code, is
337-25 amended to read as follows:
337-26 (1) "Community corrections facility" means a facility
337-27 established under Chapter 509, Government Code <Article 42.13, Code
338-1 of Criminal Procedure>.
338-2 SECTION 7.08. Section 351.184(a), Local Government Code, is
338-3 amended to read as follows:
338-4 (a) To <In order to> certify county correctional centers as
338-5 eligible for state funding under Section 509.011(b)(6), Government
338-6 Code <11(b)(6), Article 42.13, Code of Criminal Procedure>, the
338-7 community justice assistance division of the Texas Department of
338-8 Criminal Justice, with the assistance of the Commission on Jail
338-9 Standards, shall develop standards for the physical plant and
338-10 operations of county correctional centers.
338-11 SECTION 7.09. Section 11, Article 725d, Revised Statutes, is
338-12 amended to read as follows:
338-13 Sec. 11. Grants for prisons or law enforcement facilities
338-14 not precluded. This article does not preclude a county from making
338-15 a grant of funds or property to an agency of the state for the
338-16 purpose of assisting the agency in acquiring or developing a site
338-17 for a prison, law enforcement detention facility, or community
338-18 corrections facility <other law enforcement facilities> as defined
338-19 in Section 509.001, Government Code <6(b)(2), Article 42.13, Code
338-20 of Criminal Procedure>.
338-21 SECTION 7.10. Article 42.13, Code of Criminal Procedure, is
338-22 repealed.
338-23 SECTION 7.11. Subtitle F, Title 2, Government Code, is
338-24 amended to transfer the substance of Article 42.131, Code of
338-25 Criminal Procedure, to the Government Code by adding Chapter 76 to
338-26 read as follows:
338-27 CHAPTER 76. COMMUNITY SUPERVISION AND CORRECTIONS DEPARTMENTS
339-1 Sec. 76.001. DEFINITIONS. In this chapter:
339-2 (1) "Board" means the Texas Board of Criminal Justice.
339-3 (2) "Community supervision" has the meaning assigned
339-4 by Section 2, Article 42.12, Code of Criminal Procedure.
339-5 (3) "Council" means a community justice council.
339-6 (4) "Department" means a community supervision and
339-7 corrections department established under this chapter.
339-8 (5) "Division" means the community justice assistance
339-9 division of the Texas Department of Criminal Justice.
339-10 Sec. 76.002. ESTABLISHMENT OF DEPARTMENTS. (a) The
339-11 district judge or district judges trying criminal cases in each
339-12 judicial district shall:
339-13 (1) establish a community supervision and corrections
339-14 department; and
339-15 (2) employ district personnel as necessary to conduct
339-16 presentence investigations, supervise and rehabilitate defendants
339-17 placed on community supervision, enforce the conditions of
339-18 community supervision, and staff community corrections facilities.
339-19 (b) The district judges trying criminal cases and judges of
339-20 statutory county courts trying criminal cases that are served by a
339-21 community supervision and corrections department are entitled to
339-22 participate in the management of the department.
339-23 (c) Except as provided by Subsection (d), one department
339-24 serves all courts and counties in a judicial district if:
339-25 (1) two or more judicial districts serve a county; or
339-26 (2) a district includes more than one county.
339-27 (d) The board may adopt rules to allow more than one
340-1 department to serve a judicial district that includes more than one
340-2 county if providing more than one department will promote
340-3 administrative convenience or economy or improve services.
340-4 (e) The board may adopt rules allowing departments to
340-5 contract with one another for services or facilities.
340-6 Sec. 76.003. COMMUNITY JUSTICE COUNCIL. (a) A community
340-7 justice council must be established by the district judge or
340-8 district judges in each jurisdiction served by a department, unless
340-9 a board or council that was in existence on September 1, 1991, is
340-10 performing duties substantially similar to those imposed on a
340-11 community justice council under this section. The council shall
340-12 provide continuing policy guidance and direction for the
340-13 development of community justice plans and community corrections
340-14 facilities and programs.
340-15 (b) A council should consist of the following persons or
340-16 their designees:
340-17 (1) a sheriff of a county served by the department,
340-18 chosen by the sheriffs of the counties to be served by the
340-19 department;
340-20 (2) a county commissioner or a county judge from a
340-21 county served by the department, chosen by the county commissioners
340-22 and county judges of the counties served by the department;
340-23 (3) a city council member of the most populous
340-24 municipality in a county served by the department, chosen by the
340-25 members of the city councils of cities served by the department;
340-26 (4) not more than two state legislators elected from a
340-27 county served by the department, chosen by the state legislators
341-1 elected from the counties served by the department;
341-2 (5) the presiding judge from a judicial district
341-3 served by the department, chosen by the district judges from the
341-4 judicial districts served by the department;
341-5 (6) a judge of a statutory county court exercising
341-6 criminal jurisdiction in a county served by the department, chosen
341-7 by the judges of statutory county courts with criminal jurisdiction
341-8 in the counties served by the department;
341-9 (7) a county attorney with criminal jurisdiction from
341-10 a county served by the department, chosen by the county attorneys
341-11 with criminal jurisdiction from the counties served by the
341-12 department;
341-13 (8) a district attorney or criminal district attorney
341-14 from a judicial district served by the department, chosen by the
341-15 district attorneys or criminal district attorneys from the judicial
341-16 districts served by the department; and
341-17 (9) an elected member of the board of trustees of an
341-18 independent school district in a county served by the department,
341-19 chosen by the members of the boards of trustees of independent
341-20 school districts located in counties served by the department.
341-21 (c) The community justice council shall appoint a community
341-22 justice task force to provide support staff for the development of
341-23 a community justice plan. The task force may consist of any
341-24 number of members, but should include:
341-25 (1) the county or regional director of the Texas
341-26 Department of Human Services with responsibility for the area
341-27 served by the department;
342-1 (2) the chief of police of the most populous
342-2 municipality served by the department;
342-3 (3) the chief juvenile probation officer of the
342-4 juvenile probation office serving the most populous area served by
342-5 the department;
342-6 (4) the superintendent of the most populous school
342-7 district served by the department;
342-8 (5) the supervisor of the Department of Public Safety
342-9 region closest to the department, or the supervisor's designee;
342-10 (6) the county or regional director of the Texas
342-11 Department of Mental Health and Mental Retardation with
342-12 responsibility for the area served by the department;
342-13 (7) a substance abuse treatment professional appointed
342-14 by the Council of Governments serving the area served by the
342-15 department;
342-16 (8) the department director;
342-17 (9) the local or regional representative of the
342-18 pardons and paroles division of the Texas Department of Criminal
342-19 Justice with responsibility for the area served by the department;
342-20 (10) the representative of the Texas Employment
342-21 Commission with responsibility for the area served by the
342-22 department;
342-23 (11) the representative of the Texas Rehabilitation
342-24 Commission with responsibility for the area served by the
342-25 department;
342-26 (12) a licensed attorney who practices in the area
342-27 served by the department and whose practice consists primarily of
343-1 criminal law;
343-2 (13) a court administrator, if one serves the area
343-3 served by the department;
343-4 (14) a representative of a community service
343-5 organization that provides adult treatment, educational, or
343-6 vocational services to the area served by the department; and
343-7 (15) a representative of an organization in the area
343-8 served by the department that is actively involved in issues
343-9 relating to defendants' rights, chosen by the county commissioners
343-10 and county judges of the counties served by the department.
343-11 Sec. 76.004. DEPARTMENT DIRECTOR. (a) The district judge
343-12 or judges shall appoint a department director who must meet, at a
343-13 minimum, the eligibility requirements for officers established
343-14 under Section 76.005.
343-15 (b) The department director shall employ a sufficient number
343-16 of officers and other employees to perform the professional and
343-17 clerical work of the department.
343-18 Sec. 76.005. STANDARDS FOR OFFICERS. (a) An officer
343-19 appointed by the department director must comply with a code of
343-20 ethics developed by the division.
343-21 (b) To be eligible for appointment as an officer who
343-22 supervises defendants placed on community supervision a person:
343-23 (1) must have acquired a bachelor's degree conferred
343-24 by an institution of higher education accredited by an accrediting
343-25 organization recognized by the Texas Higher Education Coordinating
343-26 Board; and
343-27 (2) unless the bachelor's degree is in criminology,
344-1 corrections, counseling, law, social work, psychology, sociology,
344-2 or a related field that has been approved by the division, must
344-3 have:
344-4 (A) one year of graduate study in one of those
344-5 fields; or
344-6 (B) one year of experience in full-time
344-7 casework, counseling, or community or group work that has been
344-8 approved by the division.
344-9 (c) A person employed as a peace officer is not eligible for
344-10 appointment as an officer under this section.
344-11 (d) The division may establish a waiver procedure for
344-12 departments unable to hire persons meeting the requirements under
344-13 Subsection (b)(2).
344-14 Sec. 76.006. EMPLOYEE STATUS AND BENEFITS. (a) Except as
344-15 provided by Subsection (c), department employees are not state
344-16 employees. The department shall contract with the most populous
344-17 county served by the department for insurance and retirement plans,
344-18 and the employees are governed by personnel policies and benefits
344-19 equal to personnel policies for and benefits of other employees of
344-20 that county.
344-21 (b) The judicial districts served by a department shall pay
344-22 the salaries of department employees.
344-23 (c) Department employees are state employees for the
344-24 purposes of Chapter 104, Civil Practice and Remedies Code, and
344-25 Chapter 501, Labor Code.
344-26 (d) A department is a governmental unit for the purposes of
344-27 Section 101.103(a), Civil Practice and Remedies Code.
345-1 (e) The department shall provide transportation or
345-2 automobile allowances for officers who supervise defendants placed
345-3 on community supervision.
345-4 Sec. 76.007. PUBLIC FUNDS, GRANTS, AND GIFTS. A department
345-5 may accept public funds and grants and gifts from any source for
345-6 the purpose of financing programs and facilities. A municipality,
345-7 county, or other political subdivision may make grants to a
345-8 department for those purposes.
345-9 Sec. 76.008. FINANCIAL RESPONSIBILITIES OF COUNTIES. (a)
345-10 The county or counties served by a department shall provide
345-11 physical facilities, equipment, and utilities for a department.
345-12 The division shall monitor the support a county provides under this
345-13 section and determine whether a county provides support that meets
345-14 the standards for minimum support established by the division. If
345-15 the division determines that a county's support is insufficient,
345-16 the division may impose on the department a sanction authorized by
345-17 Section 509.012.
345-18 (b) If a department serves two or more counties, those
345-19 counties may enter into an agreement for the distribution of the
345-20 expenses of facilities, equipment, and utilities.
345-21 Sec. 76.009. FINANCIAL RESPONSIBILITIES OF DISTRICTS. (a)
345-22 The district judge or judges may expend district funds in order to
345-23 provide expanded facilities, equipment, and utilities if:
345-24 (1) the department needs to increase its personnel in
345-25 order to provide more effective services or to meet workload
345-26 requirements established under Chapter 509;
345-27 (2) the county or counties certify to the judge or
346-1 judges that they have neither adequate space in county-owned
346-2 buildings nor adequate funds to lease additional physical
346-3 facilities, purchase additional equipment, or pay for additional
346-4 utilities required by the department; and
346-5 (3) the county or counties provide facilities,
346-6 equipment, and utilities at or above the levels required by the
346-7 division.
346-8 (b) The division shall set as the level of contribution a
346-9 county or counties must meet or exceed to receive district funds
346-10 under Subsection (a) a level not lower than the average level
346-11 provided by the county or counties during the fiscal year in which
346-12 the funds are to be received and the four fiscal years immediately
346-13 preceding that year.
346-14 Sec. 76.010. STATE FUNDS OR GUARANTEES FOR CORRECTIONS
346-15 FACILITIES. (a) In this section:
346-16 (1) "Community corrections facility" has the meaning
346-17 assigned by Section 509.001.
346-18 (2) "State jail felony facility" means a facility
346-19 operated or contracted for by the state jail division of the Texas
346-20 Department of Criminal Justice under Subchapter A, Chapter 507.
346-21 (b) A department, county, municipality, or a combination
346-22 involving more than one of those entities may establish a community
346-23 corrections facility and are specifically encouraged to purchase or
346-24 enter into a contract for the use of abandoned or underutilized
346-25 public facilities, such as former military bases and rural
346-26 hospitals, for the purpose of providing community corrections
346-27 facilities.
347-1 (c) The district judge or judges may authorize expenditures
347-2 of funds provided by the division to the department for the
347-3 purposes of providing facilities, equipment, and utilities for
347-4 community corrections facilities or state jail felony facilities
347-5 if:
347-6 (1) the community justice council recommends the
347-7 expenditures; and
347-8 (2) the division, or the state jail division in the
347-9 case of a state jail felony facility, provides funds for the
347-10 purpose of assisting in the establishment or improvement of the
347-11 facilities.
347-12 (d) A department may acquire, hold title to, and own real
347-13 property for the purpose of establishing a community corrections
347-14 facility or a state jail felony facility.
347-15 (e) A department, county, municipality, or a combination
347-16 involving more than one of those entities may not use a facility or
347-17 real property purchased, acquired, or improved with state funds
347-18 unless the division, or the state jail division in the case of a
347-19 state jail felony facility, first approves the use.
347-20 (f) The division or the state jail division, in the case of
347-21 a state jail felony facility, is entitled to reimbursement from an
347-22 entity described by Subsection (e) of all state funds used by the
347-23 entity without division approval as required by Subsection (e).
347-24 Sec. 76.011. PRETRIAL SERVICES. (a) The department may
347-25 operate programs for the supervision and rehabilitation of persons
347-26 in pretrial intervention programs. Programs may include testing
347-27 for controlled substances. A person in a pretrial intervention
348-1 program may be supervised for a period not to exceed one year.
348-2 (b) The department may use money deposited in the special
348-3 fund of the county treasury for the department under Article
348-4 103.004(b), Code of Criminal Procedure, only for the same purposes
348-5 for which state aid may be used under this chapter.
348-6 Sec. 76.012. REPORTING AND MANAGEMENT SERVICES. A
348-7 department may enter into a contract with a public or private
348-8 vendor to provide telephone reporting, automated caseload
348-9 management, and collection services for fines, fees, restitution,
348-10 and other costs ordered to be paid by a court or fees imposed by a
348-11 department.
348-12 Sec. 76.013. RESTITUTION. (a) If a judge requires a
348-13 defendant to make restitution to a victim of the defendant's
348-14 offense, and a payment is received by a department from the
348-15 defendant for transmittal to a victim of the offense, the
348-16 department that receives the payment for disbursement to the victim
348-17 shall immediately deposit the payment in an interest-bearing
348-18 account in the department having original jurisdiction. The
348-19 department shall transmit the payment to the victim as soon as
348-20 practicable.
348-21 (b) If a victim cannot be located, immediately after
348-22 receiving a final payment in satisfaction of an order of
348-23 restitution for the victim the department shall attempt to notify
348-24 the victim of that fact by certified mail, mailed to the last known
348-25 address of the victim. If a victim then makes a claim for payment,
348-26 the department promptly shall remit the payment to the victim. Not
348-27 earlier than the fifth anniversary of the date on which the
349-1 department mails notice under this subsection, if the victim has
349-2 not made a claim for payment, the department shall transfer the
349-3 payment from the interest-bearing account to the comptroller of
349-4 public accounts, after deducting five percent of the payment as a
349-5 collection fee and deducting any interest accrued on the payment.
349-6 The comptroller shall deposit the payment in the state treasury to
349-7 the credit of the compensation to victims of crime auxiliary fund.
349-8 (c) The collection fee under Subsection (b) and the accrued
349-9 interest under Subsections (a) and (b) shall be deposited in the
349-10 special fund of the county treasury provided by Section 509.011,
349-11 Government Code, to be used for the same purposes for which state
349-12 aid may be used under that section. The department has a maximum
349-13 of 121 days after the four-year expiration date to transfer the
349-14 funds to the comptroller's office. Failure to comply with the
349-15 121-day deadline will result in a five percent collection fee
349-16 penalty calculated from the total deposit and all interest
349-17 attributable to the unclaimed funds.
349-18 (d) If the victim of the offense claims the payment during
349-19 the four-year period in which the payment is held in the
349-20 interest-bearing account, the department shall pay the victim the
349-21 amount of the original payment, less any interest earned while
349-22 holding the payment. After the payment has been transferred to the
349-23 comptroller, the department has no liability in regard to the
349-24 payment, and any claim for the payment must be made to the
349-25 comptroller. If the victim makes a claim to the comptroller, the
349-26 comptroller shall pay the victim the amount of the original
349-27 payment, less the collection fee, from the compensation to victims
350-1 of crime auxiliary fund.
350-2 Sec. 76.014. ASSESSMENT AND ENHANCEMENT OF DEFENDANT'S
350-3 EDUCATIONAL SKILLS. (a) A department, with the assistance of
350-4 public school districts, community and public junior colleges,
350-5 public and private institutions of higher education, and other
350-6 appropriate public and private entities, may establish a
350-7 developmental program for a defendant under the supervision of the
350-8 department on the basis of information obtained in the presentence
350-9 investigation report prepared for the defendant.
350-10 (b) The developmental program may provide the defendant with
350-11 the educational and vocational training necessary to:
350-12 (1) meet the average skill level of students who have
350-13 completed the sixth grade in public schools in this state; and
350-14 (2) maintain employment while under the supervision of
350-15 the department, to lessen the likelihood that the defendant will
350-16 commit additional offenses.
350-17 (c) To decrease expenditures by departments for the
350-18 educational and vocational skills assessment and enhancement
350-19 program established under this section, the Texas Department of
350-20 Commerce shall provide information to departments, public school
350-21 districts, community and public junior colleges, public and private
350-22 institutions of higher education, and other appropriate public and
350-23 private entities for obtaining financial assistance through
350-24 programs under Chapter 301, Labor Code, and other applicable
350-25 programs of public or private entities.
350-26 SECTION 7.12. Article 42.131, Code of Criminal Procedure, is
350-27 repealed.
351-1 SECTION 7.13. Section 2(3), Article 42.12, Code of Criminal
351-2 Procedure, is amended to read as follows:
351-3 (3) "Supervision officer" means a person appointed or
351-4 employed under Section 76.004, Government Code, <4, Article 42.131
351-5 of this code> to supervise defendants placed on community
351-6 supervision.
351-7 SECTION 7.14. Section 19(b), Article 42.12, Code of Criminal
351-8 Procedure, is amended to read as follows:
351-9 (b) The judge shall deposit the fees received under
351-10 Subsection (a) of this section in the special fund of the county
351-11 treasury, to be used for the same purposes for which state aid may
351-12 be used under Chapter 76, Government Code <Article 42.131 of this
351-13 code>.
351-14 SECTION 7.15. Section 22(d), Article 42.12, Code of Criminal
351-15 Procedure, is amended to read as follows:
351-16 (d) A judge may impose a sanction on a defendant described
351-17 by Subsection (a)(3) of this section by increasing the fine imposed
351-18 on the defendant. The original fine imposed on the defendant and
351-19 an increase in the fine imposed under this subsection may not
351-20 exceed the maximum fine for the offense for which the defendant was
351-21 sentenced. The judge shall deposit money received from an increase
351-22 in the defendant's fine under this subsection in the special fund
351-23 of the county treasury to be used for the same purposes for which
351-24 state aid may be used under Chapter 76, Government Code <Article
351-25 42.131 of this code>.
351-26 SECTION 7.16. Article 102.012, Code of Criminal Procedure,
351-27 is amended to read as follows:
352-1 Art. 102.012. FEES FOR PRETRIAL INTERVENTION PROGRAMS. A
352-2 person in a pretrial intervention program established under Section
352-3 76.011, Government Code, <Section 11, Article 42.131 of this code,>
352-4 may be assessed a fee that equals the actual cost to a community
352-5 supervision and corrections department, not to exceed $500, for
352-6 supervision of the defendant by the department or programs provided
352-7 to the defendant by the department as part of the pretrial
352-8 intervention program.
352-9 SECTION 7.17. Section 491.001(b)(2), Government Code, is
352-10 amended to read as follows:
352-11 (2) "Probation department" or "adult probation
352-12 department" means a community supervision and corrections
352-13 department established under Chapter 76, Government Code <Article
352-14 42.131, Code of Criminal Procedure>.
352-15 SECTION 7.18. Section 791.024, Government Code, is amended
352-16 to read as follows:
352-17 Sec. 791.024. Contracts for Community Corrections
352-18 Facilities. A community supervision and corrections department
352-19 established under Section 76.002 <Section 2, Article 42.131, Code
352-20 of Criminal Procedure,> may agree with the state, an agency of the
352-21 state, or a local government to finance, construct, operate,
352-22 maintain, or manage a community corrections facility under Section
352-23 76.010(b) <Section 3, Article 42.131, Code of Criminal Procedure,>
352-24 or a county correctional center under Subchapter H, Chapter 351,
352-25 Local Government Code.
352-26 ARTICLE 8. CHANGES RELATING TO HEALTH AND SAFETY CODE
352-27 SECTION 8.001. The changes in law made by Section 8.002 of
353-1 this Act are made to codify Article 4413(502), Revised Statutes,
353-2 and Section 1.14, Chapter 15, Acts of the 72nd Legislature, 1st
353-3 Called Session, 1991.
353-4 SECTION 8.002. (a) Title 4, Government Code, is amended by
353-5 adding Subtitle I to read as follows:
353-6 SUBTITLE I. HEALTH AND HUMAN SERVICES
353-7 CHAPTER 531. HEALTH AND HUMAN SERVICES COMMISSION
353-8 SUBCHAPTER A. GENERAL PROVISIONS; ORGANIZATION OF COMMISSION
353-9 Sec. 531.001. DEFINITIONS. In this chapter:
353-10 (1) "Commission" means the Health and Human Services
353-11 Commission.
353-12 (2) "Commissioner" means the commissioner of health
353-13 and human services.
353-14 (3) "Health and human services agencies" includes the:
353-15 (A) Interagency Council on Early Childhood
353-16 Intervention Services;
353-17 (B) Texas Department on Aging;
353-18 (C) Texas Commission on Alcohol and Drug Abuse;
353-19 (D) Texas Commission for the Blind;
353-20 (E) Texas Commission for the Deaf and Hearing
353-21 Impaired;
353-22 (F) Texas Department of Health;
353-23 (G) Texas Department of Human Services;
353-24 (H) Texas Juvenile Probation Commission;
353-25 (I) Texas Department of Mental Health and Mental
353-26 Retardation;
353-27 (J) Texas Rehabilitation Commission; and
354-1 (K) Department of Protective and Regulatory
354-2 Services.
354-3 Sec. 531.002. HEALTH AND HUMAN SERVICES COMMISSION;
354-4 RESPONSIBILITY. (a) The Health and Human Services Commission is
354-5 an agency of the state.
354-6 (b) The commission is the state agency with primary
354-7 responsibility for ensuring the delivery of state health and human
354-8 services in a manner that:
354-9 (1) uses an integrated system to determine client
354-10 eligibility;
354-11 (2) maximizes the use of federal, state, and local
354-12 funds; and
354-13 (3) emphasizes coordination, flexibility, and
354-14 decision-making at the local level.
354-15 Sec. 531.003. GOALS. The commission's goals are to:
354-16 (1) maximize federal funds through the efficient use
354-17 of available state and local resources;
354-18 (2) provide a system that delivers prompt,
354-19 comprehensive, effective services to the people of this state by:
354-20 (A) improving access to health and human
354-21 services at the local level; and
354-22 (B) eliminating architectural, communications,
354-23 programmatic, and transportation barriers;
354-24 (3) promote the health of the people of this state by:
354-25 (A) reducing the incidence of disease and
354-26 disabling conditions;
354-27 (B) increasing the availability of health care
355-1 services;
355-2 (C) improving the quality of health care
355-3 services;
355-4 (D) addressing the high incidence of certain
355-5 illnesses and conditions of minority populations;
355-6 (E) increasing the availability of trained
355-7 health care professionals;
355-8 (F) improving knowledge of health care needs;
355-9 (G) reducing infant death and disease;
355-10 (H) reducing the impact of mental disorders in
355-11 adults;
355-12 (I) reducing the impact of emotional
355-13 disturbances in children;
355-14 (J) increasing participation in nutrition
355-15 programs;
355-16 (K) increasing nutritional education; and
355-17 (L) reducing substance abuse;
355-18 (4) foster the development of responsible, productive,
355-19 and self-sufficient citizens by:
355-20 (A) improving workforce skills;
355-21 (B) increasing employment, earnings, and
355-22 benefits;
355-23 (C) increasing housing opportunities;
355-24 (D) increasing child-care and other
355-25 dependent-care services;
355-26 (E) improving education and vocational training
355-27 to meet specific career goals;
356-1 (F) reducing school dropouts;
356-2 (G) reducing teen pregnancy;
356-3 (H) improving parental effectiveness;
356-4 (I) increasing support services for people with
356-5 disabilities;
356-6 (J) increasing services to help people with
356-7 disabilities maintain or increase their independence;
356-8 (K) improving access to work sites,
356-9 accommodations, transportation, and other public places and
356-10 activities covered by the federal Americans with Disabilities Act
356-11 of 1990 (42 U.S.C. Section 12101 et seq.); and
356-12 (L) improving services to juvenile offenders;
356-13 (5) provide needed resources and services to the
356-14 people of this state when they cannot provide or care for
356-15 themselves by:
356-16 (A) increasing support services for adults and
356-17 their families during periods of unemployment, financial need, or
356-18 homelessness;
356-19 (B) reducing extended dependency on basic
356-20 support services; and
356-21 (C) increasing the availability and diversity of
356-22 long-term care provided to support people with chronic conditions
356-23 in settings that focus on community-based services with options
356-24 ranging from their own homes to total-care facilities;
356-25 (6) protect the physical and emotional safety of all
356-26 the people of this state by:
356-27 (A) reducing abuse, neglect, and exploitation of
357-1 elderly people and adults with disabilities;
357-2 (B) reducing child abuse and neglect;
357-3 (C) reducing family violence;
357-4 (D) increasing services to truants and runaways,
357-5 children at risk of truancy or running away, and their families;
357-6 (E) reducing crime and juvenile delinquency;
357-7 (F) reducing community health risks; and
357-8 (G) improving regulation of human services
357-9 providers; and
357-10 (7) improve the coordination and delivery of
357-11 children's services.
357-12 Sec. 531.004. SUNSET PROVISION. The Health and Human
357-13 Services Commission is subject to Chapter 325 (Texas Sunset Act).
357-14 Unless continued in existence as provided by that chapter, the
357-15 commission is abolished and this chapter expires September 1, 1999.
357-16 Sec. 531.005. COMMISSIONER. (a) The commission is governed
357-17 by a commissioner of health and human services appointed by the
357-18 governor with the advice and consent of the senate.
357-19 (b) The commissioner shall be appointed without regard to
357-20 race, color, disability, sex, religion, age, or national origin.
357-21 Sec. 531.006. ELIGIBILITY. (a) A person is not eligible
357-22 for appointment as commissioner if the person or the person's
357-23 spouse is an employee, officer, or paid consultant of a trade
357-24 association in a field under the commission's jurisdiction.
357-25 (b) A person who is required to register as a lobbyist under
357-26 Chapter 305 because of the person's activities for compensation in
357-27 or on behalf of a profession related to a field under the
358-1 commission's jurisdiction may not serve as commissioner.
358-2 (c) A person is not eligible for appointment as commissioner
358-3 if the person has a financial interest in a corporation,
358-4 organization, or association under contract with the Texas
358-5 Department of Mental Health and Mental Retardation, a local mental
358-6 health or mental retardation authority, or a community center.
358-7 Sec. 531.007. TERM. The commissioner serves a two-year term
358-8 expiring February 1 of each odd-numbered year.
358-9 Sec. 531.008. DIVISIONS OF COMMISSION. (a) The
358-10 commissioner may establish divisions within the commission as
358-11 necessary for effective administration and for the discharge of the
358-12 commission's functions.
358-13 (b) The commissioner may allocate and reallocate functions
358-14 among the commission's divisions.
358-15 Sec. 531.009. PERSONNEL. (a) The commissioner may employ
358-16 personnel necessary to administer the commission's duties.
358-17 (b) The commissioner or the commissioner's designated
358-18 representative shall develop an intra-agency career ladder program,
358-19 one part of which must require the intra-agency posting of all
358-20 non-entry-level positions concurrently with any public posting.
358-21 (c) The commissioner or the commissioner's designated
358-22 representative shall develop a system of annual performance
358-23 evaluations based on measurable job tasks. All merit pay for
358-24 commission employees must be based on the system established under
358-25 this subsection.
358-26 (d) The commissioner shall provide to commission employees
358-27 as often as is necessary information regarding their qualifications
359-1 under this chapter and their responsibilities under applicable laws
359-2 relating to standards of conduct for state employees.
359-3 (e) The commissioner or the commissioner's designated
359-4 representative shall prepare and maintain a written policy
359-5 statement to ensure implementation of a program of equal employment
359-6 opportunity under which all personnel transactions are made without
359-7 regard to race, color, disability, sex, religion, age, or national
359-8 origin. The policy statement must include:
359-9 (1) personnel policies, including policies relating to
359-10 recruitment, evaluation, selection, appointment, training, and
359-11 promotion of personnel;
359-12 (2) a comprehensive analysis of the commission
359-13 workforce that meets federal and state guidelines;
359-14 (3) procedures by which a determination can be made of
359-15 significant underuse in the commission workforce of all persons for
359-16 whom federal or state guidelines encourage a more equitable
359-17 balance; and
359-18 (4) reasonable methods to appropriately address areas
359-19 of significant underuse in the commission workforce of all persons
359-20 for whom federal or state guidelines encourage a more equitable
359-21 balance.
359-22 (f) The policy statement required under Subsection (e) shall
359-23 be filed with the governor's office, cover an annual period, and be
359-24 updated at least annually. The governor's office shall develop a
359-25 biennial report to the legislature based on the information
359-26 submitted. The report may be made separately or as a part of other
359-27 biennial reports made to the legislature.
360-1 Sec. 531.010. MERIT SYSTEM. (a) The commission may
360-2 establish a merit system for its employees.
360-3 (b) The merit system may be maintained in conjunction with
360-4 other state agencies that are required by federal law to operate
360-5 under a merit system.
360-6 Sec. 531.011. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
360-7 (a) The commission shall develop and implement policies that
360-8 provide the public a reasonable opportunity to appear before the
360-9 commission and to speak on any issue under the commission's
360-10 jurisdiction.
360-11 (b) The commission shall prepare information of public
360-12 interest describing the functions of the commission and the
360-13 commission's procedures by which complaints are filed with and
360-14 resolved by the commission. The commission shall make the
360-15 information available to the public and appropriate state agencies.
360-16 (c) The commissioner by rule shall establish methods by
360-17 which the public, consumers, and service recipients can be notified
360-18 of the mailing addresses and telephone numbers of appropriate
360-19 agency personnel for the purpose of directing complaints to the
360-20 commission. The commission may provide for that notification:
360-21 (1) on each registration form, application, or written
360-22 contract for services of a person regulated by the commission;
360-23 (2) on a sign prominently displayed in the place of
360-24 business of each person regulated by the commission; or
360-25 (3) in a bill for service provided by a person
360-26 regulated by the commission.
360-27 (d) The commission shall keep an information file about each
361-1 complaint filed with the commission relating to:
361-2 (1) a license holder or entity regulated by the
361-3 commission; or
361-4 (2) a service delivered by the commission.
361-5 (e) If a written complaint is filed with the commission
361-6 relating to a license holder or entity regulated by the commission
361-7 or a service delivered by the commission, the commission, at least
361-8 quarterly and until final disposition of the complaint, shall
361-9 notify the parties to the complaint of the status of the complaint
361-10 unless notice would jeopardize an undercover investigation.
361-11 Sec. 531.012. ADVISORY COMMITTEES. The commissioner may
361-12 appoint advisory committees as needed.
361-13 (Sections 531.013-531.020 reserved for expansion
361-14 SUBCHAPTER B. POWERS AND DUTIES
361-15 Sec. 531.021. ADMINISTRATION OF MEDICAID PROGRAM. The
361-16 commission is the state agency designated to administer federal
361-17 medical assistance funds.
361-18 Sec. 531.022. COORDINATED STRATEGIC PLAN FOR HEALTH AND
361-19 HUMAN SERVICES. (a) The commissioner shall develop a coordinated,
361-20 six-year strategic plan for health and human services in this state
361-21 and shall update the plan biennially.
361-22 (b) The commissioner shall submit each biennial update of
361-23 the plan to the governor, the lieutenant governor, and the speaker
361-24 of the house of representatives not later than October 1 of each
361-25 even-numbered year.
361-26 (c) The plan must include the following goals:
361-27 (1) the development of a comprehensive, statewide
362-1 approach to the planning of health and human services;
362-2 (2) the creation of a continuum of care for families
362-3 and individuals in need of health and human services;
362-4 (3) the integration of health and human services to
362-5 provide for the efficient and timely delivery of those services;
362-6 (4) the maximization of existing resources through
362-7 effective funds management and the sharing of administrative
362-8 functions;
362-9 (5) the effective use of management information
362-10 systems to continually improve service delivery;
362-11 (6) the provision of systemwide accountability through
362-12 effective monitoring mechanisms;
362-13 (7) the promotion of teamwork among the health and
362-14 human services agencies and the provision of incentives for
362-15 creativity; and
362-16 (8) the fostering of innovation at the local level.
362-17 (d) In developing a plan and plan updates under this
362-18 section, the commissioner shall consider:
362-19 (1) existing strategic plans of health and human
362-20 services agencies;
362-21 (2) facilitation of pending reorganizations or
362-22 consolidations of health and human services agencies and programs;
362-23 (3) public comment, including comment documented
362-24 through public hearings conducted under Section 531.036; and
362-25 (4) budgetary issues, including projected agency needs
362-26 and projected availability of funds.
362-27 Sec. 531.023. SUBMISSION OF PLANS AND UPDATES BY AGENCIES.
363-1 All health and human services agencies shall submit to the
363-2 commission strategic plans and biennial updates on a date to be
363-3 determined by commission rule.
363-4 Sec. 531.024. PLANNING AND DELIVERY OF HEALTH AND HUMAN
363-5 SERVICES. The commissioner shall:
363-6 (1) facilitate and enforce coordinated planning and
363-7 delivery of health and human services, including:
363-8 (A) compliance with the coordinated strategic
363-9 plan;
363-10 (B) co-location of services;
363-11 (C) integrated intake; and
363-12 (D) coordinated referral and case management;
363-13 (2) develop with the Department of Information
363-14 Resources automation standards for computer systems to enable
363-15 health and human services agencies to share pertinent data;
363-16 (3) establish and enforce uniform regional boundaries
363-17 for all health and human services agencies;
363-18 (4) carry out statewide health and human services
363-19 needs surveys and forecasting; and
363-20 (5) perform independent special-outcome evaluations of
363-21 health and human services programs and activities.
363-22 Sec. 531.025. STATEWIDE NEEDS APPRAISAL PROJECT. (a) The
363-23 commission may implement the Statewide Needs Appraisal Project to
363-24 obtain county-specific demographic data concerning health and human
363-25 services needs in this state. Any collected data shall be made
363-26 available for use in planning and budgeting for health and human
363-27 services programs by state agencies.
364-1 (b) The commission shall coordinate its activities with the
364-2 appropriate health and human services agencies.
364-3 Sec. 531.026. CONSOLIDATED BUDGET RECOMMENDATION. (a) The
364-4 commission shall prepare and submit to the Legislative Budget Board
364-5 and the governor a consolidated health and human services budget
364-6 recommendation not later than October 15 of each even-numbered
364-7 year.
364-8 (b) The commission shall base the budget recommendation
364-9 prepared under this section on priorities set in the commission's
364-10 coordinated strategic plan for health and human services.
364-11 Sec. 531.027. APPROPRIATIONS REQUEST BY AGENCIES. Each
364-12 health and human services agency shall submit to the commission a
364-13 biennial agency legislative appropriations request on a date to be
364-14 determined by commission rule.
364-15 Sec. 531.028. MANAGEMENT AND DISTRIBUTION OF FUNDS. The
364-16 commissioner shall:
364-17 (1) request budget execution for the transfer of funds
364-18 from one agency to another;
364-19 (2) establish a federal health and human services
364-20 funds management system and maximize the availability of those
364-21 funds; and
364-22 (3) develop a formula for distribution of funds that
364-23 considers such need factors as client base, population, and
364-24 economic and geographic factors within the regions of this state.
364-25 Sec. 531.029. ANNUAL FUNDS REPORT. The commission shall
364-26 file annually with the governor and the presiding officer of each
364-27 house of the legislature a complete and detailed written report
365-1 accounting for all funds received and disbursed by the commission
365-2 during the preceding fiscal year.
365-3 Sec. 531.030. FINANCIAL AUDIT. The financial transactions
365-4 of the commission are subject to audit by the state auditor in
365-5 accordance with Chapter 321.
365-6 Sec. 531.031. MANAGEMENT INFORMATION AND COST ACCOUNTING
365-7 SYSTEM. The commissioner shall establish a management information
365-8 system and a cost accounting system for all health and human
365-9 services that is compatible with and meets the requirements of the
365-10 uniform statewide accounting project.
365-11 Sec. 531.032. APPLICATION OF OTHER LAWS. The commission is
365-12 subject to Chapters 2001 and 2002.
365-13 Sec. 531.033. RULES. The commissioner shall adopt rules
365-14 necessary to carry out the commission's duties under this chapter.
365-15 Sec. 531.034. REVIEW OF AGENCY RULEMAKING. (a) The
365-16 commission shall review all proposed rules of health and human
365-17 services agencies and shall notify an agency within the designated
365-18 review period for a proposed rule if the commission requires
365-19 withdrawal or amendment of the proposed rule. On notification by
365-20 the commission, the agency shall either withdraw or amend and
365-21 resubmit the proposed rule.
365-22 (b) The commission shall review agency rules for compliance
365-23 with:
365-24 (1) the coordinated strategic plan;
365-25 (2) existing statutory authority;
365-26 (3) rules of other health and human services agencies;
365-27 and
366-1 (4) budgetary implications.
366-2 (c) The commission shall review and comment on agency rules
366-3 and notice and public hearing procedures relating to payment rates
366-4 for providers.
366-5 Sec. 531.035. DISPUTE ARBITRATION. The commissioner shall
366-6 arbitrate and render a final decision on interagency disputes.
366-7 Sec. 531.036. PUBLIC HEARINGS. (a) The commission
366-8 biennially shall conduct a series of public hearings in diverse
366-9 locations throughout the state to give citizens of the state an
366-10 opportunity to comment on health and human services issues.
366-11 (b) A hearing held under this section is subject to Chapter
366-12 551.
366-13 (c) In conducting a public hearing under this section, the
366-14 commission shall, to the greatest extent possible, encourage
366-15 participation in the hearings process by diverse groups of citizens
366-16 in this state. Hearings shall be of a sufficient number to allow
366-17 reasonable access to citizens in both rural and urban areas, with
366-18 an emphasis on geographic diversity.
366-19 Sec. 531.037. NOTICE OF PUBLIC HEARINGS. (a) In addition
366-20 to the notice required by Chapter 551, the commission shall:
366-21 (1) provide written notification to public officials
366-22 in the affected area; and
366-23 (2) publish notice of a public hearing under Section
366-24 531.036 in a newspaper of general circulation in the county in
366-25 which the hearing is to be held.
366-26 (b) If the county in which the hearing is to be held does
366-27 not have a newspaper of general circulation, the commission shall
367-1 publish notice in a newspaper of general circulation in an adjacent
367-2 county or in the nearest county in which a newspaper of general
367-3 circulation is published.
367-4 (c) Notice shall be published once a week for two
367-5 consecutive weeks before the hearing, with the first publication
367-6 appearing not later than the 15th day before the date set for the
367-7 hearing.
367-8 Sec. 531.038. GIFTS AND GRANTS. The commission may accept a
367-9 gift or grant from a public or private source to perform any of the
367-10 commission's powers or duties.
367-11 Sec. 531.039. CONTRACTS. The commission may enter into
367-12 contracts as necessary to perform any of the commission's powers or
367-13 duties.
367-14 Sec. 531.040. REFERENCE GUIDE; DICTIONARY. (a) The
367-15 commission shall publish a biennial reference guide describing
367-16 available public health and human services in this state and shall
367-17 make the guide available to all interested parties and agencies.
367-18 (b) The reference guide must include a dictionary of uniform
367-19 terms and services.
367-20 Sec. 531.041. GENERAL POWERS AND DUTIES. The commission has
367-21 all the powers and duties necessary to administer this chapter.
367-22 (b) Article 4413(502), Revised Statutes, and Section 1.14,
367-23 Chapter 15, Acts of the 72nd Legislature, 1st Called Session, 1991,
367-24 are repealed.
367-25 SECTION 8.003. The changes in law made by Sections
367-26 8.004-8.010 of this Act are made to codify Article 4413(503),
367-27 Revised Statutes, and Section 1.17(b), Chapter 15, Acts of the 72nd
368-1 Legislature, 1st Called Session, 1991.
368-2 SECTION 8.004. (a) Subtitle D, Title 2, Human Resources
368-3 Code, is amended by adding Chapter 40 to read as follows:
368-4 CHAPTER 40. DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
368-5 SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
368-6 Sec. 40.001. DEFINITIONS. In this subtitle:
368-7 (1) "Board" means the Board of Protective and
368-8 Regulatory Services.
368-9 (2) "Commission" means the Health and Human Services
368-10 Commission.
368-11 (3) "Department" means the Department of Protective
368-12 and Regulatory Services.
368-13 (4) "Director" means the executive director of the
368-14 Department of Protective and Regulatory Services.
368-15 Sec. 40.002. DEPARTMENT OF PROTECTIVE AND REGULATORY
368-16 SERVICES; RESPONSIBILITY. (a) The Department of Protective and
368-17 Regulatory Services is composed of the board, the director, an
368-18 administrative staff, and other officers and employees necessary to
368-19 efficiently carry out the purposes of this chapter.
368-20 (b) The department is the state agency with primary
368-21 responsibility for protective services and the licensing of certain
368-22 human services facilities, including the:
368-23 (1) protection of children, the aged, and residents of
368-24 certain state facilities; and
368-25 (2) licensing of child-care and certain state human
368-26 services facilities.
368-27 Sec. 40.003. SUNSET PROVISION. The Department of Protective
369-1 and Regulatory Services is subject to Chapter 325, Government Code
369-2 (Texas Sunset Act). Unless continued in existence as provided by
369-3 that chapter, the department is abolished and this chapter expires
369-4 September 1, 1999.
369-5 Sec. 40.004. BOARD OF PROTECTIVE AND REGULATORY SERVICES.
369-6 (a) The board is composed of six members appointed by the governor
369-7 with the advice and consent of the senate. The governor shall
369-8 annually designate one member to be the presiding officer.
369-9 (b) Four members of the board must have a demonstrated
369-10 interest in the services provided by the department, and two
369-11 members must represent the public.
369-12 (c) The board shall be appointed without regard to race,
369-13 color, disability, sex, religion, age, or national origin.
369-14 Sec. 40.005. RESTRICTIONS ON BOARD APPOINTMENT OR
369-15 MEMBERSHIP. (a) A person is not eligible for appointment as a
369-16 member of the board if the person or the person's spouse:
369-17 (1) is a person who is employed by or participates in
369-18 the management of a business entity or other organization regulated
369-19 by the department or receiving a substantial amount of money from
369-20 the department;
369-21 (2) owns or controls, directly or indirectly, more
369-22 than a 10 percent interest in a business entity or other
369-23 organization that is regulated by the department or that receives
369-24 money from the department;
369-25 (3) uses or receives a substantial amount of tangible
369-26 goods, services, or money from the department, other than
369-27 compensation or reimbursement authorized by law for expenses
370-1 incurred as a board member, or as a client or a parent or guardian
370-2 of a client receiving services from the department; or
370-3 (4) is an employee, officer, or paid consultant of a
370-4 trade association in a field under the jurisdiction of the
370-5 department.
370-6 (b) A person who is required to register as a lobbyist under
370-7 Chapter 305, Government Code, because of the person's activities
370-8 for compensation in or for a profession related to the operation of
370-9 the department may not serve as a member of the board.
370-10 Sec. 40.006. REMOVAL FROM BOARD. (a) It is a ground for
370-11 removal from the board if a member:
370-12 (1) does not have at the time of appointment a
370-13 qualification for appointment required by Section 40.004 or 40.005;
370-14 (2) does not maintain during the member's term a
370-15 qualification for appointment required by Section 40.004 or 40.005;
370-16 (3) violates a prohibition established by Section
370-17 40.005;
370-18 (4) is unable to discharge the member's duties for a
370-19 substantial part of the term for which the member was appointed
370-20 because of illness or disability; or
370-21 (5) is absent from more than half of the regularly
370-22 scheduled meetings of the board that the member is eligible to
370-23 attend during each calendar year or is absent from more than two
370-24 consecutive regularly scheduled meetings that the member is
370-25 eligible to attend, except when the absence is excused by a
370-26 majority vote of the board.
370-27 (b) The validity of an action of the board is not affected
371-1 by the fact that it is taken when a ground for removal of a board
371-2 member exists.
371-3 (c) If the presiding officer of the board has knowledge that
371-4 a potential ground for removal of a board member exists, the
371-5 presiding officer shall notify the governor and the director. If
371-6 the director has knowledge that a potential ground for removal of a
371-7 board member exists, the director shall notify the presiding
371-8 officer.
371-9 Sec. 40.007. TERMS. Members of the board serve six-year
371-10 terms, with the terms of two members expiring February 1 of each
371-11 odd-numbered year.
371-12 Sec. 40.008. PER DIEM. While performing their duties, board
371-13 members are entitled to a per diem as prescribed by the General
371-14 Appropriations Act.
371-15 Sec. 40.009. MEETINGS; QUORUM. (a) The board shall meet at
371-16 least quarterly and at the call of the presiding officer.
371-17 (b) Four members of the board constitute a quorum.
371-18 Sec. 40.010. DIRECTOR. (a) The board shall employ the
371-19 director with the approval of the governor. The director serves at
371-20 the pleasure of the board.
371-21 (b) The director is the executive head of the department.
371-22 The director shall perform the duties assigned by the board and
371-23 state law.
371-24 Sec. 40.011. DIVISIONS OF DEPARTMENT. (a) The board may
371-25 establish divisions within the department as necessary for
371-26 efficient administration and for the discharge of the department's
371-27 functions.
372-1 (b) The board may allocate and reallocate functions,
372-2 programs, and activities among the department's divisions.
372-3 Sec. 40.012. PERSONNEL. (a) The director may employ
372-4 personnel necessary to administer the department's duties.
372-5 (b) The director or the director's designated representative
372-6 shall develop an intradepartmental career ladder program, one part
372-7 of which shall require the intradepartmental posting of all
372-8 non-entry-level positions concurrently with any public posting.
372-9 (c) The director or the director's designated representative
372-10 shall develop a system of annual performance evaluations based on
372-11 measurable job tasks. All merit pay for department employees must
372-12 be based on the system established under this subsection.
372-13 (d) The director shall provide to the department's employees
372-14 as often as is necessary information regarding their qualifications
372-15 under this chapter and their responsibilities under applicable laws
372-16 relating to standards of conduct for state employees.
372-17 (e) The director or the director's designated representative
372-18 shall prepare and maintain a written policy statement to ensure
372-19 implementation of a program of equal employment opportunity under
372-20 which all personnel transactions are made without regard to race,
372-21 color, disability, sex, religion, age, or national origin. The
372-22 policy statement must include:
372-23 (1) personnel policies, including policies relating to
372-24 recruitment, evaluation, selection, appointment, training, and
372-25 promotion of personnel;
372-26 (2) a comprehensive analysis of the department's
372-27 workforce that meets federal and state guidelines;
373-1 (3) procedures by which a determination can be made of
373-2 significant underuse in the department's workforce of all persons
373-3 for whom federal or state guidelines encourage a more equitable
373-4 balance; and
373-5 (4) reasonable methods to appropriately address areas
373-6 of significant underuse in the department's workforce of all
373-7 persons for whom federal or state guidelines encourage a more
373-8 equitable balance.
373-9 (f) The policy statement required under Subsection (e) shall
373-10 be filed with the governor's office, cover an annual period, and be
373-11 updated at least annually. The governor's office shall develop a
373-12 biennial report to the legislature based on the information
373-13 submitted. The report may be made separately or as a part of other
373-14 biennial reports made to the legislature.
373-15 Sec. 40.013. MERIT SYSTEM. (a) The department may
373-16 establish a merit system for its employees.
373-17 (b) The merit system may be maintained in conjunction with
373-18 other state agencies that are required by federal law to operate
373-19 under a merit system.
373-20 Sec. 40.014. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
373-21 (a) The department shall develop and implement policies that
373-22 provide the public with a reasonable opportunity to appear before
373-23 the department and to speak on any issue under the jurisdiction of
373-24 the department.
373-25 (b) The department shall prepare information of public
373-26 interest describing the functions of the department and the
373-27 department's procedures by which complaints are filed with and
374-1 resolved by the department. The department shall make the
374-2 information available to the public and appropriate state agencies.
374-3 (c) The department by rule shall establish methods by which
374-4 the public, consumers, and service recipients can be notified of
374-5 the mailing addresses and telephone numbers of appropriate
374-6 departmental personnel for the purpose of directing complaints to
374-7 the department. The department may provide for that notification:
374-8 (1) on each registration form, application, or written
374-9 contract for services of a person regulated by the department;
374-10 (2) on a sign prominently displayed in the place of
374-11 business of each person regulated by the department; or
374-12 (3) in a bill for service provided by a person
374-13 regulated by the department.
374-14 (d) The department shall keep an information file about each
374-15 complaint filed with the department relating to:
374-16 (1) a license holder or entity regulated by the
374-17 department; or
374-18 (2) a service delivered by the department.
374-19 (e) If a written complaint is filed with the department
374-20 relating to a license holder or entity regulated by the department
374-21 or a service delivered by the department, the department, at least
374-22 quarterly and until final disposition of the complaint, shall
374-23 notify the parties to the complaint of the status of the complaint
374-24 unless notice would jeopardize an undercover investigation.
374-25 (Sections 40.015-40.040 reserved for expansion
374-26 SUBCHAPTER B. GENERAL FUNCTIONS OF DEPARTMENT OF
374-27 PROTECTIVE AND REGULATORY SERVICES
375-1 Sec. 40.041. GENERAL DUTIES OF BOARD; DELEGATION. (a) The
375-2 board shall govern the department.
375-3 (b) The board shall:
375-4 (1) supervise the director's administration and
375-5 enforcement of the laws of this state that impose duties on the
375-6 department or board; and
375-7 (2) develop and implement policies that clearly
375-8 separate the respective responsibilities of the board and the staff
375-9 of the department.
375-10 (c) The board may delegate to the director, or to the person
375-11 acting as director in the director's absence, any power or duty
375-12 imposed on the board or department by law, including the authority
375-13 to make final orders or decisions, except that the board may not
375-14 delegate the power or duty to adopt rules. The delegation of a
375-15 power or duty must be in writing.
375-16 Sec. 40.042. RULES. The board shall propose and adopt rules
375-17 to:
375-18 (1) ensure the department's compliance with state and
375-19 federal law; and
375-20 (2) facilitate the implementation of departmental
375-21 programs.
375-22 Sec. 40.043. STRATEGIC PLAN FOR DEPARTMENT. The department
375-23 shall develop a departmental strategic plan based on the goals and
375-24 priorities stated in the commission's coordinated strategic plan
375-25 for health and human services.
375-26 Sec. 40.044. DUTIES RELATING TO DELIVERY OF SERVICES. The
375-27 department shall:
376-1 (1) propose and implement service delivery standards
376-2 for departmental programs;
376-3 (2) provide training and technical assistance to
376-4 regional and local service providers;
376-5 (3) develop and implement systems for monitoring
376-6 departmental program performance and service delivery;
376-7 (4) promote innovative service delivery at the local
376-8 level; and
376-9 (5) cooperate and coordinate with other departments in
376-10 the delivery of services.
376-11 Sec. 40.045. LEGISLATIVE APPROPRIATION REQUEST. The
376-12 department shall submit any legislative appropriation request to
376-13 the commission for comment and for incorporation in the
376-14 commission's consolidated health and human services budget
376-15 recommendation. The legislative appropriation request must comply
376-16 with state priorities and federal requirements.
376-17 Sec. 40.046. APPLICATION OF OTHER LAWS. The department is
376-18 subject to Chapters 551, 2001, and 2002, Government Code.
376-19 Sec. 40.047. GIFTS AND GRANTS. The department may accept a
376-20 gift or grant from a public or private source to perform any of the
376-21 department's powers or duties.
376-22 Sec. 40.048. CONTRACTS. The department may enter into
376-23 contracts as necessary to perform any of the department's powers or
376-24 duties.
376-25 Sec. 40.049. DUTY TO PERFORM OTHER FUNCTIONS. The
376-26 department shall perform other functions as required by law.
376-27 (b) Article 4413(503), Revised Statutes, is repealed.
377-1 SECTION 8.005. The heading of Title 2, Human Resources Code,
377-2 is amended to read as follows:
377-3 TITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF
377-4 PROTECTIVE AND REGULATORY SERVICES
377-5 SECTION 8.006. The heading of Subtitle B, Title 2, Human
377-6 Resources Code, is amended to read as follows:
377-7 SUBTITLE B. STRUCTURE AND FUNCTIONS
377-8 OF DEPARTMENT OF HUMAN SERVICES
377-9 SECTION 8.007. The headings of Chapters 21 and 22, Human
377-10 Resources Code, are amended to read as follows:
377-11 CHAPTER 21. ADMINISTRATIVE PROVISIONS FOR DEPARTMENT
377-12 OF HUMAN SERVICES
377-13 CHAPTER 22. GENERAL FUNCTIONS OF DEPARTMENT
377-14 OF HUMAN SERVICES
377-15 SECTION 8.008. Section 21.002, Human Resources Code, is
377-16 amended to read as follows:
377-17 Sec. 21.002. Sunset Provision. The Texas Department of
377-18 Human Services is subject to Chapter 325, Government Code (Texas
377-19 Sunset Act). Unless continued in existence as provided by that
377-20 chapter, the department is abolished and this title expires
377-21 September 1, 1999, except that Chapter 40 expires as provided by
377-22 Section 40.003.
377-23 SECTION 8.009. Subchapter A, Chapter 41, Human Resources
377-24 Code, is amended by adding Section 41.007 to read as follows:
377-25 Sec. 41.007. SERVICES FOR RUNAWAYS AND AT-RISK YOUTH. (a)
377-26 The department shall operate a program entitled "Services for
377-27 Runaways and At-Risk Youth" to provide services for runaways,
378-1 truants, and other children who are considered at risk of running
378-2 away from home or at risk of suffering abuse or neglect and for the
378-3 families of those children.
378-4 (b) The services may include crisis family intervention,
378-5 emergency short-term residential care, family counseling, parenting
378-6 skills training, and youth coping skills training.
378-7 SECTION 8.010. Subchapter C, Chapter 48, Human Resources
378-8 Code, is amended by adding Section 48.042 to read as follows:
378-9 Sec. 48.042. RULES CONCERNING FACILITIES OF TEXAS DEPARTMENT
378-10 OF MENTAL HEALTH AND MENTAL RETARDATION. The department and the
378-11 Texas Department of Mental Health and Mental Retardation shall
378-12 adopt companion rules providing for the disposition of corrective
378-13 action recommendations made by the department concerning findings
378-14 of abuse or neglect in facilities of the Texas Department of Mental
378-15 Health and Mental Retardation.
378-16 SECTION 8.011. (a) The changes in law made by Sections
378-17 8.012-8.045 of this Act are made to conform to the transfer of all
378-18 activities related to the child protective services program, the
378-19 adult protective services program, and the licensing of child-care
378-20 facilities from the Texas Department of Human Services to the
378-21 Department of Protective and Regulatory Services provided by
378-22 Section 1.06, Chapter 15, Acts of the 72nd Legislature, 1st Called
378-23 Session, 1991, as amended by Section 1, Chapter 747, Acts of the
378-24 73rd Legislature, Regular Session, 1993.
378-25 (b) In addition to the changes provided by Subsection (a) of
378-26 this section, the changes in law made by Section 8.043 of this Act
378-27 are made to conform to the transfer of all activities relating to
379-1 the investigation of abuse and neglect from the Texas Department of
379-2 Mental Health and Mental Retardation to the Department of
379-3 Protective and Regulatory Services provided by Section 1.06(b),
379-4 Chapter 15, Acts of the 72nd Legislature, 1st Called Session, 1991.
379-5 SECTION 8.012. Section 11.001, Human Resources Code, is
379-6 amended to read as follows:
379-7 Sec. 11.001. Definitions. Except as provided by Section
379-8 34.002 or 40.001, in <In> this title:
379-9 (1) "Board" means the Texas Board of Human Services.
379-10 (2) "Department" means the Texas Department of Human
379-11 Services.
379-12 (3) "Commissioner" means the Commissioner of Human
379-13 Services.
379-14 (4) "Assistance" means all forms of assistance and
379-15 services for needy persons authorized by Subtitle C <of this
379-16 title>.
379-17 (5) "Financial assistance" means money payments for
379-18 needy persons authorized by Chapter 31 <of this code>.
379-19 (6) "Medical assistance" means assistance for needy
379-20 persons authorized by Chapter 32 <of this code>.
379-21 SECTION 8.013. Section 22.001(b), Human Resources Code, is
379-22 amended to read as follows:
379-23 (b) The department shall administer assistance to needy
379-24 persons who are aged, blind, or disabled and to needy families with
379-25 dependent children. The department shall also administer or
379-26 supervise general relief <and child welfare> services. The
379-27 department may administer state child day-care services.
380-1 SECTION 8.014. Section 31.002(b), Human Resources Code, is
380-2 amended to read as follows:
380-3 (b) In this chapter, the term "dependent child" also applies
380-4 to a child:
380-5 (1) who meets the specifications set forth in
380-6 Subdivisions (1)-(4) of the preceding subsection;
380-7 (2) who has been removed from the home of a relative
380-8 specified in Subdivision (5) of the preceding subsection as a
380-9 result of a judicial determination that the child's residence there
380-10 is contrary to his or her welfare;
380-11 (3) whose placement and care are the responsibility of
380-12 the department, the Department of Protective and Regulatory
380-13 Services, or an agency with which the department or the Department
380-14 of Protective and Regulatory Services has entered into an agreement
380-15 for the care and supervision of the child;
380-16 (4) who has been placed in a foster home or child-care
380-17 institution by the department or the Department of Protective and
380-18 Regulatory Services; and
380-19 (5) for whom the state may receive federal funds for
380-20 the purpose of providing foster care in accordance with rules
380-21 promulgated by the department.
380-22 SECTION 8.015. Section 31.004, Human Resources Code, is
380-23 amended to read as follows:
380-24 Sec. 31.004. FOSTER CARE. The Department of Protective and
380-25 Regulatory Services <department> may accept and spend funds
380-26 available from any source to provide foster care in facilities
380-27 approved by the Department of Protective and Regulatory Services
381-1 <licensing division of the department> for dependent children who
381-2 meet the specifications set out in Section 31.002(b) <of this
381-3 code>.
381-4 SECTION 8.016. The heading of Subtitle D, Title 2, Human
381-5 Resources Code, is amended to read as follows:
381-6 SUBTITLE D. DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES;
381-7 CHILD WELFARE AND PROTECTIVE SERVICES
381-8 SECTION 8.017. Section 41.005, Human Resources Code, is
381-9 amended to read as follows:
381-10 Sec. 41.005. Notification of Charters Filed With the
381-11 Secretary of State. The secretary of state shall notify the
381-12 department <Texas Department of Human Services> in writing of each
381-13 charter filed with the secretary by a person who proposes to
381-14 provide care for children under 18 years of age and who is required
381-15 to be licensed by or registered with the department to provide that
381-16 care. The secretary shall send a copy of the charter to the
381-17 department.
381-18 SECTION 8.018. Sections 41.021(a) and (c), Human Resources
381-19 Code, are amended to read as follows:
381-20 (a) The department may pay the cost of protective foster
381-21 care for children:
381-22 (1) for whom the department has initiated a suit and
381-23 has been named managing conservator by a court order issued under
381-24 Title 2, Family Code; and
381-25 (2) who are ineligible for foster care payments under
381-26 the <department's> aid to families with dependent children program
381-27 of the Texas Department of Human Services.
382-1 (c) Payments for protective foster care, including medical
382-2 care, must be equal to payments made for similar care for a child
382-3 who is eligible for the <department's> aid to families with
382-4 dependent children program of the Texas Department of Human
382-5 Services.
382-6 SECTION 8.019. Section 41.025, Human Resources Code, is
382-7 amended to read as follows:
382-8 Sec. 41.025. Medical Services Limitation. The department
382-9 may not provide the medical care payments authorized by Section
382-10 41.021(c) <of this code> if:
382-11 (1) a federal law or regulation prohibits those
382-12 medical payments unless medical payments are also provided for
382-13 medically needy children who are not eligible for the
382-14 <department's> aid to families with dependent children program of
382-15 the Texas Department of Human Services and for whom the Department
382-16 of Protective and Regulatory Services <department> is not named
382-17 managing conservator; or
382-18 (2) the federal government does not fund at least 50
382-19 percent of the cost of the medical payments authorized by this
382-20 subchapter.
382-21 SECTION 8.020. Section 42.021(b), Human Resources Code, is
382-22 amended to read as follows:
382-23 (b) The director <commissioner> of the department shall
382-24 appoint as director of the division a person who:
382-25 (1) meets the qualifications required of a child-care
382-26 administrator by Chapter 43 <of this code>;
382-27 (2) holds a graduate degree in social science or law
383-1 and has five years' administrative experience in a field related to
383-2 child care; or
383-3 (3) has 10 years' experience in a field related to
383-4 child care, at least 5 of which must be administrative.
383-5 SECTION 8.021. Sections 42.022(a) and (g), Human Resources
383-6 Code, are amended to read as follows:
383-7 (a) The State Advisory Committee on Child-Care
383-8 Administrators and Facilities is appointed by the board on the
383-9 recommendation of the director <commissioner>.
383-10 (g) The board, on the recommendation of the director
383-11 <commissioner>, shall appoint an advisory subcommittee on
383-12 child-care administration from the membership of the Advisory
383-13 Committee on Child-Care Administrators and Facilities. The
383-14 subcommittee shall advise the board on licensing child-care
383-15 administrators, including the content of the examination
383-16 administered to license applicants under Section 43.004 <of this
383-17 code>. The subcommittee on child-care administration shall meet at
383-18 the same time the committee meets.
383-19 SECTION 8.022. Section 42.023(a), Human Resources Code, is
383-20 amended to read as follows:
383-21 (a) The director shall prepare an annual <As part of the
383-22 annual report required by Section 21.011 of this code, the
383-23 commissioner shall include a> written report regarding the
383-24 division's activities under this chapter.
383-25 SECTION 8.023. Section 42.052(f), Human Resources Code, is
383-26 amended to read as follows:
383-27 (f) A family home may not place a public advertisement that
384-1 uses the title "registered family home" or any variation of the
384-2 phrase unless the home is registered with the division under this
384-3 chapter. Any public advertisement for a registered family home
384-4 which uses the title "registered family home" must contain a
384-5 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
384-6 <TEXAS> DEPARTMENT OF PROTECTIVE AND REGULATORY <HUMAN> SERVICES
384-7 BUT IS NOT LICENSED OR INSPECTED."
384-8 SECTION 8.024. Section 44.001, Human Resources Code, is
384-9 amended to read as follows:
384-10 Sec. 44.001. Designated Agency. The Texas Department of
384-11 Human Services <department> is the state agency designated to
384-12 administer a day-care program established by federal law and
384-13 financed partially or totally by federal funds.
384-14 SECTION 8.025. Sections 44.002(a), (c), and (d), Human
384-15 Resources Code, are amended to read as follows:
384-16 (a) The Commissioner of Human Services <commissioner> shall
384-17 promulgate rules to carry out the administrative provisions of the
384-18 program consistent with federal law and regulations.
384-19 (c) The rules must establish procedures for input by the
384-20 parents of the children in a day-care center into the operation of
384-21 the center. Where programs have more than 30 percent of their
384-22 licensed capacity purchased by the Texas Department of Human
384-23 Services <department>, these procedures must include the
384-24 establishment of ongoing parent advisory committees that regularly
384-25 meet and review day-care center operations.
384-26 (d) The Commissioner of Human Services <commissioner> may
384-27 promulgate eligibility standards for admittance into the program,
385-1 but the standards must allow for exceptions where necessary to
385-2 maintain family self-sufficiency and integrity. The exceptions
385-3 must be reviewed biannually by the Texas Department of Human
385-4 Services <department> with opportunity provided for public input.
385-5 The initial exceptions and any revisions must be published in the
385-6 Texas Register.
385-7 SECTION 8.026. Section 44.003, Human Resources Code, is
385-8 amended to read as follows:
385-9 Sec. 44.003. Administration of Federal-Local Program. (a)
385-10 If the program is to be funded through political subdivisions of
385-11 the state or local agencies approved by the Texas Department of
385-12 Human Services <department> matching federal grants, the department
385-13 shall promulgate procedures for effective delivery of services
385-14 consistent with this section and with federal law and regulations.
385-15 (b) If the services are provided through contracting with
385-16 operators of day-care programs on request from political
385-17 subdivisions or local agencies, the Texas Department of Human
385-18 Services <department> may not promulgate standards for selection of
385-19 the type of programs more restrictive than required by federal law
385-20 or regulations.
385-21 (c) The Texas Department of Human Services <department>
385-22 shall establish an accounting system consistent with federal law
385-23 and regulations which will provide that an operator of a day-care
385-24 program contracting with the department:
385-25 (1) shall receive prepayment in accordance with
385-26 policies and procedures mutually agreed on by the <state>
385-27 comptroller <of public accounts> and the department; and
386-1 (2) shall be paid on the basis of legitimate and
386-2 reasonable expenses, insofar as possible, given federal regulations
386-3 and department policy, instead of being paid on the basis of the
386-4 number of children attending or the number of children enrolled in
386-5 the program, provided that on being monitored by the department,
386-6 the contracting operator can substantiate that there were
386-7 sufficient preparations in the development of the services offered.
386-8 (d) The Texas Department of Human Services <department>
386-9 shall establish procedures for hearing complaints by operators of
386-10 day-care programs contracting with the department relating to the
386-11 failure of the department to comply with Subsection (c) <of this
386-12 section>.
386-13 SECTION 8.027. Section 44.031, Human Resources Code, is
386-14 amended to read as follows:
386-15 Sec. 44.031. Establishment. (a) The Texas Department of
386-16 Human Services <department> may establish day-care centers for all
386-17 children who qualify for services under Section 44.032 <of this
386-18 code>. Where in the opinion of the department it appears feasible
386-19 for the furtherance of the objectives of this legislation, the
386-20 department may establish cooperative agreements with other state
386-21 agencies.
386-22 (b) The Texas Department of Human Services <department> is
386-23 not required to establish a day-care center or to provide services
386-24 under this subchapter unless funds are appropriated for that
386-25 purpose.
386-26 SECTION 8.028. Sections 44.032(a) and (b), Human Resources
386-27 Code, are amended to read as follows:
387-1 (a) Except as provided by Subsection (b) <of this section>,
387-2 to be eligible for admission to a day-care center authorized under
387-3 this subchapter, a child must be at least six weeks of age and:
387-4 (1) the child must be eligible for state assistance
387-5 under the aid to families with dependent children program and the
387-6 child's caretaker must be employed, enrolled in a
387-7 <department-authorized> job training program authorized by the
387-8 Texas Department of Human Services, registered to work by the Texas
387-9 Employment Commission, or permanently and totally disabled; or
387-10 (2) the child must be from a family eligible under
387-11 federal law or regulations to participate in a partially or totally
387-12 federally funded welfare or social services program.
387-13 (b) Additional children of the same age group may also be
387-14 admitted to a center under additional standards established by the
387-15 Commissioner of Human Services <commissioner>.
387-16 SECTION 8.029. Section 44.034, Human Resources Code, is
387-17 amended to read as follows:
387-18 Sec. 44.034. Standards; Recommendations. (a) If the Texas
387-19 Department of Human Services <department> establishes day-care
387-20 centers under this subchapter, the department shall prescribe
387-21 standards of operation and performance for the centers that will
387-22 ensure proper nutrition, social adjustment, health services, and
387-23 appropriate growth and development for children admitted.
387-24 (b) The Texas Department of Human Services <department>
387-25 shall also prescribe procedures for receiving recommendations
387-26 relating to the operation of the centers from parents, guardians,
387-27 or custodians of children admitted to the centers, operators of the
388-1 centers, and other interested persons.
388-2 SECTION 8.030. Sections 44.035(a), (c), and (d), Human
388-3 Resources Code, are amended to read as follows:
388-4 (a) The Texas Department of Human Services <department> may
388-5 contract for services authorized under this subchapter with an
388-6 individual, organization, association, or corporation meeting the
388-7 standards established under Section 44.034 <of this code> and the
388-8 standards for child-care facilities licensed by the Department of
388-9 Protective and Regulatory Services <department>.
388-10 (c) The Texas Department of Human Services <department>
388-11 shall terminate a contract with a day-care center that fails to
388-12 maintain the department's standards.
388-13 (d) When the Texas Department of Human Services <department>
388-14 intends to cancel its contract with a day-care center, the
388-15 department shall give the center reasonable notice and an
388-16 opportunity for a hearing if one is requested. The department
388-17 shall adopt rules consistent with Chapter 2001, Government Code,
388-18 <the Administrative Procedure and Texas Register Act (Article
388-19 6252-13a, Vernon's Texas Civil Statutes)> to implement this
388-20 section. Hearings under this section are contested cases under
388-21 that chapter <Act>.
388-22 SECTION 8.031. Section 44.036, Human Resources Code, is
388-23 amended to read as follows:
388-24 Sec. 44.036. Annual Evaluation of Day-Care Centers. If the
388-25 Texas Department of Human Services <department> establishes
388-26 day-care centers or provides services under this subchapter, the
388-27 department shall evaluate the performance of the centers each state
389-1 fiscal year. This evaluation shall be sent to the governor and to
389-2 the Legislative Budget Board not later than the 100th day after the
389-3 last day of the state fiscal year covered by the evaluation.
389-4 SECTION 8.032. Sections 44.061(a), (c), (d), (f), (g), (h),
389-5 and (i), Human Resources Code, are amended to read as follows:
389-6 (a) The State Advisory Committee on Child-Care Programs is
389-7 appointed by the Texas Board of Human Services <board> on the
389-8 recommendation of the Commissioner of Human Services
389-9 <commissioner>.
389-10 (c) The Texas Board of Human Services <board> shall appoint
389-11 the advisory committee to provide for balanced representation of:
389-12 (1) parents, guardians, or custodians of children who
389-13 use child-care programs;
389-14 (2) child-care advocacy groups;
389-15 (3) operators and providers of child-care programs and
389-16 services representing rural and urban communities;
389-17 (4) for profit and nonprofit providers of child-care
389-18 services representing rural and urban communities;
389-19 (5) experts in early childhood development and
389-20 education;
389-21 (6) experts in child health and nutrition;
389-22 (7) other child-care professionals;
389-23 (8) the general public; and
389-24 (9) ex officio representatives from each state agency
389-25 that has an interest or role in state child-care programs.
389-26 (d) The Texas Department of Human Services <department>
389-27 shall provide to the committee staff support and other support
390-1 necessary to operate the committee.
390-2 (f) The committee shall advise and assist the Texas
390-3 Department of Human Services <department> in developing coordinated
390-4 state policies for the use of federal and state funds in child-care
390-5 programs, including policies relating to the:
390-6 (1) review of any state plan required for the use of
390-7 federal or state funds;
390-8 (2) development of a coordinated and comprehensive
390-9 training program for child-care providers;
390-10 (3) establishment of guidelines providing technical
390-11 assistance to child-care providers, including loans, grants, or
390-12 training;
390-13 (4) development of a quality improvement program for
390-14 federal and state funded child-care services;
390-15 (5) review of public access to current child-care
390-16 services, with special emphasis placed on special needs populations
390-17 and localities of the state with limited child-care programs;
390-18 (6) development of consumer education programs related
390-19 to the access and selection of child-care services;
390-20 (7) review of appropriations to child-care programs;
390-21 (8) review of expenditures of child-care programs; and
390-22 (9) review of state efforts to maximize access to
390-23 federal child-care funding.
390-24 (g) The committee shall review child-care policies and
390-25 programs for compliance with applicable guidelines and shall advise
390-26 the Texas Board of Human Services <board> and Texas Department of
390-27 Human Services <department> on the results of the review.
391-1 (h) The Texas Department of Human Services <department>,
391-2 with assistance from the committee, shall hold biennial public
391-3 hearings on state and federal child-care programs to elicit public
391-4 response and recommendations regarding the quality, accessibility,
391-5 and affordability of child-care services. The hearings must be
391-6 held in at least three separate geographical regions of the state
391-7 and may be held in conjunction with other public hearings on
391-8 child-care held by the Texas Department of Human Services
391-9 <department>.
391-10 (i) The committee shall annually report its findings and
391-11 recommendations to the Texas Board of Human Services <board>.
391-12 SECTION 8.033. Sections 45.002(b), (c), and (d), Human
391-13 Resources Code, are amended to read as follows:
391-14 (b) After receipt of a notice provided for in Subsection (a)
391-15 <of this section>, the director <commissioner> may request
391-16 additional or supporting information considered necessary from an
391-17 appropriate authority in the state where the child is located.
391-18 (c) No sending agency may send, bring, or cause to be sent
391-19 or brought into this state a child for placement until the director
391-20 <commissioner> notifies the sending agency in writing that the
391-21 proposed placement does not appear to be contrary to the best
391-22 interests of the child.
391-23 (d) The director <commissioner> may not approve the
391-24 placement in this state of a child from outside this state without
391-25 the concurrence of the individuals with whom the child is proposed
391-26 to be placed or the head of an institution with which the child is
391-27 proposed to be placed.
392-1 SECTION 8.034. Sections 45.003(a), (b), (c), and (e), Human
392-2 Resources Code, are amended to read as follows:
392-3 (a) After placement in this state, the sending agency
392-4 retains jurisdiction over the child sufficient to determine all
392-5 matters relating to the custody, supervision, care, treatment, and
392-6 disposition of the child which it would have had if the child had
392-7 remained in the sending agency's state, until the child is adopted,
392-8 reaches majority, becomes self-supporting, or is discharged with
392-9 the concurrence of the director <commissioner>. The sending agency
392-10 may cause the child to be returned to it or transferred to another
392-11 location, except as provided by Subsection (e) <of this section>.
392-12 (b) The sending agency has financial responsibility for
392-13 support and maintenance of the child during each period of
392-14 placement in Texas. If the sending agency fails wholly or in part
392-15 to provide financial support and maintenance during placement, the
392-16 director <commissioner> may bring suit under Section 14.05, Family
392-17 Code, and may file a complaint with the appropriate prosecuting
392-18 attorney, claiming a violation of Section 25.05, Penal Code.
392-19 (c) After failure of the sending agency to provide support
392-20 or maintenance, if the director <commissioner> determines that
392-21 financial responsibility is unlikely to be assumed by the sending
392-22 agency, or by the child's parents or guardian, if not the sending
392-23 agency, the director <commissioner> shall cause the child to be
392-24 returned to the sending agency.
392-25 (e) The director <commissioner> may not concur in the
392-26 discharge of a child placed in a public institution in this state
392-27 without the concurrence of the head of the institution.
393-1 SECTION 8.035. Sections 45.022(1) and (2), Human Resources
393-2 Code, are amended to read as follows:
393-3 (1) "Appropriate public authorities," with reference
393-4 to this state, means the director <Commissioner> of the <Texas>
393-5 Department of Protective and Regulatory <Human> Services.
393-6 (2) "Appropriate authority in the receiving state,"
393-7 with reference to this state, means the director <Commissioner> of
393-8 the <Texas> Department of Protective and Regulatory <Human>
393-9 Services.
393-10 SECTION 8.036. Sections 45.023(a) and (b), Human Resources
393-11 Code, are amended to read as follows:
393-12 (a) Financial responsibility for a child placed as provided
393-13 in the compact is determined, in the first instance, as provided in
393-14 Article V of the compact. After partial or complete default of
393-15 performance under the provisions of Article V assigning financial
393-16 responsibility, the director <commissioner> may bring suit under
393-17 Section 14.05, Family Code, and may file a complaint with the
393-18 appropriate prosecuting attorney, claiming a violation of Section
393-19 25.05, Penal Code.
393-20 (b) After default, if the director <commissioner> determines
393-21 that financial responsibility is unlikely to be assumed by the
393-22 sending agency or the child's parents, the director <commissioner>
393-23 shall cause the child to be returned to the sending agency.
393-24 SECTION 8.037. Section 45.024, Human Resources Code, is
393-25 amended to read as follows:
393-26 Sec. 45.024. Approval of Placement or Discharge. The
393-27 director <commissioner> may not approve the placement of a child in
394-1 this state without the concurrence of the individuals with whom the
394-2 child is proposed to be placed or the head of an institution with
394-3 which the child is proposed to be placed. The director
394-4 <commissioner> may not approve the discharge of a child placed in a
394-5 public institution in this state without the concurrence of the
394-6 head of the institution.
394-7 SECTION 8.038. Section 45.026, Human Resources Code, is
394-8 amended to read as follows:
394-9 Sec. 45.026. Compact Administrator. The governor shall
394-10 appoint the director <commissioner> as compact administrator. If
394-11 the director <commissioner> is unable to attend a compact meeting,
394-12 the director <commissioner> may designate a department employee to
394-13 attend the meeting as the director's <commissioner's>
394-14 representative.
394-15 SECTION 8.039. Section 47.004(d), Human Resources Code, is
394-16 amended to read as follows:
394-17 (d) The county may pay a subsidy under Subsection (b) or (c)
394-18 of this section if the county is responsible for the child's foster
394-19 home care at the time of the adoption. The state shall pay the
394-20 subsidy if at the time of the adoption the child is receiving aid
394-21 under the <department's> aid to families with dependent children
394-22 program of the Texas Department of Human Services, and the state
394-23 may pay the subsidy if the Department of Protective and Regulatory
394-24 Services <department> is managing conservator for the child. If
394-25 the child is receiving supplemental security income from the
394-26 federal government, the state may pay the subsidy regardless of
394-27 whether the state is the managing conservator for the child.
395-1 SECTION 8.040. Sections 47.032(b) and (c), Human Resources
395-2 Code, are amended to read as follows:
395-3 (b) The committee is composed of:
395-4 (1) a representative of the department appointed by
395-5 the director <commissioner>;
395-6 (2) a representative of the Texas Department of Mental
395-7 Health and Mental Retardation appointed by the commissioner of
395-8 mental health and mental retardation;
395-9 (3) an adoptive parent appointed by the lieutenant
395-10 governor;
395-11 (4) an adoptive parent appointed by the speaker of the
395-12 house;
395-13 (5) a psychologist or psychiatrist licensed to
395-14 practice in this state who specializes in treating adopted children
395-15 appointed by the lieutenant governor; and
395-16 (6) a representative of a private adoption agency
395-17 appointed by the speaker of the house.
395-18 (c) The director <commissioner> shall set the time and place
395-19 of the first meeting.
395-20 SECTION 8.041. Section 48.002(7), Human Resources Code, is
395-21 amended to read as follows:
395-22 (7) "Department" means the Department of Protective
395-23 and Regulatory <Human> Services.
395-24 SECTION 8.042. Section 48.021(e), Human Resources Code, is
395-25 amended to read as follows:
395-26 (e) The department shall file an application under Section
395-27 682 or 875, <110A or 131(b) of the> Texas Probate Code, to be
396-1 appointed guardian of the person and estate of an individual who is
396-2 a minor, is a conservatee of the department, and, because of a
396-3 physical or mental condition, will be substantially unable to
396-4 provide food, clothing, or shelter for himself or herself, to care
396-5 for the individual's own physical health, or to manage the
396-6 individual's own financial affairs when the individual becomes an
396-7 adult.
396-8 SECTION 8.043. Sections 48.036(c), (d), and (e), Human
396-9 Resources Code, are amended to read as follows:
396-10 (c) If a person has reasonable cause to believe that an
396-11 elderly or disabled person has been abused, exploited, or neglected
396-12 in a facility operated, licensed, certified, or registered by a
396-13 state agency, the person shall report the information to the state
396-14 agency that operates, licenses, certifies, or registers the
396-15 facility. If the abuse, exploitation, or neglect occurs in a
396-16 facility licensed under Chapter 242, Health and Safety Code, the
396-17 person shall report the information as prescribed by Subchapter E
396-18 of that chapter, and the Texas Department of Human Services
396-19 <Health> shall investigate the report as prescribed by that
396-20 subchapter. If the abuse, exploitation, or neglect occurs in the
396-21 Texas School for the Deaf or the Texas School for the Blind and
396-22 Visually Impaired, the person shall report the information as
396-23 prescribed by Chapter 34, Family Code, and the investigation shall
396-24 be conducted in accordance with that law. If the abuse,
396-25 exploitation, or neglect occurs in a facility of the Texas
396-26 Department of Mental Health and Mental Retardation, the person
396-27 shall report the information to the Department of Protective and
397-1 Regulatory Services.
397-2 (d) If the department receives a report under this section
397-3 relating to a person in a facility operated, licensed, certified,
397-4 or registered by a state agency other than the Texas Department of
397-5 Mental Health and Mental Retardation, the department shall refer
397-6 the report to the agency.
397-7 (e) Each state agency that operates, licenses, certifies, or
397-8 registers a facility in which elderly or disabled persons reside
397-9 shall make a thorough investigation promptly after receiving a
397-10 report that an elderly or disabled person has been or may be
397-11 abused, exploited, or neglected in a facility operated, licensed,
397-12 certified, or registered by the agency. However, the department
397-13 shall make the investigation if the report concerns an elderly or
397-14 disabled person in a facility of the Texas Department of Mental
397-15 Health and Mental Retardation.
397-16 SECTION 8.044. Section 48.041(b), Human Resources Code, is
397-17 amended to read as follows:
397-18 (b) If any state agency<, including the Texas Department of
397-19 Health,> receives a complaint relating to an investigation
397-20 conducted by the agency, the agency shall refer the complaint to
397-21 the department. The department shall review each complaint
397-22 received by a state agency or by the department relating to an
397-23 investigation conducted by a state agency. The department shall
397-24 conduct an investigation where necessary to carry out the intent of
397-25 this chapter and shall report any findings and recommendations to
397-26 the governing body of the agency that conducted the original
397-27 investigation for any necessary corrective action.
398-1 SECTION 8.045. Sections 53.001(a) and (c), Human Resources
398-2 Code, are amended to read as follows:
398-3 (a) The <Texas> Department of Protective and Regulatory
398-4 <Human> Services, the Texas Youth Commission, and the Texas
398-5 Juvenile Probation Commission shall maintain a joint memorandum of
398-6 understanding to develop or expand nonresidential community
398-7 contracts to help dysfunctional families in each agency's client
398-8 population. The memorandum must include:
398-9 (1) parent skills training;
398-10 (2) coping skills training for youth, including
398-11 communication, problem solving, decision making, and conflict
398-12 management skills;
398-13 (3) support groups for children of substance-abusing
398-14 and dysfunctional families, including support groups for the
398-15 parents of the children; and
398-16 (4) individual counseling for a limited number of
398-17 crisis referrals from the support groups.
398-18 (c) The Department of Protective and Regulatory Services
398-19 <department> shall act as the lead agency in coordinating the
398-20 development and implementation of the memorandum.
398-21 SECTION 8.046. The changes in law made by Sections
398-22 8.047-8.077 of this Act are made to conform to the transfer of the
398-23 child protective services program from the Texas Department of
398-24 Human Services to the Department of Protective and Regulatory
398-25 Services provided by Section 1.06, Chapter 15, Acts of the 72nd
398-26 Legislature, 1st Called Session, 1991.
398-27 SECTION 8.047. Section 11.01(7), Family Code, is amended to
399-1 read as follows:
399-2 (7) "Authorized agency" means a public social agency
399-3 authorized to care for children or to place children for adoption,
399-4 or a private association, corporation, or person approved for that
399-5 purpose by the <Texas> Department of Protective and Regulatory
399-6 <Human> Services through a license, certification, or other means.
399-7 SECTION 8.048. Section 11.05(c), Family Code, is amended to
399-8 read as follows:
399-9 (c) A court shall have jurisdiction over a suit affecting
399-10 the parent-child relationship if it has been, correctly or
399-11 incorrectly, informed by the <Texas> Department of Protective and
399-12 Regulatory <Human> Services that the child has not been the subject
399-13 of a suit affecting the parent-child relationship and the petition
399-14 states that no other court has continuing jurisdiction over the
399-15 child.
399-16 SECTION 8.049. Section 11.071(a), Family Code, is amended to
399-17 read as follows:
399-18 (a) The petitioner or the court shall request from the
399-19 <Texas> Department of Protective and Regulatory <Human> Services
399-20 identification of the court that last had jurisdiction of the child
399-21 in a suit affecting the parent-child relationship unless:
399-22 (1) the petition alleges that no court has continuing
399-23 jurisdiction of the child, and the issue is not disputed by the
399-24 pleadings; or
399-25 (2) the petition alleges that the court in which the
399-26 suit, petition for further remedy, or motion to modify has been
399-27 filed has acquired and retains continuing jurisdiction of the child
400-1 as the result of a prior proceeding, and the issue is not disputed
400-2 by the pleadings.
400-3 SECTION 8.050. Sections 11.17(a) and (c), Family Code, are
400-4 amended to read as follows:
400-5 (a) Except as provided by Subsection (b) of this section,
400-6 the clerk of each court having jurisdiction of suits affecting the
400-7 parent-child relationship shall transmit to the <Texas> Department
400-8 of Protective and Regulatory <Human> Services a copy of the decree
400-9 entered in each suit affecting the parent-child relationship,
400-10 together with the name and all prior names, birthdate, and place of
400-11 birth of the child. The department shall maintain these records in
400-12 a central file according to the name, birthdate, and place of birth
400-13 of the child, the court which rendered the decree, and the docket
400-14 number of the suit.
400-15 (c) The department may charge a reasonable fee to cover the
400-16 cost of determining and sending information concerning the identity
400-17 of courts with continuing jurisdiction. The receipts shall be
400-18 deposited in any financial institution as determined by the
400-19 director of the department <commissioner of welfare> and withdrawn
400-20 as necessary for the sole purpose of operating and maintaining the
400-21 central record file.
400-22 SECTION 8.051. Sections 11.171(b) and (c), Family Code, are
400-23 amended to read as follows:
400-24 (b) The clerk shall send the fees collected under this
400-25 section to the <Texas> Department of Protective and Regulatory
400-26 <Human> Services.
400-27 (c) The <Texas> Department of Protective and Regulatory
401-1 <Human> Services shall deposit the fees received under this section
401-2 to the credit of a special fund in the State Treasury.
401-3 SECTION 8.052. Section 11.18(c), Family Code, is amended to
401-4 read as follows:
401-5 (c) If the court orders the <Texas> Department of Protective
401-6 and Regulatory <Human> Services to prepare the social study
401-7 prescribed by Section 11.12 of this code, the court shall award a
401-8 reasonable fee for the preparation of the study to the department.
401-9 The department's fee shall be taxed as costs, and shall be paid
401-10 directly to the department. The department may enforce the order
401-11 for the fee in its own name.
401-12 SECTION 8.053. Section 11.20, Family Code, is amended to
401-13 read as follows:
401-14 Sec. 11.20. REPRESENTATION OF DEPARTMENT. In any suit
401-15 brought under Subtitle A or C of this title in which the <Texas>
401-16 Department of Protective and Regulatory <Human> Services is seeking
401-17 to be named conservator of a child, the department shall be
401-18 represented in the trial court by the prosecuting attorney who
401-19 represents the state in criminal cases in the district or county
401-20 court of the county where the suit is filed or transferred or by
401-21 the attorney general.
401-22 SECTION 8.054. Section 13.03(b), Family Code, is amended to
401-23 read as follows:
401-24 (b) The court may order a reasonable fee for each
401-25 court-appointed expert and may require the fee to be paid by any or
401-26 all of the parties or by the <Texas> Department of Protective and
401-27 Regulatory <Human> Services, if the department is a party of the
402-1 suit, in the amounts and in the manner directed, or the court may
402-2 tax all or part or none of the fee as costs in the suit.
402-3 SECTION 8.055. Section 15.024(a), Family Code, is amended to
402-4 read as follows:
402-5 (a) A petition by the Department of Protective and
402-6 Regulatory Services <Texas Department of Human Services> requesting
402-7 termination of the parent-child relationship with respect to a
402-8 parent who is not the petitioner may be granted if the court finds
402-9 that:
402-10 (1) the parent has a mental or emotional illness or a
402-11 mental deficiency that renders the parent unable to provide for the
402-12 physical, emotional, and mental needs of the child, and the illness
402-13 or deficiency, in all reasonable probability, proved by clear and
402-14 convincing evidence, renders the parent unable to provide for those
402-15 needs from the time of the court's finding until the 18th birthday
402-16 of the child;
402-17 (2) the department has been the permanent managing
402-18 conservator of the child of the parent for the six months preceding
402-19 the filing of the petition; and
402-20 (3) the termination is in the best interest of the
402-21 child.
402-22 SECTION 8.056. Sections 15.03(c) and (d), Family Code, are
402-23 amended to read as follows:
402-24 (c) The affidavit may contain:
402-25 (1) a designation of any qualified person, the
402-26 Department of Protective and Regulatory Services <Texas Department
402-27 of Human Services>, or any authorized agency as managing
403-1 conservator of the child;
403-2 (2) a waiver of process in a suit to terminate the
403-3 parent-child relationship brought under Section 15.02(1)(K) of this
403-4 code, or in a suit to terminate joined with a petition for adoption
403-5 under Section 16.03(b) of this code; and
403-6 (3) a consent to the placement of the child for
403-7 adoption by the Department of Protective and Regulatory Services
403-8 <Texas Department of Human Services> or by an agency authorized by
403-9 the Department of Protective and Regulatory Services <Texas
403-10 Department of Human Services> to place children for adoption.
403-11 (d) An affidavit of relinquishment of parental rights which
403-12 designates as the managing conservator of the child the Department
403-13 of Protective and Regulatory Services <Texas Department of Human
403-14 Services> or an agency authorized by the Department of Protective
403-15 and Regulatory Services <Texas Department of Human Services> to
403-16 place children for adoption is irrevocable. Any other affidavit of
403-17 relinquishment is revocable unless it expressly provides that it is
403-18 irrevocable for a stated period of time not to exceed 60 days after
403-19 the date of its execution.
403-20 SECTION 8.057. Section 15.041(e), Family Code, is amended to
403-21 read as follows:
403-22 (e) In a suit to adopt a child or in a suit brought by the
403-23 Department of Protective and Regulatory Services <Texas Department
403-24 of Human Services> or an authorized agency for the purpose of
403-25 terminating all legal relationships and rights which exist or may
403-26 exist between the child's parents and the child, the court may
403-27 render a decree terminating all legal relationships and rights
404-1 which exist or may exist between a child and a man who has executed
404-2 an affidavit of waiver of interest in the child, including the
404-3 right to seek voluntary paternity of the child, if the court finds
404-4 that rendition of the decree is in the best interest of the child.
404-5 SECTION 8.058. Sections 15.051(b), (c), and (d), Family
404-6 Code, are amended to read as follows:
404-7 (b) A court that terminates a parent-child relationship may
404-8 not appoint the Department of Protective and Regulatory Services
404-9 <Texas Department of Human Services> as managing conservator of the
404-10 child unless the court determines that:
404-11 (1) the Department of Protective and Regulatory
404-12 Services <Texas Department of Human Services> has made a diligent
404-13 effort to locate the other parent or a relative of the other
404-14 parent; and
404-15 (2) either the other parent or a relative of the other
404-16 parent located by the Department of Protective and Regulatory
404-17 Services <Texas Department of Human Services> has had a reasonable
404-18 opportunity to request appointment as managing conservator of the
404-19 child or the Department of Protective and Regulatory Services
404-20 <Texas Department of Human Services> is not able to locate the
404-21 other parent or a relative of the other parent.
404-22 (c) If the Department of Protective and Regulatory Services
404-23 <Texas Department of Human Services> is not able to locate the
404-24 other parent or a relative of the other parent, the court may not
404-25 appoint the Department of Protective and Regulatory Services <Texas
404-26 Department of Human Services> as managing conservator of the child
404-27 unless the court determines that:
405-1 (1) the state agency designated to administer a
405-2 statewide plan for child support has requested the federal parent
405-3 locator service for information relating to the location of the
405-4 other parent or a relative of the other parent; and
405-5 (2) the other parent or a relative of the other parent
405-6 located by the federal parent locator service has had a reasonable
405-7 opportunity to request appointment as managing conservator of the
405-8 child or the federal parent locator service is not able to locate
405-9 the other parent or a relative of the other parent.
405-10 (d) In the event that a parent-child relationship is
405-11 terminated on the grounds of child abuse, a diligent effort
405-12 required under Subsection (b)(1) of this section includes a
405-13 reasonable attempt to contact the other parent or a suitable
405-14 relative of the child. The Department of Protective and Regulatory
405-15 Services <Texas Department of Human Services> shall be required to
405-16 provide evidence to the court that shows what actions were taken by
405-17 the department in the department's effort to locate the other
405-18 parent or a suitable relative of the child.
405-19 SECTION 8.059. Section 16.03(d), Family Code, is amended to
405-20 read as follows:
405-21 (d) If an affidavit of relinquishment of parental rights
405-22 contains a consent that the Department of Protective and Regulatory
405-23 Services <Texas Department of Human Services> or an authorized
405-24 agency may place the child for adoption and appoints the department
405-25 or agency managing conservator of the child, no further consent by
405-26 the parent is required and the adoption decree shall terminate all
405-27 rights of the parent without further termination proceedings.
406-1 SECTION 8.060. Section 16.032(a), Family Code, is amended to
406-2 read as follows:
406-3 (a) Before placing a child for adoption with any person
406-4 other than the child's stepparent, grandparent, aunt, or uncle by
406-5 birth, marriage, or prior adoption, the Department of Protective
406-6 and Regulatory Services <Texas Department of Human Services>, an
406-7 authorized agency, or the child's parent or guardian shall compile
406-8 a report on the available health, social, educational, and genetic
406-9 history of the child to be adopted. The report shall include any
406-10 history of physical, sexual, or emotional abuse suffered by the
406-11 child. If the child has been placed for adoption by any person or
406-12 entity other than the department, an authorized agency, or the
406-13 child's parent or guardian, it is the duty of the person or entity
406-14 who places the child for adoption to prepare the report.
406-15 SECTION 8.061. Section 17.011, Family Code, is amended to
406-16 read as follows:
406-17 Sec. 17.011. Living Child After Abortion. An authorized
406-18 representative of the Department of Protective and Regulatory
406-19 Services <Texas Department of Human Services> may assume the care,
406-20 control, and custody of a child born alive as the result of an
406-21 abortion as defined in Subsection (b) of Section 15.022 of this
406-22 code and, if so, shall file a petition under Section 17.02 of this
406-23 code and comply with all the provisions of Section 11.09 of this
406-24 code. A child the possession of whom is assumed under this section
406-25 need not be delivered to the court except on the order of the
406-26 court.
406-27 SECTION 8.062. Section 17.03(a), Family Code, is amended to
407-1 read as follows:
407-2 (a) An authorized representative of the Department of
407-3 Protective and Regulatory Services <Texas Department of Human
407-4 Services>, a law enforcement officer, or a juvenile probation
407-5 officer may take possession of a child without a court order under
407-6 the following conditions and no others:
407-7 (1) upon discovery of a child in a situation of danger
407-8 to the child's physical health or safety when the sole purpose is
407-9 to deliver the child without unnecessary delay to the parent,
407-10 managing conservator, possessory conservator, guardian, caretaker,
407-11 or custodian who is presently entitled to possession of the child;
407-12 (2) upon the voluntary delivery of the child by the
407-13 parent, managing conservator, possessory conservator, guardian,
407-14 caretaker, or custodian who is presently entitled to possession of
407-15 the child;
407-16 (3) upon personal knowledge of facts which would lead
407-17 a person of ordinary prudence and caution to believe that there is
407-18 an immediate danger to the physical health or safety of the child
407-19 and that there is no time to obtain a temporary restraining order
407-20 or attachment under Section 17.02 of this code;
407-21 (4) upon information furnished by another which has
407-22 been corroborated by personal knowledge of facts and all of which
407-23 taken together would lead a person of ordinary prudence and caution
407-24 to believe that there is an immediate danger to the physical health
407-25 or safety of the child and that there is no time to obtain a
407-26 temporary restraining order or attachment under Section 17.02 of
407-27 this code;
408-1 (5) upon personal knowledge of facts that would lead a
408-2 person of ordinary prudence and caution to believe that the child
408-3 has been the victim of sexual abuse and that there is no time to
408-4 obtain a temporary restraining order or attachment under Section
408-5 17.02 of this code; or
408-6 (6) upon information furnished by another that has
408-7 been corroborated by personal knowledge of facts and all of which
408-8 taken together would lead a person of ordinary prudence and caution
408-9 to believe that the child has been the victim of sexual abuse and
408-10 that there is no time to obtain a temporary restraining order or
408-11 attachment under Section 17.02 of this code.
408-12 SECTION 8.063. Section 17.031, Family Code, is amended to
408-13 read as follows:
408-14 Sec. 17.031. Notice to Parent or Guardian. (a) If during a
408-15 preliminary investigation regarding the possibility of taking
408-16 possession of a child under Section 17.02 or 17.03 of this code a
408-17 representative of the Department of Protective and Regulatory
408-18 Services <Texas Department of Human Services> or other agency
408-19 conducts an interview with or an examination of a child, the
408-20 department or other agency must make a reasonable effort within 24
408-21 hours after the interview or examination to notify each parent of
408-22 the child and the child's legal guardian if one has been appointed
408-23 that the interview or examination was conducted.
408-24 (b) When a representative of the Department of Protective
408-25 and Regulatory Services <Texas Department of Human Services> or
408-26 other agency takes possession of a child under Section 17.02 or
408-27 17.03 of this code, the department or other agency must give
409-1 written notice as prescribed by this subsection to the child's
409-2 parent or a legal guardian. The written notice must be given as
409-3 soon as practicable, but in any event before the latter of the
409-4 first working day after the child is taken into possession or the
409-5 date of the hearing required by Subsection (c) of Section 17.03 of
409-6 this code. The written notice may be waived by the court at the
409-7 hearing held under Subsection (c) of Section 17.03 of this code on
409-8 a showing by the Department of Protective and Regulatory Services
409-9 <Texas Department of Human Services> or other agency taking
409-10 possession of the child that the parents or legal guardian of the
409-11 child could not be located. The written notice must include:
409-12 (1) the reasons why the department or agency is taking
409-13 possession of the child and the facts that led the department to
409-14 believe that the child should be taken into custody;
409-15 (2) the name of the person at the department or agency
409-16 that the parent or other custodian may contact for information
409-17 relating to the child or any legal proceeding relating to the
409-18 child;
409-19 (3) a summary of legal rights of parents or other
409-20 custodians under this chapter and an explanation of the probable
409-21 legal procedures relating to the child; and
409-22 (4) a statement that the parent or other custodian has
409-23 the right to hire an attorney.
409-24 SECTION 8.064. Section 32.04, Family Code, is amended to
409-25 read as follows:
409-26 Sec. 32.04. Decree. After a hearing, for good cause shown,
409-27 the court may order the name of the minor changed as requested in
410-1 the petition if it finds that the change is in the best interest of
410-2 the minor. A copy of the decree shall be sent to the Department of
410-3 Protective and Regulatory Services <Texas Department of Human
410-4 Services> if the petition alleged that the minor is subject to the
410-5 continuing jurisdiction of a court under Subtitle A of this title.
410-6 SECTION 8.065. Section 34.011, Family Code, is amended to
410-7 read as follows:
410-8 Sec. 34.011. Form. The Department of Protective and
410-9 Regulatory Services <Texas Department of Human Services> shall
410-10 promulgate a form and cause a sample to be distributed for the
410-11 reporting of suspected occurrences of child abuse as required by
410-12 Section 34.01 of this code. Copies of the form shall be
410-13 distributed to all licensed hospitals in this state to be available
410-14 for use without charge by hospital employees, physicians, patients,
410-15 and other persons. The form shall include a statement that child
410-16 abuse reports are confidential and that information contained in
410-17 the reports, including the name of the person making the report,
410-18 may be used only for the purposes consistent with the investigation
410-19 of child abuse. The form shall give the address of the Department
410-20 of Protective and Regulatory Services <Texas Department of Human
410-21 Services>. Hospital employees, physicians, patients, and other
410-22 persons must complete the form and return it to the Department of
410-23 Protective and Regulatory Services <Texas Department of Human
410-24 Services>.
410-25 SECTION 8.066. Sections 34.02(a) and (c), Family Code, are
410-26 amended to read as follows:
410-27 (a) Nonaccusatory reports reflecting the reporter's belief
411-1 that a child has been or will be abused or neglected, or has died
411-2 of abuse or neglect, has violated the compulsory school attendance
411-3 laws on three or more occasions, or has, on three or more
411-4 occasions, been voluntarily absent from his home without the
411-5 consent of his parent or guardian for a substantial length of time
411-6 or without the intent to return shall be made to:
411-7 (1) any local or state law enforcement agency;
411-8 (2) the Department of Protective and Regulatory
411-9 Services <Texas Department of Human Services>;
411-10 (3) the state agency that operates, licenses,
411-11 certifies, or registers the facility in which the alleged abuse or
411-12 neglect occurred; or
411-13 (4) the agency designated by the court to be
411-14 responsible for the protection of children.
411-15 (c) All reports received by any local or state law
411-16 enforcement agency that involve a person responsible for a child's
411-17 care, custody, or welfare shall be referred to the Department of
411-18 Protective and Regulatory Services <Texas Department of Human
411-19 Services> or to the agency designated by the court to be
411-20 responsible for the protection of children. The department or
411-21 designated agency immediately shall notify the appropriate state or
411-22 local law enforcement agency of any report it receives, other than
411-23 from a law enforcement agency, that concerns the suspected abuse or
411-24 neglect of a child or death of a child from abuse or neglect. If
411-25 the report relates to a child in a facility operated, licensed,
411-26 certified, or registered by a state agency, the department shall
411-27 also refer the report to the agency for investigation. If the
412-1 department initiates an investigation and determines that the abuse
412-2 or neglect does not involve a person responsible for the child's
412-3 care, custody, or welfare, the department shall refer the report to
412-4 a law enforcement agency for further investigation.
412-5 SECTION 8.067. Section 34.05(a), Family Code, is amended to
412-6 read as follows:
412-7 (a) Unless the report alleges that the abuse or neglect
412-8 occurred in a facility operated, licensed, certified, or registered
412-9 by another state agency, the Department of Protective and
412-10 Regulatory Services <Texas Department of Human Services> or the
412-11 agency designated by the court to be responsible for the protection
412-12 of children shall make a thorough investigation promptly after
412-13 receiving either the oral or written report of child abuse or
412-14 neglect by a person responsible for a child's care, custody, or
412-15 welfare. If the report is anonymous, the department shall make the
412-16 investigation after determining that there is some evidence to
412-17 corroborate the report as prescribed by Section 34.053 of this
412-18 code. If the report alleges that the abuse or neglect occurred in
412-19 a facility operated, licensed, certified, or registered by another
412-20 state agency, that agency shall investigate the report as
412-21 prescribed by Subchapter B of this chapter. If the report alleges
412-22 child abuse or neglect in a location other than a facility
412-23 operated, licensed, certified, or registered by a state agency and
412-24 by a person other than a person responsible for a child's care,
412-25 custody, or welfare, the department is not required to investigate
412-26 the report. The appropriate state or local law enforcement agency
412-27 shall investigate that report if that agency determines an
413-1 investigation should be conducted. The department may assign
413-2 priorities to investigations based on the severity and immediacy of
413-3 the alleged harm to the child. If the department establishes a
413-4 priority system, the department shall adopt the system by rule.
413-5 The primary purpose of the investigation shall be the protection of
413-6 the child.
413-7 SECTION 8.068. Section 34.051, Family Code, is amended to
413-8 read as follows:
413-9 Sec. 34.051. Information Relating to Investigation
413-10 Procedure. As soon as possible after initiating an investigation
413-11 under this subchapter of a parent or other person having legal
413-12 custody of a child, the Department of Protective and Regulatory
413-13 Services <Texas Department of Human Services> shall provide to the
413-14 person a brief and easily understood summary of:
413-15 (1) the department's procedures for conducting an
413-16 investigation of alleged child abuse or neglect, including:
413-17 (A) a description of the circumstances under
413-18 which the department would seek to remove the child from the home
413-19 through the judicial system; and
413-20 (B) an explanation that the law requires the
413-21 department to refer all reports of alleged child abuse or neglect
413-22 to a law enforcement agency for a separate determination of whether
413-23 a criminal violation occurred;
413-24 (2) the person's right to file a complaint with the
413-25 department or to request a review of the findings made by the
413-26 department in the investigation;
413-27 (3) the person's right to review all records of the
414-1 investigation unless the review would jeopardize an ongoing
414-2 criminal investigation;
414-3 (4) the person's right to seek legal counsel;
414-4 (5) references to the statutory and regulatory
414-5 provisions governing child abuse and neglect and how the person may
414-6 obtain copies of those provisions; and
414-7 (6) the process the person may use to acquire access
414-8 to the child if the child is removed from the home.
414-9 SECTION 8.069. Section 34.052(a), Family Code, is amended to
414-10 read as follows:
414-11 (a) The Department of Protective and Regulatory Services
414-12 <Texas Department of Human Services> shall establish policies and
414-13 procedures as prescribed by this section to resolve complaints
414-14 relating to and conduct reviews of child abuse or neglect
414-15 investigations conducted by the department. The department shall
414-16 adopt the policies and procedures by rule.
414-17 SECTION 8.070. Section 34.054(a), Family Code, is amended to
414-18 read as follows:
414-19 (a) The Department of Protective and Regulatory Services
414-20 <Texas Department of Human Services> shall develop and adopt
414-21 voluntary standards for persons who investigate suspected child
414-22 abuse at the state or local level. The agency by rule must adopt
414-23 the standards for the standards to be effective. The standards
414-24 shall encourage professionalism and consistency in the
414-25 investigation of suspected child abuse.
414-26 SECTION 8.071. Section 34.055, Family Code, is amended to
414-27 read as follows:
415-1 Sec. 34.055. NOTICE OF INTERVIEW OR EXAMINATION. If during
415-2 an investigation under this subchapter a representative of the
415-3 Department of Protective and Regulatory Services <Texas Department
415-4 of Human Services> or of the agency designated by the court to be
415-5 responsible for the protection of children conducts an interview
415-6 with or an examination of a child, the department or other agency
415-7 must make a reasonable effort within 24 hours after the interview
415-8 or examination to notify each parent of the child and the child's
415-9 legal guardian if one has been appointed that the interview or
415-10 examination was conducted.
415-11 SECTION 8.072. Section 34.06, Family Code, is amended to
415-12 read as follows:
415-13 Sec. 34.06. Central Registry. The Department of Protective
415-14 and Regulatory Services <Texas Department of Human Services> shall
415-15 establish and maintain in Austin, Texas, a central registry of
415-16 reported cases of child abuse or neglect. The department may adopt
415-17 rules and regulations as are necessary in carrying out the
415-18 provisions of this section. The rules shall provide for
415-19 cooperation with local child service agencies, including hospitals,
415-20 clinics, and schools, and cooperation with other states in
415-21 exchanging reports to effect a national registration system.
415-22 SECTION 8.073. Section 34.50(2), Family Code, is amended to
415-23 read as follows:
415-24 (2) "Department" means the Department of Protective
415-25 and Regulatory Services <Texas Department of Human Services>.
415-26 SECTION 8.074. Section 875(j), Texas Probate Code, is
415-27 amended to read as follows:
416-1 (j) The court may not customarily or ordinarily appoint the
416-2 Department of Protective and Regulatory Services <Texas Department
416-3 of Human Services> as a temporary guardian under this section. The
416-4 appointment of the department as a temporary guardian under this
416-5 section should be made only as a last resort.
416-6 SECTION 8.075. Section 81.023(b), Health and Safety Code, is
416-7 amended to read as follows:
416-8 (b) The board shall cooperate with the Department of
416-9 Protective and Regulatory Services <Texas Board of Human Services>
416-10 in formulating and implementing the immunization requirements for
416-11 children admitted to child-care facilities.
416-12 SECTION 8.076. Section 141.002(2), Health and Safety Code,
416-13 is amended to read as follows:
416-14 (2) "Day camp" includes any camp that primarily
416-15 operates during any portion of the day between 7 a.m. and 10 p.m.
416-16 for a period of four or more days but may incidentally offer not
416-17 more than two overnight stays each camp session. The term does
416-18 not include a facility licensed as a child care facility by the
416-19 Department of Protective and Regulatory Services <Texas Department
416-20 of Human Services>.
416-21 SECTION 8.077. Section 554.001(a), Health and Safety Code,
416-22 is amended to read as follows:
416-23 (a) The department shall use the Waco Center for Youth as a
416-24 residential treatment facility for emotionally disturbed juveniles
416-25 who:
416-26 (1) have been committed under Subtitle C to a
416-27 facility of the department; or
417-1 (2) are under the managing conservatorship of the
417-2 Department of Protective and Regulatory Services <Texas Department
417-3 of Human Services> and have been committed under Subtitle C to the
417-4 Waco Center for Youth.
417-5 SECTION 8.078. The changes in law made by Sections
417-6 8.079-8.109 of this Act are made to conform to the transfer of
417-7 certain long-term care functions from the Texas Department of
417-8 Health to the Texas Department of Human Services provided by
417-9 Section 1.11, Chapter 15, Acts of the 72nd Legislature, 1st Called
417-10 Session, 1991, as amended by Section 3, Chapter 747, Acts of the
417-11 73rd Legislature, Regular Session, 1993.
417-12 SECTION 8.079. Section 222.0255, Health and Safety Code, is
417-13 amended to read as follows:
417-14 Sec. 222.0255. NURSING HOMES. (a) The <Texas Department of
417-15 Health and the> Texas Department of Human Services <jointly> shall
417-16 develop one set of standards for nursing homes that apply to
417-17 licensing and to certification for participation in the medical
417-18 assistance program under Chapter 32, Human Resources Code.
417-19 (b) The standards must comply with federal regulations. If
417-20 the federal regulations at the time of adoption are less stringent
417-21 than the state standards, the department <departments> shall keep
417-22 and comply with the state standards.
417-23 (c) The department <departments> by rule shall adopt the
417-24 standards and any amendments to the standards.
417-25 (d) The department <Texas Department of Health> shall
417-26 maintain a set of standards for nursing homes that are licensed
417-27 only.
418-1 SECTION 8.080. Section 222.041, Health and Safety Code, is
418-2 amended to read as follows:
418-3 Sec. 222.041. DEFINITIONS. In this subchapter:
418-4 (1) "Board" means the Texas Board of Human Services
418-5 <Health>.
418-6 (2) "Commissioner" means the commissioner of human
418-7 services.
418-8 (3) <(2)> "Department" means the Texas Department of
418-9 Human Services <Health>.
418-10 (4) <(3)> "ICF-MR" means the medical assistance
418-11 program serving persons receiving care in intermediate care
418-12 facilities for mentally retarded persons.
418-13 SECTION 8.081. Sections 222.043(b), (c), and (e), Health and
418-14 Safety Code, are amended to read as follows:
418-15 (b) The department shall designate at least one employee <in
418-16 the associateship for special health services> to conduct on a
418-17 full-time basis the review provided by this section. The person
418-18 must be impartial and may not be directly involved in or supervise
418-19 any initial or recertification surveys. The person may participate
418-20 in or direct follow-up surveys for quality assurance purposes only
418-21 at the discretion of the <associate> commissioner or the
418-22 commissioner's designated representative <for special health
418-23 services> or under Chapter 242.
418-24 (c) The employee designated under Subsection (b) should have
418-25 current knowledge of applicable federal laws and survey processes.
418-26 The employee reports directly to the <associate> commissioner or
418-27 the commissioner's designated representative <of special health
419-1 services>.
419-2 (e) The employee conducting the review shall sustain, alter,
419-3 or reverse the original findings of the survey team after
419-4 consulting with the <associate> commissioner or the commissioner's
419-5 designated representative <for special health services>.
419-6 SECTION 8.082. Section 222.044, Health and Safety Code, is
419-7 amended to read as follows:
419-8 Sec. 222.044. FOLLOW-UP SURVEYS. (a) The department
419-9 <bureau of long-term care quality assurance team> shall conduct
419-10 follow-up surveys of ICF-MR facilities to:
419-11 (1) evaluate and monitor the findings of the
419-12 certification or licensing survey teams; and
419-13 (2) ensure consistency in deficiencies cited and in
419-14 punitive actions recommended throughout the state.
419-15 (b) A provider shall correct any additional deficiency cited
419-16 by the department <quality assurance team>. The department may not
419-17 impose an additional punitive action for the deficiency unless the
419-18 provider fails to correct the deficiency within the period during
419-19 which the provider is required to correct the deficiency.
419-20 SECTION 8.083. Section 222.045, Health and Safety Code, is
419-21 repealed.
419-22 SECTION 8.084. Section 242.002, Health and Safety Code, is
419-23 amended by amending Subdivisions (1) and (2) and adding Subdivision
419-24 (9) to read as follows:
419-25 (1) "Board" means the Texas Board of Human Services
419-26 <Health>.
419-27 (2) "Department" means the Texas Department of Human
420-1 Services <Health>.
420-2 (9) "Commissioner" means the commissioner of human
420-3 services.
420-4 SECTION 8.085. Section 242.007(a), Health and Safety Code,
420-5 is amended to read as follows:
420-6 (a) Whenever possible, the department shall<:>
420-7 <(1)> use the services of and consult with state and
420-8 local agencies in carrying out its responsibility under this
420-9 chapter<; and>
420-10 <(2) use the facilities of the Texas Department of
420-11 Human Services, particularly in establishing and maintaining
420-12 standards relating to the humane treatment of residents>.
420-13 SECTION 8.086. Section 242.013(a), Health and Safety Code,
420-14 is amended to read as follows:
420-15 (a) The department <and the Texas Department of Human
420-16 Services> shall:
420-17 (1) adopt rules to reduce the amount of paperwork an
420-18 institution must complete and retain; and
420-19 (2) attempt to reduce the amount of paperwork to the
420-20 minimum amount required by state and federal law unless the
420-21 reduction would jeopardize resident safety.
420-22 SECTION 8.087. Sections 242.067(e) and (f), Health and
420-23 Safety Code, are amended to read as follows:
420-24 (e) If the person charged with the violation consents to the
420-25 administrative penalty recommended by the department or does not
420-26 timely respond to the notice, the commissioner <of health> or the
420-27 commissioner's designee shall:
421-1 (1) assess the administrative penalty recommended by
421-2 the department; or
421-3 (2) order a hearing to be held on the findings and
421-4 recommendations in the department's report.
421-5 (f) If the commissioner <of health> or the commissioner's
421-6 designee assesses the recommended penalty, the department shall
421-7 give written notice to the person charged of the decision and the
421-8 person shall pay the penalty.
421-9 SECTION 8.088. Sections 242.068(a)-(d), Health and Safety
421-10 Code, are amended to read as follows:
421-11 (a) The commissioner <of health> shall order a hearing and
421-12 give notice of the hearing if:
421-13 (1) a person charged requests a hearing; or
421-14 (2) the commissioner or the commissioner's designee
421-15 orders a hearing.
421-16 (b) The hearing shall be held by a hearing examiner
421-17 designated by the commissioner <of health>.
421-18 (c) The hearing examiner <officer> shall make findings of
421-19 fact and promptly issue to the commissioner <of health> a written
421-20 decision regarding the occurrence of a violation of this chapter or
421-21 a rule or order adopted or license issued under this chapter and a
421-22 recommendation regarding the amount of the proposed penalty if a
421-23 penalty is warranted.
421-24 (d) Based on the findings of fact and recommendations of the
421-25 hearing examiner, the commissioner <of health> by order may find:
421-26 (1) a violation has occurred and assess a civil
421-27 penalty; or
422-1 (2) a violation has not occurred.
422-2 SECTION 8.089. Sections 242.069(a) and (f), Health and
422-3 Safety Code, are amended to read as follows:
422-4 (a) The commissioner <of health> shall give notice of the
422-5 decision taken under Section 242.068(d) to the person charged. If
422-6 the commissioner finds that a violation has occurred and has
422-7 assessed a civil penalty, the commissioner shall give written
422-8 notice to the person charged of the findings, the amount of the
422-9 penalty, and the person's right to judicial review of the order.
422-10 (f) Accrued interest on amounts remitted by the commissioner
422-11 <of health> under Subsection (e)(1) shall be paid:
422-12 (1) at a rate equal to the rate charged on loans to
422-13 depository institutions by the New York Federal Reserve Bank; and
422-14 (2) for the period beginning on the date the penalty
422-15 is paid to the commissioner under Subsection (c) and ending on the
422-16 date the penalty is remitted.
422-17 SECTION 8.090. Section 242.126(g), Health and Safety Code,
422-18 is amended to read as follows:
422-19 (g) The department or the designated agency shall make a
422-20 complete written report of the investigation and submit the report
422-21 and its recommendations to the district attorney and the
422-22 appropriate law enforcement agency <and to the Texas Department of
422-23 Human Services on its request>.
422-24 SECTION 8.091. Section 242.161(c), Health and Safety Code,
422-25 is amended to read as follows:
422-26 (c) The board <department's bureau of long-term care> shall
422-27 adopt rules governing the amount, type, and procedure for use of
423-1 the controlled substances in the emergency medication kit. The
423-2 storage of the controlled substances in the kit is under the
423-3 supervision of the consultant pharmacist.
423-4 SECTION 8.092. Sections 247.002(1) and (2), Health and
423-5 Safety Code, are amended to read as follows:
423-6 (1) "Board" means the Texas Board of Human Services
423-7 <Health>.
423-8 (2) "Department" means the Texas Department of Human
423-9 Services <Health>.
423-10 SECTION 8.093. Section 247.046, Health and Safety Code, as
423-11 added by Section 1, Chapter 349, Acts of the 72nd Legislature,
423-12 Regular Session, 1991, is amended to read as follows:
423-13 Sec. 247.046. COOPERATION AMONG AGENCIES. The board<, the
423-14 Texas Department of Human Services,> and the attorney general shall
423-15 adopt by rule a memorandum of understanding that:
423-16 (1) defines each agency's responsibilities concerning
423-17 personal care facilities and coordinates each agency's activities;
423-18 (2) details coordinated procedures to be used by each
423-19 agency in responding to complaints relating to neglect or abuse of
423-20 residents of facilities, to substandard facilities, and to
423-21 unlicensed facilities;
423-22 (3) identifies enforcement needs each agency may have
423-23 in order to perform its duties under the memorandum of
423-24 understanding, including any need for access to information or to
423-25 facilities under investigation or operating under a plan of
423-26 correction; and
423-27 (4) provides a plan for correcting violations in
424-1 substandard or unlicensed personal care facilities that specifies
424-2 the conditions under which it is appropriate to impose such a plan
424-3 and that outlines a schedule of implementation for the plan.
424-4 SECTION 8.094. Section 247.051(a), Health and Safety Code,
424-5 is amended to read as follows:
424-6 (a) The Advisory Committee on Personal Care Facilities
424-7 consists of nine members appointed by the board. The commissioner
424-8 of human services <health> shall appoint one staff member from the
424-9 department to serve as a nonvoting advisory member.
424-10 SECTION 8.095. Section 247.062(a), Health and Safety Code,
424-11 is amended to read as follows:
424-12 (a) The department<, the Texas Department of Human
424-13 Services,> and the attorney general shall adopt by rule a
424-14 memorandum of understanding that:
424-15 (1) defines each agency's responsibilities concerning
424-16 personal care facilities;
424-17 (2) outlines and coordinates procedures to be used by
424-18 those agencies in responding to complaints concerning personal care
424-19 facilities; and
424-20 (3) provides a plan for correcting violations or
424-21 deficiencies in personal care facilities.
424-22 SECTION 8.096. Section 247.064(b), Health and Safety Code,
424-23 is amended to read as follows:
424-24 (b) If the Texas Department of Mental Health and Mental
424-25 Retardation or a local mental health or mental retardation
424-26 authority gains knowledge of a personal care facility that is not
424-27 operated or licensed by the Texas Department of Mental Health and
425-1 Mental Retardation, the authority, or the Texas Department of Human
425-2 Services <Health> and that has four or more residents who are
425-3 unrelated to the proprietor of the facility, the Texas Department
425-4 of Mental Health and Mental Retardation or the authority shall
425-5 report the name, address, and telephone number of the facility to
425-6 the Texas Department of Human Services <Health>.
425-7 SECTION 8.097. Section 533.063(a), Health and Safety Code,
425-8 is amended to read as follows:
425-9 (a) The department<, Texas Department of Health,> and the
425-10 Texas Department of Human Services shall meet as necessary to
425-11 discuss proposed changes in the rules or the interpretation of the
425-12 rules that govern the ICF-MR program.
425-13 SECTION 8.098. Section 533.065(d), Health and Safety Code,
425-14 is amended to read as follows:
425-15 (d) The department shall notify the Texas Department of
425-16 Human Services <Health> of each application for a license or for
425-17 compliance with licensing standards the department approves.
425-18 SECTION 8.099. Section 533.066(a), Health and Safety Code,
425-19 is amended to read as follows:
425-20 (a) At least annually, the department<, Texas Department of
425-21 Health,> and the Texas Department of Human Services shall jointly
425-22 sponsor a conference on the ICF-MR program to:
425-23 (1) assist providers in understanding survey rules;
425-24 (2) review deficiencies commonly found in ICF-MR
425-25 facilities; and
425-26 (3) inform providers of any recent changes in the
425-27 rules or in the interpretation of the rules relating to the ICF-MR
426-1 program.
426-2 SECTION 8.100. Section 101.051(2), Human Resources Code, is
426-3 amended to read as follows:
426-4 (2) "Long-term care facility" means a facility that
426-5 serves persons who are 60 years of age or older and that is
426-6 licensed or regulated or that is required to be licensed or
426-7 regulated by the Texas Department of Human Services <Health> under
426-8 Chapter 242, Health and Safety Code.
426-9 SECTION 8.101. Section 102.001(1), Human Resources Code, is
426-10 amended to read as follows:
426-11 (1) "Convalescent and nursing home" means an
426-12 institution licensed by the Texas Department of Human Services
426-13 <Health> under Chapter 242, Health and Safety Code.
426-14 SECTION 8.102. Section 103.005, Human Resources Code, is
426-15 amended to read as follows:
426-16 Sec. 103.005. Licensing Duties. The department <Texas
426-17 Department of Health> shall adopt rules for the licensing
426-18 procedures and set standards for the safety and sanitation
426-19 requirements for a licensed facility.
426-20 SECTION 8.103. Sections 103.006(a), (c), and (d), Human
426-21 Resources Code, are amended to read as follows:
426-22 (a) The department <Texas Department of Health> shall issue
426-23 a license to operate an adult day-care facility to a person who has
426-24 met the application requirements and received approval after an
426-25 on-site inspection.
426-26 (c) <The department may contract with the Texas Department
426-27 of Health for cooperative and efficient evaluation of an applicant
427-1 for a license or license renewal.>
427-2 <(d)> An applicant for a license under this chapter who has
427-3 a health care provider license is entitled to have inspections and
427-4 license renewal procedures coordinated so that one inspection may
427-5 fulfill various licensing requirements.
427-6 SECTION 8.104. Section 103.007, Human Resources Code, is
427-7 amended to read as follows:
427-8 Sec. 103.007. License Application. (a) An applicant for a
427-9 license to operate an adult day-care facility must file an
427-10 application on a form prescribed by the department <Texas
427-11 Department of Health> together with a license fee of $25.
427-12 (b) The applicant must provide evidence of:
427-13 (1) the ability to comply with the requirements of the
427-14 <Texas Department of Health and the> department;
427-15 (2) responsible management; and
427-16 (3) qualified professional staff and personnel.
427-17 (c) A person who operates a facility that is licensed under
427-18 this chapter must file an application for a renewal license before
427-19 the expiration date of the current license on a form prescribed by
427-20 the department <Texas Department of Health> together with a renewal
427-21 fee of $25.
427-22 SECTION 8.105. Section 103.008, Human Resources Code, is
427-23 amended to read as follows:
427-24 Sec. 103.008. Inspections. (a) The department <Texas
427-25 Department of Health> may enter the premises of a facility at
427-26 reasonable times and make an inspection necessary to issue a
427-27 license or renew a license.
428-1 (b) Any person may request an inspection of a facility by
428-2 notifying the department <Texas Department of Health> in writing of
428-3 an alleged violation of a licensing requirement. The complaint
428-4 shall be as detailed as possible and signed by the complainant.
428-5 The department <Texas Department of Health> shall perform an
428-6 on-site inspection as soon as feasible but no later than 30 days
428-7 after receiving the complaint unless after an investigation the
428-8 complaint is found to be frivolous. The department <Texas
428-9 Department of Health> shall respond to a complainant in writing.
428-10 The department <Texas Department of Health> shall also receive and
428-11 investigate anonymous complaints.
428-12 SECTION 8.106. Section 103.009, Human Resources Code, is
428-13 amended to read as follows:
428-14 Sec. 103.009. License Denial, Suspension, or Revocation.
428-15 (a) The department <Texas Department of Health> may deny, suspend,
428-16 or revoke the license of an applicant or holder of a license who
428-17 fails to comply with the rules or standards for licensing required
428-18 by this chapter.
428-19 (b) The denial, suspension, or revocation of a license and
428-20 the appeal from that action are governed by the procedures for a
428-21 contested case hearing under Chapter 2001, Government Code <the
428-22 Administrative Procedure and Texas Register Act (Article 6252-13a,
428-23 Vernon's Texas Civil Statutes)>.
428-24 SECTION 8.107. Sections 103.0091(a), (b), and (c), Human
428-25 Resources Code, are amended to read as follows:
428-26 (a) The department <Texas Department of Health> may petition
428-27 a district court for a temporary restraining order to restrain a
429-1 continuing violation of the standards or licensing requirements
429-2 provided under this chapter if the department <Texas Department of
429-3 Health> finds that the violation creates an immediate threat to the
429-4 health and safety of the adult day-care residents.
429-5 (b) A district court, on petition of the department <Texas
429-6 Department of Health> and on a finding by the court that a person
429-7 is violating the standards or licensing requirements provided under
429-8 this chapter, may by injunction:
429-9 (1) prohibit a person from continuing a violation of
429-10 the standards or licensing requirements provided under this
429-11 chapter;
429-12 (2) restrain or prevent the establishment or operation
429-13 of a facility without a license issued under this chapter; or
429-14 (3) grant any other injunctive relief warranted by the
429-15 facts.
429-16 (c) The attorney general may institute and conduct a suit
429-17 authorized by this section at the request of the department <Texas
429-18 Department of Health>.
429-19 SECTION 8.108. Section 103.0092(a), Human Resources Code, is
429-20 amended to read as follows:
429-21 (a) If the department <Texas Department of Health> finds an
429-22 adult day-care facility operating in violation of the standards
429-23 prescribed by this chapter and the violations create an immediate
429-24 threat to the health and safety of a resident in the facility, the
429-25 department <Texas Department of Health> shall suspend the license
429-26 or order immediate closing of all or part of the facility.
429-27 SECTION 8.109. Section 103.011(b), Human Resources Code, is
430-1 amended to read as follows:
430-2 (b) The department <Texas Department of Human Services and
430-3 the Texas Department of Health> shall require each adult day care
430-4 facility to implement and enforce the applicable provisions of
430-5 Chapter 102 of this code.
430-6 SECTION 8.110. The changes in law made by Sections 8.111 and
430-7 8.112 of this Act are made to conform to the transfer of the
430-8 temporary emergency relief program from the Texas Department of
430-9 Human Services to the Texas Department of Housing and Community
430-10 Affairs provided by Section 1.15, Chapter 15, Acts of the 72nd
430-11 Legislature, 1st Called Session, 1991.
430-12 SECTION 8.111. Section 34.002, Human Resources Code, is
430-13 amended to read as follows:
430-14 Sec. 34.002. Definitions. In this chapter:
430-15 (1) "Applicant" means the commissioners court of a
430-16 county, the governing body of another political subdivision, or a
430-17 nonprofit organization.
430-18 (2) "Department" means the Texas Department of Housing
430-19 and Community Affairs.
430-20 (3) "Nonprofit organization" means a private,
430-21 nonprofit, tax-exempt corporation listed in Section 501(c)(3),
430-22 Internal Revenue Code.
430-23 (4) <(3)> "Program" means a system of providing
430-24 temporary emergency relief to needy persons.
430-25 SECTION 8.112. Section 34.008(a), Human Resources Code, is
430-26 amended to read as follows:
430-27 (a) As part of the annual report required by Section
431-1 2306.072, Government Code <21.011 of this code>, the executive
431-2 director of the department <commissioner> shall include a written
431-3 report describing and analyzing the operation of programs under
431-4 this chapter.
431-5 SECTION 8.113. The changes in law made by Section 8.114 of
431-6 this Act are made to codify Sections 3.01-3.08, Chapter 15, Acts of
431-7 the 72nd Legislature, 1st Called Session, 1991 (Article 4413(505),
431-8 Vernon's Texas Civil Statutes).
431-9 SECTION 8.114. (a) Title 9, Human Resources Code, is
431-10 amended by adding Chapter 132 to read as follows:
431-11 CHAPTER 132. FACILITATION OF DELIVERY OF
431-12 HEALTH AND HUMAN SERVICES
431-13 Sec. 132.001. Governor's agenda. (a) The governor shall
431-14 establish an agenda that addresses needed adjustments in federal
431-15 legislation, agency rules and regulations, programs, and policies
431-16 that affect:
431-17 (1) health and human services delivery;
431-18 (2) client and provider eligibility;
431-19 (3) administration; and
431-20 (4) funding.
431-21 (b) The governor shall develop and amend the agenda in
431-22 conjunction and cooperation with federal and state elected
431-23 officials, state agency staff, and executive directors of state
431-24 agencies providing health and human services programs.
431-25 (c) The agenda must include:
431-26 (1) a list of specific issues of federal law or policy
431-27 identified and ranked by health and human services agencies;
432-1 (2) impact statements concerning the needed
432-2 adjustments to federal law or policy;
432-3 (3) a discussion of fiscal matters concerning each
432-4 ranked issue; and
432-5 (4) specific recommendations for changes in federal
432-6 law or policy.
432-7 (d) The governor shall submit the agenda to the Texas
432-8 congressional delegation and to the Office of State-Federal
432-9 Relations and shall annually amend the agenda and rank agenda
432-10 items. The agenda must identify issues of federal law, rules and
432-11 regulations, or programs of common concern to different state
432-12 agencies and programs.
432-13 Sec. 132.002. EXPANSION OF CLIENT ELIGIBILITY SCREENING AND
432-14 DETERMINATION. (a) Based on a cost-benefit analysis, the Texas
432-15 Department of Human Services, where feasible, shall relocate an
432-16 employee with the ability to certify eligibility for financial and
432-17 medical programs to an office or facility that would enhance client
432-18 access.
432-19 (b) Based on a cost-benefit analysis, the Health and Human
432-20 Services Commission shall coordinate the expansion and use of
432-21 integrated eligibility screening instruments and the relocation of
432-22 state employees on a timetable determined by the commission.
432-23 Sec. 132.003. CO-LOCATION OF OFFICES AND FACILITIES. (a)
432-24 On receiving approval from the Health and Human Services Commission
432-25 the administrative heads of two or more health and human services
432-26 agencies with offices or facilities located in the same geographic
432-27 region shall co-locate the offices or facilities if the results of
433-1 the co-location study conducted by the agencies show that:
433-2 (1) client access would be enhanced;
433-3 (2) the cost of co-location is not greater than the
433-4 combined operating costs of the separate offices or facilities of
433-5 those agencies; and
433-6 (3) the co-location would improve the efficiency of
433-7 the delivery of services.
433-8 (b) In this section, "health and human services agencies"
433-9 includes the:
433-10 (1) Interagency Council on Early Childhood
433-11 Intervention Services;
433-12 (2) Texas Department on Aging;
433-13 (3) Texas Commission on Alcohol and Drug Abuse;
433-14 (4) Texas Commission for the Blind;
433-15 (5) Texas Commission for the Deaf and Hearing
433-16 Impaired;
433-17 (6) Texas Department of Health;
433-18 (7) Texas Department of Human Services;
433-19 (8) Texas Juvenile Probation Commission;
433-20 (9) Texas Department of Mental Health and Mental
433-21 Retardation;
433-22 (10) Texas Rehabilitation Commission; and
433-23 (11) Department of Protective and Regulatory Services.
433-24 (b) Sections 3.01-3.08, Chapter 15, Acts of the 72nd
433-25 Legislature, 1st Called Session, 1991 (Article 4413(505), Vernon's
433-26 Texas Civil Statutes), are repealed.
433-27 SECTION 8.115. The changes in law made by Sections 8.116 and
434-1 8.117 of this Act are made to conform to the transfer of the
434-2 genetics screening and counseling program from the Texas Department
434-3 of Mental Health and Mental Retardation to the Texas Department of
434-4 Health provided by Section 1.07, Chapter 15, Acts of the 72nd
434-5 Legislature, 1st Called Session, 1991, as amended by Section 2,
434-6 Chapter 747, Acts of the 73rd Legislature, Regular Session, 1993.
434-7 SECTION 8.116. Subchapter B, Chapter 12, Health and Safety
434-8 Code, is amended by adding Section 12.017 to read as follows:
434-9 Sec. 12.017. GENETIC COUNSELING FEES. (a) The department
434-10 may charge for providing genetic counseling services. The fee may
434-11 not exceed the actual cost of providing the services.
434-12 (b) The department shall use the fees for providing genetic
434-13 counseling services.
434-14 SECTION 8.117. Section 533.039, Health and Safety Code, is
434-15 repealed.
434-16 SECTION 8.118. The changes in law made by Sections
434-17 8.119-8.122 of this Act are made to conform to the transfer of the
434-18 indigent health care program from the Texas Department of Human
434-19 Services to the Texas Department of Health provided by Section
434-20 1.07, Chapter 15, Acts of the 72nd Legislature, 1st Called Session,
434-21 1991, as amended by Section 2, Chapter 747, Acts of the 73rd
434-22 Legislature, Regular Session, 1993.
434-23 SECTION 8.119. Sections 61.002(2) and (10), Health and
434-24 Safety Code, are amended to read as follows:
434-25 (2) "Department" means the Texas Department of Health
434-26 <Human Services>.
434-27 (10) "Medicaid" means the medical assistance program
435-1 provided <administered by the Texas Department of Human Services>
435-2 under Chapter 32, Human Resources Code.
435-3 SECTION 8.120. Sections 61.006(a) and (b), Health and Safety
435-4 Code, are amended to read as follows:
435-5 (a) The department shall establish eligibility standards and
435-6 application, documentation, and verification procedures for
435-7 counties to use in determining eligibility under this chapter. The
435-8 standards and procedures must be consistent with the standards and
435-9 procedures used by the Texas Department of Human Services
435-10 <department> to determine eligibility in the AFDC-Medicaid program.
435-11 The department shall also define the services and establish the
435-12 payment standards for the categories of services listed in Section
435-13 61.028(a) in accordance with Texas Department of Human Services
435-14 <department> rules relating to the AFDC-Medicaid program.
435-15 (b) The department may simplify the AFDC-Medicaid standards
435-16 and procedures used by the Texas Department of Human Services
435-17 <department> as necessary to provide efficient county
435-18 administration. In establishing simplified standards and
435-19 procedures for county administration, the department may not adopt
435-20 a standard or procedure that is more restrictive than the
435-21 AFDC-Medicaid standards or procedures.
435-22 SECTION 8.121. Section 61.009, Health and Safety Code, is
435-23 amended to read as follows:
435-24 Sec. 61.009. REPORTING REQUIREMENTS <Duties of Texas
435-25 Department of Health>. (a) The department <Texas Department of
435-26 Health> shall establish uniform reporting requirements for
435-27 governmental entities that own, operate, or lease public hospitals
436-1 providing assistance under this chapter and for counties.
436-2 (b) The reports must include information relating to:
436-3 (1) expenditures for and nature of hospital and health
436-4 care provided to eligible residents;
436-5 (2) eligibility standards and procedures established
436-6 by counties and governmental entities that own, operate, or lease
436-7 public hospitals; and
436-8 (3) relevant characteristics of eligible residents.
436-9 SECTION 8.122. Section 61.042(a), Health and Safety Code, is
436-10 amended to read as follows:
436-11 (a) A county may establish procedures consistent with those
436-12 used by the Texas Department of Human Services <department> under
436-13 Chapter 31, Human Resources Code, for administering an employment
436-14 services program and requiring an applicant or eligible resident to
436-15 register for work with the Texas Employment Commission.
436-16 SECTION 8.123. Section 22.012, Human Resources Code, is
436-17 repealed to conform to the transfer of family planning services
436-18 from the Texas Department of Human Services to the Texas Department
436-19 of Health provided by Section 1.07, Chapter 15, Acts of the 72nd
436-20 Legislature, 1st Called Session, 1991, as amended by Section 2,
436-21 Chapter 747, Acts of the 73rd Legislature, Regular Session, 1993.
436-22 SECTION 8.124. The changes in law made by Sections
436-23 8.125-8.128 of this Act are made to conform to the transfer of the
436-24 duties and responsibilities of the Governor's Council on Health and
436-25 Human Services to the Health and Human Services Commission provided
436-26 by Section 1.13, Chapter 15, Acts of the 72nd Legislature, 1st
436-27 Called Session, 1991.
437-1 SECTION 8.125. Section 41.027, Human Resources Code, is
437-2 amended to read as follows:
437-3 Sec. 41.027. Placement of Children. (a) The department
437-4 shall use a system for the placement of children in contract
437-5 residential care, including foster care, that conforms to the
437-6 levels of care adopted and maintained by the <Governor's Council
437-7 on> Health and Human Services Commission.
437-8 (b) The department shall use the standard application for
437-9 the placement of children in contract residential care, as adopted
437-10 and maintained by the <Governor's Council on> Health and Human
437-11 Services Commission.
437-12 SECTION 8.126. Section 104.022(b), Health and Safety Code,
437-13 is amended to read as follows:
437-14 (b) The statewide health coordinating council, in
437-15 consultation with the <Governor's Council on> Health and Human
437-16 Services Commission, shall issue overall directives for the
437-17 development of the state health plan.
437-18 SECTION 8.127. Section 104.023, Health and Safety Code, is
437-19 amended to read as follows:
437-20 Sec. 104.023. Review of State Health Plan. The statewide
437-21 health coordinating council shall submit the state health plan to
437-22 the <Governor's Council on> Health and Human Services Commission
437-23 for review and comment before the plan is sent to the governor.
437-24 SECTION 8.128. Section 772.007(g), Government Code, is
437-25 amended to read as follows:
437-26 (g) The committee shall:
437-27 (1) develop and adopt policies and procedures
438-1 governing the system each state agency uses to evaluate the
438-2 effectiveness of programs to prevent or treat child abuse or
438-3 neglect with which the agency contracts;
438-4 (2) develop and adopt standard definitions of "child
438-5 abuse treatment" and "child abuse prevention" to be used in
438-6 implementing and administering the evaluation system created under
438-7 this section;
438-8 (3) develop and adopt, in cooperation with each
438-9 affected state agency, a schedule for each agency's adoption and
438-10 implementation of the committee's evaluation system that considers
438-11 each agency's budget cycle;
438-12 (4) develop and adopt a standard report form and a
438-13 reporting schedule for the affected agencies;
438-14 (5) develop and adopt objective criteria by which the
438-15 performance of child abuse programs may be measured after reports
438-16 under this section are submitted and evaluated; and
438-17 (6) report annually to the <Governor's Interagency
438-18 Council on> Health and Human Services Commission, governor,
438-19 lieutenant governor, and speaker of the house of representatives on
438-20 the results of the committee's evaluation process.
438-21 SECTION 8.129. The changes in law made by Sections
438-22 8.130-8.134 of this Act are made to conform to the amendment to
438-23 Section 11.001(2), Health and Safety Code, provided by Section 15,
438-24 Chapter 747, Acts of the 73rd Legislature, Regular Session, 1993,
438-25 and to conform to the repeal of Article 4413(504), Revised
438-26 Statutes, by Section 61(2), Chapter 747, Acts of the 73rd
438-27 Legislature, Regular Session, 1993.
439-1 SECTION 8.130. Section 87.002(d), Health and Safety Code, as
439-2 added by Chapter 602, Acts of the 73rd Legislature, Regular
439-3 Session, 1993, is amended to read as follows:
439-4 (d) A board member, the commissioner <director>, another
439-5 employee of the department, or an authorized agent may not be
439-6 examined in a civil, criminal, special, or other proceeding as to
439-7 the existence or contents of pertinent records of or reports or
439-8 information about a child identified or monitored for a birth
439-9 defect by the department without the consent of the child's
439-10 parents, managing conservator, guardian, or other person authorized
439-11 by law of this state or another state or by a court order to give
439-12 consent.
439-13 SECTION 8.131. Section 87.006(a), Health and Safety Code, as
439-14 added by Chapter 602, Acts of the 73rd Legislature, Regular
439-15 Session, 1993, is amended to read as follows:
439-16 (a) The commissioner <director> shall establish a scientific
439-17 advisory committee to provide practical and scientific advice to
439-18 the department in implementing an effective birth defects registry
439-19 and related research, referral, and educational activities.
439-20 SECTION 8.132. Section 87.042, Health and Safety Code, as
439-21 added by Chapter 602, Acts of the 73rd Legislature, Regular
439-22 Session, 1993, is amended to read as follows:
439-23 Sec. 87.042. DEPARTMENTAL INVESTIGATORY POWERS. To conduct
439-24 an investigation under this chapter, the commissioner <director> or
439-25 the commissioner's <director's> designee has the same authority to
439-26 enter, inspect, investigate, and take samples and to do so in the
439-27 same manner as is provided for communicable diseases under Sections
440-1 81.061, 81.063, 81.064, and 81.065.
440-2 SECTION 8.133. Section 87.063, Health and Safety Code, as
440-3 added by Chapter 602, Acts of the 73rd Legislature, Regular
440-4 Session, 1993, is amended to read as follows:
440-5 Sec. 87.063. RESEARCH; REVIEW AND APPROVAL. (a) The
440-6 commissioner <director> and the department's committee for the
440-7 protection of human subjects shall review each research proposal
440-8 that requests the use of information in the central registry. The
440-9 board shall adopt rules establishing criteria to be used in
440-10 deciding if the research design should be approved. A proposal
440-11 that meets the approval criteria is considered to establish a valid
440-12 interest as required by Section 87.062(a), and the commissioner
440-13 <director> and the committee shall authorize the researcher to
440-14 review the records relevant to the research proposal and to contact
440-15 cases and controls.
440-16 (b) If an investigator using central registry data under a
440-17 research design approved under this section believes it is
440-18 necessary to contact case subjects and controls, the investigator
440-19 must submit a protocol describing the purpose and method to the
440-20 commissioner <director> and the department's committee for the
440-21 protection of human subjects. If the contact protocol is approved,
440-22 the investigator is considered to have established a bona fide
440-23 research, development, or planning purpose and is entitled to carry
440-24 out the contacts without securing additional approvals or waivers
440-25 from any entity.
440-26 SECTION 8.134. Section 87.001(3), Health and Safety Code, as
440-27 added by Chapter 602, Acts of the 73rd Legislature, Regular
441-1 Session, 1993, is repealed.
441-2 SECTION 8.135. The changes in law made by Sections 8.136 and
441-3 8.137 of this Act are made to conform to the consolidation and
441-4 abolition of certain funds as provided by Section 403.094,
441-5 Government Code.
441-6 SECTION 8.136. Subchapter D, Chapter 61, Health and Safety
441-7 Code, is repealed.
441-8 SECTION 8.137. Section 22.005(a), Human Resources Code, is
441-9 amended to read as follows:
441-10 (a) The children's assistance fund and<,> the medical
441-11 assistance fund<, and the commodity distribution fund> are separate
441-12 accounts in the general revenue <Texas Department of Human
441-13 Services> fund. Money in the separate accounts may be expended
441-14 only for the purposes for which the accounts were created or as
441-15 otherwise provided by law.
441-16 SECTION 8.138. The changes in law made by Section 8.139 of
441-17 this Act are made to conform to the transfer of all activities
441-18 related to the child protective services program and the adult
441-19 protective services program from the Texas Department of Human
441-20 Services to the Department of Protective and Regulatory Services
441-21 provided by Section 1.06, Chapter 15, Acts of the 72nd Legislature,
441-22 1st Called Session, 1991, as amended by Section 1, Chapter 747,
441-23 Acts of the 73rd Legislature, Regular Session, 1993, and to reflect
441-24 the authority of the Department of Protective and Regulatory
441-25 Services provided by Section 2, Article 4413(503), Revised
441-26 Statutes.
441-27 SECTION 8.139. Section 22.04(i), Penal Code, is amended to
442-1 read as follows:
442-2 (i) It is an affirmative defense to prosecution under
442-3 Subsection (b)(2) that before the offense the actor:
442-4 (1) notified in person the child, elderly individual,
442-5 or disabled individual that he would no longer provide any of the
442-6 care described by Subsection (d); and
442-7 (2) notified in writing the parents or person other
442-8 than himself acting in loco parentis to the child, elderly
442-9 individual, or disabled individual that he would no longer provide
442-10 any of the care described by Subsection (d); or
442-11 (3) notified in writing the <Texas> Department of
442-12 Protective and Regulatory <Human> Services that he would no longer
442-13 provide any of the care set forth in Subsection (d).
442-14 SECTION 8.140. The changes in law made by Sections
442-15 8.141-8.150 of this Act are made to conform to the requirement that
442-16 the governing bodies of certain health and human services agencies
442-17 fill vacancies in the positions of administrative heads with the
442-18 approval of the governor provided by Section 1.17, Chapter 15, Acts
442-19 of the 72nd Legislature, 1st Called Session, 1991.
442-20 SECTION 8.141. Section 21.004(b), Human Resources Code, is
442-21 amended to read as follows:
442-22 (b) The commissioner is appointed by the board with the
442-23 approval of the governor and serves at the pleasure of the board.
442-24 SECTION 8.142. Section 73.006(c), Human Resources Code, is
442-25 amended to read as follows:
442-26 (c) The council shall select and employ:
442-27 (1) an early childhood intervention administrator with
443-1 the approval of the governor; and
443-2 (2) other personnel necessary for the administration
443-3 of the council's duties.
443-4 SECTION 8.143. Section 81.008(a), Human Resources Code, is
443-5 amended to read as follows:
443-6 (a) The commission shall appoint an executive director with
443-7 the approval of the governor.
443-8 SECTION 8.144. Section 91.012(a), Human Resources Code, is
443-9 amended to read as follows:
443-10 (a) The commission shall annually appoint an executive
443-11 director with the approval of the governor.
443-12 SECTION 8.145. Section 101.004(a), Human Resources Code, is
443-13 amended to read as follows:
443-14 (a) The board shall appoint an executive director of aging
443-15 with the approval of the governor. The executive director<, who>
443-16 shall discharge all executive and administrative functions of the
443-17 department. The executive director must be a person with executive
443-18 ability and experience in the area of aging. The executive
443-19 director serves at the pleasure of the board.
443-20 SECTION 8.146. Section 111.017, Human Resources Code, is
443-21 amended to read as follows:
443-22 Sec. 111.017. COMMISSIONER. This chapter is administered by
443-23 the commissioner under operational policies established by the
443-24 board. The commissioner is appointed by the board, with the
443-25 approval of the governor, on the basis of education, training,
443-26 experience, and demonstrated ability. The commissioner serves at
443-27 the pleasure of the board and is secretary to the board, as well as
444-1 chief administrative officer of the agency.
444-2 SECTION 8.147. Section 141.020(a), Human Resources Code, is
444-3 amended to read as follows:
444-4 (a) The commission shall employ a director with the approval
444-5 of the governor. To be eligible for employment as the director, a
444-6 person must:
444-7 (1) comply with the standards required for a probation
444-8 officer; and
444-9 (2) have at least two years' experience in the
444-10 administration and supervision of probation services.
444-11 SECTION 8.148. Section 11.012(a), Health and Safety Code, is
444-12 amended to read as follows:
444-13 (a) The board shall employ the commissioner with the
444-14 approval of the governor. The commissioner<, who> serves at the
444-15 will of the board.
444-16 SECTION 8.149. Section 461.011(a), Health and Safety Code,
444-17 is amended to read as follows:
444-18 (a) The commission shall employ an executive director with
444-19 the approval of the governor. The<, and the> executive director
444-20 shall hire other necessary employees.
444-21 SECTION 8.150. Section 532.011(a), Health and Safety Code,
444-22 is amended to read as follows:
444-23 (a) The board shall appoint a commissioner with the approval
444-24 of the governor.
444-25 ARTICLE 9. CHANGES RELATING TO LABOR CODE
444-26 SECTION 9.01. (a) Section 21.001, Labor Code, is amended to
444-27 conform to Section 1, Chapter 276 (H.B. 860), Acts of the 73rd
445-1 Legislature, Regular Session, 1993, to read as follows:
445-2 Sec. 21.001. PURPOSES. The general purposes of this chapter
445-3 are to:
445-4 (1) provide for the execution of the policies of Title
445-5 VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e et
445-6 seq.);
445-7 (2) identify an authority that meets the criteria
445-8 under 42 U.S.C. Section 2000e-5(c) and 29 U.S.C. Section 633;
445-9 (3) provide for the execution of the policies embodied
445-10 in Title I of the Americans with Disabilities Act of 1990 (42
445-11 U.S.C. Section 12101 et seq.);
445-12 (4) secure for persons in this state, including
445-13 persons with disabilities, freedom from discrimination in certain
445-14 employment transactions, in order to protect their personal
445-15 dignity;
445-16 (5) <(4)> make available to the state the full
445-17 productive capacities of persons in this state;
445-18 (6) <(5)> avoid domestic strife and unrest in this
445-19 state;
445-20 (7) <(6)> preserve the public safety, health, and
445-21 general welfare; and
445-22 (8) <(7)> promote the interests, rights, and
445-23 privileges of persons in this state.
445-24 (b) Section 1, Chapter 276, Acts of the 73rd Legislature,
445-25 Regular Session, 1993, is repealed.
445-26 SECTION 9.02. (a) Section 21.002, Labor Code, is amended to
445-27 conform to Section 2, Chapter 276 (H.B. 860), Acts of the 73rd
446-1 Legislature, Regular Session, 1993, by amending Subdivisions
446-2 (4)-(11) and adding Subdivisions (12) and (13) to read as follows:
446-3 (4) "Complainant" means an individual who brings an
446-4 action or proceeding under this chapter.
446-5 (5) "Demonstrates" means meets the burdens of
446-6 production and persuasion.
446-7 (6) "Disability" means, with respect to an individual,
446-8 a mental or physical impairment that substantially limits at least
446-9 one major life activity of that individual, <or> a record of such
446-10 an <a mental or physical> impairment, or being regarded as having
446-11 such an impairment <that substantially limits at least one major
446-12 life activity>. The term does not include:
446-13 (A) a current condition of addiction to the use
446-14 of alcohol, a drug, an illegal substance, or a federally
446-15 controlled substance; or
446-16 (B) a currently communicable disease or
446-17 infection, including acquired immune deficiency syndrome or
446-18 infection with the human immunodeficiency virus, that constitutes a
446-19 direct threat to the health or safety of other persons or that
446-20 makes the affected person unable to perform the duties of the
446-21 person's employment.
446-22 (7) <(5)> "Employee" means an individual employed by
446-23 an employer, including an individual subject to the civil service
446-24 laws of this state or a political subdivision of this state. The
446-25 term does not include an individual elected <by the qualified
446-26 voters> to public office in this state or a political subdivision
446-27 of this state <or an individual chosen by such a public officer to
447-1 be:>
447-2 <(A) on the officer's personal staff;>
447-3 <(B) an appointee on the policy-making level; or>
447-4 <(C) an immediate adviser for the exercise of
447-5 the constitutional or legal powers of public office>.
447-6 (8) <(6)> "Employer" means:
447-7 (A) a person who is engaged in an industry
447-8 affecting commerce and who has 15 or more employees for each
447-9 working day in each of 20 or more calendar weeks in the current or
447-10 preceding calendar year;
447-11 (B) an agent of a person described by Paragraph
447-12 (A); <or>
447-13 (C) an individual elected to public office in
447-14 this state or a political subdivision of this state; or
447-15 (D) a county, municipality, state agency, or
447-16 state instrumentality, including a public institution of education,
447-17 regardless of the number of employees.
447-18 (9) <(7)> "Employment agency" means a person or an
447-19 agent of the person who regularly undertakes, with or without
447-20 compensation, to procure:
447-21 (A) employees for an employer; or
447-22 (B) the opportunity for employees to work for an
447-23 employer.
447-24 (10) <(8)> "Labor organization" means a labor
447-25 organization engaged in an industry affecting commerce. The term
447-26 includes:
447-27 (A) an organization, an agency, or an employee
448-1 representation committee, group, association, or plan engaged in an
448-2 industry affecting commerce in which employees participate and that
448-3 exists for the purpose, in whole or in part, of dealing with
448-4 employers concerning grievances, labor disputes, wages, rates of
448-5 pay, hours, or other terms or conditions of employment;
448-6 (B) a conference, general committee, joint or
448-7 system board, or joint council that is subordinate to a national or
448-8 international labor organization; and
448-9 (C) an agent of a labor organization.
448-10 (11) <(9)> "Local commission" means a commission on
448-11 human relations created by one or more political subdivisions.
448-12 (12) <(10)> "Political subdivision" means a county or
448-13 municipality.
448-14 (13) <(11)> "Respondent" means the person charged in a
448-15 complaint filed under this chapter and may include an employer,
448-16 employment agency, labor organization, or joint labor-management
448-17 committee that controls an apprenticeship or other training or
448-18 retraining program, including an on-the-job training program.
448-19 (b) Section 2, Chapter 276, Acts of the 73rd Legislature,
448-20 Regular Session, 1993, is repealed.
448-21 SECTION 9.03. (a) Section 21.003(a), Labor Code, is amended
448-22 to conform to Section 3, Chapter 276 (H.B. 860), Acts of the 73rd
448-23 Legislature, Regular Session, 1993, to read as follows:
448-24 (a) The commission may:
448-25 (1) promote the creation of local commissions on human
448-26 rights by cooperating or contracting with any person, including
448-27 agencies of the federal government and of other states;
449-1 (2) receive, investigate, conciliate, and rule on
449-2 complaints alleging violations of this chapter;
449-3 (3) file civil actions to carry out the purposes of
449-4 this chapter;
449-5 (4) request and, if necessary, compel by subpoena:
449-6 (A) the attendance of necessary witnesses for
449-7 examination under oath; and
449-8 (B) the production, for inspection and copying,
449-9 of records, documents, and other evidence relevant to the
449-10 investigation of alleged violations of this chapter;
449-11 (5) furnish technical assistance requested by a person
449-12 subject to this chapter to further compliance with this chapter or
449-13 with a rule or order issued under this chapter;
449-14 (6) recommend in its annual report legislation or
449-15 other action to carry out the purposes and policies of this
449-16 chapter; <and>
449-17 (7) adopt procedural rules to carry out the purposes
449-18 and policies of this chapter;
449-19 (8) provide educational and outreach activities to
449-20 individuals who have historically been victims of employment
449-21 discrimination; and
449-22 (9) require state agencies and public institutions of
449-23 higher education to develop and implement personnel policies that
449-24 comply with this chapter, including personnel selection procedures
449-25 that incorporate a work force diversity program.
449-26 (b) Section 3, Chapter 276, Acts of the 73rd Legislature,
449-27 Regular Session, 1993, is repealed.
450-1 SECTION 9.04. (a) Subchapter C, Chapter 21, Labor Code, is
450-2 amended to conform to Section 4, Chapter 276 (H.B. 860), Acts of
450-3 the 73rd Legislature, Regular Session, 1993, by adding Sections
450-4 21.120 and 21.121 to read as follows:
450-5 Sec. 21.120. USE OR POSSESSION OF CONTROLLED SUBSTANCE. (a)
450-6 An employer does not commit an unlawful employment practice by
450-7 adopting a policy prohibiting the employment of a person who
450-8 currently uses or possesses a controlled substance as defined in
450-9 Schedules I and II of Section 202, Controlled Substances Act (21
450-10 U.S.C. Section 801 et seq.), other than the use or possession of a
450-11 drug taken under the supervision of a licensed health care
450-12 professional or any other use or possession authorized by the
450-13 Controlled Substances Act or any other federal or state law.
450-14 (b) Subsection (a) does not apply to a policy adopted or
450-15 applied with the intent to discriminate because of race, color,
450-16 sex, national origin, religion, age, or disability.
450-17 Sec. 21.121. WORK FORCE DIVERSITY PROGRAMS. An employer
450-18 does not commit an unlawful employment practice by developing and
450-19 implementing personnel policies that incorporate work force
450-20 diversity programs.
450-21 (b) Section 4, Chapter 276, Acts of the 73rd Legislature,
450-22 Regular Session, 1993, is repealed.
450-23 SECTION 9.05. (a) Subchapter C, Chapter 21, Labor Code, is
450-24 amended to conform to Section 5, Chapter 276 (H.B. 860), Acts of
450-25 the 73rd Legislature, Regular Session, 1993, by adding Sections
450-26 21.122-21.129 to read as follows:
450-27 Sec. 21.122. BURDEN OF PROOF IN DISPARATE IMPACT CASES. (a)
451-1 An unlawful employment practice based on disparate impact is
451-2 established under this chapter only if:
451-3 (1) a complainant demonstrates that a respondent uses
451-4 a particular employment practice that causes a disparate impact on
451-5 the basis of race, color, sex, national origin, religion, or
451-6 disability and the respondent fails to demonstrate that the
451-7 challenged practice is job-related for the position in question and
451-8 consistent with business necessity; or
451-9 (2) the complainant makes the demonstration in
451-10 accordance with federal law as that law existed June 4, 1989, with
451-11 respect to the concept of alternative employment practices, and the
451-12 respondent refuses to adopt an alternative employment practice.
451-13 (b) To determine the availability of and burden of proof
451-14 applicable to a disparate impact case involving age discrimination,
451-15 the court shall apply the judicial interpretation of the Age
451-16 Discrimination in Employment Act of 1967 (29 U.S.C. Section 621 et
451-17 seq.).
451-18 (c) To demonstrate that a particular employment practice
451-19 causes a disparate impact, the complainant must demonstrate that
451-20 each particular challenged employment practice causes a disparate
451-21 impact, except that if the complainant demonstrates to the
451-22 satisfaction of the court that the elements of a respondent's
451-23 decision-making process are not capable of separation for analysis,
451-24 that decision-making process may be analyzed as one employment
451-25 practice.
451-26 (d) If the respondent demonstrates that a specific practice
451-27 does not cause a disparate impact, the respondent may not be
452-1 required to demonstrate that the practice is consistent with
452-2 business necessity.
452-3 Sec. 21.123. SCOPE OF DEFENSE. A demonstration that an
452-4 employment practice is consistent with business necessity may not
452-5 be used as a defense under this chapter against a complaint of
452-6 intentional discrimination.
452-7 Sec. 21.124. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST
452-8 SCORES. It is an unlawful employment practice for a respondent, in
452-9 connection with the selection or referral of applicants for
452-10 employment or promotion, to adjust the scores of, use different
452-11 cutoff scores for, or otherwise alter the results of
452-12 employment-related tests on the basis of race, color, sex, national
452-13 origin, religion, age, or disability.
452-14 Sec. 21.125. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE
452-15 CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, OR DISABILITY
452-16 IN EMPLOYMENT PRACTICES. (a) Except as otherwise provided by this
452-17 chapter, an unlawful employment practice is established if the
452-18 complainant demonstrates that race, color, sex, national origin,
452-19 religion, age, or disability was a motivating factor for an
452-20 employment practice, even if other factors also motivated the
452-21 practice, unless race, color, sex, national origin, or disability
452-22 is combined with objective job-related factors to attain diversity
452-23 in the employer's work force.
452-24 (b) In a complaint in which a complainant proves a violation
452-25 under Subsection (a) and a respondent demonstrates that the
452-26 respondent would have taken the same action in the absence of the
452-27 impermissible motivating factor, the court may grant declaratory
453-1 relief, injunctive relief except as otherwise provided by this
453-2 subsection, and attorney's fees and costs demonstrated to be
453-3 directly attributable only to the pursuit of a complaint under
453-4 Subsection (a), but may not award damages or issue an order
453-5 requiring an admission, reinstatement, hiring, promotion, or back
453-6 pay.
453-7 Sec. 21.126. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE
453-8 STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful
453-9 employment practice for a person elected to public office in this
453-10 state or a political subdivision of this state to discriminate
453-11 because of race, color, sex, national origin, religion, age, or
453-12 disability against an individual who is an employee or applicant
453-13 for employment to:
453-14 (1) serve on the elected official's personal staff;
453-15 (2) serve the elected official on a policy-making
453-16 level; or
453-17 (3) serve the elected official as an immediate advisor
453-18 with respect to the exercise of the constitutional or legal powers
453-19 of the office.
453-20 Sec. 21.127. EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY
453-21 SENIORITY SYSTEMS. With respect to a seniority system adopted for
453-22 an intentionally discriminatory purpose in violation of this
453-23 chapter, whether that discriminatory purpose is apparent on the
453-24 face of the seniority provision, an unlawful employment practice
453-25 occurs when:
453-26 (1) the seniority system is adopted;
453-27 (2) an individual becomes subject to the system; or
454-1 (3) an individual is injured by the application of the
454-2 system or a provision of the system.
454-3 Sec. 21.128. REASONABLE ACCOMMODATION; GOOD FAITH EFFORT.
454-4 (a) It is an unlawful employment practice for a respondent covered
454-5 under this chapter to fail or refuse to make a reasonable workplace
454-6 accommodation to a known physical or mental limitation of an
454-7 otherwise qualified individual with a disability who is an employee
454-8 or applicant for employment, unless the respondent demonstrates
454-9 that the accommodation would impose an undue hardship on the
454-10 operation of the business of the respondent.
454-11 (b) A showing of undue hardship by the respondent is a
454-12 defense to a complaint of discrimination made by an otherwise
454-13 qualified individual with a disability. In considering a complaint
454-14 based on a disability, the commission shall consider the
454-15 reasonableness of the cost of any necessary workplace accommodation
454-16 and the availability of alternatives or other appropriate relief.
454-17 (c) In a complaint in which a discriminatory employment
454-18 practice involves the provision of a reasonable workplace
454-19 accommodation under this chapter, damages may not be awarded under
454-20 Subchapter F if the respondent demonstrates good faith efforts, in
454-21 consultation with the otherwise qualified individual with a
454-22 disability who has informed the respondent that accommodation is
454-23 needed, to identify and make a reasonable workplace accommodation
454-24 that would provide the individual with an equally effective
454-25 opportunity and would not cause an undue hardship on the operation
454-26 of the business.
454-27 Sec. 21.129. COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION
455-1 AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED. This chapter
455-2 does not affect a court-ordered remedy, affirmative action
455-3 agreement, or conciliation agreement made in accordance with law.
455-4 (b) Section 5, Chapter 276, Acts of the 73rd Legislature,
455-5 Regular Session, 1993, is repealed.
455-6 SECTION 9.06. (a) Section 21.201, Labor Code, is amended to
455-7 conform to Section 6, Chapter 276 (H.B. 860), Acts of the 73rd
455-8 Legislature, Regular Session, 1993, by amending Subsection (d) and
455-9 adding Subsections (e), (f), and (g) to read as follows:
455-10 (d) The executive director or the executive director's
455-11 designee shall serve the respondent with a copy of the perfected
455-12 complaint not later than the 10th day after the date the complaint
455-13 is filed.
455-14 (e) A complaint may be amended to cure technical defects or
455-15 omissions, including a failure to verify the complaint or to
455-16 clarify and amplify an allegation made in the complaint.
455-17 (f) An amendment to a complaint that alleges additional
455-18 facts that constitute unlawful employment practices relating to or
455-19 arising from the subject matter of the original complaint relates
455-20 back to the date the complaint was first received by the
455-21 commission.
455-22 (g) If a perfected complaint is not received by the
455-23 commission before the 181st day after the date of the alleged
455-24 unlawful employment practice, the commission shall notify the
455-25 respondent that a complaint has been filed and that the process of
455-26 perfecting the complaint is in progress.
455-27 (b) Section 21.203, Labor Code, is amended to conform to
456-1 Section 6, Chapter 276 (H.B. 860), Acts of the 73rd Legislature,
456-2 Regular Session, 1993, to read as follows:
456-3 Sec. 21.203. ALTERNATIVE DISPUTE <INVITATION FOR VOLUNTARY>
456-4 RESOLUTION; OFFICE. (a) The use of alternative means of dispute
456-5 resolution, including settlement negotiations, conciliation,
456-6 facilitation, mediation, fact-finding, minitrials, and arbitration,
456-7 is encouraged to resolve disputes arising under this chapter. The
456-8 settlement of a disputed claim under this chapter that results from
456-9 the use of traditional or alternative means of dispute resolution
456-10 is binding on the parties to the claim.
456-11 (b) The commission shall establish an office of alternative
456-12 dispute resolution. At any time after a complaint is received
456-13 under Section 21.201, at the request of a party or at the direction
456-14 of the commission the matter may be referred to the office of
456-15 alternative dispute resolution <The executive director or the
456-16 executive director's designee shall invite the complainant and
456-17 respondent to attempt voluntarily to resolve the dispute before
456-18 initiation and completion of an investigation>.
456-19 (c) Section 21.209, Labor Code, is repealed to conform to
456-20 Section 6, Chapter 276 (H.B. 860), Acts of the 73rd Legislature,
456-21 Regular Session, 1993.
456-22 (d) Section 6, Chapter 276, Acts of the 73rd Legislature,
456-23 Regular Session, 1993, is repealed.
456-24 SECTION 9.07. (a) Section 21.256, Labor Code, is amended to
456-25 conform to Section 7, Chapter 276 (H.B. 860), Acts of the 73rd
456-26 Legislature, Regular Session, 1993, to read as follows:
456-27 Sec. 21.256. STATUTE OF LIMITATIONS. A civil action may not
457-1 be brought under this subchapter later than the second <first>
457-2 anniversary of the date the complaint relating to the action is
457-3 filed.
457-4 (b) Subchapter F, Chapter 21, Labor Code, is amended to
457-5 conform to Section 7, Chapter 276 (H.B. 860), Acts of the 73rd
457-6 Legislature, Regular Session, 1993, by adding Section 21.2585 to
457-7 read as follows:
457-8 Sec. 21.2585. COMPENSATORY AND PUNITIVE DAMAGES. (a) On
457-9 finding that a respondent engaged in an unlawful intentional
457-10 employment practice as alleged in a complaint, a court may award:
457-11 (1) compensatory damages; and
457-12 (2) punitive damages.
457-13 (b) A complainant may recover punitive damages against a
457-14 respondent, other than a respondent that is a governmental entity,
457-15 if the complainant demonstrates that the respondent engaged in a
457-16 discriminatory practice with malice or with reckless indifference
457-17 to the state-protected rights of an aggrieved individual.
457-18 (c) Compensatory damages awarded under this section may not
457-19 include:
457-20 (1) back pay;
457-21 (2) interest on back pay; or
457-22 (3) other relief authorized under Section 21.258(b).
457-23 (d) The sum of the amount of compensatory damages awarded
457-24 under this section for future pecuniary losses, emotional pain,
457-25 suffering, inconvenience, mental anguish, loss of enjoyment of
457-26 life, and other nonpecuniary losses and the amount of punitive
457-27 damages awarded under this section may not exceed, for each
458-1 complainant:
458-2 (1) $50,000 in the case of a respondent that has at
458-3 least 15 but not more than 100 employees;
458-4 (2) $100,000 in the case of a respondent that has at
458-5 least 101 but not more than 200 employees;
458-6 (3) $200,000 in the case of a respondent that has at
458-7 least 201 but not more than 500 employees; and
458-8 (4) $300,000 in the case of a respondent that has at
458-9 least 501 employees.
458-10 (e) For the purposes of Subsection (d), in determining the
458-11 number of employees of a respondent, the employees must be employed
458-12 by the respondent for each of 20 or more calendar weeks in the
458-13 current or preceding calendar year.
458-14 (c) Section 21.259, Labor Code, is amended to conform to
458-15 Section 7, Chapter 276 (H.B. 860), Acts of the 73rd Legislature,
458-16 Regular Session, 1993, by adding Subsection (c) to read as follows:
458-17 (c) In awarding costs and attorney's fees in a proceeding
458-18 under this chapter, the court may include reasonable expert fees.
458-19 (d) Section 7, Chapter 276, Acts of the 73rd Legislature,
458-20 Regular Session, 1993, is repealed.
458-21 SECTION 9.08. (a) Subchapter A, Chapter 21, Labor Code, is
458-22 amended to conform to Section 8, Chapter 276 (H.B. 860), Acts of
458-23 the 73rd Legislature, Regular Session, 1993, by adding Sections
458-24 21.007-21.009 to read as follows:
458-25 Sec. 21.007. PRIVILEGED COMMUNICATION; IMMUNITY. An oral or
458-26 written statement made to a commissioner or an employee of the
458-27 commission in connection with the discharge of the commissioner's
459-1 or employee's duties under this chapter may not be the basis for an
459-2 action for defamation of character.
459-3 Sec. 21.008. LIMITED DAMAGES. (a) If a limit on damages
459-4 prescribed by Section 21.2585 is invalidated by a method other than
459-5 by the legislature, the amount of civil liability for all past and
459-6 future noneconomic losses, including past and future pain and
459-7 suffering, mental anguish and suffering, and any other nonpecuniary
459-8 damage, is limited to an amount not to exceed $150,000.
459-9 (b) If a limit on damages prescribed by Section 21.2585 is
459-10 invalidated by a method other than by the legislature and if the
459-11 alternative civil liability limits contained in Subsection (a) are
459-12 also invalidated by a method other than by the legislature, Section
459-13 21.2585 is void.
459-14 Sec. 21.009. JOINDER OF COMMISSION. (a) In a civil action
459-15 in which the validity of a provision of this chapter, a rule
459-16 adopted under this chapter, or the application of the provision or
459-17 rule is challenged as void, unconstitutional, or unenforceable, the
459-18 commission shall be made a party to the proceedings, and, on the
459-19 motion of the commission, venue of the cause may be transferred to
459-20 the district courts of Travis County.
459-21 (b) An order restraining the commission or invalidating a
459-22 provision of this chapter or a commission rule adopted under this
459-23 chapter may not be enforced and may not take effect until the
459-24 commission has answered and appeared in the action and has
459-25 exhausted all avenues of appeal and any judgment is final and
459-26 enforceable.
459-27 (c) Notwithstanding any other provision of state law, only
460-1 the commission, if a prevailing party, may recover costs and
460-2 attorney's fees in a declaratory proceeding under this section.
460-3 (b) Section 8, Chapter 276, Acts of the 73rd Legislature,
460-4 Regular Session, 1993, is repealed.
460-5 SECTION 9.09. (a) Subtitle A, Title 2, Labor Code, is
460-6 amended to conform to Chapter 755 (H.B. 937), Acts of the 73rd
460-7 Legislature, Regular Session, 1993 (Article 5196h, Vernon's Texas
460-8 Civil Statutes), by adding Chapter 22 to read as follows:
460-9 CHAPTER 22. EMPLOYMENT DISCRIMINATION FOR
460-10 PARTICIPATING IN EMERGENCY EVACUATION
460-11 Sec. 22.001. DEFINITIONS. In this chapter:
460-12 (1) "Disaster" means the occurrence or imminent threat
460-13 of widespread or severe damage, injury, or loss of life or property
460-14 that results from a natural or man-made cause, including fire,
460-15 flood, earthquake, wind, storm, wave action, oil spill or other
460-16 water contamination, volcanic activity, epidemic, air
460-17 contamination, blight, drought, infestation, explosion, riot,
460-18 hostile military or paramilitary action, or other public calamity
460-19 requiring emergency action, or an energy emergency.
460-20 (2) "Emergency evacuation order" means an official
460-21 statement issued by the governing body of this state or a political
460-22 subdivision of this state to recommend the evacuation of all or
460-23 part of the population of an area stricken or threatened with a
460-24 disaster. The term includes a declaration of local disaster under
460-25 Section 418.108, Government Code.
460-26 (3) "Emergency services personnel" includes fire
460-27 fighters, police officers and other peace officers, emergency
461-1 medical technicians, and other individuals who are required, in the
461-2 course and scope of their employment, to provide services for the
461-3 benefit of the general public during emergency situations.
461-4 (4) "Employee" means an individual who is employed by
461-5 an employer for compensation.
461-6 (5) "Employer" means a person who employs one or more
461-7 employees.
461-8 (6) "Political subdivision" means a county,
461-9 municipality, special district, or authority of this state.
461-10 Sec. 22.002. DISCRIMINATION PROHIBITED. An employer may not
461-11 discharge or in any other manner discriminate against an employee
461-12 who leaves the employee's place of employment to participate in a
461-13 general public evacuation ordered under an emergency evacuation
461-14 order.
461-15 Sec. 22.003. LIABILITY; REINSTATEMENT. (a) An employer who
461-16 violates Section 22.002 is liable for any loss of wages and
461-17 employer-provided benefits incurred by the employee as a result of
461-18 the violation.
461-19 (b) A person discharged in violation of Section 22.002 is
461-20 entitled to reinstatement in the same or an equivalent position of
461-21 employment with commensurate pay.
461-22 Sec. 22.004. EXEMPTION; EMERGENCY SERVICES PERSONNEL. (a)
461-23 Section 22.002 does not apply to individuals employed as emergency
461-24 services personnel if the employer provides adequate emergency
461-25 shelter for those individuals.
461-26 (b) This chapter does not apply to a person who is necessary
461-27 to provide for the safety and well-being of the general public,
462-1 including a person necessary for the restoration of vital services.
462-2 (b) Chapter 755, Acts of the 73rd Legislature, Regular
462-3 Session, 1993 (Article 5196h, Vernon's Texas Civil Statutes), is
462-4 repealed.
462-5 SECTION 9.10. (a) Section 51.031, Labor Code, is amended to
462-6 conform to Section 1, Chapter 331 (S.B. 939), Acts of the 73rd
462-7 Legislature, Regular Session, 1993, as follows:
462-8 Sec. 51.031. OFFENSE; PENALTY. An offense under this
462-9 chapter is a Class B <C> misdemeanor.
462-10 (b) Section 1, Chapter 331, Acts of the 73rd Legislature,
462-11 Regular Session, 1993, is repealed.
462-12 SECTION 9.11. (a) Subchapter D, Chapter 51, Labor Code, is
462-13 amended to conform to Section 2, Chapter 331 (S.B. 939), Acts of
462-14 the 73rd Legislature, Regular Session, 1993, by adding Sections
462-15 51.033 and 51.034 to read as follows:
462-16 Sec. 51.033. ADMINISTRATIVE PENALTY. (a) If the commission
462-17 determines that a person who employs a child has violated this
462-18 chapter or a rule adopted under this chapter, the commission may
462-19 assess an administrative penalty against that person as provided by
462-20 this section.
462-21 (b) The penalty for a violation may be in an amount not to
462-22 exceed $10,000.
462-23 (c) The amount of the penalty shall be based on:
462-24 (1) the seriousness of the violation, including the
462-25 nature, circumstances, extent, and gravity of any prohibited acts;
462-26 (2) the history of previous violations;
462-27 (3) the amount necessary to deter future violations;
463-1 (4) efforts to correct the violation; and
463-2 (5) any other matter that justice may require.
463-3 (d) If, after examination of a possible violation and the
463-4 facts relating to that possible violation, the commission
463-5 determines that a violation has occurred, the commission shall
463-6 issue a preliminary determination that states the facts on which
463-7 the determination is based, the fact that an administrative penalty
463-8 is to be imposed, and the amount of the penalty.
463-9 (e) Not later than the 14th day after the date the report is
463-10 issued, the commission shall give written notice of the preliminary
463-11 determination to the person charged with the violation. The notice
463-12 must include a brief summary of the alleged violation and a
463-13 statement of the amount of the recommended penalty and must inform
463-14 the person that the person has a right to a hearing on the
463-15 occurrence of the violation, the amount of the penalty, or both the
463-16 occurrence of the violation and the amount of the penalty.
463-17 (f) Not later than the 20th day after the date on which the
463-18 notice is mailed, the person may make a written request for a
463-19 hearing on the occurrence of the violation, the amount of the
463-20 penalty, or both the occurrence of the violation and the amount of
463-21 the penalty.
463-22 (g) If the person requests a hearing, the commission shall
463-23 set a hearing and give notice of the hearing to the person. The
463-24 hearing is subject to the commission rules and hearings procedures
463-25 used by the commission to determine a claim under Subtitle A, Title
463-26 4. The hearings examiner shall issue a decision.
463-27 (h) If it is determined after the hearing that a penalty may
464-1 be imposed, the commission shall enter a written order to that
464-2 effect. The commission shall notify the person in writing of the
464-3 decision and the amount of the penalty imposed.
464-4 (i) The notice of the commission's order must include a
464-5 statement of the right of the person to judicial review of the
464-6 order.
464-7 (j) Not later than the 30th day after the date the
464-8 commission's order is final, the person shall:
464-9 (1) pay the amount of the penalty;
464-10 (2) pay the amount of the penalty and file a petition
464-11 for judicial review contesting the occurrence of the violation, the
464-12 amount of the penalty, or both the occurrence of the violation and
464-13 the amount of the penalty; or
464-14 (3) without paying the amount of the penalty, file a
464-15 petition for judicial review contesting the occurrence of the
464-16 violation, the amount of the penalty, or both the occurrence of the
464-17 violation and the amount of the penalty.
464-18 (k) Within the 30-day period, a person who acts under
464-19 Subsection (j)(3) may:
464-20 (1) stay enforcement of the penalty by:
464-21 (A) paying the amount of the penalty to the
464-22 court for placement in an escrow account; or
464-23 (B) giving to the court a supersedeas bond
464-24 approved by the court that is for the amount of the penalty and
464-25 that is effective until all judicial review of the commission's
464-26 order is final; or
464-27 (2) request the court to stay enforcement of the
465-1 penalty by:
465-2 (A) filing with the court a sworn affidavit of
465-3 the person stating that the person is financially unable to pay the
465-4 amount of the penalty and is financially unable to give the
465-5 supersedeas bond; and
465-6 (B) giving a copy of the affidavit to the
465-7 commission by certified mail.
465-8 (l) If the commission receives a copy of an affidavit under
465-9 Subsection (k)(2), the commission may file with the court not later
465-10 than the fifth day after the date the copy is received a contest to
465-11 the affidavit. The court shall hold a hearing on the facts alleged
465-12 in the affidavit as soon as practicable and shall stay the
465-13 enforcement of the penalty on finding that the alleged facts are
465-14 true. The person who files an affidavit has the burden of proving
465-15 that the person is financially unable to pay the amount of the
465-16 penalty and to give a supersedeas bond.
465-17 (m) If the person does not pay the amount of the penalty and
465-18 the enforcement of the penalty is not stayed, the commission may
465-19 refer the matter to the attorney general for collection of the
465-20 amount of the penalty.
465-21 (n) Judicial review of the order of the commission:
465-22 (1) is instituted by bringing an action as provided by
465-23 Subchapter E, Chapter 212; and
465-24 (2) is under the substantial evidence rule.
465-25 (o) If the court sustains the occurrence of the violation,
465-26 the court may uphold or reduce the amount of the penalty and order
465-27 the person to pay the full or reduced amount of the penalty. If
466-1 the court does not sustain the occurrence of the violation, the
466-2 court shall order that a penalty is not owed.
466-3 (p) When the judgment of the court becomes final, the court
466-4 shall proceed under this subsection. If the person paid the amount
466-5 of the penalty and if that amount is reduced or is not upheld by
466-6 the court, the court shall order that the appropriate amount plus
466-7 accrued interest be remitted to the person. The rate of the
466-8 interest is the rate charged on loans to depository institutions by
466-9 the New York Federal Reserve Bank, and the interest shall be paid
466-10 for the period beginning on the date the penalty was paid and
466-11 ending on the date the penalty is remitted. If the person gave a
466-12 supersedeas bond and if the amount of the penalty is not upheld by
466-13 the court, the court shall order the release of the bond. If the
466-14 person gave a supersedeas bond and if the amount of the penalty is
466-15 reduced, the court shall order the release of the bond after the
466-16 person pays the amount.
466-17 (q) The attorney general may bring a suit in a district
466-18 court in Travis County to enforce a final order from which an
466-19 appeal under this chapter has not been taken. In the suit and on
466-20 the request of the attorney general, the court may order payment of
466-21 attorney's fees and other costs of court.
466-22 (r) A penalty collected under this section shall be remitted
466-23 to the comptroller for deposit in the general revenue fund.
466-24 Sec. 51.034. INJUNCTION: ATTORNEY GENERAL'S ACTION. The
466-25 attorney general may seek injunctive relief in district court
466-26 against an employer who repeatedly violates the requirements
466-27 established by this chapter relating to the employment of children.
467-1 (b) Section 2, Chapter 331, Acts of the 73rd Legislature,
467-2 Regular Session, 1993, is repealed.
467-3 SECTION 9.12. (a) Section 61.001(4), Labor Code, is amended
467-4 to conform to Section 1, Chapter 456 (S.B. 418), Acts of the 73rd
467-5 Legislature, Regular Session, 1993, to read as follows:
467-6 (4) "Employer" means a person who:
467-7 (A) <that> employs one or more employees; or
467-8 (B) acts directly or indirectly in the interests
467-9 of an employer in relation to an employee.
467-10 (b) Section 1, Chapter 456, Acts of the 73rd Legislature,
467-11 Regular Session, 1993, is repealed.
467-12 SECTION 9.13. (a) Section 61.002, Labor Code, is amended to
467-13 conform to Section 4, Chapter 456 (S.B. 418), Acts of the 73rd
467-14 Legislature, Regular Session, 1993, to read as follows:
467-15 Sec. 61.002. COMMISSION DUTIES <POWERS>. (a) The
467-16 commission shall:
467-17 (1) administer this chapter; and
467-18 (2) <may> adopt rules as necessary to implement this
467-19 chapter.
467-20 (b) The commission may require reports, conduct
467-21 investigations, and take other action <administer oaths> as it
467-22 considers necessary to implement this chapter.
467-23 (c) In the discharge of the duties imposed by this chapter,
467-24 any authorized representative or member of the commission may:
467-25 (1) administer an oath or affirmation;
467-26 (2) take a deposition;
467-27 (3) certify to an official act; and
468-1 (4) issue a subpoena to compel the attendance of a
468-2 witness and the production of books, papers, correspondence,
468-3 memoranda, and other records considered necessary as evidence in
468-4 the administration of this chapter.
468-5 (b) Subchapter A, Chapter 61, Labor Code, is amended to
468-6 conform to Section 4, Chapter 456 (S.B. 418), Acts of the 73rd
468-7 Legislature, Regular Session, 1993, by adding Sections 61.004 and
468-8 61.005 to read as follows:
468-9 Sec. 61.004. PAYMENT OF CERTAIN FEES FOR SERVICE OF PROCESS.
468-10 Notwithstanding Chapter 152 or 154, Local Government Code, or any
468-11 other law of this state, the fees assessed by a sheriff or
468-12 constable for service of a subpoena under Section 61.002 shall be
468-13 paid by the commission out of the administrative funds of the
468-14 commission, and the comptroller shall issue warrants for those fees
468-15 as directed by the commission.
468-16 Sec. 61.005. EFFECT OF REFUSAL TO OBEY COMMISSION SUBPOENA;
468-17 CRIMINAL PENALTY. (a) In the case of contumacy or other refusal
468-18 by a person to obey a subpoena issued by a member of the commission
468-19 or an authorized representative of the commission to that person,
468-20 any county or district court of this state in the jurisdiction of
468-21 which the inquiry is carried on or in the jurisdiction of which the
468-22 person guilty of contumacy or refusal to obey is found, resides, or
468-23 transacts business has jurisdiction, on application by the
468-24 commission or its representative, to issue to the person an order
468-25 requiring the person to appear before a commissioner, the
468-26 commission, or its authorized representative to:
468-27 (1) produce evidence if so ordered; or
469-1 (2) testify regarding the matter under investigation
469-2 or in question.
469-3 (b) The court may punish as contempt a failure to obey a
469-4 court order issued under Subsection (a).
469-5 (c) A person commits an offense if the person, without just
469-6 cause, fails or refuses to obey a commission subpoena to:
469-7 (1) attend and testify;
469-8 (2) answer any lawful inquiry; or
469-9 (3) produce books, papers, correspondence, memoranda,
469-10 or other records.
469-11 (d) An offense under Subsection (c) is punishable by a fine
469-12 of not less than $200, by confinement for not more than 60 days, or
469-13 by both fine and confinement. Each day of violation constitutes a
469-14 separate offense.
469-15 (c) Section 4, Chapter 456, Acts of the 73rd Legislature,
469-16 Regular Session, 1993, is repealed.
469-17 SECTION 9.14. (a) Section 61.056(a), Labor Code, is amended
469-18 to conform to Section 2, Chapter 456 (S.B. 418), Acts of the 73rd
469-19 Legislature, Regular Session, 1993, to read as follows:
469-20 (a) An employer that does not request a hearing within the
469-21 period prescribed by Section 61.054 to contest a preliminary wage
469-22 determination order shall pay the amount ordered to the commission
469-23 not later than the 21st day after the date the commission mails
469-24 notice of the order. The payment must equal the net amount of
469-25 outstanding wages after any valid deductions and must include an
469-26 itemized list of those deductions.
469-27 (b) Section 61.062(b), Labor Code, is amended to conform to
470-1 Section 2, Chapter 456 (S.B. 418), Acts of the 73rd Legislature,
470-2 Regular Session, 1993, to read as follows:
470-3 (b) The suit must be filed not later than the 30th <60th>
470-4 day after the date the final order is mailed.
470-5 (c) Section 61.063(a), Labor Code, is amended to conform to
470-6 Section 2, Chapter 456 (S.B. 418), Acts of the 73rd Legislature,
470-7 Regular Session, 1993, to read as follows:
470-8 (a) Not later than the 30th <60th> day after the date a
470-9 commission order becomes final, the party required to pay wages or
470-10 a penalty shall:
470-11 (1) pay the amount to the commission; or
470-12 (2) if the party files a petition for judicial review
470-13 in a court of competent jurisdiction contesting the final order,
470-14 send the amount to the commission for deposit in an
470-15 interest-bearing escrow account.
470-16 (d) Section 61.066, Labor Code, is amended to conform to
470-17 Section 2, Chapter 456 (S.B. 418), Acts of the 73rd Legislature,
470-18 Regular Session, 1993, to read as follows:
470-19 Sec. 61.066. COMMISSION <ATTORNEY GENERAL> ACTION;
470-20 ENFORCEMENT OF ORDER. (a) The commission, in the name of the
470-21 state and the attorney general, may:
470-22 (1) bring a suit in a district court in Travis County
470-23 to enforce a final order from which an appeal under this chapter
470-24 has not been taken; or
470-25 (2) serve on the defaulting party a notice of
470-26 assessment stating the amount due.
470-27 (b) A notice of assessment served under this section is
471-1 prima facie evidence of the contents of the notice. However, the
471-2 defaulting party may show the incorrectness of the notice of
471-3 assessment.
471-4 (c) The notice shall be served in the manner provided by law
471-5 for service of process on a defendant in a civil action in district
471-6 court.
471-7 (d) A person aggrieved by the determination of the
471-8 commission as stated in the notice of assessment may seek judicial
471-9 review of the assessment by filing a petition for judicial review
471-10 in a Travis County district court not later than the 30th day after
471-11 the date on which the notice of assessment is served. A copy of
471-12 the petition shall be served in the manner prescribed by law for
471-13 service of process on a defendant in a civil action in district
471-14 court on:
471-15 (1) a member of the commission; or
471-16 (2) a person designated by the commission for service
471-17 of process.
471-18 (e) If the party on whom a notice of assessment is served
471-19 does not seek judicial review as provided by this section, the
471-20 assessment is final for all purposes. An assessment that is not
471-21 contested or that is upheld after judicial review shall be
471-22 recorded, enforced, renewed, and otherwise treated as the final
471-23 judgment of a district court.
471-24 (f) Unless the adverse party prevails in the civil action or
471-25 the notice of assessment is reversed by a reviewing court, the
471-26 adverse party shall pay all costs of either action, including <In a
471-27 suit brought under Subsection (a), on the request of the attorney
472-1 general the court may order payment of> attorney's fees,
472-2 <including> investigation costs, service costs, court costs, and
472-3 other applicable costs <of court>.
472-4 (e) Section 2, Chapter 456, Acts of the 73rd Legislature,
472-5 Regular Session, 1993, is repealed.
472-6 SECTION 9.15. (a) Subchapter D, Chapter 61, Labor Code, is
472-7 amended to conform to Section 3, Chapter 456 (S.B. 418), Acts of
472-8 the 73rd Legislature, Regular Session, 1993, by adding Section
472-9 61.067 to read as follows:
472-10 Sec. 61.067. RECIPROCAL COLLECTION ARRANGEMENTS. The
472-11 commission may enter into reciprocal arrangements with appropriate
472-12 authorized agencies of the United States or other states for the
472-13 collection of wage claims that are final under the laws of the
472-14 jurisdictions in which they were filed.
472-15 (b) Chapter 61, Labor Code, is amended to conform to Section
472-16 3, Chapter 456 (S.B. 418), Acts of the 73rd Legislature, Regular
472-17 Session, 1993, by adding Subchapter F to read as follows:
472-18 SUBCHAPTER F. DELINQUENCY; LEVY
472-19 Sec. 61.091. NOTICE OF DELINQUENCY. (a) If, under a final
472-20 order, a person is determined to be delinquent in the payment of
472-21 wages, penalties, interest, or other amounts due under this
472-22 chapter, the commission may notify personally or by registered mail
472-23 any person who:
472-24 (1) possesses or controls any of the delinquent
472-25 person's assets, including a credit, bank, or savings account or
472-26 deposit, or other intangible or personal property; or
472-27 (2) owes a debt to the delinquent person.
473-1 (b) A notice under this subchapter to a state officer,
473-2 department, or agency must be provided before the officer,
473-3 department, or agency presents to the comptroller the claim of the
473-4 delinquent person.
473-5 (c) A notice under this subchapter may be given at any time
473-6 after the wages, penalties, interest, or other amounts due under
473-7 this chapter become delinquent. The notice must state the amount
473-8 of wages, penalties, interest, or other amounts due and owing and
473-9 any additional amount that will accrue by operation of law in a
473-10 period not to exceed 30 days and, in the case of a credit, bank, or
473-11 savings account or deposit, is effective only up to that amount.
473-12 Sec. 61.092. DUTIES OF NOTICE RECIPIENT. (a) On receipt of
473-13 a notice under this subchapter, the person receiving the notice:
473-14 (1) shall advise the commission not later than the
473-15 20th day after the date on which the notice is received of each
473-16 asset belonging to the delinquent person that is possessed or
473-17 controlled by the person receiving the notice and of each debt owed
473-18 by the person receiving the notice to the delinquent person; and
473-19 (2) unless the commission consents to an earlier
473-20 disposition, may not transfer or dispose of the asset or debt
473-21 possessed, controlled, or owed by the person on the date the person
473-22 received the notice within the 60-day period after the date of
473-23 receipt of the notice.
473-24 (b) A notice under this subchapter that attempts to prohibit
473-25 the transfer or disposition of an asset possessed or controlled by
473-26 a bank is not effective unless it is delivered or mailed to the
473-27 principal office of the bank or the office of the bank at which the
474-1 deposit is carried or the credit or property is held.
474-2 (c) A person who receives a notice under this subchapter and
474-3 who violates Subsection (a)(2) is liable to the commission for the
474-4 amount of the indebtedness of the delinquent person with respect to
474-5 whose obligation the notice was given, to the extent of the value
474-6 of the affected asset or debt.
474-7 Sec. 61.093. LEVY. (a) At any time during the last 45 days
474-8 of the 60-day period provided by Section 61.092(a)(2), the
474-9 commission may levy on the asset or debt by delivery of a notice of
474-10 levy.
474-11 (b) On receipt of the levy notice, the person possessing the
474-12 asset or debt shall transfer the asset to the commission or pay to
474-13 the commission the amount owed to the delinquent person.
474-14 Sec. 61.094. NOTICE EFFECT. A notice delivered under this
474-15 subchapter is effective at the time of delivery against all
474-16 property, rights to property, credits, or debts involving the
474-17 delinquent person that are not on the date of the notice subject to
474-18 a preexisting lien, attachment, garnishment, or execution issued
474-19 through a judicial process.
474-20 Sec. 61.095. DISCHARGE FROM LIABILITY. A person acting in
474-21 accordance with the terms of a notice issued by the commission
474-22 under this subchapter is discharged from any obligation or
474-23 liability to the delinquent person with respect to the property or
474-24 rights to property, credits, or debts of the person affected by
474-25 compliance with the notice.
474-26 (c) Section 3, Chapter 456, Acts of the 73rd Legislature,
474-27 Regular Session, 1993, is repealed.
475-1 SECTION 9.16. Section 62.159(a), Labor Code, is amended to
475-2 conform more closely to the source law from which it was derived to
475-3 read as follows:
475-4 (a) An employer that is not liable for payment of
475-5 contributions to the unemployment compensation fund under Subtitle
475-6 A, Title 4, is exempt from this chapter, except with respect to
475-7 employment of a person in agriculture.
475-8 SECTION 9.17. (a) Subtitle C, Title 2, Labor Code, is
475-9 amended to conform to Chapter 203, Acts of the 54th Legislature,
475-10 Regular Session, 1955 (Article 5159c, Vernon's Texas Civil
475-11 Statutes), by adding Chapter 63 to read as follows:
475-12 CHAPTER 63. ACTION ON ASSIGNMENT OF WAGES
475-13 Sec. 63.001. ASSIGNMENT OF UNEARNED WAGES; NOTICE REQUIRED.
475-14 An employee's assignment of the employee's wages or a salary is not
475-15 effective against the employee's employer in any suit for wages or
475-16 salaries that are unearned at the time the assignment is executed
475-17 unless the employer is given written notice of the assignment
475-18 immediately after the execution of the assignment.
475-19 Sec. 63.002. EXEMPTION. This chapter does not affect
475-20 Section 2.07, Education Code.
475-21 (b) Chapter 203, Acts of the 54th Legislature, Regular
475-22 Session, 1955 (Article 5159c, Vernon's Texas Civil Statutes), is
475-23 repealed.
475-24 SECTION 9.18. (a) Subtitle C, Title 2, Labor Code, is
475-25 amended to conform to Chapter 354, Acts of the 45th Legislature,
475-26 Regular Session, 1937 (Article 5159b, Vernon's Texas Civil
475-27 Statutes), by adding Chapter 64 to read as follows:
476-1 CHAPTER 64. REDEMPTION OF EMPLOYER'S EVIDENCES
476-2 OF INDEBTEDNESS FOR WAGES
476-3 Sec. 64.001. DEFINITIONS. In this chapter:
476-4 (1) "Employer's evidence of indebtedness" means an
476-5 instrument, other than money, used by a person to pay an employee
476-6 or laborer of the person for labor or otherwise. The term
476-7 includes:
476-8 (A) a coupon;
476-9 (B) a chip;
476-10 (C) scrip;
476-11 (D) a punchout; and
476-12 (E) a store order.
476-13 (2) "Holder" means an employee, laborer, or other bona
476-14 fide holder who holds an employer's evidence of indebtedness.
476-15 Sec. 64.002. REDEMPTION OF EVIDENCE OF INDEBTEDNESS. (a) A
476-16 person who uses an employer's evidence of indebtedness shall, on
476-17 the demand for redemption and presentation of the employer's
476-18 evidence of indebtedness by the holder on a regular payday, redeem
476-19 the employer's evidence of indebtedness:
476-20 (1) for United States currency; and
476-21 (2) at the face value of the employer's evidence of
476-22 indebtedness.
476-23 (b) The face value of an employer's evidence of indebtedness
476-24 is currency equal to the cash value of the purchasing power in
476-25 merchandise at the commissary or other repository of the person.
476-26 Sec. 64.003. ACTION TO ENFORCE REDEMPTION; PENALTY. (a) A
476-27 holder who under Section 64.002 presents an employer's evidence of
477-1 indebtedness and demands redemption is entitled, if the person
477-2 using the employer's evidence of indebtedness refuses redemption,
477-3 to recover from that person:
477-4 (1) the value of the employer's evidence of
477-5 indebtedness;
477-6 (2) a penalty in an amount equal to 25 percent of the
477-7 amount due; and
477-8 (3) costs of court and reasonable attorney's fees.
477-9 (b) The holder may bring an action under Subsection (a) in
477-10 the holder's own name.
477-11 (b) Chapter 354, Acts of the 45th Legislature, Regular
477-12 Session, 1937 (Article 5159b, Vernon's Texas Civil Statutes), is
477-13 repealed.
477-14 SECTION 9.19. (a) Subtitle D, Title 2, Labor Code, is
477-15 amended to conform to Chapter 132, Acts of the 54th Legislature,
477-16 Regular Session, 1955 (Article 5221d, Vernon's Texas Civil
477-17 Statutes), by adding Chapter 82 to read as follows:
477-18 CHAPTER 82. DISCHARGE OF LIABILITY UNDER CERTAIN
477-19 EMPLOYEE BENEFIT PLANS
477-20 Sec. 82.001. DEFINITIONS. In this chapter:
477-21 (1) "Employee benefit plan" includes:
477-22 (A) a retirement benefits plan;
477-23 (B) a death benefits plan; and
477-24 (C) a savings plan.
477-25 (2) "Employer" includes a former employer.
477-26 Sec. 82.002. DISCHARGE OF LIABILITY. (a) A payment or
477-27 refund made by an employer or trustee under a written employee
478-1 benefit plan to a person described by Subsection (b) fully
478-2 discharges the employer or trustee from all adverse claims against
478-3 the payment or refund unless, before making the payment, the
478-4 employer or trustee receives a notice that some other person claims
478-5 to be entitled to all or part of the payment or refund.
478-6 (b) Subsection (a) applies to a payment to:
478-7 (1) an employee;
478-8 (2) a former employee;
478-9 (3) an employee's or former employee's beneficiary,
478-10 heir, or legatee; or
478-11 (4) a representative of an employee's or former
478-12 employee's estate.
478-13 Sec. 82.003. NOTICE. (a) The notice described by Section
478-14 82.002 must be received at:
478-15 (1) the employer's principal place of business in this
478-16 state, if given to an employer; or
478-17 (2) the trustee's home office, if given to the
478-18 trustee.
478-19 (b) The notice may be given by or on behalf of the other
478-20 person.
478-21 Sec. 82.004. CORPORATION MAY TRANSFER STOCK OWNERSHIP. A
478-22 corporation, the stock of which is a part of a payment or refund
478-23 that is made as provided by Section 82.002, may accept the stock
478-24 for transfer as directed by the employer or trustee and treat the
478-25 person to whom the stock is transferred as the owner of the stock
478-26 for all purposes unless or until the corporation receives at its
478-27 home office written notice by or on behalf of a person other than
479-1 the person to whom the transfer is directed that the other person
479-2 claims ownership of the stock or another interest in the stock.
479-3 Sec. 82.005. LIMITED EFFECT. This chapter does not affect a
479-4 claim or right to a payment or refund between persons other than:
479-5 (1) an employer or trustee that makes the payment or
479-6 refund; or
479-7 (2) a corporation that accepts for transfer corporate
479-8 stock that is a part of the payment or refund.
479-9 (b) Chapter 132, Acts of the 54th Legislature, Regular
479-10 Session, 1955 (Article 5221d, Vernon's Texas Civil Statutes), is
479-11 repealed.
479-12 SECTION 9.20. (a) Title 2, Labor Code, is amended to
479-13 conform to Chapter 994 (H.B. 456), Acts of the 73rd Legislature,
479-14 Regular Session, 1993 (Article 9104, Vernon's Texas Civil
479-15 Statutes), and Chapter 480, Acts of the 72nd Legislature, Regular
479-16 Session, 1991 (Article 5221a-10, Vernon's Texas Civil Statutes), by
479-17 adding Subtitle E to read as follows:
479-18 SUBTITLE E. REGULATION OF CERTAIN OCCUPATIONS
479-19 CHAPTER 91. STAFF LEASING SERVICES
479-20 SUBCHAPTER A. GENERAL PROVISIONS
479-21 Sec. 91.001. DEFINITIONS. In this chapter:
479-22 (1) "Applicant" means a business entity applying for a
479-23 license or the renewal of a license under this chapter.
479-24 (2) "Assigned employee" means a full-time employee
479-25 whose normal work week is at least 25 hours and whose work is
479-26 performed in this state. The term does not include an employee
479-27 hired to support or supplement a client company's work force in a
480-1 special work situation, including:
480-2 (A) an employee absence;
480-3 (B) a temporary skill shortage;
480-4 (C) a seasonal workload; or
480-5 (D) a special assignment or project.
480-6 (3) "Client company" means a person that contracts
480-7 with a license holder and is assigned employees by the license
480-8 holder under that contract.
480-9 (4) "Commission" means the Texas Commission of
480-10 Licensing and Regulation.
480-11 (5) "Commissioner" means the commissioner of licensing
480-12 and regulation.
480-13 (6) "Controlling person" means:
480-14 (A) an officer or director of a corporation that
480-15 offers or proposes to offer staff leasing services, a shareholder
480-16 holding 10 percent or more of the voting stock of a corporation
480-17 that offers or proposes to offer staff leasing services, or a
480-18 partner of a partnership that offers or proposes to offer staff
480-19 leasing services; or
480-20 (B) an individual who directly or indirectly has
480-21 the power to direct or cause the direction of the management or
480-22 policies of a company that offers or proposes to offer staff
480-23 leasing services through:
480-24 (i) the ownership of voting securities;
480-25 (ii) contract; or
480-26 (iii) another means.
480-27 (7) "Department" means the Texas Department of
481-1 Licensing and Regulation.
481-2 (8) "Independent contractor" means a person who
481-3 contracts to perform work or provide a service for the benefit of
481-4 another and who:
481-5 (A) is paid by the job, not by the hour or some
481-6 other time-measured basis;
481-7 (B) is free to hire as many helpers as the
481-8 person desires and to determine what each helper will be paid; and
481-9 (C) is free to work for other contractors, or to
481-10 send helpers to work for other contractors, while under contract to
481-11 the hiring employer.
481-12 (9) "License holder" means a person licensed under
481-13 this chapter to provide staff leasing services.
481-14 (10) "Public company" means a corporation whose shares
481-15 are listed on the New York Stock Exchange and that has total assets
481-16 that exceed $1 billion.
481-17 (11) "Staff leasing services" means an arrangement by
481-18 which employees of a license holder are assigned to work at a
481-19 client company and in which employment responsibilities are in fact
481-20 shared by the license holder and the client company, the employee's
481-21 assignment is intended to be of a long-term or continuing nature,
481-22 rather than temporary or seasonal in nature, and a majority of the
481-23 work force at a client company worksite or a specialized group
481-24 within that work force consists of assigned employees of the
481-25 license holder. The term does not include:
481-26 (A) a temporary help service;
481-27 (B) an independent contractor;
482-1 (C) a public company or any other person in
482-2 which that public company has a direct or indirect ownership
482-3 interest in excess of 33-1/3 percent, including ownership through
482-4 subsidiaries and affiliates; or
482-5 (D) a temporary common worker employer as
482-6 defined by Chapter 92.
482-7 (12) "Staff leasing services company" means a business
482-8 entity that offers staff leasing services.
482-9 (13) "Temporary employee" means an employee hired for
482-10 a temporary help service.
482-11 (14) "Temporary help service" means an arrangement by
482-12 which an organization hires its own employees and assigns them to a
482-13 client to support or supplement the client's work force in a
482-14 special work situation, including:
482-15 (A) an employee absence;
482-16 (B) a temporary skill shortage;
482-17 (C) a seasonal workload; or
482-18 (D) a special assignment or project.
482-19 Sec. 91.002. RULES. (a) The commissioner shall adopt rules
482-20 as necessary to administer this chapter, including rules for the
482-21 form and content of a license issued under this chapter and a
482-22 notice required under Section 91.045.
482-23 (b) Each license holder is subject to this chapter and the
482-24 rules adopted by the commissioner.
482-25 (c) This chapter does not preempt the existing statutory or
482-26 rulemaking authority of any other state agency or entity to
482-27 regulate staff leasing services in a manner consistent with the
483-1 statutory authority of that state agency or entity.
483-2 Sec. 91.003. INTERAGENCY COOPERATION. (a) Each state
483-3 agency that in performing duties under other law affects the
483-4 regulation of staff leasing services shall cooperate with the
483-5 department, the commissioner, and other state agencies as necessary
483-6 to implement and enforce this chapter.
483-7 (b) In particular, the Texas Employment Commission, the
483-8 Texas Department of Insurance, the Texas Workers' Compensation
483-9 Commission, and the attorney general's office shall assist in the
483-10 implementation of this chapter and shall provide information to the
483-11 department on request.
483-12 Sec. 91.004. EFFECT OF OTHER LAW ON CLIENTS AND EMPLOYEES.
483-13 (a) This chapter does not exempt a client of a license holder, or
483-14 any assigned employee, from any other license requirements imposed
483-15 under local, state, or federal law.
483-16 (b) An employee who is licensed, registered, or certified
483-17 under law and who is assigned to a client company is considered to
483-18 be an employee of the client company for the purpose of that
483-19 license, registration, or certification.
483-20 (Sections 91.005-91.010 reserved for expansion
483-21 SUBCHAPTER B. LICENSE REQUIREMENTS
483-22 Sec. 91.011. LICENSE REQUIRED. A person may not engage in
483-23 or offer staff leasing services in this state unless the person
483-24 holds a license issued under this chapter.
483-25 Sec. 91.012. GENERAL LICENSE REQUIREMENTS. (a) To be
483-26 qualified to serve as a controlling person of a license holder
483-27 under this chapter, that person must be at least 18 years of age,
484-1 be of good moral character, and have educational, managerial, or
484-2 business experience relevant to:
484-3 (1) operation of a business entity offering staff
484-4 leasing services; or
484-5 (2) service as a controlling person of a staff leasing
484-6 services company.
484-7 (b) For purposes of this section, "good moral character"
484-8 means a personal history of honesty, trustworthiness, fairness, a
484-9 good reputation for fair dealing, and respect for the rights of
484-10 others and for the laws of this state and nation.
484-11 Sec. 91.013. BACKGROUND INVESTIGATIONS. (a) The department
484-12 shall conduct a thorough background investigation of each
484-13 individual applicant and of each controlling person of each
484-14 applicant to determine whether that applicant or controlling person
484-15 is qualified under this chapter. The department may deny an
484-16 application for the issuance or renewal of a license if the
484-17 department finds that a controlling person is not qualified under
484-18 this chapter. The investigation must include:
484-19 (1) the submission of fingerprints for processing
484-20 through appropriate local, state, and federal law enforcement
484-21 agencies; and
484-22 (2) examination by the department of police or other
484-23 law enforcement records maintained by local, state, or federal law
484-24 enforcement agencies.
484-25 (b) Department background investigations are governed by
484-26 this chapter, Section 411.122, Government Code, and Article
484-27 6252-13c, Revised Statutes, and by Sections 2-5, Chapter 267, Acts
485-1 of the 67th Legislature, Regular Session, 1981 (Article 6252-13d,
485-2 Vernon's Texas Civil Statutes). Conviction of a crime does not
485-3 automatically disqualify a controlling person, require the
485-4 revocation of a license, or require the denial of an application
485-5 for a new or renewed license. The department shall consider
485-6 criminal convictions as provided by Section 411.122, Government
485-7 Code, Article 6252-13c, Revised Statutes, and Sections 2-5, Chapter
485-8 267, Acts of the 67th Legislature, Regular Session, 1981 (Article
485-9 6252-13d, Vernon's Texas Civil Statutes).
485-10 Sec. 91.014. NET WORTH REQUIREMENTS. (a) An applicant for
485-11 an original or renewal license must demonstrate a net worth as
485-12 follows:
485-13 (1) $50,000 if the applicant employs fewer than 250
485-14 assigned employees;
485-15 (2) $75,000 if the applicant employs at least 250 but
485-16 not more than 750 assigned employees; and
485-17 (3) $100,000 if the applicant employs more than 750
485-18 assigned employees.
485-19 (b) The applicant may demonstrate the applicant's net worth
485-20 to the department by providing the department with the applicant's
485-21 financial statement or a copy of the applicant's most recent
485-22 federal tax return. The applicant may also satisfy the net worth
485-23 requirement through guarantees, letters of credit, or other
485-24 security acceptable to the department. A guaranty is not
485-25 acceptable to satisfy this subsection unless the applicant submits
485-26 sufficient evidence to satisfy the department that the guarantor
485-27 has adequate resources to satisfy the obligations of the guaranty.
486-1 (c) In computing net worth, an applicant shall include
486-2 adequate reserves for all taxes and insurance, including reserves
486-3 for claims incurred but not paid and for claims incurred but not
486-4 reported under plans of self-insurance for health benefits. The
486-5 computation of net worth by an applicant is to be made according to
486-6 Section 448, Internal Revenue Code (26 U.S.C. Section 448).
486-7 (d) A document submitted to establish net worth must show
486-8 the net worth on a date not earlier than six months before the date
486-9 on which the application is submitted. A document submitted to
486-10 establish net worth must be prepared or certified by an independent
486-11 certified public accountant. Information supplied about net worth,
486-12 including copies of federal tax returns, is proprietary and
486-13 confidential and is exempt from disclosure to persons other than
486-14 other governmental agencies having a reasonable, legitimate purpose
486-15 for obtaining the information.
486-16 Sec. 91.015. LICENSE APPLICATION. (a) To receive a staff
486-17 leasing services company original or renewal license, a person must
486-18 file with the department a written application accompanied by the
486-19 application fee.
486-20 (b) The department may require an applicant for a license to
486-21 provide information and certifications necessary to determine that
486-22 the applicant meets the licensing requirements of this chapter.
486-23 The department may also require the applicant to provide
486-24 information and certifications necessary to determine whether
486-25 individuals affiliated with the applicant are qualified to serve as
486-26 controlling persons.
486-27 (c) An applicant or license holder is ineligible for a
487-1 license for two years after the date of a final department action
487-2 on the denial or revocation of a license applied for or issued
487-3 under this chapter. This restriction does not apply to a denial or
487-4 revocation of a license because of:
487-5 (1) an inadvertent error or omission in the
487-6 application if that error or omission is promptly corrected;
487-7 (2) insufficient experience documented to the
487-8 department at the time of the previous application; or
487-9 (3) the inability of the department to complete the
487-10 criminal background investigation required under Section 91.013
487-11 because of insufficient information received from a local, state,
487-12 or federal law enforcement agency.
487-13 (d) An applicant or license holder is ineligible for a
487-14 license for one year after the date of a final department action on
487-15 the denial or revocation of a license applied for or issued under
487-16 this chapter if the reason for the denial or revocation was that
487-17 one or more of the controlling persons affiliated with the
487-18 applicant or license holder was determined by the department to be
487-19 unsuitable and each unsuitable controlling person has in fact
487-20 ceased to be a controlling person of the applicant or license
487-21 holder.
487-22 Sec. 91.016. LICENSE ISSUANCE; TERM. (a) The department
487-23 shall issue a license to an applicant determined to meet the
487-24 requirements of this chapter. The department shall issue the
487-25 license not later than the 90th day after the date on which the
487-26 completed application is filed with the department.
487-27 (b) A license issued by the department under this chapter is
488-1 valid for one year. The department shall renew a license on
488-2 receipt of a renewal application approved by the department and
488-3 payment of the required renewal fees.
488-4 Sec. 91.017. FEES. (a) Each applicant for an original or
488-5 renewal staff leasing services company license shall pay to the
488-6 department on the issuance of the license or license renewal a fee
488-7 set by the commission by rule in an amount not to exceed $3,000.
488-8 (b) The commission is authorized to charge reasonable fees
488-9 for license applications and renewals, investigations, inspections,
488-10 and any other administrative or enforcement responsibilities
488-11 created under this chapter.
488-12 (c) Fees collected by the department under this chapter
488-13 shall be used to implement this chapter.
488-14 Sec. 91.018. LICENSE NOT ASSIGNABLE; CHANGE OF NAME OR
488-15 LOCATION. (a) A license holder may not conduct business under any
488-16 name other than that specified in the license. A license issued
488-17 under this chapter is not assignable. A license holder may not
488-18 conduct business under any fictitious or assumed name without prior
488-19 written authorization from the department. The department may not
488-20 authorize the use of a name that is so similar to that of a public
488-21 office or agency or to that of another license holder that the
488-22 public may be confused or misled by the name's use. A license
488-23 holder may not conduct business under more than one name unless the
488-24 license holder has obtained a separate license for each name.
488-25 (b) A license holder may change the license holder's
488-26 licensed name at any time by notifying the department and paying a
488-27 fee for each change of name. The commission by rule shall set the
489-1 fee for a name change in an amount not to exceed $50. A license
489-2 holder may change the license holder's name on renewal of the
489-3 license without the payment of the name change fee.
489-4 (c) A license holder must notify the department in writing
489-5 of:
489-6 (1) any change in the location of the license holder's
489-7 primary business office;
489-8 (2) the addition of more business offices; or
489-9 (3) a change in the location of business records
489-10 maintained by the license holder.
489-11 Sec. 91.019. LIMITED LICENSE. (a) The commissioner by rule
489-12 shall provide for the issuance of a limited license for a person
489-13 who offers limited staff leasing services in this state and is
489-14 primarily engaged in offering staff leasing services in another
489-15 state. The principal place of business of a person offering staff
489-16 leasing services and who applies for a license under this section
489-17 must be located in a state other than this state.
489-18 (b) For purposes of this section, a person offers limited
489-19 staff leasing services if the person employs fewer than 20 assigned
489-20 employees.
489-21 (c) A person offering limited staff leasing services must
489-22 comply with all provisions of this chapter with respect to those
489-23 services performed within this state.
489-24 Sec. 91.020. GROUNDS FOR DISCIPLINARY ACTION. (a) The
489-25 department may take disciplinary action against a license holder on
489-26 any of the following grounds:
489-27 (1) being convicted or having a controlling person of
490-1 the license holder who is convicted of:
490-2 (A) bribery, fraud, or intentional or material
490-3 misrepresentation in obtaining, attempting to obtain, or renewing a
490-4 license;
490-5 (B) a crime that relates to the operation of a
490-6 staff leasing service or the ability of the license holder or any
490-7 controlling person of the license holder to operate a staff leasing
490-8 service;
490-9 (C) a crime that relates to the classification,
490-10 misclassification, or under-reporting of employees under Subtitle
490-11 A, Title 5;
490-12 (D) a crime that relates to the establishment or
490-13 maintenance of a self-insurance program, whether health insurance,
490-14 workers' compensation insurance, or other insurance; or
490-15 (E) a crime that relates to fraud, deceit, or
490-16 misconduct in the operation of a staff leasing service;
490-17 (2) engaging in staff leasing services without a
490-18 license;
490-19 (3) transferring or attempting to transfer a license
490-20 issued under this chapter;
490-21 (4) violating this chapter or any order or rule issued
490-22 by the department or commissioner under this chapter;
490-23 (5) failing after the 31st day after the date on which
490-24 a felony conviction of a controlling person is final to notify the
490-25 department in writing of the conviction;
490-26 (6) failing to cooperate with an investigation,
490-27 examination, or audit of the license holder's records conducted by
491-1 the license holder's insurance company or the insurance company's
491-2 designee, as allowed by the insurance contract or as authorized by
491-3 law by the Texas Department of Insurance;
491-4 (7) failing after the 31st day after the effective
491-5 date of a change in ownership, principal business address, or the
491-6 address of accounts and records to notify the department and the
491-7 Texas Department of Insurance of the change;
491-8 (8) failing to correct any tax filings or payment
491-9 deficiencies within a reasonable time as determined by the
491-10 commissioner;
491-11 (9) refusing, after reasonable notice, to meet
491-12 reasonable health and safety requirements within the license
491-13 holder's control and made known to the license holder by a federal
491-14 or state agency;
491-15 (10) being delinquent in the payment of the license
491-16 holder's insurance premiums other than those subject to a
491-17 legitimate dispute;
491-18 (11) being delinquent in the payment of any employee
491-19 benefit plan premiums or contributions other than those subject to
491-20 a legitimate dispute;
491-21 (12) knowingly making a material misrepresentation to
491-22 an insurance company or to the department or other governmental
491-23 agency;
491-24 (13) failing to maintain the net worth requirements
491-25 required under Section 91.014; or
491-26 (14) using staff leasing services to avert or avoid an
491-27 existing collective bargaining agreement.
492-1 (b) For purposes of this section, "conviction" includes a
492-2 plea of nolo contendere or a finding of guilt, regardless of
492-3 adjudication.
492-4 Sec. 91.021. DISCIPLINARY PROCEDURES; REINSTATEMENT. (a)
492-5 On a finding that a ground for disciplinary action exists under one
492-6 or more provisions of Section 91.020(a), the department may:
492-7 (1) deny an application for a license;
492-8 (2) revoke, restrict, or refuse to renew a license;
492-9 (3) impose an administrative penalty in an amount not
492-10 less than $1,000 for each violation, but not more than $50,000;
492-11 (4) issue a reprimand; or
492-12 (5) place the license holder on probation for the
492-13 period and subject to conditions that the department specifies.
492-14 (b) On revocation of a license, the license holder shall
492-15 immediately return the revoked license to the department.
492-16 (c) Disciplinary action may be taken, an application for a
492-17 new or renewal license may be denied, a license may be revoked, or
492-18 a determination that a controlling person is unqualified may be
492-19 made by the department only subject to Chapter 2001, Government
492-20 Code, with notice and an opportunity for hearing provided to the
492-21 affected applicant, license holder, or controlling person.
492-22 (d) If a license is revoked or renewal is denied, the
492-23 affected license holder may request a reinstatement hearing after a
492-24 minimum of one year. The department may reinstate or renew the
492-25 license only if the cause of the revocation or nonrenewal has been
492-26 corrected.
492-27 (Sections 91.022-91.030 reserved for expansion
493-1 SUBCHAPTER C. STAFF LEASING SERVICES AGREEMENT
493-2 Sec. 91.031. AGREEMENT; NOTICE. (a) A license holder shall
493-3 establish the terms of a staff leasing services agreement by a
493-4 written contract between the license holder and the client company.
493-5 (b) The license holder shall give written notice of the
493-6 agreement as it affects assigned employees to each employee
493-7 assigned to a client company worksite.
493-8 Sec. 91.032. CONTRACT REQUIREMENTS. A contract between a
493-9 license holder and a client company must provide that the license
493-10 holder:
493-11 (1) reserves the right of direction and control over
493-12 employees assigned to a client's worksites;
493-13 (2) assumes responsibility for the payment of wages to
493-14 the assigned employees without regard to payments by the client to
493-15 the license holder;
493-16 (3) assumes responsibility for the payment of payroll
493-17 taxes and collection of taxes from payroll on assigned employees;
493-18 (4) retains the right to hire, fire, discipline, and
493-19 reassign the assigned employees; and
493-20 (5) retains the right of direction and control over
493-21 the adoption of employment and safety policies and the management
493-22 of workers' compensation claims, claim filings, and related
493-23 procedures.
493-24 (Sections 91.033-91.040 reserved for expansion
493-25 SUBCHAPTER D. POWERS AND DUTIES OF LICENSE HOLDER
493-26 Sec. 91.041. EMPLOYEE BENEFIT PLANS; REQUIRED DISCLOSURE;
493-27 OTHER REPORTS. (a) A license holder may sponsor and maintain
494-1 employee benefit plans for the benefit of assigned employees. A
494-2 client company may include assigned employees in any benefit plan
494-3 sponsored by the client company.
494-4 (b) Each license holder shall disclose to the department,
494-5 each client company, and its assigned employees information
494-6 relating to any insurance or benefit plan provided for the benefit
494-7 of its assigned employees. The information must include:
494-8 (1) the type of coverage;
494-9 (2) the identity of each insurer for each type of
494-10 coverage;
494-11 (3) the amount of benefits provided for each type of
494-12 coverage and to whom or in whose behalf benefits are to be paid;
494-13 (4) the policy limits on each insurance policy; and
494-14 (5) whether the coverage is fully insured, partially
494-15 insured, or fully self-funded.
494-16 (c) The commissioner by rule may require a license holder to
494-17 file other reports that are reasonably necessary for the
494-18 implementation of this chapter.
494-19 Sec. 91.042. WORKERS' COMPENSATION INSURANCE. (a) A
494-20 license holder may elect to obtain workers' compensation insurance
494-21 coverage for the license holder's assigned employees through an
494-22 insurance company as defined under Section 401.011(28) or through
494-23 self-insurance as provided under Chapter 407.
494-24 (b) If a license holder maintains workers' compensation
494-25 insurance, the license holder shall pay workers' compensation
494-26 insurance premiums based on the experience rating of the client
494-27 company for the first two years the client company has a contract
495-1 with the license holder and as further provided by rule by the
495-2 Texas Department of Insurance.
495-3 (c) For workers' compensation insurance purposes, a license
495-4 holder and the license holder's client company shall be
495-5 coemployers. If a license holder elects to obtain workers'
495-6 compensation insurance, the client company and the license holder
495-7 are subject to Sections 406.034 and 408.001.
495-8 (d) If a license holder does not elect to obtain workers'
495-9 compensation insurance, both the license holder and the client
495-10 company are subject to Sections 406.004 and 406.033.
495-11 (e) After the expiration of the two-year period under
495-12 Subsection (b), if the client company obtains a new workers'
495-13 compensation insurance policy in the company's own name or adds the
495-14 company's former assigned workers to an existing policy, the
495-15 premium for the workers' compensation insurance policy of the
495-16 company shall be based on the lower of:
495-17 (1) the experience modifier of the company before
495-18 entering into the staff leasing arrangement; or
495-19 (2) the experience modifier of the license holder at
495-20 the time the staff leasing arrangement terminated.
495-21 (f) On request, the Texas Department of Insurance shall
495-22 provide the necessary computations to the prospective workers'
495-23 compensation insurer of the client company to comply with
495-24 Subsection (e).
495-25 Sec. 91.043. HEALTH BENEFIT PLANS. (a) A license holder
495-26 may not sponsor a plan of self-insurance for health benefits except
495-27 as permitted by the Employee Retirement Income Security Act of 1974
496-1 (29 U.S.C. Section 1001 et seq.).
496-2 (b) For purposes of this section, a "plan of self-insurance"
496-3 includes any arrangement except an arrangement under which an
496-4 insurance carrier authorized to do business in this state has
496-5 issued an insurance policy that covers all of the obligations of
496-6 the health benefits plan.
496-7 Sec. 91.044. UNEMPLOYMENT TAXES; PAYROLL. (a) A license
496-8 holder is the employer of an assigned employee for purposes of
496-9 Subtitle A, Title 4, and Chapter 61. In addition to any other
496-10 reports required to be filed by law, a license holder shall report
496-11 quarterly to the Texas Employment Commission on a form prescribed
496-12 by the Texas Employment Commission the name, address, telephone
496-13 number, federal income tax identification number, and
496-14 classification code as described in the "Standard Industrial
496-15 Classification Manual" published by the United States Office of
496-16 Management and Budget of each client company.
496-17 (b) On contracting with a client company, a license holder
496-18 shall notify the Texas Employment Commission of the contract. The
496-19 notification shall be made in the form prescribed by the Texas
496-20 Employment Commission.
496-21 (c) For purposes of Subtitle A, Title 4, in the event of the
496-22 termination of a contract between a license holder and a client
496-23 company or the failure by a staff leasing entity to submit reports
496-24 or make tax payments as required by that subtitle, the contracting
496-25 client company shall be treated as a new employer without a
496-26 previous experience record unless that client company is otherwise
496-27 eligible for an experience rating.
497-1 Sec. 91.045. POSTING REQUIREMENTS. (a) Each license holder
497-2 shall post in a conspicuous place in the license holder's principal
497-3 place of business in this state the license issued under this
497-4 chapter.
497-5 (b) Each license holder shall display, in a place that is in
497-6 clear and unobstructed public view, a notice stating that the
497-7 business operated at the location is licensed and regulated by the
497-8 department and that any questions or complaints should be directed
497-9 to the department.
497-10 Sec. 91.046. CONTRACTUAL DUTIES. Each license holder is
497-11 responsible for the license holder's contractual duties and
497-12 responsibilities to manage, maintain, collect, and make timely
497-13 payments for:
497-14 (1) insurance premiums;
497-15 (2) benefit and welfare plans;
497-16 (3) other employee withholding; and
497-17 (4) any other expressed responsibility within the
497-18 scope of the contract for fulfilling the duties imposed under this
497-19 section and Sections 91.032, 91.047, and 91.048.
497-20 Sec. 91.047. COMPLIANCE WITH OTHER LAWS. Each license
497-21 holder shall comply with all appropriate state and federal laws
497-22 relating to reporting, sponsoring, filing, and maintaining benefit
497-23 and welfare plans.
497-24 Sec. 91.048. REQUIRED INFORMATION. Each license holder
497-25 shall:
497-26 (1) maintain adequate books and records regarding the
497-27 license holder's duties and responsibilities;
498-1 (2) maintain and make available at all times to the
498-2 commissioner the following information, which shall be treated as
498-3 proprietary and confidential and is exempt from disclosure to
498-4 persons other than other governmental agencies having a reasonable,
498-5 legitimate purpose for obtaining the information:
498-6 (A) the correct name, address, and telephone
498-7 number of each client company;
498-8 (B) each client company contract; and
498-9 (C) a listing by classification code as
498-10 described in the "Standard Industrial Classification Manual"
498-11 published by the United States Office of Management and Budget of
498-12 each client company;
498-13 (3) notify the department of any addition or deletion
498-14 of a controlling person as listed on the license application or
498-15 renewal form by providing the name of the person not later than the
498-16 30th day after the date on which the person is added or deleted as
498-17 a controlling person; and
498-18 (4) provide a notarized biographical history to the
498-19 department in connection with the addition of a new controlling
498-20 person.
498-21 Sec. 91.049. AGENT FOR SERVICE OF PROCESS. Each license
498-22 holder shall maintain a registered agent for the service of process
498-23 in this state.
498-24 (Sections 91.050-91.060 reserved for expansion)
498-25 SUBCHAPTER E. PROHIBITED ACTS; PENALTY
498-26 Sec. 91.061. PROHIBITED ACTS. A person may not:
498-27 (1) engage in staff leasing services without holding a
499-1 license under this chapter as a staff leasing services company;
499-2 (2) use the name or title "staff leasing company,"
499-3 "employee leasing company," "licensed staff leasing company," or
499-4 "staff leasing services company" or otherwise represent that the
499-5 entity is licensed under this chapter unless the entity holds a
499-6 license issued under this chapter;
499-7 (3) represent as the person's own the license of
499-8 another person or represent that a person is licensed if the person
499-9 does not hold a license;
499-10 (4) give materially false or forged evidence to the
499-11 department in connection with obtaining or renewing a license or in
499-12 connection with disciplinary proceedings under this chapter; or
499-13 (5) use or attempt to use a license that has expired
499-14 or been revoked.
499-15 Sec. 91.062. ACTION BY ATTORNEY GENERAL. (a) The
499-16 commissioner may notify the attorney general of a violation of this
499-17 chapter. The attorney general may apply to a district court in
499-18 Travis County for permission to file for quo warranto relief,
499-19 injunctive relief, or both.
499-20 (b) The attorney general may not be required to post a bond
499-21 for injunctive relief under this section.
499-22 Sec. 91.063. CRIMINAL PENALTY. (a) A person who violates
499-23 Section 91.061 commits an offense.
499-24 (b) An offense under this section is a Class A misdemeanor.
499-25 CHAPTER 92. TEMPORARY COMMON WORKER EMPLOYERS
499-26 SUBCHAPTER A. GENERAL PROVISIONS
499-27 Sec. 92.001. PURPOSE. (a) The legislature finds that this
500-1 chapter is necessary to:
500-2 (1) provide for the health, safety, and welfare of
500-3 workers throughout this state; and
500-4 (2) establish uniform standards of conduct and
500-5 practice for certain employers in this state.
500-6 (b) This chapter shall be implemented in accordance with
500-7 these purposes.
500-8 Sec. 92.002. DEFINITIONS. In this chapter:
500-9 (1) "Commission" means the Texas Commission of
500-10 Licensing and Regulation.
500-11 (2) "Commissioner" means the commissioner of licensing
500-12 and regulation.
500-13 (3) "Common worker" means an individual who performs
500-14 labor involving physical tasks that do not require:
500-15 (A) a particular skill;
500-16 (B) training in a particular occupation, craft,
500-17 or trade; or
500-18 (C) practical knowledge of the principles or
500-19 processes of an art, science, craft, or trade.
500-20 (4) "Department" means the Texas Department of
500-21 Licensing and Regulation.
500-22 (5) "Governmental subdivision" means a municipality,
500-23 county, special district, zone, authority, or other entity that is
500-24 chartered, created, or authorized by this state.
500-25 (6) "Labor hall" means a central location maintained
500-26 by a license holder where common workers assemble and are
500-27 dispatched to work for a user of common workers.
501-1 (7) "Temporary common worker employer" means a person
501-2 who provides common workers to a user of common workers. The term
501-3 includes a temporary common worker agent or temporary common worker
501-4 agency.
501-5 (8) "User of common workers" means a person who uses
501-6 the services of a common worker provided by a temporary common
501-7 worker employer.
501-8 Sec. 92.003. AGENCY POWERS AND DUTIES. The department,
501-9 commissioner, and commission shall exercise the regulatory,
501-10 administrative, and licensing authority granted under this chapter
501-11 as provided by Article 9100, Revised Statutes.
501-12 (Sections 92.004-92.010 reserved for expansion)
501-13 SUBCHAPTER B. LICENSE REQUIREMENTS
501-14 Sec. 92.011. LICENSE REQUIRED. A person may not operate as
501-15 a temporary common worker employer in this state unless the person
501-16 holds a license issued under this chapter for each location at
501-17 which the person operates.
501-18 Sec. 92.012. EXEMPTIONS FROM LICENSING REQUIREMENT. This
501-19 chapter does not apply to:
501-20 (1) a temporary skilled labor agency;
501-21 (2) a staff leasing services company;
501-22 (3) an employment counselor;
501-23 (4) a talent agency;
501-24 (5) a labor union hiring hall;
501-25 (6) a temporary common worker employer that does not
501-26 operate a labor hall;
501-27 (7) a labor bureau or employment office operated by a
502-1 person for the sole purpose of employing an individual for the
502-2 person's own use; or
502-3 (8) an employment service or labor training program
502-4 provided by a governmental entity.
502-5 Sec. 92.013. EFFECT OF OTHER REGULATION. (a) Except as
502-6 provided by Subsection (b), a license issued under this chapter
502-7 supersedes a license required or issued by a municipality or other
502-8 governmental subdivision of this state, and a license holder may
502-9 not be required to hold a license issued by a municipality or other
502-10 governmental subdivision of this state to operate as a temporary
502-11 common worker employer in the municipality or governmental
502-12 subdivision.
502-13 (b) A municipality with a population greater than 750,000
502-14 may establish municipal licensing requirements that impose stricter
502-15 standards than those imposed under Subchapter C.
502-16 (c) This chapter does not restrict the zoning authority of a
502-17 municipality.
502-18 Sec. 92.014. LICENSE APPLICATION AND ISSUANCE. (a) The
502-19 department shall issue a temporary common worker employer license
502-20 to a person who meets the application requirements established by
502-21 the commissioner and pays the application and registration fees set
502-22 by the commission.
502-23 (b) A license issued under this chapter is valid throughout
502-24 this state and is not assignable or transferable.
502-25 Sec. 92.015. LICENSE RENEWAL. (a) A license issued under
502-26 this chapter is valid for one year from the date of issuance and
502-27 may be renewed on payment of the required renewal fee.
503-1 (b) If a license holder does not renew the license before
503-2 the first anniversary of the date of issuance of the license, the
503-3 license holder must pay the late renewal fee set by the commission
503-4 to renew the license.
503-5 (c) If the license is not renewed before the second
503-6 anniversary of the date of issuance of the license, the license
503-7 holder must apply for a new license in the manner required for an
503-8 original license under this chapter.
503-9 (Sections 92.016-92.020 reserved for expansion)
503-10 SUBCHAPTER C. POWERS AND DUTIES OF LICENSE HOLDER
503-11 Sec. 92.021. LICENSE HOLDER AS EMPLOYER. (a) Each license
503-12 holder is the employer of the common workers provided by that
503-13 license holder.
503-14 (b) A license holder may hire, reassign, control, direct,
503-15 and discharge the employees of the license holder.
503-16 Sec. 92.022. REQUIRED RECORDS; CONFIDENTIALITY. (a) Each
503-17 license holder shall maintain and make available to a
503-18 representative of the department records that show for each common
503-19 worker provided by the license holder to a user of common workers:
503-20 (1) the name and address of the worker;
503-21 (2) the hours worked;
503-22 (3) the places at which the work was performed;
503-23 (4) the wages paid to the worker; and
503-24 (5) any deductions made from those wages.
503-25 (b) The license holder shall maintain the records at least
503-26 until the second anniversary of the date on which the worker was
503-27 last employed by the license holder.
504-1 (c) Information received by the commissioner or department
504-2 under this section is privileged and confidential and is for the
504-3 exclusive use of the commissioner or department. The information
504-4 may not be disclosed to any other person except on the entry of a
504-5 court order requiring disclosure or on the written consent of a
504-6 person under investigation who is the subject of the records.
504-7 Sec. 92.023. POSTING OF CERTAIN INFORMATION. (a) Each
504-8 license holder shall post the license for a place of business at
504-9 which the license holder operates as a temporary common worker
504-10 employer in a conspicuous place on the licensed premises for
504-11 inspection.
504-12 (b) Each license holder shall also post in a conspicuous
504-13 place in the licensed premises a notice of any charge permitted
504-14 under this chapter that the license holder may assess against a
504-15 common worker for equipment, tools, transportation, or other
504-16 work-related services.
504-17 (c) For purposes of this section, "conspicuous place" means
504-18 a location that is in open view to the general public.
504-19 Sec. 92.024. LABOR HALL REQUIREMENTS. A license holder that
504-20 operates a labor hall as part of a licensed premises shall provide
504-21 adequate facilities for a worker waiting for a job assignment. The
504-22 facilities must include:
504-23 (1) restroom facilities for both men and women;
504-24 (2) drinking water;
504-25 (3) sufficient seating; and
504-26 (4) access to vending refreshments and food.
504-27 Sec. 92.025. CERTAIN CHARGES AND DEDUCTIONS PROHIBITED. (a)
505-1 A license holder may not charge a common worker for:
505-2 (1) safety equipment, clothing, or accessories
505-3 required by the nature of the work, either by law, custom, or the
505-4 requirements of the user of common workers;
505-5 (2) uniforms, special clothing, or other items
505-6 required as a condition of employment by the user of common
505-7 workers;
505-8 (3) the cashing of a check or voucher; or
505-9 (4) the receipt by the worker of earned wages.
505-10 (b) A license holder may not deduct or withhold any amount
505-11 from the earned wages of a common worker except:
505-12 (1) a deduction required by federal or state law; or
505-13 (2) a reimbursement for a cash advance made to the
505-14 worker during the same pay period.
505-15 (Sections 92.026-92.030 reserved for expansion
505-16 SUBCHAPTER D. CRIMINAL PENALTY
505-17 Sec. 92.031. CRIMINAL PENALTY. (a) A person commits an
505-18 offense if the person knowingly or intentionally violates:
505-19 (1) this chapter;
505-20 (2) a rule adopted under this chapter; or
505-21 (3) an administrative order adopted by the
505-22 commissioner under this chapter.
505-23 (b) An offense under this section is a Class A misdemeanor.
505-24 (b) Chapter 994, Acts of the 73rd Legislature, Regular
505-25 Session, 1993 (Article 9104, Vernon's Texas Civil Statutes), and
505-26 Chapter 480, Acts of the 72nd Legislature, Regular Session, 1991
505-27 (Article 5221a-10, Vernon's Texas Civil Statutes), are repealed.
506-1 SECTION 9.21. (a) Section 101.110(c), Labor Code, is
506-2 amended to conform to Section 20, Chapter 300 (H.B. 1463), Acts of
506-3 the 73rd Legislature, Regular Session, 1993, to read as follows:
506-4 (c) On the filing of an application for an organizer's card,
506-5 the secretary of state shall issue the applicant a card containing:
506-6 (1) the applicant's name;
506-7 (2) the applicant's union affiliation;
506-8 (3) a space for the applicant's signature;
506-9 (4) the designation "labor organizer"; and
506-10 (5) the secretary of state's signature, dated and
506-11 attested by the state <secretary's> seal <of office>.
506-12 (b) Section 20, Chapter 300, Acts of the 73rd Legislature,
506-13 Regular Session, 1993, is repealed.
506-14 SECTION 9.22. Chapter 101, Labor Code, is amended to codify
506-15 Sections 1, 4, 5, and 6, Chapter 387, Acts of the 54th Legislature,
506-16 Regular Session, 1955 (Article 5154g, Vernon's Texas Civil
506-17 Statutes), by adding Subchapter G to read as follows:
506-18 SUBCHAPTER G. INTERFERENCE WITH RIGHT TO WORK
506-19 Sec. 101.301. INTERFERENCE WITH RIGHT TO WORK; LIABILITY.
506-20 (a) The right of a person to work may not be denied or abridged
506-21 because of membership or nonmembership in a labor union or other
506-22 labor organization.
506-23 (b) In the exercise of the right to work, each person shall
506-24 be free from threats, force, intimidation, or coercion.
506-25 (c) A person who violates this subchapter is liable to a
506-26 person who suffers from that violation for all resulting damages.
506-27 Sec. 101.302. INJUNCTIVE RELIEF. (a) The attorney general
507-1 or a district or county attorney may bring an action in district
507-2 court to enjoin a violation of this subchapter.
507-3 (b) The district courts shall grant injunctive relief when a
507-4 violation of this subchapter is made apparent.
507-5 Sec. 101.303. ASSIGNMENT OF DISTRICT JUDGE. Not later than
507-6 the second day after the receipt of notice of institution of a
507-7 cause of action under this subchapter, a party to the cause of
507-8 action may apply to the presiding judge of the administrative
507-9 judicial region within which the action is brought. The presiding
507-10 judge shall immediately assign a district judge from within the
507-11 administrative judicial region who shall hear all proceedings in
507-12 the cause of action.
507-13 SECTION 9.23. (a) Section 201.011, Labor Code, is amended
507-14 to conform to Section 2, Chapter 525 (S.B. 1340) and Section 2,
507-15 Chapter 604 (S.B. 1251), Acts of the 73rd Legislature, Regular
507-16 Session, 1993, to read as follows:
507-17 Sec. 201.011. GENERAL DEFINITIONS. In this subtitle:
507-18 (1) "Base period" means:
507-19 (A) the four consecutive completed calendar
507-20 quarters, prescribed by the commission, in the five consecutive
507-21 completed calendar quarters preceding the first day of an
507-22 individual's benefit year; or
507-23 (B) for an individual precluded because of a
507-24 medically verifiable injury or illness from working during a major
507-25 part of a calendar quarter of the period that would otherwise be
507-26 the individual's base period under Paragraph (A), the first four
507-27 calendar quarters of the five consecutive calendar quarters
508-1 preceding the calendar quarter in which the illness began or the
508-2 injury occurred if the individual files an initial claim for
508-3 benefits not later than 24 months after the date on which the
508-4 individual's injury or illness began or occurred.
508-5 (2) "Benefit" means the money payable under this
508-6 subtitle to an individual because of the individual's unemployment.
508-7 (3) "Benefit amount" means benefits an individual is
508-8 entitled to receive for one benefit period of total unemployment.
508-9 (4) "Benefit period" means the seven consecutive
508-10 calendar days ending at midnight on Saturday and is the period for
508-11 which entitlement to benefits is determined.
508-12 (5) "Benefit year" means the 52 consecutive calendar
508-13 weeks beginning with the week for which an individual files a valid
508-14 initial claim for benefits.
508-15 (6) "Calendar quarter" means a period of three
508-16 consecutive calendar months ending on:
508-17 (A) March 31, June 30, September 30, or December
508-18 31; or
508-19 (B) the dates prescribed by rule of the
508-20 commission.
508-21 (7) "Chargeback" means the benefits charged to an
508-22 employer's account under Section 204.021.
508-23 (8) "Commission" means the Texas Employment
508-24 Commission.
508-25 (9) "Compensation fund" means the unemployment
508-26 compensation fund.
508-27 (10) "Contribution" means a tax payment under this
509-1 subtitle to the compensation fund.
509-2 (11) "Employing unit" means a person who, after
509-3 January 1, 1936, has employed an individual to perform services for
509-4 the person in this state.
509-5 (12) "Employment office" means a free public
509-6 employment office operated by this state or maintained as a part of
509-7 a state-controlled system of public employment offices. The term
509-8 includes a branch office.
509-9 (13) "Initial claim" means a notice filed under
509-10 Section 208.001(a) to establish a benefit year by an individual who
509-11 does not have a benefit year in effect at the time the notice was
509-12 filed.
509-13 (14) "Institution of higher education" means:
509-14 (A) a college or university in this state; or
509-15 (B) a public or other nonprofit educational
509-16 institution that:
509-17 (i) admits as regular students only
509-18 individuals with a certificate of graduation or equivalent
509-19 credentials;
509-20 (ii) is legally authorized to provide an
509-21 educational program beyond high school; and
509-22 (iii) provides an educational program:
509-23 (a) for which the institution awards
509-24 a bachelor's or higher degree;
509-25 (b) that is acceptable for full
509-26 credit toward a bachelor's or higher degree; or
509-27 (c) that trains a student for the
510-1 gainful practice of a recognized occupation.
510-2 (15) "Mail" means the United States Postal Service or
510-3 any other method approved by the commission to provide actual
510-4 notice, including an electronic transfer system.
510-5 (16) "Reimbursement" means a payment made in
510-6 accordance with Chapter 205.
510-7 (17) <(16)> "Reimbursing employer" means an employer
510-8 making payments in accordance with Chapter 205.
510-9 (18) <(17)> "State" means a state of the United
510-10 States, Puerto Rico, the District of Columbia, or the Virgin
510-11 Islands.
510-12 (19) <(18)> "Taxed employer" means an employer who
510-13 pays a contribution under this subtitle.
510-14 (20) "Temporary employee" means an individual employed
510-15 by a temporary help firm for the purpose of being assigned to work
510-16 for the clients of a temporary help firm.
510-17 (21) "Temporary help firm" means a person who employs
510-18 individuals for the purpose of assigning those individuals to work
510-19 for the clients of the temporary help firm to support or supplement
510-20 a client's work force during employee absences, temporary skill
510-21 shortages, seasonal work loads, special assignments and projects,
510-22 and other similar work situations.
510-23 (22) <(19)> "United States" includes, in a geographic
510-24 context, each state.
510-25 (23) <(20)> "Valid claim" means a claim filed by an
510-26 unemployed individual who has received the wages necessary to
510-27 qualify for benefits.
511-1 (24) "Warrant" means a written payment order or an
511-2 electronic payment order that is a part of an electronic fund
511-3 transfer system approved by the commission.
511-4 (25) <(21)> "Week" means seven consecutive calendar
511-5 days as prescribed by the commission.
511-6 (b) Subchapter C, Chapter 201, Labor Code, is amended to
511-7 conform to Section 2, Chapter 604 (S.B. 1251), Acts of the 73rd
511-8 Legislature, Regular Session, 1993, by adding Section 201.029 to
511-9 read as follows:
511-10 Sec. 201.029. TEMPORARY HELP FIRM. For purposes of this
511-11 subtitle, a temporary help firm is the employer of an individual
511-12 employed by the firm as a temporary employee.
511-13 (c) Section 2, Chapter 525, Acts of the 73rd Legislature,
511-14 Regular Session, 1993, is repealed.
511-15 (d) Section 2, Chapter 604, Acts of the 73rd Legislature,
511-16 Regular Session, 1993, is repealed.
511-17 SECTION 9.24. Section 201.047(b), Labor Code, is amended to
511-18 conform more closely to the law from which it was derived to read
511-19 as follows:
511-20 (b) Wages paid for services described in Subdivision (a)(1),
511-21 (2), or (3) are included in determining the wages paid for the
511-22 purpose <purposes> of Subdivision <Subdivisions> (a)(4) <and (5)>.
511-23 SECTION 9.25. (a) Subchapter E, Chapter 201, Labor Code, is
511-24 amended to conform to Chapter 966 (H.B. 520), Acts of the 73rd
511-25 Legislature, Regular Session, 1993, by adding Section 201.077 to
511-26 read as follows:
511-27 Sec. 201.077. SERVICE BY LANDMAN. In this subtitle,
512-1 "employment" does not include service performed for a private
512-2 for-profit person by an individual as a landman if:
512-3 (1) the individual is engaged primarily in negotiating
512-4 for the acquisition or divestiture of mineral rights or negotiating
512-5 business agreements that provide for the exploration for or
512-6 development of minerals;
512-7 (2) substantially all remuneration, paid in cash or
512-8 otherwise, for the performance of the service is directly related
512-9 to the completion by the individual of the specific, contracted-for
512-10 tasks, rather than to the number of hours worked by the individual;
512-11 and
512-12 (3) the service performed by the individual is
512-13 performed under a written contract between the individual and the
512-14 person for whom the service is performed that provides that the
512-15 individual is to be treated as an independent contractor and not as
512-16 an employee with respect to the service provided under the
512-17 contract.
512-18 (b) Chapter 966, Acts of the 73rd Legislature, Regular
512-19 Session, 1993, is repealed.
512-20 SECTION 9.26. (a) Section 201.091, Labor Code, is amended
512-21 to conform to Section 3, Chapter 932 (H.B. 1387), Acts of the 73rd
512-22 Legislature, Regular Session, 1993, by adding Subsection (c) to
512-23 read as follows:
512-24 (c) For purposes of this subtitle, an individual is
512-25 considered unemployed if the individual is:
512-26 (1) totally unemployed as defined by Subsection (a);
512-27 or
513-1 (2) partially unemployed as defined by Subsection (b).
513-2 (b) Section 3, Chapter 932, Acts of the 73rd Legislature,
513-3 Regular Session, 1993, is repealed.
513-4 SECTION 9.27. Section 202.042, Labor Code, is amended to
513-5 conform to Section 46(15), Chapter 790 (S.B. 510), Acts of the 73rd
513-6 Legislature, Regular Session, 1993, to read as follows:
513-7 Sec. 202.042. ACCESS TO CERTAIN CRIMINAL HISTORY RECORD
513-8 INFORMATION<; OFFENSE; PENALTY>. (a) <The commission may request
513-9 and receive criminal history record information maintained by the
513-10 Department of Public Safety, the Federal Bureau of Investigation
513-11 Identification Division, or another law enforcement agency to
513-12 investigate an applicant for employment in a security sensitive
513-13 position.>
513-14 <(b) The commission shall adopt a uniform method of
513-15 obtaining criminal history information that requires the commission
513-16 to submit to the Department of Public Safety or another law
513-17 enforcement agency either a complete set of fingerprints or the
513-18 complete name, driver's license number, and social security number
513-19 of the person being investigated. If the commission does not
513-20 obtain relevant information from state or local law enforcement
513-21 agencies in response to a submission under this subsection, the
513-22 commission may submit either the fingerprints or the required
513-23 information to the Federal Bureau of Investigation Identification
513-24 Division.>
513-25 <(c)> The commission may request an applicant for a security
513-26 sensitive position to provide either a complete set of fingerprints
513-27 or the applicant's complete name, driver's license number, and
514-1 social security number. The commission may deny employment in a
514-2 security sensitive position to an applicant who fails to provide
514-3 the requested fingerprints or information.
514-4 (b) <(d) All information received by the commission under
514-5 this section is privileged and confidential and is for the
514-6 exclusive use of the commission. The information may not be
514-7 released or otherwise disclosed to any other person except on court
514-8 order or with the written consent of the person being investigated.>
514-9 <(e) After the commission hires an applicant for a security
514-10 sensitive position, the commission shall seal the criminal history
514-11 record information regarding the applicant and shall deliver the
514-12 information to the custody of the agency administrator or the
514-13 person designated by the agency administrator, who shall maintain
514-14 the information as provided by commission rule. The commission
514-15 shall destroy the criminal history record information of an
514-16 applicant who is not hired.>
514-17 <(f) The commission shall adopt rules governing the custody
514-18 and use of information obtained under this section.>
514-19 <(g)> The commission may use information obtained under this
514-20 section only to evaluate an applicant for employment in a security
514-21 sensitive position. A security sensitive position must be so
514-22 identified in the job description and in the announcement of the
514-23 position.
514-24 (c) <(h)> In this section, "security sensitive position"
514-25 means a position of employment that requires as an incident of the
514-26 employment:
514-27 (1) the performance of duties in:
515-1 (A) the automated data processing, controller,
515-2 or fiscal department; or
515-3 (B) a position designated to handle receipts or
515-4 disbursements of cash in a local or regional office;
515-5 (2) access to a computer terminal, if the information
515-6 available from the terminal is required by law to be confidential;
515-7 (3) access to a master key for access to the premises
515-8 other than during regular working hours; or
515-9 (4) the performance of duties considered to be
515-10 security sensitive by the state auditor or the Inspector General of
515-11 the United States Department of Labor.
515-12 <(i) A person commits an offense if the person releases or
515-13 discloses any information received under this section in violation
515-14 of Subsection (d). An offense under this subsection is a Class A
515-15 misdemeanor.>
515-16 SECTION 9.28. (a) Section 203.026(d), Labor Code, is
515-17 repealed to conform to Section 1, Chapter 525 (S.B. 1340), Acts of
515-18 the 73rd Legislature, Regular Session, 1993.
515-19 (b) Section 1, Chapter 525, Acts of the 73rd Legislature,
515-20 Regular Session, 1993, is repealed.
515-21 SECTION 9.29. (a) Section 203.103, Labor Code, is amended
515-22 to conform to Section 1, Chapter 256 (H.B. 1335), Acts of the 73rd
515-23 Legislature, Regular Session, 1993, to read as follows:
515-24 Sec. 203.103. TRANSFER <OF INCOME FROM ADVANCE INTEREST
515-25 TRUST FUND> TO SPECIAL ADMINISTRATION FUND. The treasurer and the
515-26 comptroller shall transfer all income earned after April 1, 1983
515-27 <September 1, 1988>, from investment of the advance interest trust
516-1 fund and other funds appropriated for that purpose to the special
516-2 administration fund for the administration of Chapters 51, 61, and
516-3 62.
516-4 (b) Section 1, Chapter 256, Acts of the 73rd Legislature,
516-5 Regular Session, 1993, is repealed.
516-6 SECTION 9.30. (a) Subchapter A, Chapter 204, Labor Code, is
516-7 amended to conform to Sections 3.01, 3.02, 3.03, and 3.04, Chapter
516-8 1 (S.B. 130), Acts of the 73rd Legislature, Regular Session, 1993,
516-9 by adding Section 204.0065 to read as follows:
516-10 Sec. 204.0065. TEMPORARY INITIAL CONTRIBUTION RATE.
516-11 Notwithstanding Section 204.006, on and after January 1, 1994, a
516-12 person's contribution rate shall be two and six-tenths percent
516-13 until the date the experience rate computed under Section 204.041
516-14 takes effect for the employer. This section expires December 31,
516-15 1999.
516-16 (b) Subchapter D, Chapter 204, Labor Code, is amended to
516-17 conform to Section 3.04, Chapter 1 (S.B. 130), Acts of the 73rd
516-18 Legislature, Regular Session, 1993, by adding Section 204.0625 to
516-19 read as follows:
516-20 Sec. 204.0625. TEMPORARY ADJUSTMENT TO REPLENISHMENT TAX
516-21 RATE. On and after January 1, 1994, the replenishment tax rate
516-22 computed under Section 204.062 shall be adjusted to a rate computed
516-23 by subtracting 0.1 from the quotient computed under Section
516-24 204.062(a). This section expires December 31, 1999.
516-25 (c) Sections 3.01, 3.02, 3.03, and 3.04, Chapter 1, Acts of
516-26 the 73rd Legislature, Regular Session, 1993, are repealed.
516-27 SECTION 9.31. Section 204.062(a), Labor Code, is amended to
517-1 conform more closely to the law from which it was derived to read
517-2 as follows:
517-3 (a) In addition to the general tax computed under Subchapter
517-4 C, an employer entitled to an experience rate shall pay a
517-5 replenishment tax at the rate computed by:
517-6 (1) dividing the numerator described by Subsection (b)
517-7 by the denominator described by Subsection (c);
517-8 (2) multiplying <dividing> that result by 100 to
517-9 obtain a percentage; and
517-10 (3) rounding that result to the nearest hundredth.
517-11 SECTION 9.32. (a) Chapter 204, Labor Code, is amended to
517-12 conform to Section 3.05, Chapter 1 (S.B. 130), Acts of the 73rd
517-13 Legislature, Regular Session, 1993, by adding Subchapter G to read
517-14 as follows:
517-15 SUBCHAPTER G. EMPLOYMENT TRAINING
517-16 INVESTMENT ASSESSMENT; FUNDS
517-17 Sec. 204.121. EMPLOYMENT TRAINING INVESTMENT ASSESSMENT.
517-18 (a) In addition to any other taxes imposed by this subtitle, an
517-19 employment training investment assessment is imposed on each
517-20 employer paying contributions under this subtitle as a separate
517-21 assessment of one-tenth percent of wages paid by the employer.
517-22 (b) The commission shall deposit the revenue from the
517-23 employment training investment assessment to the credit of the
517-24 holding fund created under Section 204.122.
517-25 (c) The employment training investment assessment is due at
517-26 the same time, collected in the same manner, and subject to the
517-27 same penalties and interest as other contributions assessed under
518-1 this subtitle.
518-2 Sec. 204.122. HOLDING FUND. (a) The holding fund is a
518-3 special trust fund in the custody of the state treasurer separate
518-4 and apart from all public money or funds of this state.
518-5 (b) The state treasurer shall administer the holding fund in
518-6 accordance with the directions of the commission. Interest
518-7 accruing on amounts in the holding fund shall be deposited
518-8 quarterly to the credit of the compensation fund.
518-9 Sec. 204.123. TRANSFER TO SMART JOBS FUND AND COMPENSATION
518-10 FUND. (a) If, on September 1 of a year, the commission determines
518-11 that the amount in the compensation fund will exceed 100 percent of
518-12 its floor as computed under Section 204.061 on the next October 1
518-13 computation date, the commission shall transfer the amount in the
518-14 holding fund created under Section 204.122 to the smart jobs fund
518-15 created under Section 481.154, Government Code.
518-16 (b) If, on September 1 of a year, the commission determines
518-17 that the amount in the compensation fund will be at or below 100
518-18 percent of its floor as computed under Section 204.061 on the next
518-19 October 1 computation date, the commission shall transfer to the
518-20 compensation fund as much of the amount in the holding fund as is
518-21 necessary to raise the amount in the compensation fund to 100
518-22 percent of its floor, up to and including the entire amount in the
518-23 holding fund. The commission shall transfer any remaining balance
518-24 in the holding fund to the smart jobs fund created under Section
518-25 481.154, Government Code.
518-26 Sec. 204.124. EXPIRATION. This subchapter expires December
518-27 31, 1999.
519-1 (b) Section 3.05, Chapter 1, Acts of the 73rd Legislature,
519-2 Regular Session, 1993, is repealed.
519-3 SECTION 9.33. (a) Section 207.045, Labor Code, is amended
519-4 to conform to Section 1, Chapter 604 (S.B. 1251), Acts of the 73rd
519-5 Legislature, Regular Session, 1993, by adding Subsection (h) to
519-6 read as follows:
519-7 (h) A temporary employee of a temporary help firm is
519-8 considered to have left the employee's last work voluntarily
519-9 without good cause connected with the work if the temporary
519-10 employee does not contact the temporary help firm for reassignment
519-11 on completion of an assignment. A temporary employee is not
519-12 considered to have left work voluntarily without good cause
519-13 connected with the work under this subsection unless the temporary
519-14 employee has been advised:
519-15 (1) that the temporary employee is obligated to
519-16 contact the temporary help firm on completion of assignments; and
519-17 (2) that unemployment benefits may be denied if the
519-18 temporary employee fails to do so.
519-19 (b) Section 1, Chapter 604, Acts of the 73rd Legislature,
519-20 Regular Session, 1993, is repealed.
519-21 SECTION 9.34. Section 208.001(a), Labor Code, is amended to
519-22 conform more closely to the law from which it was derived to read
519-23 as follows:
519-24 (a) Claims for benefits shall be made in accordance with
519-25 rules adopted by the commission. An unemployed individual who does
519-26 not have a current benefit year may file an initial claim in
519-27 accordance with commission rules <adopted by the commission>.
520-1 SECTION 9.35. Section 208.023, Labor Code, is amended to
520-2 conform more closely to the law from which it was derived to read
520-3 as follows:
520-4 Sec. 208.023. Request for Redetermination or Appeal by
520-5 Claimant. A claimant, within 14 days after the date the commission
520-6 mailed notice of the commission's determination to the claimant
520-7 under Section 208.022, may request a redetermination of or may
520-8 appeal the commission's determination of the validity of an initial
520-9 claim in the manner provided by Chapter 212. <The claimant must
520-10 make the request not later than the 14th day after the date the
520-11 commission mailed notice of the determination to the claimant as
520-12 provided by Section 208.022.>
520-13 SECTION 9.36. (a) Section 210.011, Labor Code, is amended
520-14 to conform to Section 4, Chapter 449 (H.B. 1952), Acts of the 73rd
520-15 Legislature, Regular Session, 1993, to read as follows:
520-16 Sec. 210.011. REPLACEMENT <DUPLICATE> FOR LOST OR MISPLACED
520-17 WARRANT. (a) The comptroller may issue to a claimant a
520-18 replacement <duplicate> warrant for a warrant issued in payment of
520-19 benefits under this subtitle if the claimant who was entitled to
520-20 receive the original warrant:
520-21 (1) <the claimant entitled to receive the warrant>
520-22 loses or for any reason fails to receive the warrant; and
520-23 (2) furnishes <there is> satisfactory proof to the
520-24 comptroller of the loss or failure to receive the warrant.
520-25 (b) Subject to Section 210.013, the replacement <The
520-26 duplicate> warrant shall be issued as provided by Section 403.054,
520-27 Government Code.
521-1 (b) Section 210.012, Labor Code, is amended to conform to
521-2 Section 4, Chapter 449 (H.B. 1952), Acts of the 73rd Legislature,
521-3 Regular Session, 1993, to read as follows:
521-4 Sec. 210.012. DEADLINE FOR PAYMENT <CANCELLATION> OF
521-5 WARRANT. The treasurer may not pay <If a claimant fails or refuses
521-6 to present> a warrant issued for benefits unless the warrant is
521-7 presented for payment before the first anniversary of the date on
521-8 which the warrant was issued<, the warrant is canceled, and the
521-9 treasurer may not pay the warrant>.
521-10 (c) Section 210.013, Labor Code, is amended to conform to
521-11 Section 4, Chapter 449 (H.B. 1952), Acts of the 73rd Legislature,
521-12 Regular Session, 1993, to read as follows:
521-13 Sec. 210.013. DEADLINE FOR ISSUANCE OF REPLACEMENT
521-14 <DUPLICATE> WARRANT. A replacement <duplicate> warrant may not be
521-15 issued under this chapter after the first anniversary of the date
521-16 of the original warrant.
521-17 (d) Section 4, Chapter 449, Acts of the 73rd Legislature,
521-18 Regular Session, 1993, is repealed.
521-19 SECTION 9.37. Section 212.006, Labor Code, is amended to
521-20 conform more closely to the law from which it was derived to read
521-21 as follows:
521-22 Sec. 212.006. Recovery of Benefits Paid. (a) Benefits paid
521-23 to a claimant that are not in accordance with the final
521-24 <determination or> decision shall be:
521-25 (1) refunded by the claimant to the commission; or
521-26 (2) in the discretion of the commission, deducted from
521-27 future benefits payable to the claimant under this subtitle.
522-1 (b) Benefits paid that are not in accordance with the final
522-2 <determination or> decision are also collectible in the manner
522-3 provided by Sections 213.031, 213.032, 213.033, 213.035, and
522-4 213.051 for the collection of past due contributions.
522-5 SECTION 9.38. (a) Section 213.021, Labor Code, is amended
522-6 to conform to Section 2, Chapter 932 (H.B. 1387), Acts of the 73rd
522-7 Legislature, Regular Session, 1993, to read as follows:
522-8 Sec. 213.021. INTEREST ON <PENALTY FOR> PAST DUE
522-9 CONTRIBUTION. (a) An employer who does not pay a contribution on
522-10 or before the date prescribed by the commission is liable <shall
522-11 pay> to the state for interest of <a penalty equal to> one and
522-12 one-half percent of the contribution for each month or portion of a
522-13 month that the contribution and interest payments <penalty> are not
522-14 paid in full. The total interest <penalty> applied may not exceed
522-15 37-1/2 <37 1/2> percent of the amount of contribution due at the
522-16 due date.
522-17 (b) Liability for interest under Subsection (a) <The
522-18 penalty> does not apply to an employer who:
522-19 (1) failed to pay a contribution because of the bona
522-20 fide belief that all or some of its employees were covered under
522-21 the unemployment insurance law of another state; and
522-22 (2) paid when due a contribution on all the wages of
522-23 those employees under that law.
522-24 (b) Section 213.025, Labor Code, is amended to conform to
522-25 Section 2, Chapter 932 (H.B. 1387), Acts of the 73rd Legislature,
522-26 Regular Session, 1993, to read as follows:
522-27 Sec. 213.025. ADDITIONAL INTEREST ON JUDGMENT FOR PAST DUE
523-1 CONTRIBUTION. For a judgment that grants recovery of the amount of
523-2 a contribution and the amount of interest <a penalty> computed at
523-3 the maximum rate permitted under Section 213.021(a), the part of
523-4 the judgment for the amount of the contribution earns additional
523-5 interest at the rate of one percent for each month or part of a
523-6 month it remains unpaid.
523-7 (c) Section 2, Chapter 932, Acts of the 73rd Legislature,
523-8 Regular Session, 1993, is repealed.
523-9 SECTION 9.39. (a) Subchapter D, Chapter 213, Labor Code, is
523-10 amended to conform to Section 1, Chapter 932 (H.B. 1387), Acts of
523-11 the 73rd Legislature, Regular Session, 1993, by adding Section
523-12 213.059 to read as follows:
523-13 Sec. 213.059. DELINQUENCY; NOTICE OF LEVY. (a) If a person
523-14 is delinquent in the payment of any amount, including
523-15 contributions, penalties, and interest due under this subtitle, the
523-16 commission may notify personally or by registered mail any other
523-17 person who:
523-18 (1) possesses or controls an asset belonging to the
523-19 delinquent person; or
523-20 (2) owes a debt to the delinquent person.
523-21 (b) A notice under this section to a state officer,
523-22 department, or agency must be given before the officer, department,
523-23 or agency presents to the comptroller the claim of the delinquent
523-24 person.
523-25 (c) A notice under this section may be given at any time
523-26 after the amount due under this subtitle becomes delinquent. The
523-27 notice must state the amount of contributions, penalties, interest,
524-1 or other amounts due, and any additional amount that will accrue by
524-2 operation of law in a period not to exceed 30 days after the date
524-3 on which the notice is given, and, in the case of a credit, bank,
524-4 or savings account or deposit, is effective only up to that amount.
524-5 (d) On receipt of a notice under this section, the person
524-6 receiving the notice:
524-7 (1) shall advise the commission not later than the
524-8 20th day after the date the notice is received of each asset
524-9 belonging to the delinquent person that is possessed or controlled
524-10 by the person receiving the notice and of each debt owed by the
524-11 person receiving the notice to the delinquent person; and
524-12 (2) unless the commission consents to an earlier
524-13 disposition, may not transfer or dispose of the asset or debt
524-14 possessed, controlled, or owed by the person receiving the notice
524-15 as of the time the person received the notice during the 60-day
524-16 period after the date of receipt of the notice.
524-17 (e) A notice under this section that attempts to prohibit
524-18 the transfer or disposition of an asset possessed or controlled by
524-19 a bank is not effective unless it is delivered or mailed to the
524-20 principal office of the bank or the office of the bank at which the
524-21 deposit is carried or the credit or property is held.
524-22 (f) A person who has received a notice under this section
524-23 and who transfers or disposes of an asset or debt in a manner that
524-24 violates Subsection (d) is liable to the commission for the amount
524-25 of the indebtedness of the delinquent person with respect to whose
524-26 obligation the notice was given to the extent of the value of that
524-27 asset or debt.
525-1 (g) At any time during the last 45 days of the 60-day period
525-2 described by Subsection (d), the commission may levy on the asset
525-3 or debt by delivery of a notice of levy. On receipt of the levy
525-4 notice, the person possessing the asset or debt shall transfer the
525-5 asset to the commission or pay to the commission the amount owed to
525-6 the delinquent person.
525-7 (h) A notice delivered under this section is effective at
525-8 the time of delivery against all property, rights to property,
525-9 credits, and debts involving the delinquent person that are not, as
525-10 of the date of the notice, subject to a preexisting lien,
525-11 attachment, garnishment, or execution issued through a judicial
525-12 process.
525-13 (i) A person acting in accordance with the terms of the
525-14 notice of freeze or levy issued by the commission is discharged
525-15 from any obligation or liability to the delinquent person with
525-16 respect to the affected property, rights to property, credits, and
525-17 debts of the person affected by compliance with the notice of
525-18 freeze or levy.
525-19 (j) In this section, "asset" means:
525-20 (1) a credit, bank, or savings account or deposit; or
525-21 (2) any other intangible or personal property.
525-22 (b) Section 1, Chapter 932, Acts of the 73rd Legislature,
525-23 Regular Session, 1993, is repealed.
525-24 SECTION 9.40. (a) Sections 216.021(a) and (b), Labor Code,
525-25 are amended to conform to Section 1, Chapter 183 (S.B. 454), Acts
525-26 of the 73rd Legislature, Regular Session, 1993, to read as follows:
525-27 (a) The state coordinator, in cooperation with the program
526-1 directors in the counties or cities in which a Communities in
526-2 Schools program is <was> established on September 1, 1993 <1991>,
526-3 shall designate <not more than 32 elementary schools and 76
526-4 secondary schools in those counties> to participate in the program:
526-5 (1) the campuses designated on September 1, 1991, for
526-6 original participation in the program for continuation in the
526-7 program; and
526-8 (2) not more than 135 additional elementary and
526-9 secondary schools in those counties or cities.
526-10 (b) The state coordinator, in cooperation with the program
526-11 directors in six <four> additional counties or cities designated by
526-12 the state coordinator, shall designate additional elementary and
526-13 secondary schools to participate in the Communities in Schools
526-14 program.
526-15 (b) Section 1, Chapter 183, Acts of the 73rd Legislature,
526-16 Regular Session, 1993, is repealed.
526-17 SECTION 9.41. (a) Section 301.028, Labor Code, is amended
526-18 to conform to Sections 29 and 30, Chapter 986 (S.B. 405), Acts of
526-19 the 73rd Legislature, Regular Session, 1993, to read as follows:
526-20 Sec. 301.028. POLICIES AND RULES. (a) The governor may
526-21 adopt policies <rules> to implement this chapter and the federal
526-22 act.
526-23 (b) The policy board of the Texas Department of Commerce
526-24 shall adopt necessary rules for the implementation and management
526-25 of the job training program.
526-26 (b) Subchapter B, Chapter 301, Labor Code, is amended to
526-27 conform to Section 29, Chapter 986 (S.B. 405), Acts of the 73rd
527-1 Legislature, Regular Session, 1993, by adding Section 301.029 to
527-2 read as follows:
527-3 Sec. 301.029. CONTESTED CASES. A proceeding of the Texas
527-4 Department of Commerce involving the job training program is not
527-5 subject to the provisions of Chapter 2001, Government Code,
527-6 relating to contested cases.
527-7 (c) Sections 29 and 30, Chapter 986, Acts of the 73rd
527-8 Legislature, Regular Session, 1993, are repealed.
527-9 SECTION 9.42. Section 402.083(b), Labor Code, is amended to
527-10 conform to Chapter 900 (S.B. 1067), Acts of the 73rd Legislature,
527-11 Regular Session, 1993, to read as follows:
527-12 (b) Information concerning an employee who has been finally
527-13 adjudicated of wrongfully obtaining payment under Section 415.008
527-14 <of this code or Section 32.51, Penal Code,> is not confidential.
527-15 SECTION 9.43. (a) Section 402.085, Labor Code, is amended
527-16 to conform to Section 24, Chapter 798 (H.B. 1433), Acts of the 73rd
527-17 Legislature, Regular Session, 1993, to read as follows:
527-18 Sec. 402.085. EXCEPTIONS TO CONFIDENTIALITY. (a) The
527-19 commission shall release information on a claim to:
527-20 (1) the Texas Department of Insurance for any
527-21 statutory or regulatory purpose;
527-22 (2) a legislative committee for legislative purposes;
527-23 (3) a state or federal elected official requested in
527-24 writing to provide assistance by a constituent who qualifies to
527-25 obtain injury information under Section 402.084(b), if the request
527-26 for assistance is provided to the commission; <and>
527-27 (4) the research center for research purposes; or
528-1 (5) the attorney general or another entity that
528-2 provides child support services under Part D, Title IV, Social
528-3 Security Act (42 U.S.C. Section 651 et seq.), or Chapter 76, Human
528-4 Resources Code, relating to:
528-5 (A) establishing, modifying, or enforcing a
528-6 child support or medical support obligation; or
528-7 (B) locating an absent parent.
528-8 (b) The commission may release information on a claim to a
528-9 governmental agency, political subdivision, or regulatory body to
528-10 use to:
528-11 (1) investigate an allegation of a criminal offense or
528-12 licensing or regulatory violation;
528-13 (2) provide:
528-14 (A) unemployment compensation benefits;
528-15 (B) crime victims compensation benefits;
528-16 (C) vocational rehabilitation services; or
528-17 (D) health care benefits;
528-18 (3) investigate occupational safety or health
528-19 violations; <or>
528-20 (4) verify income on an application for benefits under
528-21 an income-based state or federal assistance program; or
528-22 (5) assess financial resources in an action, including
528-23 an administrative action, to:
528-24 (A) establish, modify, or enforce a child
528-25 support or medical support obligation;
528-26 (B) establish paternity;
528-27 (C) locate an absent parent; or
529-1 (D) cooperate with another state in an action
529-2 authorized under Part D, Title IV, Social Security Act (42 U.S.C.
529-3 Section 651 et seq.), or Chapter 76, Human Resources Code.
529-4 (b) Section 24, Chapter 798, Acts of the 73rd Legislature,
529-5 Regular Session, 1993, is repealed.
529-6 SECTION 9.44. (a) Section 403.001, Labor Code, is amended
529-7 to conform to Section 3.24, Chapter 685 (H.B. 1461), Acts of the
529-8 73rd Legislature, Regular Session, 1993, by adding Subsection (c)
529-9 to read as follows:
529-10 (c) Money deposited in the general revenue fund under this
529-11 section may be used to satisfy the requirements of Article 4.19,
529-12 Insurance Code.
529-13 (b) Section 3.24, Chapter 685, Acts of the 73rd Legislature,
529-14 Regular Session, 1993, is repealed.
529-15 SECTION 9.45. (a) Section 403.003(a), Labor Code, is
529-16 amended to conform to Section 3.25, Chapter 685 (H.B. 1461), Acts
529-17 of the 73rd Legislature, Regular Session, 1993, to read as follows:
529-18 (a) The commission shall set and certify to the comptroller
529-19 <Texas Department of Insurance> the rate of maintenance tax
529-20 assessment not later than October 31 of each year, taking into
529-21 account:
529-22 (1) any expenditure projected as necessary for the
529-23 commission to:
529-24 (A) administer this subtitle during the fiscal
529-25 year for which the rate of assessment is set; and
529-26 (B) reimburse the general revenue fund as
529-27 provided by Article 4.19, Insurance Code;
530-1 (2) projected employee benefits paid from general
530-2 revenues;
530-3 (3) a surplus or deficit produced by the tax in the
530-4 preceding year; and
530-5 (4) revenue recovered from other sources, including
530-6 reappropriated receipts, grants, payments, fees, gifts, and
530-7 penalties recovered under this subtitle.
530-8 (b) Section 3.25, Chapter 685, Acts of the 73rd Legislature,
530-9 Regular Session, 1993, is repealed.
530-10 SECTION 9.46. (a) Section 404.003(e), Labor Code, is
530-11 amended to conform to Section 3.26, Chapter 685 (H.B. 1461), Acts
530-12 of the 73rd Legislature, Regular Session, 1993, to read as follows:
530-13 (e) Amounts received under this section shall be deposited
530-14 in the state treasury to the credit of a special fund to be used:
530-15 (1) for the operation of the research center; and
530-16 (2) to reimburse the general revenue fund as provided
530-17 by Article 4.19, Insurance Code.
530-18 (b) Section 3.26, Chapter 685, Acts of the 73rd Legislature,
530-19 Regular Session, 1993, is repealed.
530-20 SECTION 9.47. (a) Section 406.004(d), Labor Code, is
530-21 amended to conform to Section 1.16, Chapter 685 (H.B. 1461), Acts
530-22 of the 73rd Legislature, Regular Session, 1993, to read as follows:
530-23 (d) The employer notification filing required under this
530-24 section shall be filed with the commission <Texas Department of
530-25 Insurance> in accordance with Section 406.009.
530-26 (b) Section 1.16, Chapter 685, Acts of the 73rd Legislature,
530-27 Regular Session, 1993, is repealed.
531-1 SECTION 9.48. (a) Section 406.006(b), Labor Code, is
531-2 amended to conform to Section 1.17, Chapter 685 (H.B. 1461), Acts
531-3 of the 73rd Legislature, Regular Session, 1993, to read as follows:
531-4 (b) The notice required under this section shall be filed
531-5 with the commission <Texas Department of Insurance> in accordance
531-6 with Section 406.009.
531-7 (b) Section 1.17, Chapter 685, Acts of the 73rd Legislature,
531-8 Regular Session, 1993, is repealed.
531-9 SECTION 9.49. (a) Section 406.007(b), Labor Code, is
531-10 amended to conform to Section 1.18, Chapter 685 (H.B. 1461), Acts
531-11 of the 73rd Legislature, Regular Session, 1993, to read as follows:
531-12 (b) The notice required under this section shall be filed
531-13 with the commission <Texas Department of Insurance> in accordance
531-14 with Section 406.009.
531-15 (b) Section 1.18, Chapter 685, Acts of the 73rd Legislature,
531-16 Regular Session, 1993, is repealed.
531-17 SECTION 9.50. (a) Section 406.008(b), Labor Code, is
531-18 amended to conform to Section 1.20, Chapter 685 (H.B. 1461), Acts
531-19 of the 73rd Legislature, Regular Session, 1993, to read as follows:
531-20 (b) The notice required under this section shall be filed
531-21 with the commission <Texas Department of Insurance in accordance
531-22 with Section 406.009>.
531-23 (b) Section 1.20, Chapter 685, Acts of the 73rd Legislature,
531-24 Regular Session, 1993, is repealed.
531-25 SECTION 9.51. (a) Section 406.009, Labor Code, is amended
531-26 to conform to Section 1.19, Chapter 685 (H.B. 1461), Acts of the
531-27 73rd Legislature, Regular Session, 1993, to read as follows:
532-1 Sec. 406.009. COLLECTING AND MAINTAINING INFORMATION;
532-2 MONITORING AND ENFORCING COMPLIANCE <COOPERATION WITH INSURANCE
532-3 DEPARTMENT>. (a) The commission <Texas Department of Insurance>
532-4 shall collect and maintain the information required <to be
532-5 provided> under this subchapter and shall <provide the information
532-6 in the time and manner prescribed by the commission.>
532-7 <(b) The Texas Department of Insurance shall> monitor
532-8 compliance with the requirements of this subchapter <and shall
532-9 notify the commission of possible violations in the time and manner
532-10 prescribed by the commission>.
532-11 (b) <(c)> The commission <State Board of Insurance> may
532-12 adopt rules as necessary to enforce this subchapter.
532-13 (b) Section 1.19, Chapter 685, Acts of the 73rd Legislature,
532-14 Regular Session, 1993, is repealed.
532-15 SECTION 9.52. (a) Section 407.127, Labor Code, is amended
532-16 to conform more closely to the source law from which it was derived
532-17 by adding Subsection (c) to read as follows:
532-18 (c) Notwithstanding Subsection (a), the association is not
532-19 liable for the payment of any penalties assessed for any act or
532-20 omission on the part of any person other than the association.
532-21 (b) Section 407.133(c), Labor Code, is repealed.
532-22 SECTION 9.53. Section 408.147(c), Labor Code, is amended to
532-23 conform more closely to the source law from which it was derived to
532-24 read as follows:
532-25 (c) If an insurance carrier disputes a commission
532-26 determination that an employee is entitled to supplemental income
532-27 benefits or the amount of supplemental income benefits due and the
533-1 employee prevails on any disputed issue, the insurance carrier is
533-2 liable for reasonable and necessary attorney's fees incurred by the
533-3 employee as a result of the insurance carrier's dispute and for
533-4 supplemental income benefits accrued but not paid and interest on
533-5 that amount, according to Section 408.064. Attorney's fees awarded
533-6 under this subsection are not subject to Sections 408.221(b), <and>
533-7 (e), and (h).
533-8 SECTION 9.54. (a) Chapter 411, Labor Code, is amended to
533-9 codify Chapter 201, Acts of the 60th Legislature, Regular Session,
533-10 1967 (Article 5182a, Vernon's Texas Civil Statutes), by adding
533-11 Subchapter H to read as follows:
533-12 SUBCHAPTER H. GENERAL REQUIREMENTS RELATING TO
533-13 OCCUPATIONAL HEALTH AND SAFETY
533-14 Sec. 411.101. LEGISLATIVE POLICY; PURPOSE. It is the policy
533-15 of this state to protect the health and welfare of its people and
533-16 to reduce and, to every reasonable extent, eliminate the causes of
533-17 loss of production, reduction of work hours, temporary and
533-18 permanent incapacity of workers, and increases in certain insurance
533-19 rates by:
533-20 (1) promoting the adoption, application, and
533-21 implementation of safety measures in industry and enterprise;
533-22 (2) protecting workers against unsafe and hazardous
533-23 working conditions; and
533-24 (3) encouraging correction of any unsafe and hazardous
533-25 working conditions in industry and enterprise.
533-26 Sec. 411.102. DEFINITIONS. In this subchapter:
533-27 (1) "Director" means the director of the division.
534-1 (2) "Employee" means an individual who works for an
534-2 employer for compensation. The term does not include an individual
534-3 employed to perform domestic services in a private residence.
534-4 (3) "Employer" means a person who has control or
534-5 custody of any employment, place of employment, or employee. The
534-6 term does not include a carrier, as that term is used in Title 49,
534-7 United States Code, that is regulated by the Interstate Commerce
534-8 Commission, except that the term includes a railroad.
534-9 (4) "Place of employment" means a location, other than
534-10 a private residence where domestic service is performed, where:
534-11 (A) a trade, industry, or business is
534-12 temporarily or permanently conducted; or
534-13 (B) an employee is directly or indirectly
534-14 employed by another for direct or indirect gain.
534-15 (5) "Safe" as applied to employment or places of
534-16 employment means freedom from occupational injury for employees to
534-17 the extent reasonably permitted by the nature of the employment.
534-18 (6) "Safeguard" means any practicable method of
534-19 mitigating or preventing occupational injury.
534-20 Sec. 411.103. DUTY OF EMPLOYER TO PROVIDE SAFE WORKPLACE.
534-21 Each employer shall:
534-22 (1) provide and maintain employment and a place of
534-23 employment that is reasonably safe and healthful for employees;
534-24 (2) install, maintain, and use methods, processes,
534-25 devices, and safeguards, including methods of sanitation and
534-26 hygiene, that are reasonably necessary to protect the life, health,
534-27 and safety of the employer's employees; and
535-1 (3) take all other actions reasonably necessary to
535-2 make the employment and place of employment safe.
535-3 Sec. 411.104. DIVISION DUTIES. (a) The division shall
535-4 administer this subchapter.
535-5 (b) In addition to the duties specified in this chapter, the
535-6 division shall perform other duties as required by the commission.
535-7 Sec. 411.105. CONFIDENTIAL INFORMATION; PENALTY. (a) The
535-8 commission and its employees may not disclose at a public hearing
535-9 or otherwise information relating to secret processes, methods of
535-10 manufacture, or products.
535-11 (b) A member or employee of the commission commits an
535-12 offense if the member or employee wilfully discloses or conspires
535-13 to disclose information made confidential under this section. An
535-14 offense under this subsection is a misdemeanor punishable by a fine
535-15 not to exceed $1,000 and by forfeiture of the person's appointment
535-16 as a member or employee of the commission.
535-17 Sec. 411.106. SAFETY CLASSIFICATION. (a) To establish a
535-18 safety classification for employers, the commission shall:
535-19 (1) obtain medical and compensation cost information
535-20 regularly compiled by the Texas Department of Insurance in
535-21 performing that agency's rate-making duties and functions regarding
535-22 employer liability and workers' compensation insurance; and
535-23 (2) collect and compile information relating to:
535-24 (A) the frequency rate of accidents;
535-25 (B) the existence and implementation of private
535-26 safety programs;
535-27 (C) the number of work-hour losses because of
536-1 injuries; and
536-2 (D) other facts showing accident experience.
536-3 (b) From the information obtained under Subsection (a), the
536-4 commission shall classify employers as appropriate to implement
536-5 this subchapter.
536-6 Sec. 411.107. ELIMINATION OF SAFETY IMPEDIMENTS. The
536-7 commission may endeavor to eliminate an impediment to occupational
536-8 or industrial safety that is reported to the commission by an
536-9 affected employer. In attempting to eliminate an impediment the
536-10 commission may advise and consult with an employer, or a
536-11 representative of an employer, who is directly involved.
536-12 Sec. 411.108. ACCIDENT REPORTS. The commission may require
536-13 an employer and any other appropriate person to report accidents,
536-14 personal injuries, fatalities, or other statistics and information
536-15 relating to accidents on forms prescribed by and covering periods
536-16 designated by the commission.
536-17 Sec. 411.109. EFFECT ON OTHER LAW. This subchapter and
536-18 Chapters 341 and 755, Health and Safety Code, to the extent
536-19 possible shall all be given effect.
536-20 Sec. 411.110. LABOR DISPUTES. (a) It is the intent of the
536-21 legislature that this subchapter, or an act performed under this
536-22 subchapter, may not be:
536-23 (1) used as an issue involved in a labor dispute; or
536-24 (2) used or asserted to advantage in collective
536-25 bargaining by employers, employees, or their respective
536-26 representatives.
536-27 (b) Notwithstanding any other provision of this subchapter,
537-1 this subchapter does not apply to a place of employment while that
537-2 place of employment is subject to picketing or to a strike,
537-3 slowdown, or other work stoppage.
537-4 (b) Section 411.002(c), Labor Code, is repealed.
537-5 (c) Chapter 201, Acts of the 60th Legislature, Regular
537-6 Session, 1967 (Article 5182a, Vernon's Texas Civil Statutes), is
537-7 repealed.
537-8 SECTION 9.55. Article 56.32(8), Code of Criminal Procedure,
537-9 is amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
537-10 Legislature, Regular Session, 1993, to read as follows:
537-11 (8) "Pecuniary loss" means the amount of expense
537-12 reasonably and necessarily incurred:
537-13 (A) as a result of personal injury for:
537-14 (i) medical, hospital, nursing, or
537-15 psychiatric care or counseling, or physical therapy;
537-16 (ii) actual loss of past earnings and
537-17 anticipated loss of future earnings because of a disability
537-18 resulting from the personal injury; and
537-19 (iii) care of a minor child enabling a
537-20 victim or a victim's spouse, but not both of them, to continue
537-21 gainful employment;
537-22 (B) as a result of death for:
537-23 (i) funeral and burial expenses;
537-24 (ii) loss of support to a dependent; and
537-25 (iii) care of a minor child enabling the
537-26 surviving spouse of a victim to engage in lawful employment.
537-27 (C) "Pecuniary loss" does not include health
538-1 care service charges in excess of the fee guidelines established by
538-2 Section 413.011, Labor Code <the Texas Workers' Compensation Act
538-3 (Article 8308-8.21 et seq., Vernon's Texas Civil Statutes)>.
538-4 Neither the office of the attorney general, victims, nor claimants
538-5 shall be responsible for health care service charges in excess of
538-6 the fee guidelines unless a review of the health care services
538-7 determines that there is a reasonable health care justification for
538-8 the deviation.
538-9 SECTION 9.56. Section 51.922(c), Education Code, is amended
538-10 to conform to Chapter 269 (H.B. 752), Acts of the 73rd Legislature,
538-11 Regular Session, 1993, to read as follows:
538-12 (c) Imposition of a mandatory retirement age in violation of
538-13 this section is an unlawful employment practice for purposes of
538-14 Chapter 21, Labor Code <the Commission on Human Rights Act (Article
538-15 5221k, Vernon's Texas Civil Statutes)>. An individual aggrieved by
538-16 the practice has the rights and remedies provided by that chapter
538-17 <Act>, and the Commission on Human Rights has the same powers in
538-18 regard to the complaint as any other complaint under that chapter
538-19 <Act>.
538-20 SECTION 9.57. Section 403.074(a), Government Code, is
538-21 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
538-22 Legislature, Regular Session, 1993, to read as follows:
538-23 (a) The comptroller shall pay, from available funds
538-24 appropriated for that purpose, miscellaneous claims for which an
538-25 appropriation does not otherwise exist or for which the
538-26 appropriation has lapsed. For the purpose of this section,
538-27 "miscellaneous claims" does not include claims concerning warrants
539-1 that have expired because they were not presented to the state
539-2 treasurer for payment within the time period specified in Section
539-3 210.012, Labor Code <Subsection (d), Section 7, Texas Unemployment
539-4 Compensation Act (Article 5221b-7, Vernon's Texas Civil Statutes)>.
539-5 SECTION 9.58. Section 403.202(a), Government Code, is
539-6 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
539-7 Legislature, Regular Session, 1993, to read as follows:
539-8 (a) If a person who is required to pay to any department of
539-9 the state government an occupation, excise, gross receipts,
539-10 franchise, license, or privilege tax or fee, other than a tax or
539-11 fee to which Subchapter B, Chapter 112, Tax Code, applies or a tax
539-12 or other amount imposed under Subtitle A, Title 4, Labor Code, <the
539-13 Texas Unemployment Compensation Act (Article 5221b-1 et seq.,
539-14 Vernon's Texas Civil Statutes)> contends that the tax or fee is
539-15 unlawful or that the department may not legally demand or collect
539-16 the tax or fee, the person shall pay the amount claimed by the
539-17 state, and if the person intends to bring suit under this
539-18 subchapter, the person must submit with the payment a protest.
539-19 SECTION 9.59. Section 411.104(a), Government Code, is
539-20 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
539-21 Legislature, Regular Session, 1993, to read as follows:
539-22 (a) In this section, "security sensitive position" has the
539-23 meaning assigned by Section 202.042(h), Labor Code <11-E(a), Texas
539-24 Unemployment Compensation Act (Article 5221b-9e, Vernon's Texas
539-25 Civil Statutes)>.
539-26 SECTION 9.60. Section 481.023(c), Government Code, is
539-27 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
540-1 Legislature, Regular Session, 1993, to read as follows:
540-2 (c) The department shall perform the administrative duties
540-3 formerly assigned to the Texas Department of Community Affairs
540-4 under Chapter 301, Labor Code, <the Texas Job-Training Partnership
540-5 Act (Article 4413(52), Vernon's Texas Civil Statutes)> and the
540-6 community development block grant program.
540-7 SECTION 9.61. Section 481.341(a), Government Code, is
540-8 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
540-9 Legislature, Regular Session, 1993, to read as follows:
540-10 (a) In this section:
540-11 (1) "Funds" means funds available under Chapter 301,
540-12 Labor Code <the Texas Job-Training Partnership Act (Article
540-13 4413(52), Vernon's Texas Civil Statutes)>.
540-14 (2) "Service delivery area" has the meaning assigned
540-15 by Section 301.005(a)(6), Labor Code <4, Texas Job-Training
540-16 Partnership Act (Article 4413(52), Vernon's Texas Civil Statutes)>.
540-17 SECTION 9.62. Section 191.0045(f), Health and Safety Code,
540-18 is amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
540-19 Legislature, Regular Session, 1993, to read as follows:
540-20 (f) The fees collected under Subsection (e) shall be
540-21 deposited in the state treasury to the credit of the work and
540-22 family policies fund. Money in the fund may be used only for the
540-23 purposes prescribed by Section 81.006(a), Labor Code <4, Article
540-24 5221g-1, Revised Statutes>.
540-25 SECTION 9.63. Section 31.011(e), Human Resources Code, is
540-26 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
540-27 Legislature, Regular Session, 1993, to read as follows:
541-1 (e) The department shall coordinate services available for
541-2 the benefit of the child and the child's family, including services
541-3 provided by the Central Education Agency, literacy programs,
541-4 programs funded under Chapter 301, Labor Code <the Texas
541-5 Job-Training Partnership Act (Article 4413(52), Vernon's Texas
541-6 Civil Statutes)>, the family members' employers, day-care centers,
541-7 health organizations, and community organizations.
541-8 SECTION 9.64. Section 63.014, Human Resources Code, is
541-9 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
541-10 Legislature, Regular Session, 1993, to read as follows:
541-11 Sec. 63.014. Personnel. The board of trustees or the
541-12 director may employ and train personnel for the administration of
541-13 the various programs and services of the facility. The employee
541-14 shall be provided the appropriate rights, privileges, and benefits
541-15 available to the employees of the governing bodies that establish
541-16 the facility. The board of trustees is authorized to provide
541-17 workers' compensation benefits in the manner provided by Chapter
541-18 504, Labor Code <set forth in Article 8309h, Revised Statutes>.
541-19 SECTION 9.65. Section 76.0041(f), Human Resources Code, is
541-20 amended to conform to Chapter 269 (H.B. 752), Acts of the 73rd
541-21 Legislature, Regular Session, 1993, to read as follows:
541-22 (f) In this section, the payment of workers' compensation
541-23 benefits to a person in debt to the state is the same as any other
541-24 payment made to the person by the state. Notwithstanding Section
541-25 408.203, Labor Code <4.08, Texas Workers' Compensation Act (Article
541-26 8308-4.08, Vernon's Texas Civil Statutes)>, an order or writ to
541-27 withhold income from workers' compensation benefits is not required
542-1 under this section. However, the amount of weekly workers'
542-2 compensation benefits that may be withheld or assigned under this
542-3 section may not exceed the percentage of the person's benefits that
542-4 would apply if the benefits equalled the person's monthly net
542-5 resources under the child support guidelines in Section 14.055,
542-6 Family Code, except that in no event may more than 50 percent of
542-7 the person's weekly compensation benefits be withheld or assigned.
542-8 SECTION 9.66. Article 5181h, Revised Statutes, is repealed
542-9 because the laws enforced by that article, relating to the
542-10 employment of children, were repealed by implication on the
542-11 enactment of Chapter 531, Acts of the 67th Legislature, Regular
542-12 Session, 1981 (Article 5181.1, Vernon's Texas Civil Statutes),
542-13 codified as Chapter 51, Labor Code.
542-14 SECTION 9.67. Articles 5182 and 5182-1, Revised Statutes,
542-15 are repealed. These articles, enacted in 1919, related to the
542-16 safety of persons working on scaffolding. They are preempted under
542-17 stricter federal standards codified as 29 C.F.R. Section 1910.1 et
542-18 seq., and adopted under Section 655, Occupational Safety and Health
542-19 Act of 1970 (29 U.S.C. Section 652 et seq.).
542-20 ARTICLE 10. CHANGES RELATING TO LOCAL GOVERNMENT CODE
542-21 SECTION 10.01. Subtitle A, Title 4, Local Government Code,
542-22 is amended by adding Chapter 106 to read as follows:
542-23 CHAPTER 106. MUNICIPAL CHILD SAFETY TRUST FUND
542-24 Sec. 106.001. CREATION OF CHILD SAFETY TRUST FUND IN CERTAIN
542-25 MUNICIPALITIES. A child safety trust fund shall be created in the
542-26 treasury of a municipality with a population of more than 850,000.
542-27 Sec. 106.002. DEPOSITS TO FUND. The following money shall
543-1 be deposited in the fund:
543-2 (1) court cost collected under Article 102.014, Code
543-3 of Criminal Procedure; and
543-4 (2) optional motor vehicle registration fees remitted
543-5 to the municipality by the county under Section 9b, Chapter 88,
543-6 General Laws, Acts of the 41st Legislature, 2nd Called Session,
543-7 1929 (Article 6675a-9b, Vernon's Texas Civil Statutes).
543-8 Sec. 106.003. USE OF FUND. (a) Money in the fund shall be
543-9 used for the purpose of providing school crossing guard services as
543-10 provided by Chapter 343.
543-11 (b) After payment of the expenses of the school crossing
543-12 guard services, any remaining money in the fund may be used for
543-13 programs designed to enhance child safety, health, or nutrition,
543-14 including child abuse intervention and prevention and drug and
543-15 alcohol abuse prevention.
543-16 Sec. 106.004. AUDIT. (a) Money collected under this
543-17 chapter is subject to audit by the comptroller.
543-18 (b) Money expended under this chapter is subject to audit in
543-19 the same manner as other funds expended by a county or
543-20 municipality.
543-21 SECTION 10.02. Subtitle A, Title 11, Local Government Code,
543-22 is amended by adding Chapter 343 to read as follows:
543-23 CHAPTER 343. MUNICIPAL PROVISION OF SCHOOL CROSSING GUARDS
543-24 SUBCHAPTER A. GENERAL PROVISIONS
543-25 Sec. 343.001. DEFINITION. In this chapter, "school crossing
543-26 guard" has the meaning assigned by Section 20K, Uniform Act
543-27 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
544-1 Statutes).
544-2 Sec. 343.002. DESIGNATION OF GOVERNMENTAL FUNCTION. The
544-3 employment, training, equipping, and location of school crossing
544-4 guards by a political subdivision is a governmental function.
544-5 (Sections 343.003-343.010 reserved for expansion
544-6 SUBCHAPTER B. PROVISIONS APPLICABLE TO MUNICIPALITIES WITH A
544-7 POPULATION OF MORE THAN 850,000
544-8 Sec. 343.011. APPLICATION. This subchapter applies only to
544-9 a municipality with a population of more than 850,000.
544-10 Sec. 343.012. CONTRACT WITH SCHOOL DISTRICTS. (a) The
544-11 municipality may contract with one or more school districts to
544-12 provide school crossing guards.
544-13 (b) Under a contract, a school district may provide school
544-14 crossing guard services to an area of the municipality that is not
544-15 a part of the school district.
544-16 Sec. 343.013. DEDUCTIONS FROM CHILD SAFETY FUND. (a) After
544-17 contracting with a school district, the municipality may deduct
544-18 from a child safety fund established under Chapter 106 the
544-19 administrative cost of contracting for school crossing guard
544-20 services and distributing the funds to the school district.
544-21 (b) The administrative costs may not exceed 10 percent of
544-22 the funds available for school crossing guard services.
544-23 Sec. 343.014. PROVISION OF SCHOOL CROSSING GUARDS. (a) The
544-24 governing body of the municipality shall determine the number of
544-25 school crossing guards needed by the municipality and shall provide
544-26 for the use of school crossing guards to facilitate the safe
544-27 crossing of streets in the municipality by children going to or
545-1 leaving a public, parochial, or private elementary or secondary
545-2 school.
545-3 (b) In making the determination of the need for school
545-4 crossing guards, the municipality shall consider the
545-5 recommendations of schools and traffic safety experts.
545-6 (c) The municipality shall equip school crossing guards that
545-7 it employs or has under its jurisdiction with all necessary
545-8 equipment.
545-9 SECTION 10.03. Article 102.014(e), Code of Criminal
545-10 Procedure, is amended to correct a reference to read as follows:
545-11 (e) In a municipality with a population greater than 850,000
545-12 according to the most recent federal decennial census, the officer
545-13 collecting the costs in a municipal court case shall deposit money
545-14 collected under this article in the municipal child safety fund
545-15 established as required by Chapter 106, Local Government Code
545-16 <Article 6701d-26, Revised Statutes>.
545-17 SECTION 10.04. Section 212.041, Local Government Code, as
545-18 amended by Section 1, Chapter 125, and Section 4, Chapter 1046,
545-19 Acts of the 73rd Legislature, Regular Session, 1993, is reenacted
545-20 to read as follows:
545-21 Sec. 212.041. MUNICIPALITY COVERED BY SUBCHAPTER. This
545-22 subchapter applies only to a municipality whose governing body
545-23 chooses by ordinance to be covered by this subchapter or chose by
545-24 ordinance to be covered by the law codified by this subchapter.
545-25 SECTION 10.05. (a) Subchapter Z, Chapter 341, Local
545-26 Government Code, is amended to codify Section 1, Chapter 902, Acts
545-27 of the 71st Legislature, Regular Session, 1989 (Article 1269j-16,
546-1 Vernon's Texas Civil Statutes), by adding Section 341.904 to read
546-2 as follows:
546-3 Sec. 341.904. POSSESSION OR USE OF LAW ENFORCEMENT
546-4 IDENTIFICATION, INSIGNIA, OR VEHICLE IN POPULOUS MUNICIPALITY. (a)
546-5 In this section, "police identification item" means a badge,
546-6 identification card, insignia, shoulder emblem, or uniform of a
546-7 municipal police department.
546-8 (b) In a municipality with a population of one million or
546-9 more, a person commits an offense if the person intentionally or
546-10 knowingly:
546-11 (1) uses, possesses, or wears:
546-12 (A) a police identification item of the
546-13 municipal police department;
546-14 (B) an item bearing the insignia or design
546-15 prescribed by the police chief of the municipality for officers and
546-16 employees of the municipal police department to use while engaged
546-17 in official activities; or
546-18 (C) within the municipal police department's
546-19 jurisdiction, an item that is deceptively similar to a police
546-20 identification item of the department;
546-21 (2) uses, within the municipal police department's
546-22 jurisdiction, the name of the department in connection with an
546-23 object to create the appearance that the object belongs to or is
546-24 used by the department; or
546-25 (3) uses, possesses, or operates, within the municipal
546-26 police department's jurisdiction, a marked patrol vehicle that is
546-27 deceptively similar to a department patrol vehicle.
547-1 (c) An item or vehicle is deceptively similar to a police
547-2 identification item or patrol vehicle of a municipal police
547-3 department if the circumstances under which the object is used
547-4 could mislead a reasonable person as to the object's identity.
547-5 (d) An offense under this section is a Class B misdemeanor.
547-6 (e) It is an affirmative defense to prosecution under this
547-7 section that:
547-8 (1) the object was used or intended to be used
547-9 exclusively for decorative purposes and:
547-10 (A) the actor was not engaged in an activity
547-11 involving police work or security work; or
547-12 (B) the object was used only in an artistic or
547-13 dramatic presentation;
547-14 (2) the actor was engaged in the commercial
547-15 manufacturing or commercial sales of the items described by
547-16 Subsection (b);
547-17 (3) the actor was a licensed peace officer who:
547-18 (A) was on active duty discharging an official
547-19 duty for an agency listed under Article 2.12, Code of Criminal
547-20 Procedure, and acting under the agency's direct supervision; and
547-21 (B) was not privately employed or hired on an
547-22 individual or independent contractor basis as a patrolman, guard,
547-23 watchman, flagman, or traffic conductor;
547-24 (4) the police chief consented, after determining that
547-25 consent would serve law enforcement interests in the municipality,
547-26 to the actor's:
547-27 (A) using or possessing a police identification
548-1 item or other insignia of the municipal police department;
548-2 (B) using, possessing, or wearing an item or
548-3 insignia similar to a police identification item or insignia of the
548-4 municipal police department; or
548-5 (C) operating a vehicle similar to a patrol
548-6 vehicle of the municipal police department; or
548-7 (5) the actor prosecuted under this section for
548-8 wearing a uniform wore a light blue uniform shirt in a municipality
548-9 that uses a light blue uniform shirt with navy blue pocket flaps
548-10 and epaulets for its police officers, if the actor's shirt did not
548-11 have:
548-12 (A) the contrasting navy blue pocket flaps or
548-13 epaulets found on the municipal police officers' uniform shirts;
548-14 and
548-15 (B) a shoulder emblem similar in shape, color,
548-16 or design to an emblem found on the municipal police officers'
548-17 uniform shirts.
548-18 (f) The attorney general or a municipal attorney, district
548-19 attorney, or prosecuting attorney performing the duties of district
548-20 attorney for the district in which a court is located may apply to
548-21 the district court to enjoin a violation of this section. A
548-22 district court shall grant an injunction if evidence demonstrates
548-23 that a violation has occurred or will likely occur.
548-24 (b) Chapter 902, Acts of the 71st Legislature, Regular
548-25 Session, 1989 (Article 1269j-16, Vernon's Texas Civil Statutes), is
548-26 repealed.
548-27 SECTION 10.06. Section 402.023(f), Local Government Code, is
549-1 amended to correct a typographical error to read as follows:
549-2 (f) Payments by a municipality under a contract shall be
549-3 made from revenues of the municipality's water system, sanitary
549-4 sewer system, or both of those systems, or of the municipality's
549-5 combined water and sanitary sewer system, as specified in the
549-6 contract. Those payments are an operating expense of the system
549-7 whose revenues are pledged under the contract. Except as provided
549-8 by Subsection (h), neither the authority nor a holder of bonds of
549-9 the authority may demand payment of the municipality's obligations
549-10 out of funds raised or to be raised <or to be raised> by taxation.
549-11 ARTICLE 11. CHANGES RELATING TO THE TEXAS NATURAL
549-12 RESOURCE CONSERVATION COMMISSION
549-13 SECTION 11.01. (a) The changes made by this article are
549-14 made to conform to the transfers of jurisdiction to the Texas
549-15 Natural Resource Conservation Commission made by Sections 1.085,
549-16 1.086, 1.087, 1.088, 1.089, and 1.092, Chapter 3, and Section 1.09,
549-17 Chapter 15, Acts of the 72nd Legislature, 1st Called Session, 1991.
549-18 (b) References to other agencies that have been renamed or
549-19 reorganized or to statutes that have been codified are corrected in
549-20 this article without specific citation.
549-21 (c) This article includes certain nonsubstantive changes
549-22 relating to the Health and Safety Code, the Local Government Code,
549-23 and the Water Code other than changes relating to the Texas Natural
549-24 Resource Conservation Commission.
549-25 (d) The changes made by this article to Chapter 401, Health
549-26 and Safety Code, are made for the sole purpose of conforming to the
549-27 transfer of jurisdiction from the Texas Department of Health to the
550-1 Texas Natural Resource Conservation Commission made by Sections
550-2 1.050 and 1.088, Chapter 3, and Section 1.09, Chapter 15, Acts of
550-3 the 72nd Legislature, 1st Called Session, 1991. Changes made by
550-4 this article to Chapter 401, Health and Safety Code, are not
550-5 intended to reflect, limit, or expand the transfer of powers or
550-6 duties from the Texas Natural Resource Conservation Commission to
550-7 the Railroad Commission of Texas made by Sections 2 and 3, Chapter
550-8 810, Acts of the 73rd Legislature, Regular Session, 1993.
550-9 SECTION 11.02. Section 74.120(d), Agriculture Code, is
550-10 amended to read as follows:
550-11 (d) An advisory committee shall be established to assist the
550-12 commissioner in the development of rules adopted under this
550-13 section. The advisory committee shall be composed of:
550-14 (1) three cotton producers from different regions of
550-15 the state, appointed by the commissioner;
550-16 (2) three entomologists with knowledge of the
550-17 principles of integrated pest management, at least one of whom has
550-18 special knowledge of nonchemical or biological pest control,
550-19 appointed by the commissioner;
550-20 (3) two individuals with experience representing the
550-21 general interests of the environment, appointed by the chair of the
550-22 Texas Natural Resource Conservation <Water> Commission <or its
550-23 successor agency>;
550-24 (4) an environmental engineer with expert knowledge of
550-25 ground and surface water protection from contamination, appointed
550-26 by the chair of the Texas Natural Resource Conservation Commission;
550-27 (5) a toxicologist, appointed by the Commissioner of
551-1 Health; and
551-2 (6) an individual with experience representing the
551-3 general interests of consumers and an individual with experience
551-4 representing the general interests of agricultural workers,
551-5 appointed by the governor.
551-6 SECTION 11.03. Sections 76.003(b), (c), and (d), Agriculture
551-7 Code, are amended to read as follows:
551-8 (b) A pesticide may be included on a list of
551-9 state-limited-use pesticides if the department determines that,
551-10 when used as directed or in accordance with widespread and commonly
551-11 recognized practice, the pesticide requires additional restrictions
551-12 to prevent unreasonable risk to man or the environment, taking into
551-13 account the economic, social, and environmental costs and benefits
551-14 of use of the pesticide. However, the department shall not place a
551-15 pesticide on the state-limited-use list solely on the basis of
551-16 actual damage or risk of damage to water quality without first
551-17 obtaining approval from the Texas Natural Resource Conservation
551-18 <Water> Commission based on the impact of the pesticide's use on
551-19 water quality.
551-20 (c) The department shall formally request an opinion
551-21 regarding impact on water quality from the Texas Natural Resource
551-22 Conservation <Water> Commission during department consideration of
551-23 any amendments to the current list of state-limited-use pesticides.
551-24 (d) At the direction of the Texas Natural Resource
551-25 Conservation <Water> Commission in conjunction with its
551-26 responsibilities pursuant to Chapter 26, Water Code, the department
551-27 shall add any pesticide to the state-limited-use list, and the
552-1 department shall issue regulations regarding the time, place, and
552-2 conditions of such pesticide's use.
552-3 SECTION 11.04. Section 76.004(b), Agriculture Code, is
552-4 amended to read as follows:
552-5 (b) Any rules adopted by the department for the purpose of
552-6 protection or enhancement of water quality shall not be
552-7 inconsistent with rules developed for the protection or enhancement
552-8 of water quality by the Texas Natural Resource Conservation <Water>
552-9 Commission pursuant to recommendations of the Groundwater
552-10 Protection Committee.
552-11 SECTION 11.05. Sections 76.007(b), (c), (d), and (e),
552-12 Agriculture Code, are amended to read as follows:
552-13 (b) The Texas Natural Resource Conservation <Water>
552-14 Commission shall have principal authority to regulate and control
552-15 water pollution.
552-16 (c) The department shall seek advice from the Texas Natural
552-17 Resource Conservation <Water> Commission, the Parks and Wildlife
552-18 Department, the Texas Department of Health, and the Texas
552-19 Agricultural Extension Service in reviewing applications for
552-20 special local need or emergency pesticide registrations. The
552-21 department shall act expeditiously to review any application for
552-22 special local need or emergency pesticide registrations.
552-23 (d) The department shall give written notice to the Texas
552-24 Natural Resource Conservation <Water> Commission whenever it has
552-25 probable cause to believe that serious contamination of water has
552-26 occurred as a result of use, misuse, manufacture, storage, or
552-27 disposal of pesticides so that the Texas Natural Resource
553-1 Conservation <Water> Commission may proceed with an investigation
553-2 of possible violation of the Water Code.
553-3 (1) If the Texas Natural Resource Conservation <Water>
553-4 Commission determines that a violation of the Water Code has
553-5 occurred, the commission shall seek the remedies provided by the
553-6 Water Code.
553-7 (2) If the department determines that a violation of
553-8 the Agriculture Code has occurred regarding the use, manufacture,
553-9 storage, or disposal of pesticides, the department shall seek the
553-10 remedies provided by this code.
553-11 (3) The foregoing remedies shall not be mutually
553-12 exclusive.
553-13 (e) The Texas Natural Resource Conservation <Water>
553-14 Commission shall give written notice to the department whenever it
553-15 has probable cause to believe that serious contamination of water
553-16 has occurred as a result of the use, misuse, storage, disposal, or
553-17 manufacture of pesticides so that the department may proceed with
553-18 an investigation to determine if a violation of the Agriculture
553-19 Code has occurred.
553-20 (1) If the department determines that a violation of
553-21 the Agriculture Code has occurred, the department shall seek the
553-22 remedies provided by this code.
553-23 (2) If the Texas Natural Resource Conservation <Water>
553-24 Commission determines that a violation of the Water Code has
553-25 occurred, the Texas Natural Resource Conservation <Water>
553-26 Commission shall seek the remedies provided by the Water Code.
553-27 (3) The foregoing remedies shall not be mutually
554-1 exclusive.
554-2 SECTION 11.06. Sections 76.009(a) and (g), Agriculture Code,
554-3 are amended to read as follows:
554-4 (a) The Agriculture Resources Protection Authority is an
554-5 agency of state government. The authority is composed of the
554-6 following nine members:
554-7 (1) the director of the Texas Agricultural Experiment
554-8 Station;
554-9 (2) the dean of the College of Agricultural Sciences
554-10 of Texas Tech University;
554-11 (3) the dean of The University of Texas School of
554-12 Public Health at Houston;
554-13 (4) the director of the environmental epidemiology
554-14 program of the Texas Department of Health;
554-15 (5) the chief of the groundwater conservation section
554-16 of the Texas Natural Resource Conservation <Water> Commission;
554-17 (6) the director of the Institute for International
554-18 Agribusiness Studies of Prairie View A&M University;
554-19 (7) one person appointed by the governor to represent
554-20 the interests of consumers;
554-21 (8) a producer of agricultural products appointed by
554-22 the governor; and
554-23 (9) the commissioner of agriculture.
554-24 (g) The authority is the coordinating body for the policies
554-25 and programs of management, regulation, and control of pesticides
554-26 conducted by the department, the State Soil and Water Conservation
554-27 Board, the Texas Agricultural Extension Service, the Texas
555-1 Department of Health, the Texas Natural Resource Conservation
555-2 <Water> Commission, and the Texas Structural Pest Control Board.
555-3 Notwithstanding any other provision of this code or of any other
555-4 law, the authority may:
555-5 (1) adopt any rule relating to pesticides, including a
555-6 rule that amends or repeals an existing rule, except that the
555-7 authority may not:
555-8 (A) adopt, amend, or repeal a rule under Chapter
555-9 125 of this code;
555-10 (B) repeal a rule that was adopted by an agency
555-11 for which the authority is the coordinating body and that was in
555-12 effect on May 1, 1989; or
555-13 (C) amend a rule in effect on May 1, 1989, that
555-14 would make the rule less protective of the public health, safety,
555-15 or welfare;
555-16 (2) review and approve or disapprove any rule relating
555-17 to pesticides that is proposed by an agency for which the authority
555-18 is the coordinating body, except a rule under Chapter 125 of this
555-19 code;
555-20 (3) cooperate with and advise the department, the
555-21 State Soil and Water Conservation Board, the Texas Agricultural
555-22 Extension Service, the Texas Department of Health, the Texas
555-23 Natural Resource Conservation <Water> Commission, the Texas
555-24 Structural Pest Control Board, and any other state agency that may
555-25 be concerned with the regulation of pesticides and notify those
555-26 agencies of any rule the authority intends to adopt;
555-27 (4) collect, analyze, and disseminate information
556-1 necessary for the effective operation of all existing or
556-2 contemplated programs regulating pesticides;
556-3 (5) provide professional advice to private agencies
556-4 and citizens of this state on matters relating to pesticides in
556-5 cooperation with other state agencies, with professional groups,
556-6 and with either state or private educational institutions;
556-7 (6) accept gifts, devises, and bequests and, with the
556-8 approval of the governor, comply with the terms and conditions of
556-9 any grant to accomplish any of the purposes of the authority;
556-10 (7) inform and advise the governor on matters
556-11 involving pesticides and prepare and recommend to the governor and
556-12 to the legislature any legislation the authority considers proper
556-13 for the management and control of pesticides;
556-14 (8) make annual reports to the governor and the
556-15 appropriate legislative oversight committees;
556-16 (9) exempt any federal or state agency from any
556-17 regulatory provision if the authority determines that emergency
556-18 conditions exist that require the exemption; and
556-19 (10) notwithstanding any conflicting or inconsistent
556-20 provision in this code, hear and determine all appeals from orders
556-21 entered, by an agency for which the authority is the coordinating
556-22 body, under this chapter or Chapter 75 or 125 of this code.
556-23 SECTION 11.07. Section 76.131(a), Agriculture Code, is
556-24 amended to read as follows:
556-25 (a) The department may adopt rules governing the storage and
556-26 disposal of pesticides and pesticide containers for the purpose of:
556-27 (1) preventing injury from storage or disposal to man,
557-1 vegetation, crops, or animals; and
557-2 (2) preventing any waterway pollution that is harmful
557-3 to man or wildlife provided, however, that such rules be consistent
557-4 with Texas Natural Resource Conservation <Water> Commission rules
557-5 adopted under Chapter 26 of the Water Code.
557-6 SECTION 11.08. Section 418.122(a), Government Code, is
557-7 amended to read as follows:
557-8 (a) The Texas Natural Resource Conservation <Water>
557-9 Commission and other state agencies, in conjunction with the
557-10 division, shall keep land uses and construction of structures and
557-11 other facilities under continuing study and shall identify areas
557-12 that are particularly susceptible to severe land shifting,
557-13 subsidence, flooding, or other catastrophes.
557-14 SECTION 11.09. Section 441.036(b), Government Code, is
557-15 amended to read as follows:
557-16 (b) This section applies to the state auditor, State Board
557-17 of Barber Examiners, <State Purchasing and> General Services
557-18 Commission, Texas Cosmetology Commission, Texas State Board of
557-19 Medical Examiners, Board of Pardons and Paroles, Board of Regents,
557-20 Texas State University System, Texas Department of Licensing and
557-21 Regulation, comptroller of public accounts, Court of Appeals for
557-22 the Third Court of Appeals District, governor, Texas Department of
557-23 Health, Texas Department <State Board> of Insurance, Legislative
557-24 Budget Board, Parks and Wildlife Commission, Railroad Commission of
557-25 Texas, Texas Real Estate Commission, secretary of state, State
557-26 Securities Board, Teacher Retirement System of Texas, Central
557-27 Education Agency, Texas State Library, Texas Natural Resource
558-1 Conservation <Water> Commission, and the state treasury department.
558-2 SECTION 11.10. Section 481.028(b), Government Code, is
558-3 amended to read as follows:
558-4 (b) The department shall enter into an agreement as required
558-5 by Subsection (a) with the:
558-6 (1) Department of Agriculture regarding each agency's
558-7 international marketing efforts and business finance programs;
558-8 (2) Texas Employment Commission, Texas Higher
558-9 Education Coordinating Board, and Central Education Agency
558-10 regarding each agency's work force development efforts and literacy
558-11 programs;
558-12 (3) General Land Office regarding each agency's rural
558-13 economic development efforts;
558-14 (4) Texas Department of Housing and Community Affairs
558-15 regarding each agency's community development programs;
558-16 (5) Texas Department of Transportation and Parks and
558-17 Wildlife Department regarding each agency's efforts to promote
558-18 tourism;
558-19 (6) Texas Natural Resource Conservation Commission
558-20 <Air Control Board> regarding small business finance and permits,
558-21 the marketing of recyclable products, and business permits;
558-22 (7) office of the state comptroller regarding economic
558-23 development and analyses;
558-24 (8) Texas Historical Commission regarding community
558-25 preservation, restoration, and revitalization;
558-26 (9) Texas Department of Human Services regarding work
558-27 force development;
559-1 (10) General Services Commission regarding providing
559-2 procurement information, certification, and technical assistance to
559-3 small and historically underutilized businesses;
559-4 (11) Alternative Fuels Council <if that council is
559-5 created by S.B. No. 737, Acts of the 73rd Legislature, Regular
559-6 Session, 1993,> regarding the promotion of alternative fuels; and
559-7 (12) institutions of higher education regarding work
559-8 force development, literacy, and technology transfer<; and>
559-9 <(13) Texas Water Commission regarding the marketing
559-10 of recyclable products and business permits>.
559-11 SECTION 11.11. Section 12.073(b), Health and Safety Code, is
559-12 amended to read as follows:
559-13 (b) The council also must include:
559-14 (1) a representative of the Governor's Commission on
559-15 Texas-Mexico Affairs;
559-16 (2) a representative of the Texas-Mexico Exchange;
559-17 (3) a representative of the department, appointed by
559-18 the commissioner;
559-19 (4) a representative of the Texas Department of Human
559-20 Services, appointed by the commissioner of human services;
559-21 (5) a representative of the Department of Agriculture,
559-22 appointed by the commissioner of agriculture;
559-23 (6) a representative of the General Land Office,
559-24 appointed by the land commissioner;
559-25 (7) a representative of the Texas Natural Resource
559-26 Conservation <Water> Commission, appointed by the natural resource
559-27 conservation <water> commissioners;
560-1 (8) a representative of the Texas/Mexico Authority,
560-2 appointed by the authority;
560-3 (9) a representative of the United States
560-4 Environmental Protection Agency;
560-5 (10) a representative of the International Boundary
560-6 and Water Commission;
560-7 (11) a representative of the Pan-American Health
560-8 Organization; and
560-9 (12) a representative from each institution of higher
560-10 education located in or near border areas, appointed by the
560-11 commissioner of the Texas Higher Education Coordinating Board.
560-12 SECTION 11.12. Sections 341.032(a), (b), and (c), Health and
560-13 Safety Code, are amended to read as follows:
560-14 (a) Drinking water provided by a common carrier or the
560-15 common carrier's agent shall be taken only from supplies certified
560-16 as meeting the standards established by the commission <board>.
560-17 The drinking water shall be kept and dispensed in a sanitary
560-18 manner.
560-19 (b) A watering point must meet the standards of sanitation
560-20 and water-handling practices established for those purposes by the
560-21 commission <board>. The commission <department> shall certify each
560-22 watering point that meets those standards.
560-23 (c) If a sanitary defect exists at the watering point, the
560-24 commission <department> shall issue a supplemental certification
560-25 showing that the watering point is only provisionally approved. If
560-26 a sanitary defect continues after the expiration of a reasonable
560-27 time provided to correct the defect, the commission <department>
561-1 shall notify the common carrier not to receive drinking water at
561-2 the watering point involved.
561-3 SECTION 11.13. Sections 341.033(c), (d), and (e), Health and
561-4 Safety Code, are amended to read as follows:
561-5 (c) The owner or manager of a water supply system furnishing
561-6 drinking water to at least 25,000 persons shall have the water
561-7 tested at least once daily to determine its sanitary quality and
561-8 shall submit monthly reports of the tests to the commission
561-9 <department>.
561-10 (d) The owner or manager of a water supply system furnishing
561-11 drinking water to less than 25,000 persons shall submit to the
561-12 commission <department> during each monthly period of the system's
561-13 operation at least one specimen of water taken from the supply for
561-14 bacteriological analysis. The population under this subsection
561-15 shall be determined according to the most recent federal census or
561-16 other population-determining methods if a federal census is not
561-17 taken for the area served by the water supply system.
561-18 (e) The distribution system of a public drinking water
561-19 supply and that of any other water supply may not be physically
561-20 connected unless the other water is of a safe and sanitary quality
561-21 and the commission <department> approves the connection.
561-22 SECTION 11.14. Sections 341.034 and 341.035, Health and
561-23 Safety Code, are amended to read as follows:
561-24 Sec. 341.034. Water Supply System Operator: Certificate of
561-25 Competency. (a) The commission <board> shall adopt rules
561-26 establishing classes of certificates, duration of certificates, and
561-27 fees.
562-1 (b) Before a certificate of competency is issued or renewed
562-2 under this subchapter <chapter>, an applicant for or holder of a
562-3 certificate must pay an annual $10 fee. On receipt of the required
562-4 fee, the commission <department> shall issue to a qualified person
562-5 a certificate of competency.
562-6 Sec. 341.035. Approved Plans Required for Public Water
562-7 Supplies. (a) A person contemplating establishing a drinking
562-8 water supply system for public use must submit completed plans and
562-9 specifications to the commission <department> before construction
562-10 of the system. The commission <department> shall approve plans
562-11 that conform to the state's water safety laws. The water supply
562-12 system may be established only on the commission's <department's>
562-13 approval.
562-14 (b) Any agency, including a municipality, supplying a
562-15 drinking water service to the public that intends to make a
562-16 material or major change in a water supply system that may affect
562-17 the sanitary features of that utility must give written notice of
562-18 that intention to the commission <department> before making the
562-19 change.
562-20 (c) A water supply system owner, manager, or operator or an
562-21 agent of a water supply system owner, manager, or operator may not
562-22 advertise or announce a water supply as being of a quality other
562-23 than the quality that is disclosed by the commission's
562-24 <department's> latest rating.
562-25 (d) The commission <department> shall assemble and tabulate
562-26 all necessary data relating to public drinking water supplies at
562-27 least once each year and as often during the year as conditions
563-1 demand or justify. The data forms the basis of an official
563-2 comparative rating of public drinking water supply systems.
563-3 (e) A water supply system that attains an approved rating is
563-4 entitled to erect signs of a design approved by the commission
563-5 <department> on highways approaching the municipality in which the
563-6 water supply system is located. The signs shall be immediately
563-7 removed on notice from the commission <department> if the water
563-8 supply system does not continue to meet the specified standards.
563-9 SECTION 11.15. Sections 341.037 and 341.038, Health and
563-10 Safety Code, are amended to read as follows:
563-11 Sec. 341.037. Protection of Bodies of Water From Sewage.
563-12 The commission <department> shall enforce state laws and take other
563-13 necessary action to protect a spring, well, pond, lake, reservoir,
563-14 or other stream in this state from any condition or pollution that
563-15 results from sewage and that may endanger the public health.
563-16 Sec. 341.038. Protection of Impounded Water From
563-17 Disease-Bearing Mosquitoes. A person that impounds water for
563-18 public use shall cooperate with the commission <department> and
563-19 local departments of health to control disease-bearing mosquitoes
563-20 on the impounded area.
563-21 SECTION 11.16. Section 341.039(a), Health and Safety Code,
563-22 is amended to read as follows:
563-23 (a) The commission <board> and the Texas State Board of
563-24 Plumbing Examiners by rule shall adopt and implement minimum
563-25 standards for the use and reuse of graywater in irrigation and for
563-26 other agricultural, domestic, commercial, and industrial purposes
563-27 to assure that the use of graywater is not a nuisance and does not
564-1 damage the quality of surface water and groundwater in this state.
564-2 SECTION 11.17. Section 341.040, Health and Safety Code, is
564-3 amended to read as follows:
564-4 Sec. 341.040. DEFINITION <DEFINITIONS>. In this subchapter,
564-5 commission<:>
564-6 <(1) "Board" means the commission.>
564-7 <(2) "Commission"> means the Texas Natural Resource
564-8 Conservation Commission.
564-9 <(3) "Department" means the commission.>
564-10 SECTION 11.18. Sections 361.003(2)-(41) and (44), Health and
564-11 Safety Code, are amended to read as follows:
564-12 (2) <"Board" means the Texas Natural Resource
564-13 Conservation Commission.>
564-14 <(3)> "Class I industrial solid waste" means an
564-15 industrial solid waste or mixture of industrial solid waste,
564-16 including hazardous industrial waste, that because of its
564-17 concentration or physical or chemical characteristics:
564-18 (A) is toxic, corrosive, flammable, a strong
564-19 sensitizer or irritant, or a generator of sudden pressure by
564-20 decomposition, heat, or other means; and
564-21 (B) poses or may pose a substantial present or
564-22 potential danger to human health or the environment if improperly
564-23 processed, stored, transported, or otherwise managed.
564-24 (3) <(4)> "Class I nonhazardous industrial solid
564-25 waste" means any Class I industrial solid waste that has not been
564-26 identified or listed as a hazardous waste by the administrator of
564-27 the United States Environmental Protection Agency under the federal
565-1 Solid Waste Disposal Act, as amended by the Resource Conservation
565-2 and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.).
565-3 (4) <(5)> "Commercial hazardous waste management
565-4 facility" means any hazardous waste management facility that
565-5 accepts hazardous waste or PCBs for a charge, except a captured
565-6 facility or a facility that accepts waste only from other
565-7 facilities owned or effectively controlled by the same person,
565-8 where "captured facility" means a manufacturing or production
565-9 facility that generates an industrial solid waste or hazardous
565-10 waste that is routinely stored, processed, or disposed of on a
565-11 shared basis in an integrated waste management unit owned, operated
565-12 by, and located within a contiguous manufacturing complex.
565-13 (5) <(6)> "Commission" means the Texas Natural
565-14 Resource Conservation Commission.
565-15 (6) <(7) "Commissioner" means the executive director
565-16 of the Texas Natural Resource Conservation Commission.>
565-17 <(8)> "Composting" means the controlled biological
565-18 decomposition of organic solid waste under aerobic conditions.
565-19 <(9) "Department" means the Texas Natural Resource
565-20 Conservation Commission.>
565-21 (7) <(10)> "Disposal" means the discharging,
565-22 depositing, injecting, dumping, spilling, leaking, or placing of
565-23 solid waste or hazardous waste, whether containerized or
565-24 uncontainerized, into or on land or water so that the solid waste
565-25 or hazardous waste or any constituent thereof may be emitted into
565-26 the air, discharged into surface water or groundwater, or
565-27 introduced into the environment in any other manner.
566-1 (8) <(11)> "Environmental response law" means the
566-2 federal Comprehensive Environmental Response, Compensation and
566-3 Liability Act of 1980, 42 U.S.C. Sections 9601 through 9675, as
566-4 amended by the Superfund Amendments and Reauthorization Act of
566-5 1986.
566-6 (9) <(12)> "Executive director" means the executive
566-7 director of the commission.
566-8 (10) <(13)> "Garbage" means solid waste that is
566-9 putrescible animal and vegetable waste materials from the handling,
566-10 preparation, cooking, or consumption of food, including waste
566-11 materials from markets, storage facilities, and the handling and
566-12 sale of produce and other food products.
566-13 (11) <(14)> "Hazardous substance":
566-14 (A) means:
566-15 (i) a substance designated under Section
566-16 311(b)(2)(A) of the Federal Water Pollution Control Act, as amended
566-17 (33 U.S.C. Section 1321);
566-18 (ii) an element, compound, mixture,
566-19 solution, or substance designated under Section 102 of the
566-20 environmental response law;
566-21 (iii) a hazardous waste having the
566-22 characteristics identified under or listed under Section 3001 of
566-23 the federal Solid Waste Disposal Act, as amended (42 U.S.C. Section
566-24 6921), excluding waste, the regulation of which under the federal
566-25 Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.) has been
566-26 suspended by Act of Congress;
566-27 (iv) a toxic pollutant listed under
567-1 Section 307(a) of the Federal Water Pollution Control Act (33
567-2 U.S.C. Section 1317);
567-3 (v) a hazardous air pollutant listed under
567-4 Section 112 of the federal Clean Air Act, as amended (42 U.S.C.
567-5 Section 7412); and
567-6 (vi) any imminently hazardous chemical
567-7 substance or mixture with respect to which the administrator of the
567-8 Environmental Protection Agency has taken action under Section 7 of
567-9 the Toxic Substances Control Act (15 U.S.C. Section 2606); but
567-10 (B) does not include:
567-11 (i) petroleum, which means crude oil or
567-12 any fraction of crude oil that is not otherwise specifically listed
567-13 or designated as a hazardous substance under Paragraphs (i) through
567-14 (vi) of Subdivision (A);
567-15 (ii) natural gas, natural gas liquids,
567-16 liquefied natural gas, or synthetic gas usable for fuel mixtures of
567-17 natural gas and synthetic gas; or
567-18 (iii) waste materials that result from
567-19 activities associated with the exploration, development, or
567-20 production of oil or gas or geothermal resources or any other
567-21 substance or material regulated by the Railroad Commission of Texas
567-22 under Section 91.101, Natural Resources Code.
567-23 (12) <(15)> "Hazardous waste" means solid waste
567-24 identified or listed as a hazardous waste by the administrator of
567-25 the United States Environmental Protection Agency under the federal
567-26 Solid Waste Disposal Act, as amended by the Resource Conservation
567-27 and Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et
568-1 seq.).
568-2 (13) <(16)> "Hazardous waste management facility"
568-3 means all contiguous land, including structures, appurtenances, and
568-4 other improvements on the land, used for processing, storing, or
568-5 disposing of hazardous waste. The term includes a publicly or
568-6 privately owned hazardous waste management facility consisting of
568-7 processing, storage, or disposal operational hazardous waste
568-8 management units such as one or more landfills, surface
568-9 impoundments, waste piles, incinerators, boilers, and industrial
568-10 furnaces, including cement kilns, injection wells, salt dome waste
568-11 containment caverns, land treatment facilities, or a combination of
568-12 units.
568-13 (14) <(17)> "Hazardous waste management unit" means a
568-14 landfill, surface impoundment, waste pile, industrial furnace,
568-15 incinerator, cement kiln, injection well, container, drum, salt
568-16 dome waste containment cavern, or land treatment unit, or any other
568-17 structure, vessel, appurtenance, or other improvement on land used
568-18 to manage hazardous waste.
568-19 (15) <(18)> "Industrial furnace" includes cement
568-20 kilns, lime kilns, aggregate kilns, phosphate kilns, coke ovens,
568-21 blast furnaces, smelting, melting, or refining furnaces, including
568-22 pyrometallurgical devices such as cupolas, reverberator furnaces,
568-23 sintering machines, roasters, or foundry furnaces, titanium dioxide
568-24 chloride process oxidation reactors, methane reforming furnaces,
568-25 pulping liquor recovery furnaces, combustion devices used in the
568-26 recovery of sulfur values from spent sulfuric acid, and other
568-27 devices the commission may list.
569-1 (16) <(19)> "Industrial solid waste" means solid waste
569-2 resulting from or incidental to a process of industry or
569-3 manufacturing, or mining or agricultural operations.
569-4 (17) <(20)> "Local government" means:
569-5 (A) a county;
569-6 (B) a municipality; or
569-7 (C) a political subdivision exercising the
569-8 authority granted under Section 361.165.
569-9 (18) <(21)> "Management" means the systematic control
569-10 of the activities of generation, source separation, collection,
569-11 handling, storage, transportation, processing, treatment, recovery,
569-12 or disposal of solid waste.
569-13 (19) <(22)> "Motor vehicle" has the meaning assigned
569-14 by Section 2(b), Uniform Act Regulating Traffic on Highways
569-15 (Article 6701d, Vernon's Texas Civil Statutes).
569-16 (20) <(23)> "Municipal solid waste" means solid waste
569-17 resulting from or incidental to municipal, community, commercial,
569-18 institutional, or recreational activities, and includes garbage,
569-19 rubbish, ashes, street cleanings, dead animals, abandoned
569-20 automobiles, and other solid waste other than industrial solid
569-21 waste.
569-22 (21) <(24)> "Notice of intent to file an application"
569-23 means the notice filed under Section 361.063.
569-24 (22) <(25)> "PCBs" or "polychlorinated biphenyl
569-25 compounds" means compounds subject to Title 40, Code of Federal
569-26 Regulations, Part 761.
569-27 (23) <(26)> "Person" means an individual, corporation,
570-1 organization, government or governmental subdivision or agency,
570-2 business trust, partnership, association, or any other legal
570-3 entity.
570-4 (24) <(27)> "Person affected" means a person who
570-5 demonstrates that the person has suffered or will suffer actual
570-6 injury or economic damage and, if the person is not a local
570-7 government:
570-8 (A) is a resident of a county, or a county
570-9 adjacent or contiguous to the county, in which a solid waste
570-10 facility is to be located; or
570-11 (B) is doing business or owns land in the county
570-12 or adjacent or contiguous county.
570-13 (25) <(28)> "Processing" means the extraction of
570-14 materials from or the transfer, volume reduction, conversion to
570-15 energy, or other separation and preparation of solid waste for
570-16 reuse or disposal. The term includes the treatment or
570-17 neutralization of hazardous waste designed to change the physical,
570-18 chemical, or biological character or composition of a hazardous
570-19 waste so as to neutralize the waste, recover energy or material
570-20 from the waste, render the waste nonhazardous or less hazardous,
570-21 make it safer to transport, store, or dispose of, or render it
570-22 amenable for recovery or storage, or reduce its volume. The term
570-23 does not include activities concerning those materials exempted by
570-24 the administrator of the United States Environmental Protection
570-25 Agency under the federal Solid Waste Disposal Act, as amended by
570-26 the Resource Conservation and Recovery Act of 1976, as amended (42
570-27 U.S.C. Section 6901 et seq.), unless the commission <or department>
571-1 determines that regulation of the activity under this chapter is
571-2 necessary to protect human health or the environment.
571-3 (26) <(29)> "Radioactive waste" means waste that
571-4 requires specific licensing under Chapter 401 and the rules adopted
571-5 by the commission <board of health> under that law.
571-6 (27) <(30)> "Recycling" means the legitimate use,
571-7 reuse, or reclamation of solid waste.
571-8 (28) <(31)> "Release" means any spilling, leaking,
571-9 pumping, pouring, emitting, emptying, discharging, injecting,
571-10 escaping, leaching, dumping, or disposing into the environment.
571-11 The term does not include:
571-12 (A) a release that results in an exposure to a
571-13 person solely within a workplace, concerning a claim that the
571-14 person may assert against the person's employer;
571-15 (B) an emission from the engine exhaust of a
571-16 motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping
571-17 station engine;
571-18 (C) a release of source, by-product, or special
571-19 nuclear material from a nuclear incident, as those terms are
571-20 defined by the Atomic Energy Act of 1954, as amended (42 U.S.C.
571-21 Section 2011 et seq.), if the release is subject to requirements
571-22 concerning financial protection established by the Nuclear
571-23 Regulatory Commission under Section 170 of that Act;
571-24 (D) for the purposes of Section 104 of the
571-25 environmental response law, or other response action, a release of
571-26 source, by-product, or special nuclear material from a processing
571-27 site designated under Section 102(a)(1) or 302(a) of the Uranium
572-1 Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Sections
572-2 7912 and 7942); and
572-3 (E) the normal application of fertilizer.
572-4 (29) <(32)> "Remedial action" means an action
572-5 consistent with a permanent remedy taken instead of or in addition
572-6 to a removal action in the event of a release or threatened release
572-7 of a hazardous waste into the environment to prevent or minimize
572-8 the release of hazardous waste so that the hazardous waste does not
572-9 migrate to cause an imminent and substantial danger to present or
572-10 future public health and safety or the environment. The term
572-11 includes:
572-12 (A) actions at the location of the release,
572-13 including storage, confinement, perimeter protection using dikes,
572-14 trenches, or ditches, clay cover, neutralization, cleanup of
572-15 released hazardous waste or contaminated materials, recycling or
572-16 reuse, diversion, destruction, segregation of reactive waste,
572-17 dredging or excavations, repair or replacement of leaking
572-18 containers, collection of leachate and runoff, on-site treatment or
572-19 incineration, provision of alternate water supplies, and any
572-20 monitoring reasonably required to assure that those actions protect
572-21 the public health and safety or the environment; and
572-22 (B) the costs of permanent relocation of
572-23 residents, businesses, and community facilities if the
572-24 administrator of the United States Environmental Protection Agency
572-25 or the executive director determines that, alone or in combination
572-26 with other measures, the relocation:
572-27 (i) is more cost-effective than and
573-1 environmentally preferable to the transportation, storage,
573-2 treatment, destruction, or secure disposition off-site of hazardous
573-3 waste; or
573-4 (ii) may otherwise be necessary to protect
573-5 the public health or safety.
573-6 (30) <(33)> "Removal" includes:
573-7 (A) cleaning up or removing released hazardous
573-8 waste from the environment;
573-9 (B) taking necessary action in the event of the
573-10 threat of release of hazardous waste into the environment;
573-11 (C) taking necessary action to monitor, assess,
573-12 and evaluate the release or threat of release of hazardous waste;
573-13 (D) disposing of removed material;
573-14 (E) erecting a security fence or other measure
573-15 to limit access;
573-16 (F) providing alternate water supplies,
573-17 temporary evacuation, and housing for threatened individuals not
573-18 otherwise provided for;
573-19 (G) acting under Section 104(b) of the
573-20 environmental response law;
573-21 (H) providing emergency assistance under the
573-22 federal Disaster Relief Act of 1974 (42 U.S.C. Section 5121 et
573-23 seq.); or
573-24 (I) taking any other necessary action to
573-25 prevent, minimize, or mitigate damage to the public health and
573-26 welfare or the environment that may otherwise result from a release
573-27 or threat of release.
574-1 (31) <(34)> "Rubbish" means nonputrescible solid
574-2 waste, excluding ashes, that consists of:
574-3 (A) combustible waste materials, including
574-4 paper, rags, cartons, wood, excelsior, furniture, rubber, plastics,
574-5 yard trimmings, leaves, and similar materials; and
574-6 (B) noncombustible waste materials, including
574-7 glass, crockery, tin cans, aluminum cans, metal furniture, and
574-8 similar materials that do not burn at ordinary incinerator
574-9 temperatures (1,600 to 1,800 degrees Fahrenheit).
574-10 (32) <(35)> "Sanitary landfill" means a controlled
574-11 area of land on which solid waste is disposed of in accordance with
574-12 standards, rules, or orders established by the <board of health or
574-13 the> commission.
574-14 (33) <(36)> "Sludge" means solid, semisolid, or liquid
574-15 waste generated from a municipal, commercial, or industrial
574-16 wastewater treatment plant, water supply treatment plant, or air
574-17 pollution control facility, excluding the treated effluent from a
574-18 wastewater treatment plant.
574-19 (34) <(37)> This subdivision expires on delegation of
574-20 the Resource Conservation and Recovery Act authority to the
574-21 Railroad Commission of Texas. Subject to the limitations of 42
574-22 U.S.C. Section 6903(27) and 40 C.F.R. Section 261.4(a), "solid
574-23 waste" means garbage, rubbish, refuse, sludge from a waste
574-24 treatment plant, water supply treatment plant, or air pollution
574-25 control facility, and other discarded material, including solid,
574-26 liquid, semisolid, or contained gaseous material resulting from
574-27 industrial, municipal, commercial, mining, and agricultural
575-1 operations and from community and institutional activities. The
575-2 term:
575-3 (A) does not include:
575-4 (i) solid or dissolved material in
575-5 domestic sewage, or solid or dissolved material in irrigation
575-6 return flows, or industrial discharges subject to regulation by
575-7 permit issued under Chapter 26, Water Code;
575-8 (ii) soil, dirt, rock, sand, and other
575-9 natural or man-made inert solid materials used to fill land if the
575-10 object of the fill is to make the land suitable for the
575-11 construction of surface improvements; or
575-12 (iii) waste materials that result from
575-13 activities associated with the exploration, development, or
575-14 production of oil or gas or geothermal resources and other
575-15 substance or material regulated by the Railroad Commission of Texas
575-16 under Section 91.101, Natural Resources Code, unless the waste,
575-17 substance, or material results from activities associated with
575-18 gasoline plants, natural gas or natural gas liquids processing
575-19 plants, pressure maintenance plants, or repressurizing plants and
575-20 is hazardous waste as defined by the administrator of the United
575-21 States Environmental Protection Agency under the federal Solid
575-22 Waste Disposal Act, as amended by the Resource Conservation and
575-23 Recovery Act, as amended (42 U.S.C. Section 6901 et seq.); and
575-24 (B) does include hazardous substances, for the
575-25 purposes of Sections 361.271 through 361.277, 361.280, and 361.343
575-26 through 361.345.
575-27 (35) <(38)> This subdivision is effective on
576-1 delegation of the Resource Conservation and Recovery Act authority
576-2 to the Railroad Commission of Texas. Subject to the limitations of
576-3 42 U.S.C. Section 6903(27) and 40 C.F.R. Section 261.4(a), "solid
576-4 waste" means garbage, rubbish, refuse, sludge from a waste
576-5 treatment plant, water supply treatment plant, or air pollution
576-6 control facility, and other discarded material, including solid,
576-7 liquid, semisolid, or contained gaseous material resulting from
576-8 industrial, municipal, commercial, mining, and agricultural
576-9 operations and from community and institutional activities. The
576-10 term:
576-11 (A) does not include:
576-12 (i) solid or dissolved material in
576-13 domestic sewage, or solid or dissolved material in irrigation
576-14 return flows, or industrial discharges subject to regulation by
576-15 permit issued under Chapter 26, Water Code;
576-16 (ii) soil, dirt, rock, sand, and other
576-17 natural or man-made inert solid materials used to fill land if the
576-18 object of the fill is to make the land suitable for the
576-19 construction of surface improvements; or
576-20 (iii) waste materials that result from
576-21 activities associated with the exploration, development, or
576-22 production of oil or gas or geothermal resources and other
576-23 substance or material regulated by the Railroad Commission of Texas
576-24 under Section 91.101, Natural Resources Code; and
576-25 (B) does include hazardous substances, for the
576-26 purposes of Sections 361.271 through 361.277, 361.280, and 361.343
576-27 through 361.345.
577-1 (36) <(39)> "Solid waste facility" means all
577-2 contiguous land, including structures, appurtenances, and other
577-3 improvements on the land, used for processing, storing, or
577-4 disposing of solid waste. The term includes a publicly or
577-5 privately owned solid waste facility consisting of several
577-6 processing, storage, or disposal operational units such as one or
577-7 more landfills, surface impoundments, or a combination of units.
577-8 (37) <(40)> "Solid waste technician" means an
577-9 individual who is trained in the practical aspects of the design,
577-10 operation, and maintenance of a solid waste facility in accordance
577-11 with standards, rules, or orders established by the <board of
577-12 health or> commission.
577-13 (38) <(41)> "Storage" means the temporary holding of
577-14 solid waste, after which the solid waste is processed, disposed of,
577-15 or stored elsewhere.
577-16 (39) <(44)> "Pollution" means the alteration of the
577-17 physical, thermal, chemical, or biological quality of, or the
577-18 contamination of, any land or surface or subsurface water in the
577-19 state that renders the land or water harmful, detrimental, or
577-20 injurious to humans, animal life, vegetation, or property or to
577-21 public health, safety, or welfare or impairs the usefulness or the
577-22 public enjoyment of the land or water for any lawful or reasonable
577-23 purpose.
577-24 SECTION 11.19. The heading of Subchapter B, Chapter 361,
577-25 Health and Safety Code, is amended to read as follows:
577-26 SUBCHAPTER B. POWERS AND DUTIES OF TEXAS NATURAL RESOURCE
577-27 CONSERVATION <DEPARTMENT OF HEALTH AND TEXAS WATER>
578-1 COMMISSION
578-2 SECTION 11.20. Sections 361.011 and 361.013, Health and
578-3 Safety Code, are amended to read as follows:
578-4 Sec. 361.011. COMMISSION'S <DEPARTMENT'S> JURISDICTION:
578-5 MUNICIPAL SOLID WASTE. (a) The commission <department> is
578-6 responsible under this section for the management of municipal
578-7 solid waste, excluding hazardous municipal waste, and shall
578-8 coordinate municipal solid waste activities, excluding activities
578-9 concerning hazardous municipal waste.
578-10 (b) <The board of health shall guide the department in its
578-11 management of municipal solid waste, excluding hazardous municipal
578-12 waste.>
578-13 <(c)> The commission <department> shall accomplish the
578-14 purposes of this chapter by controlling all aspects of the
578-15 management of municipal solid waste, excluding management of
578-16 hazardous municipal waste, by all practical and economically
578-17 feasible methods consistent with its powers and duties under this
578-18 chapter and other law.
578-19 (c) <(d)> The commission <department> has the powers and
578-20 duties specifically prescribed by this chapter relating to
578-21 municipal solid waste management, excluding management of hazardous
578-22 municipal waste, and all other powers necessary or convenient to
578-23 carry out those <its> responsibilities under this chapter.
578-24 (d) <(e)> In matters relating to municipal solid waste
578-25 management, excluding management of hazardous municipal waste
578-26 <under the department's jurisdiction>, the commission <department>
578-27 shall:
579-1 (1) consider <consult with:>
579-2 <(1) the commission concerning> water pollution
579-3 control and water quality aspects and<;>
579-4 <(2) the Texas Air Control Board concerning> air
579-5 pollution control and ambient air quality aspects; and
579-6 (2) consult with <(3)> the attorney general's office
579-7 for assistance in determining whether referral to the attorney
579-8 general for enforcement is mandatory under Section 361.224 or
579-9 whether referral is appropriate, in the commission's <agency's>
579-10 discretion, for the disposition of enforcement matters under this
579-11 chapter.
579-12 (e) <(f)> If referral is determined to be mandatory or
579-13 appropriate, the commission <agency> shall consult with the
579-14 attorney general's office for assistance in determining whether
579-15 criminal or civil enforcement action should be taken. The
579-16 commission <agency> shall use all available enforcement options.
579-17 Sec. 361.013. Solid Waste Disposal and Transportation Fees.
579-18 (a) Except as provided by Subsection (e), the commission
579-19 <department> shall charge a fee on solid waste that is disposed of
579-20 within this state. The fee is $1.25 per ton received for disposal
579-21 at a municipal solid waste landfill if the solid waste is measured
579-22 by weight. If the solid waste is measured by volume, the fee for
579-23 compacted solid waste is 40 cents per cubic yard or, for
579-24 uncompacted solid waste, 25 cents per cubic yard received for
579-25 disposal at a municipal solid waste landfill. The commission
579-26 <department> shall set the fee for sludge or similar waste applied
579-27 to the land for beneficial use on a dry weight basis and for solid
580-1 waste received at an incinerator or a shredding and composting
580-2 facility at half the fee set for solid waste received for disposal
580-3 at a landfill. The commission <department> may charge comparable
580-4 fees for other means of solid waste disposal that are used.
580-5 (b) The commission <department> may raise or lower the fees
580-6 established under Subsection (a) in accordance with commission
580-7 <department> spending levels established by the legislature.
580-8 (c) The commission <department> shall charge an annual
580-9 registration fee to a transporter of municipal solid waste who is
580-10 required to register with the commission <department> under rules
580-11 adopted by the commission <board of health>. The commission <board
580-12 of health> by rule shall adopt a fee schedule. The fee shall be
580-13 reasonably related to the volume, the type, or both the volume and
580-14 type of waste transported. The registration fee charged under this
580-15 subsection may not be less than $25 or more than $500.
580-16 (d) The operator of each municipal solid waste facility
580-17 shall maintain records and report to the commission <department>
580-18 annually on the amount of solid waste that the facility transfers,
580-19 processes, stores, treats, or disposes of. Each transporter
580-20 required to register with the commission <department> shall
580-21 maintain records and report to the commission <department> annually
580-22 on the amount of solid waste that the transporter transports. The
580-23 commission <board of health> by rule shall establish procedures for
580-24 recordkeeping and reporting required under this subsection.
580-25 (e) The commission <department> may not charge a fee under
580-26 Subsection (a) for scrap tires that are deposited in a designated
580-27 recycling collection area at a landfill permitted by the commission
581-1 <or the department> or licensed by a county or by a political
581-2 subdivision exercising the authority granted by Section 361.165 and
581-3 that are temporarily stored for eventual recycling, reuse, or
581-4 energy recovery.
581-5 (f) The commission <department> may not charge a fee under
581-6 Subsection (a) for source separated yard waste materials that are
581-7 composted at a composting facility, including a composting facility
581-8 located at a permitted landfill site. The commission <department>
581-9 shall credit any fee payment due under Subsection (a) for any
581-10 material received and converted to compost or product for
581-11 composting through a composting process. Any compost or product
581-12 for composting that is not used as compost and is deposited in a
581-13 landfill is not exempt from the fee.
581-14 (g) The commission <department> shall allow a home-rule
581-15 municipality that has enacted an ordinance imposing a local
581-16 environmental protection fee for disposal services as of January 1,
581-17 1993, to offer disposal or environmental programs or services to
581-18 persons within its jurisdiction, from the revenues generated by
581-19 said fee, as such services are required by state or federal
581-20 mandates. If such services or programs are offered, the home-rule
581-21 municipality may require their use by those persons within its
581-22 jurisdiction.
581-23 SECTION 11.21. Section 361.014(a), Health and Safety Code,
581-24 as amended by Sections 1.10 and 3.10, Chapter 899, and Section 2,
581-25 Chapter 1045, Acts of the 73rd Legislature, Regular Session, 1993,
581-26 is reenacted and amended to read as follows:
581-27 (a) Revenue received by the commission under Section 361.013
582-1 shall be deposited in the state treasury to the credit of the
582-2 commission. At least half the revenue is dedicated to the
582-3 commission's municipal solid waste permitting and enforcement
582-4 programs and related support activities, and the balance of the
582-5 revenue is dedicated to pay for activities that will enhance the
582-6 state's solid waste management program, including:
582-7 (1) provision of funds for the municipal solid waste
582-8 management planning fund and the municipal solid waste resource
582-9 recovery applied research and technical assistance fund established
582-10 by the Comprehensive Municipal Solid Waste Management, Resource
582-11 Recovery, and Conservation Act (Chapter 363);
582-12 (2) conduct of demonstration projects and studies to
582-13 help local governments of various populations and the private
582-14 sector to convert to accounting systems and set rates that reflect
582-15 the full costs of providing waste management services and are
582-16 proportionate to the amount of waste generated;
582-17 (3) provision of technical assistance to local
582-18 governments concerning solid waste management;
582-19 (4) establishment of a solid waste resource center in
582-20 the commission <department> and an office of waste minimization and
582-21 recycling;
582-22 (5) provision of supplemental funding to local
582-23 governments for the enforcement of this chapter, the Texas Litter
582-24 Abatement Act (Chapter 365), and Chapter 741, Acts of the 67th
582-25 Legislature, Regular Session, 1981 (Article 4477-9a, Vernon's Texas
582-26 Civil Statutes);
582-27 (6) conduct of a statewide public awareness program
583-1 concerning solid waste management;
583-2 (7) provision of supplemental funds for other state
583-3 agencies with responsibilities concerning solid waste management,
583-4 recycling, and other initiatives with the purpose of diverting
583-5 recyclable waste from landfills;
583-6 (8) conduct of research to promote the development and
583-7 stimulation of markets for recycled waste products;
583-8 (9) creation of a state municipal solid waste
583-9 superfund for:
583-10 (A) the cleanup of unauthorized tire dumps and
583-11 solid waste dumps for which a responsible party cannot be located
583-12 or is not immediately financially able to provide the cleanup; and
583-13 (B) the cleanup or proper closure of abandoned
583-14 or contaminated municipal solid waste sites for which a responsible
583-15 party is not immediately financially able to provide the cleanup;
583-16 (10) provision of funds to mitigate the economic and
583-17 environmental impacts of lead-acid battery recycling activities on
583-18 local governments;
583-19 (11) provision of funds for the conduct of research by
583-20 a public or private entity to assist the state in developing new
583-21 technologies and methods to reduce the amount of municipal waste
583-22 disposed of in landfills; and
583-23 (12) provision of funds for other programs that the
583-24 commission may consider appropriate to further the purposes of this
583-25 chapter.
583-26 SECTION 11.22. Sections 361.015, 361.0151, and 361.016,
583-27 Health and Safety Code, are amended to read as follows:
584-1 Sec. 361.015. <DEPARTMENT'S> JURISDICTION: RADIOACTIVE
584-2 WASTE. (a) The commission <department> is the state agency under
584-3 Chapter 401 that licenses and regulates radioactive waste disposal
584-4 activities not preemptively regulated by the federal government.
584-5 (b) The Texas Department of Health is the state agency under
584-6 Chapter 401 that regulates radioactive waste activities, excluding
584-7 disposal, not preemptively regulated by the federal government.
584-8 Sec. 361.0151. Recycling. (a) The commission <department>
584-9 shall establish and administer a waste minimization and recycling
584-10 office within the commission <department> that provides technical
584-11 assistance to local governments concerning waste minimization and
584-12 recycling.
584-13 (b) The commission <department> shall work in conjunction
584-14 with the Texas Department of Commerce to pursue the development of
584-15 markets for recycled materials, including composting products.
584-16 Sec. 361.016. Memorandum of Understanding by COMMISSION
584-17 <BOARD OF HEALTH>. The commission <board of health> by rule shall
584-18 adopt:
584-19 (1) any memorandum of understanding between the
584-20 commission <department> and any other state agency; and
584-21 (2) any revision of a memorandum of understanding.
584-22 SECTION 11.23. Sections 361.017(d) and (e), Health and
584-23 Safety Code, are amended to read as follows:
584-24 (d) In matters relating to industrial solid waste and
584-25 hazardous municipal waste <under the commission's jurisdiction>,
584-26 the commission shall <consult with>:
584-27 (1) consider <the department concerning> the public
585-1 health aspects and<;>
585-2 <(2) the Texas Air Control Board concerning> the air
585-3 pollution control and ambient air quality aspects; and
585-4 (2) consult with <(3)> the attorney general's office
585-5 for assistance in determining whether referral to the attorney
585-6 general for enforcement is mandatory under Section 361.224 or
585-7 whether referral is appropriate, in the commission's <agency's>
585-8 discretion, for the disposition of enforcement matters under this
585-9 chapter.
585-10 (e) If referral is determined to be mandatory or
585-11 appropriate, the commission <agency> shall consult with the
585-12 attorney general's office for assistance in determining whether
585-13 criminal or civil enforcement action should be taken. The
585-14 commission <agency> shall use all available enforcement options.
585-15 SECTION 11.24. Sections 361.018 and 361.019, Health and
585-16 Safety Code, are amended to read as follows:
585-17 Sec. 361.018. Commission's Jurisdiction Over Hazardous Waste
585-18 Components of Radioactive Waste. (a) The commission has the
585-19 powers under this chapter necessary or convenient to carry out its
585-20 responsibilities concerning the regulation of the management of
585-21 hazardous waste components of radioactive waste under the
585-22 <department's> jurisdiction of the Texas Department of Health.
585-23 (b) The commission shall consult with the Texas Department
585-24 of Health <department> concerning regulation and management under
585-25 this section, except for activities solely under the commission's
585-26 jurisdiction.
585-27 (c) The commission may not adopt rules or engage in
586-1 management activities under this section that conflict with state
586-2 or federal laws and rules concerning the regulation of radioactive
586-3 waste.
586-4 Sec. 361.019. Approval of Industrial Solid Waste Management
586-5 in Municipal Solid Waste Facility. (a) Except as provided by
586-6 Subsection (b), Class I nonhazardous industrial solid waste and
586-7 small quantities of hazardous waste generated by conditionally
586-8 exempt small quantity generators, as defined by the commission, may
586-9 be accepted in a municipal solid waste facility if:
586-10 (1) authorized in writing by, <or by rule of, the
586-11 department with the written approval of,> or by rule of, the
586-12 commission; and
586-13 (2) the generator of the Class I nonhazardous waste
586-14 certifies on an appropriate commission form that the waste is not a
586-15 hazardous waste.
586-16 (b) Except as otherwise prohibited by this chapter,
586-17 nonhazardous industrial solid waste generated by the mechanical
586-18 shredding of motor vehicles, appliances, or other items of scrap,
586-19 used, or obsolete metals shall be accepted, without authorization
586-20 by <the department or approval of> the commission under Subsection
586-21 (a), in a municipal solid waste facility that has previously been
586-22 authorized to accept and has accepted Class I nonhazardous
586-23 industrial solid wastes or Class II industrial solid wastes if the
586-24 waste contains no free liquids, is not a hazardous waste as defined
586-25 in Section 361.003, and satisfies other criteria that may be
586-26 established by commission rule. Until the commission adopts rules
586-27 establishing additional criteria, generators of this type of waste
587-1 shall satisfy the two criteria described in this subsection when
587-2 these wastes are disposed of in municipal solid waste facilities.
587-3 (c) Municipal solid <Solid> waste <under the department's
587-4 jurisdiction> may be accepted in an industrial solid waste facility
587-5 if authorized in writing by the commission <with the written
587-6 approval of the department>.
587-7 SECTION 11.25. Section 361.021(b), Health and Safety Code,
587-8 and Section 361.021(f), Health and Safety Code, as added by Section
587-9 21, Chapter 303, Acts of the 72nd Legislature, Regular Session,
587-10 1991, are amended to read as follows:
587-11 (b) The council is composed of the executive head, or the
587-12 executive head's designated representative, of <the following
587-13 agencies:>
587-14 <(1)> the commission and<;>
587-15 <(2) the department;>
587-16 <(3) the Texas Air Control Board; and>
587-17 <(4)> the Railroad Commission of Texas.
587-18 (f) The council shall assist the <department and the>
587-19 commission in preparing strategic state solid waste management
587-20 plans required by Section 361.020.
587-21 SECTION 11.26. Section 361.0211(a), Health and Safety Code,
587-22 is amended to read as follows:
587-23 (a) The commission<, the department, the Texas Air Control
587-24 Board,> and the Railroad Commission of Texas shall each designate
587-25 an individual to coordinate source reduction and waste minimization
587-26 efforts and programs in the appointing agency and represent the
587-27 agency on the pollution prevention council. The individual
588-1 designated shall report to that individual's executive director or
588-2 assistant or deputy director.
588-3 SECTION 11.27. Section 361.022(d), Health and Safety Code,
588-4 is amended to read as follows:
588-5 (d) In adopting rules to implement public policy concerning
588-6 municipal solid waste management, the commission <board of health>
588-7 shall consider the preference of municipal solid waste management
588-8 methods under this section.
588-9 SECTION 11.28. Section 361.0233, Health and Safety Code, is
588-10 amended to read as follows:
588-11 Sec. 361.0233. Assessment of Commercial Nonhazardous Solid
588-12 Waste Disposal Capacity. (a) Not later than March 1, 1996, the
588-13 commission <in consultation with the department> shall assess the
588-14 need for commercial nonhazardous solid waste disposal capacity in
588-15 the state. In making the assessment, the commission <and
588-16 department> shall consider the need for various technologies for
588-17 commercial nonhazardous waste disposal and shall evaluate the need
588-18 for disposal capacity on a technology-by-technology basis. The
588-19 commission <and the department> shall adopt rules based on the
588-20 assessment.
588-21 (b) In evaluating need and drafting rules under this
588-22 section, the commission <and department> shall consider:
588-23 (1) demand for nonhazardous waste capacity in the
588-24 state;
588-25 (2) permitted commercial hazardous waste capacity in
588-26 the state;
588-27 (3) permitted commercial nonhazardous waste capacity
589-1 in the state;
589-2 (4) anticipated waste reduction capability;
589-3 (5) potential increases in substances defined as
589-4 hazardous waste;
589-5 (6) the preferences established by Section 361.022;
589-6 (7) the effect of any rules adopted under this section
589-7 on the status of federal funds and any federally delegable
589-8 programs;
589-9 (8) research on new technology; and
589-10 (9) any other relevant information.
589-11 (c) The commission <and department> shall also consider:
589-12 (1) the continued viability of industrial solid waste
589-13 management in municipal solid waste facilities<,> under Section
589-14 361.019;
589-15 (2) the geographic location of all commercial disposal
589-16 facilities relative to the location of industrial solid waste
589-17 generators; and
589-18 (3) the risks associated with the transportation of
589-19 industrial solid waste to the facility.
589-20 SECTION 11.29. Section 361.0234, Health and Safety Code, as
589-21 amended by Section 5, Chapter 1044, and Section 7, Chapter 1045,
589-22 Acts of the 73rd Legislature, Regular Session, 1993, is reenacted
589-23 and amended to read as follows:
589-24 Sec. 361.0234. Rules; Update of Rules and Assessments. (a)
589-25 To expedite the consideration of permits for technologies that an
589-26 assessment prepared under Section 361.0232 or 361.0233 determines
589-27 to be most needed, the rules adopted by the commission <or
590-1 department> shall provide for a permitting process that encourages
590-2 the development of new and innovative disposal technologies, grants
590-3 preferences considering the hierarchies established by Sections
590-4 361.022 and 361.023, emphasizes waste reduction efforts, and
590-5 encourages applicants for permits for hazardous waste management
590-6 facilities to include recycling and recovery components where
590-7 appropriate.
590-8 (b) The commission <and department, as appropriate,> shall
590-9 update the assessments and related rules at least every two years.
590-10 In preparing an update of the assessment, the commission <and
590-11 department> shall consider source reduction and waste minimization
590-12 plans and reports submitted under Subchapter N.
590-13 (c) The assessments and rules adopted under this section and
590-14 Section 361.0232 may not be applied retroactively to any
590-15 application that was declared administratively and technically
590-16 complete and for which public hearings had commenced before June 7,
590-17 1991.
590-18 SECTION 11.30. Section 361.024(a), Health and Safety Code,
590-19 is amended to read as follows:
590-20 (a) The <board of health and the> commission may <each>
590-21 adopt rules consistent with this chapter and establish minimum
590-22 standards of operation for the management and control of <the>
590-23 solid waste under <their respective jurisdictions under> this
590-24 chapter.
590-25 SECTION 11.31. Section 361.026, Health and Safety Code, is
590-26 amended to read as follows:
590-27 Sec. 361.026. Assistance Provided by <DEPARTMENT AND>
591-1 Commission. <(a)> The <department and the> commission may
591-2 <individually or jointly>:
591-3 (1) provide educational, advisory, and technical
591-4 services concerning solid waste management to other state agencies,
591-5 regional planning agencies, local governments, special districts,
591-6 institutions, and individuals; and
591-7 (2) assist other state agencies, regional planning
591-8 agencies, local governments, special districts, and institutions in
591-9 acquiring federal grants for:
591-10 (A) the development of solid waste facilities
591-11 and management programs; and
591-12 (B) research to improve solid waste management.
591-13 <(b) The department or the commission individually may
591-14 engage in the programs and activities under this section only as
591-15 the participation by it concerns the management and control of the
591-16 solid waste under its jurisdiction.>
591-17 <(c) If the department and the commission do not participate
591-18 jointly, each shall coordinate efforts undertaken individually so
591-19 that separate but similar programs and activities are compatible.>
591-20 SECTION 11.32. Sections 361.027(a) and (c), Health and
591-21 Safety Code, are amended to read as follows:
591-22 (a) The <department and the> commission may <each>:
591-23 (1) develop a program to train solid waste technicians
591-24 to improve the competency of those technicians; and
591-25 (2) issue letters of competency.
591-26 (c) The <department and the> commission may <each>:
591-27 (1) prescribe standards of training required for the
592-1 program;
592-2 (2) determine the duration of the letter of
592-3 competency;
592-4 (3) award one or more categories of letters of
592-5 competency with each category reflecting a different degree of
592-6 training or skill;
592-7 (4) require a reasonable, nonrefundable fee, in an
592-8 amount determined from time to time by the commission <agency>, to
592-9 be paid by participants, deposited to the credit of the general
592-10 revenue fund, and used to administer the program;
592-11 (5) extend or renew letters of competency issued by
592-12 the commission <agency>; and
592-13 (6) withdraw a letter of competency for good cause,
592-14 which may include a violation of this chapter or a rule of the
592-15 commission <agency> concerning the technician's duties and
592-16 responsibilities.
592-17 SECTION 11.33. Section 361.029(a), Health and Safety Code,
592-18 is amended to read as follows:
592-19 (a) The <board of health and the> commission shall provide
592-20 by rule for interested persons to engage in activities that involve
592-21 the collection and disposal of household materials that could be
592-22 classified as hazardous waste.
592-23 SECTION 11.34. Sections 361.030 and 361.031, Health and
592-24 Safety Code, are amended to read as follows:
592-25 Sec. 361.030. Federal Funds. The <department or> commission
592-26 may <individually or jointly> accept funds from the federal
592-27 government for purposes concerning solid waste management and spend
593-1 money received from the federal government for those purposes in
593-2 the manner prescribed by law and in accordance with agreements as
593-3 are necessary and appropriate between the federal government and
593-4 the commission <agency>.
593-5 Sec. 361.031. Financial Assistance to Local Governments.
593-6 (a) The <department and the> commission may administer and spend
593-7 state funds provided to the commission <them> by legislative
593-8 appropriations, or otherwise, to make grants to local governments
593-9 for:
593-10 (1) solid waste planning;
593-11 (2) installation of solid waste facilities; and
593-12 (3) administration of solid waste programs.
593-13 (b) The grants made under this chapter shall be distributed
593-14 in a manner determined by the commission <state agency to which the
593-15 appropriation is made>.
593-16 (c) The amount of financial assistance granted by the state
593-17 through the <department or> commission to a local government under
593-18 this chapter must be matched by local government funds at least in
593-19 equal amounts.
593-20 SECTION 11.35. Sections 361.032(a) and (b), Health and
593-21 Safety Code, are amended to read as follows:
593-22 (a) The <department and the> commission is <are each>
593-23 authorized to inspect and approve solid waste facilities used or
593-24 proposed to be used to store, process, or dispose of the solid
593-25 waste under the commission's <agency's> jurisdiction.
593-26 (b) Agents or employees of the <department, the>
593-27 commission<,> or local governments have the right to enter at any
594-1 reasonable time public or private property in the governmental
594-2 entity's jurisdiction, including a municipality's extraterritorial
594-3 jurisdiction, to inspect and investigate conditions concerning
594-4 solid waste management and control.
594-5 SECTION 11.36. Section 361.039, Health and Safety Code, is
594-6 amended to read as follows:
594-7 Sec. 361.039. Construction of Other Laws. Except as
594-8 specifically provided by this chapter, this chapter does not
594-9 diminish or limit the authority of the <department, the>
594-10 commission, the Texas Department of Health, <Air Control Board,> or
594-11 a local government in performing the powers, functions, and duties
594-12 vested in those governmental entities by other law.
594-13 SECTION 11.37. Sections 361.061 and 361.062, Health and
594-14 Safety Code, are amended to read as follows:
594-15 Sec. 361.061. Permits; Solid Waste Facility. Except as
594-16 provided by Section 361.090 with respect to certain industrial
594-17 solid waste, <the department and> the commission may <each> require
594-18 and issue permits authorizing and governing the construction,
594-19 operation, and maintenance of the solid waste facilities used to
594-20 store, process, or dispose of <the> solid waste <over which it has
594-21 jurisdiction> under this chapter.
594-22 Sec. 361.062. Compatibility with County's Plan. (a) Before
594-23 the commission <department> issues a permit to construct, operate,
594-24 or maintain a solid waste facility to process, store, or dispose of
594-25 solid waste in a county that has a local solid waste management
594-26 plan approved by the commission <board of health> under Chapter 363
594-27 (Comprehensive Municipal Solid Waste Management, Resource Recovery,
595-1 and Conservation Act), the commission <department> must consider
595-2 whether the solid waste facility and the proposed site for the
595-3 facility are compatible with the county's approved local solid
595-4 waste management plan.
595-5 (b) Until a local solid waste management plan is approved by
595-6 the commission <board of health> and adopted by rule, the
595-7 commission <department> may not consider the plan and its contents
595-8 in the review of an application for a solid waste facility permit.
595-9 SECTION 11.38. Sections 361.063(a), (c), (d), and (j),
595-10 Health and Safety Code, are amended to read as follows:
595-11 (a) The <department and the> commission shall encourage
595-12 applicants for solid waste facilities <under the jurisdiction of
595-13 the department> or for hazardous waste management facilities to
595-14 enter into agreements with affected persons to resolve issues of
595-15 concern. During this process, persons are encouraged to identify
595-16 issues of concern and work with the applicant to resolve those
595-17 issues.
595-18 (c) If an applicant decides to participate in a local review
595-19 committee process, the applicant must file with the <department or>
595-20 commission<, as appropriate,> a notice of intent to file an
595-21 application, setting forth the proposed location and type of
595-22 hazardous waste management facility. A copy of the notice shall be
595-23 delivered to the county judge of the county in which the facility
595-24 is to be located. In addition, if the proposed facility is to be
595-25 located in a municipality or the extraterritorial jurisdiction of a
595-26 municipality, a copy of the notice shall be delivered to the mayor
595-27 of the municipality. The filing of the notice with the <department
596-1 or> commission<, as appropriate,> initiates the preapplication
596-2 review process.
596-3 (d) Not later than the 15th day after the date the notice of
596-4 intent is filed under Subsection (c), the local review committee
596-5 shall be appointed. The <board of health and> commission shall
596-6 adopt rules concerning the composition and appointment of a local
596-7 review committee.
596-8 (j) The applicant must submit the report required under
596-9 Subsection (i)(2) to the commission <agency> with its permit
596-10 application.
596-11 SECTION 11.39. Sections 361.0635, 361.064, and 361.0641,
596-12 Health and Safety Code, are amended to read as follows:
596-13 Sec. 361.0635. Preapplication Meeting. (a) If requested by
596-14 a person who intends to file a permit application <and with
596-15 approval of the agencies concerned, the department>, the
596-16 commission<, and the Texas Air Control Board> shall provide the
596-17 person an opportunity to meet <jointly> with one or more staff
596-18 members of <each of> the commission <agencies concerned> to discuss
596-19 the permit application that the person intends to file.
596-20 (b) The person must make the request in writing to the
596-21 commission <state agency with jurisdiction over the permit
596-22 application that the person intends to file, and that agency shall
596-23 coordinate a meeting held under this section>.
596-24 (c) A meeting under this section must be held before the
596-25 person files the permit application with the commission
596-26 <appropriate state agency>.
596-27 <(d) The department, the commission, and the Texas Air
597-1 Control Board shall enter into memoranda of understanding, as
597-2 necessary, to establish procedures and carry out this section.>
597-3 Sec. 361.064. Permit Application Form and Procedures. (a)
597-4 If the <department or the> commission exercises the power to issue
597-5 permits for solid waste facilities under this subchapter, the
597-6 commission <agency exercising the power>, to the extent not
597-7 otherwise provided by this subchapter, shall prescribe:
597-8 (1) the form of and reasonable requirements for the
597-9 permit application; and
597-10 (2) the procedures for processing the application.
597-11 (b) The commission <Each state agency with the authority to
597-12 permit a solid waste management facility> shall provide a thorough
597-13 and timely review of and a timely issuance or denial of any permit
597-14 application for a solid waste management facility.
597-15 Sec. 361.0641. Notice to State Senator and Representative.
597-16 On receiving an application for, or notice of intent to file an
597-17 application for, a permit to construct, operate, or maintain a
597-18 facility to store, process, or dispose of solid waste or hazardous
597-19 waste, the <department or> commission<, as appropriate,> shall send
597-20 notice of the application or the notice of intent to the state
597-21 senator and representative who represent the area in which the
597-22 facility is or will be located.
597-23 SECTION 11.40. Section 361.066(a), Health and Safety Code,
597-24 is amended to read as follows:
597-25 (a) An applicant must submit any portion of an application
597-26 that the <department or the> commission determines is necessary to
597-27 make the application administratively complete not later than the
598-1 270th day after the applicant receives notice from the <department
598-2 or the> commission that the additional information or material is
598-3 needed.
598-4 SECTION 11.41. Sections 361.0665(b), (c), and (d), Health
598-5 and Safety Code, are amended to read as follows:
598-6 (b) Notice must include:
598-7 (1) a description of the location or proposed location
598-8 of the facility;
598-9 (2) a statement that a person who may be affected by
598-10 the facility or proposed facility is entitled to request a hearing
598-11 from the commission <department>;
598-12 (3) the manner in which the commission <department>
598-13 may be contacted for further information; and
598-14 (4) any other information that the commission
598-15 <department> by rule requires.
598-16 (c) If a newspaper is not published in the county, the
598-17 notice must be published in a newspaper of general circulation in
598-18 the county in which the facility is located or proposed to be
598-19 located and in a newspaper of circulation in the immediate vicinity
598-20 in which the facility is located or proposed to be located as
598-21 defined by commission <department> rule.
598-22 (d) In addition, the commission <department> shall publish
598-23 notice in the Texas Register.
598-24 SECTION 11.42. Section 361.067, Health and Safety Code, is
598-25 amended to read as follows:
598-26 Sec. 361.067. Review of Permit Application by Other
598-27 Governmental Entities. (a) If the <department or the> commission
599-1 determines that a permit application submitted to it is
599-2 administratively complete, it shall mail a copy of the application
599-3 or a summary of its contents to:
599-4 (1) <the Texas Air Control Board;>
599-5 <(2) the other state agency;>
599-6 <(3)> the mayor and health authority of a municipality
599-7 in whose territorial limits or extraterritorial jurisdiction the
599-8 solid waste facility is located; and
599-9 (2) <(4)> the county judge and the health authority of
599-10 the county in which the facility is located.
599-11 (b) A governmental entity to whom the information is mailed
599-12 shall have a reasonable time, as prescribed by the commission
599-13 <state agency to which the application was originally submitted>,
599-14 to present comments and recommendations on the permit application
599-15 before the commission <agency> acts on the application.
599-16 SECTION 11.43. Section 361.068(a), Health and Safety Code,
599-17 is amended to read as follows:
599-18 (a) A permit application is administratively complete when:
599-19 (1) a complete permit application form and the report
599-20 and fees required to be submitted with a permit application have
599-21 been submitted to the <department or the> commission; and
599-22 (2) the permit application is ready for technical
599-23 review in accordance with the rules of the commission.
599-24 SECTION 11.44. Section 361.069, Health and Safety Code, is
599-25 amended to read as follows:
599-26 Sec. 361.069. Determination of Land Use Compatibility. The
599-27 <department or the> commission in its discretion may, in processing
600-1 a permit application, make a separate determination on the question
600-2 of land use compatibility, and, if the site location is acceptable,
600-3 may at another time consider other technical matters concerning the
600-4 application. A public hearing may be held for each determination
600-5 in accordance with Section 361.088. In making a determination on
600-6 the question of land use compatibility, the <department or the>
600-7 commission shall not consider the position of a state or federal
600-8 agency unless the position is fully supported by credible evidence
600-9 from that agency during the public hearing.
600-10 SECTION 11.45. Sections 361.079(a) and (c), Health and
600-11 Safety Code, are amended to read as follows:
600-12 (a) Except as provided by Sections 361.080(b) and
600-13 361.081(c), the <board of health and the> commission by rule shall
600-14 establish procedures for public notice and a public hearing under
600-15 Section 361.080 or 361.081.
600-16 (c) To improve the timeliness of notice to the public of a
600-17 public hearing under Section 361.080 or 361.081, public notice of
600-18 receipt of the permit application shall be provided at the time a
600-19 permit application is submitted to the <department or the>
600-20 commission.
600-21 SECTION 11.46. Section 361.0791(e), Health and Safety Code,
600-22 is amended to read as follows:
600-23 (e) If a meeting is required under Subsection (a), not less
600-24 than once each week during the three weeks preceding a public
600-25 meeting, the applicant shall publish notice of the meeting in the
600-26 newspaper of the largest general circulation that is published in
600-27 the county in which the proposed facility is to be located or, if
601-1 no newspaper is published in the county, in a newspaper of general
601-2 circulation in the county. The applicant shall provide the
601-3 commission<, department, or Texas Air Control Board, as
601-4 appropriate,> an affidavit certifying that the notice was given as
601-5 required by this section. Acceptance of the affidavit creates a
601-6 rebuttable presumption that the applicant has complied with this
601-7 section.
601-8 SECTION 11.47. Sections 361.081 and 361.083, Health and
601-9 Safety Code, are amended to read as follows:
601-10 Sec. 361.081. Notice of Hearing Concerning Application for a
601-11 Solid Waste Facility. (a) The <department or the> commission<,
601-12 whichever is appropriate,> shall require the applicant to mail
601-13 notice to each residential or business address located within
601-14 one-half mile of a new solid waste management facility and to each
601-15 owner of real property located within one-half mile of a new solid
601-16 waste management facility listed in the real property appraisal
601-17 records of the appraisal district in which the solid waste
601-18 management facility is sought to be permitted as of the date the
601-19 <department or> commission<, whichever is appropriate,> determines
601-20 the permit application is administratively complete. The notice
601-21 must be sent by mail and must be deposited with the United States
601-22 postal service not more than 45 days or less than 30 days before
601-23 the date of the hearing.
601-24 (b) The applicant must certify to the <department or>
601-25 commission that the mailings were deposited as required by
601-26 Subsection (a). Acceptance of the certification creates a
601-27 rebuttable presumption that the applicant has complied with this
602-1 section. Substantial compliance with the notice requirements of
602-2 Subsection (a) is sufficient for the commission to exercise
602-3 jurisdiction over an application for a solid waste facility.
602-4 (c) In addition to the requirements of Subsection (a), the
602-5 <department or> commission<, whichever is appropriate,> shall hold
602-6 a public meeting and the applicant shall give notice concerning the
602-7 application for a permit for a new hazardous waste management
602-8 facility as provided by Section 361.0791.
602-9 Sec. 361.083. Evidence of Notice of Hearing. (a) Before
602-10 the <department or the> commission may hear testimony in a
602-11 contested case, evidence must be placed in the record to show that
602-12 proper notice of the hearing was given to affected persons.
602-13 (b) If mailed notice to an affected person is required, the
602-14 <department,> commission<,> or other party to the hearing shall
602-15 place evidence in the record that notice was mailed to the affected
602-16 person's address as shown by the appropriate appraisal district
602-17 real property appraisal records at the time of the mailing.
602-18 (c) The affidavit of the <department or> commission employee
602-19 responsible for the mailing of the notice, attesting that the
602-20 notice was mailed to the address shown by the appraisal district
602-21 real property appraisal records at the time of mailing, is prima
602-22 facie evidence of proper mailing.
602-23 SECTION 11.48. Sections 361.084(a), (b), and (d), Health and
602-24 Safety Code, are amended to read as follows:
602-25 (a) The <board of health and the> commission <each> by rule
602-26 shall establish a procedure to prepare compliance summaries
602-27 relating to the applicant's solid waste management activities
603-1 <under each agency's jurisdiction>.
603-2 (b) The compliance summaries shall be made available to the
603-3 applicant and any interested person after the commission <lead
603-4 agency> has completed its technical review of the permit
603-5 application and before the issuance of the public notice concerning
603-6 an opportunity for a hearing on the permit application.
603-7 (d) The commission <agency> shall consider all evidence
603-8 admitted, including compliance history, in determining whether to
603-9 issue, amend, extend, or renew a permit.
603-10 SECTION 11.49. Sections 361.085(e), (f), (g), (h), (i), and
603-11 (j), Health and Safety Code, are amended to read as follows:
603-12 (e) The commission <An agency> may condition issuance,
603-13 amendment, extension, or renewal of a permit for a solid waste
603-14 facility, other than a solid waste facility for disposal of
603-15 hazardous waste, on the permit holder's executing a bond or giving
603-16 other financial assurance conditioned on the permit holder's
603-17 satisfactorily operating and closing the solid waste facility.
603-18 (f) The commission <agency to which the application is
603-19 submitted> shall require an assurance of financial responsibility
603-20 as may be necessary or desirable consistent with the degree and
603-21 duration of risks associated with the processing, storage, or
603-22 disposal of specified solid waste.
603-23 (g) Financial requirements established by the commission
603-24 <agency> must at a minimum be consistent with the federal
603-25 requirements established under the federal Solid Waste Disposal
603-26 Act, as amended by the Resource Conservation and Recovery Act of
603-27 1976, as amended (42 U.S.C. Section 6901 et seq.).
604-1 (h) The <department and the> commission may <each>:
604-2 (1) receive funds as the beneficiary of a financial
604-3 assurance arrangement established under this section for the proper
604-4 closure of a solid waste management facility; and
604-5 (2) spend the funds from the financial assurance
604-6 arrangement to close the facility.
604-7 (i) If liability insurance is required of an applicant, the
604-8 applicant may not use a claims made policy as security unless the
604-9 applicant places in escrow, as provided by the <department or>
604-10 commission, an amount sufficient to pay an additional year of
604-11 premiums for renewal of the policy by the state on notice of
604-12 termination of coverage.
604-13 (j) In addition to other forms of financial assurance
604-14 authorized by rules of the <board of health or> commission, the
604-15 commission <agency> may authorize the applicant to use a letter of
604-16 credit if the issuing institution or another institution that
604-17 guarantees payment under the letter is:
604-18 (1) a bank chartered by the state or the federal
604-19 government; and
604-20 (2) federally insured and its financial practices are
604-21 regulated by the state or the federal government.
604-22 SECTION 11.50. Section 361.0861, Health and Safety Code, is
604-23 amended to read as follows:
604-24 Sec. 361.0861. Separate Recycling Permit not Required.
604-25 (a) A permit holder or a municipal solid waste management facility
604-26 that has or plans to have a recycling or waste separation facility
604-27 established in conjunction with the permitted municipal solid waste
605-1 management facility is not required to obtain for that recycling or
605-2 waste separation facility a separate permit from the commission
605-3 <department> or to apply for an amendment to an existing permit
605-4 issued by the commission <department>.
605-5 (b) A facility to which this section applies must register
605-6 with the commission <department> in accordance with commission
605-7 <board of health> rules and comply with commission <board of
605-8 health> rules adopted under this chapter.
605-9 (c) If a permit is otherwise required, the commission
605-10 <department> shall expedite the permit proceeding if the applicant
605-11 is seeking a permit for a solid waste management facility that
605-12 employs an innovative, high technology method of waste disposition
605-13 and recycling.
605-14 SECTION 11.51. Sections 361.088(a), (c), and (d), Health and
605-15 Safety Code, are amended to read as follows:
605-16 (a) The <department or the> commission may amend, extend, or
605-17 renew a permit it issues in accordance with reasonable procedures
605-18 prescribed by the <department or> commission<, as appropriate>.
605-19 (c) Before a permit is issued, amended, extended, or
605-20 renewed, the commission <agency to which the application is
605-21 submitted> shall provide an opportunity for a hearing to the
605-22 applicant and persons affected. The commission <agency> may also
605-23 hold a hearing on its own motion.
605-24 (d) In addition to providing an opportunity for a hearing
605-25 held under this section, the <department or the> commission shall
605-26 hold a public meeting and give notice as provided by Section
605-27 361.0791.
606-1 SECTION 11.52. Sections 361.089(a), (b), (c), (d), (e), and
606-2 (f), Health and Safety Code, are amended to read as follows:
606-3 (a) The <department or> commission may, for good cause,
606-4 deny, amend, or revoke a permit it issues or has authority to issue
606-5 for reasons pertaining to public health, air or water pollution, or
606-6 land use, or for a violation of this chapter or other applicable
606-7 laws or rules controlling the management of solid waste.
606-8 (b) Except as provided by Section 361.110, the <department
606-9 or> commission shall notify each governmental entity listed under
606-10 Section 361.067 and provide an opportunity for a hearing to the
606-11 permit holder or applicant and persons affected. The <department
606-12 or> commission may also hold a hearing on its own motion.
606-13 (c) The <board of health and the> commission by rule shall
606-14 establish procedures for public notice and any public hearing under
606-15 this section.
606-16 (d) Hearings under this section shall be conducted in
606-17 accordance with the hearing rules adopted by the <department or>
606-18 commission and the applicable provisions of Chapter 2001,
606-19 Government Code <the Administrative Procedure and Texas Register
606-20 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
606-21 (e) The <department or> commission may deny, suspend for not
606-22 more than 90 days, or revoke an original or renewal permit if it is
606-23 found, after notice and hearing, that:
606-24 (1) the permit holder has a record of environmental
606-25 violations in the preceding five years at the permitted site;
606-26 (2) the applicant has a record of environmental
606-27 violations in the preceding five years at any site owned, operated,
607-1 or controlled by the applicant;
607-2 (3) the permit holder or applicant made a false or
607-3 misleading statement in connection with an original or renewal
607-4 application, either in the formal application or in any other
607-5 written instrument relating to the application submitted to the
607-6 commission <agency>, its officers, or its employees;
607-7 (4) the permit holder or applicant is indebted to the
607-8 state for fees, payment of penalties, or taxes imposed by this
607-9 title or by a rule of the commission <agency>; or
607-10 (5) the permit holder or applicant is unable to ensure
607-11 that the management of the hazardous waste management facility
607-12 conforms or will conform to this title and the rules of the
607-13 commission <agency>.
607-14 (f) Before denying, suspending, or revoking a permit under
607-15 this section, the <department or> commission must find:
607-16 (1) that a violation or violations are significant and
607-17 that the permit holder or applicant has not made a substantial
607-18 attempt to correct the violations; or
607-19 (2) that the permit holder or applicant is indebted to
607-20 the state for fees, payment of penalties, or taxes imposed by this
607-21 title or by a rule of the commission <agency>.
607-22 SECTION 11.53. Sections 361.091(a), (b), (c), (d), (e), (g),
607-23 (h), (i), and (l), Health and Safety Code, are amended to read as
607-24 follows:
607-25 (a) A municipal solid waste site or operation permitted as a
607-26 Type IV landfill may not accept solid waste that is in a completely
607-27 enclosed container or enclosed vehicle unless:
608-1 (1) the solid waste is transported on a route approved
608-2 by the commission <department> and designed to eliminate
608-3 putrescible, hazardous, or infectious waste;
608-4 (2) the solid waste is delivered to the site or
608-5 operation on a date and time designated and approved by the
608-6 commission <department> to eliminate putrescible, hazardous, or
608-7 infectious waste;
608-8 (3) the transporter possesses a special permit issued
608-9 by the commission <department> that includes the approved route,
608-10 date, and time; and
608-11 (4) a commission <department> inspector is present to
608-12 verify that the solid waste is free of putrescible, hazardous, or
608-13 infectious waste.
608-14 (b) The commission <department> may issue the special permit
608-15 under this section and charge a reasonable fee to cover the costs
608-16 of the permit. The commission <board of health> may adopt rules of
608-17 procedure necessary to carry out the permit program.
608-18 (c) The commission <department> may employ one or more
608-19 inspectors and other employees necessary to inspect and determine
608-20 if Type IV landfills are free of putrescible, hazardous, or
608-21 infectious waste. The commission <department> shall pay the
608-22 compensation and expenses of inspectors and other necessary
608-23 employees employed under this subsection, but the holders of Type
608-24 IV landfill permits shall reimburse the commission <department> for
608-25 the compensation and expenses as provided by this section.
608-26 (d) The commission <department> shall notify each holder of
608-27 a Type IV landfill permit of the compensation and expenses that are
609-1 required annually for the inspection of the landfills.
609-2 (e) The commission <department> shall hold a public hearing
609-3 to determine the apportionment of the administration costs of the
609-4 inspection program among the holders of Type IV landfill permits.
609-5 After the hearing, the commission <department> shall equitably
609-6 apportion the costs of the inspection program and issue an order
609-7 assessing the annual costs against each permit holder. The
609-8 commission <department> may provide for payments in installments
609-9 and shall specify the date by which each payment must be made to
609-10 the commission <department>.
609-11 (g) The commission's <department's> order assessing costs is
609-12 effective until the commission <department>:
609-13 (1) modifies, revokes, or supersedes an order
609-14 assessing costs with a subsequent order; or
609-15 (2) issues supplementary orders applicable to new Type
609-16 IV landfill permits.
609-17 (h) The commission <board of health> may adopt rules
609-18 necessary to carry out this section.
609-19 (i) An operator of a solid waste facility or a solid waste
609-20 hauler commits an offense if the operator or hauler disposes of
609-21 solid waste in a completely enclosed container or vehicle at a
609-22 solid waste site or operation permitted as a Type IV landfill:
609-23 (1) without having in possession the special permit
609-24 required by this section;
609-25 (2) on a date or time not authorized by the commission
609-26 <department>; or
609-27 (3) without a commission <department> inspector
610-1 present to verify that the solid waste is free of putrescible,
610-2 hazardous, and infectious waste.
610-3 (l) This section does not apply to:
610-4 (1) a stationary compactor that is at a specific
610-5 location and that has an annual permit under this section issued by
610-6 the commission <department>, on certification to the commission
610-7 <department> by the generator that the contents of the compactor
610-8 are free of putrescible, hazardous, or infectious waste; or
610-9 (2) an enclosed vehicle of a municipality if the
610-10 vehicle has a permit issued by the commission <department> to
610-11 transport brush or construction-demolition waste and rubbish on
610-12 designated dates, on certification by the municipality to the
610-13 commission <department> that the contents of the vehicle are free
610-14 of putrescible, hazardous, or infectious waste.
610-15 SECTION 11.54. Sections 361.092 and 361.094, Health and
610-16 Safety Code, are amended to read as follows:
610-17 Sec. 361.092. Permit for Extracting Materials From Certain
610-18 Solid Waste Facilities. (a) The <department and the> commission
610-19 may <each> require a permit to extract materials for energy and
610-20 material recovery and for gas recovery from closed or inactive
610-21 portions of a solid waste facility that has been used for disposal
610-22 of municipal or industrial solid waste.
610-23 (b) The <department or the> commission shall issue a permit
610-24 under this section in the same manner as provided by this
610-25 subchapter for issuance of a permit to operate and maintain a solid
610-26 waste facility.
610-27 (c) The commission <Each agency> shall adopt standards
611-1 necessary to ensure that the integrity of a solid waste facility is
611-2 maintained.
611-3 Sec. 361.094. Permit Holder Exempt From Local License
611-4 Requirements. If a permit is issued, amended, renewed, or extended
611-5 by the <department or the> commission in accordance with this
611-6 subchapter, the solid waste facility owner or operator does not
611-7 need to obtain a license for the same facility from a political
611-8 subdivision under Section 361.165 or from a county.
611-9 SECTION 11.55. Sections 361.102(a), (b), and (d), Health and
611-10 Safety Code, are amended to read as follows:
611-11 (a) Except as provided by Subsections (b) and (c), the
611-12 commission <and the Texas Air Control Board> by rule shall prohibit
611-13 the issuance of a permit for a new hazardous waste landfill or land
611-14 treatment facility or the areal expansion of such a facility if the
611-15 boundary of the landfill or land treatment facility is to be
611-16 located within 1,000 feet of an established residence, church,
611-17 school, day care center, surface water body used for a public
611-18 drinking water supply, or dedicated public park.
611-19 (b) The commission <and the Texas Air Control Board> by rule
611-20 shall prohibit the issuance of a permit for a new commercial
611-21 hazardous waste management facility or the subsequent areal
611-22 expansion of such a facility or unit of that facility if the
611-23 boundary of the unit is to be located within one-half of a mile
611-24 (2,640 feet) of an established residence, church, school, day care
611-25 center, surface water body used for a public drinking water supply,
611-26 or dedicated public park.
611-27 (d) The commission <and the Texas Air Control Board> by rule
612-1 shall prohibit the issuance of a permit for a new commercial
612-2 hazardous waste management facility that is proposed to be located
612-3 at a distance greater than one-half mile (2,640 feet) from an
612-4 established residence, church, school, day care center, surface
612-5 water body used for a public drinking water supply, or dedicated
612-6 park, unless the applicant demonstrates that the facility will be
612-7 operated so as to safeguard public health and welfare and protect
612-8 physical property and the environment, at any distance beyond the
612-9 facility's property boundaries, consistent with the purposes of
612-10 this chapter.
612-11 SECTION 11.56. Section 361.112, Health and Safety Code, as
612-12 amended by Section 3, Chapter 303, and Section 3, Chapter 370, Acts
612-13 of the 72nd Legislature, Regular Session, 1991, is reenacted and
612-14 amended to read as follows:
612-15 Sec. 361.112. Storage, Transportation, and Disposal of Used
612-16 or Scrap Tires. (a) A person may not store more than 500 used or
612-17 scrap tires for any period on any publicly or privately owned
612-18 property unless the person registers the storage site with the
612-19 commission <department>. This subsection does not apply to the
612-20 storage, protection, or production of agricultural commodities.
612-21 (b) The commission <department> may register a site to store
612-22 more than 500 used or scrap tires.
612-23 (c) A person may not dispose of used or scrap tires in a
612-24 facility that is not permitted by the commission <department> for
612-25 that purpose.
612-26 (d) The commission <department> may issue a permit for a
612-27 facility for the disposal of used or scrap tires.
613-1 (e) The commission <board of health> by rule shall adopt
613-2 application forms and procedures for the registration and
613-3 permitting processes authorized under this section.
613-4 (f) A person may not store more than 500 used or scrap tires
613-5 or dispose of any quantity of used or scrap tires unless the tires
613-6 are shredded, split, or quartered as provided by commission <board
613-7 of health> rule. The commission <department> may grant an
613-8 exception to this requirement if the commission <department> finds
613-9 that circumstances warrant the exception. The prohibition provided
613-10 by this subsection does not apply to a person who, for eventual
613-11 recycling, reuse, or energy recovery, temporarily stores scrap
613-12 tires in a designated recycling collection area at a landfill
613-13 permitted by the commission <or the department> or licensed by a
613-14 county or by a political subdivision exercising the authority
613-15 granted by Section 361.165.
613-16 (g) The commission <department> shall require a person who
613-17 transports used or scrap tires for storage or disposal to maintain
613-18 records and use a manifest or other appropriate system to assure
613-19 that those tires are transported to a storage site that is
613-20 registered or to a disposal facility that is permitted under this
613-21 section for that purpose.
613-22 (h) The commission <department> may amend, extend, transfer,
613-23 or renew a permit issued under this section as provided by this
613-24 chapter and commission <board of health> rule.
613-25 (i) The notice and hearing procedures provided by this
613-26 subchapter apply to a permit issued, amended, extended, or renewed
613-27 under this section.
614-1 (j) The commission <department> may, for good cause, revoke
614-2 or amend a permit it issues under this section for reasons
614-3 concerning public health, air or water pollution, land use, or
614-4 violation of this section as provided by Section 361.089.
614-5 (k) The commission <department> may not register or issue a
614-6 permit to a facility required by Section 361.479 to provide
614-7 evidence of financial responsibility unless the facility has
614-8 complied with that section.
614-9 (l) In this section, "scrap tire" means a tire that can no
614-10 longer be used for its original intended purpose.
614-11 (m) The commission may adopt rules to regulate the storage
614-12 of scrap or shredded tires that are stored at a marine dock, rail
614-13 yard, or trucking facility for more than 30 days.
614-14 SECTION 11.57. Sections 361.151(b) and (c), Health and
614-15 Safety Code, are amended to read as follows:
614-16 (b) The exercise of the licensing authority and other powers
614-17 granted to a county by this chapter does not preclude the
614-18 <department or the> commission from exercising the powers vested in
614-19 the <department or the> commission under other provisions of this
614-20 chapter, including the provisions authorizing the <department and
614-21 the> commission to issue a permit to construct, operate, and
614-22 maintain a facility to process, store, or dispose of solid waste.
614-23 (c) The <department and the> commission, <each acting within
614-24 its separate scope of jurisdiction,> by specific action or
614-25 directive, may supersede any authority granted to or exercised by a
614-26 county under this chapter.
614-27 SECTION 11.58. Section 361.153(b), Health and Safety Code,
615-1 is amended to read as follows:
615-2 (b) As sufficient funds are made available by the commission
615-3 <department>, a county shall develop county solid waste plans and
615-4 coordinate those plans with the plans of:
615-5 (1) local governments, regional planning agencies, and
615-6 other governmental entities, <and the department,> as prescribed by
615-7 Subchapter D, Chapter 363; and
615-8 (2) the commission.
615-9 SECTION 11.59. Section 361.154(b), Health and Safety Code,
615-10 is amended to read as follows:
615-11 (b) If a county exercises licensing authority, it shall
615-12 adopt and enforce rules for the management of solid waste. The
615-13 rules must be:
615-14 (1) compatible with and not less stringent than those
615-15 of the <board of health or the> commission<, as appropriate>; and
615-16 (2) approved by the <department or the> commission<,
615-17 as appropriate>.
615-18 SECTION 11.60. Section 361.155, Health and Safety Code, is
615-19 amended to read as follows:
615-20 Sec. 361.155. County Notification of License Application to
615-21 COMMISSION <STATE AGENCIES>. The county shall mail a copy of each
615-22 license application with pertinent supporting data to the
615-23 <department, the> commission<, and the Texas Air Control Board>.
615-24 The commission <Each agency> has at least 60 days to submit
615-25 comments and recommendations on the license application before the
615-26 county may act on the application unless that privilege is waived
615-27 by the commission <affected agency>.
616-1 SECTION 11.61. Section 361.159(c), Health and Safety Code,
616-2 is amended to read as follows:
616-3 (c) A license for the use of a facility to process, store,
616-4 or dispose of solid waste may not be issued, amended, renewed, or
616-5 extended without the prior approval of the <department or the>
616-6 commission<, as appropriate>.
616-7 SECTION 11.62. Sections 361.160, 361.161, and 361.164,
616-8 Health and Safety Code, are amended to read as follows:
616-9 Sec. 361.160. License Amendment and Revocation. (a) A
616-10 county may, for good cause, after hearing with notice to the
616-11 license holder and to the commission <state agencies specified by
616-12 Section 361.155>, revoke or amend a license it issues for reasons
616-13 concerning:
616-14 (1) public health;
616-15 (2) air or water pollution;
616-16 (3) land use; or
616-17 (4) a violation of this chapter or of other applicable
616-18 laws or rules controlling the processing, storage, or disposal of
616-19 solid waste.
616-20 (b) For similar reasons, the <department and the>
616-21 commission<, each acting within its separate scope of
616-22 jurisdiction,> may for good cause amend or revoke a license issued
616-23 by a county, after hearing with notice to:
616-24 (1) the license holder; and
616-25 (2) the county that issued the license<; and>
616-26 <(3) the other state agencies specified by Section
616-27 361.155>.
617-1 Sec. 361.161. Permit From <DEPARTMENT OR> Commission Not
617-2 Required. If a county issues, amends, renews, or extends a license
617-3 in accordance with Sections 361.154-361.160, the owner or operator
617-4 of the facility is not required to obtain a permit from the
617-5 <department or the> commission for the same facility.
617-6 Sec. 361.164. Enforcement. A county may enforce this
617-7 chapter and the rules adopted by <the board of health and> the
617-8 commission concerning the management of solid waste.
617-9 SECTION 11.63. Sections 361.223(a) and (b), Health and
617-10 Safety Code, are amended to read as follows:
617-11 (a) A person may not cause, suffer, allow, or permit the
617-12 collection, storage, handling, transportation, processing, or
617-13 disposal of solid waste or the use or operation of a solid waste
617-14 facility to store, process, or dispose of solid waste or to extract
617-15 materials under Section 361.092 in violation of this chapter or a
617-16 rule, permit, license, or other order of the <department or>
617-17 commission<,> or a county or a political subdivision exercising the
617-18 authority granted by Section 361.165 in whose jurisdiction the
617-19 violation occurs.
617-20 (b) Any person who violates any provision of this chapter or
617-21 any rule, permit, license, or order of the <department or>
617-22 commission<,> or a county or a political subdivision exercising the
617-23 authority granted by Section 361.165 in whose jurisdiction the
617-24 violation occurs is subject to a civil penalty of not less than
617-25 $100 or more than $25,000 for each act of violation and for each
617-26 day of violation, as the court may deem proper, to be recovered in
617-27 the manner provided by this section.
618-1 SECTION 11.64. Sections 361.224(a), (b), (c), and (e),
618-2 Health and Safety Code, are amended to read as follows:
618-3 (a) If it appears that a person has violated, is violating,
618-4 or is threatening to violate any provision of this chapter or of
618-5 any rule, permit, or other order of the <department or> commission,
618-6 the <department or the> commission may request a civil suit to be
618-7 brought in a district court for:
618-8 (1) injunctive relief to restrain the person from
618-9 continuing the violation or threat of violation;
618-10 (2) the assessment and recovery of a civil penalty as
618-11 provided by this subchapter, as the court may consider proper; or
618-12 (3) both the injunctive relief and civil penalty.
618-13 (b) At the request of the <commissioner or the> executive
618-14 director, the attorney general shall bring and conduct the suit in
618-15 the name of the state.
618-16 (c) The <commissioner or the> executive director shall refer
618-17 matters to the attorney general's office for enforcement through
618-18 civil suit if a person:
618-19 (1) is alleged to be operating a new facility without
618-20 a permit in violation of state law; or
618-21 (2) has been the subject of two or more finally issued
618-22 administrative penalty orders under this chapter for violations
618-23 occurring at the same facility within two years immediately before
618-24 the first alleged violation currently under investigation at that
618-25 facility.
618-26 (e) Even though the criteria of Subsection (c) are met, the
618-27 attorney general's office and the executive director may agree to
619-1 resolve any of the alleged violations, before or after referral, by
619-2 administrative order issued by the commission <appropriate
619-3 regulatory agency> with the approval of the attorney general.
619-4 SECTION 11.65. Sections 361.225, 361.226, 361.228, and
619-5 361.229, Health and Safety Code, are amended to read as follows:
619-6 Sec. 361.225. Suit by County or Political Subdivision. If
619-7 it appears that a violation or threat of violation of any provision
619-8 of this chapter or any rule, permit, license, or other order of the
619-9 <department, the> commission, a county, or a political subdivision
619-10 exercising the authority granted by Section 361.165 has occurred or
619-11 is occurring in the jurisdiction of that county or political
619-12 subdivision, the county or political subdivision, in the same
619-13 manner as the commission <and the department>, may institute a
619-14 civil suit in a district court by its own attorney for the
619-15 injunctive relief or civil penalty, or both, as authorized by
619-16 Section 361.224, against the person who committed, is committing,
619-17 or is threatening to commit the violation.
619-18 Sec. 361.226. Suit by Municipality. If it appears that a
619-19 violation or threat of violation of any provision of this chapter
619-20 or any rule, permit, license, or other order of the <department,
619-21 the> commission, a county, or a political subdivision exercising
619-22 the authority granted by Section 361.165 has occurred or is
619-23 occurring in a municipality or its extraterritorial jurisdiction,
619-24 or is causing or will cause injury to or an adverse effect on the
619-25 health, welfare, or physical property of the municipality or its
619-26 inhabitants, the municipality, in the same manner as the
619-27 <department and the> commission, may institute a civil suit in a
620-1 district court by its own attorney for the injunctive relief or
620-2 civil penalty, or both, as authorized by Section 361.224, against
620-3 the person who committed, is committing, or is threatening to
620-4 commit the violation.
620-5 Sec. 361.228. Injunction. (a) On application for
620-6 injunctive relief and a finding that a person is violating or
620-7 threatening to violate any provision of this chapter or of any
620-8 rule, permit, or other order of the <department or the> commission,
620-9 the district court shall grant appropriate injunctive relief.
620-10 (b) In a suit brought to enjoin a violation or threat of
620-11 violation of this chapter or of any rule, permit, license, or order
620-12 of the <department, the> commission, a county, or a political
620-13 subdivision exercising the authority granted by Section 361.165,
620-14 the court may grant any prohibitory or mandatory injunction
620-15 warranted by the facts, including a temporary restraining order
620-16 after notice and hearing, a temporary injunction, and a permanent
620-17 injunction. The court shall grant injunctive relief without bond
620-18 or other undertaking by the governmental entity.
620-19 Sec. 361.229. PARTY <PARTIES> in Suit by Local Government.
620-20 In a suit brought by a local government under Section 361.225 or
620-21 361.226, the <department and the> commission is a <are> necessary
620-22 and indispensable party <parties>.
620-23 SECTION 11.66. Section 361.251, Health and Safety Code, is
620-24 amended to read as follows:
620-25 Sec. 361.251. Administrative Penalty by COMMISSION
620-26 <DEPARTMENT>. (a) The commission <department> may assess a civil
620-27 penalty against a person as provided by this section if:
621-1 (1) the person violates:
621-2 (A) a provision of this chapter that is under
621-3 the commission's <department's> jurisdiction;
621-4 (B) a rule adopted by the commission <board of
621-5 health>; or
621-6 (C) an order, license, or permit issued by the
621-7 commission <department> under this chapter; and
621-8 (2) no county, political subdivision, or municipality
621-9 has instituted a lawsuit and is diligently prosecuting that lawsuit
621-10 under Section 361.225 or 361.226 against the same person for the
621-11 same violation.
621-12 (b) The amount of the penalty may not exceed $10,000 a day
621-13 for a person who violates this chapter or a rule, order, license,
621-14 or permit issued under this chapter. Each day a violation
621-15 continues may be considered a separate violation.
621-16 (c) In determining the amount of the penalty, the commission
621-17 <department> shall consider:
621-18 (1) the seriousness of the violation, including the
621-19 nature, circumstances, extent, and gravity of the prohibited act
621-20 and the hazard or potential hazard created to the health or safety
621-21 of the public;
621-22 (2) the history of previous violations;
621-23 (3) the amount necessary to deter future violations;
621-24 (4) efforts to correct the violation; and
621-25 (5) any other matters that justice may require.
621-26 (d) If, after examination of a possible violation and the
621-27 facts surrounding that possible violation, the commission
622-1 <department> concludes that a violation has occurred, the
622-2 commission <department> may issue a preliminary report:
622-3 (1) stating the facts that support the conclusion;
622-4 (2) recommending that a civil penalty under this
622-5 section be imposed; and
622-6 (3) recommending the amount of the penalty, which
622-7 shall be based on the seriousness of the violation as determined
622-8 from the facts surrounding the violation.
622-9 (e) Not later than the 10th day after the date on which the
622-10 report is issued, the commission <department> shall give written
622-11 notice of the report to the person charged with the violation. The
622-12 notice must include:
622-13 (1) a brief summary of the charges;
622-14 (2) a statement of the amount of the penalty
622-15 recommended; and
622-16 (3) a statement of the right of the person charged to
622-17 a hearing on the occurrence of the violation, the amount of the
622-18 penalty, or both.
622-19 (f) Not later than the 20th day after the date on which
622-20 notice is sent, the person charged may give to the executive
622-21 director <commissioner> written consent to the commission's
622-22 <department's> report, including the recommended penalty, or make a
622-23 written request for a hearing.
622-24 (g) If the person charged with the violation consents to the
622-25 penalty recommended by the executive director <commissioner> or
622-26 does not timely respond to the notice, the executive director
622-27 <commissioner> or the executive director's <commissioner's>
623-1 designee by order shall assess the penalty or order a hearing to be
623-2 held on the findings and recommendations in the commission's
623-3 <department's> report. If the executive director <commissioner> or
623-4 the executive director's <commissioner's> designee assesses the
623-5 penalty, the commission <department> shall give written notice to
623-6 the person charged of the decision and the person shall pay the
623-7 penalty.
623-8 (h) If the person charged requests or the executive director
623-9 <commissioner> orders a hearing, the executive director
623-10 <commissioner> shall order and shall give notice of the hearing.
623-11 (i) The hearing shall be held by a hearing examiner
623-12 designated by the executive director <commissioner>.
623-13 (j) The hearing examiner shall make findings of fact and
623-14 promptly issue to the executive director <commissioner> a written
623-15 decision as to the occurrence of the violation and a recommendation
623-16 of the amount of the proposed penalty if a penalty is warranted.
623-17 (k) Based on the findings of fact and the recommendations of
623-18 the hearing examiner, the executive director <commissioner> by
623-19 order may find that a violation has occurred and assess a civil
623-20 penalty or may find that no violation occurred.
623-21 (l) All proceedings under Subsections (h)-(k) are subject to
623-22 Chapter 2001, Government Code <the Administrative Procedure and
623-23 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
623-24 Statutes)>.
623-25 (m) The executive director <commissioner> shall give notice
623-26 of the executive director's <commissioner's> decision to the person
623-27 charged, and if the executive director <commissioner> finds that a
624-1 violation has occurred and assesses a civil penalty, the executive
624-2 director <commissioner> shall give written notice to the person
624-3 charged of:
624-4 (1) the executive director's <commissioner's>
624-5 findings;
624-6 (2) the amount of the penalty; and
624-7 (3) the person's right to judicial review of the
624-8 executive director's <commissioner's> order.
624-9 (n) Not later than the 30th day after the date on which the
624-10 executive director's <commissioner's> order is final, the person
624-11 charged with the penalty shall pay the penalty in full or file a
624-12 petition for judicial review.
624-13 (o) If the person seeks judicial review of the fact of the
624-14 violation, the amount of the penalty, or both, the person, within
624-15 the time provided by Subsection (n), shall:
624-16 (1) send the amount of the penalty to the executive
624-17 director <commissioner> for placement in an escrow account; or
624-18 (2) post with the executive director <commissioner> a
624-19 supersedeas bond in a form approved by the executive director
624-20 <commissioner> for the amount of the penalty, the bond to be
624-21 effective until judicial review of the order or decision is final.
624-22 (p) <A person who fails to comply with Subsection (o) waives
624-23 the right to judicial review, and the commissioner may refer the
624-24 matter to the attorney general for enforcement.>
624-25 <(q)> Judicial review of the order or decision of the
624-26 executive director <commissioner> assessing the penalty shall be
624-27 under Chapter 2001, Government Code <Section 19, Administrative
625-1 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
625-2 Civil Statutes)>.
625-3 (q) <(r)> If the penalty is reduced or not assessed, the
625-4 executive director <commissioner> shall:
625-5 (1) remit to the person charged the appropriate amount
625-6 of any penalty payment plus accrued interest; or
625-7 (2) execute a release of the bond if a supersedeas
625-8 bond has been posted.
625-9 (r) <(s)> The accrued interest on amounts remitted by the
625-10 executive director <commissioner> shall be paid:
625-11 (1) at a rate equal to the rate charged on loans to
625-12 depository institutions by the New York Federal Reserve Bank; and
625-13 (2) for the period beginning on the date the penalty
625-14 is paid to the executive director <commissioner> under Subsection
625-15 (o) and ending on the date the penalty is remitted.
625-16 (s) <(t)> A penalty collected under this section shall be
625-17 deposited to the credit of the general revenue fund.
625-18 (t) <(u)> The commission <department> may compromise,
625-19 modify, or remit, with or without conditions, a civil penalty
625-20 imposed under this section. In determining the appropriate amount
625-21 of a civil penalty for settlement of an administrative enforcement
625-22 matter, the commission <department>, in its discretion, may
625-23 consider the willingness of a respondent to contribute to
625-24 supplemental environmental projects that are approved by the
625-25 commission <department>, giving preference to those projects that
625-26 benefit the community in which the alleged violation occurred. In
625-27 this subsection, "supplemental environmental project" means a
626-1 project that prevents pollution, reduces the amount of pollutants
626-2 reaching the environment, enhances the quality of the environment,
626-3 or contributes to public awareness of environmental matters. The
626-4 term does not include projects that are necessary to bring the
626-5 respondent into compliance with environmental laws or that are
626-6 necessary to remediate the environmental harm caused by the alleged
626-7 violation.
626-8 SECTION 11.67. Section 361.271(c), Health and Safety Code,
626-9 is amended to read as follows:
626-10 (c) A political subdivision that is in a county with a
626-11 population of 2.4 million or more or is in a county adjacent to a
626-12 county with a population of 2.4 million or more and that builds or
626-13 installs a drainage project on a site of a solid waste facility is
626-14 not a person responsible for solid waste released or threatened to
626-15 be released from the facility or at a site of the facility if:
626-16 (1) the political subdivision acquired ownership or
626-17 control of the facility or site through bankruptcy, tax
626-18 delinquency, abandonment, or other circumstances in which the
626-19 subdivision involuntarily acquired title to the facility or site by
626-20 virtue of the subdivision's function as sovereign; and
626-21 (2) the plans for the drainage project have been
626-22 submitted to and reviewed by the commission <Texas Water
626-23 Commission>.
626-24 SECTION 11.68. Section 361.272(a), Health and Safety Code,
626-25 is amended to read as follows:
626-26 (a) The <department or the> commission<, as appropriate,>
626-27 may issue an administrative order to a person responsible for solid
627-1 waste if it appears that there is an actual or threatened release
627-2 of solid waste that presents an imminent and substantial
627-3 endangerment to the public health and safety or the environment:
627-4 (1) from a solid waste facility at which solid waste
627-5 is stored, processed, or disposed of; or
627-6 (2) at any site at which one or more of those
627-7 activities concerning solid waste have been conducted in the past,
627-8 regardless of whether the activity was lawful at the time.
627-9 SECTION 11.69. Sections 361.273 and 361.274, Health and
627-10 Safety Code, are amended to read as follows:
627-11 Sec. 361.273. Injunction as Alternative to Administrative
627-12 Order. The <department or> commission<, as appropriate,> may cause
627-13 a civil suit for injunctive relief to be brought in a district
627-14 court in the county in which the actual release is occurring or
627-15 threatened release may occur to:
627-16 (1) restrain a person responsible for solid waste
627-17 under Section 361.271 from allowing or continuing the release or
627-18 threatened release; and
627-19 (2) require the person to take actions necessary to
627-20 provide and implement a cost effective and environmentally sound
627-21 remedial action plan designed to eliminate the release or
627-22 threatened release.
627-23 Sec. 361.274. No Prior Notice Concerning Administrative
627-24 Order. An administrative order under Section 361.272 does not
627-25 require prior notice or an adjudicative hearing before the
627-26 <department or> commission.
627-27 SECTION 11.70. Section 361.301, Health and Safety Code, is
628-1 amended to read as follows:
628-2 Sec. 361.301. Emergency Order. (a) The <department and
628-3 the> commission may <each> issue an emergency mandatory or
628-4 prohibitory order concerning an activity of solid waste management
628-5 under its jurisdiction, even if the activity is not covered by a
628-6 permit, if the commission <agency> determines that an emergency
628-7 requiring immediate action to protect the public health and safety
628-8 or the environment exists.
628-9 (b) The order may be issued without notice and hearing or
628-10 with notice and hearing the commission <agency> considers
628-11 practicable under the circumstances.
628-12 (c) If an emergency order is issued under this section
628-13 without a hearing, the commission <issuing agency> shall set a time
628-14 and place for a hearing to be held in accordance with the rules of
628-15 the <board of health or> commission to affirm, modify, or set aside
628-16 the emergency order.
628-17 (d) The requirements of Section 361.088 concerning public
628-18 notice do not apply to the hearing, but general notice of the
628-19 hearing shall be given in accordance with the rules of the <board
628-20 of health or> commission.
628-21 SECTION 11.71. Sections 361.321(a) and (e), Health and
628-22 Safety Code, are amended to read as follows:
628-23 (a) A person affected by a ruling, order, decision, or other
628-24 act of the <department or the> commission may appeal the action by
628-25 filing a petition in a <the> district court of Travis County.
628-26 (e) Except as provided by Section 361.322(e), in an appeal
628-27 from an action of the <department, the> commission, a county, or a
629-1 political subdivision exercising the authority granted by Section
629-2 361.165, the issue is whether the action is invalid, arbitrary, or
629-3 unreasonable.
629-4 SECTION 11.72. Sections 361.322(d), (e), and (j), Health and
629-5 Safety Code, are amended to read as follows:
629-6 (d) The person appealing the order must join the commission
629-7 <state agency issuing the administrative order> as a party and may
629-8 join as parties any other person named as a responsible party in
629-9 the administrative order and any other person who is or may be
629-10 liable for the elimination of the actual or threatened release of
629-11 solid waste or hazardous substances governed by the administrative
629-12 order.
629-13 (e) The filing of the petition does not prevent the
629-14 commission <state agency issuing the administrative order> from
629-15 proceeding with the remedial action program under Subchapter F
629-16 unless the court enjoins the remedial action under its general
629-17 equity jurisdiction.
629-18 (j) In an appeal under this section, the district court on
629-19 establishing the validity of the order shall issue an injunction
629-20 requiring any person named or joined against whom liability has
629-21 been established by the <department or the> commission or other
629-22 party to comply with the order.
629-23 SECTION 11.73. Section 361.345, Health and Safety Code, is
629-24 amended to read as follows:
629-25 Sec. 361.345. Creation of Rights. Subchapter I and Section
629-26 361.344 and the enforcement by the <department or the> commission
629-27 of that subchapter and section do not:
630-1 (1) create rights or causes of action on behalf of a
630-2 person other than those expressly stated by this chapter; or
630-3 (2) change common law or a rule of decision except as
630-4 limited by this chapter to actions by the <department or the>
630-5 commission to eliminate an actual release or threatened release of
630-6 solid waste that is an imminent and substantial endangerment to the
630-7 public health and safety or the environment.
630-8 SECTION 11.74. Section 361.421(7), Health and Safety Code,
630-9 is amended to read as follows:
630-10 (7) "Recycled product" means a product which meets the
630-11 requirements for recycled material content as prescribed by the
630-12 rules established by the commission <department> described in
630-13 Section 361.427.
630-14 SECTION 11.75. Sections 361.422(c) and (d), Health and
630-15 Safety Code, are amended to read as follows:
630-16 (c) The commission <department> shall establish rules and
630-17 reporting requirements through which progress toward achieving the
630-18 established source reduction and recycling goals can be measured.
630-19 The rules may take into consideration those ongoing community
630-20 source reduction and recycling programs where substantial progress
630-21 has already been achieved. The commission <department> may also
630-22 establish a limit on the amount of credit that may be given to
630-23 certain high-volume materials in measuring recycling progress.
630-24 (d) For the purpose of measuring progress toward the
630-25 municipal solid waste reduction goal, the commission <department>
630-26 shall use the weight of the total municipal solid waste stream in
630-27 1991 as a baseline for comparison. To compute progress toward the
631-1 municipal solid waste reduction goal for a year, the commission
631-2 <department> shall compare the total number of tons disposed in the
631-3 year under comparison, either by landfilling or by other disposal
631-4 methods, to the total number of tons disposed in the base year,
631-5 adjusting for changes in population, tons of solid waste imported
631-6 and exported, and other relevant changes between the baseline year
631-7 and the comparison year.
631-8 SECTION 11.76. Section 361.423(a), Health and Safety Code,
631-9 is amended to read as follows:
631-10 (a) The commissioner of the General Land Office, the
631-11 chairman of the commission <Texas Water Commission>, the executive
631-12 director of the General Services Commission, and the executive
631-13 director of the Texas Department of Commerce shall constitute the
631-14 Recycling Market Development Board. The commissioner of the
631-15 General Land Office serves as presiding officer of the Recycling
631-16 Market Development Board for the first year, and after that year
631-17 the members of the Recycling Market Development Board shall, in the
631-18 order listed in this subsection, rotate as the presiding officer
631-19 for terms of one year. The Recycling Market Development Board may
631-20 designate chief executives of additional agencies as members of the
631-21 board if it identifies the agencies as agencies needed to assist
631-22 the board in performing its duties as outlined in Subsection (b).
631-23 The Recycling Market Development Board shall provide support to and
631-24 coordinate the recycling activities of member agencies and shall
631-25 pursue an economic development strategy that focuses on the state's
631-26 waste management priorities established by Section 361.022 and that
631-27 includes development of recycling industries and markets as an
632-1 integrated component.
632-2 SECTION 11.77. Sections 361.425(a) and (b), Health and
632-3 Safety Code, are amended to read as follows:
632-4 (a) A state agency, state court or judicial agency, a
632-5 university system or institution of higher education, a county,
632-6 municipality, school district, or special district shall:
632-7 (1) in cooperation with the General Services
632-8 Commission or the commission <department> establish a program for
632-9 the separation and collection of all recyclable materials generated
632-10 by the entity's operations, including, at a minimum, aluminum,
632-11 steel containers, aseptic packaging and polycoated paperboard
632-12 cartons, high-grade office paper, and corrugated cardboard;
632-13 (2) provide procedures for collecting and storing
632-14 recyclable materials, containers for recyclable materials, and
632-15 procedures for making contractual or other arrangements with buyers
632-16 of recyclable materials;
632-17 (3) evaluate the amount of recyclable material
632-18 recycled and modify the recycling program as necessary to ensure
632-19 that all recyclable materials are effectively and practicably
632-20 recycled; and
632-21 (4) establish educational and incentive programs to
632-22 encourage maximum employee participation.
632-23 (b) The commission <department> by order shall exempt a
632-24 school district or a municipality <city> with a population of less
632-25 than 5,000 from compliance with this section if the commission
632-26 <department> finds that compliance would work a hardship on the
632-27 district or the municipality <city>. The commission <department>
633-1 shall adopt rules for administering this subsection.
633-2 SECTION 11.78. Section 361.426(d), Health and Safety Code,
633-3 is amended to read as follows:
633-4 (d) The commission <department> by order shall exempt a
633-5 school district or a municipality <city> with a population of less
633-6 than 5,000 from compliance with this section if the commission
633-7 <department> finds that compliance would work a hardship on the
633-8 district or the municipality <city>. The commission <department>
633-9 shall adopt rules for administering this subsection.
633-10 SECTION 11.79. Sections 361.427(a) and (d), Health and
633-11 Safety Code, are amended to read as follows:
633-12 (a) The commission <department>, in consultation with the
633-13 <State Purchasing and> General Services Commission, shall
633-14 promulgate rules to establish guidelines which specify the percent
633-15 of the total content of a product which must consist of recycled
633-16 material for the product to be a "recycled product."
633-17 (d) The commission's <department's> guidelines shall be
633-18 established taking into consideration the guidelines promulgated by
633-19 the Environmental Protection Agency for federal procurement of
633-20 recycled products as authorized by the Solid Waste Disposal Act (42
633-21 U.S.C. Section 3259 et seq.).
633-22 SECTION 11.80. Section 361.429, Health and Safety Code, is
633-23 amended to read as follows:
633-24 Sec. 361.429. Household Hazardous Waste. The commission
633-25 <department> shall develop standards for household hazardous waste
633-26 diversion programs such as collection facilities or waste
633-27 collection days for municipalities <cities>, counties, or regions.
634-1 The commission's <department's> waste management financial
634-2 assistance program described in Section 363.092 shall be expanded
634-3 to include matching grants for costs of planning and implementing
634-4 approved household hazardous waste diversion programs, excluding
634-5 costs of disposal.
634-6 SECTION 11.81. Sections 361.430(c), (g), and (h), Health and
634-7 Safety Code, are amended to read as follows:
634-8 (c) The commission <department> shall promulgate rules and
634-9 regulations which establish a newsprint recycling program for the
634-10 state.
634-11 (g)(1) Publishers of newspapers subject to regulation under
634-12 the newsprint recycling program shall submit annually, on or before
634-13 January 31, a report to the executive director <commissioner> which
634-14 states the percentage of recycled newsprint used by the publisher
634-15 in the preceding year, and, if the target percentage is not met,
634-16 the publisher must include in the report:
634-17 (A) whether the publisher is able to obtain
634-18 sufficient quantities of recycled newsprint at competitive prices
634-19 and of satisfactory quality;
634-20 (B) whether the publisher has attempted to
634-21 obtain recycled newsprint from every producer of recycled newsprint
634-22 that offered to sell recycled newsprint to the publisher during the
634-23 preceding calendar year; and
634-24 (C) the publisher's efforts to obtain recycled
634-25 newsprint, including the name and address of each producer of
634-26 recycled newsprint that the publisher contacted and the name and
634-27 telephone number of the contact person at each of the producers.
635-1 (2) The executive director <commissioner> shall
635-2 develop forms for and regulations governing the submission of the
635-3 reports required by this subsection.
635-4 (h) If the executive director <commissioner> determines that
635-5 newspaper publishers are not voluntarily meeting the target
635-6 percentages prescribed by this section for the program, the
635-7 commission <department> may adopt mandatory enforcement measures.
635-8 SECTION 11.82. Sections 361.453 and 361.456, Health and
635-9 Safety Code, are amended to read as follows:
635-10 Sec. 361.453. Inspection of Battery Retailers. The
635-11 commission <department> shall produce, print, and distribute the
635-12 notices required by Section 361.452 to all places where lead-acid
635-13 batteries are offered for sale at retail. In performing its duties
635-14 under this section the commission <department> may inspect any
635-15 place, building, or premises governed by Section 361.452.
635-16 Authorized employees of the commission <department> may issue
635-17 warnings and citations to persons who fail to comply with the
635-18 requirements of Section 361.452. Failure to post the required
635-19 notice within three days following warning shall subject the
635-20 establishment to a fine of $100 per day.
635-21 Sec. 361.456. Enforcement. The commission <department>
635-22 shall adopt rules necessary to enforce the provisions of this
635-23 subchapter.
635-24 SECTION 11.83. Section 361.477(c), Health and Safety Code,
635-25 is amended to read as follows:
635-26 (c) A waste tire processor that desires to receive payment
635-27 under this section for tires shredded by the processor during a
636-1 calendar month must:
636-2 (1) apply to the commission for registration in
636-3 accordance with forms prescribed by the commission;
636-4 (2) apply to the commission for payment on forms
636-5 prescribed by the commission or, on a voluntary basis, apply by a
636-6 removable storage medium stored in an industry standard file format
636-7 acceptable to the commission;
636-8 (3) demonstrate as required by rules adopted under
636-9 this section that:
636-10 (A) all tires for which payment is sought have
636-11 been shredded to a particle size not larger than nine square
636-12 inches;
636-13 (B) not less than 25 percent of those tires were
636-14 collected from generators; and
636-15 (C) if the total number of used or scrap tires
636-16 or tire pieces contained in illegal waste tire sites that are
636-17 identified on the priority enforcement list exceeds 500,000 tires
636-18 for more than 30 consecutive days, not less than 15 percent and not
636-19 more than 30 percent of those tires were collected from scrap tire
636-20 sites listed on the priority enforcement list;
636-21 (4) provide any other information the commission
636-22 determines is needed to accomplish the purposes of this subchapter,
636-23 including a monthly report of scrap tires or tire pieces shredded,
636-24 subtotaled by tire count or weight, for each generator number and
636-25 priority enforcement list number;
636-26 (5) demonstrate that energy recovery activities in the
636-27 state are in compliance with applicable air emission control rules
637-1 and standards as adopted by the commission <Texas Air Control
637-2 Board>; and
637-3 (6) provide financial assurance deemed adequate by the
637-4 commission that corresponds to:
637-5 (A) the payment appropriate for the number of
637-6 scrap tires the processor anticipates shredding in the next
637-7 calendar month; or
637-8 (B) the number of scrap tires the waste tire
637-9 storage site owner or operator anticipates accepting for storage in
637-10 the next calendar month.
637-11 SECTION 11.84. Section 361.503, Health and Safety Code, is
637-12 amended to read as follows:
637-13 Sec. 361.503. Commission <Agency> Plans. (a) Consistent
637-14 with state and federal regulations, to achieve the policies stated
637-15 in Section 361.502, the commission <board> by rule shall, to the
637-16 maximum extent that is technologically and economically feasible:
637-17 (1) <,> develop plans to reduce the release of
637-18 pollutants or contaminants into the air;<.>
637-19 <(b) Consistent with state and federal regulations, to
637-20 achieve the policies stated in Section 361.502, to the maximum
637-21 extent that is technologically and economically feasible, the
637-22 commission shall:>
637-23 (2) <(1)> develop plans to reduce the release of
637-24 pollutants or contaminants into water; and
637-25 (3) <(2)> establish reasonable goals for the reduction
637-26 of the volume of hazardous waste generated in the state and the
637-27 amount of pollutants and contaminants using source reduction and
638-1 waste minimization.
638-2 (b) The <(c) In order to effectively use resources and
638-3 avoid duplication of effort, the> commission <and board> by <joint>
638-4 rule shall develop a <common> list of pollutants or contaminants
638-5 and the level of releases of those pollutants or contaminants
638-6 subject to source reduction and waste minimization planning.
638-7 SECTION 11.85. Sections 361.504(a) and (b), Health and
638-8 Safety Code, are amended to read as follows:
638-9 (a) Except as provided by Subsection (b), this subchapter
638-10 applies to the following persons:
638-11 (1) all large-quantity generators of hazardous waste;
638-12 (2) all generators other than large-quantity
638-13 generators and conditionally exempt small-quantity generators; and
638-14 (3) persons subject to Section 313, Title III,
638-15 Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.
638-16 Section 11023) whose releases exceed the levels established under
638-17 Section 361.503(b) <361.503(c)>.
638-18 (b) The commission by <and the board through joint> rule
638-19 <making> shall establish one or more schedules for the application
638-20 of the requirements of this subchapter to designated classes of
638-21 persons described by Subsection (a). The schedule shall provide
638-22 for the inclusion of all persons described by Subsection (a) on a
638-23 date to be determined by the commission <and board>, and until that
638-24 date this subchapter applies only to those persons designated by
638-25 rule of the commission <or board>.
638-26 SECTION 11.86. Sections 361.505(a) and (d), Health and
638-27 Safety Code, are amended to read as follows:
639-1 (a) Persons identified under Section 361.504(a)(1) or (a)(3)
639-2 shall prepare a source reduction and waste minimization plan.
639-3 Plans developed under this section shall contain a separate
639-4 component addressing source reduction activities and a separate
639-5 component addressing waste minimization activities. The plan shall
639-6 include, at a minimum:
639-7 (1) an initial survey that identifies:
639-8 (A) for facilities subject to Section
639-9 361.504(a)(1), activities that generate hazardous waste; and
639-10 (B) for facilities subject to Section
639-11 361.504(a)(3), activities that result in the release of pollutants
639-12 or contaminants designated under Section 361.503(b) <361.503(c)>;
639-13 (2) based on the initial survey, a prioritized list of
639-14 economically and technologically feasible source reduction and
639-15 waste minimization projects;
639-16 (3) an explanation of source reduction or waste
639-17 minimization projects to be undertaken, with a discussion of
639-18 technical and economic considerations, and environmental and human
639-19 health risks considered in selecting each project to be undertaken;
639-20 (4) an estimate of the type and amount of reduction
639-21 anticipated;
639-22 (5) a schedule for the implementation of each source
639-23 reduction and waste minimization project;
639-24 (6) source reduction and waste minimization goals for
639-25 the entire facility, including incremental goals to aid in
639-26 evaluating progress;
639-27 (7) an explanation of employee awareness and training
640-1 programs to aid in accomplishing source reduction and waste
640-2 minimization goals;
640-3 (8) certification by the owner of the facility, or, if
640-4 the facility is owned by a corporation, by an officer of the
640-5 corporation that owns the facility who has the authority to commit
640-6 the corporation's resources to implement the plan, that the plan is
640-7 complete and correct;
640-8 (9) an executive summary of the plan; and
640-9 (10) identification of cases in which the
640-10 implementation of a source reduction or waste minimization activity
640-11 designed to reduce risk to human health or the environment may
640-12 result in the release of a different pollutant or contaminant or
640-13 may shift the release to another medium.
640-14 (d) The commission <and the board> shall provide information
640-15 to aid in the preparation of source reduction and waste
640-16 minimization plans to be prepared by a person under this section.
640-17 SECTION 11.87. Sections 361.506(a) and (b), Health and
640-18 Safety Code, are amended to read as follows:
640-19 (a) A person required to develop a source reduction and
640-20 waste minimization plan for a facility under this subchapter shall
640-21 submit to the commission <and the board> an annual report and a
640-22 current executive summary according to any schedule developed under
640-23 Section 361.504.
640-24 (b) The annual report shall comply with rules adopted by the
640-25 commission <and the board through joint rule making>. The report
640-26 shall detail the facility's progress in implementing the source
640-27 reduction and waste minimization plan and include:
641-1 (1) an assessment of the progress toward the
641-2 achievement of the facility source reduction goal and the facility
641-3 waste minimization goal;
641-4 (2) a statement to include, for facilities subject to
641-5 Section 361.504(a)(1), the amount of hazardous waste generated and,
641-6 for facilities subject to Section 361.504(a)(3), the amount of the
641-7 release of pollutants or contaminants designated under Section
641-8 361.503(b) <361.503(c)> in the year preceding the report, and a
641-9 comparison of those amounts with the amounts generated or released
641-10 in a base year selected by <agreement of> the commission <and the
641-11 board>; and
641-12 (3) any modification to the plan.
641-13 SECTION 11.88. Section 361.507(a), Health and Safety Code,
641-14 is amended to read as follows:
641-15 (a) The commission <or the board> may review a source
641-16 reduction and waste minimization plan or annual report to determine
641-17 whether the plan or report complies with this subchapter and rules
641-18 adopted under Section 361.504, 361.505, or 361.506, as appropriate.
641-19 SECTION 11.89. Sections 361.508(a), (c), (d), and (e),
641-20 Health and Safety Code, are amended to read as follows:
641-21 (a) A source reduction and waste minimization plan shall be
641-22 maintained at each facility owned or operated by a person who is
641-23 subject to this subchapter and shall be available to commission <or
641-24 board> personnel for inspection. The source reduction and waste
641-25 minimization plan is not a public record for the purposes of <the
641-26 open records law,> Chapter 552, Government Code <424, Acts of the
641-27 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
642-1 Texas Civil Statutes)>.
642-2 (c) If an owner or operator of a facility for which a source
642-3 reduction and waste minimization plan has been prepared shows to
642-4 the satisfaction of the commission <or board> that an executive
642-5 summary, annual report, or portion of a summary or report prepared
642-6 under this subchapter would divulge a trade secret if made public,
642-7 the commission <or board> shall classify as confidential the
642-8 summary, report, or portion of the summary or report.
642-9 (d) To the extent that a plan, executive summary, annual
642-10 report, or portion of a plan, summary, or annual report would
642-11 otherwise qualify as a trade secret, an action by the commission
642-12 <or board> or an employee of the commission <or board> does not
642-13 affect its status as a trade secret.
642-14 (e) Information classified by the commission <or board> as
642-15 confidential under this section is not a public record for purposes
642-16 of <the open records law,> Chapter 552, Government Code <424, Acts
642-17 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
642-18 Vernon's Texas Civil Statutes)>, and may not be used in a public
642-19 hearing or disclosed to a person outside the commission <or board>
642-20 unless a court decides that the information is necessary for the
642-21 determination of an issue being decided at the public hearing.
642-22 SECTION 11.90. Sections 361.509(b), (c), and (d), Health and
642-23 Safety Code, are amended to read as follows:
642-24 (b) The commission<, the department, and the board> shall
642-25 provide education and training to river authorities,
642-26 municipalities, and public groups on source reduction and waste
642-27 minimization technologies and practices.
643-1 (c) The commission <and the board> shall develop incentives
643-2 to promote the implementation of source reduction and waste
643-3 minimization, including:
643-4 (1) <board and> commission recommendations to the
643-5 governor for awards in recognition of source reduction and waste
643-6 minimization efforts;
643-7 (2) an opportunity by <joint> rules of the commission
643-8 <and the board> for an owner or operator of a facility to be
643-9 exempted from the requirements of this subchapter on meeting
643-10 appropriate criteria for practical economic and technical
643-11 completion of the source reduction and waste minimization plan for
643-12 the facility; and
643-13 (3) expedited review of a permit amendment application
643-14 if the amendment is necessary to implement a source reduction and
643-15 waste minimization project, considering only the directly affected
643-16 parts of the permit.
643-17 (d) The commission <and the board> shall work closely with
643-18 the Gulf Coast Hazardous Substance Research Center to identify
643-19 areas in which the center could perform research in the development
643-20 of alternative technologies or conduct related projects to promote
643-21 source reduction and waste minimization.
643-22 SECTION 11.91. Section 361.510, Health and Safety Code, is
643-23 amended to read as follows:
643-24 Sec. 361.510. Report to Legislature. Notwithstanding any
643-25 other reporting requirement, the commission <and the board> shall
643-26 <jointly> prepare a biennial report to the presiding officers of
643-27 the legislature and the governor concerning the implementation of
644-1 this subchapter. The report must include:
644-2 (1) the status of the technical assistance program;
644-3 (2) a description of progress toward reducing the
644-4 volume of hazardous waste generated and the amount of pollutants
644-5 and contaminants in the state;
644-6 (3) an analysis of and recommendations for changes to
644-7 source reduction and waste minimization programs, including
644-8 consideration of additional enforcement provisions; and
644-9 (4) an identification of any other needed pollution
644-10 prevention activities.
644-11 SECTION 11.92. Section 361.532(c), Health and Safety Code,
644-12 is amended to read as follows:
644-13 (c) The commission <Texas Natural Resource Conservation
644-14 Commission> shall charge any applicant for a permit under this
644-15 subchapter the actual cost of reviewing any application prior to
644-16 the issuance of a permit.
644-17 SECTION 11.93. Section 363.004, Health and Safety Code, is
644-18 amended to read as follows:
644-19 Sec. 363.004. Definitions. In this chapter:
644-20 (1) "Advisory council" means the Municipal Solid Waste
644-21 Management and Resource Recovery Advisory Council.
644-22 (2) "Commission" <"Board"> means the Texas Natural
644-23 Resource Conservation Commission.
644-24 (3) "Executive director" <"Commissioner"> means the
644-25 executive director of the Texas Natural Resource Conservation
644-26 Commission.
644-27 (4) <"Department" means the Texas Natural Resource
645-1 Conservation Commission.>
645-2 <(5)> "Disposal" means the discharge, deposit,
645-3 injection, dumping, spilling, leaking, or placing of containerized
645-4 or uncontainerized solid waste or hazardous waste into or on land
645-5 or water so that the solid waste or hazardous waste or any
645-6 constituent of solid waste or hazardous waste may enter the
645-7 environment or be emitted into the air or discharged into surface
645-8 water or groundwater.
645-9 (5) <(6)> "Governing body" means the governing body of
645-10 a municipality, the commissioners court, the board of directors,
645-11 the trustees, or a similar body charged by law with governing a
645-12 public agency.
645-13 (6) <(7)> "Hazardous waste" means solid waste
645-14 identified or listed as a hazardous waste by the administrator of
645-15 the United States Environmental Protection Agency under the federal
645-16 Solid Waste Disposal Act, as amended by the Resource Conservation
645-17 and Recovery Act (42 U.S.C. Section 6901 et seq.).
645-18 (7) <(8)> "Industrial solid waste" means solid waste
645-19 resulting from or incidental to a process of industry or
645-20 manufacturing, or mining or agricultural operations.
645-21 (8) <(9)> "Local government" means a county,
645-22 municipality, or other political subdivision of the state
645-23 exercising the authority granted under Section 361.165 (Solid Waste
645-24 Disposal Act).
645-25 (9) <(10)> "Municipal solid waste" means solid waste
645-26 resulting from or incidental to municipal, community, commercial,
645-27 institutional, and recreational activities, and includes garbage,
646-1 rubbish, ashes, street cleanings, dead animals, abandoned
646-2 automobiles, and other solid waste other than industrial solid
646-3 waste.
646-4 (10) <(11)> "Planning fund" means the municipal solid
646-5 waste management planning fund.
646-6 (11) <(12)> "Planning region" means a region of this
646-7 state identified by the governor as an appropriate region for
646-8 municipal solid waste planning as provided by Section 4006 of the
646-9 federal Solid Waste Disposal Act, as amended by the Resource
646-10 Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.).
646-11 (12) <(13)> "Processing" means the extraction of
646-12 materials, transfer, volume reduction, conversion to energy, or
646-13 other separation and preparation of solid waste for reuse or
646-14 disposal, including treatment or neutralization of hazardous waste
646-15 designed to change the physical, chemical, or biological character
646-16 or composition of hazardous waste so as to:
646-17 (A) neutralize hazardous waste;
646-18 (B) recover energy or material from hazardous
646-19 waste; or
646-20 (C) render hazardous waste nonhazardous or less
646-21 hazardous, safer to transport, store, or dispose of, amenable for
646-22 recovery or storage, or reduced in volume.
646-23 (13) <(14)> "Property" means land, structures,
646-24 interest in land, air rights, water rights, and rights that
646-25 accompany interest in land, structures, water rights, and air
646-26 rights and includes easements, rights-of-way, uses, leases,
646-27 incorporeal hereditaments, legal and equitable estates, interest,
647-1 or rights such as terms for years and liens.
647-2 (14) <(15)> "Public agency" means a municipality,
647-3 county, or district or authority created and operating under
647-4 Article III, Section 52(b)(1) or (2), or Article XVI, Section 59,
647-5 of the Texas Constitution, or a combination of two or more of those
647-6 governmental entities acting under an interlocal agreement and
647-7 having the authority under this chapter or other law to own and
647-8 operate a solid waste management system.
647-9 (15) <(16)> "Regional or local solid waste management
647-10 plan" means a plan adopted by a planning region under Section
647-11 363.062 or a local government under Section 363.063.
647-12 (16) <(17)> "Resolution" means the action, including
647-13 an order or ordinance, that authorizes bonds and that is taken by
647-14 the governing body.
647-15 (17) <(18)> "Resource recovery" means recovering
647-16 materials or energy from solid waste or otherwise converting solid
647-17 waste to a useful purpose.
647-18 (18) <(19)> "Resource recovery system" means real
647-19 property, structures, plants, works, facilities, equipment,
647-20 pipelines, machinery, vehicles, vessels, rolling stock, licenses,
647-21 or franchises used or useful in connection with processing solid
647-22 waste to extract, recover, reclaim, salvage, reduce, or concentrate
647-23 the solid waste or convert it to energy or useful matter or
647-24 resources, including electricity, steam, or other forms of energy,
647-25 metal, fertilizer, glass, or other forms of material and resources.
647-26 The term includes real property, structures, plants, works,
647-27 facilities, pipelines, machinery, vehicles, vessels, rolling stock,
648-1 licenses, or franchises used or useful in:
648-2 (A) transporting, receiving, storing,
648-3 transferring, and handling solid waste;
648-4 (B) preparing, separating, or processing solid
648-5 waste for reuse;
648-6 (C) handling and transporting recovered matter,
648-7 resources, or energy; and
648-8 (D) handling, transporting, and disposing of
648-9 nonrecoverable solid waste residue.
648-10 (19) <(20)> "Solid waste" means garbage, rubbish,
648-11 sludge from a wastewater treatment plant, water supply treatment
648-12 plant, or air pollution control facility, and other discarded
648-13 material, including solid, liquid, semisolid, or contained gaseous
648-14 material resulting from industrial, municipal, commercial, mining,
648-15 and agricultural operations and from community and institutional
648-16 activities, but does not include:
648-17 (A) solid or dissolved material in domestic
648-18 sewage or irrigation return flows or industrial discharges subject
648-19 to regulation by permit issued under Chapter 26, Water Code;
648-20 (B) soil, dirt, rock, sand, and other natural or
648-21 man-made inert solid materials used to fill land if the object of
648-22 the fill is to make the land suitable for surface improvement
648-23 construction; or
648-24 (C) waste materials that result from activities
648-25 associated with the exploration, development, or production of oil
648-26 or gas and are subject to control by the Railroad Commission of
648-27 Texas.
649-1 (20) <(21)> "Solid waste management" means the
649-2 systematic control of any of the following activities:
649-3 (A) generation;
649-4 (B) source separation;
649-5 (C) collection;
649-6 (D) handling;
649-7 (E) storage;
649-8 (F) transportation;
649-9 (G) processing;
649-10 (H) treatment;
649-11 (I) resource recovery; or
649-12 (J) disposal of solid waste.
649-13 (21) <(22)> "Solid waste management system" means a
649-14 plant, composting process plant, incinerator, sanitary landfill,
649-15 transfer station, or other works and equipment that is acquired,
649-16 installed, or operated to collect, handle, store, process, recover
649-17 material or energy from, or dispose of solid waste, and includes
649-18 sites for those works and equipment.
649-19 (22) <(23)> "State solid waste management plan" means
649-20 the Solid Waste Management Plan for Texas, Volume 1, Municipal
649-21 Solid Waste, adopted by the Texas Board of Health, including
649-22 subsequent amendments by the commission <board>.
649-23 (23) <(24)> "Technical assistance fund" means the
649-24 municipal solid waste resource recovery applied research and
649-25 technical assistance fund.
649-26 (24) <(25)> "Yard waste" means leaves, grass
649-27 clippings, yard and garden debris, and brush, including clean woody
650-1 vegetative material not greater than six inches in diameter, that
650-2 result from landscaping maintenance and land-clearing operations.
650-3 The term does not include stumps, roots, or shrubs with intact root
650-4 balls.
650-5 SECTION 11.94. Subchapter B, Chapter 363, Health and Safety
650-6 Code, is amended to read as follows:
650-7 SUBCHAPTER B. COMMISSION <BOARD AND DEPARTMENT>
650-8 POWERS AND DUTIES
650-9 Sec. 363.021. Commission <Board> Rulemaking Authority. The
650-10 commission <board> may adopt rules necessary to implement this
650-11 chapter.
650-12 Sec. 363.022. Commission <Department> Powers and Duties.
650-13 (a) The commission <department, under the board's direction,>
650-14 shall implement and enforce this chapter.
650-15 (b) The commission <department> shall:
650-16 (1) provide technical assistance to public agencies
650-17 and planning regions and cooperate with federal agencies and
650-18 private organizations in carrying out this chapter;
650-19 (2) promote planning for and implementation of the
650-20 recovery of materials and energy from solid waste;
650-21 (3) establish guidelines for regional and local
650-22 municipal solid waste management plans;
650-23 (4) review and approve or disapprove regional and
650-24 local municipal solid waste management plans;
650-25 (5) assist the advisory council in its duties;
650-26 (6) provide educational and informational programs to
650-27 promote effective municipal solid waste management practices and to
651-1 encourage resource recovery;
651-2 (7) provide procedures under which public agencies and
651-3 planning regions may apply for financial assistance grants;
651-4 (8) evaluate applications and award financial
651-5 assistance grants in accordance with commission <board> rules; and
651-6 (9) coordinate programs under this chapter with other
651-7 state agencies, including <the Texas Air Control Board, the Texas
651-8 Water Commission,> the Railroad Commission of Texas<,> and any
651-9 other state or federal agency having an interest in a program or
651-10 project.
651-11 Sec. 363.023. Application for Federal Funds; Contracts and
651-12 Agreements With Federal Government. The commission <department>
651-13 may apply for and accept federal funds and enter into contracts and
651-14 agreements with the federal government relating to planning,
651-15 developing, maintaining, and enforcing the municipal solid waste
651-16 management program.
651-17 Sec. 363.024. Disbursement of Federal Funds. (a) The
651-18 commission <department> may accept and disburse funds received from
651-19 the federal government for purposes relating to solid waste
651-20 management and resource recovery in the manner provided by this
651-21 chapter and by agreement between the federal government and the
651-22 commission <department>.
651-23 (b) State funds provided to public agencies or planning
651-24 regions under this chapter may be combined with local or regional
651-25 funds to match federal funds on approved programs for municipal
651-26 solid waste management.
651-27 SECTION 11.95. Section 363.041, Health and Safety Code, is
652-1 amended to read as follows:
652-2 Sec. 363.041. Composition of Advisory Council. The
652-3 Municipal Solid Waste Management and Resource Recovery Advisory
652-4 Council is composed of the following 17 members appointed by the
652-5 commission <board>:
652-6 (1) an elected official from a municipality with a
652-7 population of 750,000 or more;
652-8 (2) an elected official from a municipality with a
652-9 population of 100,000 or more but less than 750,000;
652-10 (3) an elected official from a municipality with a
652-11 population of 25,000 or more but less than 100,000;
652-12 (4) an elected official from a municipality with a
652-13 population of less than 25,000;
652-14 (5) two elected officials of separate counties, one of
652-15 whom is from a county with a population of less than 150,000;
652-16 (6) an official from a municipality or county solid
652-17 waste agency;
652-18 (7) a representative from a private environmental
652-19 conservation organization;
652-20 (8) a representative from a public solid waste
652-21 district or authority;
652-22 (9) a representative from a planning region;
652-23 (10) a representative of the financial community;
652-24 (11) a representative from a solid waste management
652-25 organization composed primarily of commercial operators;
652-26 (12) a commission <board> member;
652-27 (13) two persons representing the public who would not
653-1 otherwise qualify as members under this section;
653-2 (14) a registered, fixed waste tire processor; and
653-3 (15) a registered, mobile waste tire processor.
653-4 SECTION 11.96. Section 363.042(b), Health and Safety Code,
653-5 is amended to read as follows:
653-6 (b) The commission <board> shall fill a vacancy on the
653-7 advisory council for the unexpired term by appointing a person who
653-8 has the same qualifications as required under Section 363.041 for
653-9 the person who previously held the vacated position.
653-10 SECTION 11.97. Section 363.043(a), Health and Safety Code,
653-11 is amended to read as follows:
653-12 (a) The commission <board> chairman shall appoint one member
653-13 as advisory council president.
653-14 SECTION 11.98. Sections 363.044(a) and (b), Health and
653-15 Safety Code, are amended to read as follows:
653-16 (a) Each advisory council member other than the member
653-17 representing the commission <board> is entitled to $50 for each
653-18 council meeting the member attends and the travel allowance
653-19 provided by the General Appropriations Act for state employees.
653-20 (b) The member representing the commission <board> is
653-21 entitled to receive the same per diem and travel allowance the
653-22 member receives for commission <board> meetings.
653-23 SECTION 11.99. Sections 363.046 and 363.061, Health and
653-24 Safety Code, are amended to read as follows:
653-25 Sec. 363.046. Duties. The advisory council shall:
653-26 (1) review and evaluate the effect of state policies
653-27 and programs on municipal solid waste management;
654-1 (2) make recommendations to the executive director
654-2 <commissioner> and the commission <board> on matters relating to
654-3 municipal solid waste management;
654-4 (3) recommend legislation to the commission <board> to
654-5 encourage the efficient management of municipal solid waste;
654-6 (4) recommend policies to the board for the use,
654-7 allocation, or distribution of the planning fund that include:
654-8 (A) identification of statewide priorities for
654-9 use of funds;
654-10 (B) the manner and form of application for
654-11 financial assistance; and
654-12 (C) criteria, in addition to those prescribed by
654-13 Section 363.093(d), to be evaluated in establishing priorities for
654-14 providing financial assistance to applicants; and
654-15 (5) recommend to the executive director <commissioner>
654-16 special studies and projects to further the effectiveness of
654-17 municipal solid waste management and resource recovery.
654-18 Sec. 363.061. Commission <Board> Rules; Approval of Regional
654-19 and Local Solid Waste Management Plans. (a) The commission
654-20 <board> shall adopt rules relating to regional and local solid
654-21 waste management plans, including procedures for review and
654-22 criteria for approval of those plans.
654-23 (b) The commission <board> by rule shall require as criteria
654-24 for approval of a regional or local solid waste management plan
654-25 that the plan reflect consideration of the preference of municipal
654-26 solid waste management methods under Section 361.022 (Solid Waste
654-27 Disposal Act).
655-1 SECTION 11.100. Sections 363.062(b), (c), (d), (e), and (f),
655-2 Health and Safety Code, are amended to read as follows:
655-3 (b) A regional solid waste management plan shall be
655-4 submitted to the commission <department> for review.
655-5 (c) If the commission <department> determines that a
655-6 regional solid waste management plan conforms to the requirements
655-7 adopted by the commission <board>, the commission <department>
655-8 shall consider <submit> the regional solid waste management plan
655-9 <to the board> for approval.
655-10 (d) In each even-numbered year on the anniversary of the
655-11 adoption of a municipal solid waste management plan, each planning
655-12 region shall report to the commission <department> on the progress
655-13 of the region's municipal solid waste management program and
655-14 recycling activities developed under this section. The commission
655-15 <department> may not require a planning region to submit to the
655-16 commission <department> information previously submitted to the
655-17 commission <department> by the planning region in an earlier plan
655-18 or report.
655-19 (e) If the commission <department> determines that a
655-20 regional solid waste management plan does not conform to the
655-21 requirements adopted by the commission <board>, the commission
655-22 <department> shall give written notice to the planning region of
655-23 each aspect of the plan that must be changed to conform to
655-24 commission <board> requirements. After the changes have been made
655-25 in the plan as provided by the commission <department>, the
655-26 commission <department> shall consider <submit> the plan <to the
655-27 board> for approval.
656-1 (f) The commission <board> by rule shall adopt an approved
656-2 regional solid waste management plan.
656-3 SECTION 11.101. Sections 363.063(c), (d), (e), and (f),
656-4 Health and Safety Code, are amended to read as follows:
656-5 (c) A local solid waste management plan shall be submitted
656-6 to the commission <department> for review. If the commission
656-7 <department> determines that the plan conforms to the requirements
656-8 adopted by the commission <board>, the commission <department>
656-9 shall consider <submit> the plan <to the board> for approval.
656-10 (d) In each even-numbered year on the anniversary of the
656-11 adoption of a municipal solid waste management plan, each local
656-12 government shall report to the commission <department> on the
656-13 progress of its municipal solid waste management program and
656-14 recycling activities implemented under this section. The
656-15 commission <department> may not require a local government to
656-16 submit to the planning region or to the commission <department>
656-17 information previously submitted to the planning region or
656-18 commission <department> by the local government in an earlier plan
656-19 or report.
656-20 (e) If the commission <department> determines that a local
656-21 solid waste management plan does not conform to the requirements
656-22 adopted by the commission <board>, the commission <department>
656-23 shall give written notice to the local government of each aspect of
656-24 the plan that must be changed to conform to commission <board>
656-25 requirements. After changes are made in the plan as requested by
656-26 the commission <department>, the commission <department> shall
656-27 consider <submit> the plan <to the board> for approval.
657-1 (f) The commission <board> by rule shall adopt an approved
657-2 local solid waste management plan.
657-3 SECTION 11.102. Sections 363.0635(a), (c), and (d), Health
657-4 and Safety Code, are amended to read as follows:
657-5 (a) The commission <department> shall establish a time
657-6 schedule by which each planning region existing on September 1,
657-7 1989, shall develop a regional solid waste management plan, and
657-8 local governments located in those planning regions shall develop
657-9 local solid waste management plans as required by this section.
657-10 (c) Unless otherwise required by federal law or federal
657-11 regulations, a planning region or local government is not required
657-12 to develop a solid waste management plan until after the date on
657-13 which funds are provided to that planning region or local
657-14 government by the commission <department> as prescribed by Sections
657-15 363.091 through 363.093 for the development of plans.
657-16 (d) Each planning region existing on September 1, 1989,
657-17 shall develop a regional solid waste management plan, and local
657-18 governments located in that planning region shall develop local
657-19 solid waste management plans in accordance with the time schedule
657-20 established by the commission <department> and as provided by this
657-21 subchapter.
657-22 SECTION 11.103. Section 363.064(a), Health and Safety Code,
657-23 as amended by Section 2, Chapter 770, by Section 2.11, Chapter 899,
657-24 and by Section 15, Chapter 1045, Acts of the 73rd Legislature,
657-25 Regular Session, 1993, and Sections 363.064(d) and (e), Health and
657-26 Safety Code, are amended to read as follows:
657-27 (a) A regional or local solid waste management plan must:
658-1 (1) include a description and an assessment of current
658-2 efforts in the geographic area covered by the plan to minimize
658-3 production of municipal solid waste, including sludge, and efforts
658-4 to reuse or recycle waste;
658-5 (2) identify additional opportunities for waste
658-6 minimization and waste reuse or recycling;
658-7 (3) include a description and assessment of existing
658-8 or proposed community programs for the collection of household
658-9 hazardous waste;
658-10 (4) make recommendations for encouraging and achieving
658-11 a greater degree of waste minimization and waste reuse or recycling
658-12 in the geographic area covered by the plan;
658-13 (5) encourage cooperative efforts between local
658-14 governments in the siting of landfills for the disposal of solid
658-15 waste;
658-16 (6) consider the need to transport waste between
658-17 municipalities, from a municipality to an area in the jurisdiction
658-18 of a county, or between counties, particularly if a technically
658-19 suitable site for a landfill does not exist in a particular area;
658-20 (7) allow a local government to justify the need for a
658-21 landfill in its jurisdiction to dispose of the solid waste
658-22 generated in the jurisdiction of another local government that does
658-23 not have a technically suitable site for a landfill in its
658-24 jurisdiction;
658-25 (8) establish recycling rate goals appropriate to the
658-26 area covered by the plan;
658-27 (9) recommend composting programs for yard waste and
659-1 related organic wastes that may include:
659-2 (A) creation and use of community composting
659-3 centers;
659-4 (B) adoption of the "Don't Bag It" program for
659-5 lawn clippings developed by the Texas Agricultural Extension
659-6 Service; and
659-7 (C) development and promotion of education
659-8 programs on home composting, community composting, and the
659-9 separation of yard waste for use as mulch;
659-10 (10) include an inventory of municipal solid waste
659-11 landfill units, including landfill units no longer in operation,
659-12 the location of such units, the current owners of the land on which
659-13 the former landfill units were located, and the current use of the
659-14 land;<.>
659-15 (11) <(10)> assess the need for new waste disposal
659-16 capacity;
659-17 (12) <(11)> include a public education program; and
659-18 (13) <(12)> include waste reduction in accordance with
659-19 the goal established under Section 361.0201(d), to the extent that
659-20 funds are available.
659-21 (d) Each council of governments shall provide a copy of the
659-22 inventory of municipal solid waste landfill units to the commission
659-23 <Texas Natural Resource Conservation Commission>.
659-24 (e) The commission <Texas Natural Resource Conservation
659-25 Commission> may grant money from fees collected under Section
659-26 361.013 to a municipality or association of municipalities for the
659-27 purpose of conducting the inventory required by this section.
660-1 SECTION 11.104. Section 363.066, Health and Safety Code, is
660-2 amended to read as follows:
660-3 Sec. 363.066. Conformity With Regional or Local Solid Waste
660-4 Management Plan. (a) On the adoption of a regional or local solid
660-5 waste management plan by commission <board> rule, public and
660-6 private solid waste management activities and state regulatory
660-7 activities must conform to that plan.
660-8 (b) The commission <department> may grant a variance from
660-9 the adopted plan under procedures and criteria adopted by the
660-10 commission <board>.
660-11 SECTION 11.105. Sections 363.092(a), (b), (c), (d), and (f),
660-12 Health and Safety Code, are amended to read as follows:
660-13 (a) The executive director <commissioner> shall administer
660-14 the financial assistance program and the planning fund under the
660-15 commission's <board's> direction.
660-16 (b) The commission <board> shall adopt rules for the use and
660-17 distribution to public agencies and planning regions of money in
660-18 the planning fund.
660-19 (c) The commission <department> shall use the planning fund
660-20 to provide financial assistance to:
660-21 (1) local governments and planning regions to develop
660-22 regional and local solid waste management plans;
660-23 (2) public agencies and planning regions to prepare
660-24 screening, feasibility, and implementation studies; and
660-25 (3) local governments and planning regions for costs
660-26 of developing and implementing approved household hazardous waste
660-27 diversion programs, excluding costs of disposal.
661-1 (d) The commission <department> shall use at least 90
661-2 percent of the money appropriated to it for the planning fund to
661-3 provide financial assistance, and not more than 10 percent of the
661-4 total funds appropriated to the department for the planning fund
661-5 may be used to administer the financial assistance program and the
661-6 planning fund and to pay the expenses of the advisory council.
661-7 (f) The commission <board> by rule shall allocate a specific
661-8 percentage of money provided under Subsection (c)(1) to be used to
661-9 develop plans for community household hazardous waste collection
661-10 programs.
661-11 SECTION 11.106. Sections 363.093(a), (b), (c), and (e),
661-12 Health and Safety Code, are amended to read as follows:
661-13 (a) An applicant for financial assistance from the planning
661-14 fund must agree to comply with:
661-15 (1) the state solid waste management plan;
661-16 (2) the commission's <department's> municipal solid
661-17 waste management rules; and
661-18 (3) other commission <board> requirements.
661-19 (b) The commission <department> may not authorize release of
661-20 funds under a financial assistance application until the applicant
661-21 furnishes to the commission <department> a resolution adopted by
661-22 the governing body of each public agency or planning region that is
661-23 a party to the application certifying that:
661-24 (1) the applicant will comply with the financial
661-25 assistance program's provisions and commission <the department's>
661-26 requirements;
661-27 (2) the funds will be used only for the purposes for
662-1 which they are provided;
662-2 (3) regional or local solid waste management plans or
662-3 studies developed with the financial assistance will be adopted by
662-4 the governing body as its policy; and
662-5 (4) future municipal solid waste management activities
662-6 will, to the extent reasonably feasible, conform to the regional or
662-7 local solid waste management plan.
662-8 (c) Financial assistance provided by the commission
662-9 <department> to a public agency or planning region must be matched
662-10 at least equally by funds provided by the recipient, except that
662-11 this matching requirement does not apply if the recipient is a
662-12 council of governments created under Chapter 391, Local Government
662-13 Code, or a municipality <city> or county.
662-14 (e) The commission <department> may approve an application
662-15 for financial assistance if:
662-16 (1) the application is consistent with the rules
662-17 adopted by the commission <board> under Section 363.092(b); and
662-18 (2) the commission <department> finds that the
662-19 applicant requires state financial assistance and that it is in the
662-20 public interest to provide the financial assistance.
662-21 SECTION 11.107. Section 363.094(d), Health and Safety Code,
662-22 is amended to read as follows:
662-23 (d) The executive director <commissioner> shall administer
662-24 the technical assistance fund under the commission's <board's>
662-25 direction.
662-26 SECTION 11.108. Sections 363.095(a) and (c), Health and
662-27 Safety Code, are amended to read as follows:
663-1 (a) Studies, applied research, investigations, and other
663-2 purposes accomplished with and technical assistance provided
663-3 through use of money in the technical assistance fund must comply
663-4 with:
663-5 (1) the state solid waste management plan;
663-6 (2) the commission's <department's> municipal solid
663-7 waste management rules; and
663-8 (3) other commission <board> policy requirements.
663-9 (c) The commission <department> may hire personnel to be
663-10 paid from the technical assistance fund and may use the technical
663-11 assistance fund for obtaining consultant services and for entering
663-12 into interagency agreements with other state agencies, public
663-13 agencies, or planning regions.
663-14 SECTION 11.109. Section 363.111(b), Health and Safety Code,
663-15 is amended to read as follows:
663-16 (b) The rules may not authorize any activity, method of
663-17 operation, or procedure prohibited by Chapter 361 (Solid Waste
663-18 Disposal Act) or by rules or regulations of the commission
663-19 <department> or other state or federal agencies.
663-20 SECTION 11.110. Section 363.112(c), Health and Safety Code,
663-21 is amended to read as follows:
663-22 (c) This section does not apply to a municipality or county
663-23 that has adopted solid waste management plans approved by the
663-24 commission <department> under Section 363.063.
663-25 SECTION 11.111. Section 365.011(1), Health and Safety Code,
663-26 is amended to read as follows:
663-27 (1) "Approved solid waste site" means:
664-1 (A) a solid waste site permitted by the Texas
664-2 Natural Resource Conservation <Water> Commission <or the Texas
664-3 Department of Health>;
664-4 (B) a solid waste site licensed by a county
664-5 under Chapter 361; or
664-6 (C) a designated collection area for ultimate
664-7 disposal at a permitted or licensed municipal solid waste site.
664-8 SECTION 11.112. Section 365.013(a), Health and Safety Code,
664-9 is amended to read as follows:
664-10 (a) The Texas Natural Resource Conservation Commission
664-11 <Board of Health> shall adopt rules and standards regarding
664-12 processing and treating litter disposed in violation of this
664-13 subchapter.
664-14 SECTION 11.113. Subchapters A through E, Chapter 366, Health
664-15 and Safety Code, are amended to read as follows:
664-16 SUBCHAPTER A. GENERAL PROVISIONS
664-17 Sec. 366.001. Policy and Purpose. It is the public policy
664-18 of this state and the purpose of this chapter to:
664-19 (1) eliminate and prevent health hazards by regulating
664-20 and properly planning the location, design, construction,
664-21 installation, operation, and maintenance of on-site sewage disposal
664-22 systems;
664-23 (2) authorize the commission <department> or
664-24 authorized agent to impose and collect a permit fee for:
664-25 (A) construction, installation, alteration,
664-26 repair, or extension of on-site sewage disposal systems; and
664-27 (B) tests, designs, and inspections of those
665-1 systems;
665-2 (3) authorize the commission <department> or
665-3 authorized agent to impose a penalty for a violation of this
665-4 chapter or a rule adopted under this chapter;
665-5 (4) require an on-site sewage disposal system
665-6 installer to register with the commission <department>; and
665-7 (5) allow the individual owner of a disposal system to
665-8 install and repair the system in accordance with this chapter.
665-9 Sec. 366.002. Definitions. In this chapter:
665-10 (1) "Authorized agent" means a local governmental
665-11 entity authorized by the commission <department> to implement and
665-12 enforce rules under this chapter.
665-13 (2) "Commission" <"Board" or "commission"> means the
665-14 Texas Natural Resource Conservation Commission.
665-15 (3) <"Department" means the Texas Natural Resource
665-16 Conservation Commission.>
665-17 <(4)> "Designated representative" means a person who
665-18 is designated by the commission <department> or authorized agent to
665-19 make percolation tests, system designs, and inspections subject to
665-20 the commission's <department's> approval.
665-21 (4) <(5)> "Installer" means a person who is
665-22 compensated by another to construct, install, alter, or repair an
665-23 on-site sewage disposal system.
665-24 (5) <(6)> "Local governmental entity" means a
665-25 municipality, county, river authority, or special district,
665-26 including an underground water district and a soil and water
665-27 conservation district.
666-1 (6) <(7)> "Nuisance" means:
666-2 (A) sewage, human excreta, or other organic
666-3 waste discharged or exposed in a manner that makes it a potential
666-4 instrument or medium in the transmission of disease to or between
666-5 persons; or
666-6 (B) an overflowing septic tank or similar
666-7 device, including surface discharge from or groundwater
666-8 contamination by a component of an on-site sewage disposal system,
666-9 or a blatant discharge from an on-site sewage disposal system.
666-10 (7) <(8)> "On-site sewage disposal system" means one
666-11 or more systems of treatment devices and disposal facilities that:
666-12 (A) produce not more than 5,000 gallons of waste
666-13 each day; and
666-14 (B) are used only for disposal of sewage
666-15 produced on the site where the system is located.
666-16 (8) <(9)> "Owner" means a person who owns a building
666-17 or other property served by an on-site sewage disposal system.
666-18 (9) <(10)> "Sewage" means waste that:
666-19 (A) is primarily organic and biodegradable or
666-20 decomposable; and
666-21 (B) generally originates as human, animal, or
666-22 plant waste from certain activities, including the use of toilet
666-23 facilities, washing, bathing, and preparing food.
666-24 Sec. 366.003. Immunity. The commission <department>, an
666-25 authorized agent, or a designated representative is not liable for
666-26 damages resulting from the commission's <department's> or
666-27 authorized agent's approval of the installation and operation of an
667-1 on-site sewage disposal system.
667-2 Sec. 366.004. Compliance Required. A person may not
667-3 construct, alter, repair, or extend, or cause to be constructed,
667-4 altered, repaired, or extended, an on-site sewage disposal system
667-5 that does not comply with this chapter and applicable rules.
667-6 SUBCHAPTER B. GENERAL POWERS AND DUTIES
667-7 OF COMMISSION <DEPARTMENT> AND AUTHORIZED AGENTS
667-8 Sec. 366.011. General Supervision and Authority. The
667-9 commission <department> or authorized agents:
667-10 (1) have general authority over the location, design,
667-11 construction, installation, and proper functioning of on-site
667-12 sewage disposal systems; and
667-13 (2) shall administer this chapter and the rules
667-14 adopted under this chapter.
667-15 Sec. 366.012. Rules Concerning On-Site Sewage Disposal
667-16 Systems. (a) To assure the effective and efficient administration
667-17 of this chapter, the commission <board> shall:
667-18 (1) adopt rules governing the installation of on-site
667-19 sewage disposal systems, including rules concerning the:
667-20 (A) review and approval of on-site sewage
667-21 disposal systems;
667-22 (B) registration of installers; and
667-23 (C) temporary waiver of a permit for an
667-24 emergency repair; and
667-25 (2) adopt rules under this chapter that encourage the
667-26 use of economically feasible alternative techniques and
667-27 technologies for on-site sewage disposal systems that can be used
668-1 in soils not suitable for conventional on-site sewage disposal.
668-2 (b) In rules adopted under this chapter, the commission
668-3 <board> shall include definitions and detailed descriptions of good
668-4 management practices and procedures for the construction of on-site
668-5 sewage disposal systems that:
668-6 (1) justify variation in field size or in other
668-7 standard requirements;
668-8 (2) promote the use of good management practices or
668-9 procedures in the construction of on-site sewage disposal systems;
668-10 (3) require the use of one or more specific management
668-11 practices or procedures as a condition of approval of a standard
668-12 on-site sewage disposal system if, in the opinion of the commission
668-13 <department> or authorized agent, site conditions or other problems
668-14 require the use of additional management practices or procedures to
668-15 ensure the proper operation of an on-site sewage disposal system;
668-16 and
668-17 (4) make available general, operational information to
668-18 the public.
668-19 Sec. 366.013. Training Program. (a) The commission
668-20 <department> shall establish a training program specifically
668-21 developed for installers, authorized agents, and designated
668-22 representatives.
668-23 (b) The commission <department> may charge a program
668-24 participant a reasonable fee to cover the cost of the training.
668-25 Sec. 366.014. Designated Representative. (a) The
668-26 commission <department> or an authorized agent may designate a
668-27 person to make percolation tests, systems designs, and inspections
669-1 subject to the approval of the commission <department>.
669-2 (b) To qualify as a designated representative, a person
669-3 must:
669-4 (1) demonstrate to the commission's <department's>
669-5 satisfaction the person's competency to make percolation tests,
669-6 designs, and inspections for on-site sewage disposal systems in
669-7 accordance with this chapter and rules adopted under this chapter;
669-8 (2) successfully complete the training program
669-9 provided by the commission <department>;
669-10 (3) successfully pass an examination provided by the
669-11 commission <department>;
669-12 (4) receive written certification from the commission
669-13 <department>; and
669-14 (5) pay a reasonable fee to the commission
669-15 <department> for administration of this training and certification.
669-16 Sec. 366.015. Enforcement. The commission <department>
669-17 shall enforce this chapter and rules adopted under this chapter.
669-18 Sec. 366.016. Emergency Orders. (a) If the commission
669-19 <department> or authorized agent determines that an emergency
669-20 exists and that the public health or safety is endangered because
669-21 of the operation of an on-site sewage disposal system that does not
669-22 comply with this chapter or a rule adopted under this chapter, the
669-23 commission <department> or authorized agent by order may:
669-24 (1) suspend the registration of the installer;
669-25 (2) regulate the on-site sewage disposal system; or
669-26 (3) both suspend the registration and regulate the
669-27 system.
670-1 (b) The order may be issued without notice and hearing.
670-2 (c) If the emergency order is issued without a hearing, the
670-3 commission <department> or authorized agent shall set a time and
670-4 place for a hearing to affirm, modify, or set aside the emergency
670-5 order to be held not later than the 30th day after the date on
670-6 which the emergency order is issued.
670-7 (d) General notice of the hearing shall be given in
670-8 accordance with the laws of this state and rules adopted by the
670-9 commission <board> or authorized agent.
670-10 (e) The hearing shall be conducted in accordance with the
670-11 commission's <board's> rules or laws and rules governing the
670-12 authorized agent.
670-13 Sec. 366.017. Required Repairs; Penalty. (a) The
670-14 commission <department> or authorized agent may require a property
670-15 owner to repair a malfunctioning on-site sewage disposal system on
670-16 the owner's property not later than the 30th day after the date on
670-17 which the owner is notified by the commission <department> or
670-18 authorized agent of the malfunctioning system.
670-19 (b) The property owner must take adequate measures as soon
670-20 as practicable to abate an immediate health hazard.
670-21 (c) The property owner may be assessed a penalty under
670-22 Chapter 341 for each day that the on-site sewage disposal system
670-23 remains unrepaired.
670-24 SUBCHAPTER C. DESIGNATION OF LOCAL GOVERNMENTAL
670-25 ENTITY AS AUTHORIZED AGENT
670-26 Sec. 366.031. Designation. (a) The commission <department>
670-27 shall designate a local governmental entity as an authorized agent
671-1 if the governmental entity:
671-2 (1) notifies the commission <department> that the
671-3 entity wants to regulate the use of on-site sewage disposal systems
671-4 in its jurisdiction;
671-5 (2) in accordance with commission <department>
671-6 procedures, holds a public hearing and adopts an order or
671-7 resolution that complies with Section 366.032; and
671-8 (3) submits the order or resolution to the commission
671-9 <department>.
671-10 (b) The commission <department> in writing may approve the
671-11 local governmental entity's order or resolution, and the
671-12 designation takes effect only when the order or resolution is
671-13 approved.
671-14 Sec. 366.032. Order or Resolution; Requirements. (a) The
671-15 local governmental entity's order or resolution must:
671-16 (1) incorporate the commission's <board's> rules on
671-17 abatement or prevention of pollution and the prevention of injury
671-18 to the public health;
671-19 (2) meet the commission's <department's> minimum
671-20 requirements for on-site sewage disposal systems; and
671-21 (3) include a written enforcement plan.
671-22 (b) If the order or resolution adopts more stringent
671-23 standards for on-site sewage disposal systems than this chapter or
671-24 the commission's <department's> standards and provides greater
671-25 public health and safety protection, the authorized agent's order
671-26 or resolution prevails over this chapter or the standards.
671-27 (c) An authorized agent must obtain commission <department>
672-1 approval of substantive amendments to the agent's order or
672-2 resolution.
672-3 Sec. 366.033. Delegation to Local Governmental Entities.
672-4 The commission <department> shall delegate to local governmental
672-5 entities responsibility for the implementation and enforcement of
672-6 applicable rules<, subject to the board's approval>.
672-7 Sec. 366.034. Investigation of Authorized Agents. (a) The
672-8 commission <department> shall:
672-9 (1) conduct not more often than once a year an
672-10 investigation of each authorized agent to determine the authorized
672-11 agent's compliance with this chapter; and
672-12 (2) prepare <submit> an annual report <to the board>
672-13 concerning the status of the local governmental entity's regulatory
672-14 program.
672-15 (b) If the commission <department> determines that an
672-16 authorized agent does not consistently enforce the commission's
672-17 <department's> minimum requirements for on-site sewage disposal
672-18 systems, the commission <department> shall hold a hearing and
672-19 determine whether to continue the designation as an authorized
672-20 agent.
672-21 Sec. 366.035. Mandatory Application for and Maintenance of
672-22 Designation. A local governmental entity that applies to the Texas
672-23 Water Development Board for financial assistance under a program
672-24 for economically distressed areas must take all actions necessary
672-25 to receive and maintain a designation as an authorized agent of the
672-26 commission <department>.
672-27 Sec. 366.036. County Map. (a) If the commission
673-1 <department> designates a local governmental entity as its
673-2 authorized agent and if the entity intends to apply to the Texas
673-3 Water Development Board for financial assistance under a program
673-4 for economically distressed areas, the commissioners court of the
673-5 county in which the entity is located shall prepare a map of the
673-6 county area outside the limits of municipalities. The entity shall
673-7 give to the commissioners court a written notice of the entity's
673-8 intention to apply for the assistance. The map must show the parts
673-9 of the area in which the different types of on-site sewage disposal
673-10 systems may be appropriately located and the parts in which the
673-11 different types of systems may not be appropriately located.
673-12 (b) The commissioners court shall file the map in the office
673-13 of the county clerk.
673-14 (c) The commissioners court, at least every five years,
673-15 shall review the map and make changes to it as necessary to keep
673-16 the map accurate.
673-17 SUBCHAPTER D. PERMITS; FEES
673-18 Sec. 366.051. Permits. (a) A person must hold a permit and
673-19 an approved plan to construct, alter, repair, extend, or operate an
673-20 on-site sewage disposal system.
673-21 (b) If the on-site sewage disposal system is located in the
673-22 jurisdiction of an authorized agent, the permit is issued by the
673-23 authorized agent; otherwise, the permit is issued by the commission
673-24 <department>.
673-25 (c) A person may not begin to construct, alter, repair, or
673-26 extend an on-site sewage disposal system that is owned by another
673-27 person unless the owner or owner's representative shows proof of a
674-1 permit and approved plan from the commission <department> or
674-2 authorized agent.
674-3 Sec. 366.052. Permit Not Required for On-Site Sewage
674-4 Disposal on Certain Single Residences. (a) Sections 366.051,
674-5 366.053, 366.054, and 366.057 do not apply to an on-site sewage
674-6 disposal system of a single residence that is located on a land
674-7 tract that is 10 acres or larger in which the field line or sewage
674-8 disposal line is not closer than 100 feet of the property line.
674-9 (b) Effluent from the on-site sewage disposal system on a
674-10 single residence:
674-11 (1) must be retained in the specified limits;
674-12 (2) may not create a nuisance; and
674-13 (3) may not pollute groundwater.
674-14 Sec. 366.053. Permit Application. (a) Application for a
674-15 permit must:
674-16 (1) be made on a form provided by the commission
674-17 <department> or authorized agent; and
674-18 (2) include information required by the commission
674-19 <department> or authorized agent to establish that the individual
674-20 sewage disposal system complies with this chapter and rules adopted
674-21 under this chapter.
674-22 (b) The commission <board> shall adopt rules and procedures
674-23 for the submission, review, and approval or rejection of permit
674-24 applications.
674-25 Sec. 366.054. Notice From Installer. An installer may not
674-26 begin construction, alteration, repair, or extension of an on-site
674-27 sewage disposal system unless the installer notifies the commission
675-1 <department> or authorized agent of the date on which the installer
675-2 plans to begin work on the system.
675-3 Sec. 366.055. Inspections. (a) The commission <department>
675-4 or authorized agent shall review a proposal for an on-site sewage
675-5 disposal system and make inspections of the system as necessary to
675-6 ensure that the on-site sewage disposal system is in substantial
675-7 compliance with this chapter and the rules adopted under this
675-8 chapter.
675-9 (b) An on-site sewage disposal system may not be used unless
675-10 it is inspected and approved by the commission <department> or the
675-11 authorized agent.
675-12 (c) A holder of a permit issued under this chapter shall
675-13 notify the commission <department>, the authorized agent, or a
675-14 designated representative not later than the fifth working day
675-15 before the proposed date of the operation of an installation that
675-16 the installation is ready for inspection.
675-17 (d) The inspection shall be made on a date and time mutually
675-18 agreed on by the holder of a permit and the commission
675-19 <department>, the authorized agent, or a designated representative.
675-20 (e) An installation inspection shall be made not later than
675-21 the second working day, excluding holidays, after the date on which
675-22 notification that the installation is completed and ready for
675-23 inspection is given to the commission <department>, the authorized
675-24 agent, or a designated representative.
675-25 (f) The owner, owner's representative, or occupant of the
675-26 property on which the installation is located shall give the
675-27 commission <department>, the authorized agent, or a designated
676-1 representative reasonable access to the property at reasonable
676-2 times to make necessary inspections.
676-3 Sec. 366.056. Approval of On-Site Sewage Disposal System.
676-4 (a) The commission <department> or authorized agent may approve or
676-5 disapprove the on-site sewage disposal system depending on the
676-6 results of the inspections under Section 366.055.
676-7 (b) If a system is not approved under this section, the
676-8 on-site sewage disposal system may not be used until all
676-9 deficiencies are corrected and the system is reinspected and
676-10 approved by the commission <department> or authorized agent.
676-11 Sec. 366.057. Permit Issuance. (a) The commission
676-12 <department> shall issue or authorize the issuance of permits and
676-13 other documents.
676-14 (b) A permit and approved plan to construct, alter, repair,
676-15 extend, or operate an on-site sewage disposal system must be issued
676-16 in the name of the person who owns the system and must identify the
676-17 specific property location or address for the specific
676-18 construction, alteration, extension, repair, or operation proposed
676-19 by the person.
676-20 (c) The commission <department> may not issue a permit to
676-21 construct, alter, repair, or extend an on-site sewage disposal
676-22 system if the issuance of a permit conflicts with other applicable
676-23 laws or public policy under this chapter.
676-24 Sec. 366.058. Permit Fee. (a) The commission <board> by
676-25 rule shall establish and collect a reasonable permit fee to cover
676-26 the cost of issuing permits under this chapter and administering
676-27 the permitting system.
677-1 (b) The commission <department> at its discretion may
677-2 provide variances to the uniform application of the permit fee.
677-3 Sec. 366.059. PERMIT FEE PAID TO COMMISSION <DEPARTMENT> OR
677-4 AUTHORIZED AGENT. (a) The permit fee shall be paid to the
677-5 authorized agent or the commission <department>, whichever performs
677-6 the permitting function.
677-7 (b) The commission <department> may assess a charge-back fee
677-8 to a local governmental entity for which the commission
677-9 <department> issues permits for administrative costs relating to
677-10 the permitting function that are not covered by the permit fees
677-11 collected.
677-12 SUBCHAPTER E. REGISTRATION OF INSTALLERS
677-13 Sec. 366.071. Registration. A person may not operate as an
677-14 installer in this state unless the person is registered by the
677-15 commission <department>.
677-16 Sec. 366.072. Registration Application. The commission
677-17 <board> shall adopt a registration application form and rules and
677-18 procedures for the submission, review, and approval or rejection of
677-19 registration applications.
677-20 Sec. 366.073. Registration Issuance. (a) The commission
677-21 <department> shall issue or authorize the issuance of registrations
677-22 and other documents.
677-23 (b) The commission <department> shall issue a registration
677-24 to an installer if the installer:
677-25 (1) completes an application form that complies with
677-26 this chapter and rules adopted under this chapter; and
677-27 (2) completes the training program provided by the
678-1 commission <department>.
678-2 Sec. 366.074. Registration Fee. The commission <board>
678-3 shall establish and collect a reasonable registration fee to cover
678-4 the cost of issuing registrations under this chapter.
678-5 Sec. 366.075. Proof of Registration. Each installer shall
678-6 furnish proof of registration if requested by the commission
678-7 <department>, an authorized agent, or a designated representative.
678-8 Sec. 366.076. Registration Renewal. The commission
678-9 <department> may provide for periodic renewal of registrations.
678-10 Sec. 366.077. Registration Revocation. (a) An installer's
678-11 statewide registration may be revoked by the commission
678-12 <department> after notice and hearing if the installer violates
678-13 this chapter or a rule adopted under this chapter.
678-14 (b) The revocation procedures must comply with Chapter 2001,
678-15 Government Code <the Administrative Procedure and Texas Register
678-16 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
678-17 (c) The installer may appeal a revocation under this section
678-18 as provided by law.
678-19 Sec. 366.078. Official Roster of Registered Installers. On
678-20 request, the commission <department> semiannually shall:
678-21 (1) disseminate to the public an official roster of
678-22 registered installers; and
678-23 (2) provide to authorized agents a monthly update of
678-24 the roster.
678-25 SECTION 11.114. Sections 366.091(b) and (d), Health and
678-26 Safety Code, are amended to read as follows:
678-27 (b) A person commits an offense if the person violates a
679-1 rule adopted by the commission <board> under this chapter or an
679-2 order or resolution adopted by an authorized agent under Subchapter
679-3 C in a county that is contiguous to an international border.
679-4 (d) An emergency repair to an on-site sewage disposal system
679-5 without a permit in accordance with the rules adopted under Section
679-6 366.012(a)(1)(C) is not an offense under this section if a written
679-7 statement describing the need for the repair is provided to the
679-8 commission <department> or its authorized agent not later than 72
679-9 hours after the repair is begun.
679-10 SECTION 11.115. Section 366.093(a), Health and Safety Code,
679-11 is amended to read as follows:
679-12 (a) A prosecuting attorney who receives a report from the
679-13 commission <department> or an authorized agent of a violation of
679-14 this chapter or a rule adopted under this chapter shall:
679-15 (1) begin appropriate proceedings in the proper court
679-16 without unnecessary delay; and
679-17 (2) prosecute the cause as required by law.
679-18 SECTION 11.116. Section 367.001(2), Health and Safety Code,
679-19 is amended to read as follows:
679-20 (2) "Commission" <"Department"> means the Texas
679-21 Natural Resource Conservation Commission.
679-22 SECTION 11.117. Section 367.002, Health and Safety Code, is
679-23 amended to read as follows:
679-24 Sec. 367.002. Composition of Council. The On-site
679-25 Wastewater Treatment Research Council is composed of the following
679-26 11 members appointed by the governor:
679-27 (1) two builders of housing constructed on-site in
680-1 this state;
680-2 (2) one residential real estate developer;
680-3 (3) one professional engaged in municipal or county
680-4 regulation of on-site wastewater treatment in this state;
680-5 (4) one practicing engineer with significant
680-6 experience designing on-site wastewater treatment systems;
680-7 (5) two employees of the commission <Texas Natural
680-8 Resource Conservation Commission>;
680-9 (6) one representative of an industry using on-site
680-10 wastewater treatment in this state as part of its commercial or
680-11 manufacturing process;
680-12 (7) one person employed in the field of rural water
680-13 quality in this state;
680-14 (8) one soils scientist who is involved in and
680-15 familiar with innovative on-site wastewater disposal techniques;
680-16 and
680-17 (9) one representative of the public with a
680-18 demonstrated involvement in efforts to safeguard the environment.
680-19 SECTION 11.118. Sections 367.007(a) and (b), Health and
680-20 Safety Code, are amended to read as follows:
680-21 (a) The commission <department>, at the direction of the
680-22 council, shall implement council decisions.
680-23 (b) The council may enter into an interagency contract with
680-24 the commission <department> to provide staff and other
680-25 administrative support as required to improve the quality of
680-26 wastewater treatment and reduce the cost of providing wastewater
680-27 treatment to consumers.
681-1 SECTION 11.119. Sections 367.010(a), (b), and (c), Health
681-2 and Safety Code, are amended to read as follows:
681-3 (a) The commission <Texas Department of Health> and each
681-4 county, municipality, public health department, and river authority
681-5 shall collect a $10 fee for each on-site wastewater treatment
681-6 permit it issues.
681-7 (b) The fee shall be forwarded to the commission
681-8 <department> not later than the 30th day after the date on which it
681-9 is collected.
681-10 (c) The commission <department> may enforce the collection
681-11 and forwarding of the fee.
681-12 SECTION 11.120. Section 369.001(1), Health and Safety Code,
681-13 is amended to read as follows:
681-14 (1) "Commission" <"Department"> means the Texas
681-15 Natural Resource Conservation Commission.
681-16 SECTION 11.121. Sections 369.002(e) and (f), Health and
681-17 Safety Code, are amended to read as follows:
681-18 (e) The commission <department> may approve the use of
681-19 another nationally or internationally recognized label coding
681-20 system for special-purpose plastic bottles or rigid plastic
681-21 containers which are components of motor vehicles in place of the
681-22 symbols described by Subsections (c) and (d).
681-23 (f) The commission <department> shall:
681-24 (1) maintain a list of the symbols; and
681-25 (2) provide a copy of that list to any person on
681-26 request.
681-27 SECTION 11.122. Sections 371.003(2)-(10), Health and Safety
682-1 Code, are amended to read as follows:
682-2 (2) "Commission" <"Board" means the Texas Natural
682-3 Resource Conservation Commission.>
682-4 <(3) "Department"> means the Texas Natural Resource
682-5 Conservation Commission.
682-6 (3) <(4)> "Do-it-yourself (DIY) used oil" means used
682-7 oil that is generated by a person who changes the person's own
682-8 automotive oil.
682-9 (4) <(5)> "Generator" means a person whose act or
682-10 process produces used oil.
682-11 (5) <(6)> "Public used oil collection center" means:
682-12 (A) an automotive service facility that in the
682-13 course of business accepts for recycling small quantities of used
682-14 oil from private citizens;
682-15 (B) a facility that stores used oil in
682-16 aboveground tanks and in the course of business accepts for
682-17 recycling small quantities of used oil from private citizens; and
682-18 (C) a publicly sponsored collection facility
682-19 that is designated and authorized by the commission <department> to
682-20 accept for recycling small quantities of used oil from private
682-21 citizens.
682-22 (6) <(7)> "Reclaiming" means using methods, other than
682-23 rerefining, to remove insoluble impurities from used oil and making
682-24 the used oil suitable for further use as a lubricant or petroleum
682-25 product. The term includes settling, heating, dehydration,
682-26 filtration, or centrifuging.
682-27 (7) <(8)> "Recycling" means:
683-1 (A) preparing used oil for reuse as a petroleum
683-2 product by rerefining, reclaiming, or other means; or
683-3 (B) using used oil as a lubricant or petroleum
683-4 product instead of using a petroleum product made from new oil.
683-5 (8) <(9)> "Rerefining" means applying refining
683-6 processes to used oil to produce high-quality base stocks for
683-7 lubricants or other petroleum products.
683-8 (9) <(10)> "Used oil" means any oil that has been
683-9 refined from crude oil or a synthetic oil that, as a result of use,
683-10 storage, or handling, has become unsuitable for its original
683-11 purpose because of impurities or the loss of original properties,
683-12 but that may be suitable for further use and is recyclable.
683-13 SECTION 11.123. Sections 371.021, 371.022, and 371.023,
683-14 Health and Safety Code, are amended to read as follows:
683-15 Sec. 371.021. Public Education. The commission <department>
683-16 shall conduct an education program to inform the public of the need
683-17 for and benefits of collection and recycling of used oil. The
683-18 program shall:
683-19 (1) establish, maintain, and publicize a used oil
683-20 information center that prepares and disperses materials and
683-21 information explaining laws and rules regulating used oil and
683-22 informing the public of places and methods for proper recycling of
683-23 used oil;
683-24 (2) encourage the voluntary establishment of used oil
683-25 collection and recycling programs by private businesses and
683-26 organizations and by local governments and provide technical
683-27 assistance to persons who organize those programs; and
684-1 (3) encourage local governments to procure recycled
684-2 automotive and industrial oils and oils blended with recycled oils,
684-3 if those oils meet equipment manufacturer's specifications.
684-4 Sec. 371.022. Notice by Retail Dealer. A retail dealer who
684-5 annually sells directly to the public more than 500 gallons of oil
684-6 in containers for use off-premises shall post in a prominent place
684-7 a sign provided by the commission <department> informing the public
684-8 that improper disposal of used oil is prohibited by law. The sign
684-9 shall also prominently display the toll-free telephone number of
684-10 the state used oil information center established under Section
684-11 371.021.
684-12 Sec. 371.023. Grants to Local Governments. (a) The
684-13 commission <department> shall develop a grant program for local
684-14 governments that encourages the collection, reuse, and recycling of
684-15 DIY used oil.
684-16 (b) A grant may be made for any project approved by the
684-17 commission <department>. The commission <department> shall
684-18 consider for grant assistance any local government project that
684-19 uses one or more of the following programs:
684-20 (1) curbside pickup of containers of DIY used oil by a
684-21 local government or its representative;
684-22 (2) retrofitting of municipal solid waste equipment to
684-23 facilitate curbside pickup of DIY used oil;
684-24 (3) establishment of publicly operated DIY used oil
684-25 collection centers at landfills, fire stations, or other public
684-26 places;
684-27 (4) provision of containers and other materials and
685-1 supplies that can be used to store DIY used oil for pickup or
685-2 delivery to a used oil collection center in an environmentally
685-3 sound manner; and
685-4 (5) any other activity the commission <department>
685-5 determines will encourage the proper recycling of DIY used oil.
685-6 (c) The commission <board> by rule shall establish
685-7 procedures for the application for and criteria for the award of
685-8 grants under this section.
685-9 SECTION 11.124. Sections 371.024(b), (c), (d), and (e),
685-10 Health and Safety Code, are amended to read as follows:
685-11 (b) A public used oil collection center annually shall:
685-12 (1) register with the commission <department>; and
685-13 (2) report to the commission <department> the amounts
685-14 of used oil collected by the center from the public.
685-15 (c) The commission <board> shall adopt rules governing the
685-16 registration of and reporting by public used oil collection
685-17 centers.
685-18 (d) The commission <board> by rule shall adopt standards for
685-19 managing and operating a public used oil collection center.
685-20 (e) The commission <department> may impose a registration
685-21 fee in an amount sufficient to cover the cost of registering public
685-22 used oil collection centers.
685-23 SECTION 11.125. Section 371.025(a), Health and Safety Code,
685-24 is amended to read as follows:
685-25 (a) A person may not recover from the owner, operator, or
685-26 lessor of a registered public used oil collection center any
685-27 damages or costs of response actions at another location resulting
686-1 from a release or threatened release of used oil collected at the
686-2 center if:
686-3 (1) the owner, operator, or lessor of the collection
686-4 center does not mix the used oil collected with any hazardous waste
686-5 or polychlorinated biphenyls (PCBs);
686-6 (2) the owner, operator, or lessor of the collection
686-7 center does not accept used oil that the owner, operator, or lessor
686-8 knows contains hazardous waste or PCBs; and
686-9 (3) the collection center is in compliance with
686-10 management standards adopted by the commission <department>.
686-11 SECTION 11.126. Sections 371.026(a), (b), (c), (d), and (e),
686-12 Health and Safety Code, are amended to read as follows:
686-13 (a) A person who transports over public highways of this
686-14 state more than 500 gallons of used oil annually, who markets more
686-15 than 500 gallons of used oil annually, or who recycles more than
686-16 10,000 gallons of used oil annually shall register annually with
686-17 the commission <department> on forms prescribed by the commission
686-18 <department> and in accordance with commission <board> rules.
686-19 (b) The commission <department> shall develop a registration
686-20 program for transporters, marketers, and recyclers of used oil.
686-21 (c) The commission <board> shall adopt rules governing
686-22 registration and reporting of used oil transporters, marketers, and
686-23 recyclers. The rules shall require that a used oil transporter,
686-24 marketer, or recycler:
686-25 (1) register annually with the commission
686-26 <department>;
686-27 (2) report annually the sources of used oil
687-1 transported, marketed, or recycled during the preceding year, the
687-2 quantity of used oil received, the date of receipt, and the
687-3 destination or end use of the used oil;
687-4 (3) provide evidence of familiarity with applicable
687-5 state laws and rules and management procedures applicable to used
687-6 oil transportation, marketing, or recycling; and
687-7 (4) provide proof of liability insurance or other
687-8 evidence of financial responsibility for any liability that may be
687-9 incurred in transporting, marketing, or recycling used oil.
687-10 (d) The commission <board> by rule shall adopt reasonable
687-11 management and safety standards for the transportation, marketing,
687-12 and recycling of used oil.
687-13 (e) The commission <department> may impose a registration
687-14 fee in an amount sufficient to cover the cost of registering used
687-15 oil transporters, marketers, and recyclers.
687-16 SECTION 11.127. Sections 371.027 and 371.028, Health and
687-17 Safety Code, are amended to read as follows:
687-18 Sec. 371.027. Gifts and Grants. The commission <department>
687-19 may apply for, request, solicit, contract for, receive, and accept
687-20 gifts, grants, donations, and other assistance from any source to
687-21 carry out its powers and duties under this chapter.
687-22 Sec. 371.028. Rules. The commission <board> may adopt any
687-23 rules necessary to carry out the purposes of this chapter.
687-24 SECTION 11.128. Section 371.041(b), Health and Safety Code,
687-25 is amended to read as follows:
687-26 (b) A person commits an offense if the person:
687-27 (1) intentionally discharges used oil into a sewer,
688-1 drainage system, septic tank, surface water or groundwater,
688-2 watercourse, or marine water;
688-3 (2) knowingly mixes or commingles used oil with solid
688-4 waste that is to be disposed of in landfills or directly disposes
688-5 of used oil on land or in landfills;
688-6 (3) intentionally mixes or commingles used oil with
688-7 hazardous waste or other hazardous substances or PCBs;
688-8 (4) transports, markets, or recycles used oil within
688-9 the state without first complying with the registration
688-10 requirements of Section 371.026 and rules adopted under that
688-11 section;
688-12 (5) applies used oil to roads or land for dust
688-13 suppression, weed abatement, or other similar uses that introduce
688-14 used oil into the environment; or
688-15 (6) violates an order of the commission <department>
688-16 to cease and desist any activity prohibited by this section or any
688-17 rule applicable to a prohibited activity.
688-18 SECTION 11.129. Section 371.043(d), Health and Safety Code,
688-19 is amended to read as follows:
688-20 (d) The commission <department>, a local government in whose
688-21 jurisdiction the violation occurs, or the state may bring suit to
688-22 recover a penalty under this section.
688-23 SECTION 11.130. Section 371.044(a), Health and Safety Code,
688-24 is amended to read as follows:
688-25 (a) If it appears that a violation or threat of violation of
688-26 this chapter or any rule or order adopted under this chapter has
688-27 occurred or is about to occur and is causing or may cause immediate
689-1 injury or constitutes a significant threat to the health, welfare,
689-2 or personal property of a citizen or a local government, the
689-3 commission <department>, the local government, or the state may
689-4 bring suit in district court for injunctive relief to restrain the
689-5 violation or the threat of violation.
689-6 SECTION 11.131. Sections 371.061(b), (c), and (d), Health
689-7 and Safety Code, are amended to read as follows:
689-8 (b) The fund consists of:
689-9 (1) fees collected under Sections 371.024, 371.026,
689-10 and 371.062;
689-11 (2) interest and penalties imposed under this chapter
689-12 for late payment of fees, failure to file a report, or other
689-13 violations of this chapter; and
689-14 (3) gifts, grants, donations, or other financial
689-15 assistance the commission <department> is authorized to receive
689-16 under Section 371.027.
689-17 (c) Except as provided by Subsection (d), the commission
689-18 <department> may use money in the fund for purposes authorized by
689-19 this chapter, including:
689-20 (1) public education;
689-21 (2) grants;
689-22 (3) registration of used oil collection centers, used
689-23 oil transporters, used oil marketers, and used oil recyclers; and
689-24 (4) administrative costs of implementing this chapter.
689-25 (d) The commission <department> shall retain <transfer> 25
689-26 percent of the fees collected under Section 371.062 <to the Texas
689-27 Water Commission> for the sole purpose of restoring the
690-1 environmental quality of those sites in the state that the
690-2 commission has identified as having been contaminated through
690-3 improper used oil management and for which other funds from a
690-4 potentially responsible party or the federal government are not
690-5 sufficient. This subsection expires on January 1, 1997.
690-6 SECTION 11.132. Section 371.062(j), Health and Safety Code,
690-7 is amended to read as follows:
690-8 (j) The fee imposed under this section is two cents per
690-9 quart or eight cents per gallon of automotive oil. The commission
690-10 <department> shall monitor the unobligated balance of the used oil
690-11 recycling fund and shall adjust the fee rate to meet expenditure
690-12 requirements of the used oil recycling program and to maintain an
690-13 appropriate fund balance. The fee imposed under this section may
690-14 not exceed five cents per quart or 20 cents per gallon of
690-15 automotive oil. On or before September 1 of each year, the
690-16 commission <department> and the comptroller jointly shall issue
690-17 notice of the effective fee rate for the next fiscal year.
690-18 SECTION 11.133. Section 372.001, Health and Safety Code, is
690-19 amended to read as follows:
690-20 Sec. 372.001. Definitions. In this chapter:
690-21 (1) "Commission" <"Board"> means the Texas Natural
690-22 Resource Conservation Commission.
690-23 (2) "Executive director" <"Commissioner"> means the
690-24 executive director of the commission <Texas Natural Resource
690-25 Conservation Commission>.
690-26 (3) <"Department" means the Texas Natural Resource
690-27 Conservation Commission.>
691-1 <(4)> "Plumbing fixture" means a sink faucet, lavatory
691-2 faucet, faucet aerator, shower head, urinal, toilet, flush valve
691-3 toilet, or drinking water fountain.
691-4 (4) <(5)> "Toilet" means a toilet or water closet
691-5 except a wall-mounted toilet that employs a flushometer or flush
691-6 valve.
691-7 SECTION 11.134. Sections 372.002(a), (b), (c), (d), and (e),
691-8 Health and Safety Code, are amended to read as follows:
691-9 (a) A person may not sell, offer for sale, distribute, or
691-10 import into this state a plumbing fixture for use in this state
691-11 unless:
691-12 (1) the plumbing fixture meets the water saving
691-13 performance standards provided by Subsection (b); and
691-14 (2) the plumbing fixture is listed by the commission
691-15 <department> under Subsection (c).
691-16 (b) The water saving performance standards for a plumbing
691-17 fixture are those established by the American National Standards
691-18 Institute or the following standards, whichever are more
691-19 restrictive:
691-20 (1) for a sink or lavatory faucet or a faucet aerator,
691-21 maximum flow may not exceed 2.2 gallons of water per minute at a
691-22 pressure of 60 pounds per square inch when tested according to
691-23 testing procedures adopted by the commission <board>;
691-24 (2) for a shower head, maximum flow may not exceed
691-25 2.75 gallons of water per minute at a constant pressure over 80
691-26 pounds per square inch when tested according to testing procedures
691-27 adopted by the commission <board>;
692-1 (3) for a urinal and the associated flush valve, if
692-2 any, maximum flow may not exceed an average of one gallon of water
692-3 per flushing when tested according to the hydraulic performance
692-4 requirements adopted by the commission <board>;
692-5 (4) for a toilet, maximum flow may not exceed an
692-6 average of 1.6 gallons of water per flushing when tested according
692-7 to the hydraulic performance requirements adopted by the commission
692-8 <board>;
692-9 (5) for a wall-mounted toilet that employs a
692-10 flushometer or flush valve, maximum flow may not exceed an average
692-11 of two gallons of water per flushing or the flow rate established
692-12 by the American National Standards Institute for ultra-low flush
692-13 toilets, whichever is lower; and
692-14 (6) a drinking water fountain must be self-closing.
692-15 (c) The commission <board> shall make and maintain a current
692-16 list of plumbing fixtures that are certified to the commission
692-17 <board> by the manufacturer or importer to meet the water saving
692-18 performance standards established by Subsection (b). To have a
692-19 plumbing fixture included on the list, a manufacturer or importer
692-20 must supply to the commission <department>, in the form prescribed
692-21 by the commission <department>, the identification and the
692-22 performance specifications of the plumbing fixture. The commission
692-23 <department> may test a listed fixture to determine the accuracy of
692-24 the manufacturer's or importer's certification and shall remove
692-25 from the list a fixture the commission <board> finds to be
692-26 inaccurately certified.
692-27 (d) The commission <department> may assess against a
693-1 manufacturer or an importer a reasonable fee for an inspection of a
693-2 product to determine the accuracy of the manufacturer's or
693-3 importer's certification in an amount determined by the commission
693-4 <board> to cover the expenses incurred in the administration of
693-5 this chapter. A fee received by the commission <department> under
693-6 this subsection shall be deposited in the state treasury to the
693-7 credit of the commission <department> and may be used only for the
693-8 administration of this chapter.
693-9 (e) The commission <board and the department> shall, to the
693-10 extent appropriate and practical, employ the standards designated
693-11 American National Standards by the American National Standards
693-12 Institute in determining or evaluating performance standards or
693-13 testing procedures under this chapter.
693-14 SECTION 11.135. Sections 372.003(a), (b), (c), and (d),
693-15 Health and Safety Code, are amended to read as follows:
693-16 (a) A person may not sell, offer for sale, distribute, or
693-17 import into this state a plumbing fixture unless the plumbing
693-18 fixture, including each component of a toilet, flush valve toilet,
693-19 or urinal, and the associated packaging are marked and labeled in
693-20 accordance with the rules adopted by the commission <board>.
693-21 (b) The commission <board> shall adopt rules for the marking
693-22 or labeling of plumbing fixtures. The rules must require
693-23 information concerning water-saving measures to be included in
693-24 required marks or labels. In developing marking or labeling
693-25 requirements, the commission <board> shall consider the
693-26 technological and economical feasibility of a mark or label.
693-27 (c) The commission <board> by rule shall prohibit the sale,
694-1 offering for sale, distribution, or importation into this state of
694-2 a new commercial or residential clothes-washing machine,
694-3 dish-washing machine, or lawn sprinkler unless:
694-4 (1) the manufacturer has furnished to the commission
694-5 <department>, in the form prescribed by the commission
694-6 <department>, the identification and performance specifications of
694-7 the device; and
694-8 (2) the clothes-washing or dish-washing machine or
694-9 lawn sprinkler is labeled in accordance with rules adopted by the
694-10 commission <board> with a statement that describes the device's
694-11 water use characteristics.
694-12 (d) Rules adopted or amended under this section shall be
694-13 developed by the commission <board> in conjunction with a technical
694-14 advisory panel of designated representatives of the Texas Water
694-15 Development Board and<,> the Texas State Board of Plumbing
694-16 Examiners<, and the Texas Natural Resource Conservation
694-17 Commission>.
694-18 SECTION 11.136. Sections 372.0035(d) and (e), Health and
694-19 Safety Code, are amended to read as follows:
694-20 (d) This section does not prohibit the sale or offer for
694-21 sale of a lead joint necessary for the repair of cast-iron pipe.
694-22 The commission <board> shall adopt rules to implement this
694-23 subsection.
694-24 (e) The commission <board> may adopt rules to implement this
694-25 section.
694-26 SECTION 11.137. Sections 372.004(b), (c), and (d), Health
694-27 and Safety Code, are amended to read as follows:
695-1 (b) A person against whom an administrative penalty is
695-2 assessed is entitled to notice and a hearing on the assessment of
695-3 the penalty, as provided by rule of the commission <board>.
695-4 (c) Not later than the 30th day after the date on which the
695-5 executive director's <commissioner's> order assessing the
695-6 administrative penalty is final, the person assessed shall pay the
695-7 full amount of the penalty or file a petition for judicial review.
695-8 If the person seeks judicial review, the person shall send the
695-9 amount of the penalty to the executive director <commissioner> for
695-10 placement in escrow or post with the executive director
695-11 <commissioner> a bond in a form approved by the executive director
695-12 <commissioner> for the amount of the penalty, the bond to be
695-13 effective until judicial review of the order is final. <A person
695-14 who fails to comply with this subsection waives judicial review.>
695-15 (d) The executive director <commissioner> may request
695-16 enforcement by the attorney general if the person assessed the
695-17 penalty fails to comply with this section.
695-18 SECTION 11.138. Sections 372.005(b), (c), (e), and (g),
695-19 Health and Safety Code, are amended to read as follows:
695-20 (b) If it appears that a person has violated, is violating,
695-21 or is threatening to violate this chapter or a rule adopted under
695-22 this chapter, the commission <department>, a county, or a
695-23 municipality may bring a civil action in a district court in Travis
695-24 County, the county in which the defendant resides, or the county
695-25 where the violation occurred, is occurring, or is threatened for:
695-26 (1) injunctive relief to restrain the person from
695-27 continuing the violation or threat of violation;
696-1 (2) the assessment of a civil penalty for a violation;
696-2 or
696-3 (3) both injunctive relief and a civil penalty.
696-4 (c) The commission <department> is an indispensable party in
696-5 a suit brought by a county or municipality under this section.
696-6 (e) In a suit to enjoin a violation of this chapter or a
696-7 rule adopted under this chapter, the court shall grant the state,
696-8 commission <department>, county, or municipality, without bond or
696-9 other undertaking, any injunction that the facts warrant, including
696-10 a temporary restraining order, temporary injunction, or permanent
696-11 injunction.
696-12 (g) At the request of the commission <department>, the
696-13 attorney general shall bring and conduct a suit in the name of the
696-14 state for injunctive relief, to recover a civil penalty, or both.
696-15 SECTION 11.139. Section 382.002(b), Health and Safety Code,
696-16 is amended to read as follows:
696-17 (b) It is intended that this chapter be vigorously enforced
696-18 and that violations of this chapter or any rule or order of the
696-19 Texas Natural Resource Conservation Commission <Air Control Board>
696-20 result in expeditious initiation of enforcement actions as provided
696-21 by this chapter.
696-22 SECTION 11.140. Sections 382.003(4), (5), and (9), Health
696-23 and Safety Code, are amended to read as follows:
696-24 (4) "Commission" <"Board"> means the Texas Natural
696-25 Resource Conservation Commission.
696-26 (5) "Executive director" means the executive director
696-27 of the commission <board>.
697-1 (9) "Modification of existing facility" means any
697-2 physical change in, or change in the method of operation of, a
697-3 stationary source in a manner that increases the amount of any air
697-4 pollutant emitted by the source into the atmosphere or that results
697-5 in the emission of any air pollutant not previously emitted. The
697-6 term does not include:
697-7 (A) insignificant increases in the amount of any
697-8 air pollutant emitted that is authorized by one or more commission
697-9 <board> exemptions;
697-10 (B) insignificant increases at a permitted
697-11 facility;
697-12 (C) maintenance or replacement of equipment
697-13 components that do not increase or tend to increase the amount or
697-14 change the characteristics of the air contaminants emitted into the
697-15 atmosphere; or
697-16 (D) an increase in the annual hours of operation
697-17 unless the existing facility has received a preconstruction permit
697-18 or has been exempted, pursuant to Section 382.057, from
697-19 preconstruction permit requirements.
697-20 SECTION 11.141. Section 382.005, Health and Safety Code, is
697-21 amended to read as follows:
697-22 Sec. 382.005. Remedies Supplemental. The remedies provided
697-23 by this chapter to prevent, abate, or penalize violations of the
697-24 commission's <board's> rules, orders, or permits or the causing of
697-25 or contributing to air pollution are supplemental to other causes
697-26 of actions and remedies available to the state at common law or by
697-27 other statutes.
698-1 SECTION 11.142. The heading to Subchapter B, Chapter 382,
698-2 Health and Safety Code, is amended to read as follows:
698-3 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION <BOARD>
698-4 SECTION 11.143. Sections 382.011, 382.012, 382.013, 382.014,
698-5 and 382.0145, Health and Safety Code, are amended to read as
698-6 follows:
698-7 Sec. 382.011. General Powers and Duties. (a) The
698-8 commission <board> shall:
698-9 (1) administer this chapter;
698-10 (2) establish the level of quality to be maintained in
698-11 the state's air; and
698-12 (3) control the quality of the state's air.
698-13 (b) The commission <board> shall seek to accomplish the
698-14 purposes of this chapter through the control of air contaminants by
698-15 all practical and economically feasible methods.
698-16 (c) The commission <board> has the powers necessary or
698-17 convenient to carry out its responsibilities.
698-18 Sec. 382.012. State Air Control Plan. The commission
698-19 <board> shall prepare and develop a general, comprehensive plan for
698-20 the proper control of the state's air.
698-21 Sec. 382.013. Air Quality Control Regions. The commission
698-22 <board> may designate air quality control regions based on
698-23 jurisdictional boundaries, urban-industrial concentrations, and
698-24 other factors, including atmospheric areas, necessary to provide
698-25 adequate implementation of air quality standards.
698-26 Sec. 382.014. Emission Inventory. The commission <board>
698-27 may require a person whose activities cause emissions of air
699-1 contaminants to submit information to enable the commission <board>
699-2 to develop an inventory of emissions of air contaminants in this
699-3 state.
699-4 Sec. 382.0145. Clean Fuel Incentive Surcharge. (a) The
699-5 commission <board> shall levy a clean fuel incentive surcharge of
699-6 20 cents per MMBtu on fuel oil used between April 15 and October 15
699-7 of each year in an industrial or utility boiler that is:
699-8 (1) capable of using natural gas; and
699-9 (2) located in a consolidated metropolitan statistical
699-10 area or metropolitan statistical area with a population of 350,000
699-11 or more that has not met federal ambient air quality standards for
699-12 ozone.
699-13 (b) The commission <board> may not levy the clean fuel
699-14 incentive surcharge on:
699-15 (1) waste oils, used oils, or hazardous waste-derived
699-16 fuels burned for purposes of energy recovery or disposal, if the
699-17 commission <Texas Air Control Board, Texas Water Commission,> or
699-18 the United States Environmental Protection Agency approves or
699-19 permits the burning;
699-20 (2) fuel oil used during:
699-21 (A) any period of full or partial natural gas
699-22 curtailment;
699-23 (B) any period when there is a failure to
699-24 deliver sufficient quantities of natural gas to satisfy contractual
699-25 obligations to the purchaser; or
699-26 (C) a catastrophic event as defined by Section
699-27 382.063;
700-1 (3) fuel oil used between April 15 and October 15 in
700-2 equipment testing or personnel training up to an aggregate of the
700-3 equivalent of 48 hours full-load operation; or
700-4 (4) any firm engaged in fixed price contracts with
700-5 public works agencies for contracts entered into before August 28,
700-6 1989.
700-7 SECTION 11.144. Sections 382.015(a) and (d), Health and
700-8 Safety Code, are amended to read as follows:
700-9 (a) A member, employee, or agent of the commission <board>
700-10 may enter public or private property, other than property designed
700-11 for and used exclusively as a private residence housing not more
700-12 than three families, at a reasonable time to inspect and
700-13 investigate conditions relating to emissions of air contaminants to
700-14 or the concentration of air contaminants in the atmosphere.
700-15 (d) The commission <board> is entitled to the remedies
700-16 provided by Sections 382.082-382.085 if a member, employee, or
700-17 agent is refused the right to enter public or private property as
700-18 provided by this section.
700-19 SECTION 11.145. Sections 382.016 and 382.017, Health and
700-20 Safety Code, are amended to read as follows:
700-21 Sec. 382.016. Monitoring Requirements; Examination of
700-22 Records. (a) The commission <board> may prescribe reasonable
700-23 requirements for:
700-24 (1) measuring and monitoring the emissions of air
700-25 contaminants from a source or from an activity causing or resulting
700-26 in the emission of air contaminants subject to the commission's
700-27 <board's> jurisdiction under this chapter; and
701-1 (2) the owner or operator of the source to make and
701-2 maintain records on the measuring and monitoring of emissions.
701-3 (b) A member, employee, or agent of the commission <board>
701-4 may examine during regular business hours any records or memoranda
701-5 relating to the operation of any air pollution or emission control
701-6 equipment or facility, or relating to emission of air contaminants.
701-7 This subsection does not authorize the examination of records or
701-8 memoranda relating to the operation of equipment or a facility on
701-9 property designed for and used exclusively as a private residence
701-10 housing not more than three families.
701-11 Sec. 382.017. Rules. (a) The commission <board> may adopt
701-12 rules. The commission <board> shall hold a public hearing before
701-13 adopting a rule consistent with the policy and purposes of this
701-14 chapter.
701-15 (b) If the rule will have statewide effect, notice of the
701-16 date, time, place, and purpose of the hearing shall be published
701-17 one time at least 20 days before the scheduled date of the hearing
701-18 in at least three newspapers, the combined circulation of which
701-19 will, in the commission's <board's> judgment, give reasonable
701-20 circulation throughout the state. If the rule will have effect in
701-21 only a part of the state, the notice shall be published one time at
701-22 least 20 days before the scheduled date of the hearing in a
701-23 newspaper of general circulation in the area to be affected.
701-24 (c) Any person may appear and be heard at a hearing to adopt
701-25 a rule. The executive director shall make a record of the names
701-26 and addresses of the persons appearing at the hearing. A person
701-27 heard or represented at the hearing or requesting notice of the
702-1 commission's <board's> action shall be sent by mail written notice
702-2 of the commission's <board's> action.
702-3 (d) Subsections (a) and (b) notwithstanding, the commission
702-4 <board> may adopt rules consistent with Chapter 2001, Government
702-5 Code <the Administrative Procedure and Texas Register Act (Article
702-6 6252-13a, Vernon's Texas Civil Statutes)>, if the commission
702-7 <board> determines that the need for expeditious adoption of
702-8 proposed rules requires use of those procedures.
702-9 (e) The terms and provisions of a rule adopted by the
702-10 commission <board> may differentiate among particular conditions,
702-11 particular sources, and particular areas of the state. In adopting
702-12 a rule, the commission <board> shall recognize that the quantity or
702-13 characteristic of air contaminants or the duration of their
702-14 presence in the atmosphere may cause a need for air control in one
702-15 area of the state but not in other areas. In this connection, the
702-16 commission <board> shall consider:
702-17 (1) the factors found by it to be proper and just,
702-18 including existing physical conditions, topography, population, and
702-19 prevailing wind direction and velocity; and
702-20 (2) the fact that a rule and the degrees of
702-21 conformance with the rule that may be proper for an essentially
702-22 residential area of the state may not be proper for a highly
702-23 developed industrial area or a relatively unpopulated area.
702-24 (f) Except as provided by Sections 382.0171-382.021 or to
702-25 comply with federal law or regulations, the commission <board> by
702-26 rule may not specify:
702-27 (1) a particular method to be used to control or abate
703-1 air pollution;
703-2 (2) the type, design, or method of installation of
703-3 equipment to be used to control or abate air pollution; or
703-4 (3) the type, design, method of installation, or type
703-5 of construction of a manufacturing process or other kind of
703-6 equipment.
703-7 SECTION 11.146. Section 382.0171(a), Health and Safety Code,
703-8 is amended to read as follows:
703-9 (a) In adopting rules, the commission <board> shall
703-10 encourage and may allow the use of natural gas and other
703-11 alternative fuels, as well as select-use technologies, that will
703-12 reduce emissions.
703-13 SECTION 11.147. Sections 382.0172, 382.018, and 382.019,
703-14 Health and Safety Code, are amended to read as follows:
703-15 Sec. 382.0172. International Border Areas. In order to
703-16 qualify for the exceptions provided by Section 179B of the federal
703-17 Clean Air Act (42 U.S.C. Section 7509a), as added by Section 818 of
703-18 the federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549),
703-19 the commission <board>, in developing rules and control programs to
703-20 be included in an implementation plan for an international border
703-21 area, shall ensure that the plan or revision:
703-22 (1) meets all requirements applicable to the plan or
703-23 revision under Title I of the federal Clean Air Act Amendments of
703-24 1990 (Pub.L. No. 101-549), other than a requirement that the plan
703-25 or revision demonstrates attainment and maintenance of the relevant
703-26 national ambient air quality standards by the attainment date
703-27 specified by the applicable provision of Title I of the federal
704-1 Clean Air Act Amendments of 1990 (Pub.L. No. 101-549) or by a
704-2 regulation adopted under that provision; and
704-3 (2) would be adequate to attain and maintain the
704-4 relevant national ambient air quality standards by the attainment
704-5 date specified by the applicable provision of Title I of the
704-6 federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549) or by
704-7 a regulation adopted under that provision, but for emissions
704-8 emanating from outside the United States.
704-9 Sec. 382.018. Outdoor Burning of Waste and Combustible
704-10 Material. The commission <board> by rule may control and prohibit
704-11 the outdoor burning of waste and combustible material and may
704-12 include requirements concerning the particular method to be used to
704-13 control or abate the emission of air contaminants resulting from
704-14 that burning.
704-15 Sec. 382.019. Methods Used to Control and Reduce Emissions
704-16 From Land Vehicles. (a) The commission <board> by rule may
704-17 provide requirements concerning the particular method to be used to
704-18 control and reduce emissions from engines used to propel land
704-19 vehicles.
704-20 (b)<(1) The board shall conduct a study and evaluation to
704-21 determine the appropriateness of adopting and implementing motor
704-22 vehicle emission standards and the compliance program of the State
704-23 of California, taking into consideration the fact that said program
704-24 is still under development. In conducting the study and
704-25 evaluation, the board shall at a minimum make a determination of
704-26 the following:>
704-27 <(A) whether adoption of the State of California
705-1 motor vehicle emissions standards and compliance program will
705-2 result in net air quality benefits, using appropriate air quality
705-3 modeling analysis and considering both volatile organic compound
705-4 and nitrogen oxide emissions and their impact on ambient ozone
705-5 levels;>
705-6 <(B) whether the state will receive emissions
705-7 credits in the state implementation plans for ozone nonattainment
705-8 areas for adopting and implementing the State of California motor
705-9 vehicle emissions standards and compliance program;>
705-10 <(C) whether the board can selectively apply the
705-11 State of California motor vehicle emissions standards to only light
705-12 duty vehicles;>
705-13 <(D) whether the board can discontinue at any
705-14 time the State of California motor vehicle emissions program if it
705-15 determines that a continuation of the program is not in the state's
705-16 best interest;>
705-17 <(E) whether the board can obtain United States
705-18 Environmental Protection Agency approval of the state motor vehicle
705-19 emissions program under the federal Clean Air Act Amendments of
705-20 1990 (Pub.L. No. 101-549) without having to establish and implement
705-21 a pre-sale certification and vehicle emissions testing program or a
705-22 recall enforcement testing program;>
705-23 <(F) whether the board can obtain United States
705-24 Environmental Protection Agency approval of the state motor vehicle
705-25 emissions program under the federal Clean Air Act Amendments of
705-26 1990 (Pub.L. No. 101-549) without being required to mandate the use
705-27 or sale of any specific fuel or fuel content;>
706-1 <(G) the cost of implementing the State of
706-2 California motor vehicle emissions program within areas of this
706-3 state;>
706-4 <(H) whether the implementation of the State of
706-5 California motor vehicle emissions program will cause an
706-6 unreasonable burden on the motor vehicle manufacturers and the fuel
706-7 suppliers considering technical and distribution practicability and
706-8 economic reasonableness; and>
706-9 <(I) whether adoption of the State of California
706-10 motor vehicle emission standards and compliance program will result
706-11 in a more cost-effective reduction in ozone precursors than the
706-12 federal motor vehicle standards and compliance program or than
706-13 other options that could be pursued.>
706-14 <(2) The board shall report the findings of its study
706-15 and evaluation to the 73rd Legislature.>
706-16 <(c)> The commission <board> may not require, as a condition
706-17 precedent to the initial sale of a vehicle or vehicular equipment,
706-18 the inspection, certification, or other approval of any feature or
706-19 equipment designed to control emissions from motor vehicles if that
706-20 feature or equipment has been certified, approved, or otherwise
706-21 authorized under federal law.
706-22 (c) <(d)> The commission <board> or any other state agency
706-23 may not adopt a rule requiring the use of Stage II vapor recovery
706-24 systems that control motor vehicle refueling emissions at a
706-25 gasoline dispensing facility in this state until the United States
706-26 Environmental Protection Agency determines that the use of the
706-27 system is required for compliance with the federal Clean Air Act
707-1 (42 U.S.C. 7401 et seq.), except the commission <board> may adopt
707-2 rules requiring such vapor recovery systems installed in
707-3 nonattainment areas if it can be demonstrated to be necessary for
707-4 the attainment of federal ozone ambient air quality standards or,
707-5 following appropriate health studies and in consultation with the
707-6 Texas Department of Health, it is determined to be necessary for
707-7 the protection of public health.
707-8 SECTION 11.148. Section 382.0195(a), Health and Safety Code,
707-9 is amended to read as follows:
707-10 (a) The commission <board> shall adopt rules prescribing the
707-11 most effective emissions control technology reasonably available to
707-12 control emissions of air contaminants from a commercial infectious
707-13 waste incinerator.
707-14 SECTION 11.149. Sections 382.020, 382.0205, 382.021,
707-15 382.022, 382.023, 382.024, and 382.025, Health and Safety Code, are
707-16 amended to read as follows:
707-17 Sec. 382.020. Control of Emissions From Facilities That
707-18 Handle Certain Agricultural Products. (a) The commission <board>,
707-19 when it determines that the control of air pollution is necessary,
707-20 shall adopt rules concerning the control of emissions of
707-21 particulate matter from plants at which grain, seed, legumes, or
707-22 vegetable fibers are handled, loaded, unloaded, dried,
707-23 manufactured, or processed according to a formula derived from the
707-24 process weight of the materials entering the process.
707-25 (b) A person affected by a rule adopted under this section
707-26 may use:
707-27 (1) the process weight method to control and measure
708-1 the emissions from the plant; or
708-2 (2) any other method selected by that person that the
708-3 commission <board> or the executive director, if authorized by the
708-4 commission <board>, finds will provide adequate emission control
708-5 efficiency and measurement.
708-6 Sec. 382.0205. Special Problems Related to Air Contaminant
708-7 Emissions. Consistent with applicable federal law, the commission
708-8 <board> by rule may control air contaminants as necessary to
708-9 protect against adverse effects related to:
708-10 (1) acid deposition;
708-11 (2) stratospheric changes, including depletion of
708-12 ozone; and
708-13 (3) climatic changes, including global warming.
708-14 Sec. 382.021. Sampling Methods and Procedures. (a) The
708-15 commission <board> may prescribe the sampling methods and
708-16 procedures to be used in determining violations of and compliance
708-17 with the commission's <board's> rules, variances, and orders,
708-18 including:
708-19 (1) ambient air sampling;
708-20 (2) stack-sampling;
708-21 (3) visual observation; or
708-22 (4) any other sampling method or procedure generally
708-23 recognized in the field of air pollution control.
708-24 (b) The commission <board> may prescribe new sampling
708-25 methods and procedures if:
708-26 (1) in the commission's <board's> judgment, existing
708-27 methods or procedures are not adequate to meet the needs and
709-1 objectives of the commission's <board's> rules, variances, and
709-2 orders; and
709-3 (2) the scientific applicability of the new methods or
709-4 procedures can be satisfactorily demonstrated to the commission
709-5 <board>.
709-6 Sec. 382.022. Investigations. The executive director may
709-7 make or require the making of investigations:
709-8 (1) that the executive director considers advisable in
709-9 administering this chapter and the commission's <board's> rules,
709-10 orders, and determinations, including investigations of violations
709-11 and general air pollution problems or conditions; or
709-12 (2) as requested or directed by the commission
709-13 <board>.
709-14 Sec. 382.023. Orders. (a) The commission <board> may issue
709-15 orders and make determinations as necessary to carry out the
709-16 purposes of this chapter. Orders authorized by this chapter may be
709-17 issued only by the commission <board> unless expressly provided by
709-18 this chapter.
709-19 (b) If it appears that this chapter or a commission <board>
709-20 rule, order, or determination is being violated, the commission
709-21 <board>, or the executive director if authorized by the commission
709-22 <board> or this chapter, may proceed under Sections
709-23 382.082-382.084, or hold a public hearing and issue orders on the
709-24 alleged violation, or take any other action authorized by this
709-25 chapter as the facts may warrant.
709-26 (c) In addition to the notice required by Chapter 2001,
709-27 Government Code <the Administrative Procedure and Texas Register
710-1 Act (Article 6252-13a, Vernon's Texas Civil Statutes)>, the
710-2 commission <board> or the executive director shall give notice to
710-3 such other interested persons as the commission <board> or the
710-4 executive director may designate.
710-5 Sec. 382.024. Factors in Issuing Orders and Determinations.
710-6 In issuing an order and making a determination, the commission
710-7 <board> shall consider the facts and circumstances bearing on the
710-8 reasonableness of emissions, including:
710-9 (1) the character and degree of injury to or
710-10 interference with the public's health and physical property;
710-11 (2) the source's social and economic value;
710-12 (3) the question of priority of location in the area
710-13 involved; and
710-14 (4) the technical practicability and economic
710-15 reasonableness of reducing or eliminating the emissions resulting
710-16 from the source.
710-17 Sec. 382.025. Orders Relating to Controlling Air Pollution.
710-18 (a) If the commission <board> determines that air pollution
710-19 exists, the commission <board> may order any action indicated by
710-20 the circumstances to control the condition.
710-21 (b) The commission <board> shall grant to the owner or
710-22 operator of a source time to comply with its orders as provided for
710-23 by commission <board> rules. Those rules must provide for time for
710-24 compliance gauged to the general situations that the hearings on
710-25 proposed rules indicate are necessary.
710-26 SECTION 11.150. Sections 382.026(a), (b), (c), and (d),
710-27 Health and Safety Code, are amended to read as follows:
711-1 (a) When it appears to the commission <board> or the
711-2 executive director that there exists a generalized condition of air
711-3 pollution that creates an emergency requiring immediate action to
711-4 protect human health or safety, the commission <board> or the
711-5 executive director shall, with the governor's concurrence, order
711-6 any person causing or contributing to the air pollution immediately
711-7 to reduce or discontinue the emission of air contaminants.
711-8 (b) If the commission <board> or the executive director
711-9 finds that emissions from one or more sources are causing imminent
711-10 danger to human health or safety, but that there is not a
711-11 generalized condition of air pollution under Subsection (a), the
711-12 commission <board> or the executive director may order the persons
711-13 responsible for the emissions immediately to reduce or discontinue
711-14 the emissions.
711-15 (c) An order issued under this section must set a time and
711-16 place of a hearing to be held before the commission <board> as soon
711-17 after the order is issued as practicable.
711-18 (d) Section 382.031, relating to notice of a hearing, does
711-19 not apply to a hearing under this section, but a general notice of
711-20 the hearing shall be given that is, in the judgment of the
711-21 commission <board> or the executive director, practicable under the
711-22 circumstances. The commission <board> shall affirm, modify, or set
711-23 aside the order not later than 24 hours after the hearing begins
711-24 and without adjournment of the hearing.
711-25 SECTION 11.151. Section 382.027, Health and Safety Code, is
711-26 amended to read as follows:
711-27 Sec. 382.027. PROHIBITION ON COMMISSION <BOARD> ACTION
712-1 RELATING TO AIR CONDITIONS EXISTING SOLELY IN COMMERCIAL AND
712-2 INDUSTRIAL FACILITIES. (a) The commission <board> may not adopt a
712-3 rule, determination, or order that:
712-4 (1) relates to air conditions existing solely within
712-5 buildings and structures used for commercial and industrial plants,
712-6 works, or shops if the source of the offending air contaminants is
712-7 under the control of the person who owns or operates the plants,
712-8 works, or shops; or
712-9 (2) affects the relations between employers and their
712-10 employees relating to or arising out of an air condition from a
712-11 source under the control of the person who owns or operates the
712-12 plants, works, or shops.
712-13 (b) This section does not limit or restrict the authority or
712-14 powers granted to the commission <board> under Sections 382.018 and
712-15 382.021.
712-16 SECTION 11.152. Section 382.028(b), Health and Safety Code,
712-17 is amended to read as follows:
712-18 (b) A variance is an exceptional remedy that may be granted
712-19 only on demonstration that compliance with a provision of this
712-20 chapter or commission <board> rule or order results in an arbitrary
712-21 and unreasonable taking of property.
712-22 SECTION 11.153. Sections 382.029, 382.0291, and 382.030,
712-23 Health and Safety Code, are amended to read as follows:
712-24 Sec. 382.029. Hearing Powers. The commission <board> may
712-25 call and hold hearings, administer oaths, receive evidence at a
712-26 hearing, issue subpoenas to compel the attendance of witnesses and
712-27 the production of papers and documents related to a hearing, and
713-1 make findings of fact and decisions relating to administering this
713-2 chapter or the rules, orders, or other actions of the commission
713-3 <board>.
713-4 Sec. 382.0291. Public Hearing Procedures. (a) Any
713-5 statements, correspondence, or other form of oral or written
713-6 communication made by a member of the legislature to a commission
713-7 <board> official or employee during a public hearing conducted by
713-8 the commission <board> shall become part of the record of the
713-9 hearing, regardless of whether the member is a party to the
713-10 hearing.
713-11 (b) When a public hearing conducted by the commission
713-12 <board> is required by law to be conducted at a certain location,
713-13 the commission <board> shall determine the place within that
713-14 location at which the hearing will be conducted. In making that
713-15 determination, the commission <board> shall consider the cost of
713-16 available facilities and the adequacy of a facility to accommodate
713-17 the type of hearing and anticipated attendance.
713-18 (c) The commission <board> shall conduct at least one
713-19 session of a public hearing after normal business hours on request
713-20 by a party to the hearing or any person who desires to attend the
713-21 hearing.
713-22 (d) An applicant for a license, permit, registration, or
713-23 similar form of permission required by law to be obtained from the
713-24 commission <board> may not amend the application after the 31st day
713-25 before the date on which a public hearing on the application is
713-26 scheduled to begin. If an amendment of an application would be
713-27 necessary within that period, the applicant shall resubmit the
714-1 application to the commission <board> and must again comply with
714-2 notice requirements and any other requirements of law or commission
714-3 <board> rule as though the application were originally submitted to
714-4 the commission <board> on that date.
714-5 (e) If an application for a license, permit, registration,
714-6 or similar form of permission required by law is pending before the
714-7 commission <board> at a time when changes take effect concerning
714-8 notice requirements imposed by law for that type of application,
714-9 the applicant must comply with the new notice requirements.
714-10 Sec. 382.030. Delegation of Hearing Powers. (a) The
714-11 commission <board> may delegate the authority to hold hearings
714-12 called by the commission under this chapter <board> to:
714-13 (1) one or more commission <board> members;
714-14 (2) the executive director; or
714-15 (3) one or more commission <board> employees.
714-16 (b) Except for hearings required to be held before the
714-17 commission <board> under Section 382.026, the commission <board>
714-18 may authorize the executive director to:
714-19 (1) call and hold a hearing on any subject on which
714-20 the commission <board> may hold a hearing; and
714-21 (2) delegate the authority to hold any hearing called
714-22 by the executive director to one or more commission <board>
714-23 employees.
714-24 (c) The commission <board> may establish the qualifications
714-25 for individuals to whom the commission <board> or the executive
714-26 director delegates the authority to hold hearings.
714-27 (d) An individual holding a hearing under this section may
715-1 administer oaths and receive evidence at the hearing and shall
715-2 report the hearing in the manner prescribed by the commission
715-3 <board>.
715-4 SECTION 11.154. Section 382.031(c), Health and Safety Code,
715-5 is amended to read as follows:
715-6 (c) If notice of the hearing is required by this chapter to
715-7 be given to a person, the notice shall be served personally or
715-8 mailed to the person at the person's most recent address known to
715-9 the commission <board> not less than 30 days before the date set
715-10 for the hearing. If the party is not an individual, the notice may
715-11 be given to an officer, agent, or legal representative of the
715-12 party.
715-13 SECTION 11.155. Sections 382.032, 382.033, 382.034, 382.035,
715-14 and 382.036, Health and Safety Code, are amended to read as
715-15 follows:
715-16 Sec. 382.032. APPEAL OF COMMISSION <BOARD> ACTION. (a) A
715-17 person affected by a ruling, order, decision, or other act of the
715-18 commission <board> or of the executive director, if an appeal to
715-19 the commission <board> is not provided, may appeal the action by
715-20 filing a petition in a district court of Travis County.
715-21 (b) The petition must be filed within 30 days after the date
715-22 of the commission's <board's> or executive director's action or, in
715-23 the case of a ruling, order, or decision, within 30 days after the
715-24 effective date of the ruling, order, or decision. If the appeal
715-25 relates to the commission's <board's> failure to take final action
715-26 on an application for a federal operating permit, a reopening of a
715-27 federal operating permit, a revision to a federal operating permit,
716-1 or a permit renewal application for a federal operating permit in
716-2 accordance with Section 382.0542(b), the petition may be filed at
716-3 any time before the commission <board> or the executive director
716-4 takes final action.
716-5 (c) Service of citation on the commission <board> must be
716-6 accomplished within 30 days after the date on which the petition is
716-7 filed. Citation may be served on the executive director or any
716-8 commission <board> member.
716-9 (d) The plaintiff shall pursue the action with reasonable
716-10 diligence. If the plaintiff does not prosecute the action within
716-11 one year after the date on which the action is filed, the court
716-12 shall presume that the action has been abandoned. The court shall
716-13 dismiss the suit on a motion for dismissal made by the attorney
716-14 general unless the plaintiff, after receiving due notice, can show
716-15 good and sufficient cause for the delay.
716-16 (e) In an appeal of an action of the commission <board> or
716-17 executive director other than cancellation or suspension of a
716-18 variance, the issue is whether the action is invalid, arbitrary, or
716-19 unreasonable.
716-20 (f) An appeal of the cancellation or suspension of a
716-21 variance must be tried in the same manner as appeals from the
716-22 justice court to the county court.
716-23 Sec. 382.033. Contracts; Instruments. The commission
716-24 <board> may execute contracts and instruments that are necessary or
716-25 convenient to perform its powers or duties.
716-26 Sec. 382.034. Research and Investigations. The commission
716-27 <board> shall conduct or require any research and investigations it
717-1 considers advisable and necessary to perform its duties under this
717-2 chapter.
717-3 Sec. 382.035. Memorandum of Understanding. The commission
717-4 <board> by rule shall adopt any memorandum of understanding between
717-5 the commission <board> and another state agency.
717-6 Sec. 382.036. Cooperation and Assistance. The commission
717-7 <board> shall:
717-8 (1) encourage voluntary cooperation by persons or
717-9 affected groups in restoring and preserving the purity of the
717-10 state's air;
717-11 (2) encourage and conduct studies, investigations, and
717-12 research concerning air quality control;
717-13 (3) collect and disseminate information on air quality
717-14 control;
717-15 (4) advise, consult, and cooperate with other state
717-16 agencies, political subdivisions of the state, industries, other
717-17 states, the federal government, and interested persons or groups
717-18 concerning matters of common interest in air quality control; and
717-19 (5) represent the state in all matters relating to air
717-20 quality plans, procedures, or negotiations for interstate compacts.
717-21 SECTION 11.156. Sections 382.0365(a), (c), (e), and (f),
717-22 Health and Safety Code, are amended to read as follows:
717-23 (a) The commission <board> shall establish a small business
717-24 stationary source technical and environmental compliance assistance
717-25 program.
717-26 (c) The program shall include a compliance advisory panel
717-27 that consists of the following seven members:
718-1 (1) two members who are not owners or representatives
718-2 of owners of small business stationary sources, selected by the
718-3 governor to represent the public;
718-4 (2) two members who are owners or who represent owners
718-5 of small business stationary sources, selected by the speaker of
718-6 the house of representatives;
718-7 (3) two members who are owners or who represent owners
718-8 of small business stationary sources, selected by the lieutenant
718-9 governor; and
718-10 (4) one member selected by the chairman of the
718-11 commission <board> to represent the commission <that agency>.
718-12 (e) The commission <board> shall enter into a memorandum of
718-13 understanding with the Texas Department of Commerce to coordinate
718-14 assistance to any small business in applying for permits from the
718-15 commission <board>.
718-16 (f) The commission <board> may adopt rules reasonably
718-17 necessary to implement this section in compliance with Section 507
718-18 of the federal Clean Air Act (42 U.S.C. Section 7661f), as added
718-19 by Section 501 of the federal Clean Air Act Amendments of 1990
718-20 (Pub.L. No. 101-549) and regulations adopted under that Act.
718-21 SECTION 11.157. Sections 382.037(a), (b), (c), (d), (e),
718-22 (f), (g), (j), (k), (l), and (n), Health and Safety Code, are
718-23 amended to read as follows:
718-24 (a) The commission <board> by resolution may request the
718-25 Public Safety Commission to establish a vehicle emissions
718-26 inspection and maintenance program under Section 142, Uniform Act
718-27 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
719-1 Statutes), in accordance with this section and rules adopted under
719-2 this section. The commission <board> by rule may establish,
719-3 implement, and administer a program requiring emissions-related
719-4 inspections of motor vehicles to be performed at inspection
719-5 facilities consistent with the requirements of the federal Clean
719-6 Air Act (42 U.S.C. Section 7401 et seq.).
719-7 (b) The commission <board> by rule may require
719-8 emissions-related inspection and maintenance of land vehicles,
719-9 including testing exhaust emissions, examining emission control
719-10 devices and systems, verifying compliance with applicable
719-11 standards, and other requirements as provided by federal law or
719-12 regulation.
719-13 (c) If the program is established under this section, the
719-14 commission <board>:
719-15 (1) shall adopt vehicle emissions inspection and
719-16 maintenance requirements for certain areas as required by federal
719-17 law or regulation; and
719-18 (2) may adopt vehicle emissions inspection and
719-19 maintenance requirements for counties not subject to a specific
719-20 federal requirement in response to a formal request by resolutions
719-21 adopted by the county and the most populous municipality within the
719-22 county according to the most recent federal decennial census.
719-23 (d) On adoption of a resolution by the commission <board>
719-24 and after proper notice, the Texas Department of Transportation
719-25 shall implement a system that requires, as a condition of
719-26 registering a motor vehicle under Section 2, Chapter 88, General
719-27 Laws, Acts of the 41st Legislature, 2nd Called Session, 1929
720-1 (Article 6675a-2, Vernon's Texas Civil Statutes), in a county that
720-2 is included in a vehicle emissions inspection and maintenance
720-3 program under Section 142, Uniform Act Regulating Traffic on
720-4 Highways (Article 6701d, Vernon's Texas Civil Statutes), that the
720-5 vehicle, unless the vehicle is not covered by the system or is
720-6 being registered in conjunction with the vehicle's first sale as
720-7 that term is defined by Section 7, Certificate of Title Act
720-8 (Article 6687-1, Vernon's Texas Civil Statutes), be annually or
720-9 biennially inspected under the vehicle emissions inspection and
720-10 maintenance program as required by the Texas air quality state
720-11 implementation plan. The Texas Department of Transportation shall
720-12 implement such a system when it is required by any provision of
720-13 federal or state law, including any provision of the Texas air
720-14 quality state implementation plan. The commission <board> may
720-15 require or accept verification of compliance other than a vehicle
720-16 inspection certificate. The alternative verification of compliance
720-17 shall be in a form determined through joint rule making by the
720-18 commission <board> and the Texas Department of Transportation.
720-19 (e) The commission <board> may assess fees for vehicle
720-20 emissions-related inspections performed at inspection or
720-21 reinspection facilities authorized and licensed by the commission
720-22 <board> in amounts reasonably necessary to recover the costs of
720-23 developing, administering, evaluating, and enforcing the vehicle
720-24 emissions inspection and maintenance program. If the program
720-25 relies on privately operated or contractor-operated inspection or
720-26 reinspection stations, an appropriate portion of the fee as
720-27 determined by commission <board> rule may be retained by the
721-1 station owner or operator to recover the cost of performing the
721-2 inspections and provide a reasonable margin of profit. Any portion
721-3 of the fee collected by the commission <board> is a Clean Air Act
721-4 fee under Section 382.0622.
721-5 (f) The commission <board> shall examine the efficacy of
721-6 annually inspecting diesel vehicles for compliance with applicable
721-7 federal emission standards, compliance with an opacity or other
721-8 emissions-related standard established by commission <board> rule,
721-9 or both and shall implement that inspection program if the
721-10 commission <board> determines the program would minimize emissions.
721-11 For purposes of this subsection, a diesel engine not used in a
721-12 vehicle registered for use on public highways is not a diesel
721-13 vehicle.
721-14 (g) The commission <board> may not establish vehicle fuel
721-15 content standards to provide for vehicle fuel content for clean
721-16 motor vehicle fuels other than those standards promulgated by the
721-17 United States Environmental Protection Agency unless specifically
721-18 authorized by the legislature or unless it is demonstrated to be
721-19 necessary for the attainment of federal ozone ambient air quality
721-20 standards or, following appropriate health studies and in
721-21 consultation with the Texas Department of Health, it is determined
721-22 to be necessary for the protection of public health.
721-23 (j) The commission <board> by rule may establish a voluntary
721-24 program to issue certificates of training in vehicle emission
721-25 control system repair to qualified persons who successfully
721-26 complete testing programs or procedures or training programs
721-27 approved by the commission <board> and by rule may assess a
722-1 registration fee to recover costs of the program. Fees collected
722-2 under this subsection shall be remitted to the comptroller for
722-3 deposit in the clean air fund and may be used only for the purposes
722-4 of this section.
722-5 (k) The commission <board> by rule may establish classes of
722-6 vehicles that are exempt from vehicle emissions inspections and by
722-7 rule may establish procedures to allow and review petitions for the
722-8 exemption of individual vehicles, according to criteria established
722-9 by commission <board> rule. Rules adopted by the commission
722-10 <board> under this subsection must be consistent with federal law.
722-11 The commission <board> by rule may establish fees to recover the
722-12 costs of administering this subsection. Fees collected under this
722-13 subsection shall be remitted to the comptroller for deposit in the
722-14 clean air fund and may be used only for the purposes of this
722-15 section.
722-16 (l) The commission <board> by rule may require a vehicle
722-17 that is exempt from the payment of registration fees and issued
722-18 specially designated license plates under Section 3aa, Chapter 88,
722-19 General Laws, Acts of the 41st Legislature, 2nd Called Session,
722-20 1929 (Article 6675a-3aa, Vernon's Texas Civil Statutes), or that is
722-21 registered in another state or in a county in this state that is
722-22 not included in a vehicle emissions testing and maintenance
722-23 program, to comply with a vehicle emissions inspection and
722-24 maintenance program if the vehicle is primarily operated, as
722-25 defined by commission <board> rule, in a county that is included in
722-26 the vehicle emissions inspection and maintenance program.
722-27 (n) The commission <board> may conduct audits to determine
723-1 compliance with this section and with any vehicle emissions
723-2 inspection and certificate programs under Sections 141 and 142,
723-3 Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's
723-4 Texas Civil Statutes).
723-5 SECTION 11.158. Sections 382.038, 382.039, 382.040, and
723-6 382.041, Health and Safety Code, are amended to read as follows:
723-7 Sec. 382.038. INSPECTION STATIONS; QUALITY CONTROL AUDITS.
723-8 (a) The commission <board> by rule shall adopt standards and
723-9 procedures for establishing vehicle emissions inspection stations
723-10 authorized and licensed by the state.
723-11 (b) A vehicle emissions inspection may be performed at a
723-12 decentralized independent inspection station or at a centralized
723-13 inspection facility operated or licensed by the state. In
723-14 developing the program for vehicle emissions inspections, the
723-15 commission <board> shall make all reasonable efforts to preserve
723-16 the present decentralized system.
723-17 (c) After consultation with the Texas <State> Department of
723-18 <Highways and Public> Transportation, the commission <board> shall
723-19 require state and local transportation planning entities designated
723-20 by the commission <board> to prepare long-term projections of the
723-21 combined impact of significant planned transportation system
723-22 changes on emissions and air quality. The projections shall be
723-23 prepared using air pollution estimation methodologies established
723-24 jointly by the commission <board> and the Texas <State> Department
723-25 of <Highways and Public> Transportation. This subsection does not
723-26 restrict the Texas <State> Department of <Highways and Public>
723-27 Transportation's function as the transportation planning body for
724-1 the state or its role in identifying and initiating specific
724-2 transportation-related projects in the state.
724-3 (d) The commission <board> may authorize enforcement
724-4 personnel or other individuals to remove, disconnect, adjust, or
724-5 make inoperable vehicle emissions control equipment, devices, or
724-6 systems and to operate a vehicle in the tampered condition in order
724-7 to perform a quality control audit of an inspection station or
724-8 other quality control activities as necessary to assess and ensure
724-9 the effectiveness of the vehicle emissions inspection and
724-10 maintenance program.
724-11 (e) The commission <board> shall develop a challenge station
724-12 program to provide for the reinspection of a motor vehicle at the
724-13 option of the owner of the vehicle to ensure quality control of a
724-14 vehicle emissions inspection and maintenance system.
724-15 (f) The commission <board> may contract with one or more
724-16 private entities to operate a program established under this
724-17 section.
724-18 (g) In addition to other procedures established by the
724-19 commission <board>, the commission <board> shall establish
724-20 procedures by which a private entity with whom the commission
724-21 <board> has entered into a contract to operate a program
724-22 established under this section may agree to perform:
724-23 (1) testing at a fleet facility or dealership using
724-24 mobile test equipment;
724-25 (2) testing at a fleet facility or dealership using
724-26 test equipment owned by the fleet or dealership but calibrated and
724-27 operated by the private entity's personnel; or
725-1 (3) testing at a fleet facility or dealership using
725-2 test equipment owned and operated by the private entity and
725-3 installed at the fleet or dealership facility.
725-4 (h) The fee for a test conducted as provided by Subsection
725-5 (g) shall be set by the commission <board> in an amount not to
725-6 exceed twice the fee otherwise provided by law or by rule of the
725-7 commission <board>. An appropriate portion of the fee, as
725-8 determined by the commission <board>, may be remitted by the
725-9 private entity to the fleet facility or dealership.
725-10 Sec. 382.039. ATTAINMENT PROGRAM. (a) The commission
725-11 <board> shall coordinate with federal, state, and local
725-12 transportation planning agencies to develop and implement
725-13 transportation programs and other measures necessary to demonstrate
725-14 and maintain attainment of national ambient air quality standards
725-15 and to protect the public from exposure to hazardous air
725-16 contaminants from motor vehicles.
725-17 (b) Participating agencies include the Texas <State>
725-18 Department of <Highways and Public> Transportation and metropolitan
725-19 planning organizations designated by the governor.
725-20 Sec. 382.040. Documents; Public Property. All information,
725-21 documents, and data collected by the commission <board> in
725-22 performing its duties are state property. Subject to the
725-23 limitations of Section 382.041, all commission <board> records are
725-24 public records open to inspection by any person during regular
725-25 office hours.
725-26 Sec. 382.041. Confidential Information. (a) Except as
725-27 provided by Subsection (b), a member, employee, or agent of the
726-1 commission <board> may not disclose information submitted to the
726-2 commission <board> relating to secret processes or methods of
726-3 manufacture or production that is identified as confidential when
726-4 submitted.
726-5 (b) A member, employee, or agent of the commission <board>
726-6 may disclose information confidential under Subsection (a) to a
726-7 representative of the United States Environmental Protection Agency
726-8 on the request of a representative of that agency if:
726-9 (1) at the time of disclosure the member, employee, or
726-10 agent notifies the representative that the material has been
726-11 identified as confidential when submitted; and
726-12 (2) the commission <board>, before the information is
726-13 disclosed, has entered into an agreement with the United States
726-14 Environmental Protection Agency that ensures that the agency treats
726-15 information identified as confidential as though it had been
726-16 submitted by the originator of the information with an appropriate
726-17 claim of confidentiality under federal law.
726-18 SECTION 11.159. Section 382.051, Health and Safety Code, is
726-19 amended to read as follows:
726-20 Sec. 382.051. PERMITTING AUTHORITY OF COMMISSION <BOARD>;
726-21 RULES. (a) The commission <board> may issue a permit:
726-22 (1) to construct a new facility or modify an existing
726-23 facility that may emit air contaminants; or
726-24 (2) to operate a federal source.
726-25 (b) To assist in fulfilling its authorization provided by
726-26 Subsection (a), the commission <board> may issue:
726-27 (1) special permits for certain facilities;
727-1 (2) a general permit developed by rule for numerous
727-2 similar sources subject to Section 382.054;
727-3 (3) a standard permit developed by rule for numerous
727-4 similar facilities subject to Section 382.0518;
727-5 (4) a single federal operating permit or
727-6 preconstruction permit for multiple federal sources or facilities
727-7 located at the same site; or
727-8 (5) other permits as necessary.
727-9 (c) The commission <board> may issue a federal operating
727-10 permit for a federal source in violation only if the operating
727-11 permit incorporates a compliance plan for the federal source as a
727-12 condition of the permit.
727-13 (d) The commission <board> shall adopt rules as necessary to
727-14 comply with changes in federal law or regulations applicable to
727-15 permits issued under this chapter.
727-16 SECTION 11.160. Sections 382.0511(a), (b), (c), and (d),
727-17 Health and Safety Code, are amended to read as follows:
727-18 (a) The commission <board> may consolidate into a single
727-19 permit:
727-20 (1) any permits, special permits, or exemptions for a
727-21 facility or federal source issued by the commission <board> before
727-22 December 1, 1991; or
727-23 (2) any permit issued by the commission <board> on or
727-24 after December 1, 1991, with any permits, special permits, or
727-25 exemptions issued or qualified for by that date.
727-26 (b) Consistent with the rules adopted under Subsection (d)
727-27 and the limitations of this chapter, including limitations that
728-1 apply to the modification of an existing facility, the commission
728-2 <board> may amend, revise, or modify a permit.
728-3 (c) The commission <board> by rule may authorize changes in
728-4 a federal source to proceed before the owner or operator obtains a
728-5 federal operating permit or revisions to a federal operating permit
728-6 if the owner or operator has obtained a preconstruction permit or
728-7 permit amendment required by Section 382.0518 or an exemption
728-8 allowed under Section 382.057.
728-9 (d) The commission <board> by rule shall develop criteria
728-10 and administrative procedures to implement Subsections (b) and (c).
728-11 SECTION 11.161. Sections 382.0512, 382.0513, 382.0514,
728-12 382.0515, 382.0516, and 382.0517, Health and Safety Code, are
728-13 amended to read as follows:
728-14 Sec. 382.0512. Modification of Existing Facility. In
728-15 determining whether a proposed change at an existing facility is a
728-16 modification, the commission <board> may not consider the effect on
728-17 emissions of:
728-18 (1) any air pollution control method applied to a
728-19 source; or
728-20 (2) any decreases in emissions from other sources.
728-21 Sec. 382.0513. Permit Conditions. The commission <board>
728-22 may establish and enforce permit conditions consistent with this
728-23 chapter. Permit conditions of general applicability shall be
728-24 adopted by rule.
728-25 Sec. 382.0514. Sampling, Monitoring, and Certification. The
728-26 commission <board> may require, at the expense of the permit holder
728-27 and as a condition of the permit:
729-1 (1) sampling and monitoring of a permitted federal
729-2 source or facility;
729-3 (2) certification of the compliance of the owner or
729-4 operator of the permitted federal source with the terms and
729-5 conditions of the permit and with all applicable requirements; and
729-6 (3) a periodic report of:
729-7 (A) the results of sampling and monitoring; and
729-8 (B) the certification of compliance.
729-9 Sec. 382.0515. Application for Permit. A person applying
729-10 for a permit shall submit to the commission <board>:
729-11 (1) a permit application;
729-12 (2) copies of all plans and specifications necessary
729-13 to determine if the facility or source will comply with applicable
729-14 federal and state air control statutes, rules, and regulations and
729-15 the intent of this chapter; and
729-16 (3) any other information the commission <board>
729-17 considers necessary.
729-18 Sec. 382.0516. Notice to State Senator and Representative.
729-19 On receiving an application for a construction permit, a special
729-20 permit, or an operating permit for a facility that may emit air
729-21 contaminants, the commission <board> shall send notice of the
729-22 application to the state senator and representative who represent
729-23 the area in which the facility is or will be located.
729-24 Sec. 382.0517. Determination of Administrative Completion of
729-25 Application. The commission <board> shall determine when an
729-26 application filed under Section 382.054 or Section 382.0518 is
729-27 administratively complete. On determination, the commission
730-1 <board> by mail shall notify the applicant and any interested party
730-2 who has requested notification. If the number of interested
730-3 parties who have requested notification makes it impracticable for
730-4 the commission <board> to notify those parties by mail, the
730-5 commission <board> shall notify those parties by publication using
730-6 the method prescribed by Section 382.031(a).
730-7 SECTION 11.162. Sections 382.0518(a), (b), (c), (d), (e),
730-8 and (f), Health and Safety Code, are amended to read as follows:
730-9 (a) Before work is begun on the construction of a new
730-10 facility or a modification of an existing facility that may emit
730-11 air contaminants, the person planning the construction or
730-12 modification must obtain a permit from the commission <board>.
730-13 (b) The commission <board> shall grant within a reasonable
730-14 time a permit to construct or modify a facility if, from the
730-15 information available to the commission <board>, including
730-16 information presented at any hearing held under Section 382.056(d),
730-17 the commission <board> finds:
730-18 (1) the proposed facility for which a permit or a
730-19 special permit is sought will use at least the best available
730-20 control technology, considering the technical practicability and
730-21 economic reasonableness of reducing or eliminating the emissions
730-22 resulting from the facility; and
730-23 (2) no indication that the emissions from the facility
730-24 will contravene the intent of this chapter, including protection of
730-25 the public's health and physical property.
730-26 (c) In considering the issuance, amendment, or renewal of a
730-27 permit, the commission <board> may consider any adjudicated
731-1 decision or compliance proceeding within the five years before the
731-2 date on which the application was filed that addressed the
731-3 applicant's past performance and compliance with the laws of this
731-4 state, another state, or the United States governing air
731-5 contaminants or with the terms of any permit or order issued by the
731-6 commission <board>.
731-7 (d) If the commission <board> finds that the emissions from
731-8 the proposed facility will contravene the standards under
731-9 Subsection (b) or will contravene the intent of this chapter, the
731-10 commission <board> may not grant the permit or a special permit and
731-11 shall set out in a report to the applicant its specific objections
731-12 to the submitted plans of the proposed facility.
731-13 (e) If the person applying for a permit or a special permit
731-14 makes the alterations in the person's plans and specifications to
731-15 meet the commission's <board's> specific objections, the commission
731-16 <board> shall grant the permit or special permit. If the person
731-17 fails or refuses to alter the plans and specifications, the
731-18 commission <board> may not grant the permit or special permit. The
731-19 commission <board> may refuse to accept a person's new application
731-20 until the commission's <board's> objections to the plans previously
731-21 submitted by that person are satisfied.
731-22 (f) A person may operate a facility or source under a permit
731-23 issued by the commission <board> under this section if:
731-24 (1) the facility or source is not required to obtain a
731-25 federal operating permit under Section 382.054; and
731-26 (2) within the time and in the manner prescribed by
731-27 commission <board> rule, the permit holder demonstrates that:
732-1 (A) the facility complies with all terms of the
732-2 existing preconstruction permit; and
732-3 (B) operation of the facility or source will not
732-4 violate the intent of this chapter or standards adopted by the
732-5 commission <board>.
732-6 SECTION 11.163. Section 382.052, Health and Safety Code, is
732-7 amended to read as follows:
732-8 Sec. 382.052. Permit to Construct or Modify Facility Within
732-9 3,000 Feet of School. In considering the issuance of a permit to
732-10 construct or modify a facility within 3,000 feet of an elementary,
732-11 junior high, or senior high school, the commission <board> shall
732-12 consider possible adverse short-term or long-term side effects of
732-13 air contaminants or nuisance odors from the facility on the
732-14 individuals attending the school facilities.
732-15 SECTION 11.164. Section 382.053(a), Health and Safety Code,
732-16 is amended to read as follows:
732-17 (a) The commission <board> may not grant a construction
732-18 permit for a lead smelting plant at a site:
732-19 (1) located within 3,000 feet of an individual's
732-20 residence; and
732-21 (2) at which lead smelting operations have not been
732-22 conducted before August 31, 1987.
732-23 SECTION 11.165. Section 382.054, Health and Safety Code, is
732-24 amended to read as follows:
732-25 Sec. 382.054. Federal Operating Permit. Subject to Section
732-26 382.0511(c), a person may not operate a federal source unless the
732-27 person has obtained a federal operating permit from the commission
733-1 <board> under Section 382.0541, 382.0542, or 382.0543.
733-2 SECTION 11.166. Sections 382.0541(a), (b), (c), and (d),
733-3 Health and Safety Code, are amended to read as follows:
733-4 (a) The commission <board> may:
733-5 (1) require a federal source to obtain a permit under
733-6 the federal Clean Air Act (42 U.S.C. Section 7401 et seq.);
733-7 (2) require an existing facility or source to use, at
733-8 a minimum, any applicable maximum achievable control technology
733-9 required by the commission <board> or by the United States
733-10 Environmental Protection Agency;
733-11 (3) require facilities or federal sources that are new
733-12 or modified and are subject to Section 112(g) of the federal Clean
733-13 Air Act (42 U.S.C. Section 7412) to use, at a minimum, the more
733-14 stringent of:
733-15 (A) the best available control technology,
733-16 considering the technical practicability and economic
733-17 reasonableness of reducing or eliminating emissions from the
733-18 proposed facility or federal source; or
733-19 (B) any applicable maximum achievable control
733-20 technology (MACT), including any MACT developed pursuant to Section
733-21 112(g) of the federal Clean Air Act (42 U.S.C. Section 7412);
733-22 (4) establish maximum achievable control technology
733-23 requirements in accordance with Section 112(j) of the federal Clean
733-24 Air Act (42 U.S.C. Section 7412);
733-25 (5) issue initial permits with terms not to exceed
733-26 five years for federal sources under Title V of the federal Clean
733-27 Air Act, with terms not to exceed five years for all subsequently
734-1 issued or renewed permits;
734-2 (6) administer the use of emissions allowances under
734-3 Section 408 of the federal Clean Air Act (42 U.S.C. Section 7651g);
734-4 (7) reopen and revise an affected federal operating
734-5 permit if:
734-6 (A) the permit has a term of three years or more
734-7 remaining in order to incorporate requirements under the federal
734-8 Clean Air Act (42 U.S.C. Section 7401 et seq.) adopted after the
734-9 permit is issued;
734-10 (B) additional requirements become applicable to
734-11 an affected source under the acid rain program;
734-12 (C) the federal operating permit contains a
734-13 material mistake;
734-14 (D) inaccurate statements were made in
734-15 establishing the emissions standards or other terms or conditions
734-16 of the federal operating permit; or
734-17 (E) a determination is made that the permit must
734-18 be reopened and revised to assure compliance with applicable
734-19 requirements;
734-20 (8) incorporate a federal implementation plan as a
734-21 condition of a permit issued by the commission <board>;
734-22 (9) exempt federal sources from the obligation to
734-23 obtain a federal operating permit;
734-24 (10) provide that all representations in an
734-25 application for a permit under Title IV of the federal Clean Air
734-26 Act (42 U.S.C. Sections 7651-7651o) are binding on the applicant
734-27 until issuance or denial of the permit;
735-1 (11) provide that all terms and conditions of any
735-2 federal operating permit required under Title IV of the federal
735-3 Clean Air Act (42 U.S.C. Sections 7651-7651o) shall be a complete
735-4 and segregable section of the federal operating permit; and
735-5 (12) issue initial permits with fixed terms of five
735-6 years for federal sources under Title IV of the federal Clean Air
735-7 Act (42 U.S.C. Sections 7651-7651o) with fixed five-year terms for
735-8 all subsequently issued or renewed permits.
735-9 (b) The commission <board> by rule shall provide for
735-10 objection by the administrator to the issuance of any operating or
735-11 general permit subject to Title V of the federal Clean Air Act (42
735-12 U.S.C. Sections 7661-7661f) and shall authorize the administrator
735-13 to revoke and reissue, terminate, reopen, or modify a federal
735-14 operating permit.
735-15 (c) This section does not affect the permit requirements of
735-16 Section 382.0518, except that the commission <board> may
735-17 consolidate with an existing permit issued under this section a
735-18 permit required by Section 382.0518.
735-19 (d) The commission <board> promptly shall provide to the
735-20 applicant notice of whether the application is complete. Unless
735-21 the commission <board> requests additional information or otherwise
735-22 notifies the applicant that the application is incomplete before
735-23 the 61st day after the commission <board> receives an application,
735-24 the application shall be deemed complete.
735-25 SECTION 11.167. Sections 382.0542, 382.0543, 382.055, and
735-26 382.056, Health and Safety Code, are amended to read as follows:
735-27 Sec. 382.0542. Issuance of Federal Operating Permit; Appeal
736-1 of Delay. (a) A federal source is eligible for a permit required
736-2 by Section 382.054 if from the information available to the
736-3 commission <board>, including information presented at a hearing
736-4 held under Section 382.0561, the commission <board> finds that:
736-5 (1) the federal source will use, at a minimum, any
736-6 applicable maximum achievable control technology required by the
736-7 commission <board> or by the United States Environmental Protection
736-8 Agency;
736-9 (2) for a federal source that is new or modified and
736-10 subject to Section 112(g) of the federal Clean Air Act (42 U.S.C.
736-11 Section 7412), the federal source will use, at a minimum, the more
736-12 stringent of:
736-13 (A) the best available control technology,
736-14 considering the technical practicability and economic
736-15 reasonableness of reducing or eliminating the emissions from the
736-16 proposed federal source; or
736-17 (B) any applicable maximum achievable control
736-18 technology required by the commission <board> or by the United
736-19 States Environmental Protection Agency; and
736-20 (3) the federal source will comply with the following
736-21 requirements, if applicable:
736-22 (A) Title V of the federal Clean Air Act (42
736-23 U.S.C. Sections 7661-7661f) and the regulations adopted under that
736-24 title;
736-25 (B) each standard or other requirement provided
736-26 for in the applicable implementation plan approved or adopted by
736-27 rule of the United States Environmental Protection Agency under
737-1 Title I of the federal Clean Air Act (42 U.S.C. Sections 7401-7515)
737-2 that implements the relevant requirements of that Act, including
737-3 any revisions to the plan;
737-4 (C) each term or condition of a preconstruction
737-5 permit issued by the commission or the United States Environmental
737-6 Protection Agency in accordance with rules adopted by the
737-7 commission or the United States Environmental Protection Agency
737-8 under Part C or D, Title I of the federal Clean Air Act (42 U.S.C.
737-9 7401-7515);
737-10 (D) each standard or other requirement
737-11 established under Section 111 of the federal Clean Air Act (42
737-12 U.S.C. Section 7411), including Subsection (d) of that section;
737-13 (E) each standard or other requirement
737-14 established under Section 112 of the federal Clean Air Act (42
737-15 U.S.C. Section 7412) including any requirement concerning accident
737-16 prevention under Subsection (r)(7) of that section;
737-17 (F) each standard or other requirement of the
737-18 acid rain program established under Title IV of the federal Clean
737-19 Air Act (42 U.S.C. Sections 7651-7651o) or the regulations adopted
737-20 under that title;
737-21 (G) each requirement established under Section
737-22 504(b) or Section 114(a)(3) of the federal Clean Air Act (42 U.S.C.
737-23 Section 7661c or 7414);
737-24 (H) each standard or other requirement governing
737-25 solid waste incineration established under Section 129 of the
737-26 federal Clean Air Act (42 U.S.C. Section 7429);
737-27 (I) each standard or other requirement for
738-1 consumer and commercial products established under Section 183(e)
738-2 of the federal Clean Air Act (42 U.S.C. Section 7511b);
738-3 (J) each standard or other requirement for tank
738-4 vessels established under Section 183(f) of the federal Clean Air
738-5 Act (42 U.S.C. Section 7511b);
738-6 (K) each standard or other requirement of the
738-7 program to control air pollution from outer continental shelf
738-8 sources established under Section 328 of the federal Clean Air Act
738-9 (42 U.S.C. Section 7627);
738-10 (L) each standard or other requirement of
738-11 regulations adopted to protect stratospheric ozone under Title VI
738-12 of the federal Clean Air Act (42 U.S.C. Sections 7671-7671q)
738-13 unless the administrator has determined that the standard or
738-14 requirement does not need to be contained in a Title V permit; and
738-15 (M) each national ambient air quality standard
738-16 or increment or visibility requirement under Part C of Title I of
738-17 the federal Clean Air Act (42 U.S.C. Sections 7470-7492), but only
738-18 as the standard, increment, or requirement would apply to a
738-19 temporary source permitted under Section 504(e) of the federal
738-20 Clean Air Act (42 U.S.C. Section 7661c).
738-21 (b) The commission <board> shall:
738-22 (1) take final action on an application for a permit,
738-23 permit revision, or permit renewal within 18 months after the date
738-24 on which the commission <board> receives an administratively
738-25 complete application;
738-26 (2) under an interim program, for those federal
738-27 sources for which initial applications are required to be filed not
739-1 later than one year after the effective date of the interim
739-2 program, take final action on at least one-third of those
739-3 applications annually over a period not to exceed three years after
739-4 the effective date of the interim program;
739-5 (3) under the fully approved program, for those
739-6 federal sources for which initial applications are required to be
739-7 filed not later than one year after the effective date of the fully
739-8 approved program, take final action on at least one-third of those
739-9 applications annually over a period not to exceed three years after
739-10 the effective date of the program; and
739-11 (4) take final action on a permit reopening not later
739-12 than 18 months after the adoption of the requirement that prompted
739-13 the reopening.
739-14 (c) If the commission <board> fails to take final action as
739-15 required by Subsection (b)(1) or (4), a person affected by the
739-16 commission's <board's> failure to act may obtain judicial review
739-17 under Section 382.032 at any time before the commission <board>
739-18 takes final action. A reviewing court may order the commission
739-19 <board> to act on the application without additional delay if it
739-20 finds that the commission's <board's> failure to act is arbitrary
739-21 or unreasonable.
739-22 (d) Subsection (a)(2) does not prohibit the applicability of
739-23 at least the best available control technology to a new or modified
739-24 facility or federal source under Section 382.0518(b)(1).
739-25 Sec. 382.0543. Review and Renewal of Federal Operating
739-26 Permit. (a) In accordance with Section 382.0541(a)(5), a federal
739-27 operating permit issued or renewed by the commission <board> is
740-1 subject to review at least every five years after the date of
740-2 issuance to determine whether the authority to operate should be
740-3 renewed.
740-4 (b) The commission <board> by rule shall establish:
740-5 (1) the procedures for notifying a permit holder that
740-6 the permit is scheduled for review in accordance with this section;
740-7 (2) a deadline by which the holder of a permit must
740-8 submit an application for renewal of the permit that is between the
740-9 date six months before expiration of the permit and the date 18
740-10 months before expiration of the permit;
740-11 (3) the general requirements for an application; and
740-12 (4) the procedures for reviewing and acting on a
740-13 renewal application.
740-14 (c) The commission <board> promptly shall provide to the
740-15 applicant notice of whether the application is complete. Unless
740-16 the commission <board> requests additional information or otherwise
740-17 notifies the applicant that the application is incomplete before
740-18 the 61st day after the commission <board> receives an application,
740-19 the application shall be deemed complete.
740-20 (d) The commission <board> shall take final action on a
740-21 renewal application for a federal operating permit within 18 months
740-22 after the date an application is determined to be administratively
740-23 complete. If the commission <board> does not act on an application
740-24 for permit renewal within 18 months after the date on which the
740-25 commission <board> receives an administratively complete
740-26 application, a person who participated in the public participation
740-27 process or a person affected by the commission's <board's> failure
741-1 to act may obtain judicial review under Section 382.032 at any time
741-2 before the commission <board> takes final action.
741-3 (e) In determining whether and under which conditions a
741-4 permit should be renewed, the commission <board> shall consider:
741-5 (1) all applicable requirements in Section
741-6 382.0542(a)(3); and
741-7 (2) whether the federal source is in compliance with
741-8 this chapter and the terms of the existing permit.
741-9 (f) The commission <board> shall impose as terms and
741-10 conditions in a renewed federal operating permit any applicable
741-11 requirements under Title V of the federal Clean Air Act (42 U.S.C.
741-12 Sections 7661-7661f). The terms or conditions of the renewed
741-13 permit must provide for compliance with any applicable requirement
741-14 under Title V of the federal Clean Air Act (42 U.S.C. Sections
741-15 7661-7661f). The commission <board> may not impose requirements
741-16 less stringent than those of the existing permit unless the
741-17 commission <board> determines that a proposed change will meet the
741-18 requirements of Section 382.0541.
741-19 (g) If the applicant submits a timely and complete
741-20 application for federal operating permit renewal, but the
741-21 commission <board> fails to issue or deny the renewal permit before
741-22 the end of the term of the previous permit:
741-23 (1) all terms and conditions of the permit shall
741-24 remain in effect until the renewal permit has been issued or
741-25 denied; and
741-26 (2) the applicant may continue to operate until the
741-27 permit renewal application is issued or denied, if the applicant
742-1 submits additional information that is requested in writing by the
742-2 commission <board> that the commission <board> needs to process the
742-3 application on or before the time specified in writing by the
742-4 commission <board>.
742-5 (h) This section does not affect the commission's <board's>
742-6 authority to begin an enforcement action under Sections
742-7 382.082-382.084.
742-8 Sec. 382.055. Review and Renewal of Preconstruction Permit.
742-9 (a) A preconstruction permit issued or renewed by the commission
742-10 <board> is subject to review to determine whether the authority to
742-11 operate should be renewed according to the following schedule:
742-12 (1) a preconstruction permit issued before December 1,
742-13 1991, is subject to review not later than 15 years after the date
742-14 of issuance;
742-15 (2) a preconstruction permit issued on or after
742-16 December 1, 1991, is subject to review every 10 years after the
742-17 date of issuance; and
742-18 (3) for cause, a preconstruction permit issued on or
742-19 after December 1, 1991, for a facility at a nonfederal source may
742-20 contain a provision requiring the permit to be renewed at a period
742-21 of between five and 10 years.
742-22 (b) The commission <board> by rule shall establish:
742-23 (1) a deadline by which the holder of a
742-24 preconstruction permit must submit an application to renew the
742-25 permit;
742-26 (2) the general requirements for an application for
742-27 renewal of a preconstruction permit; and
743-1 (3) the procedures for reviewing and acting on renewal
743-2 applications.
743-3 (c) Not less than 180 days before the date on which the
743-4 renewal application is due, the commission <board> shall provide
743-5 written notice to the permit holder, by registered or certified
743-6 mail, that the permit is scheduled for review in accordance with
743-7 this section. The notice must include a description of the
743-8 procedure for filing a renewal application and the information to
743-9 be included in the application.
743-10 (d) In determining whether and under which conditions a
743-11 preconstruction permit should be renewed, the commission <board>
743-12 shall consider, at a minimum:
743-13 (1) whether the facility is or has been in substantial
743-14 compliance with this chapter and the terms of the existing permit;
743-15 and
743-16 (2) the condition and effectiveness of existing
743-17 emission control equipment and practices.
743-18 (e) The commission <board> shall impose as a condition for
743-19 renewal of a preconstruction permit those requirements determined
743-20 to be economically reasonable and technically practicable
743-21 considering the age of the facility and the effect of its emissions
743-22 on the surrounding area. The commission <board> may not impose
743-23 requirements less stringent than those of the existing permit
743-24 unless the commission <board> determines that a proposed change
743-25 will meet the requirements of Section 382.0518.
743-26 (f) On or before the 180th day after the date on which an
743-27 application for renewal is filed, the commission <board> shall
744-1 renew the permit or, if the commission <board> determines that the
744-2 facility will not meet the requirements for renewing the permit,
744-3 shall:
744-4 (1) set out in a report to the applicant the basis for
744-5 the commission's <board's> determination; and
744-6 (2) establish a schedule, to which the applicant must
744-7 adhere in meeting the commission's <board's> requirements, that:
744-8 (A) includes a final date for meeting the
744-9 commission's <board's> requirements; and
744-10 (B) requires completion of that action as
744-11 expeditiously as possible.
744-12 (g) If the applicant meets the commission's <board's>
744-13 requirements in accordance with the schedule, the commission
744-14 <board> shall renew the permit. If the applicant does not meet
744-15 those requirements in accordance with the schedule, the applicant
744-16 must show in a contested case proceeding why the permit should not
744-17 expire immediately. The applicant's permit is effective until:
744-18 (1) the final date specified by the commission's
744-19 <board's> report to the applicant;
744-20 (2) the existing permit is renewed; or
744-21 (3) the date specified by a commission <board> order
744-22 issued following a contested case proceeding held under this
744-23 section.
744-24 (h) If the holder of a preconstruction permit to whom the
744-25 commission <board> has mailed notice under this section does not
744-26 apply for renewal of that permit by the date specified by the
744-27 commission <board> under this section, the permit shall expire at
745-1 the end of the period described in Subsection (a).
745-2 (i) This section does not affect the commission's <board's>
745-3 authority to begin an enforcement action under Sections
745-4 382.082-382.084.
745-5 Sec. 382.056. Notice of Intent to Obtain Permit or Permit
745-6 Review; Hearing. (a) An applicant for a permit under Section
745-7 382.0518 or 382.054 or a permit renewal review under Section
745-8 382.055 shall publish notice of intent to obtain the permit or
745-9 permit review. The commission <board> by rule may require an
745-10 applicant for a federal operating permit to publish notice of
745-11 intent to obtain a permit or permit review consistent with federal
745-12 requirements and with the requirements of this section. The
745-13 applicant shall publish the notice at least once in a newspaper of
745-14 general circulation in the municipality in which the facility or
745-15 federal source is located or is proposed to be located or in the
745-16 municipality nearest to the location or proposed location of the
745-17 facility or federal source. If the elementary or middle school
745-18 nearest to the facility or proposed facility provides a bilingual
745-19 education program as required by Section 21.109, Education Code,
745-20 and Section 19 TAC Subsection 89.2(a), the applicant shall also
745-21 publish the notice at least once in an additional publication of
745-22 general circulation in the municipality or county in which the
745-23 facility is located or proposed to be located that is published in
745-24 the language taught in the bilingual education program. This
745-25 requirement is waived if such a publication does not exist or if
745-26 the publisher refuses to publish the notice. The commission
745-27 <board> by rule shall prescribe when notice must be published and
746-1 may require publication of additional notice. Notice required to
746-2 be published under this section shall only be required to be
746-3 published in the United States.
746-4 (b) The notice must include:
746-5 (1) a description of the location or proposed location
746-6 of the facility or federal source;
746-7 (2) a statement that a person who may be affected by
746-8 emissions of air contaminants from the facility, proposed facility,
746-9 or federal source is entitled to request a hearing from the
746-10 commission <board>;
746-11 (3) a description of the manner in which the
746-12 commission <board> may be contacted for further information; and
746-13 (4) any other information the commission <board> by
746-14 rule requires.
746-15 (c) At the site of a facility, proposed facility, or federal
746-16 source for which an applicant is required to publish notice under
746-17 this section, the applicant shall place a sign declaring the filing
746-18 of an application for a permit or permit review for a facility at
746-19 the site and stating the manner in which the commission <board> may
746-20 be contacted for further information. The commission <board> shall
746-21 adopt any rule necessary to carry out this subsection.
746-22 (d) Except as provided by Section 382.0561, the commission
746-23 <board> or its delegate shall hold a public hearing on the permit
746-24 application or permit review application before granting the permit
746-25 or renewal if a person who may be affected by the emissions, or a
746-26 member of the legislature from the general area in which the
746-27 facility or proposed facility is located, requests a hearing within
747-1 the period set by commission <board> rule. The commission <board>
747-2 is not required to hold a hearing if the basis of a request by a
747-3 person who may be affected is determined to be unreasonable.
747-4 SECTION 11.168. Sections 382.0561(b), (c), (e), (g), (h),
747-5 and (i), Health and Safety Code, are amended to read as follows:
747-6 (b) On determination that an application for a federal
747-7 operating permit under Sections 382.054-382.0542 or a renewal of a
747-8 federal operating permit under Section 382.0543 is administratively
747-9 complete and before the beginning of the public comment period, the
747-10 commission <board> or its designee shall prepare a draft permit.
747-11 (c) The commission <board> or its designee shall hold a
747-12 public hearing on a federal operating permit, a reopening of a
747-13 federal operating permit, or renewal application before granting
747-14 the permit or renewal if within the public comment period a person
747-15 who may be affected by the emissions or a member of the legislature
747-16 from the general area in which the facility is located requests a
747-17 hearing. The commission <board> or its designee is not required to
747-18 hold a hearing if the basis of the request by a person who may be
747-19 affected is determined to be unreasonable.
747-20 (e) The commission <board> or its designee shall hold a
747-21 public comment period on a federal operating permit application, a
747-22 federal operating permit reopening application, or a federal
747-23 operating permit renewal application under Sections
747-24 382.054-382.0542 or 382.0543. Any person may submit a written
747-25 statement to the commission <board> during the public comment
747-26 period. The commission <board> or its designee shall receive
747-27 public comment for 30 days after the date on which notice of the
748-1 public comment period is published. The commission <board> or its
748-2 designee may extend or reopen the comment period if the executive
748-3 director finds an extension or reopening to be appropriate.
748-4 (g) Any person may submit an oral or written statement
748-5 concerning the application at the hearing. The individual holding
748-6 the hearing may set reasonable limits on the time allowed for oral
748-7 statements at the hearing. The public comment period extends to
748-8 the close of the hearing and may be further extended or reopened if
748-9 the commission <board> or its designee finds an extension or
748-10 reopening to be appropriate.
748-11 (h) Any person, including the applicant, who believes that
748-12 any condition of the draft permit is inappropriate or that the
748-13 preliminary decision of the commission <board> or its designee to
748-14 issue or deny a permit is inappropriate must raise all reasonably
748-15 ascertainable issues and submit all reasonably available arguments
748-16 supporting that position by the end of the public comment period.
748-17 (i) The commission <board> or its designee shall consider
748-18 all comments received during the public comment period and at the
748-19 public hearing in determining whether to issue the permit and what
748-20 conditions should be included if a permit is issued.
748-21 SECTION 11.169. Sections 382.0562, 382.0563, 382.0564,
748-22 382.057, 382.058, and 382.059, Health and Safety Code, are amended
748-23 to read as follows:
748-24 Sec. 382.0562. Notice of Decision. (a) The commission
748-25 <board> or its designee shall send notice of a proposed final
748-26 action on a federal operating permit by first-class mail to the
748-27 applicant and all persons who comment during the public comment
749-1 period or at the public hearing. The notice shall include a
749-2 response to any comment submitted during the public comment period
749-3 and shall identify any change in the conditions of the draft permit
749-4 and the reasons for the change.
749-5 (b) The notice required by Subsection (a) shall:
749-6 (1) state that any person affected by the decision of
749-7 the commission <board> or its designee may petition the
749-8 administrator in accordance with Section 382.0563 and rules adopted
749-9 under that section;
749-10 (2) state the date by which the petition must be
749-11 filed; and
749-12 (3) explain the petition process.
749-13 Sec. 382.0563. Public Petition to the Administrator.
749-14 (a) The commission <board> by rule may provide for public
749-15 petitions to the administrator in accordance with Section 505 of
749-16 the federal Clean Air Act (42 U.S.C. Section 7661d).
749-17 (b) The petition for review to the administrator under this
749-18 section does not affect:
749-19 (1) a permit issued by the commission <board> or its
749-20 designee; or
749-21 (2) the finality of the commission's <board's> or its
749-22 designee's action for purposes of an appeal under Section 382.032.
749-23 (c) The commission <board> or its designee shall resolve any
749-24 objection that the United States Environmental Protection Agency
749-25 makes and terminate, modify, or revoke and reissue the permit in
749-26 accordance with the objection not later than the 90th day after the
749-27 date the commission <board> receives the objection.
750-1 Sec. 382.0564. Notification to Other Governmental Entities.
750-2 The commission <board> by rule may allow for notification of and
750-3 review by the administrator and affected states of permit
750-4 applications, revisions, renewals, or draft permits prepared under
750-5 Sections 382.054-382.0543.
750-6 Sec. 382.057. Exemption. (a) Consistent with Section
750-7 382.0511, the commission <board> by rule may exempt from the
750-8 requirements of Section 382.0518 changes within a permitted
750-9 facility and certain types of facilities if it is found on
750-10 investigation that such changes or types of facilities will not
750-11 make a significant contribution of air contaminants to the
750-12 atmosphere. The commission <board> by rule shall exempt from the
750-13 requirements of Section 382.0518 or issue a standard permit for the
750-14 installation of emission control equipment that constitutes a
750-15 modification or a new facility, subject to such conditions
750-16 restricting the applicability of such exemption or standard permit
750-17 that the commission <board> deems necessary to accomplish the
750-18 intent of this chapter. The commission <board> may not exempt any
750-19 facility or any modification of an existing facility defined as
750-20 "major" under the federal Clean Air Act or regulations adopted
750-21 under that Act. Nothing in this subsection shall be construed to
750-22 limit the commission's <board's> general power to control the
750-23 state's air quality under Section 382.011(a).
750-24 (b) The commission <board> shall adopt rules specifically
750-25 defining the terms and conditions for an exemption under this
750-26 section in a nonattainment area as defined by Title I of the
750-27 federal Clean Air Act (42 U.S.C. Section 7401 et seq.).
751-1 Sec. 382.058. LIMITATION ON COMMISSION <BOARD> EXEMPTION FOR
751-2 CONSTRUCTION OF CERTAIN CONCRETE PLANTS. (a) A person may not
751-3 begin construction on any concrete plant that performs wet
751-4 batching, dry batching, or central mixing under an exemption
751-5 adopted by the commission <board> under Section 382.057 unless the
751-6 person has complied with the notice and opportunity for hearing
751-7 provisions under Section 382.056.
751-8 (b) This section does not apply to a concrete plant located
751-9 temporarily in the right-of-way, or contiguous to the right-of-way,
751-10 of a public works project.
751-11 (c) For purposes of this section, only those persons
751-12 actually residing in a permanent residence within 440 yards of the
751-13 proposed plant may request a hearing under Section 382.056(d) as a
751-14 person who may be affected.
751-15 Sec. 382.059. Revocation of Permit or Exemption. (a) The
751-16 commission <board> may revoke and reissue, terminate, or modify a
751-17 federal operating permit, preconstruction permit, or exemption
751-18 issued under this chapter if the commission <board> determines
751-19 that:
751-20 (1) any of the terms of the federal operating permit,
751-21 preconstruction permit, or exemption are being violated;
751-22 (2) emissions from the proposed facility will
751-23 contravene air pollution control standards set by the commission
751-24 <board> or will contravene the intent of this chapter; or
751-25 (3) the federal operating permit contains a material
751-26 mistake or that inaccurate statements were made in establishing the
751-27 emissions standards or other terms or conditions of the federal
752-1 operating permit.
752-2 (b) The commission <board> may:
752-3 (1) begin proceedings to revoke and reissue,
752-4 terminate, or modify a permit if a violation at a facility is
752-5 continued after 180 days following the date on which the notice of
752-6 violation is provided under Section 382.082; and
752-7 (2) consider good faith efforts to correct the
752-8 violation in deciding whether to revoke and reissue, terminate, or
752-9 modify a federal operating permit, preconstruction permit, or
752-10 exemption.
752-11 (c) Subsection (b)(1) does not affect the commission's
752-12 <board's> authority to bring suit for injunctive relief under
752-13 Section 382.084.
752-14 SECTION 11.170. Sections 382.0591(a), (b), (c), and (e),
752-15 Health and Safety Code, are amended to read as follows:
752-16 (a) The commission <board> shall deny an application for the
752-17 issuance, amendment, renewal, or transfer of a permit and may not
752-18 issue, amend, renew, or transfer the permit if the commission
752-19 <board> determines that:
752-20 (1) a former employee participated personally and
752-21 substantially as an employee in the commission's <board's> review,
752-22 evaluation, or processing of the application before leaving
752-23 employment with the commission <board>; and
752-24 (2) after leaving employment with the commission
752-25 <board>, that former employee provided assistance to the applicant
752-26 for the issuance, amendment, renewal, or transfer of the permit,
752-27 including assistance with preparation or presentation of the
753-1 application or legal representation of the applicant.
753-2 (b) The commission <board> or the executive director may not
753-3 issue a federal operating permit for a solid waste incineration
753-4 unit if a member of the commission <board> or the executive
753-5 director is also responsible in whole or in part for the design and
753-6 construction or the operation of the unit.
753-7 (c) The commission <board> shall provide an opportunity for
753-8 a hearing to an applicant before denying an application under this
753-9 section.
753-10 (e) In this section, "former employee" means a person:
753-11 (1) who was previously employed by the commission
753-12 <board> as a supervisory or exempt employee; and
753-13 (2) whose duties during employment with the commission
753-14 <board> included involvement in or supervision of the commission's
753-15 <board's> review, evaluation, or processing of applications.
753-16 SECTION 11.171. Sections 382.061(a) and (b), Health and
753-17 Safety Code, are amended to read as follows:
753-18 (a) The commission <board> may delegate to the executive
753-19 director the powers and duties under Sections 382.051-382.0563 and
753-20 382.059, except for the adoption of rules.
753-21 (b) An applicant or a person affected by a decision of the
753-22 executive director may appeal to the commission <board> any
753-23 decision made by the executive director, with the exception of a
753-24 decision regarding a federal operating permit, under Sections
753-25 382.051-382.055 and 382.059.
753-26 SECTION 11.172. Sections 382.062(a), (b), (c), and (e),
753-27 Health and Safety Code, are amended to read as follows:
754-1 (a) The commission <board> shall adopt, charge, and collect
754-2 a fee for:
754-3 (1) each application for:
754-4 (A) a permit or permit amendment, revision, or
754-5 modification not subject to Title IV or V of the federal Clean Air
754-6 Act (42 U.S.C. Sections 7651 et seq. and 7661 et seq.);
754-7 (B) a renewal review of a permit issued under
754-8 Section 382.0518 not subject to Title IV or V of the federal Clean
754-9 Air Act;
754-10 (2) inspections of a federal source performed to
754-11 enforce this chapter or rules adopted by the commission <board>
754-12 under this chapter until the federal source is required to obtain
754-13 an operating permit under Section 382.054; and
754-14 (3) inspections performed to enforce this chapter or
754-15 rules adopted by the commission <board> under this chapter at a
754-16 facility not required to obtain an operating permit under Section
754-17 382.054.
754-18 (b) The commission <board> may adopt rules relating to
754-19 charging and collecting a fee for an exemption from a permit or for
754-20 a standard permit authorized by commission <board> rule and for a
754-21 variance.
754-22 (c) For purposes of the fees, the commission <board> shall
754-23 treat two or more facilities that compose an integrated system or
754-24 process as a single facility if a structure, device, item of
754-25 equipment, or enclosure that constitutes or contains a given
754-26 stationary source operates in conjunction with and is functionally
754-27 integrated with one or more other similar structures, devices,
755-1 items of equipment, or enclosures.
755-2 (e) The commission <board> by rule shall establish the fees
755-3 to be collected under Subsection (a) in amounts sufficient to
755-4 recover:
755-5 (1) the reasonable costs to review and act on a
755-6 variance application and enforce the terms and conditions of the
755-7 variance; and
755-8 (2) not less than 50 percent of the commission's
755-9 <board's> actual annual expenditures to:
755-10 (A) review and act on permits or special
755-11 permits;
755-12 (B) amend and review permits;
755-13 (C) inspect permitted, exempted, and specially
755-14 permitted facilities; and
755-15 (D) enforce the rules and orders adopted and
755-16 permits, special permits, and exemptions issued under this chapter,
755-17 excluding rules and orders adopted and permits required under Title
755-18 IV or V of the federal Clean Air Act (42 U.S.C. Sections 7651 et
755-19 seq. and 7661 et seq.).
755-20 SECTION 11.173. Sections 382.0621(a), (c), (d), and (e),
755-21 Health and Safety Code, are amended to read as follows:
755-22 (a) The commission <board> shall adopt, charge, and collect
755-23 an annual fee based on emissions for each source that either:
755-24 (1) is subject to permitting requirements of Title IV
755-25 or V of the federal Clean Air Act Amendments of 1990 (Pub.L. No.
755-26 101-549); or
755-27 (2) is based on plant operations, and the rate of
756-1 emissions at the time the fee is due would be subject to the
756-2 permitting requirements if the requirements were in effect on that
756-3 date.
756-4 (c) The commission <board> by rule may provide for the
756-5 automatic annual increase of fees imposed under this section by the
756-6 percentage, if any, by which the consumer price index for the
756-7 preceding calendar year exceeds the consumer price index for
756-8 calendar year 1989. For purposes of this subsection:
756-9 (1) the consumer price index for any calendar year is
756-10 the average of the Consumer Price Index for All Urban Consumers
756-11 published by the United States Department of Labor as of the close
756-12 of the 12-month period ending on August 31 of each calendar year;
756-13 and
756-14 (2) the revision of the consumer price index that is
756-15 most consistent with the consumer price index for calendar year
756-16 1989 shall be used.
756-17 (d) The commission <board> may not impose a fee for any
756-18 amount of emissions of an air contaminant regulated under the
756-19 federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549) in
756-20 excess of 4,000 tons per year from any source.
756-21 (e) This section does not restrict the authority of the
756-22 commission <board> under Section 382.062 to impose fees on sources
756-23 not subject to the permitting requirements of Title IV or V of the
756-24 federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549).
756-25 SECTION 11.174. Sections 382.0622(a), (c), and (d), Health
756-26 and Safety Code, are amended to read as follows:
756-27 (a) Clean Air Act fees consist of:
757-1 (1) fees collected by the commission <board> under
757-2 Sections 382.062, 382.0621, and 382.037 and as otherwise provided
757-3 by law; and
757-4 (2) $2 of each advance payment collected by the
757-5 Department of Public Safety for inspection certificates for
757-6 vehicles other than mopeds under Section 141(c), Uniform Act
757-7 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
757-8 Statutes).
757-9 (c) The commission <board> shall request the appropriation
757-10 of sufficient money to safeguard the air resources of the state,
757-11 including payments to the Public Safety Commission for incidental
757-12 costs of administering the vehicle emissions inspection and
757-13 maintenance program, except that after the date of delegation of
757-14 the state's permitting program under Title V of the federal Clean
757-15 Air Act (42 U.S.C. Sections 7661 et seq.), fees collected under
757-16 Section 382.0621(a) may be appropriated only to cover costs of
757-17 developing and administering the federal permit program under
757-18 Titles IV and V of the federal Clean Air Act (42 U.S.C. Sections
757-19 7651 et seq. and 7661 et seq.).
757-20 (d)(1) Through the option of contracting for air pollution
757-21 control services, including but not limited to compliance and
757-22 permit inspections and complaint response, the commission <board>
757-23 may utilize appropriated money to purchase services from units of
757-24 local government meeting each of the following criteria:
757-25 (A) the unit of local government received
757-26 federal fiscal year 1990 funds from the United States Environmental
757-27 Protection Agency pursuant to Section 105 of the federal Clean Air
758-1 Act (42 U.S.C. Section 7405) for the operation of an air pollution
758-2 program by formal agreement;
758-3 (B) the local unit of government is in a
758-4 federally designated nonattainment area subject to implementation
758-5 plan requirements, including automobile emission inspection and
758-6 maintenance programs, under Title I of the federal Clean Air Act
758-7 (42 U.S.C. Sections 7401-7515); and
758-8 (C) the local unit of government has not caused
758-9 the United States Environmental Protection Agency to provide
758-10 written notification that a deficiency in the quality or quantity
758-11 of services provided by its air pollution program is jeopardizing
758-12 compliance with a state implementation plan, a federal program
758-13 delegation agreement, or any other federal requirement for which
758-14 federal sanctions can be imposed.
758-15 (2) The commission <board> may request appropriations
758-16 of sufficient money to contract for services of local units of
758-17 government meeting the eligibility criteria of this subsection to
758-18 ensure that the combination of federal and state funds annually
758-19 available for an air pollution program is equal to or greater than
758-20 the program costs for the operation of an air quality program by
758-21 the local unit of government. The commission <board> is encouraged
758-22 to fund an air pollution program operated by a local unit of
758-23 government meeting the eligibility criteria of this subsection in a
758-24 manner the commission <board> deems an effective means of
758-25 addressing federal and state requirements. The services to be
758-26 provided by an eligible local unit of government under a
758-27 contractual arrangement under this subsection shall be at least
759-1 equal in quality and quantity to the services the local unit of
759-2 government committed to provide in agreements under which it
759-3 received its federal 1990 air pollution grant. The commission
759-4 <board> and the local units of government meeting the eligibility
759-5 criteria of this subsection may agree to more extensive contractual
759-6 arrangements.
759-7 (3) Nothing in this subsection shall prohibit a local
759-8 unit of government from voluntarily discontinuing an air pollution
759-9 program and thereby relinquishing this responsibility to the state.
759-10 SECTION 11.175. Sections 382.063(a), (c), (d), (e), (f),
759-11 (g), (h), and (i), Health and Safety Code, are amended to read as
759-12 follows:
759-13 (a) The commission <board> or the executive director, on
759-14 delegation of authority from the commission <board>, by emergency
759-15 order may authorize immediate action for the addition, replacement,
759-16 or repair of facilities or control equipment necessitated by a
759-17 catastrophe occurring in this state, and the emission of air
759-18 contaminants during the addition, replacement, or repair of those
759-19 facilities, if the actions and emissions are otherwise precluded
759-20 under this chapter.
759-21 (c) Under Subsection (b)(2)(B), the person applying for an
759-22 emergency order must demonstrate that there will be no more than a
759-23 de minimis increase in the predicted concentration of the air
759-24 contaminants at or beyond the property line of the other property.
759-25 The commission <board> shall review and act on an application
759-26 submitted as provided by Subsection (b)(3) without regard to
759-27 construction activity under an order under this section.
760-1 (d) To receive an emergency order under this section, a
760-2 person must submit a sworn application to the commission <board> or
760-3 executive director. The application must contain any information
760-4 the commission <board> requires and:
760-5 (1) a description of the catastrophe;
760-6 (2) a statement that:
760-7 (A) the construction and emissions are essential
760-8 to prevent loss of life, serious injury, severe property damage, or
760-9 severe economic loss not attributable to the applicant's actions
760-10 and are necessary for the addition, replacement, or repair of a
760-11 facility or control equipment necessitated by the catastrophe;
760-12 (B) there are no practicable alternatives to the
760-13 proposed construction and emissions; and
760-14 (C) the emissions will not cause or contribute
760-15 to air pollution;
760-16 (3) an estimate of the dates on which the proposed
760-17 construction or emissions, or both, will begin and end;
760-18 (4) an estimate of the date on which the facility will
760-19 begin operation; and
760-20 (5) a description of the quantity and type of air
760-21 contaminants proposed to be emitted.
760-22 (e) The commission <board> or executive director may issue
760-23 an emergency order under this section after providing the notice
760-24 and opportunity for hearing that the commission <board> or
760-25 executive director considers practicable under the circumstances.
760-26 If the commission <board> requires notice and hearing before
760-27 issuing the order, it shall give notice not later than the 10th day
761-1 before the date set for the hearing.
761-2 (f) Notice of the issuance of an emergency order shall be
761-3 provided in accordance with commission <board> rules.
761-4 (g) If the commission <board> or executive director issues
761-5 an emergency order under this section without a hearing, the order
761-6 shall set a time and place for a hearing to be held before the
761-7 commission <board> or its designee as soon after the emergency
761-8 order is issued as practicable.
761-9 (h) Section 382.031, relating to notice of a hearing, does
761-10 not apply to a hearing on an emergency order, but such general
761-11 notice of the hearing shall be given that in the judgment of the
761-12 commission <board> or the executive director is practicable under
761-13 the circumstances.
761-14 (i) At or following the hearing, the commission <board>
761-15 shall affirm, modify, or set aside the emergency order. A hearing
761-16 on an emergency order shall be conducted in accordance with Chapter
761-17 2001, Government Code <the Administrative Procedure and Texas
761-18 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)> and
761-19 commission <board> rules.
761-20 SECTION 11.176. Section 382.064, Health and Safety Code, is
761-21 amended to read as follows:
761-22 Sec. 382.064. Initial Application Date. An application for
761-23 a federal operating permit is not required to be submitted to the
761-24 commission <board> before the approval of the Title V permitting
761-25 program by the United States Environmental Protection Agency.
761-26 SECTION 11.177. Section 382.081, Health and Safety Code, is
761-27 amended to read as follows:
762-1 Sec. 382.081. Enforcement Proceedings. The commission
762-2 <board>, or the executive director after notification to the
762-3 commission <board>, may cause legal proceedings to be instituted in
762-4 a court of competent jurisdiction to compel compliance with this
762-5 chapter or the commission's <board's> rules, orders, or other
762-6 decisions.
762-7 SECTION 11.178. Sections 382.082(a), (b), (d), (e), (f),
762-8 (i), and (j), Health and Safety Code, are amended to read as
762-9 follows:
762-10 (a) If the executive director finds that a person has
762-11 violated, is violating, or is threatening to violate any provision
762-12 of this chapter or of any commission <board> rule or order, the
762-13 executive director shall within five days notify that person of the
762-14 apparent violation. Failure of the executive director to issue
762-15 notice does not relieve a person of liability under this chapter.
762-16 (b) The commission <board> or the executive director may
762-17 cause a suit to be instituted in a district court for:
762-18 (1) injunctive relief to restrain the person from
762-19 continuing the violation or threat of violation; or
762-20 (2) the assessment and recovery of a civil penalty as
762-21 provided by Section 382.085(c); or
762-22 (3) both injunctive relief and civil penalty.
762-23 (d) Under Subsection (c) if the commission <board>
762-24 determines that good faith efforts to correct the violation have
762-25 been made, the commission <board> may adopt an order under Section
762-26 382.023(b) providing for compliance later than the 180th day after
762-27 issuance of the notice under Subsection (a). It is intended that
763-1 "good faith effort" be strictly interpreted by the commission
763-2 <board> while giving due consideration to economic reasonableness
763-3 and technical practicability.
763-4 (e) Notwithstanding Subsection (b) and except as provided by
763-5 Subsection (f), if a violation of an order issued under Subsection
763-6 (c) continues later than the 180th day after the date on which the
763-7 original notice of violation is received, the commission <board> or
763-8 executive director shall:
763-9 (1) institute a suit, as provided by Subsection (b)
763-10 for civil penalties and appropriate injunctive relief;
763-11 (2) begin an action under Section 382.059 to revoke a
763-12 permit or exemption;
763-13 (3) begin an action for administrative penalties under
763-14 Section 382.088; or
763-15 (4) pursue a combination of the remedies under this
763-16 subsection.
763-17 (f) The commission <board> or executive director shall cause
763-18 a suit to be instituted as provided by Subsection (b) if a person:
763-19 (1) is alleged to be constructing or operating a
763-20 facility at a new plant site without a permit in violation of state
763-21 law; or
763-22 (2) has been the subject of two or more finally issued
763-23 administrative penalty orders under this chapter for violations
763-24 occurring at the same plant site within two years immediately
763-25 before the first alleged violation currently under investigation at
763-26 that site.
763-27 (i) At the request of the commission <board> or the
764-1 executive director, the attorney general shall institute and
764-2 conduct a suit in the name of the state for injunctive relief,
764-3 recovery of the civil penalty, or both.
764-4 (j) The commission <board> shall consult with the attorney
764-5 general's office for assistance in determining whether referral to
764-6 the attorney general for enforcement is mandatory under Subsection
764-7 (f) or whether referral is appropriate for the disposition of
764-8 enforcement matters under this chapter. If referral is determined
764-9 to be mandatory or appropriate, the commission <board> shall
764-10 consult with the attorney general's office for assistance in
764-11 determining whether criminal or civil enforcement action should be
764-12 taken. The commission <board> shall use all available enforcement
764-13 options.
764-14 SECTION 11.179. Sections 382.083 and 382.084, Health and
764-15 Safety Code, are amended to read as follows:
764-16 Sec. 382.083. Emergency Suit. If an apparent violation or
764-17 threat of violation of an order of the commission <board> would
764-18 materially affect human health and safety, a suit under Section
764-19 382.082 shall be immediately instituted.
764-20 Sec. 382.084. Injunction. (a) On application for
764-21 injunctive relief and a finding that a person is violating or
764-22 threatening to violate any provision of this chapter or any
764-23 commission <board> rule or order, a district court shall grant the
764-24 injunctive relief warranted by the facts.
764-25 (b) The court shall grant, without a bond or other
764-26 undertaking by the commission <board>, any prohibiting or mandatory
764-27 injunctions the facts may warrant, including temporary restraining
765-1 orders after notice and hearing, temporary injunctions, and
765-2 permanent injunctions.
765-3 (c) The commission <board> or the executive director may
765-4 seek an injunction or cause a suit for injunctive relief to be
765-5 instituted to stop:
765-6 (1) work on a facility that is:
765-7 (A) being done without a construction permit,
765-8 special permit, or exemption required under this chapter; or
765-9 (B) in violation of the terms of a permit,
765-10 special permit, or exemption issued under this chapter; and
765-11 (2) the operation of a facility that:
765-12 (A) is operating without a federal operating
765-13 permit required under this chapter; or
765-14 (B) is operating in violation of the terms of a
765-15 federal operating permit issued under this chapter.
765-16 SECTION 11.180. Sections 382.085(a), (b), and (c), Health
765-17 and Safety Code, are amended to read as follows:
765-18 (a) Except as authorized by a commission <board> rule or
765-19 order, a person may not cause, suffer, allow, or permit the
765-20 emission of any air contaminant or the performance of any activity
765-21 that causes or contributes to, or that will cause or contribute to,
765-22 air pollution.
765-23 (b) A person may not cause, suffer, allow, or permit the
765-24 emission of any air contaminant or the performance of any activity
765-25 in violation of this chapter or of any commission <board> rule or
765-26 order.
765-27 (c) A person who violates any provision of this chapter or
766-1 any commission <board> rule or order is subject to a civil penalty
766-2 of not less than $50 or more than $25,000 for each day of violation
766-3 and for each act of violation, as the court or jury considers
766-4 proper.
766-5 SECTION 11.181. Sections 382.087(b) and (d), Health and
766-6 Safety Code, are amended to read as follows:
766-7 (b) The report must be an agenda item for commission <board>
766-8 discussion at each regularly scheduled meeting.
766-9 (d) Copies of the report and minutes of the meeting
766-10 reflecting action taken by the commission <board> relating to the
766-11 report shall be filed with the governor and the attorney general.
766-12 SECTION 11.182. Sections 382.088(c), (f), (g), (h), (i), and
766-13 (j), Health and Safety Code, are amended to read as follows:
766-14 (c) In determining the amount of the penalty, the commission
766-15 <board> shall consider:
766-16 (1) the seriousness of the violation, including the
766-17 nature, circumstances, extent, and gravity of the prohibited acts
766-18 and the hazard or potential hazard to the public health or safety;
766-19 (2) the history of previous violations;
766-20 (3) the amount necessary to deter future violations;
766-21 (4) efforts to correct the violation; and
766-22 (5) any other matters that justice may require.
766-23 (f) Not later than the 20th day after the date on which
766-24 notice is received, the person charged may give to the commission
766-25 <board> written consent to the executive director's report,
766-26 including the recommended penalty, or make a written request for a
766-27 hearing.
767-1 (g) If the person charged with the violation consents to the
767-2 penalty recommended by the executive director or does not respond
767-3 to the notice on time, the commission <board> by order shall assess
767-4 that penalty or order a hearing to be held on the recommendations
767-5 in the executive director's report. If the commission <board>
767-6 assesses the penalty recommended by the report, the commission
767-7 <board> shall give written notice to the person charged of its
767-8 decision and the person charged shall pay the penalty.
767-9 (h) If the person charged requests or the commission <board>
767-10 orders a hearing, the executive director shall order a hearing.
767-11 The hearing shall be held by a hearing examiner designated by the
767-12 commission <board>. The hearing examiner shall make findings of
767-13 fact and promptly issue to the commission <board> a written
767-14 decision as to the occurrence of the violation and a recommendation
767-15 on the amount of the proposed penalty if a penalty is warranted.
767-16 Based on the findings of fact and the recommendations of the
767-17 hearing examiner, the commission <board> by order may find a
767-18 violation has occurred and may assess a civil penalty or may find
767-19 that no violation has occurred. All proceedings under this
767-20 subsection are subject to Chapter 2001, Government Code <the
767-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
767-22 Vernon's Texas Civil Statutes)>.
767-23 (i) The commission <board> shall give notice of its decision
767-24 to the person charged, and if the commission <board> finds that a
767-25 violation occurred and a penalty has been assessed, the commission
767-26 <board> shall:
767-27 (1) give to the person charged written notice of:
768-1 (A) the commission's <board's> findings;
768-2 (B) the amount of the penalty; and
768-3 (C) the person's right to judicial review of the
768-4 commission's <board's> order; and
768-5 (2) publish notice of those decisions in the Texas
768-6 Register within 10 days.
768-7 (j) The commission <board> may compromise, modify, or remit,
768-8 with or without conditions, a civil penalty imposed under this
768-9 section. In determining the appropriate amount of a civil penalty
768-10 for settlement of an administrative enforcement matter, the
768-11 commission <board>, in its discretion, may consider the willingness
768-12 of a respondent to contribute to supplemental environmental
768-13 projects that are approved by the commission <board>, giving
768-14 preference to those projects that benefit the community in which
768-15 the alleged violation occurred. In this subsection, "supplemental
768-16 environmental project" means a project that prevents pollution,
768-17 reduces the amount of pollutants reaching the environment, enhances
768-18 the quality of the environment, or contributes to public awareness
768-19 of environmental matters. The term does not include projects that
768-20 are necessary to bring the respondent into compliance with
768-21 environmental laws or that are necessary to remediate the
768-22 environmental harm caused by the alleged violation.
768-23 SECTION 11.183. Section 382.089, Health and Safety Code, is
768-24 amended to read as follows:
768-25 Sec. 382.089. Payment of Administrative Penalty. (a) Not
768-26 later than the 30th day after the date on which the order issued
768-27 under Section 382.088 is final, the person charged shall pay the
769-1 penalty in full or file a petition for judicial review.
769-2 (b) If the person files a petition for judicial review of
769-3 the amount of the penalty, the fact of the violation, or both, the
769-4 person, within the time provided by Subsection (a), shall:
769-5 (1) send the amount to the commission <board> for
769-6 placement in an escrow account; or
769-7 (2) post with the commission <board> a supersedeas
769-8 bond in a form approved by the commission <board> for the amount of
769-9 the penalty, the bond to be effective until judicial review of the
769-10 order or decision is final.
769-11 (c) <A person who fails to comply with Subsection (b) waives
769-12 the right to judicial review. If the person charged does not send
769-13 the money or post the bond, the board or the executive director may
769-14 forward the matter to the attorney general for enforcement.>
769-15 <(d)> Judicial review of the order or decision of the
769-16 commission <board> assessing the penalty shall be under Subchapter
769-17 G, Chapter 2001, Government Code <Section 19, Administrative
769-18 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
769-19 Civil Statutes)>.
769-20 (d) <(e)> If the penalty under Section 382.088 is reduced or
769-21 not assessed, the commission <board> shall:
769-22 (1) remit to the person charged the appropriate amount
769-23 plus accrued interest if the penalty has been paid; or
769-24 (2) execute a release of the bond if a supersedeas
769-25 bond has been posted.
769-26 (e) <(f)> The accrued interest on amounts remitted by the
769-27 commission <board> under Subsection (d) <(e)> shall be paid:
770-1 (1) at a rate equal to the rate charged on loans to
770-2 depository institutions by the New York Federal Reserve Bank; and
770-3 (2) for the period beginning on the date the penalty
770-4 is paid to the commission <board> under Subsection (a) and ending
770-5 on the date the penalty is remitted.
770-6 (f) <(g)> Payment of an administrative penalty under this
770-7 section is full and complete satisfaction of the violation for
770-8 which the administrative penalty is assessed and precludes any
770-9 other civil or criminal penalty for the same violation.
770-10 SECTION 11.184. Section 382.091(a), Health and Safety Code,
770-11 is amended to read as follows:
770-12 (a) A person commits an offense if the person:
770-13 (1) intentionally or knowingly, with respect to the
770-14 person's conduct, violates:
770-15 (A) Section 382.0518(a);
770-16 (B) Section 382.054;
770-17 (C) Section 382.056(a);
770-18 (D) Section 382.058(a); or
770-19 (E) an order, permit, rule, or exemption issued
770-20 under this chapter;
770-21 (2) intentionally or knowingly fails to pay a fee
770-22 required by this chapter or by a rule adopted or order issued under
770-23 this chapter;
770-24 (3) intentionally or knowingly makes or causes to be
770-25 made any false material statement, representation, or certification
770-26 in, or omits material information from, or knowingly alters,
770-27 conceals, or does not file or maintain any notice, application,
771-1 record, report, plan, or other document required to be filed or
771-2 maintained by this chapter or by a rule adopted or permit or order
771-3 issued under this chapter;
771-4 (4) intentionally or knowingly fails to notify or
771-5 report to the commission <board> as required by this chapter or by
771-6 a rule adopted or permit or order issued under this chapter;
771-7 (5) intentionally or knowingly tampers with, modifies,
771-8 disables, or fails to use a required monitoring device; tampers
771-9 with, modifies, or disables a monitoring device; or falsifies,
771-10 fabricates, or omits data from a monitoring device, unless done in
771-11 strict compliance with this chapter or a permit, rule, variance, or
771-12 other order issued by the commission <board>;
771-13 (6) recklessly, with respect to the person's conduct,
771-14 emits an air contaminant that places any other person in imminent
771-15 danger of death or serious bodily injury unless the emission is
771-16 made in strict compliance with this chapter or a permit, rule,
771-17 variance, or other order issued by the commission <board>; or
771-18 (7) intentionally or knowingly, with respect to the
771-19 person's conduct, emits an air contaminant with the knowledge that
771-20 the person is placing any other person in imminent danger of death
771-21 or serious bodily injury unless the emission is made in strict
771-22 compliance with this chapter or a permit, rule, variance, or other
771-23 order issued by the commission <board>.
771-24 SECTION 11.185. Section 382.095(a), Health and Safety Code,
771-25 is amended to read as follows:
771-26 (a) The commission <board> or the executive director shall
771-27 consult with the attorney general concerning possible criminal
772-1 prosecution of an alleged violation. At the specific request of
772-2 the commission <board> or the executive director, the attorney
772-3 general may institute the procedures established by Subsection (b).
772-4 SECTION 11.186. Section 382.096, Health and Safety Code, is
772-5 amended to read as follows:
772-6 Sec. 382.096. Public Participation. Before the commission
772-7 <board> approves a consent order or settlement agreement settling a
772-8 civil or administrative enforcement action under this chapter to
772-9 which the State of Texas or the commission <board> is a party or
772-10 before the court signs a judgment or other agreement settling a
772-11 judicial enforcement action other than an enforcement action under
772-12 Section 113 or 120 or Title II of the federal Clean Air Act (42
772-13 U.S.C. Section 7401 et seq.), the commission <board> or the
772-14 attorney general, as appropriate, shall permit the public to
772-15 comment in writing on the proposed order, judgment, or other
772-16 agreement. Notice of the opportunity to comment shall be published
772-17 in the Texas Register not later than the 30th day before the date
772-18 on which the public comment period closes. The commission <board>
772-19 or the attorney general, as appropriate, shall promptly consider
772-20 any written comments and may withdraw or withhold consent to the
772-21 proposed order, judgment, or other agreement if the comments
772-22 disclose facts or considerations that indicate that the consent is
772-23 inappropriate, improper, inadequate, or inconsistent with the
772-24 requirements of this chapter. No further notice of changes to the
772-25 proposed order, judgment, or other agreement must be published if
772-26 those changes arise from comments submitted in response to a
772-27 previous notice. This section does not apply to criminal
773-1 enforcement proceedings.
773-2 SECTION 11.187. Sections 382.111, 382.112, and 382.113,
773-3 Health and Safety Code, are amended to read as follows:
773-4 Sec. 382.111. Inspections; Power to Enter Property. (a) A
773-5 local government has the same power and is subject to the same
773-6 restrictions as the commission <board> under Section 382.015 to
773-7 inspect the air and to enter public or private property in its
773-8 territorial jurisdiction to determine if:
773-9 (1) the level of air contaminants in an area in its
773-10 territorial jurisdiction and the emissions from a source meet the
773-11 levels set by:
773-12 (A) the commission <board>; or
773-13 (B) a municipality's governing body under
773-14 Section 382.113; or
773-15 (2) a person is complying with this chapter or a rule,
773-16 variance, or order issued by the commission <board>.
773-17 (b) A local government shall send the results of its
773-18 inspections to the commission <board> when requested by the
773-19 commission <board>.
773-20 Sec. 382.112. RECOMMENDATIONS TO COMMISSION <BOARD>. A
773-21 local government may make recommendations to the commission <board>
773-22 concerning a rule, determination, variance, or order of the
773-23 commission <board> that affects an area in the local government's
773-24 territorial jurisdiction. The commission <board> shall give
773-25 maximum consideration to a local government's recommendations.
773-26 Sec. 382.113. Authority of Municipalities. (a) Subject to
773-27 Section 381.002, a municipality has the powers and rights as are
774-1 otherwise vested by law in the municipality to:
774-2 (1) abate a nuisance; and
774-3 (2) enact and enforce an ordinance for the control and
774-4 abatement of air pollution, or any other ordinance, not
774-5 inconsistent with this chapter or the commission's <board's> rules
774-6 or orders.
774-7 (b) An ordinance enacted by a municipality must be
774-8 consistent with this chapter and the commission's <board's> rules
774-9 and orders and may not make unlawful a condition or act approved or
774-10 authorized under this chapter or the commission's <board's> rules
774-11 or orders.
774-12 SECTION 11.188. Sections 382.114(a) and (d), Health and
774-13 Safety Code, are amended to read as follows:
774-14 (a) If it appears that a violation or threat of violation of
774-15 Section 382.085 or of a commission <board> rule, variance, or order
774-16 has occurred or is occurring in a local government's jurisdiction,
774-17 excluding its extraterritorial jurisdiction, the local government,
774-18 in the same manner as the commission <board> under Sections
774-19 382.082-382.084, may bring suit through the local government's
774-20 attorney for injunctive relief, civil penalties, or both, against
774-21 the person who committed, is committing, or is threatening to
774-22 commit the violation.
774-23 (d) In a suit brought by a local government under this
774-24 section, the commission <board> is a necessary and indispensable
774-25 party.
774-26 SECTION 11.189. Section 382.115, Health and Safety Code, is
774-27 amended to read as follows:
775-1 Sec. 382.115. Cooperative Agreements. A local government
775-2 may execute cooperative agreements with the commission <board> or
775-3 other local governments:
775-4 (1) to provide for the performance of air quality
775-5 management, inspection, and enforcement functions and to provide
775-6 technical aid and educational services to a party to the agreement;
775-7 and
775-8 (2) for the transfer of money or property from a party
775-9 to the agreement to another party to the agreement for the purpose
775-10 of air quality management, inspection, enforcement, technical aid,
775-11 and education.
775-12 SECTION 11.190. Section 382.132, Health and Safety Code, is
775-13 amended to read as follows:
775-14 Sec. 382.132. Metropolitan Areas Affected. Rules adopted by
775-15 the commission <board> under Sections 382.133 through 382.136 apply
775-16 only to a consolidated metropolitan statistical area or a
775-17 metropolitan statistical area with a population of 350,000 or more
775-18 that has not met federal ambient air quality standards for ozone,
775-19 carbon monoxide, oxides of nitrogen, or particulates.
775-20 SECTION 11.191. Sections 382.133(a) and (c), Health and
775-21 Safety Code, are amended to read as follows:
775-22 (a) The commission <board> by rule shall require a mass
775-23 transit authority to ensure that its vehicles can operate on
775-24 compressed natural gas or other alternative fuels that result in
775-25 comparably lower emissions.
775-26 (c) Contingent on the commission's <board's> review, not
775-27 later than December 31, 1996, of the alternative fuels program
776-1 established by this section and the commission's <board's>
776-2 determination that the program is reducing emissions, is projected
776-3 to be effective in improving overall air quality, and is necessary
776-4 to the attainment of federal ambient air quality standards in the
776-5 affected areas, the rules must require a mass transit authority,
776-6 not later than September 1, 1998, to have at least 90 percent of
776-7 its fleet vehicles able to operate on compressed natural gas or
776-8 other alternative fuel.
776-9 SECTION 11.192. Section 382.134(b), Health and Safety Code,
776-10 is amended to read as follows:
776-11 (b) If the commission <board> determines under Section
776-12 382.133 that the alternative fuels program is reducing emissions,
776-13 is projected to be effective in improving overall air quality, and
776-14 is necessary to comply with federal ambient air quality standards
776-15 for ozone, carbon monoxide, oxides of nitrogen, or particulates in
776-16 the affected areas, the commission <board> by rule shall require a
776-17 local government or a private person to ensure that its vehicles
776-18 can operate on compressed natural gas or other alternative fuels
776-19 that reduce total annual emissions from motor vehicles in the area.
776-20 SECTION 11.193. Sections 382.136 and 382.137, Health and
776-21 Safety Code, are amended to read as follows:
776-22 Sec. 382.136. Exceptions. (a) The commission <board> may
776-23 make exceptions to rules adopted under Sections 382.133 and 382.134
776-24 if:
776-25 (1) a firm engaged in fixed price contracts with
776-26 public works agencies can demonstrate that compliance with the
776-27 requirements of those sections would result in substantial economic
777-1 harm to the firm under a contract entered into before September 1,
777-2 1997;
777-3 (2) the commission <board> determines that the
777-4 affected vehicles will be operating primarily in an area that does
777-5 not have or cannot reasonably be expected to establish a central
777-6 refueling station for alternative fuels; or
777-7 (3) the affected entity is unable to secure financing
777-8 provided by or arranged through the proposed supplier or suppliers
777-9 of compressed natural gas or other alternative fuels sufficient to
777-10 cover the additional costs of alternative fueling.
777-11 (b) To qualify for an exception under Subsection (a), an
777-12 affected entity must provide data requested by the commission
777-13 <board> to document the unavailability of a refueling station or of
777-14 financing to cover the additional costs of alternative fueling.
777-15 Sec. 382.137. Data Collection. An affected entity shall
777-16 support the commission <board> in collecting reasonable information
777-17 needed to determine air quality benefits from use of alternative
777-18 fuels in affected areas.
777-19 SECTION 11.194. Sections 382.138(a), (c), and (d), Health
777-20 and Safety Code, are amended to read as follows:
777-21 (a) In conjunction with the development of state
777-22 implementation plans for achieving and maintaining compliance with
777-23 federal ambient air quality standards under the federal Clean Air
777-24 Act (42 U.S.C. Section 7401 et seq.), the commission <board> shall
777-25 evaluate and determine, for areas required by federal law to have
777-26 state implementation plans, the effectiveness of and need for the
777-27 use of compressed natural gas and other alternative fuels in
778-1 vehicles.
778-2 (c) In making evaluations and determinations under this
778-3 section, the commission <board> shall:
778-4 (1) review reports received by the commission <board>
778-5 on alternative fuels programs;
778-6 (2) consult with a reporting entity on the
778-7 contribution the entity's program is making toward achieving and
778-8 maintaining compliance with federal ambient air quality standards;
778-9 and
778-10 (3) consider for each category of vehicles the factors
778-11 required for the development of state implementation plans under
778-12 the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) and this
778-13 chapter.
778-14 (d) Before making a determination under this subchapter, the
778-15 commission <board> shall solicit comments from the Department of
778-16 Public Safety and the Railroad Commission of Texas concerning any
778-17 effect on public safety.
778-18 SECTION 11.195. Section 382.139, Health and Safety Code, is
778-19 amended to read as follows:
778-20 Sec. 382.139. Additional Alternative Fuels Use. (a) If,
778-21 after considering the factors listed in Section 382.138, the
778-22 commission <board> determines that the use of compressed natural
778-23 gas or other alternative fuels for certain categories of motor
778-24 vehicles is effective and necessary for achieving and maintaining
778-25 compliance with federal ambient air quality standards, the
778-26 commission <board> by rule shall require those uses in addition to
778-27 uses required elsewhere in this subchapter.
779-1 (b) If, after considering the factors listed in Section
779-2 382.138, the commission <board> determines that the additional uses
779-3 are appropriate, the commission <board> may establish and implement
779-4 programs encouraging the use of compressed natural gas or other
779-5 alternative fuels for certain categories of vehicles.
779-6 SECTION 11.196. Section 382.140(a), Health and Safety Code,
779-7 is amended to read as follows:
779-8 (a) In connection with the evaluations and determinations
779-9 required under Section 382.138 and encouraging the use of natural
779-10 gas or other alternative fuels, the commission <board> may conduct
779-11 or have conducted appropriate studies or pilot programs.
779-12 SECTION 11.197. Section 382.141, Health and Safety Code, is
779-13 amended to read as follows:
779-14 Sec. 382.141. Report Required. The commission <board> shall
779-15 report biennially its evaluations and determinations on the use of
779-16 compressed natural gas or other alternative fuels and recommend
779-17 legislative changes necessary to implement an effective and
779-18 feasible program for the use of compressed natural gas and other
779-19 alternative fuels. The report shall be submitted to the governor
779-20 and the legislature not later than the 30th day before the
779-21 commencement of each regular legislative session.
779-22 SECTION 11.198. Sections 383.003(3), (4), (5), and (6),
779-23 Health and Safety Code, are amended to read as follows:
779-24 (3) <"Board" means the Texas Air Control Board.>
779-25 <(4)> "Bond" includes a note.
779-26 (4) <(5)> "Coastal basin" means an area that:
779-27 (A) is defined and designated as a coastal basin
780-1 as of April 26, 1973, by the Texas Water Development Board, and as
780-2 a separate unit that has the purpose of water development and
780-3 interwatershed transfers; and
780-4 (B) has boundaries determined by a contour map
780-5 filed in the office of the Texas Water Development Board.
780-6 (5) "Commission" means the Texas Natural Resource
780-7 Conservation Commission.
780-8 (6) "Control facility" means a facility that has been
780-9 certified by the commission <board>, or by its executive secretary
780-10 if the commission <board> authorizes, as being designed to reduce
780-11 or eliminate air pollution.
780-12 SECTION 11.199. Section 383.004, Health and Safety Code, is
780-13 amended to read as follows:
780-14 Sec. 383.004. Certification of Control Facility by
780-15 Commission <BOARD>. The commission <board> may prescribe necessary
780-16 criteria and procedures for certifying a control facility and may
780-17 limit certification to confirmation that a proposed facility is
780-18 intended to control air pollution. Certification of a control
780-19 facility's adequacy or expected performance or of other
780-20 specifications is not necessary.
780-21 SECTION 11.200. Section 383.006(a), Health and Safety Code,
780-22 is amended to read as follows:
780-23 (a) This chapter does not limit the authority of the
780-24 commission <board>, a district, or a local government in performing
780-25 a power or duty provided by other law. This chapter does not limit
780-26 the authority of the commission <board> or a local government to
780-27 adopt and enforce rules or carry out duties under Chapter 382
781-1 (Texas Clean Air Act).
781-2 SECTION 11.201. Sections 384.001(1) and (2), Health and
781-3 Safety Code, are amended to read as follows:
781-4 (1) "Commission" <"Board"> means the Texas Natural
781-5 Resource Conservation Commission <Air Control Board or its
781-6 successor agency>.
781-7 (2) "Emission reduction credit" means a credit
781-8 recognized by the commission <Texas Air Control Board> and the
781-9 United States Environmental Protection Agency for reductions in
781-10 emissions of air pollutants.
781-11 SECTION 11.202. Section 384.003, Health and Safety Code, is
781-12 amended to read as follows:
781-13 Sec. 384.003. Establishment of Organization. A regional
781-14 council of governments whose area of jurisdiction contains a
781-15 nonattainment area may establish an organization on approval by the
781-16 commission <board> of its creation petition as provided by Section
781-17 384.015.
781-18 SECTION 11.203. Section 384.008(a), Health and Safety Code,
781-19 is amended to read as follows:
781-20 (a) The board of directors of an organization shall consist
781-21 of not less than six and not more than 21 appointed members,
781-22 provided, however, that the number of appointed members is
781-23 divisible by three. The appointed members are appointed by and may
781-24 be removed for cause by the governing body of the regional council
781-25 of governments. The appointed members serve three-year terms, with
781-26 one-third of the members' terms expiring each year. In order to
781-27 stagger the terms, the initial appointees of a board of directors
782-1 shall draw lots to determine which one-third serves for one year,
782-2 which one-third serves for two years, and which one-third serves
782-3 for three years. In addition, the board of directors shall have
782-4 one ex officio nonvoting member from the commission <board>,
782-5 designated by the executive director of the commission <board> to
782-6 act as a liaison between the commission <board> and the area
782-7 emission reduction credit organization.
782-8 SECTION 11.204. Section 384.012, Health and Safety Code, is
782-9 amended to read as follows:
782-10 Sec. 384.012. Powers and Duties. An organization shall have
782-11 the authority to:
782-12 (1) receive and use funds;
782-13 (2) have an account at the Texas Natural Resource
782-14 Conservation Commission <Air Control Board> Air Emission Reduction
782-15 Credit Bank;
782-16 (3) acquire emission reduction credits through
782-17 purchase, donation, or other means;
782-18 (4) transfer emission reduction credits by sale or
782-19 other means;
782-20 (5) identify, evaluate, promote, initiate, and
782-21 facilitate potential projects and strategies to generate emission
782-22 reduction credits;
782-23 (6) provide financial assistance for projects to
782-24 generate emission reduction credits;
782-25 (7) employ staff;
782-26 (8) enter into contracts; and
782-27 (9) consider sustainability of projects.
783-1 SECTION 11.205. Section 384.014, Health and Safety Code, is
783-2 amended to read as follows:
783-3 Sec. 384.014. Annual Report. By March 1 of each year
783-4 each area organization shall file with the commission <board> and
783-5 the regional council of governments an annual report for the
783-6 preceding calendar year. The annual report shall contain a
783-7 financial accounting, an accounting of emission reduction credits,
783-8 and a listing of all emission reduction credit transactions entered
783-9 into by the organization.
783-10 SECTION 11.206. Sections 384.015(a), (c), and (d), Health
783-11 and Safety Code, are amended to read as follows:
783-12 (a) A regional council of governments may authorize by
783-13 resolution the submission of a petition to the commission <board>
783-14 requesting the creation of an organization under this chapter.
783-15 (c) The commission <board> shall review the petition for
783-16 compliance with this chapter and hold a hearing in the region to
783-17 obtain public comment on the petition.
783-18 (d) The commission <board> shall approve the petition and
783-19 creation of the organization if, after hearing, it finds that the
783-20 requirements of this chapter are met and that such creation would
783-21 be in the public interest.
783-22 SECTION 11.207. Sections 384.016, 384.017, and 384.018,
783-23 Health and Safety Code, are amended to read as follows:
783-24 Sec. 384.016. Audit. The commission <board> shall have the
783-25 authority to audit any organization created under this chapter.
783-26 Sec. 384.017. Withdrawal of Approval. The commission
783-27 <board> shall have the authority to withdraw its approval of an
784-1 organization created under this chapter and to dissolve such
784-2 organization if it finds, after notice and hearing, that the
784-3 organization has failed to comply with the provisions of this
784-4 chapter.
784-5 Sec. 384.018. Dissolution. An organization created under
784-6 this chapter shall be dissolved by the commission <board> 12 years
784-7 after its creation unless the commission <board> approves a
784-8 petition, submitted and approved in accordance with Section
784-9 384.015, for an additional 12-year term. The commission <board>
784-10 may continue to approve successive 12-year terms for the
784-11 organization as long as the need for the organization exists.
784-12 SECTION 11.208. Section 401.003, Health and Safety Code, is
784-13 amended to read as follows:
784-14 Sec. 401.003. Definitions. In this chapter, unless
784-15 otherwise specifically provided:
784-16 (1) "Advisory board" means the radiation advisory
784-17 board.
784-18 (2) "Board" means the Texas Board of Health.
784-19 (3) "By-product material" means:
784-20 (A) a radioactive material, other than special
784-21 nuclear material, that is produced in or made radioactive by
784-22 exposure to radiation incident to the process of producing or using
784-23 special nuclear material; and
784-24 (B) tailings or wastes produced by or resulting
784-25 from the extraction or concentration of uranium or thorium from ore
784-26 processed primarily for its source material content, including
784-27 discrete surface wastes resulting from uranium solution extraction
785-1 processes, and other tailings having similar radiological
785-2 characteristics.
785-3 (4) "Commission" means the Texas Natural Resource
785-4 Conservation <United States Nuclear Regulatory> Commission.
785-5 (5) "Commissioner" means the commissioner of public
785-6 health.
785-7 (6) "Department" means the Texas Department of Health.
785-8 (7) "Director" means the director of the radiation
785-9 control program under the department's jurisdiction.
785-10 (8) "Disposal" means isolation or removal of
785-11 radioactive waste from mankind and mankind's environment without
785-12 intent to retrieve that radioactive waste later. The term does not
785-13 include emissions and discharges under department rules.
785-14 (9) "Electronic product" means a manufactured product
785-15 or device or component part of a manufactured product or device
785-16 that has an electronic circuit that during operation can generate
785-17 or emit a physical field of radiation.
785-18 (10) "Federal commission" means the United States
785-19 Nuclear Regulatory Commission.
785-20 (11) "Fund" means the radiation and perpetual care
785-21 fund.
785-22 (12) <(11)> "General license" means a license issued
785-23 under department rules for which an application is not required to
785-24 be filed to transfer, acquire, own, possess, or use quantities of
785-25 or devices or equipment that make use of by-product, source,
785-26 special nuclear, or other radioactive material.
785-27 (13) <(12)> "Local government" means a municipality,
786-1 county, special district, or other political subdivision of the
786-2 state.
786-3 (14) <(13)> "Person" includes a legal successor to or
786-4 representative, agent, or agency of any person but does not include
786-5 the federal commission and federal agencies the federal commission
786-6 licenses or exempts.
786-7 (15) <(14)> "Person affected" means a person who
786-8 demonstrates that the person has suffered or will suffer actual
786-9 injury or economic damage and, if the person is not a local
786-10 government:
786-11 (A) is a resident of a county, or a county
786-12 adjacent to that county, in which nuclear or radioactive material
786-13 is or will be located; or
786-14 (B) is doing business or has a legal interest in
786-15 land in the county or adjacent county.
786-16 (16) <(15)> "Processing" means the storage, extraction
786-17 of material, transfer, volume reduction, compaction, or other
786-18 separation and preparation of radioactive waste for reuse or
786-19 disposal, including a treatment or activity that renders the waste
786-20 less hazardous, safer for transport, or amenable to recovery,
786-21 storage, or disposal.
786-22 (17) <(16)> "Radiation" means one or more of the
786-23 following:
786-24 (A) gamma-rays and X-rays, alpha and beta
786-25 particles, and other atomic or nuclear particles or rays;
786-26 (B) stimulated emission of radiation from an
786-27 electronic device to energy density levels that could reasonably
787-1 cause bodily harm; or
787-2 (C) sonic, ultrasonic, or infrasonic waves
787-3 emitted from an electronic device or resulting from the operation
787-4 of an electronic circuit in an electronic device in the energy
787-5 range to reasonably cause detectable bodily harm.
787-6 (18) <(17)> "Radioactive material" means a naturally
787-7 occurring or artificially produced solid, liquid, or gas that emits
787-8 radiation spontaneously.
787-9 (19) "Radioactive substance" includes:
787-10 (A) by-product material;
787-11 (B) naturally occurring radioactive material
787-12 waste, excluding oil and gas NORM waste;
787-13 (C) radioactive material;
787-14 (D) radioactive waste;
787-15 (E) source material;
787-16 (F) source of radiation; and
787-17 (G) special nuclear material.
787-18 (20) <(18)> "Radioactive waste" means radioactive
787-19 material, other than by-product material defined by Subdivision
787-20 (3)(B), uranium ore, naturally occurring radioactive material
787-21 waste, or oil and gas NORM waste, that:
787-22 (A) is discarded or unwanted and is not exempt
787-23 by department rule adopted under Section 401.106 <of this chapter>;
787-24 or
787-25 (B) would require processing before it could
787-26 have a beneficial reuse.
787-27 (21) <(19)> "Registration" includes:
788-1 (A) notice to the department of the service or
788-2 use of an electronic product; and
788-3 (B) registration under Section 401.105.
788-4 (22) <(20)> "Source material" means:
788-5 (A) uranium, thorium, or other material that the
788-6 governor by order declares to be source material after the federal
788-7 commission has determined the material to be source material; or
788-8 (B) ore that contains one or more of the
788-9 materials listed in Subdivision (A) to the degree of concentration
788-10 that the governor by order declares to be source material after the
788-11 federal commission has determined the material to be of a degree of
788-12 concentration to be source material.
788-13 (23) <(21)> "Source of radiation" means radioactive
788-14 material or a device or equipment that emits or is capable of
788-15 producing radiation intentionally or incidentally.
788-16 (24) <(22)> "Special nuclear material" means:
788-17 (A) plutonium, uranium 233, uranium enriched in
788-18 the isotope 233 or the isotope 235, and any other material other
788-19 than source material that the governor by order declares to be
788-20 special nuclear material after the federal commission determines
788-21 the material to be special nuclear material; or
788-22 (B) material other than source material that is
788-23 artificially enriched by any of the materials listed in Subdivision
788-24 (A).
788-25 (25) <(23)> "Specific license" means a license, issued
788-26 pursuant to an application, to use, manufacture, produce, transfer,
788-27 receive, acquire, own, possess, process, or dispose of quantities
789-1 of or devices or equipment using by-product, source, special
789-2 nuclear, or other radioactive material.
789-3 (26) <(24)> "Naturally occurring radioactive material
789-4 waste" or "NORM waste" means solid, liquid, or gaseous material or
789-5 combination of materials, excluding source material, special
789-6 nuclear material, and by-product material, that:
789-7 (A) in its natural physical state spontaneously
789-8 emits radiation;
789-9 (B) is discarded or unwanted; and
789-10 (C) is not exempt by department rule adopted
789-11 under Section 401.106 <of this chapter>.
789-12 (27) <(25)> "Oil and gas NORM waste" means solid,
789-13 liquid, or gaseous material or combination of materials, excluding
789-14 source material, special nuclear material, and by-product material,
789-15 that:
789-16 (A) in its natural physical state spontaneously
789-17 emits radiation;
789-18 (B) is discarded or unwanted;
789-19 (C) is not exempt by department rule adopted
789-20 under Section 401.106 <of this chapter>; and
789-21 (D) constitutes, is contained in, or has
789-22 contaminated oil and gas waste as that term is defined in Section
789-23 91.1011 of the Natural Resources Code.
789-24 SECTION 11.209. Sections 401.011 through 401.014, Health and
789-25 Safety Code, are amended to read as follows:
789-26 Sec. 401.011. RADIATION CONTROL AGENCY. (a) The department
789-27 <Texas Department of Health> is the Texas Radiation Control Agency.
790-1 The department has jurisdiction over activities and substances
790-2 regulated under this chapter except as provided by Subsection (b)
790-3 and Subchapters F, G, and K.
790-4 (b) The commission has jurisdiction to regulate and license:
790-5 (1) the disposal of radioactive substances; and
790-6 (2) the recovery and processing of source material.
790-7 (c) The department and commission each shall exercise its
790-8 respective <the> powers and duties under this chapter for the
790-9 protection of the occupational health and safety and the
790-10 environment.
790-11 Sec. 401.012. DESIGNATION OF DIRECTOR. The commissioner
790-12 shall designate the director of the radiation control program under
790-13 the department's jurisdiction.
790-14 Sec. 401.013. DUTIES OF DIRECTOR. The director or the
790-15 director's designee shall perform the department's functions under
790-16 this chapter <other than the licensing functions reserved to the
790-17 commissioner under Subchapters F and G>.
790-18 Sec. 401.014. EMPLOYEES. The department and commission each
790-19 within its jurisdiction may employ, compensate, and prescribe the
790-20 powers and duties of persons as necessary to carry out this
790-21 chapter.
790-22 SECTION 11.210. Section 401.051, Health and Safety Code, is
790-23 amended to read as follows:
790-24 Sec. 401.051. ADOPTION OF RULES AND GUIDELINES. The board
790-25 and commission each within its jurisdiction may adopt rules and
790-26 guidelines relating to control of sources of radiation.
790-27 SECTION 11.211. Section 401.052(c), Health and Safety Code,
791-1 is amended to read as follows:
791-2 (c) In promulgating rules under this section, the board
791-3 shall consult with the advisory board and the commission <Texas
791-4 Natural Resource Conservation Commission>.
791-5 SECTION 11.212. Section 401.0525, Health and Safety Code, is
791-6 amended to read as follows:
791-7 Sec. 401.0525. Groundwater Protection Standards. (a) The
791-8 commission <department> shall adopt and enforce groundwater
791-9 protection standards compatible with federal standards adopted
791-10 under the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et
791-11 seq.).
791-12 (b) In adopting any <Any> standards <adopted by the
791-13 department> relating to nonradioactive constituents <must be
791-14 reviewed by> the commission shall consider the <Texas Water
791-15 Commission to determine> compatibility of those standards with the
791-16 <that> commission's groundwater protection standards adopted under
791-17 other programs.
791-18 SECTION 11.213. Section 401.054(a), Health and Safety Code,
791-19 is amended to read as follows:
791-20 (a) The department or commission shall provide notice and an
791-21 opportunity for a hearing on a matter under its jurisdiction as
791-22 provided by its <the department's> formal hearing procedures and
791-23 Chapter 2001, Government Code <the Administrative Procedure and
791-24 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
791-25 Statutes)>, on written request of a person affected by any of the
791-26 following procedures:
791-27 (1) the denial, suspension, or revocation by the
792-1 agency of a license or registration;
792-2 (2) the determination by the agency of compliance with
792-3 or the grant of exemptions from an agency <a department> rule or
792-4 order; or
792-5 (3) the grant or amendment by the agency of a specific
792-6 license.
792-7 SECTION 11.214. Section 401.055, Health and Safety Code, is
792-8 amended to read as follows:
792-9 Sec. 401.055. Orders. The department or commission shall
792-10 issue and modify necessary orders in connection with proceedings
792-11 conducted by the agency under this chapter on matters under the
792-12 agency's jurisdiction.
792-13 SECTION 11.215. Sections 401.056(a), (d), (e), and (f),
792-14 Health and Safety Code, are amended to read as follows:
792-15 (a) If the department or commission finds an emergency
792-16 exists as a result of a matter under its jurisdiction that requires
792-17 immediate action to protect the public health and safety and the
792-18 environment, the agency <department>, without notice or hearing,
792-19 may issue an order stating the existence of the emergency and
792-20 requiring that action be taken at the agency's <department's>
792-21 direction to meet the emergency.
792-22 (d) The agency <department> shall provide a person to whom
792-23 an emergency order is directed an opportunity for a hearing on
792-24 written application to the agency <department> not later than the
792-25 30th day following the date of the emergency order.
792-26 (e) The agency <department> shall hold a requested hearing
792-27 not earlier than the 11th day and not later than the 20th day
793-1 following the date of receipt of the hearing application.
793-2 (f) The agency <department> shall continue, modify, or
793-3 revoke an emergency order based on the hearing.
793-4 SECTION 11.216. Sections 401.057 and 401.058, Health and
793-5 Safety Code, are amended to read as follows:
793-6 Sec. 401.057. Records. (a) The department or commission,
793-7 within its jurisdiction, shall require each person who possesses or
793-8 uses a source of radiation to maintain:
793-9 (1) records relating to the use, receipt, storage,
793-10 transfer, or disposal of that source of radiation;
793-11 (2) appropriate records that show the radiation
793-12 exposure of each individual for whom personnel monitoring is
793-13 required by the agency's <department> rules, licenses,
793-14 registrations, and orders; and
793-15 (3) other records the agency <department> requires.
793-16 (b) The board or commission by rule may provide exemptions
793-17 to the records requirements under Subsections (a)(1) and (3).
793-18 (c) Copies of records required to be maintained under
793-19 Subsection (a) shall be submitted to the agency <department> on
793-20 request.
793-21 (d) A person who possesses or uses a source of radiation
793-22 shall furnish to each employee for whom personnel monitoring is
793-23 required a copy of the employee's personal exposure record at any
793-24 time the employee has received exposure that exceeds the maximum
793-25 permissible levels provided by the agency's <board> rules and on
793-26 termination of employment. The person shall furnish to an employee
793-27 on request a copy of the employee's annual exposure record.
794-1 Sec. 401.058. Information. (a) The department shall
794-2 collect and disseminate information relating to the <control and>
794-3 transportation of sources of radiation. The department and the
794-4 commission each within its jurisdiction shall collect and
794-5 disseminate information relating to the control of sources of
794-6 radiation.
794-7 (b) The department and commission each, as part of the
794-8 collection and dissemination of information, shall maintain:
794-9 (1) a file of license applications, issuances,
794-10 denials, amendments, transfers, renewals, modifications,
794-11 suspensions, and revocations;
794-12 (2) a file of registrants possessing sources of
794-13 radiation requiring registration under this chapter and any
794-14 administrative or judicial action relating to those registrants;
794-15 and
794-16 (3) a file of pending and adopted rules and guidelines
794-17 relating to regulation of sources of radiation and proceedings
794-18 relating to those rules and guidelines.<; and>
794-19 (c) The commission, as part of the collection and
794-20 dissemination of information, shall maintain <(4)> a file of:
794-21 (1) <(A)> known locations in this state at which
794-22 radioactive material has been disposed of and at which soil and
794-23 facilities are contaminated; and
794-24 (2) <(B)> information on inspection reports relating
794-25 to the radioactive material disposed of and radiation levels at
794-26 those locations.
794-27 SECTION 11.217. Section 401.059(b), Health and Safety Code,
795-1 is amended to read as follows:
795-2 (b) The department and commission shall develop programs
795-3 within their respective jurisdictions with due regard for
795-4 compatibility with federal programs for the regulation of sources
795-5 of radiation.
795-6 SECTION 11.218. Sections 401.060 through 401.063, Health and
795-7 Safety Code, are amended to read as follows:
795-8 Sec. 401.060. Studies, Investigations, Etc. The department
795-9 and commission each within its jurisdiction shall encourage,
795-10 participate in, or conduct studies, investigations, training,
795-11 research, and demonstrations relating to the control of sources of
795-12 radiation.
795-13 Sec. 401.061. Radioactive Waste Studies. The department and
795-14 commission each within its jurisdiction shall conduct studies of
795-15 the need for radioactive waste processing and disposal facilities
795-16 and technologies as the agency <department> considers necessary for
795-17 minimizing the risks to the public and the environment from
795-18 radioactive waste management.
795-19 Sec. 401.062. Training Programs. (a) The department and
795-20 commission each may institute training programs to qualify their
795-21 personnel to carry out this chapter.
795-22 (b) The department and commission each may make those
795-23 personnel available to participate in a program of the federal
795-24 government, another state, or an interstate agency to carry out
795-25 this chapter's purposes.
795-26 Sec. 401.063. General Inspection Authority. (a) The
795-27 department or commission or the agency's <its> representative may
796-1 enter public or private property at reasonable times to determine
796-2 whether, in a matter under the agency's jurisdiction, there is
796-3 compliance with this chapter and the agency's <department's> rules,
796-4 licenses, registrations, and orders under this chapter.
796-5 (b) The department or commission or the agency's <its>
796-6 representative may enter an area under the jurisdiction of the
796-7 federal government only with the concurrence of the federal
796-8 government or its designated representative.
796-9 SECTION 11.219. Section 401.065, Health and Safety Code, is
796-10 amended to read as follows:
796-11 Sec. 401.065. Inspection Agreements. The department or
796-12 commission, in matters under its jurisdiction, with the approval of
796-13 the governor, may enter into an agreement with the federal
796-14 government, another state, or an interstate agency under which the
796-15 state, in cooperation with the other parties to the agreement,
796-16 performs inspections or other functions relating to the control of
796-17 sources of radiation.
796-18 SECTION 11.220. Section 401.067(b), Health and Safety Code,
796-19 is amended to read as follows:
796-20 (b) Records copied under this section are public records
796-21 unless the record's owner shows to the satisfaction of the
796-22 commission <director> that the records if made public will divulge
796-23 trade secrets. On such a showing, the commission <department>
796-24 shall consider the copied records confidential.
796-25 SECTION 11.221. Sections 401.068 through 401.070, Health and
796-26 Safety Code, are amended to read as follows:
796-27 Sec. 401.068. IMPOUNDING SOURCES OF RADIATION. The
797-1 department or commission, in an emergency relating to a substance
797-2 or activity under the agency's jurisdiction, may impound or order
797-3 impounded sources of radiation that are in the possession of a
797-4 person who is not equipped to observe or fails to observe this
797-5 chapter or the agency's <department> rules.
797-6 Sec. 401.069. MEMORANDUM OF UNDERSTANDING. The board or
797-7 commission must adopt as a rule any memorandum of understanding
797-8 between the department or commission, as appropriate, and another
797-9 state agency.
797-10 Sec. 401.070. RELATIONSHIP WITH OTHER ENTITIES. The
797-11 department shall advise, consult, and cooperate, on matters under
797-12 its jurisdiction, with other state agencies, the federal
797-13 government, other states, interstate agencies, local governments,
797-14 and groups concerned with the control and transportation of sources
797-15 of radiation. The commission shall advise, consult, and cooperate
797-16 with those entities on matters under its jurisdiction.
797-17 SECTION 11.222. Sections 401.101 through 401.105, Health and
797-18 Safety Code, are amended to read as follows:
797-19 Sec. 401.101. LICENSE AND REGISTRATION REQUIREMENT. A
797-20 person may not use, manufacture, produce, transport, transfer,
797-21 receive, acquire, own, possess, process, or dispose of a source of
797-22 radiation unless that person has a license, registration, or
797-23 exemption from the department or commission as provided by this
797-24 chapter.
797-25 Sec. 401.102. APPLICATION TO NUCLEAR REACTOR FACILITIES.
797-26 Nuclear reactor facilities licensed by the federal commission are
797-27 not required to be licensed or registered under this chapter.
798-1 Sec. 401.103. RULES AND GUIDELINES FOR LICENSING AND
798-2 REGISTRATION. (a) The board shall adopt rules and guidelines that
798-3 provide for licensing and registration for the <control and>
798-4 transportation of sources of radiation.
798-5 (b) The board and commission each within its jurisdiction
798-6 shall adopt rules and guidelines that provide for licensing and
798-7 registration for the control of sources of radiation.
798-8 (c) In adopting rules and guidelines, the board and
798-9 commission shall consider the compatibility of those rules and
798-10 guidelines with federal regulatory programs.
798-11 Sec. 401.104. LICENSING AND REGISTRATION RULES. (a) Except
798-12 as provided by Subsection (b), the <The> board by rule shall
798-13 provide for the general or specific licensing of:
798-14 (1) radioactive material; or
798-15 (2) devices or equipment using radioactive material.
798-16 (b) The commission by rule shall provide for licensing for
798-17 the disposal of radioactive material.
798-18 (c) The board or commission shall provide in its <those>
798-19 rules for the issuance, amendment, suspension, and revocation of
798-20 licenses.
798-21 (d) <(c)> The board or commission, within its jurisdiction,
798-22 may require the registration or licensing of other sources of
798-23 radiation.
798-24 Sec. 401.105. RECOGNITION OF OTHER LICENSES. The board or
798-25 commission, within its jurisdiction, by rule may recognize other
798-26 federal or state licenses the board or commission, as appropriate,
798-27 considers desirable, subject to registration requirements the board
799-1 or commission, as appropriate, may prescribe.
799-2 SECTION 11.223. Sections 401.107 through 401.112, Health and
799-3 Safety Code, are amended to read as follows:
799-4 Sec. 401.107. License Application. (a) An application for
799-5 a specific license issued by the board or commission must be in
799-6 writing and must state the information that the board or
799-7 commission, as appropriate, <board> by rule determines to be
799-8 necessary to decide the technical, insurance, and financial
799-9 qualifications or any other of the applicant's qualifications the
799-10 issuing agency <board> considers reasonable or necessary to protect
799-11 the occupational and public health and safety and the environment.
799-12 (b) The issuing agency <department> at any time after an
799-13 application is filed with the agency, and if the application is for
799-14 a renewal, before the expiration of the license, may require
799-15 further written statements and may make inspections the agency
799-16 <department> considers necessary to determine if the license should
799-17 be granted or denied or if the current license should be modified,
799-18 suspended, or revoked.
799-19 (c) The applicant or license holder shall sign each license
799-20 application and each statement, and the agency <department> may
799-21 require the applicant or license holder to make the application or
799-22 statement under oath.
799-23 Sec. 401.108. Financial Qualifications. (a) Before a
799-24 license is issued or renewed by the department or commission, the
799-25 applicant shall demonstrate to the issuing agency <department> that
799-26 the applicant is financially qualified to conduct the licensed
799-27 activity, including any required decontamination, decommissioning,
800-1 reclamation, and disposal.
800-2 (b) A license holder shall submit to the issuing agency
800-3 <department>, at intervals required by issuing agency <department>
800-4 rules or the license, proof of the license holder's financial
800-5 qualifications.
800-6 (c) The commission <department> shall reevaluate every five
800-7 years the qualifications and security provided by a license holder
800-8 under Subchapter F or Subchapter G. The reevaluation may coincide
800-9 with license renewal procedures if renewal and reevaluation occur
800-10 in the same year.
800-11 Sec. 401.109. Security. (a) The department or commission
800-12 may require a holder of a license issued by the agency <license
800-13 holder> to provide security acceptable to the agency <department>
800-14 to assure performance of the license holder's obligations under
800-15 this chapter.
800-16 (b) The amount and type of security required shall be
800-17 determined under the agency's <department's> rules in accordance
800-18 with criteria that include:
800-19 (1) the need for and scope of decontamination,
800-20 decommissioning, reclamation, or disposal activity reasonably
800-21 required to protect the public health and safety and the
800-22 environment;
800-23 (2) reasonable estimates of the cost of
800-24 decontamination, decommissioning, reclamation, and disposal as
800-25 provided by Section 401.303; and
800-26 (3) the cost of perpetual maintenance and
800-27 surveillance, if any.
801-1 (c) In this section "security" includes:
801-2 (1) a cash deposit;
801-3 (2) a surety bond;
801-4 (3) a certificate of deposit;
801-5 (4) an irrevocable letter of credit;
801-6 (5) a deposit of government securities; and
801-7 (6) other security acceptable to the agency
801-8 <department>.
801-9 Sec. 401.110. Determination on License. In making a
801-10 determination whether to grant, deny, amend, revoke, suspend, or
801-11 restrict a license or registration, the department or commission
801-12 may consider those aspects of an applicant's or license holder's
801-13 background that bear materially on the ability to fulfill the
801-14 obligations of licensure, including technical competence and the
801-15 applicant's or license holder's record in areas involving
801-16 radiation.
801-17 Sec. 401.111. Criteria for Certain Unsuitable New Sites.
801-18 (a) The board and commission each, in adopting rules for the
801-19 issuance of licenses under their respective jurisdictions for new
801-20 sites for processing or disposal of radioactive waste from other
801-21 persons, shall adopt criteria for the designation of unsuitable
801-22 sites, including:
801-23 (1) flood hazard areas;
801-24 (2) areas with characteristics of discharge from or
801-25 recharge of a groundwater aquifer system; or
801-26 (3) areas in which soil conditions make spill cleanup
801-27 impracticable.
802-1 (b) The board and commission each shall consult with the
802-2 State Soil and Water Conservation Board, the Bureau of Economic
802-3 Geology, and other appropriate state agencies in developing
802-4 proposed rules. The board and commission each by rule shall:
802-5 (1) require selection of sites in areas in which
802-6 natural conditions minimize potential contamination of surface
802-7 water and groundwater; and
802-8 (2) prohibit issuance of licenses for unsuitable sites
802-9 as defined by the rules.
802-10 Sec. 401.112. Radioactive Waste Processing License
802-11 Application and Considerations. (a) The department or commission,
802-12 within its jurisdiction, in making a licensing decision on a
802-13 specific license application to process or dispose of radioactive
802-14 waste from other persons, shall consider:
802-15 (1) site suitability, geological, hydrological, and
802-16 meteorological factors, and natural hazards;
802-17 (2) compatibility with present uses of land near the
802-18 site;
802-19 (3) socioeconomic effects on surrounding communities
802-20 of operation of the licensed activity and of associated
802-21 transportation of radioactive material;
802-22 (4) the need for and alternatives to the proposed
802-23 activity, including an alternative siting analysis prepared by the
802-24 applicant;
802-25 (5) the applicant's qualifications, including
802-26 financial, technical, and past operating practices;
802-27 (6) background monitoring plans for the proposed site;
803-1 (7) suitability of facilities associated with the
803-2 proposed activities;
803-3 (8) chemical, radiological, and biological
803-4 characteristics of the radioactive waste and waste classification
803-5 under Section 401.053;
803-6 (9) adequate insurance of the applicant to cover
803-7 potential injury to any property or person, including potential
803-8 injury from risks relating to transportation;
803-9 (10) training programs for the applicant's employees;
803-10 (11) a monitoring, record-keeping, and reporting
803-11 program;
803-12 (12) spill detection and cleanup plans for the
803-13 licensed site and related to associated transportation of
803-14 radioactive material;
803-15 (13) decommissioning and postclosure care plans;
803-16 (14) security plans;
803-17 (15) worker monitoring and protection plans;
803-18 (16) emergency plans; and
803-19 (17) a monitoring program for applicants that includes
803-20 prelicense and postlicense monitoring of background radioactive and
803-21 chemical characteristics of the soils, groundwater, and vegetation.
803-22 (b) An applicant for the specific license must submit with
803-23 the application information necessary for the issuing agency
803-24 <department> to consider the factors under Subsection (a).
803-25 (c) The board and commission each within its jurisdiction by
803-26 rule shall provide specific criteria for the different types of
803-27 licensed radioactive waste activities for the listed factors and
804-1 may include additional factors and criteria that the board or
804-2 commission, as appropriate, determines necessary for full
804-3 consideration of a license.
804-4 SECTION 11.224. Sections 401.113(a) and (b), Health and
804-5 Safety Code, are amended to read as follows:
804-6 (a) Before a hearing under Section 401.114 begins, the
804-7 agency holding the hearing <department> shall prepare or have
804-8 prepared a written analysis of the effect on the environment of a
804-9 proposed licensed activity that the agency <department> determines
804-10 has a significant effect on the human environment.
804-11 (b) The agency <department> shall make the analysis
804-12 available to the public not later than the 31st day before the date
804-13 of a hearing under Section 401.114.
804-14 SECTION 11.225. Section 401.114, Health and Safety Code, is
804-15 amended to read as follows:
804-16 Sec. 401.114. Notice and Hearing. (a) Before the
804-17 department or commission, within its jurisdiction, grants or renews
804-18 a license to process or dispose of radioactive waste from other
804-19 persons, the agency <department> shall give notice and shall
804-20 provide an opportunity for a public hearing in the manner provided
804-21 by the agency's <department's> formal hearing procedure and Chapter
804-22 2001, Government Code <the Administrative Procedure and Texas
804-23 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
804-24 (b) In addition to other notice, the agency <department>
804-25 shall publish notice of the hearing in the manner provided by
804-26 Chapter 313, Government Code, in the county in which the proposed
804-27 facility is to be located. The notice shall state the subject and
805-1 the time, place, and date of the hearing.
805-2 (c) The agency <department> shall mail, by certified mail in
805-3 the manner provided by the agency's <department's> rules, written
805-4 notice to each person who owns property adjacent to the proposed
805-5 site. The notice must be mailed not later than the 31st day before
805-6 the date of the hearing and must include the same information that
805-7 is in the published notice. If true, the agency <department> or
805-8 the applicant must certify that the notice was mailed as required
805-9 by this subsection, and at the hearing the certificate is
805-10 conclusive evidence of the mailing.
805-11 SECTION 11.226. Sections 401.116(b) and (d), Health and
805-12 Safety Code, are amended to read as follows:
805-13 (b) The department or commission, as appropriate, shall
805-14 publish notice of the license amendment once in the Texas Register
805-15 and in a newspaper of general circulation in the county in which
805-16 the licensed activity is located and shall give notice to any
805-17 person who has notified the agency <department>, in advance, of the
805-18 desire to receive notice of proposed amendment of the license.
805-19 (d) The agency <department> shall give notice and hold a
805-20 hearing to consider the license amendment if a person affected
805-21 files a written complaint with the agency <department> before the
805-22 31st day after the date on which notice is published under
805-23 Subsection (b). The agency <department> shall give notice of the
805-24 hearing as provided by Section 401.114.
805-25 SECTION 11.227. Section 401.117, Health and Safety Code, is
805-26 amended to read as follows:
805-27 Sec. 401.117. Construction Limitation. The department or
806-1 commission shall prohibit major construction relating to activities
806-2 to be permitted under a license issued by the agency to process or
806-3 dispose of radioactive waste from other persons until the
806-4 requirements in Sections 401.113 and 401.114 are completed.
806-5 SECTION 11.228. Section 401.118(a), Health and Safety Code,
806-6 is amended to read as follows:
806-7 (a) The board or commission shall prescribe the form and the
806-8 terms for each license it issues.
806-9 SECTION 11.229. Section 401.119, Health and Safety Code, is
806-10 amended to read as follows:
806-11 Sec. 401.119. License Transfer. A license issued by the
806-12 department or commission may be assigned only to a person qualified
806-13 under <department> rules of the issuing agency.
806-14 SECTION 11.230. Sections 401.151 and 401.152, Health and
806-15 Safety Code, are amended to read as follows:
806-16 Sec. 401.151. Compatibility With Federal Standards. The
806-17 department and commission each shall assure that the management of
806-18 radioactive waste under their respective jurisdictions is
806-19 compatible with applicable federal commission standards.
806-20 Sec. 401.152. Corrective Action and Measures. (a) If the
806-21 department or commission, under procedures provided by Section
806-22 401.056, finds that radioactive waste under its jurisdiction
806-23 threatens the public health and safety and the environment and that
806-24 the license holder managing the radioactive waste is unable to
806-25 remove the threat, the agency <department> by order may require any
806-26 action, including a corrective measure, that is necessary to remove
806-27 the threat.
807-1 (b) The agency <department> shall use the security provided
807-2 by the license holder to pay the costs of actions that are taken or
807-3 that are to be taken under this section. The agency <department>
807-4 shall send to the comptroller a copy of its order together with
807-5 necessary written requests authorizing the comptroller to:
807-6 (1) enforce security supplied by the license holder;
807-7 (2) convert an amount of security into cash, as
807-8 necessary; and
807-9 (3) disburse from the security in the fund the amount
807-10 necessary to pay the costs.
807-11 SECTION 11.231. Subchapter F, Chapter 401, Health and Safety
807-12 Code, is amended to read as follows:
807-13 SUBCHAPTER F. SPECIAL PROVISIONS CONCERNING
807-14 RADIOACTIVE WASTE DISPOSAL
807-15 Sec. 401.201. Regulation of Radioactive Waste Disposal. The
807-16 commission <department> shall directly regulate the disposal of
807-17 radioactive waste. The person making the disposal shall comply
807-18 with commission <department> rules.
807-19 Sec. 401.202. Licensing Authority. The commission or
807-20 department, within its respective jurisdiction, <commissioner>
807-21 shall grant, deny, renew, revoke, suspend, or withdraw licenses for
807-22 the disposal of radioactive waste from other persons and for the
807-23 processing of that waste.
807-24 Sec. 401.203. License Restricted to Public Entity. A
807-25 radioactive waste disposal license may be issued only to a public
807-26 entity specifically authorized by law for radioactive waste
807-27 disposal.
808-1 Sec. 401.204. Acquisition of Property. An application for a
808-2 license to dispose of radioactive waste from other persons may not
808-3 be considered unless the applicant has acquired the title to and
808-4 any interest in land and buildings as required by commission
808-5 <department> rule.
808-6 Sec. 401.205. Responsibilities of Persons Licensed to
808-7 Dispose of Radioactive Waste. A person who is licensed to dispose
808-8 of radioactive waste from other persons shall:
808-9 (1) arrange for and pay the costs of management,
808-10 control, stabilization, and disposal of radioactive waste and the
808-11 decommissioning of the licensed activity;
808-12 (2) convey to the state when the license is issued all
808-13 right, title, and interest in land and buildings acquired under
808-14 commission <department> rules, together with requisite rights of
808-15 access to that property; and
808-16 (3) formally acknowledge before termination of the
808-17 license the conveyance to the state of the right, title, and
808-18 interest in radioactive waste located on the property conveyed.
808-19 Sec. 401.206. Resident Inspector. (a) The holder of a
808-20 license to dispose of radioactive waste from other persons shall
808-21 reimburse the commission <department> for the salary and other
808-22 expenses of a resident inspector employed by the commission
808-23 <department>.
808-24 (b) The commission <department> may require that the license
808-25 holder provide facilities at a disposal site for the resident
808-26 inspector.
808-27 Sec. 401.207. Out-of-State Waste. A license holder may not
809-1 accept radioactive waste generated in another state for processing
809-2 or disposal under a license issued by the commission <department>
809-3 unless the waste is:
809-4 (1) accepted under a compact to which the state is a
809-5 contracting party;
809-6 (2) from a state having an operating radioactive waste
809-7 disposal site at which that state is willing to accept radioactive
809-8 waste generated in this state; or
809-9 (3) generated from manufactured sources or devices
809-10 originating in this state.
809-11 Sec. 401.208. Limitation on Certain Radioactive Waste
809-12 Disposal. (a) A license holder may not accept for disposal under
809-13 a license issued by the commission <department>:
809-14 (1) high-level radioactive waste as defined by Title
809-15 10, Code of Federal Regulations;
809-16 (2) irradiated reactor fuel; or
809-17 (3) radioactive waste that contains 10 or more
809-18 nanocuries per gram of transuranics.
809-19 (b) The commission <board> by rule shall adopt special
809-20 criteria for the disposal of radioactive waste with a half-life
809-21 greater than 35 years and radioactive waste that contains less than
809-22 10 nanocuries per gram of transuranics.
809-23 Sec. 401.209. Acquisition and Operation of Radioactive Waste
809-24 Disposal Sites. (a) The commission <department> may acquire the
809-25 fee simple title in land, affected mineral rights, and buildings at
809-26 which radioactive waste can be or is being disposed of in a manner
809-27 consistent with public health and safety and the environment.
810-1 (b) Property acquired under this section may be used only
810-2 for disposing of radioactive waste until the commission
810-3 <department> determines that another use would not endanger the
810-4 health, safety, or general welfare of the public or the
810-5 environment.
810-6 (c) The commission <department> may lease property acquired
810-7 under this section for operating disposal sites for radioactive
810-8 waste.
810-9 (d) The right, title, and interest in radioactive waste
810-10 accepted for disposal at property and facilities acquired under
810-11 this section and any other interest acquired under this chapter are
810-12 the property of the commission <department>, acting on behalf of
810-13 the state, and shall be administered and controlled by the
810-14 commission <department> in the name of the state.
810-15 (e) A right, title, or interest acquired under this chapter
810-16 does not vest in any fund created by the Texas Constitution.
810-17 Sec. 401.210. Transfer Costs of Property. Radioactive waste
810-18 and land and buildings transferred to the state under this chapter
810-19 shall be transferred to the state without cost, other than
810-20 administrative and legal costs incurred in making the transfer.
810-21 Sec. 401.211. Liability. The transfer to the state of the
810-22 title to radioactive waste and land and buildings does not relieve
810-23 a license holder of liability for any fraudulent or negligent acts
810-24 performed before the transfer or while the radioactive waste or
810-25 land and buildings are in the possession and control of the license
810-26 holder.
810-27 Sec. 401.212. Monitoring, Maintenance, and Emergency
811-1 Measures. The commission <department> may undertake monitoring,
811-2 maintenance, and emergency measures that are necessary to protect
811-3 the public health and safety and the environment in connection with
811-4 radioactive waste and property for which it has assumed custody.
811-5 Sec. 401.213. Interstate Compacts. The commission
811-6 <department> shall cooperate with and encourage the use of
811-7 interstate compacts, including the Southern States Energy Board, to
811-8 develop regional sites that divide among the states the disposal
811-9 burden of radioactive waste generated in the region.
811-10 SECTION 11.232. Section 401.261, Health and Safety Code, is
811-11 amended to read as follows:
811-12 Sec. 401.261. Subchapter Application. In this subchapter:
811-13 (1) "By-product material" does not include that
811-14 by-product material defined by Section 401.003(3)(A).
811-15 (2) <"Commission" means the Texas Natural Resource
811-16 Conservation Commission.>
811-17 <(3) "Federal commission" means the United States
811-18 Nuclear Regulatory Commission.>
811-19 <(4)> "Processing" means the possession, use, storage,
811-20 extraction of material, transfer, volume reduction, compaction, or
811-21 other separation incidental to recovery of source material.
811-22 SECTION 11.233. Section 401.301, Health and Safety Code, is
811-23 amended to read as follows:
811-24 Sec. 401.301. LICENSE AND REGISTRATION FEES COLLECTED BY
811-25 DEPARTMENT. (a) The department may collect a fee for each license
811-26 and registration it issues.
811-27 (b) The board by rule shall set the fee in an amount that
812-1 may not exceed the actual expenses annually incurred to:
812-2 (1) process applications for licenses or
812-3 registrations;
812-4 (2) amend or renew licenses or registrations;
812-5 (3) make inspections of license holders and
812-6 registrants;
812-7 (4) enforce this chapter and rules, orders, licenses,
812-8 and registrations under this chapter; and
812-9 (5) collect payments to the low-level waste fund and
812-10 general revenue as provided by Section 402.2721.
812-11 (c) The department may collect a fee, in addition to the
812-12 annual license and registration fee, of not less than $100 nor more
812-13 than $10,000 per annum from each licensee or registrant who fails
812-14 to pay the fees authorized by this section.
812-15 SECTION 11.234. Sections 401.303 and 401.304, Health and
812-16 Safety Code, are amended to read as follows:
812-17 Sec. 401.303. Payment for Maintenance, Surveillance, or
812-18 Other Care. (a) The department or commission may require the <a
812-19 license> holder of a license issued by the agency to pay annually
812-20 to the issuing agency <department> an amount determined by the
812-21 issuing agency <department> if continuing or perpetual maintenance,
812-22 surveillance, or other care is required after termination of a
812-23 licensed activity.
812-24 (b) The issuing agency <department> annually shall review
812-25 the license holder's payments under this section to determine if
812-26 the payment schedule is adequate for the maintenance and
812-27 surveillance that the licensed activity requires or may require in
813-1 the future.
813-2 (c) The issuing agency <department> may review estimates of
813-3 costs that are required to be incurred under this chapter in
813-4 accordance with the need, nature, and cost of decontamination,
813-5 stabilization, decommissioning, reclamation, and disposal activity
813-6 and the maintenance and surveillance required for public health and
813-7 safety and the environment.
813-8 (d) The issuing agency <department> shall set the charges
813-9 for maintenance and perpetual care at amounts consistent with
813-10 existing technology.
813-11 (e) The issuing agency <department> may not impose charges
813-12 that exceed the amount that the issuing agency <department>
813-13 projects to be required for maintenance, surveillance, and other
813-14 necessary care required after the licensed activity is terminated.
813-15 (f) An increase in costs may not be applied retroactively
813-16 but may apply to increases in subsequent annual payments.
813-17 (g) If a license holder satisfies the obligations under this
813-18 chapter, the issuing agency <department> shall have the comptroller
813-19 promptly refund to the license holder from the fund the excess of
813-20 the amount of all payments made by the license holder to the
813-21 issuing agency <department> and the investment earnings of those
813-22 payments over the amount determined to be required for the
813-23 continuing maintenance and surveillance of land, buildings, and
813-24 radioactive material conveyed to the state.
813-25 Sec. 401.304. Acceptance and Administration of Funds. The
813-26 department and commission each may accept and administer
813-27 conditional or other loans, grants, gifts, or other funds from the
814-1 federal government or other sources to carry out their respective
814-2 <its> functions.
814-3 SECTION 11.235. Sections 401.305(b), (c), and (d), Health
814-4 and Safety Code, are amended to read as follows:
814-5 (b) The department and commission each shall deposit to the
814-6 credit of the fund money and security they receive <it receives>
814-7 under this chapter, other than fees collected under Sections
814-8 401.301 and 401.302. Interest earned on money in the fund shall be
814-9 credited to the fund.
814-10 (c) Money and security in the fund may be administered by
814-11 the department or commission only for the decontamination,
814-12 decommissioning, stabilization, reclamation, maintenance,
814-13 surveillance, control, storage, and disposal of radioactive
814-14 material for the protection of the public health and safety and the
814-15 environment under this chapter and for refunds under Section
814-16 401.303.
814-17 (d) Money and security in the fund may not be used for
814-18 normal operating expenses of the department or commission.
814-19 SECTION 11.236. Sections 401.341 through 401.343, Health and
814-20 Safety Code, are amended to read as follows:
814-21 Sec. 401.341. Judicial Review. A person who is affected by
814-22 a final decision of the department or commission and who has
814-23 exhausted all administrative remedies available in the appropriate
814-24 agency <department> is entitled to judicial review under Chapter
814-25 2001, Government Code <the Administrative Procedure and Texas
814-26 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)>.
814-27 Sec. 401.342. Suit by Attorney General. (a) The attorney
815-1 general, at the request of the department or commission regarding
815-2 an activity under its jurisdiction, shall institute an action in a
815-3 district court in Travis County or in any county in which a
815-4 violation occurs or is about to occur if in the requesting agency's
815-5 <department's> judgment a person has engaged in or is about to
815-6 engage in an act or practice that violates or will violate this
815-7 chapter or a rule, license, registration, or order adopted or
815-8 issued by the requesting agency under this chapter. The attorney
815-9 general may determine the court in which suit will be instituted.
815-10 (b) The attorney general may petition the court for:
815-11 (1) an order enjoining the act or practice or an order
815-12 directing compliance and reimbursement of the fund, if applicable;
815-13 (2) civil penalties as provided by Section 401.381; or
815-14 (3) a permanent or temporary injunction, restraining
815-15 order, or other appropriate order if the requesting agency
815-16 <department> shows that the person engaged in or is about to engage
815-17 in any of the acts or practices.
815-18 Sec. 401.343. Recovery of Security. (a) The department or
815-19 commission shall seek reimbursement, either by an <a department>
815-20 order of the agency or a suit filed by the attorney general at the
815-21 agency's <department's> request, of security from the fund used by
815-22 the agency <department> to pay for actions, including corrective
815-23 measures, to remedy spills or contamination by radioactive material
815-24 resulting from a violation of this chapter relating to an activity
815-25 under the agency's jurisdiction or a rule, license, registration,
815-26 or order adopted or issued by the agency under this chapter.
815-27 (b) On request by the agency <department>, the attorney
816-1 general shall file suit to recover security under this section.
816-2 SECTION 11.237. Section 401.381(a), Health and Safety Code,
816-3 is amended to read as follows:
816-4 (a) A person who violates this chapter, a department or
816-5 commission rule or order, or a license or registration condition is
816-6 subject to a civil penalty of not less than $100 or more than
816-7 $25,000 for each violation and for each day that a continuing
816-8 violation occurs.
816-9 SECTION 11.238. Sections 401.384(a) and (c), Health and
816-10 Safety Code, are amended to read as follows:
816-11 (a) The department or commission may assess a civil penalty
816-12 as provided by this section and Sections 401.385-401.391 against a
816-13 person who violates a provision of this chapter relating to an
816-14 activity under the agency's jurisdiction, a rule or order adopted
816-15 by the agency under this chapter, or a condition of a license or
816-16 registration issued by the agency under this chapter.
816-17 (c) In determining the amount of the penalty, the agency
816-18 <department> shall consider:
816-19 (1) the seriousness of the violation, including the
816-20 nature, circumstances, extent, and gravity of the prohibited acts
816-21 and the hazard or potential hazard created to the public health or
816-22 safety;
816-23 (2) the history of previous violations;
816-24 (3) the amount necessary to deter future violations;
816-25 (4) efforts to correct the violation; and
816-26 (5) any other matters that justice requires.
816-27 SECTION 11.239. Section 401.385, Health and Safety Code, is
817-1 amended to read as follows:
817-2 Sec. 401.385. Preliminary Report of Violation. If the
817-3 department or commission, after an investigation, concludes that a
817-4 violation relating to an activity under its jurisdiction has
817-5 occurred, the agency <department> may issue a preliminary report:
817-6 (1) stating the facts that support the conclusion;
817-7 (2) recommending that a civil penalty under Section
817-8 401.384 be imposed; and
817-9 (3) recommending the amount of the penalty, which
817-10 shall be based on the seriousness of the violation as determined
817-11 from the facts surrounding the violation.
817-12 SECTION 11.240. Section 401.386(a), Health and Safety Code,
817-13 is amended to read as follows:
817-14 (a) The department or commission shall give written notice
817-15 of its <the> preliminary report to the person charged with the
817-16 violation not later than the 10th day after the date on which the
817-17 report is issued.
817-18 SECTION 11.241. Sections 401.387 through 401.390, Health and
817-19 Safety Code, are amended to read as follows:
817-20 Sec. 401.387. Consent to Penalty. (a) If the person
817-21 charged with the violation consents to the penalty recommended by
817-22 the department or commission or does not respond to the notice on
817-23 time, the commissioner or the commissioner's designee, or the
817-24 commission, as appropriate, by order shall assess that penalty or
817-25 order a hearing to be held on the findings and recommendations in
817-26 the report.
817-27 (b) If the commissioner or the commissioner's designee or
818-1 the commission assesses the recommended penalty, the department or
818-2 the commission, as appropriate, shall give written notice to the
818-3 person charged of the decision and that person must pay the
818-4 penalty.
818-5 Sec. 401.388. Hearing and Decision. (a) If the person
818-6 charged requests a hearing, the commissioner or the commission, as
818-7 appropriate, shall order a hearing and shall give notice of that
818-8 hearing.
818-9 (b) The hearing shall be held by a hearing examiner
818-10 designated by the commissioner or the commission, as appropriate.
818-11 (c) The hearing examiner shall make findings of fact and
818-12 promptly issue to the commissioner or the commission, as
818-13 appropriate, a written decision as to the occurrence of the
818-14 violation and a recommendation of the amount of the proposed
818-15 penalty if a penalty is warranted.
818-16 (d) Based on the findings of fact and the recommendations of
818-17 the hearing examiner, the commissioner or the commission, as
818-18 appropriate, by order may find that a violation has occurred and
818-19 assess a civil penalty or may find that no violation occurred.
818-20 (e) All proceedings under Subsections (a)-(d) are subject to
818-21 Chapter 2001, Government Code <the Administrative Procedure and
818-22 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
818-23 Statutes)>.
818-24 (f) The commissioner or the commission, as appropriate,
818-25 shall give notice to the person charged of the commissioner's or
818-26 the commission's decision, and if the commissioner or the
818-27 commission, as appropriate, finds that a violation has occurred and
819-1 a civil penalty has been assessed, the commissioner or the
819-2 commission, as appropriate, shall give to the person charged
819-3 written notice of:
819-4 (1) the commissioner's or the commission's findings;
819-5 (2) the amount of the penalty; and
819-6 (3) the person's right to judicial review of the
819-7 commissioner's or the commission's order.
819-8 Sec. 401.389. Disposition of Penalty; Judicial Review.
819-9 (a) Not later than the 30th day after the date on which the
819-10 commissioner's or the commission's order is final, the person
819-11 charged with the penalty shall pay the full amount of the penalty
819-12 or file a petition for judicial review.
819-13 (b) If the person seeks judicial review of the violation,
819-14 the amount of the penalty, or both, the person, within the time
819-15 provided by Subsection (a), shall:
819-16 (1) send the amount of the penalty to the commissioner
819-17 or the commission, as appropriate, for placement in an escrow
819-18 account; or
819-19 (2) post with the commissioner or the commission, as
819-20 appropriate, a supersedeas bond in a form approved by the
819-21 commissioner or the commission, as appropriate, for the amount of
819-22 the penalty, the bond to be effective until judicial review of the
819-23 order or decision is final.
819-24 (c) <A person who fails to comply with Subsection (b) waives
819-25 the right to judicial review.>
819-26 <(d)> The commissioner or the commission, as appropriate,
819-27 may request enforcement by the attorney general if the person
820-1 charged fails to comply with this section.
820-2 (d) <(e)> Judicial review of the order or decision of the
820-3 commissioner or the commission assessing the penalty shall be under
820-4 Subchapter G, Chapter 2001, Government Code <Section 19,
820-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
820-6 Vernon's Texas Civil Statutes)>.
820-7 Sec. 401.390. Remitting Penalty Payments; Releasing Bonds.
820-8 (a) If a penalty is reduced or not assessed, the commissioner or
820-9 the commission, as appropriate, shall:
820-10 (1) remit to the person charged the appropriate amount
820-11 of any penalty payment plus accrued interest; or
820-12 (2) execute a release of the bond if a supersedeas
820-13 bond has been posted.
820-14 (b) Accrued interest on amounts remitted by the commissioner
820-15 or the commission shall be paid:
820-16 (1) at a rate equal to the rate charged on loans to
820-17 depository institutions by the New York Federal Reserve Bank; and
820-18 (2) for the period beginning on the date the penalty
820-19 is paid to the commissioner under Section 401.389(a) and ending on
820-20 the date the penalty is remitted.
820-21 SECTION 11.242. Sections 401.392(a), (b), and (c), Health
820-22 and Safety Code, are amended to read as follows:
820-23 (a) A local government or person affected may file with the
820-24 commission <department> a written complaint and may request an
820-25 investigation of an alleged violation by a person who holds a
820-26 radioactive materials license for an activity that results in the
820-27 production of by-product material as defined by Section
821-1 401.003(3)(B) or a license to dispose of radioactive waste from
821-2 other persons.
821-3 (b) The commission <department> shall reply to the complaint
821-4 in writing not later than the 60th day after the complaint is
821-5 received and shall provide a copy of any investigation report
821-6 relevant to the complaint together with a determination of whether
821-7 the alleged violation was committed.
821-8 (c) A local government or person affected may bring suit in
821-9 a court of competent jurisdiction in the county in which the
821-10 alleged violation occurred or is about to occur, if the commission
821-11 <department> does not have a suit filed before the 121st day after
821-12 the date on which the written complaint is filed under Subsection
821-13 (a).
821-14 SECTION 11.243. Sections 401.412 and 401.413, Health and
821-15 Safety Code, are amended to read as follows:
821-16 Sec. 401.412. Commission Licensing Authority.
821-17 (a) Notwithstanding any other provision of this chapter and
821-18 subject to Section 401.102, the commission <Texas Natural Resource
821-19 Conservation Commission> has sole and exclusive authority to
821-20 directly regulate and to grant, deny, renew, revoke, suspend,
821-21 amend, or withdraw licenses for the disposal of radioactive
821-22 substances.
821-23 (b) Notwithstanding any other provision of this chapter, the
821-24 commission <Texas Natural Resource Conservation Commission> has the
821-25 sole and exclusive authority to grant, deny, renew, revoke,
821-26 suspend, amend, or withdraw licenses for the recovery and
821-27 processing of source material, including the disposal of by-product
822-1 material pursuant to Subchapter G.
822-2 (c) The commission <Texas Natural Resource Conservation
822-3 Commission> may adopt any rules and guidelines reasonably necessary
822-4 to exercise its authority under this section. In adopting rules
822-5 and guidelines, the commission <Texas Natural Resource Conservation
822-6 Commission> shall consider the compatibility of those rules and
822-7 guidelines with federal regulatory programs and the rules and
822-8 guidelines of the board <Texas Board of Health>.
822-9 (d) The commission <Texas Natural Resource Conservation
822-10 Commission> may assess and collect an annual fee for each license
822-11 and registration and for each application in an amount sufficient
822-12 to recover its reasonable costs to administer its authority under
822-13 this chapter.
822-14 (e) The commission <Texas Natural Resource Conservation
822-15 Commission> may set and collect an annual fee from the operator of
822-16 each nuclear reactor or other fixed nuclear facilities in the state
822-17 that uses special nuclear material. The amount of the fees
822-18 collected may not exceed the actual expenses that arise from
822-19 emergency response activities, including training.
822-20 (f) The commission <Texas Natural Resource Conservation
822-21 Commission> shall establish by rule the amounts appropriate for the
822-22 fees collected under this section. The fees collected under this
822-23 section shall be deposited in the radioactive substance fee fund
822-24 and reappropriated for use by the commission for expenses incurred
822-25 by the commission in administering the provisions of this chapter.
822-26 Sec. 401.413. Commission Disposal License Required. A
822-27 person required by another section of this chapter to obtain a
823-1 license for the disposal of a radioactive substance is required to
823-2 obtain the license from the commission <Texas Natural Resource
823-3 Conservation Commission> and not from the department.
823-4 SECTION 11.244. Section 402.003(6), Health and Safety Code,
823-5 is amended to read as follows:
823-6 (6) "Low-level waste" means radioactive material that
823-7 has a half-life of 35 years or less or fewer than 10 nanocuries per
823-8 gram of transuranics, and may include radioactive material not
823-9 excluded by this subdivision with a half-life of more than 35 years
823-10 if special criteria for disposal of that waste are established by
823-11 the commission <department>. The term does not include irradiated
823-12 reactor fuel and high-level radioactive waste as defined by Title
823-13 10, Code of Federal Regulations.
823-14 SECTION 11.245. Section 402.082, Health and Safety Code, is
823-15 amended to read as follows:
823-16 Sec. 402.082. Study Criteria. Studies required under
823-17 Section 402.081 must consider:
823-18 (1) the volume of low-level waste generated by type
823-19 and source categories for the expected life of the disposal site,
823-20 including waste that may be generated from the decommissioning of
823-21 nuclear power plants located in this state;
823-22 (2) geology;
823-23 (3) topography;
823-24 (4) transportation and access;
823-25 (5) meteorology;
823-26 (6) population density;
823-27 (7) surface and subsurface hydrology;
824-1 (8) flora and fauna;
824-2 (9) current land use;
824-3 (10) criteria established by the commission
824-4 <department> for disposal site selection;
824-5 (11) the proximity of the disposal site to sources of
824-6 low-level waste, including related transportation costs, to the
824-7 extent that the proximity and transportation costs do not interfere
824-8 with selection of a suitable disposal site for protecting public
824-9 health and the environment;
824-10 (12) other disposal site characteristics that may need
824-11 study on a preliminary basis and for which detailed study would be
824-12 required to prepare an application or license required for disposal
824-13 site operation; and
824-14 (13) alternative management techniques, including
824-15 aboveground isolation facilities, waste processing and reduction at
824-16 the site of waste generation and at an authority management site,
824-17 and waste recycling.
824-18 SECTION 11.246. Section 402.128, Health and Safety Code, is
824-19 amended to read as follows:
824-20 Sec. 402.128. Applicable Standards. The commission <Texas
824-21 Board of Health, the commissioner of health,> or the authority may
824-22 not lessen any standards for the siting, construction, or operation
824-23 of the disposal site because the site is located on state-owned
824-24 land dedicated to the permanent school fund or the permanent
824-25 university fund.
824-26 SECTION 11.247. Section 402.1511, Health and Safety Code, is
824-27 amended to read as follows:
825-1 Sec. 402.1511. <TEXAS NATURAL RESOURCE CONSERVATION>
825-2 COMMISSION LICENSE. (a) Notwithstanding any other provision of
825-3 this chapter, the commission <Texas Natural Resource Conservation
825-4 Commission> has sole authority to issue a license to operate a
825-5 disposal site under this chapter.
825-6 (b) The authority or any other entity authorized to operate
825-7 a disposal site under this chapter may not operate the disposal
825-8 site unless the authority or entity has first obtained an operating
825-9 license from the commission under this section.
825-10 (c) The authority or any other entity required by this
825-11 chapter to obtain a license to operate a disposal site under this
825-12 chapter is required to obtain the license from the commission and
825-13 not from the department.
825-14 (d) The commission may adopt any rules reasonably necessary
825-15 to exercise its authority under this section.
825-16 SECTION 11.248. Section 402.154(a), Health and Safety Code,
825-17 is amended to read as follows:
825-18 (a) As a condition for obtaining a license, the authority
825-19 must submit to the commission <Texas Board of Health> or its
825-20 designee evidence relating to the reasonableness of any technique
825-21 to be practiced at the proposed disposal site for managing
825-22 low-level waste.
825-23 SECTION 11.249. Section 402.216(b), Health and Safety Code,
825-24 is amended to read as follows:
825-25 (b) Rules adopted under this section may not be less
825-26 stringent than those adopted by the commission <Texas Board of
825-27 Health>.
826-1 SECTION 11.250. Section 503.002(a), Health and Safety Code,
826-2 is amended to read as follows:
826-3 (a) The Toxic Substances Coordinating Committee is composed
826-4 of one representative from the:
826-5 (1) department;
826-6 (2) Department of Agriculture;
826-7 (3) Texas Natural Resource Conservation <Water>
826-8 Commission;
826-9 (4) Parks and Wildlife Department;
826-10 (5) Department of Public Safety; and
826-11 (6) Railroad Commission of Texas<; and>
826-12 <(7) Texas Air Control Board>.
826-13 SECTION 11.251. Section 504.001(a), Health and Safety Code,
826-14 is amended to read as follows:
826-15 (a) The Texas Hazardous Materials Safety Council is an
826-16 advisory coordinating council composed of:
826-17 (1) a representative from the governor's office,
826-18 appointed by the governor;
826-19 (2) one member from each house of the legislature,
826-20 appointed by the presiding officer of the applicable house;
826-21 (3) a representative of the general public, appointed
826-22 by the governor;
826-23 (4) a management representative of the motor carrier
826-24 industry involved with the transportation of hazardous materials,
826-25 appointed by the governor;
826-26 (5) a management representative of the railroad
826-27 industry, appointed by the governor;
827-1 (6) a management representative of a company that
827-2 manufactures or receives hazardous materials, appointed by the
827-3 governor; and
827-4 (7) one representative from each of the following
827-5 state agencies, appointed by the executive director or commissioner
827-6 of each respective agency:
827-7 (A) the Railroad Commission of Texas;
827-8 (B) the Department of Public Safety;
827-9 (C) the Texas Natural Resource Conservation
827-10 <Water> Commission; and
827-11 (D) the Texas Department of Health<; and>
827-12 <(E) the Texas Air Control Board>.
827-13 SECTION 11.252. Section 504.009, Health and Safety Code, is
827-14 amended to read as follows:
827-15 Sec. 504.009. Relationship to Other Laws. Except as
827-16 specifically provided by this chapter, this chapter does not
827-17 diminish or limit the authority of the Texas Department of Health,
827-18 the Texas Natural Resource Conservation <Water> Commission, or any
827-19 other state agency in performing the functions relating to spills
827-20 of hazardous materials vested in those agencies by law.
827-21 SECTION 11.253. Section 753.008(a), Health and Safety Code,
827-22 is amended to read as follows:
827-23 (a) The Texas Natural Resource Conservation <Water>
827-24 Commission has concurrent jurisdiction with the board regarding
827-25 the inspection of initial installation and other administrative
827-26 supervision of aboveground tanks authorized and regulated by this
827-27 chapter. The Texas Natural Resource Conservation <Water>
828-1 Commission has the primary authority for inspection of initial
828-2 installation of the tanks. The Texas Natural Resource Conservation
828-3 <Water> Commission shall report all violations of this chapter in
828-4 regard to aboveground storage tanks to the state fire marshal for
828-5 enforcement proceedings.
828-6 SECTION 11.254. Sections 42.042(f), (g), and (h), Local
828-7 Government Code, are amended to read as follows:
828-8 (f) If the municipality fails or refuses to give its consent
828-9 to the creation of the political subdivision or fails or refuses to
828-10 execute a contract providing for the water or sanitary sewer
828-11 services requested within the time limits prescribed by this
828-12 section, the applicant may petition the Texas Natural Resource
828-13 Conservation <Water> Commission for the creation of the political
828-14 subdivision or the inclusion of the land in a political
828-15 subdivision. The commission shall allow creation of the political
828-16 subdivision or inclusion of the land in a proposed political
828-17 subdivision on finding that the municipality either does not have
828-18 the reasonable ability to serve or has failed to make a legally
828-19 binding commitment with sufficient funds available to provide water
828-20 and wastewater service adequate to serve the proposed development
828-21 at a reasonable cost to the landowner. The commitment must provide
828-22 that construction of the facilities necessary to serve the land
828-23 will begin within two years and will be substantially completed
828-24 within 4-1/2 years after the date the petition was filed with the
828-25 municipality.
828-26 (g) On an appeal taken to the district court from the Texas
828-27 Natural Resource Conservation <Water> Commission's ruling, all
829-1 parties to the commission hearing must be made parties to the
829-2 appeal. The court shall hear the appeal within 120 days after the
829-3 date the appeal is filed. If the case is continued or appealed to
829-4 a higher court beyond the 120-day period, the court shall require
829-5 the appealing party or party requesting the continuance to post a
829-6 bond or other adequate security in the amount of damages that may
829-7 be incurred by any party as a result of the appeal or delay from
829-8 the commission action. The amount of the bond or other security
829-9 shall be determined by the court after notice and hearing. On
829-10 final disposition, a court may award damages, including any damages
829-11 for delays, attorney's fees, and costs of court to the prevailing
829-12 party.
829-13 (h) A municipality may not unilaterally extend the time
829-14 limits prescribed by this section through the adoption of
829-15 preapplication periods or by passage of any rules, resolutions,
829-16 ordinances, or charter provisions. However, the municipality and
829-17 the petitioner may jointly petition the Texas Natural Resource
829-18 Conservation <Water> Commission to request an extension of the time
829-19 limits.
829-20 SECTION 11.255. Section 43.0715(b), Local Government Code,
829-21 is amended to read as follows:
829-22 (b) If a municipality with a population of less than 1.5
829-23 million annexes a special district for full or limited purposes and
829-24 the annexation precludes or impairs the ability of the district to
829-25 issue bonds, the municipality shall, simultaneously with the
829-26 annexation, pay in cash to the landowner or developer of the
829-27 district a sum equal to all actual costs and expenses incurred by
830-1 the landowner or developer in connection with the district that the
830-2 district has, in writing, agreed to pay and that would otherwise
830-3 have been eligible for reimbursement from bond proceeds under the
830-4 rules and requirements of the Texas Natural Resource
830-5 Conservation <Water> Commission as such rules and requirements
830-6 exist on the date of annexation.
830-7 SECTION 11.256. Section 375.003(3), Local Government Code,
830-8 is amended to read as follows:
830-9 (3) "Commission" means the Texas Natural Resource
830-10 Conservation <Water> Commission.
830-11 SECTION 11.257. Section 395.080, Local Government Code, is
830-12 amended to read as follows:
830-13 Sec. 395.080. Chapter Not Applicable to Certain
830-14 Water-Related Special Districts. (a) This chapter does not apply
830-15 to impact fees, charges, fees, assessments, or contributions:
830-16 (1) paid by or charged to a district created under
830-17 Article XVI, Section 59, of the Texas Constitution to another
830-18 district created under that constitutional provision if both
830-19 districts are required by law to obtain approval of their bonds by
830-20 the Texas Natural Resource Conservation <Water> Commission; or
830-21 (2) charged by an entity if the impact fees, charges,
830-22 fees, assessments, or contributions are approved by the Texas
830-23 Natural Resource Conservation <Water> Commission.
830-24 (b) Any district created under Article XVI, Section 59, or
830-25 Article III, Section 52, of the Texas Constitution may petition the
830-26 Texas Natural Resource Conservation <Water> Commission for approval
830-27 of any proposed impact fees, charges, fees, assessments, or
831-1 contributions. The commission shall adopt rules for reviewing the
831-2 petition and may charge the petitioner fees adequate to cover the
831-3 cost of processing and considering the petition. The rules shall
831-4 require notice substantially the same as that required by this
831-5 chapter for the adoption of impact fees and shall afford
831-6 opportunity for all affected parties to participate.
831-7 SECTION 11.258. Section 402.044(8), Local Government Code,
831-8 as amended by Section 1, Chapter 674, and Section 1, Chapter 773,
831-9 Acts of the 73rd Legislature, Regular Session, 1993, is reenacted
831-10 and amended to read as follows:
831-11 (8) "Service area" means the municipal boundaries and
831-12 any other land areas outside the municipal boundaries which, as a
831-13 result of topography or hydraulics, contribute overland flow into
831-14 the watersheds served by the drainage system of a municipality;
831-15 provided, however, that in no event may a service area extend
831-16 farther than the boundaries of a municipality's current
831-17 extraterritorial jurisdiction, nor, except as provided by Section
831-18 402.0451, may a service area of one municipality extend into the
831-19 boundaries of another incorporated town, city, or municipality.
831-20 The service area is to be established in the ordinance establishing
831-21 the drainage utility. Provided, that no municipality shall extend
831-22 a service area outside of its municipal boundaries except:
831-23 (A) a municipality of more than 400,000
831-24 population located in one or more counties of less than 600,000
831-25 population according to the most recent federal census;
831-26 (B) a municipality all or part of which is
831-27 located over or within the Edwards Aquifer recharge zone or the
832-1 Edwards Aquifer transition zone, as designated by the Texas Natural
832-2 Resource Conservation <Water> Commission; or
832-3 (C) as provided by Section 402.0451.
832-4 SECTION 11.259. Section 402.047(e), Local Government Code,
832-5 is amended to read as follows:
832-6 (e) Users residing within the established service area, but
832-7 outside the municipality's boundaries, may appeal rates established
832-8 for drainage charges to the Texas Natural Resource
832-9 Conservation <Water> Commission as authorized by Section 13.043(b)
832-10 of the Water Code.
832-11 SECTION 11.260. Section 412.012(f), Local Government Code,
832-12 is amended to read as follows:
832-13 (f) A county and a district that contract under this section
832-14 must submit the contract to the Texas Natural Resource
832-15 Conservation <Water> Commission for approval. The commission shall
832-16 examine the contract to assure that the interests of the residents
832-17 of the district are served and protected. A county may not enter a
832-18 contract that the commission determines would jeopardize the
832-19 quality of service provided by a district to the persons residing
832-20 in the district. The commission may submit suggested changes to
832-21 the parties for inclusion in the contract before the commission
832-22 gives its approval.
832-23 SECTION 11.261. Section 430.001, Local Government Code, is
832-24 amended to read as follows:
832-25 Sec. 430.001. Water Contracts in Border Municipalities and
832-26 Counties. The governing body of a municipality or county that has
832-27 a boundary that is contiguous with the border between this state
833-1 and the Republic of Mexico may contract for the acquisition of
833-2 water or water rights with a border municipality or state in the
833-3 Republic of Mexico if the contract is approved and monitored by the
833-4 Texas Natural Resource Conservation <Water> Commission and the
833-5 International Boundary and Water Commission, United States and
833-6 Mexico.
833-7 SECTION 11.262. Section 31.066(b), Natural Resources Code,
833-8 is amended to read as follows:
833-9 (b) Following state assumption of ownership, the Texas
833-10 Natural Resource Conservation <Water> Commission shall provide for
833-11 maintenance of the property, including necessary environmental
833-12 monitoring, consistent with terms of contracts and cooperative
833-13 agreements with the federal government entered in accordance with
833-14 the Water Code and Chapter 361, Health and Safety Code.
833-15 SECTION 11.263. Section 33.052(b), Natural Resources Code,
833-16 is amended to read as follows:
833-17 (b) In developing the program, the land office shall act as
833-18 the lead agency to coordinate and develop a long-term plan for the
833-19 management of uses affecting coastal conservation areas, in
833-20 cooperation with other state agencies that have duties relating to
833-21 coastal matters, including the Parks and Wildlife Department, the
833-22 attorney general's office, the Texas Natural Resource Conservation
833-23 <Water> Commission, the Texas Water Development Board, the Texas
833-24 <State> Department of <Highways and Public> Transportation, and the
833-25 Railroad Commission of Texas. The plan shall implement the
833-26 policies stated in Section 33.001 of this code and shall include
833-27 the elements listed in Section 33.053 of this code.
834-1 SECTION 11.264. Section 33.203(2), Natural Resources Code,
834-2 is amended to read as follows:
834-3 (2) "Council" means the Coastal Coordination Council,
834-4 which shall consist of the commissioner, the attorney general, the
834-5 chair of the Parks and Wildlife Commission, the chair of the Texas
834-6 Natural Resource Conservation <Water> Commission, a member of the
834-7 Railroad Commission of Texas, and one city or county elected
834-8 official and one resident from the coastal area appointed by the
834-9 governor for two-year terms.
834-10 SECTION 11.265. Section 40.002(c), Natural Resources Code,
834-11 is amended to read as follows:
834-12 (c) The legislature intends by this chapter to exercise the
834-13 police power of the state to protect its coastal waters and
834-14 adjacent shorelines by conferring upon the Commissioner of the
834-15 General Land Office the power to:
834-16 (1) prevent spills and discharges of oil by requiring
834-17 and monitoring preventive measures and response planning;
834-18 (2) provide for prompt response to abate and contain
834-19 spills and discharges of oil and ensure the removal and cleanup of
834-20 pollution from such spills and discharges;
834-21 (3) provide for development of a state coastal
834-22 discharge contingency plan through planning and coordination with
834-23 the Texas Natural Resource Conservation <Water> Commission to
834-24 protect coastal waters from all types of spills and discharges; and
834-25 (4) administer a fund to provide for funding these
834-26 activities and to guarantee the prompt payment of certain
834-27 reasonable claims resulting from spills and discharges of oil.
835-1 SECTION 11.266. Sections 40.003(13), (17), and (22), Natural
835-2 Resources Code, are amended to read as follows:
835-3 (13) "Hazardous substance" means any substance, except
835-4 oil, designated as hazardous by the Environmental Protection Agency
835-5 pursuant to the Comprehensive Environmental Response, Compensation,
835-6 and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and
835-7 designated by the Texas Natural Resource Conservation <Water>
835-8 Commission.
835-9 (17) "Oil" means oil of any kind or in any form,
835-10 including but not limited to crude oil, petroleum, fuel oil,
835-11 sludge, oil refuse, and oil mixed with wastes other than dredged
835-12 spoil, but does not include petroleum, including crude oil or any
835-13 fraction thereof, which is specifically listed or designated as a
835-14 hazardous substance under Subparagraphs (A) through (F) of Section
835-15 101(14) of the Comprehensive Environmental Response, Compensation,
835-16 and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.) and which
835-17 is subject to the provisions of that Act, and which is so
835-18 designated by the Texas Natural Resource Conservation <Water>
835-19 Commission.
835-20 (22) "Response costs" means:
835-21 (A) with respect to an actual or threatened
835-22 discharge of oil, all costs incurred in an attempt to prevent,
835-23 abate, contain, and remove pollution from the discharge, including
835-24 costs of removing vessels or structures under this chapter, and
835-25 costs of any reasonable measures to prevent or limit damage to the
835-26 public health, safety, or welfare, public or private property, or
835-27 natural resources; or
836-1 (B) with respect to an actual or threatened
836-2 discharge of a hazardous substance, only costs incurred to
836-3 supplement the response operations of the Texas Natural Resource
836-4 Conservation <Water> Commission.
836-5 SECTION 11.267. Sections 40.005, 40.006, and 40.052, Natural
836-6 Resources Code, are amended to read as follows:
836-7 Sec. 40.005. Administration of Hazardous Substance Spill
836-8 Response and Cleanup. The General Land Office, under the direction
836-9 and control of the commissioner, is the state's lead agency for
836-10 initiating response to all actual or threatened unauthorized
836-11 discharges of oil. In the event of an unauthorized discharge of a
836-12 hazardous substance, nothing in this chapter shall preclude the
836-13 Texas Natural Resource Conservation <Water> Commission from at the
836-14 earliest time practicable assuming response and cleanup duties
836-15 pursuant to Subchapter G, Chapter 26, Water Code, and the state
836-16 coastal discharge contingency plan.
836-17 Sec. 40.006. Interagency Council. The commissioner shall
836-18 from time to time convene a cooperative council comprising the
836-19 Texas Department of Health, the division of emergency management in
836-20 the office of the governor, the Parks and Wildlife Department, the
836-21 Texas Natural Resource Conservation <Water> Commission, the
836-22 Railroad Commission of Texas, the Texas Higher Education
836-23 Coordinating Board, and any other state agency authorized to
836-24 participate in unauthorized discharge response operations under the
836-25 state coastal discharge contingency plan. The commissioner shall
836-26 serve as chairperson. The council shall consider matters relating
836-27 to coordination of state prevention, response, and cleanup
837-1 operations related to unauthorized discharges of oil and hazardous
837-2 substances.
837-3 Sec. 40.052. Hazardous Substances Discharges. If the
837-4 unauthorized discharge involves predominantly a hazardous
837-5 substance, the Texas Natural Resource Conservation <Water>
837-6 Commission shall carry out responsibility for abatement,
837-7 containment, removal, and cleanup of the hazardous substances
837-8 discharged, pursuant to Subchapter G, Chapter 26, Water Code, and
837-9 to the state coastal discharge contingency plan.
837-10 SECTION 11.268. Sections 40.053(a), (b), and (f), Natural
837-11 Resources Code, are amended to read as follows:
837-12 (a) The commissioner shall promulgate a state coastal
837-13 discharge contingency plan of response for actual or threatened
837-14 unauthorized discharges of oil and cleanup of pollution from such
837-15 discharges. In addition, the Texas Natural Resource Conservation
837-16 <Water> Commission, in cooperation with the commissioner, shall
837-17 promulgate provisions of the plan relating to unauthorized
837-18 discharges of hazardous substances, and the Parks and Wildlife
837-19 Department, in cooperation with the commissioner, shall promulgate
837-20 provisions of the plan relating to the rescue and rehabilitation of
837-21 aquatic life and wildlife and the habitats on which they depend.
837-22 The commissioner shall cooperate and consult with the Railroad
837-23 Commission of Texas in promulgating provisions of the plan relating
837-24 to the exercise of authority by the Railroad Commission of Texas
837-25 pursuant to Subsection (b) of this section to direct an owner or
837-26 operator to abate or prevent pollution as a result of an
837-27 unauthorized discharge of oil. The plan shall be promulgated in a
838-1 coordinate manner and adopted in an integrated chapter of the Texas
838-2 Administrative Code.
838-3 (b) In promulgating the plan, the commissioner and the Texas
838-4 Natural Resource Conservation <Water> Commission shall provide for
838-5 clear designation of responsibilities and avoid unnecessary
838-6 duplication and expense. The plan shall provide that, in the event
838-7 of an unauthorized discharge of 240 barrels or less of oil from an
838-8 activity associated with the exploration, development, or
838-9 production of oil or gas, including the transportation of oil or
838-10 gas by pipeline, the Railroad Commission of Texas shall act as
838-11 state-designated on-scene coordinator for abatement, containment,
838-12 removal, and cleanup of the discharge pursuant to Section 91.101 of
838-13 this code, Section 26.131, Water Code, and this chapter.
838-14 (f) In addition to the regional components, the plan shall
838-15 also include:
838-16 (1) detailed emergency operating procedures for
838-17 initiating actions in response to unauthorized discharges;
838-18 (2) persons constituting a response command structure
838-19 and state response team;
838-20 (3) an inventory of public and private equipment and
838-21 its location and a list of available sources of supplies necessary
838-22 for response;
838-23 (4) a table of organization with the names, addresses,
838-24 and telephone numbers of all persons and agencies responsible for
838-25 implementing every phase of the plan and provisions for notifying
838-26 such persons and agencies in the event of an unauthorized
838-27 discharge;
839-1 (5) practice drills for the response command structure
839-2 and the state response team;
839-3 (6) establishment of a single state hotline for
839-4 reporting incidents that will satisfy all state notification
839-5 requirements under this chapter and Subchapter G, Chapter 26, Water
839-6 Code;
839-7 (7) provisions for notifying the Texas Natural
839-8 Resource Conservation <Water> Commission in the event of an
839-9 unauthorized discharge of a hazardous substance under the state
839-10 coastal discharge contingency plan;
839-11 (8) wildlife recovery team and volunteer coordination
839-12 and training;
839-13 (9) use of both proven and innovative response methods
839-14 and technologies;
839-15 (10) the circumstances under which an unauthorized
839-16 discharge has reached catastrophic proportions and may be declared
839-17 to be a state of disaster under applicable law;
839-18 (11) the circumstances under which the unauthorized
839-19 discharge may be declared to be abated and pollution may be
839-20 declared to be satisfactorily removed;
839-21 (12) designation of environmental and other priority
839-22 zones to determine the sequence and methods of response and
839-23 cleanup;
839-24 (13) procedures for disposal of removed oil or
839-25 hazardous substances;
839-26 (14) procedures for assessment of natural resources
839-27 damages and plans for mitigation of damage to and restoration,
840-1 rehabilitation, or replacement of damaged natural resources,
840-2 including to the greatest extent practicable recommendations of any
840-3 regional response committee for the affected area; and
840-4 (15) any other matter necessary or appropriate to
840-5 carry out response activities.
840-6 SECTION 11.269. Section 40.101(c), Natural Resources Code,
840-7 is amended to read as follows:
840-8 (c) In order to prevent duplication of effort among state
840-9 agencies, the commissioner shall utilize the expertise of the Texas
840-10 Natural Resource Conservation <Water> Commission on technical and
840-11 scientific actions, including but not limited to:
840-12 (1) taking samples in the spill area;
840-13 (2) monitoring meteorological conditions that may
840-14 affect spill response operations; and
840-15 (3) regulating disposal of spilled material.
840-16 SECTION 11.270. Section 40.303(b), Natural Resources Code,
840-17 is amended to read as follows:
840-18 (b) Members of the council shall include the following
840-19 persons or their designees:
840-20 (1) the governor, who serves as chairperson;
840-21 (2) the commissioner;
840-22 (3) the executive director of the Parks and Wildlife
840-23 Department;
840-24 (4) a representative of the Railroad Commission of
840-25 Texas;
840-26 (5) the commander of the United States Coast Guard for
840-27 the area including the Texas coast, as a nonvoting member;
841-1 (6) the director of the division of emergency
841-2 management in the office of the governor;
841-3 (7) the commissioner of the Texas Department of
841-4 Health;
841-5 (8) the State Engineer-Director for the Texas
841-6 Department of <Highways and Public> Transportation;
841-7 (9) the executive director of the Texas Natural
841-8 Resource Conservation <Water> Commission; and
841-9 (10) the county judges of Cameron, Willacy, Kenedy,
841-10 Kleberg, Nueces, San Patricio, Aransas, Calhoun, Jackson,
841-11 Matagorda, Brazoria, Galveston, Harris, Jefferson, Orange,
841-12 Chambers, and Refugio counties.
841-13 SECTION 11.271. Section 111.0192(a), Natural Resources Code,
841-14 is amended to read as follows:
841-15 (a) The right of eminent domain granted under this chapter
841-16 to any pipelines transporting coal in whatever form shall not
841-17 include and cannot be used to condemn water or water rights for use
841-18 in the transportation of coal by pipeline, and no Texas water from
841-19 any source shall be used in connection with the transportation,
841-20 maintenance, or operation of a coal slurry pipeline (except water
841-21 used for drinking, toilet, bath, or other personal uses at pumping
841-22 stations or offices) within the State of Texas unless the Texas
841-23 Natural Resource Conservation <Water> Commission shall determine,
841-24 after public hearing, that the use will not be detrimental to the
841-25 water supply of the area from which the water is sought to be
841-26 extracted.
841-27 SECTION 11.272. Section 111.305, Natural Resources Code, is
842-1 amended to read as follows:
842-2 Sec. 111.305. Other Agencies. (a) The commission shall
842-3 seek and act on the recommendations of the Texas Natural Resource
842-4 Conservation Commission <Air Control Board, the Texas Water Quality
842-5 Board>, the Governor's Energy Advisory Council, or their successors
842-6 responsible for environmental determinations and shall specify the
842-7 proper use and disposal of nondischargeable water.
842-8 (b) Neither the authority conveyed to the commission by this
842-9 subchapter to issue certificates and to promulgate rules governing
842-10 pipelines transporting coal in whatever form nor the powers and
842-11 duties conveyed on those pipelines by this chapter shall affect,
842-12 diminish, or otherwise limit the jurisdiction and authority of the
842-13 Texas Natural Resource Conservation <Water> Commission <and the
842-14 Texas Water Quality Board, or their successors,> to regulate by
842-15 applicable rules the acquisition, use, control, disposition, and
842-16 discharge of water or water rights in Texas.
842-17 SECTION 11.273. Section 113.283(a), Natural Resources Code,
842-18 is amended to read as follows:
842-19 (a) The council is composed of the following individuals:
842-20 (1) the commissioner of the General Land Office;
842-21 (2) the members of the Railroad Commission of Texas;
842-22 (3) the chairman of the General Services Commission;
842-23 and
842-24 (4) the chairman of the Texas Natural Resource
842-25 Conservation Commission <Air Control Board or its successor
842-26 agency>.
842-27 SECTION 11.274. Section 131.139(a), Natural Resources Code,
843-1 is amended to read as follows:
843-2 (a) The commission immediately shall submit copies of the
843-3 permit application to the Parks and Wildlife Department, Texas
843-4 Natural Resource Conservation <Water> Commission, General Land
843-5 Office, <Texas Air Control Board,> Texas Historical Commission,
843-6 State Soil and Water Conservation Board, Bureau of Economic
843-7 Geology, Texas Department of Health <Resources>, and other state
843-8 agencies whose jurisdiction the commission feels the particular
843-9 mining operation may affect.
843-10 SECTION 11.275. Section 131.141, Natural Resources Code, is
843-11 amended to read as follows:
843-12 Sec. 131.141. Denial of a Permit. The commission shall deny
843-13 a permit if:
843-14 (1) it finds that the reclamation as required by this
843-15 chapter cannot be accomplished by means of the proposed reclamation
843-16 plan;
843-17 (2) part of the proposed operation lies within an area
843-18 designated as unsuitable for surface mining in Sections 131.035
843-19 through 131.041 of this code;
843-20 (3) it is advised by the Texas Natural Resource
843-21 Conservation Commission <Water Quality Board> that the proposed
843-22 mining operation will cause pollution of water of the state, or <by
843-23 the Texas Air Control Board> that the proposed mining operation
843-24 will cause pollution of the ambient air of the state, in violation
843-25 of the laws of this state;
843-26 (4) the applicant has had another permit issued under
843-27 this chapter revoked or any bond posted to comply with this chapter
844-1 forfeited and the conditions causing the permit to be revoked or
844-2 the bond to be forfeited have not been corrected to the
844-3 satisfaction of the commission;
844-4 (5) it determines that the proposed operation will
844-5 endanger the health and safety of the public;
844-6 (6) the surface mining operation will adversely affect
844-7 a public highway or road; or
844-8 (7) the operator is unable to produce the bonds or
844-9 otherwise meet the requirements of Sections 131.201 through 131.206
844-10 of this code.
844-11 SECTION 11.276. Section 141.012(a), Natural Resources Code,
844-12 is amended to read as follows:
844-13 (a) The commission, in consultation with the commissioner
844-14 and the<,> executive director of the Texas Natural Resource
844-15 Conservation Commission <Water Quality Board, and the executive
844-16 director of the Texas Air Control Board>, shall make, publish, and
844-17 enforce rules providing for the rapid and orderly exploration,
844-18 development, and production of geothermal energy and associated
844-19 resources and to accomplish the purposes of this chapter.
844-20 SECTION 11.277. Section 141.074, Natural Resources Code, is
844-21 amended to read as follows:
844-22 Sec. 141.074. Furnishing Lists of Land to Other Agencies.
844-23 Before advertising land for lease, the commissioner shall furnish a
844-24 list of the tracts considered by the board for lease to the Texas
844-25 Natural Resource Conservation Commission <Water Quality Board, the
844-26 Texas Air Control Board>, the commission, and any other state or
844-27 federal agency that might have information that would be beneficial
845-1 to the board in its determination of terms and conditions of the
845-2 proposed lease.
845-3 SECTION 11.278. Section 191.011(a), Natural Resources Code,
845-4 is amended to read as follows:
845-5 (a) There is created an Antiquities Committee, which is
845-6 composed of nine members, including the Chairman of the Texas
845-7 Historical Commission, the Director of the Parks and Wildlife
845-8 Department, the Commissioner of the General Land Office, the State
845-9 Archeologist, the State Engineer-Director of the Texas <State>
845-10 Department of <Highways and Public> Transportation, the Executive
845-11 Director of the Texas Natural Resource Conservation <Water>
845-12 Commission, and the following citizen members: one professional
845-13 archeologist from a recognized museum or institution of higher
845-14 learning in Texas, one professional historian with expertise in
845-15 Texas history and culture, and one professional museum director of
845-16 a major, state-funded museum that has significant research
845-17 facilities. Five members represent a quorum. At no time shall any
845-18 member be allowed to appoint or designate a proxy or representative
845-19 for the purposes of achieving a quorum or to cast a vote on any
845-20 matter pending before the committee.
845-21 SECTION 11.279. Sections 14.002(a) and (b), Parks and
845-22 Wildlife Code, are amended to read as follows:
845-23 (a) The department and the land office, in conjunction,
845-24 shall develop and adopt a State Wetlands Conservation Plan for
845-25 state-owned coastal wetlands. The Texas Natural Resource
845-26 Conservation <Water> Commission and other state agencies and local
845-27 governments shall assist in developing and implementing the plan.
846-1 The department and the land office shall consult with federal
846-2 agencies in developing and adopting the plan.
846-3 (b) The plan shall include:
846-4 (1) a definition of the term "wetlands" consistent to
846-5 the greatest extent practicable with the definition under
846-6 Subchapter J, Chapter 11, Water Code, and federal law;
846-7 (2) a policy framework for achieving a goal of no
846-8 overall net loss of state-owned coastal wetlands, which framework
846-9 shall include monitoring and enforcement of the no overall net loss
846-10 policy;
846-11 (3) provisions for an inventory of state-owned coastal
846-12 wetlands to determine gains and losses in areal extent, wetland
846-13 types, wetland function, and the causes of wetlands alterations;
846-14 (4) provisions for an inventory of sites for
846-15 compensatory mitigation, enhancement, restoration, and acquisition
846-16 priorities;
846-17 (5) clarification and unification of wetland
846-18 mitigation policies within the department, the land office, and the
846-19 Texas Natural Resource Conservation <Water> Commission, and other
846-20 state agencies and subdivisions;
846-21 (6) development of guidelines and regulations for
846-22 mitigation done in advance for losses due to possible future
846-23 development and for which credit may be received when such future
846-24 development occurs;
846-25 (7) evaluation of requirements of freshwater inflow to
846-26 estuaries that affect state-owned coastal wetlands;
846-27 (8) preparations for a long-range navigational
847-1 dredging and disposal plan, in consultation with the Texas <State>
847-2 Department of <Highways and Public> Transportation, port
847-3 authorities, and navigation districts, including the
847-4 recommendations set out in the department's Texas Outdoor
847-5 Recreation Plan;
847-6 (9) provisions for scientific studies examining the
847-7 effects of boat traffic in sensitive coastal wetland areas and for
847-8 education of the public with regard to the effects of boating in
847-9 wetlands and proper nondamaging boating techniques;
847-10 (10) provisions to encourage the reduction of nonpoint
847-11 source pollution of coastal wetlands, bays, and estuaries, in
847-12 consultation with the Texas Natural Resource Conservation <Water>
847-13 Commission, including the monitoring and adoption of nonpoint
847-14 source pollution standards as they are developed by authorized
847-15 state and federal agencies;
847-16 (11) development of a networking strategy to improve
847-17 coordination among existing federal and state agencies with respect
847-18 to coastal wetland permitting, review, and protection
847-19 responsibilities, including the assessment of current state agency
847-20 permitting and other processes concerning coastal wetlands;
847-21 (12) a public education program on wetlands with the
847-22 responsibility for the production of such material to be jointly
847-23 that of the land office and the department;
847-24 (13) participation in the establishment of a National
847-25 Wetlands Information Center by the federal government;
847-26 (14) evaluation of the feasibility and effect of
847-27 sediment bypassing from reservoirs to bays and estuaries;
848-1 (15) consideration of sea level rise as it relates to
848-2 coastal wetlands;
848-3 (16) provisions consistent with the department's Texas
848-4 Wetlands Plan;
848-5 (17) a plan to acquire coastal wetlands, following the
848-6 guidelines provided for in Subchapter G, Chapter 33, Natural
848-7 Resources Code; and
848-8 (18) any other matter affecting state-owned coastal
848-9 wetlands.
848-10 SECTION 11.280. Section 28.03(d), Penal Code, is amended to
848-11 read as follows:
848-12 (d) The term "public communication, public transportation,
848-13 public water, gas, or power supply, or other public service" shall
848-14 mean, refer to, and include any such services subject to regulation
848-15 by the Public Utility Commission of Texas, the Railroad Commission
848-16 of Texas, or the Texas Natural Resource Conservation <Water>
848-17 Commission or any such services enfranchised by the State of Texas
848-18 or any political subdivision thereof.
848-19 SECTION 11.281. Section 23.20(e), Tax Code, is amended to
848-20 read as follows:
848-21 (e) The Texas Natural Resource Conservation <Water>
848-22 Commission, a commissioners court, and the Texas <State Highway and
848-23 Public> Transportation Commission each, by rule, may ensure that a
848-24 waiver under this section is properly and timely executed, and is
848-25 irrevocable by the owner of the property to which the waiver
848-26 applies or by any other related person receiving or proposing to
848-27 receive, directly or indirectly, the proceeds of any bonds issued
849-1 by or to be issued by the taxing unit. The rules of the Texas
849-2 Natural Resource Conservation Commission <water commission> apply
849-3 to waivers applicable to taxing units that are conservation and
849-4 reclamation districts subject to the jurisdiction of the
849-5 commission. The rules of the commissioners court apply to waivers
849-6 applicable to taxing units that are road districts created by the
849-7 commissioners court. The rules of the <highway and public>
849-8 transportation commission apply to waivers applicable to taxing
849-9 units that are road utility districts subject to the jurisdiction
849-10 of the commission.
849-11 SECTION 11.282. The heading to Chapter 5, Water Code, is
849-12 amended to read as follows:
849-13 CHAPTER 5. TEXAS NATURAL RESOURCE CONSERVATION <WATER> COMMISSION
849-14 SECTION 11.283. Section 12.081(a), Water Code, is amended to
849-15 read as follows:
849-16 (a) The powers and duties of all districts and authorities
849-17 created under Article III, Section 52 and Article XVI, Section 59
849-18 of the Texas Constitution are subject to the continuing right of
849-19 supervision of the State of Texas by and through the commission or
849-20 its successor, and this supervision may include but is not limited
849-21 to the authority to:
849-22 (1) inquire into the competence, fitness, and
849-23 reputation of the officers and directors of any district or
849-24 authority;
849-25 (2) require, on its own motion or on complaint by any
849-26 person, audits or other financial information, inspections,
849-27 evaluations, and engineering reports;
850-1 (3) issue subpoenas for witnesses to carry out its
850-2 authority under this subsection;
850-3 (4) institute investigations and hearings using
850-4 examiners appointed by the commission;
850-5 (5) issue rules necessary to supervise the districts
850-6 and authorities, except that such rules shall not apply to water
850-7 quality ordinances adopted by any river authority which meet or
850-8 exceed minimum requirements established by the commission <Texas
850-9 Water Commission>; and
850-10 (6) the right of supervision granted herein shall not
850-11 apply to matters relating to electric utility operations.
850-12 SECTION 11.284. Section 13.0435(b), Water Code, is amended
850-13 to read as follows:
850-14 (b) The customers of a corporation to which this section
850-15 applies may appeal a decision of the corporation that affects their
850-16 water or sewer rates to the commission <Texas Water Commission>
850-17 under Section 13.043(b) of this code, and the commission shall
850-18 determine whether the corporation has made the rate changes
850-19 required by Subsection (a) of this section.
850-20 SECTION 11.285. Section 13.139(d), Water Code, is amended to
850-21 read as follows:
850-22 (d) Not later than the 90th day after the date on which a
850-23 retail public utility that has a certificate of public convenience
850-24 and necessity reaches 85 percent of its capacity, as compared to
850-25 the commission's <Texas Department of Health's> minimum capacity
850-26 requirements for a public drinking water system, the retail public
850-27 utility shall submit to the executive director a planning report
851-1 that includes details on how the retail public utility will provide
851-2 the expected service to the remaining areas within the boundaries
851-3 of its certificated area. The executive director may waive the
851-4 reporting requirement if the executive director finds that the
851-5 projected growth of the area will not require the utility to exceed
851-6 its capacity. The commission by rule may require the submission of
851-7 revised reports at specified intervals.
851-8 SECTION 11.286. Section 13.244(c), Water Code, is amended to
851-9 read as follows:
851-10 (c) Each applicant for a certificate shall file with the
851-11 commission evidence required by the commission to show that the
851-12 applicant has received the required consent, franchise, or permit
851-13 of the proper municipality<, Texas Department of Health,> or other
851-14 public authority.
851-15 SECTION 11.287. Sections 15.735(a) and (c), Water Code, are
851-16 amended to read as follows:
851-17 (a) A political subdivision located in the county of
851-18 Brewster, Cameron, El Paso, Hidalgo, Hudspeth, Maverick, Presidio,
851-19 Starr, Terrell, Val Verde, Webb, or Zapata in which residences do
851-20 not have water or wastewater facilities that meet minimum standards
851-21 established by the commission <Texas Department of Health or the
851-22 Texas Water Commission> or in any other area designated by federal
851-23 law to benefit from the fund may submit to the board an application
851-24 for a plumbing assistance loan in accordance with rules adopted by
851-25 the board. The application must include:
851-26 (1) the legal name of the political subdivision and a
851-27 citation to the law under which it operates and was created;
852-1 (2) a description of the water conservation methods to
852-2 be used in the provision of water and wastewater service in the
852-3 area the political subdivision proposes to affect by its plumbing
852-4 improvement loan program;
852-5 (3) a map showing the location of the area the
852-6 political subdivision proposes to affect by its plumbing
852-7 improvement loan program;
852-8 (4) a description of the subdivision's proposed
852-9 plumbing improvement loan program; and
852-10 (5) other information as required by board rule.
852-11 (c) The board may approve a plumbing assistance loan to a
852-12 political subdivision only if the political subdivision is, or is
852-13 in an area within the jurisdiction of, an authorized agent of the
852-14 commission <Texas Department of Health> under Subchapter C, Chapter
852-15 366, Health and Safety Code.
852-16 SECTION 11.288. Sections 16.1331(b), (c), and (e), Water
852-17 Code, are amended to read as follows:
852-18 (b) The Parks and Wildlife Department in cooperation with
852-19 the commission <department> shall manage this water for the
852-20 purposes stated in this section.
852-21 (c) The Parks and Wildlife Department shall adopt necessary
852-22 rules and shall enter into necessary memoranda of understanding
852-23 with the commission <department> to provide necessary rules and
852-24 procedures for managing the water and for release of the water for
852-25 the purposes stated in this section.
852-26 (e) This section does not limit or repeal any other
852-27 authority of or law relating to the <department or the> commission.
853-1 SECTION 11.289. Section 16.342(a), Water Code, is amended to
853-2 read as follows:
853-3 (a) The board shall adopt rules that are necessary to carry
853-4 out the program provided by Subchapter K, Chapter 17, of this code
853-5 and rules:
853-6 (1) incorporating existing minimum state standards and
853-7 rules for water supply and sewer services established by the
853-8 commission <Texas Department of Health and the Texas Water
853-9 Commission>; and
853-10 (2) requiring compliance with existing rules of any
853-11 state agency relating to septic tanks and other waste disposal
853-12 systems.
853-13 SECTION 11.290. Sections 16.343(a) and (c), Water Code, are
853-14 amended to read as follows:
853-15 (a) The commission <Texas Water Commission and the Texas
853-16 Department of Health> shall, in conjunction with the board, prepare
853-17 model rules to assure that minimum standards for safe and sanitary
853-18 water supply and sewer services in residential areas of political
853-19 subdivisions, including rules of any state agency relating to
853-20 septic tanks and other waste disposal systems, are met.
853-21 (c) The model rules must:
853-22 (1) assure that adequate sewer facilities are
853-23 available to the residential areas through either septic tanks or
853-24 an organized sewage disposal system that is a publicly or privately
853-25 owned system for the collection, treatment, and disposal of sewage
853-26 operated in accordance with the terms and conditions of a valid
853-27 waste discharge permit issued by the commission <Texas Water
854-1 Commission> or private sewage facilities in accordance with Chapter
854-2 366, Health and Safety Code, and the Construction Standards for
854-3 On-Site Sewerage Facilities adopted by the commission <Texas
854-4 Department of Health> and other law and rules applicable to sewage
854-5 facilities; and
854-6 (2) provide criteria applicable to tracts that were
854-7 divided into two or more parts to lay out a subdivision and were
854-8 not platted or recorded before September 1, 1989.
854-9 SECTION 11.291. Section 17.933(b), Water Code, is amended to
854-10 read as follows:
854-11 (b) In providing financial assistance to an applicant under
854-12 this subchapter, the board may not provide to the applicant
854-13 financial assistance for which repayment is not required in an
854-14 amount that exceeds 50 percent of the total amount of the financial
854-15 assistance plus interest on any amount that must be repaid, unless
854-16 the commission <Texas Department of Health> issues a finding that a
854-17 nuisance dangerous to the public health and safety exists resulting
854-18 from water supply and sanitation problems in the area to be served
854-19 by the proposed project. The board and the applicant shall provide
854-20 to the commission <Texas Department of Health> information
854-21 necessary to make a determination, and the board and the commission
854-22 <Texas Department of Health> may enter into necessary memoranda of
854-23 understanding to carry out this subsection.
854-24 SECTION 11.292. Sections 26.001(2) and (4), Water Code
854-25 (effective until delegation of NPDES permitting authority), are
854-26 amended to read as follows:
854-27 (2) "Commission" means the Texas Natural Resource
855-1 Conservation <Water> Commission.
855-2 (4) "Executive director" means the executive director
855-3 of the Texas Natural Resource Conservation <Water> Commission.
855-4 SECTION 11.293. Section 26.0135(h), Water Code, as amended
855-5 by Section 1, Chapter 53, by Section 1, Chapter 316, by Section
855-6 1.01, Chapter 564, and by Section 4, Chapter 746, Acts of the 73rd
855-7 Legislature, Regular Session, 1993, is reenacted and amended to
855-8 read as follows:
855-9 (h) The commission shall apportion, assess, and recover the
855-10 reasonable costs of administering the water quality management
855-11 programs under this section from users of water and wastewater
855-12 permit holders in the watershed according to the records of the
855-13 commission generally in proportion to their right, through permit
855-14 or contract, to use water from and discharge wastewater in the
855-15 watershed. The cost to river authorities and others to conduct
855-16 regional water quality assessment shall be subject to prior review
855-17 and approval by the commission as to methods of allocation and
855-18 total amount to be recovered. The commission shall adopt rules to
855-19 supervise and implement the water quality assessment and associated
855-20 costs. The rules shall ensure that water users and wastewater
855-21 dischargers do not pay excessive amounts, that a river authority
855-22 may recover no more than the actual costs of administering the
855-23 water quality management programs called for in this section, and
855-24 that no municipality shall be assessed cost for any efforts that
855-25 duplicate water quality management activities described in Section
855-26 26.177 of this chapter. The rules concerning the apportionment and
855-27 assessment of reasonable costs shall provide for a recovery of not
856-1 more than $5,000,000 annually for fiscal years 1994 and 1995.
856-2 Costs recovered by the commission are to be deposited to the water
856-3 quality fund and may be used only <are appropriated to the
856-4 commission> for the administration of this section and the
856-5 implementation of regional water quality assessments.
856-6 SECTION 11.294. Section 26.135(b), Water Code, is amended to
856-7 read as follows:
856-8 (b) The commission <and the Water Well Drillers Board> shall
856-9 continue to exercise the authority granted to it <them> in Chapter
856-10 32 of this code <The Water Well Drillers Act, as amended (Article
856-11 7621e, Vernon's Texas Civil Statutes)>.
856-12 SECTION 11.295. Section 26.402, Water Code, is amended to
856-13 read as follows:
856-14 Sec. 26.402. Definition <DEFINITIONS>. In this subchapter,
856-15 "committee"<:>
856-16 <(1) "Commission" means the Texas Water Commission.>
856-17 <(2) "Committee"> means the Texas Groundwater
856-18 Protection Committee.
856-19 SECTION 11.296. Section 26.406(b), Water Code, is amended to
856-20 read as follows:
856-21 (b) For purposes of this section, the agencies identified as
856-22 having responsibilities related to protection of groundwater
856-23 include the commission, <the Texas Water Well Drillers Board, the
856-24 Texas Department of Health,> the Department of Agriculture, the
856-25 Railroad Commission of Texas, and the State Soil and Water
856-26 Conservation Board.
856-27 SECTION 11.297. Section 27.017, Water Code, is amended to
857-1 read as follows:
857-2 Sec. 27.017. RECOMMENDATIONS FROM OTHER ENTITIES <AGENCIES>.
857-3 The executive director shall submit to the Texas Department of
857-4 Health<, the Water Well Drillers Board,> and to other persons which
857-5 the commission may designate<,> copies of every application
857-6 received in proper form. These entities <agencies, persons, and
857-7 divisions> may make recommendations to the commission concerning
857-8 any aspect of the application within 30 days.
857-9 SECTION 11.298. Section 27.019(b), Water Code, is amended to
857-10 read as follows:
857-11 (b) Copies of any rules under this chapter proposed by the
857-12 commission shall before their adoption be sent to the railroad
857-13 commission, the Texas Department of Health, <the Water Well
857-14 Drillers Board,> and any other persons the commission may
857-15 designate. Any agency or person to whom the copies of proposed
857-16 rules are sent may submit comments and recommendations to the
857-17 commission and shall have reasonable time to do so as the
857-18 commission may prescribe.
857-19 SECTION 11.299. Section 27.034(b), Water Code, is amended to
857-20 read as follows:
857-21 (b) Copies of any rules under this chapter proposed by the
857-22 railroad commission shall, before their adoption, be sent to the
857-23 commission, the Texas Department of Health, <the Water Well
857-24 Drillers Board,> and any other persons the railroad commission may
857-25 designate. Any agency or person to whom the copies of proposed
857-26 rules and regulations are sent may submit comments and
857-27 recommendations to the railroad commission and shall have
858-1 reasonable time to do so as the railroad commission may prescribe.
858-2 SECTION 11.300. Section 27.052(a), Water Code, is amended to
858-3 read as follows:
858-4 (a) The commission shall furnish the railroad commission
858-5 and<,> the Texas Department of Health<, and the Water Well Drillers
858-6 Board> with a copy of each permit the commission issues. The
858-7 railroad commission shall furnish the commission with a copy of
858-8 each permit the railroad commission issues and the executive
858-9 director shall in turn forward copies to the Texas Department of
858-10 Health <and the Water Well Drillers Board>.
858-11 SECTION 11.301. Sections 28.001(1) and (2), Water Code, are
858-12 amended to read as follows:
858-13 (1) "Commission" means the Texas Natural Resource
858-14 Conservation <Water> Commission.
858-15 (2) "Executive Director" means the executive director
858-16 of the Texas Natural Resource Conservation <Water> Commission.
858-17 SECTION 11.302. Section 30.004(a), Water Code, is amended to
858-18 read as follows:
858-19 (a) This chapter is cumulative of other statutes governing
858-20 <the Texas Department of Health,> the Texas Water Development
858-21 Board<,> and the Texas Natural Resource Conservation Commission
858-22 relating to:
858-23 (1) the issuance of bonds;
858-24 (2) the collection, transportation, treatment, or
858-25 disposal of waste; and
858-26 (3) the design, construction, acquisition, or approval
858-27 of facilities for these purposes.
859-1 SECTION 11.303. Sections 31.001(1) and (2), Water Code, are
859-2 amended to read as follows:
859-3 (1) "Commission" means the Texas Natural Resource
859-4 Conservation <Water> Commission.
859-5 (2) "Executive director" means the executive director
859-6 of the Texas Natural Resource Conservation <Water> Commission.
859-7 SECTION 11.304. Section 34.001(4), Water Code, is amended to
859-8 read as follows:
859-9 (4) "Commission" <"Department"> means the Texas
859-10 Natural Resource Conservation Commission.
859-11 SECTION 11.305. Sections 34.003(a) and (d), Water Code, are
859-12 amended to read as follows:
859-13 (a) The Texas irrigators advisory council is composed of
859-14 nine members appointed by the commission <department>.
859-15 Appointments to the council shall be made without regard to the
859-16 race, creed, sex, religion, or national origin of the appointees.
859-17 (d) A council member or an employee of the commission
859-18 <department> connected with the administration of this chapter may
859-19 not be an officer, employee, or paid consultant of a trade
859-20 association in the irrigation industry and may not be related
859-21 within the second degree by affinity or consanguinity to a person
859-22 who is an officer, employee, or paid consultant of a trade
859-23 association in the irrigation industry.
859-24 SECTION 11.306. Sections 34.004(b) and (c), Water Code, are
859-25 amended to read as follows:
859-26 (b) The executive director shall provide necessary services
859-27 to assist the commission <department> in conducting investigations
860-1 and examinations, holding hearings, and performing other duties and
860-2 functions under this chapter.
860-3 (c) The commission <department> shall hear all contested
860-4 cases as defined in Chapter 2001, Government Code, <the
860-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
860-6 Vernon's Texas Civil Statutes)> arising under this chapter. The
860-7 commission <department> is subject to Chapter 551, Government Code
860-8 <the open meetings law, Chapter 271, Acts of the 60th Legislature,
860-9 Regular Session, 1967 (Article 6252-17, Vernon's Texas Civil
860-10 Statutes)>, and Chapter 2001, Government Code <the Administrative
860-11 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
860-12 Civil Statutes)>.
860-13 SECTION 11.307. Sections 34.005 and 34.006, Water Code, are
860-14 amended to read as follows:
860-15 Sec. 34.005. COMMISSION <DEPARTMENT> FINANCES. (a) Money
860-16 paid to the commission <department> under this chapter shall be
860-17 deposited in the state treasury in a special fund known as the
860-18 Texas irrigators fund.
860-19 (b) The Texas irrigators fund shall be used to pay only
860-20 expenses approved by the commission <department> that are incurred
860-21 in the administration and enforcement of this chapter.
860-22 (c) The executive director shall file annually with the
860-23 governor and with the presiding officer of each house of the
860-24 legislature a complete and detailed written report accounting for
860-25 all funds received and disbursed under this chapter during the
860-26 preceding fiscal year. The annual report must be in the form and
860-27 reported in the time provided by the General Appropriations Act.
861-1 Sec. 34.006. Rules. (a) The commission <department> shall
861-2 adopt only those rules consistent with this chapter to govern the
861-3 conduct of its business and proceedings authorized under this
861-4 chapter and shall adopt standards governing connections to public
861-5 or private water supplies by a licensed irrigator or a licensed
861-6 installer. The commission <department> may adopt standards for
861-7 landscape irrigation that include water conservation, irrigation
861-8 system design and installation, and conformance with municipal
861-9 codes by a licensed irrigator or a licensed installer. The
861-10 commission <department> may not adopt any standard or rule that
861-11 requires or prohibits the use of any irrigation system, component
861-12 part, or equipment of any particular brand or manufacturer.
861-13 (b) The commission <department> does not have authority to
861-14 amend or enlarge by rule on any provision of this chapter, to
861-15 change the meaning of this chapter by rule in any manner, to adopt
861-16 a rule that is contrary to the underlying and fundamental purposes
861-17 of this chapter, or to make a rule that is unreasonable, arbitrary,
861-18 capricious, illegal, or unnecessary.
861-19 (c) The commission <department> may not adopt rules
861-20 restricting competitive bidding or advertising by a person
861-21 regulated by the commission <department> except to prohibit false,
861-22 misleading, or deceptive practices by the person.
861-23 (d) The commission <department> may not include in its rules
861-24 to prohibit false, misleading, or deceptive practices by a person
861-25 regulated by the commission <department> a rule that:
861-26 (1) restricts the use of any medium for advertising;
861-27 (2) restricts the person's personal appearance or use
862-1 of the person's voice in an advertisement;
862-2 (3) relates to the size or duration of an
862-3 advertisement by the person; or
862-4 (4) restricts the person's advertisement under a trade
862-5 name.
862-6 (e) The commission <department> shall develop and implement
862-7 policies that provide the public with a reasonable opportunity to
862-8 appear before the commission <department> and to speak on any issue
862-9 under the jurisdiction of the commission <department>.
862-10 (f) The commission <department> shall prepare and maintain a
862-11 written plan that describes how a person who does not speak English
862-12 or who has a physical, mental, or developmental disability may be
862-13 provided reasonable access to the commission's <department's>
862-14 programs.
862-15 (g) The commission <department> shall prepare information of
862-16 public interest describing the functions of the commission
862-17 <department> and the commission's <department's> procedures by
862-18 which complaints are filed with and resolved by the commission
862-19 <department>. The commission <department> shall make the
862-20 information available to the public and appropriate state agencies.
862-21 (h) The commission <department> by rule shall establish
862-22 methods by which consumers and service recipients are notified of
862-23 the name, mailing address, and telephone number of the commission
862-24 <department> for the purpose of directing complaints to the
862-25 commission <department>. The commission <department> may provide
862-26 for that notification:
862-27 (1) on each registration form, application, or written
863-1 contract for services of an individual regulated under this
863-2 chapter;
863-3 (2) on a sign prominently displayed in the place of
863-4 business of each individual regulated under this chapter; or
863-5 (3) in a bill for service provided by an individual
863-6 regulated under this chapter.
863-7 (i) The commission <department> may recognize, prepare, or
863-8 administer continuing education programs for landscape irrigation.
863-9 Participation in the programs is voluntary.
863-10 (j) The commission <department> may certify instructors and
863-11 establish standards for instructional course studies designed to
863-12 prepare applicants for an examination administered by the
863-13 commission <department>. Certification will be voluntary and based
863-14 on compliance of the instructor with the standards of the
863-15 commission <department>. The commission <department> may provide a
863-16 list containing the names of all commission <department> certified
863-17 instructors and all known uncertified instructors to each applicant
863-18 for an examination administered by the commission <department>.
863-19 SECTION 11.308. Sections 34.007(b), (c), and (e), Water
863-20 Code, are amended to read as follows:
863-21 (b) The commission <department> shall issue certificates of
863-22 registration to persons of good moral character who have shown
863-23 themselves fit, competent, and qualified to act as licensed
863-24 irrigators or licensed installers by passing a uniform, reasonable
863-25 examination which will include the principles of cross connections
863-26 and safety devices to prevent contamination of potable water
863-27 supplies.
864-1 (c) The commission <department> shall provide in its rules
864-2 for the preparation, administration, and grading of examinations to
864-3 acquire certificates of registration under this chapter. The fee
864-4 for taking the examination shall be set by the commission
864-5 <department> not to exceed $100 for the irrigator certificate of
864-6 registration and not to exceed $75 for the installer certificate of
864-7 registration.
864-8 (e) Not later than the 30th day after the day on which a
864-9 person completes an examination administered by the commission
864-10 <department>, the commission <department> shall send to the person
864-11 his or her examination results. If requested in writing by a
864-12 person who fails the examination, the commission <department> shall
864-13 send to the person not later than the 30th day after the day on
864-14 which the request is received by the commission <department> an
864-15 analysis of the person's performance on the examination.
864-16 SECTION 11.309. Section 34.008, Water Code, is amended to
864-17 read as follows:
864-18 Sec. 34.008. Reciprocity. (a) The commission <department>
864-19 may certify for registration without examination an applicant who
864-20 is registered as a licensed irrigator or licensed installer in
864-21 another state or country that has requirements for registration
864-22 that are at least substantially equivalent to the requirements of
864-23 this state and that extends the same privilege of reciprocity to
864-24 licensed irrigators or licensed installers registered in this
864-25 state.
864-26 (b) The application for registration under this section
864-27 shall be accompanied by a fee of not to exceed $100 for a licensed
865-1 irrigator or $75 for a licensed installer as determined by the
865-2 commission <department>.
865-3 SECTION 11.310. Sections 34.009(b) and (c), Water Code, are
865-4 amended to read as follows:
865-5 (b) The commission <department> or the executive director
865-6 shall notify every person registered under this chapter of the date
865-7 of expiration of his or her certificate and the amount of the fee
865-8 that is required for renewal for one year. The notice shall be
865-9 mailed at least two months in advance of the date of expiration of
865-10 the certificate.
865-11 (c) A person may renew his or her certificate at any time
865-12 during the months of July and August of each year by payment of the
865-13 fee adopted by the commission <department> in an amount of not more
865-14 than $150 for a licensed irrigator or $100 for a licensed
865-15 installer.
865-16 SECTION 11.311. Section 34.010, Water Code, is amended to
865-17 read as follows:
865-18 Sec. 34.010. Enforcement. (a) The commission <department>
865-19 may suspend or revoke a certificate of registration, place on
865-20 probation a person whose certificate has been suspended, or
865-21 reprimand a registrant for:
865-22 (1) a violation of this chapter or of a rule of the
865-23 commission <department>;
865-24 (2) fraud or deceit in obtaining a certificate of
865-25 registration; or
865-26 (3) gross negligence, incompetency, or misconduct
865-27 while acting as a licensed irrigator or licensed installer.
866-1 (b) If the commission <department> proposes to suspend or
866-2 revoke a person's certificate of registration, the person is
866-3 entitled to a hearing before the commission <department> or a
866-4 hearings officer appointed by the commission <department>. The
866-5 commission <department> shall prescribe procedures by which all
866-6 decisions to suspend or revoke are made by or are appealable to the
866-7 commission <department>.
866-8 (c) If a registrant's suspension is probated, the commission
866-9 <department> may require the registrant:
866-10 (1) to report regularly to the commission <department>
866-11 on matters that are the basis of the probation;
866-12 (2) to limit activities to the areas prescribed by the
866-13 commission <department>; or
866-14 (3) to continue or renew professional education until
866-15 the registrant attains a degree of skill satisfactory to the
866-16 commission <department> in those areas that are the basis of the
866-17 probation.
866-18 (d) Any person may file a complaint with the commission
866-19 <department>. The complaint must be in writing, must be notarized,
866-20 and must set forth the facts alleged. One copy must be sent by
866-21 certified mail to the alleged violator.
866-22 (e) The commission <department> shall keep an information
866-23 file about each complaint filed with the commission <department>
866-24 that the commission <department> has authority to resolve.
866-25 (f) If a written complaint is filed with the commission
866-26 <department> that the commission <department> has authority to
866-27 resolve, the commission <department>, at least quarterly and until
867-1 final disposition of the complaint, shall notify the parties to the
867-2 complaint of the status of the complaint unless the notice would
867-3 jeopardize an undercover investigation.
867-4 (g) If the executive director determines through
867-5 investigation that evidence exists of a violation, the executive
867-6 director may refer such evidence to the commission <department> and
867-7 may request the setting of a hearing.
867-8 (h) The commission <department> may compel the attendance of
867-9 witnesses before it as in civil cases in the district court by
867-10 issuance of a subpoena.
867-11 SECTION 11.312. Sections 34.011(a), (c), (g), (h), (i), (j),
867-12 and (m), Water Code, are amended to read as follows:
867-13 (a) If a person licensed or registered under this chapter
867-14 violates this chapter or a rule or order adopted by the commission
867-15 <department> under this chapter, the commission <department> may
867-16 assess an administrative penalty against the person as provided by
867-17 this section. Each day a violation continues may be considered a
867-18 separate violation.
867-19 (c) In determining the amount of the penalty, the commission
867-20 <department> shall consider:
867-21 (1) the seriousness of the violation, including the
867-22 nature, circumstances, extent, duration, and gravity of the
867-23 prohibited acts;
867-24 (2) the history of previous violations;
867-25 (3) the amount necessary to deter future violations;
867-26 (4) efforts to correct the violation; and
867-27 (5) any other matter that justice may require.
868-1 (g) If the person charged with the violation accepts the
868-2 determination of the executive director, the commission
868-3 <department> shall issue an order approving the determination and
868-4 ordering the payment of the recommended penalty.
868-5 (h) If the person charged requests a hearing or fails to
868-6 timely respond to the notice, the executive director shall set a
868-7 hearing and give notice of the hearing to the person charged. The
868-8 hearing may be before the commission <department> or a hearings
868-9 examiner appointed by the commission <department>. The hearings
868-10 examiner shall make findings of fact and conclusions of law and
868-11 promptly issue to the commission <department> a proposal for
868-12 decision as to the occurrence of the violation, including a
868-13 recommendation as to the amount of the proposed penalty if a
868-14 penalty is warranted. Based on the findings of fact, conclusions
868-15 of law, and recommendations of the hearings examiner, the
868-16 commission <department> by order may find a violation has occurred
868-17 and may assess a penalty or may find that no violation has
868-18 occurred. All proceedings under this subsection are subject to
868-19 Chapter 2001, Government Code <the Administrative Procedure and
868-20 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
868-21 Statutes)>.
868-22 (i) The executive director shall give notice of the
868-23 commission's <department's> order to the person charged. The
868-24 notice shall include:
868-25 (1) the findings of fact and conclusions of law
868-26 separately stated;
868-27 (2) the amount of the penalty ordered, if any;
869-1 (3) a statement of the right of the person charged to
869-2 judicial review of the commission's <department's> order, if any;
869-3 and
869-4 (4) other information required by law.
869-5 (j) Within the 30-day period immediately following the date
869-6 on which the commission's <department's> order is final, as
869-7 provided by Section 2001.144, Government Code <16(c),
869-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
869-9 Vernon's Texas Civil Statutes)>, the person charged with the
869-10 penalty shall:
869-11 (1) pay the penalty in full; or
869-12 (2) if the person files a petition for judicial
869-13 review, contesting either the amount of the penalty or the fact of
869-14 the violation or contesting both the fact of the violation and the
869-15 amount of the penalty:
869-16 (A) forward the amount of the penalty to the
869-17 executive director for placement in an escrow account; or
869-18 (B) in lieu of payment into escrow, post with
869-19 the executive director a supersedeas bond in a form approved by the
869-20 executive director for the amount of the penalty, the bond to be
869-21 effective until all judicial review of the order or decision is
869-22 final.
869-23 (m) Judicial review of the order or decision of the
869-24 commission <department> assessing the penalty shall be under the
869-25 substantial evidence rule and shall be instituted by filing a
869-26 petition with a district court in Travis County, as provided by
869-27 Subchapter G, Chapter 2001, Government Code <Section 19,
870-1 Administrative Procedure and Texas Register Act (Article 6252-13a,
870-2 Vernon's Texas Civil Statutes)>.
870-3 SECTION 11.313. Sections 34.012 and 34.013, Water Code, are
870-4 amended to read as follows:
870-5 Sec. 34.012. Penalty; Injunction. (a) A person who
870-6 represents himself or herself as a licensed irrigator or licensed
870-7 installer in this state without being licensed or exempted under
870-8 this chapter, who presents or attempts to use as his or her own the
870-9 certificate of registration or the seal of another person who is a
870-10 licensed irrigator or licensed installer, or who gives false or
870-11 forged evidence of any kind to the commission <department> in
870-12 obtaining or assisting in obtaining for another a certificate of
870-13 registration shall be guilty of a Class C misdemeanor. Each day a
870-14 violation of this subsection occurs constitutes a separate offense.
870-15 (b) A person who violates this chapter or a rule or order of
870-16 the commission <department> adopted under this chapter is subject
870-17 to a civil penalty of not to exceed $1,000 for each offense. Each
870-18 day a violation is committed is a separate offense.
870-19 (c) An action to recover the penalty under Subsection (b) of
870-20 this section may be brought by the commission <department> in any
870-21 court of competent jurisdiction in the county in which the
870-22 offending activity occurred, in which the defendant resides, or in
870-23 Travis County.
870-24 (d) The commission <department> may enforce this chapter or
870-25 a valid rule or order of the commission <department> by injunction
870-26 or other appropriate remedy. The action may be brought by the
870-27 commission <department> in a court of competent jurisdiction in the
871-1 county in which the offending activity occurred, in which the
871-2 defendant resides, or in Travis County.
871-3 (e) At the request of the commission <department>, the
871-4 attorney general shall institute and conduct a suit in the name of
871-5 the state to recover the civil penalty as provided under Subsection
871-6 (b) of this section or for injunctive relief or other appropriate
871-7 remedy, or for both.
871-8 Sec. 34.013. Enforcement of Act. The executive director
871-9 with the assistance of the attorney general shall enforce this
871-10 chapter and the rules adopted by the commission <department>.
871-11 SECTION 11.314. Section 41.0082, Water Code, is amended to
871-12 read as follows:
871-13 Sec. 41.0082. COOPERATION OF TEXAS NATURAL RESOURCE
871-14 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
871-15 Conservation <Water> Commission shall cooperate with the
871-16 commissioner in the performance of his duties and shall furnish him
871-17 any available data and information he needs.
871-18 SECTION 11.315. Section 42.009, Water Code, is amended to
871-19 read as follows:
871-20 Sec. 42.009. COOPERATION OF TEXAS NATURAL RESOURCE
871-21 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
871-22 Conservation <Water> Commission shall cooperate with the
871-23 commissioner in the performance of his duties and shall furnish him
871-24 any available data and information he needs.
871-25 SECTION 11.316. Section 43.0052, Water Code, is amended to
871-26 read as follows:
871-27 Sec. 43.0052. COOPERATION OF TEXAS NATURAL RESOURCE
872-1 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
872-2 Conservation <Water> Commission shall cooperate with the
872-3 commissioner in the performance of his duties and shall furnish him
872-4 any available data and information he needs.
872-5 SECTION 11.317. Section 44.009, Water Code, is amended to
872-6 read as follows:
872-7 Sec. 44.009. COOPERATION OF TEXAS NATURAL RESOURCE
872-8 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
872-9 Conservation <Water> Commission shall cooperate with the members in
872-10 the performance of their duties and shall furnish them any
872-11 available data and information they need.
872-12 SECTION 11.318. Section 46.008(a), Water Code, is amended to
872-13 read as follows:
872-14 (a) The executive director of the Texas Natural Resource
872-15 Conservation <Water> Commission or a designated representative
872-16 selected from the staff of the Texas Natural Resource Conservation
872-17 <Water> Commission shall also serve as a commissioner and represent
872-18 this state on the commission established by Article IX of the
872-19 compact.
872-20 SECTION 11.319. Section 46.010, Water Code, is amended to
872-21 read as follows:
872-22 Sec. 46.010. COOPERATION OF TEXAS NATURAL RESOURCE
872-23 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
872-24 Conservation <Water> Commission shall cooperate with the
872-25 commissioners in the performance of their duties and shall furnish
872-26 them any factual data and information that are available.
872-27 SECTION 11.320. Section 47.006(a), Water Code, is amended to
873-1 read as follows:
873-2 (a) The executive director of the Texas Natural Resource
873-3 Conservation <Water> Commission or a designated representative
873-4 selected from the staff of the Texas Natural Resource Conservation
873-5 <Water> Commission shall also serve as a commissioner and represent
873-6 this state on the commission established by Section 6 of the
873-7 compact.
873-8 SECTION 11.321. Section 47.008, Water Code, is amended to
873-9 read as follows:
873-10 Sec. 47.008. COOPERATION OF TEXAS NATURAL RESOURCE
873-11 CONSERVATION <WATER> COMMISSION. The Texas Natural Resource
873-12 Conservation <Water> Commission shall cooperate with the
873-13 commissioners in the performance of their duties and shall furnish
873-14 them any factual data and information that is available.
873-15 SECTION 11.322. Section 51.333(c), Water Code, is amended to
873-16 read as follows:
873-17 (c) The executive director <and the division of sanitary
873-18 engineering of the Texas Department of Health> shall render
873-19 technical aid concerning the petition and plans of the district.
873-20 SECTION 11.323. Section 51.753, Water Code, is amended to
873-21 read as follows:
873-22 Sec. 51.753. Notice of Resulting Districts. Within 30 days
873-23 after the election within the original district that confirms a
873-24 plan for division, the original district shall provide written
873-25 notice of such plan to the commission, <Texas Water Commission, the
873-26 Texas Department of Health,> the attorney general, the
873-27 commissioners court of any county in which such original district
874-1 is located, and any municipality having extraterritorial
874-2 jurisdiction over the land within the original district.
874-3 SECTION 11.324. Section 52.025(c), Water Code, is amended to
874-4 read as follows:
874-5 (c) A petition filed pursuant to this section must contain
874-6 the following statement:
874-7 "Petitioners request that the Texas Natural Resource
874-8 Conservation <Water> Commission designate an underground water
874-9 management area to include all or part of ____________ County
874-10 (counties). The management area shall be designated with the
874-11 objective of providing the most suitable area for the management of
874-12 underground water resources of the part of the state in which a
874-13 district is to be located. Petitioners understand that this
874-14 petition requests only the designation of a management area, but
874-15 that all or part of the land in the management area designated may
874-16 later be added to an existing underground water conservation
874-17 district or become a new underground water conservation district,
874-18 as provided by Chapter 52 of the Water Code."
874-19 SECTION 11.325. Section 53.090(b), Water Code, is amended to
874-20 read as follows:
874-21 (b) After at least 25 qualified electors are residing in a
874-22 district, on written request of at least five of these electors,
874-23 the board shall designate a meeting place within the district. On
874-24 the failure to designate the location of the meeting place within
874-25 the district, five electors may petition the Texas Natural Resource
874-26 Conservation <Water> Commission to designate a location, which may
874-27 be changed by the board after the next election of members to the
875-1 board.
875-2 SECTION 11.326. Sections 54.016(a) and (d), Water Code, are
875-3 amended to read as follows:
875-4 (a) No land within the corporate limits of a city or within
875-5 the extraterritorial jurisdiction of a city, shall be included in a
875-6 district unless the city grants its written consent, by resolution
875-7 or ordinance, to the inclusion of the land within the district in
875-8 accordance with Section 42.042, Local Government Code, and this
875-9 section. The request to a city for its written consent to the
875-10 creation of a district, shall be signed by a majority in value of
875-11 the holders of title of the land within the proposed district as
875-12 indicated by the county tax rolls or, if there are more than 50
875-13 persons holding title to the land in the proposed district as
875-14 indicated by the county tax rolls, the request to the city will be
875-15 sufficient if it is signed by 50 holders of title to the land in
875-16 the district. A petition for the written consent of a city to the
875-17 inclusion of land within a district shall describe the boundaries
875-18 of the land to be included in the district by metes and bounds or
875-19 by lot and block number, if there is a recorded map or plat and
875-20 survey of the area, and state the general nature of the work
875-21 proposed to be done, the necessity for the work, and the cost of
875-22 the project as then estimated by those filing the petition. If, at
875-23 the time a petition is filed with a city for creation of a
875-24 district, the district proposes to connect to a city's water or
875-25 sewer system or proposes to contract with a regional water and
875-26 wastewater provider which has been designated as such by the
875-27 commission <Texas Water Commission> as of the date such petition is
876-1 filed, to which the city has made a capital contribution for the
876-2 water and wastewater facilities serving the area, the proposed
876-3 district shall be designated as a "city service district." If such
876-4 proposed district does not meet the criteria for a city service
876-5 district at the time the petition seeking creation is filed, such
876-6 district shall be designated as a "noncity service district." The
876-7 city's consent shall not place any restrictions or conditions on
876-8 the creation of a noncity service district as defined by Chapter 54
876-9 of the Texas Water Code other than those expressly provided in
876-10 Subsection (e) of this section and shall specifically not limit the
876-11 amounts of the district's bonds. A city may not require annexation
876-12 as a consent to creation of any district. A city shall not refuse
876-13 to approve a district bond issue for any reason except that the
876-14 district is not in compliance with valid consent requirements
876-15 applicable to the district. If a city grants its written consent
876-16 without the concurrence of the applicant to the creation of a
876-17 noncity service district containing conditions or restrictions that
876-18 the petitioning land owner or owners reasonably believe exceed the
876-19 city's powers, such land owner or owners may petition the
876-20 commission to create the district and to modify the conditions and
876-21 restrictions of the city's consent. The commission may declare any
876-22 provision of the consent to be null and void.
876-23 (d) The provisions of this section relating to the method of
876-24 including land in a district without securing the written consent
876-25 of a city applies only to land within the extraterritorial
876-26 jurisdiction of a city and does not apply to land within the
876-27 corporate limits of a city. If the city fails or refuses to grant
877-1 permission for the inclusion of land in a district or to execute a
877-2 mutually agreeable contract providing for the water or sanitary
877-3 sewer service requested within the time limits contained within
877-4 Subsection (b) or (c) of this section, the applicant may petition
877-5 the commission <Texas Water Commission> for creation of the
877-6 district or inclusion of the land in a district. The commission
877-7 <Texas Water Commission> shall allow creation or inclusion of the
877-8 land in a proposed district upon a finding that the city either
877-9 does not have the reasonable ability to serve or has failed to make
877-10 a legally binding commitment with sufficient funds available to
877-11 provide water and wastewater service adequate to serve the proposed
877-12 development at a reasonable cost to the landowner. The commitment
877-13 shall provide that construction of the facilities necessary to
877-14 serve the land shall be commenced within two years, and shall be
877-15 substantially complete within four and one-half years from the date
877-16 the petition was filed with the city. Upon any appeal taken to the
877-17 district court from the commission <Texas Water Commission> ruling,
877-18 all parties to the commission <Texas Water Commission> hearing
877-19 shall be made parties to the appeal. The court shall hear the case
877-20 within 120 days from the date the appeal is filed. If the case is
877-21 continued or appealed to a higher court beyond such 120-day period,
877-22 the court shall require the appealing party in the case of appeal
877-23 to a higher court or party requesting such continuance to post a
877-24 bond or other adequate security in the amount of damages that may
877-25 be incurred by any party as a result of such appeal or delay from
877-26 the commission <Texas Water Commission> action. The amount of the
877-27 bond or other security shall be determined by the court after
878-1 notice and hearing. Upon final disposition, a court may award
878-2 damages, including any damages for delays, attorney's fees, and
878-3 costs of court to the prevailing party. Under no circumstances
878-4 shall land within the corporate limits of a city be included in a
878-5 district without the written consent, by ordinance or resolution,
878-6 of the city. The provisions of this section shall apply whether
878-7 the land is proposed to be included in the district at the time of
878-8 creation of a district or to be included by annexation to a
878-9 district. A <After the effective date of this Act, a> district
878-10 shall not allow the owner of a tract to connect to the district's
878-11 water or wastewater system unless such tract is a legally
878-12 subdivided lot which is part of a recorded subdivision plat or is
878-13 otherwise legally exempt from the subdivision requirements of the
878-14 applicable governmental authority.
878-15 SECTION 11.327. Section 54.019(e), Water Code, is amended to
878-16 read as follows:
878-17 (e) At least 30 days before the date of the hearing, the
878-18 petitioner shall send the notice of the hearing by certified mail,
878-19 return receipt requested, to all fee simple landowners, as
878-20 reflected on the county tax rolls, whose property is located within
878-21 the proposed district except property owners who have signed the
878-22 petition for creation. Ownership of the property shall be
878-23 certified by the tax assessor and collector from the tax rolls as
878-24 of the date of the filing of the petition with the commission
878-25 <Texas Water Commission>.
878-26 SECTION 11.328. Section 54.024, Water Code, is amended to
878-27 read as follows:
879-1 Sec. 54.024. Supervision by Commission. The rights, powers,
879-2 privileges, authority, and functions conferred on a district by
879-3 granting of a petition for creation shall be subject to the
879-4 continuing right of supervision of the state to be exercised by and
879-5 through the commission <Texas Water Commission>.
879-6 SECTION 11.329. Section 54.517, Water Code, is amended to
879-7 read as follows:
879-8 Sec. 54.517. COMMISSION <DEPARTMENT> SUPERVISION OF PROJECTS
879-9 AND IMPROVEMENTS. (a) During construction of projects and
879-10 improvements approved by the commission, no substantial alterations
879-11 may be made in the plans and specifications without the approval of
879-12 the commission <department> in accordance with commission rules.
879-13 (b) The executive director may inspect the improvements at
879-14 any time during construction to determine if the project is being
879-15 constructed in accordance with the plans and specifications
879-16 approved by the commission.
879-17 (c) If the executive director finds that the project is not
879-18 being constructed in accordance with the approved plans and
879-19 specifications, he shall give written notice immediately by
879-20 certified mail to each member of the board of the district and the
879-21 district's manager.
879-22 (d) If within 10 days after the notice is mailed the board
879-23 does not take steps to insure that the project is being constructed
879-24 in accordance with the approved plans and specifications, the
879-25 executive director shall give written notice of this fact to the
879-26 attorney general.
879-27 (e) After the attorney general receives this notice, he may
880-1 bring an action for injunctive relief or quo warranto proceedings
880-2 against the directors. Venue for either suit is exclusively in a
880-3 district court in Travis County.
880-4 SECTION 11.330. The section heading to Section 55.503, Water
880-5 Code, is amended to read as follows:
880-6 Sec. 55.503. <TEXAS WATER> COMMISSION TO INVESTIGATE AND
880-7 REPORT ON DISTRICTS ISSUING BONDS.
880-8 SECTION 11.331. Section 56.022(b), Water Code, is amended to
880-9 read as follows:
880-10 (b) The engineer shall obtain information regarding land and
880-11 outlets inside the proposed district from the Texas Natural
880-12 Resource Conservation <Water> Commission and from other sources,
880-13 and he shall cooperate with the Texas Natural Resource Conservation
880-14 <Water> Commission in the discharge of its duties.
880-15 SECTION 11.332. Section 60.249(c), Water Code, is amended to
880-16 read as follows:
880-17 (c) The district shall advise the Texas Natural Resource
880-18 Conservation <Water> Commission of a conversion not later than the
880-19 45th day after the results of the election are canvassed by the
880-20 commissioners court.
880-21 SECTION 11.333. Section 64.002, Water Code, is amended to
880-22 read as follows:
880-23 Sec. 64.002. Territory Included in Authority. The authority
880-24 shall include all of the area in Texas that has beneath it the
880-25 subsurface formation known as the Ogallala Formation as that area
880-26 is determined, fixed, and certified by the Texas Natural Resource
880-27 Conservation <Water> Commission, together with all of any county, a
881-1 part of which is included in that area, provided that the area in
881-2 Borden, Crosby, Dickens, and Garza Counties, and any county which
881-3 does not have at least a portion of the Ogallala Formation beneath
881-4 it shall not be initially included in the import area. A county or
881-5 any portion of a county which is not included in the import area
881-6 shall not be subject to assessment or taxation by the authority
881-7 unless subsequently annexed to the authority.
881-8 SECTION 11.334. (a) Section 40.003(29), Natural Resources
881-9 Code, is repealed.
881-10 (b) Section 361.020(f), Health and Safety Code, is repealed.
881-11 (c) Section 361.505(e), Health and Safety Code, is repealed.
881-12 (d) Section 401.071, Health and Safety Code, is repealed as
881-13 executed.
881-14 (e) Section 401.411, Health and Safety Code, is repealed.
881-15 (f) Section 402.1512, Health and Safety Code, is repealed to
881-16 conform to Section 1.09, Chapter 15, Acts of the 72nd Legislature,
881-17 1st Called Session, 1991.
881-18 ARTICLE 12. CHANGES RELATING TO NATURAL RESOURCES CODE
881-19 SECTION 12.01. (a) The section heading of Section 31.158,
881-20 Natural Resources Code, is amended to read as follows:
881-21 Sec. 31.158. REAL ESTATE TRANSACTION AUTHORIZED BY
881-22 LEGISLATURE.
881-23 (b) Chapter 31, Natural Resources Code, is amended by adding
881-24 Subchapter I to read as follows:
881-25 SUBCHAPTER I. REAL ESTATE TRANSACTION NOT
881-26 AUTHORIZED BY LEGISLATURE
881-27 Sec. 31.501. DEFINITIONS. In this subchapter:
882-1 (1) "Board" means the Legislative Budget Board.
882-2 (2) "Division" means the asset management division of
882-3 the General Land Office.
882-4 (3) "Institution of higher education" means the Texas
882-5 State Technical College System, the Southwest Collegiate Institute
882-6 for the Deaf, or an institution of higher education, other than a
882-7 public junior college, as defined by Section 61.003, Education
882-8 Code.
882-9 (4) "Real estate transaction" means the sale,
882-10 exchange, gift, lease, grant, or other conveyance of real property.
882-11 (5) "State agency" means a board, commission,
882-12 department, institution, office, or other agency of the state,
882-13 including an institution of higher education but not including a
882-14 special purpose district or authority.
882-15 Sec. 31.502. INAPPLICABILITY OF SUBCHAPTER. This subchapter
882-16 does not apply to a real estate transaction that:
882-17 (1) is administered by a state agency that under
882-18 Chapter 2201, Government Code, is ineligible to benefit from the
882-19 Texas capital trust fund; or
882-20 (2) involves permanent school fund land.
882-21 Sec. 31.503. AGENCY COMMENTS ON OR OBJECTIONS TO
882-22 RECOMMENDATION. After the division recommends an alternative use
882-23 for property during the recurring review and report required by
882-24 Subchapter E, the agency possessing the property may, not later
882-25 than the 60th day after the date it receives the written
882-26 recommendation, file with the governor its comments on or
882-27 objections to the recommendation.
883-1 Sec. 31.504. DISAPPROVAL BY GOVERNOR OF RECOMMENDATION. (a)
883-2 If, not later than the 90th day after the date the governor
883-3 receives the written recommendation, the governor disapproves the
883-4 recommended alternative use, the division may not enter into a real
883-5 estate transaction involving the property until authorized by the
883-6 legislature.
883-7 (b) After the governor disapproves a recommendation, the
883-8 governor may request, and the division may make, additional
883-9 recommendations relating to the property.
883-10 Sec. 31.505. PROPOSAL BY GOVERNOR. (a) If the governor
883-11 finds that a recommended real estate transaction would be
883-12 appropriate, the governor may propose that the division complete
883-13 the transaction.
883-14 (b) The governor may make the proposal at any time except
883-15 during a regular or special session of the legislature.
883-16 (c) The governor shall specify the details of the proposal,
883-17 give a legal description of the property, and direct the secretary
883-18 of state to publish the proposal in the Texas Register.
883-19 Sec. 31.506. MEETING OF BOARD REGARDING PROPOSAL. (a) Not
883-20 later than the 30th day after the date a proposal is published in
883-21 the Texas Register, the board may hold a meeting. The notice of
883-22 the meeting must include a description of the nature of the
883-23 proposal to be considered.
883-24 (b) The board may conduct a public hearing on the proposal.
883-25 If the meeting agenda includes a public hearing on the proposal,
883-26 the notice of the meeting must state that the agenda includes the
883-27 hearing. The board shall give notice of the hearing in the manner
884-1 provided by law for notice of regular meetings of the board.
884-2 Sec. 31.507. DECISION BY BOARD REGARDING PROPOSAL. (a) At
884-3 a meeting held under Section 31.506 the board may:
884-4 (1) approve the proposal;
884-5 (2) reject the proposal; or
884-6 (3) recommend a change in the proposal.
884-7 (b) A recommended change in the proposal may include:
884-8 (1) a change in the type of real estate transaction to
884-9 be attempted;
884-10 (2) a change in the amount of property to be involved;
884-11 or
884-12 (3) the transfer of the property to another state
884-13 agency.
884-14 (c) The affirmative vote of a majority of the members of the
884-15 board from each house is necessary for the adoption of an order
884-16 approving, or recommending a change in, the proposal. Failure to
884-17 secure the necessary majorities is a rejection of the proposal.
884-18 (d) The board shall:
884-19 (1) notify the division of the board's decision
884-20 regarding the property not later than the 10th day after the date
884-21 the hearing is concluded;
884-22 (2) notify the governor and any affected state agency
884-23 of the board's decision; and
884-24 (3) file a copy of the board's decision with the
884-25 secretary of state for publication in the Texas Register.
884-26 Sec. 31.508. EFFECT OF BOARD ACTION. (a) If the board
884-27 approves a real estate transaction as proposed, the division may
885-1 take appropriate charge and control of the property to undertake
885-2 the real estate transaction approved.
885-3 (b) If the board disapproves a real estate transaction, a
885-4 real estate transaction involving the property under consideration
885-5 may not take place unless the legislature specifically authorizes
885-6 the transaction or the division makes another recommendation.
885-7 (c) If the board recommends a change in a proposal, the
885-8 decision of the board does not become final and binding until
885-9 approved by the governor.
885-10 Sec. 31.509. ACTION BY GOVERNOR. The governor must approve
885-11 the recommended change in writing not later than the 10th day after
885-12 the date the governor receives the recommended change from the
885-13 board. Failure to approve the recommended change is a rejection of
885-14 the recommended change. The governor shall:
885-15 (1) notify the board, the division, and any affected
885-16 state agency of the governor's approval or rejection; and
885-17 (2) direct the secretary of state to publish notice of
885-18 the governor's action in the Texas Register.
885-19 Sec. 31.510. EXPIRATION OF GOVERNOR'S PROPOSAL OR ORDER
885-20 RECOMMENDING CHANGE IN PROPOSAL. (a) A proposal of the governor
885-21 expires if:
885-22 (1) the board does not by order approve, or recommend
885-23 a change in, the proposal on or before the 30th day after the date
885-24 the proposal is published in the Texas Register; or
885-25 (2) a regular or special session of the legislature
885-26 makes other disposition of the property.
885-27 (b) An order recommending a change in a proposal of the
886-1 governor expires if the governor does not approve the order before
886-2 the 10th day after the date the recommended change is published in
886-3 the Texas Register.
886-4 (c) The time limits provided by this section are tolled
886-5 during a regular or special session of the legislature.
886-6 Sec. 31.511. NEGOTIATION AND CLOSING OF TRANSACTION. The
886-7 division shall negotiate and close a real estate transaction under
886-8 this subchapter involving real property owned or held in trust by
886-9 the state. In performing those duties, the division shall act on
886-10 behalf of the state agency that owns or controls the property.
886-11 Sec. 31.512. GRANT OF INTEREST IN PROPERTY. The grant of an
886-12 interest under this subchapter in real property owned or held in
886-13 trust by the state shall be by sealed bid or public auction
886-14 conducted by the division under Section 31.158. The School Land
886-15 Board has a first option to purchase the property under Section
886-16 31.159 before the bid sale or auction.
886-17 Sec. 31.513. APPROVAL BY GOVERNOR OF NEGOTIATED TRANSACTION.
886-18 The governor must approve a real estate transaction negotiated
886-19 under this subchapter. The governor's failure to approve the
886-20 transaction is a veto of the transaction.
886-21 Sec. 31.514. INSTRUMENT GRANTING INTEREST IN PROPERTY. A
886-22 grant of an interest under this subchapter in property must be made
886-23 by an instrument signed by the commissioner and, if the governor's
886-24 approval is required, by the governor.
886-25 Sec. 31.515. EXPENSES INCURRED BY DIVISION IN CONDUCTING
886-26 TRANSACTION. (a) The expenses incurred by the division in
886-27 conducting a real estate transaction under this subchapter,
887-1 including the payment of reasonable brokerage fees, may be deducted
887-2 from the proceeds of the transaction before the proceeds are
887-3 deposited in the Texas capital trust fund or other appropriate
887-4 depository account.
887-5 (b) The division may adopt rules relating to the payment of
887-6 reasonable brokerage fees.
887-7 (c) Chapter 672, Acts of the 71st Legislature, Regular
887-8 Session, 1989 (Article 5421t, Vernon's Texas Civil Statutes), is
887-9 repealed.
887-10 SECTION 12.02. (a) Title 4, Natural Resources Code, is
887-11 amended to codify the Texas Surface Coal Mining and Reclamation Act
887-12 (Article 5920-11, Vernon's Texas Civil Statutes), by adding Chapter
887-13 134 to read as follows:
887-14 CHAPTER 134. TEXAS SURFACE COAL MINING AND RECLAMATION ACT
887-15 SUBCHAPTER A. GENERAL PROVISIONS
887-16 Sec. 134.001. SHORT TITLE. This chapter may be cited as the
887-17 Texas Surface Coal Mining and Reclamation Act.
887-18 Sec. 134.002. FINDINGS AND DECLARATION OF POLICY. The
887-19 legislature finds and declares that:
887-20 (1) the Congress of the United States has enacted the
887-21 federal Act, which provides for the establishment of a nationwide
887-22 program to regulate surface coal mining and reclamation and which
887-23 vests exclusive authority in the Department of the Interior over
887-24 the regulation of surface coal mining and reclamation in the United
887-25 States;
887-26 (2) Section 101 of the federal Act contains the
887-27 finding by Congress that because of the diversity in terrain,
888-1 climate, biologic, chemical, and other physical conditions in areas
888-2 subject to mining operations, the primary governmental
888-3 responsibility for developing, authorizing, issuing, and enforcing
888-4 regulations for surface mining and reclamation operations subject
888-5 to that Act should rest with the states;
888-6 (3) Section 503 of the federal Act provides that each
888-7 state may assume and retain exclusive jurisdiction over the
888-8 regulation of surface coal mining and reclamation operations in
888-9 that state by obtaining approval of a state program of regulation
888-10 that demonstrates that the state is able to carry out the
888-11 provisions and meet the purposes of that Act;
888-12 (4) Section 503 of the federal Act further provides
888-13 that a state wishing to assume exclusive jurisdiction over the
888-14 regulation of surface coal mining and reclamation operations in the
888-15 state must have a state law that provides for the regulation of
888-16 surface coal mining and reclamation operations in accordance with
888-17 that Act; and
888-18 (5) this state wishes to assume exclusive jurisdiction
888-19 over the regulation of surface coal mining and reclamation
888-20 operations in the state under the federal Act.
888-21 Sec. 134.003. PURPOSES. It is the purpose of this chapter:
888-22 (1) to prevent adverse effects to society and the
888-23 environment from unregulated surface coal mining operations as
888-24 defined by this chapter;
888-25 (2) to assure that the rights of surface landowners
888-26 and other persons with a legal interest in the land or
888-27 appurtenances to the land are protected from unregulated surface
889-1 coal mining operations;
889-2 (3) to assure that surface coal mining operations are
889-3 conducted in a manner that will prevent unreasonable degradation of
889-4 land and water resources;
889-5 (4) to assure that reclamation of all land on which
889-6 surface coal mining takes place occurs as contemporaneously as
889-7 practicable with the surface coal mining, recognizing that
889-8 extracting coal by responsible mining operations is an essential
889-9 and beneficial economic activity;
889-10 (5) to assure that the coal supply essential to this
889-11 state's energy requirements and to its economic and social
889-12 well-being is provided and to strike a balance between
889-13 environmental protection and agricultural productivity and this
889-14 state's need for coal as an essential source of energy; and
889-15 (6) to promote the reclamation of mined areas left
889-16 without adequate reclamation before the enactment of the federal
889-17 Act and that continue, in their unreclaimed condition,
889-18 substantially to degrade the quality of the environment, prevent or
889-19 damage the beneficial use of land or water resources, or endanger
889-20 the health or safety of the public.
889-21 Sec. 134.004. DEFINITIONS. In this chapter:
889-22 (1) "Affected person" means a person having an
889-23 interest that is or may be affected.
889-24 (2) "Alluvial valley floors" means the unconsolidated
889-25 stream-laid deposits holding streams where water availability is
889-26 sufficient for subirrigation or flood irrigation agricultural
889-27 activities. The term does not include upland areas that are
890-1 generally overlaid by a thin veneer of colluvial deposits composed
890-2 chiefly of debris from sheet erosion, deposits by unconcentrated
890-3 runoff or slope wash, together with talus, other mass movement
890-4 accumulation, or windblown deposits.
890-5 (3) "Approximate original contour" means the surface
890-6 configuration achieved by backfilling and grading the mined area so
890-7 that the reclaimed area, including any terracing or access roads,
890-8 closely resembles the general surface configuration of the land
890-9 before mining and blends into and complements the drainage pattern
890-10 of the surrounding terrain, with all highwalls and spoil piles
890-11 eliminated.
890-12 (4) "Coal" includes lignite.
890-13 (5) "Coal exploration operations" means the
890-14 substantial disturbance of the surface or subsurface for or related
890-15 to the purpose of determining the location, quantity, or quality of
890-16 a coal deposit.
890-17 (6) "Commission" means the Railroad Commission of
890-18 Texas.
890-19 (7) "Federal Act" means the Surface Mining Control and
890-20 Reclamation Act of 1977, 30 U.S.C. Section 1201 et seq. (1977).
890-21 (8) "Imminent danger to the health or safety of the
890-22 public" means the existence of a condition or practice or a
890-23 violation of a permit or other requirement of this chapter in a
890-24 surface coal mining and reclamation operation that could reasonably
890-25 be expected to cause substantial physical harm to persons outside
890-26 the permit area before the condition, practice, or violation can be
890-27 abated. A reasonable expectation of death or serious injury before
891-1 abatement exists if a rational person, subjected to the same
891-2 conditions or practices giving rise to the peril, would not expose
891-3 himself to the danger during the time necessary for abatement.
891-4 (9) "Operator" means a person engaged in coal mining
891-5 who removes or intends to remove more than 250 tons of coal from
891-6 the earth by coal mining in one year in one location.
891-7 (10) "Other minerals" means clay, stone, sand, gravel,
891-8 metalliferous and nonmetalliferous ores, and other solid materials
891-9 or substances of commercial value excavated in solid form from
891-10 natural deposits on or in the earth, exclusive of coal.
891-11 (11) "Permit" means a permit to conduct surface coal
891-12 mining and reclamation operations or underground mining operations
891-13 issued by the commission.
891-14 (12) "Permit area" means the area of land indicated on
891-15 the approved map submitted by the operator with the operator's
891-16 application.
891-17 (13) "Prime farmland" means land that the commission
891-18 determines meets the criteria prescribed by the secretary of
891-19 agriculture and published in the Federal Register, including
891-20 moisture availability, temperature regime, chemical balance,
891-21 permeability without regard to annual mean soil temperatures,
891-22 surface layer composition, susceptibility to flooding, and erosion
891-23 characteristics, and that historically has been used for intensive
891-24 agricultural purposes. Land has not historically been used for the
891-25 production of cultivated crops if:
891-26 (A) the land has been used as woodland or
891-27 rangeland; or
892-1 (B) the only cultivation has been disking to:
892-2 (i) establish or help maintain bermuda
892-3 grass used as forage; or
892-4 (ii) plant oats or rye for quick cover, to
892-5 be used as forage and not as a grain crop.
892-6 (14) "Reclamation" means restoration, reclamation,
892-7 abatement, control, or prevention of the adverse effects of past
892-8 coal mining practices.
892-9 (15) "Reclaim" means restore, reclaim, abate, control,
892-10 or prevent the adverse effects of past coal mining practices.
892-11 (16) "Secretary of agriculture" means the secretary of
892-12 the United States Department of Agriculture.
892-13 (17) "Secretary of the interior" means the secretary
892-14 of the United States Department of the Interior.
892-15 (18) "Surface coal mining and reclamation operations"
892-16 means surface coal mining operations and the activities necessary
892-17 and incidental to the reclamation of those operations.
892-18 (19) "Surface coal mining operations" means:
892-19 (A) activities conducted on the surface of land
892-20 in connection with a surface coal mine or subject to the
892-21 requirements of Section 134.015 incidental to an underground coal
892-22 mine, including:
892-23 (i) excavation to obtain coal by such
892-24 common methods as:
892-25 (a) contour, strip, auger,
892-26 mountaintop removal, box cut, open pit, and area mining;
892-27 (b) the use of explosives and
893-1 blasting; and
893-2 (c) in situ distillation or
893-3 retorting, leaching, or other chemical or physical processing; and
893-4 (ii) the cleaning, concentrating, or other
893-5 processing or preparation and the loading of coal at or near the
893-6 mine site;
893-7 (B) the areas in which the activities described
893-8 in Paragraph (A):
893-9 (i) occur; or
893-10 (ii) disturb the natural land surface;
893-11 (C) adjacent land the use of which is incidental
893-12 to the activities described in Paragraph (A);
893-13 (D) land affected by the construction of new
893-14 roads or the improvement or use of existing roads to gain access to
893-15 the site of the activities described in Paragraph (A) and for
893-16 haulage; and
893-17 (E) excavations, workings, impoundments, dams,
893-18 ventilation shafts, entryways, refuse banks, dumps, stockpiles,
893-19 overburden piles, spoil banks, culm banks, tailings, holes or
893-20 depressions, repair areas, storage areas, processing areas,
893-21 shipping areas, and other areas on which are sited structures,
893-22 facilities, or other property or materials on the surface,
893-23 resulting from or incidental to the activities described in
893-24 Paragraph (A).
893-25 Sec. 134.005. EXEMPTIONS. (a) This chapter does not apply
893-26 to the extraction of coal:
893-27 (1) by a landowner for the landowner's own
894-1 noncommercial use from land owned or leased by the landowner;
894-2 (2) for commercial purposes if the surface mining
894-3 operation affects two acres or less;
894-4 (3) incidental to federal, state, or local
894-5 government-financed highway or other construction under commission
894-6 rules; or
894-7 (4) incidental to the extraction of other minerals if
894-8 the coal does not exceed 16 2/3 percent of the total tonnage of
894-9 coal and other minerals removed annually for commercial use or sale
894-10 or coal explorations subject to this chapter.
894-11 (b) Subsection (a)(1) does not exempt the noncommercial
894-12 production of coal by in situ distillation or retorting, leaching,
894-13 or another chemical or physical process or preparation.
894-14 (c) This chapter does not apply to surface coal mining and
894-15 reclamation operations before August 3, 1977.
894-16 Sec. 134.006. WATER RIGHTS. This chapter does not affect
894-17 the right of a person under other law to enforce or protect the
894-18 person's interest in water resources affected by a surface coal
894-19 mining operation.
894-20 Sec. 134.007. CONFLICT OF INTEREST; OFFENSE. (a) An
894-21 employee of the commission commits an offense if the employee
894-22 knowingly:
894-23 (1) performs a function or duty under this chapter;
894-24 and
894-25 (2) has a direct or indirect financial interest in an
894-26 underground or surface coal mining operation.
894-27 (b) An offense under this section is punishable by:
895-1 (1) a fine of not more than $2,500;
895-2 (2) imprisonment for not more than one year; or
895-3 (3) both the fine and the imprisonment.
895-4 (Sections 134.008-134.010 reserved for expansion
895-5 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION
895-6 Sec. 134.011. GENERAL AUTHORITY OF COMMISSION. The
895-7 commission may:
895-8 (1) adopt and enforce rules pertaining to surface coal
895-9 mining and reclamation operations consistent with the general
895-10 intent and purposes of this chapter;
895-11 (2) issue permits under this chapter;
895-12 (3) conduct hearings under this chapter;
895-13 (4) issue orders requiring an operator to take actions
895-14 necessary to comply with this chapter or rules adopted under this
895-15 chapter;
895-16 (5) issue a final order revoking the permit of an
895-17 operator who has not complied with a commission order to take
895-18 action required by this chapter or rules adopted under this
895-19 chapter;
895-20 (6) order the immediate cessation of all or part of an
895-21 ongoing surface coal mining operation if the commission finds that
895-22 the operation or part of the operation creates an imminent danger
895-23 to the health or safety of the public or is causing or can
895-24 reasonably be expected to cause significant imminent harm to land,
895-25 air, or water resources, and take other action or make changes in a
895-26 permit that are reasonably necessary to avoid or alleviate those
895-27 conditions;
896-1 (7) hire employees, adopt standards for employment,
896-2 and hire or authorize the hiring of outside contractors to assist
896-3 in carrying out this chapter;
896-4 (8) enter and inspect, in person or by its agents, a
896-5 surface mining operation that is subject to this chapter to assure
896-6 compliance with this chapter;
896-7 (9) conduct, encourage, request, and participate in
896-8 studies, surveys, investigations, research, experiments, training,
896-9 and demonstrations by contract, grant, or otherwise;
896-10 (10) prepare and require permit holders to prepare
896-11 reports;
896-12 (11) accept, receive, and administer grants, gifts,
896-13 loans, or other money made available from any source for the
896-14 purposes of this chapter;
896-15 (12) take the steps necessary for this state to
896-16 participate to the fullest extent practicable in the abandoned land
896-17 program provided by Title IV of the federal Act;
896-18 (13) contract with state boards and agencies that have
896-19 pertinent expertise to obtain the professional and technical
896-20 services necessary to carry out this chapter;
896-21 (14) establish a process, to avoid duplication, for
896-22 coordinating the review and issuance of permits for surface coal
896-23 mining and reclamation operations with any other federal or state
896-24 permit process applicable to the proposed operations;
896-25 (15) enter into cooperative agreements with the
896-26 secretary of the interior for the regulation of surface coal mining
896-27 operations on federal land in accordance with the federal Act; and
897-1 (16) perform any other duty or act required by or
897-2 provided for in this chapter.
897-3 Sec. 134.012. JURISDICTION OF COMMISSION OVER SURFACE COAL,
897-4 IRON ORE, AND IRON ORE GRAVEL MINING AND RECLAMATION OPERATIONS.
897-5 (a) The commission has exclusive jurisdiction over:
897-6 (1) surface coal mining and reclamation operations in
897-7 this state; and
897-8 (2) iron ore and iron ore gravel mining and
897-9 reclamation operations in this state.
897-10 (b) This chapter governs iron ore and iron ore gravel mining
897-11 and reclamation operations to the extent it can be made applicable.
897-12 (c) The jurisdiction conferred by Subsection (a)(2) does not
897-13 extend to:
897-14 (1) a mining or reclamation activity in progress on or
897-15 before September 1, 1985; or
897-16 (2) a mining operation or reclamation activity that is
897-17 conducted solely on real property owned in fee simple by the person
897-18 authorizing the operation or reclamation activity and that is
897-19 confined to a single, contiguous tract of land, if:
897-20 (A) the activity is conducted in an area not
897-21 larger than 20 acres;
897-22 (B) the depth of the mining operation is
897-23 restricted to 30 inches or less; and
897-24 (C) the fee simple owner receives surface
897-25 damages.
897-26 (d) This chapter does not authorize the commission to
897-27 adjudicate property title or property rights disputes.
898-1 Sec. 134.013. RULEMAKING AND PERMITTING. (a) The
898-2 commission shall adopt rules pertaining to surface coal mining and
898-3 reclamation operations required by this chapter.
898-4 (b) A rule or an amended rule adopted or a permit issued by
898-5 the commission may have different terms for particular conditions,
898-6 types of coal being extracted, particular areas of the state, or
898-7 other relevant or necessary conditions if the action taken is
898-8 consistent with the general intent and purposes of this chapter.
898-9 Sec. 134.014. COAL EXPLORATION OPERATIONS. (a) A person
898-10 who conducts coal exploration operations that substantially disturb
898-11 the natural land surface shall comply with commission rules adopted
898-12 to govern those operations. The rules shall require that before
898-13 conducting the exploration, a person file with the commission
898-14 notice of intent to explore and include with the notice:
898-15 (1) a description of the exploration area and the
898-16 period of proposed exploration; and
898-17 (2) provisions for reclaiming, in accordance with the
898-18 performance standards in Sections 134.091-134.109, the land
898-19 disturbed in exploration, including provisions for excavations,
898-20 roads, and drill holes and for removing necessary facilities and
898-21 equipment.
898-22 (b) An operator may not remove more than 250 tons of coal
898-23 under an exploration permit without the specific written approval
898-24 of the commission.
898-25 Sec. 134.015. SURFACE EFFECTS OF UNDERGROUND MINING. (a)
898-26 The commission shall adopt rules applicable to the surface effects
898-27 of underground mining that are consistent with the federal Act and
899-1 regulations adopted under that Act by the secretary of the
899-2 interior.
899-3 (b) This chapter applies to the regulation of the surface
899-4 effects of underground mining operations as established by Section
899-5 516 of the federal Act.
899-6 Sec. 134.016. DEVELOPMENT OF PROCESS FOR DESIGNATING AREAS
899-7 UNSUITABLE FOR SURFACE COAL MINING. The commission shall develop a
899-8 process for designating areas unsuitable for surface coal mining.
899-9 The process shall include:
899-10 (1) reviewing surface coal mining land;
899-11 (2) developing a data base and an inventory system
899-12 that will permit proper evaluation of the capacity of different
899-13 land areas of the state to support and permit reclamation of
899-14 surface coal mining operations;
899-15 (3) developing, by rule, a method or methods for
899-16 implementing land use planning decisions about surface coal mining
899-17 operations; and
899-18 (4) developing, by rule, proper notice, provisions,
899-19 and opportunities for public participation, including a public
899-20 hearing, before the commission makes a designation or redesignation
899-21 under Section 134.020.
899-22 Sec. 134.017. PETITION FOR DESIGNATION. (a) An affected
899-23 person is entitled:
899-24 (1) before an application is filed under Section
899-25 134.052, to petition the commission to designate an area unsuitable
899-26 for surface coal mining operations; or
899-27 (2) to petition the commission to terminate a
900-1 designation.
900-2 (b) The petition shall contain:
900-3 (1) allegations of facts; and
900-4 (2) supporting evidence that would tend to establish
900-5 the allegations.
900-6 Sec. 134.018. HEARING ON DESIGNATION. (a) Not later than
900-7 10 months after the date the commission receives the petition, the
900-8 commission shall hold a public hearing under Chapter 2001,
900-9 Government Code, in the locality of the affected area.
900-10 (b) After a person has filed a petition under Section
900-11 134.017 and before the hearing required by Subsection (a), any
900-12 person may intervene by filing allegations of facts with supporting
900-13 evidence that would tend to establish the allegations.
900-14 (c) A hearing is not required if all petitioners stipulate
900-15 agreement before the requested hearing and withdraw their requests.
900-16 Sec. 134.019. COMMISSION STATEMENT. Before designating a
900-17 land area unsuitable for surface coal mining operations, the
900-18 commission shall prepare a detailed statement on:
900-19 (1) the potential coal resources of the area;
900-20 (2) the demand for coal resources; and
900-21 (3) the impact of the designation on the environment,
900-22 the economy, and the supply of coal.
900-23 Sec. 134.020. DESIGNATION OF AREA AS UNSUITABLE FOR SURFACE
900-24 COAL MINING. (a) On petition under Section 134.017, the
900-25 commission shall designate an area unsuitable for all or certain
900-26 types of surface coal mining operations if the commission
900-27 determines that reclamation under this chapter is not
901-1 technologically and economically feasible.
901-2 (b) On petition under Section 134.017, the commission may
901-3 designate a surface area unsuitable for certain types of surface
901-4 coal mining operations if those operations will:
901-5 (1) be incompatible with existing state or local land
901-6 use plans or programs;
901-7 (2) affect fragile or historic land in which the
901-8 operations could result in significant damage to important
901-9 historic, cultural, scientific, and aesthetic values and natural
901-10 systems;
901-11 (3) affect renewable resource lands, including
901-12 aquifers and aquifer recharge areas, in which the operations could
901-13 result in a substantial loss or reduction of long-range
901-14 productivity of water supply or of food or fiber products; or
901-15 (4) affect natural hazard land, including areas
901-16 subject to frequent flooding and areas of unstable geology, in
901-17 which the operations could substantially endanger life and
901-18 property.
901-19 (c) Sections 134.016-134.019 and this section do not apply
901-20 to land:
901-21 (1) for which substantial legal and financial
901-22 commitments in a surface coal mining operation or proposed
901-23 operation were in existence before January 4, 1977;
901-24 (2) on which surface coal mining operations were being
901-25 conducted on August 3, 1977; or
901-26 (3) on which surface coal mining operations are being
901-27 conducted under a permit issued under this chapter.
902-1 Sec. 134.021. INTEGRATION WITH LAND USE PLANNING AND
902-2 REGULATION PROCESSES. Determinations of the unsuitability of land
902-3 for surface coal mining under Sections 134.016-134.020 shall be
902-4 integrated as closely as possible with present and future land use
902-5 planning and regulation processes at the federal, state, and local
902-6 levels.
902-7 Sec. 134.022. PROHIBITION ON SURFACE COAL MINING IN CERTAIN
902-8 AREAS. (a) Surface coal mining operations may not be permitted:
902-9 (1) that will adversely affect a publicly owned park
902-10 or place included in the National Register of Historic Sites unless
902-11 approved jointly by the commission and the federal, state, or local
902-12 agency with jurisdiction over the park or historic site;
902-13 (2) within 100 feet of the outside right-of-way line
902-14 of a public road, except:
902-15 (A) where a mine access road or haulage road
902-16 joins the right-of-way line; or
902-17 (B) as provided by Subsection (b);
902-18 (3) within 300 feet of an occupied dwelling, unless
902-19 the owner of the dwelling waives the prohibition;
902-20 (4) within 300 feet of a public, school, church,
902-21 community, or institutional building;
902-22 (5) within 300 feet of a public park; or
902-23 (6) within 100 feet of a cemetery.
902-24 (b) The commission may permit a public road to be relocated
902-25 or the area affected by surface coal mining operations to lie
902-26 within 100 feet of the outside right-of-way line of the public road
902-27 if, after public notice and opportunity for public hearing in the
903-1 locality, a written finding is made that the interests of the
903-2 public and the landowners affected by the relocation will be
903-3 protected.
903-4 (c) This section is subject to rights existing on May 9,
903-5 1979, and does not affect surface coal mining operations that
903-6 existed on August 3, 1977.
903-7 Sec. 134.023. COOPERATIVE AGREEMENTS WITH FEDERAL
903-8 GOVERNMENT. The commission may enter into cooperative agreements
903-9 with the federal government under the federal Act.
903-10 Sec. 134.024. EXPERIMENTAL PRACTICES. (a) The commission,
903-11 with approval by the secretary of agriculture, may authorize
903-12 experimental departures, in individual cases, from the
903-13 environmental protection performance standards of this chapter to:
903-14 (1) encourage advances in mining and reclamation
903-15 practices; and
903-16 (2) allow postmining land use for industrial,
903-17 commercial, residential, or public use, including recreational
903-18 facilities.
903-19 (b) The commission may authorize departures if:
903-20 (1) the experimental practices are potentially at
903-21 least as environmentally protective, during and after mining
903-22 operations, as those required by this chapter;
903-23 (2) the mining operations approved for particular
903-24 land-use or other purposes are not larger or more numerous than
903-25 necessary to determine the effectiveness and economic feasibility
903-26 of the experimental practices; and
903-27 (3) the experimental practices do not reduce the
904-1 protection afforded public health and safety below that provided by
904-2 adopted standards.
904-3 Sec. 134.025. CERTIFICATION OF BLASTERS. The commission
904-4 shall adopt rules requiring the training, examination, and
904-5 certification of persons engaging in or directly responsible for
904-6 blasting or the use of explosives in surface coal mining
904-7 operations.
904-8 Sec. 134.026. MONITORING, REPORTING, AND INSPECTIONS. (a)
904-9 The commission shall:
904-10 (1) require monitoring and reporting;
904-11 (2) inspect surface coal mining and reclamation
904-12 operations;
904-13 (3) require the maintenance of signs and markers; and
904-14 (4) take other actions necessary to:
904-15 (A) administer, enforce, or evaluate the
904-16 administration of this chapter; or
904-17 (B) meet the state program requirements of the
904-18 federal Act.
904-19 (b) For purposes of this section, the commission or its
904-20 authorized representative may:
904-21 (1) without advance notice and on presentation of
904-22 appropriate credentials, enter:
904-23 (A) a surface coal mining and reclamation
904-24 operation; or
904-25 (B) premises on which records required to be
904-26 maintained are located; and
904-27 (2) at reasonable times and without delay, have access
905-1 to and copy records required under this chapter or rules adopted
905-2 under this chapter or inspect any monitoring equipment or method of
905-3 operation required under this chapter or rules adopted under this
905-4 chapter.
905-5 Sec. 134.027. MONITORING OF OPERATIONS THAT AFFECT AQUIFERS.
905-6 For surface coal mining and reclamation operations that remove or
905-7 disturb strata that serve as aquifers that significantly ensure the
905-8 hydrologic balance of water use on or off the mining site, the
905-9 commission shall specify:
905-10 (1) monitoring sites to record:
905-11 (A) the quantity and quality of surface drainage
905-12 above and below the mine site and in the potential zone of
905-13 influence;
905-14 (B) the level and amount and to take samples of
905-15 groundwater and aquifers potentially affected by the mining and
905-16 directly below the lowermost, deepest coal seam to be mined; and
905-17 (C) precipitation; and
905-18 (2) records of well logs and borehole data to be
905-19 maintained.
905-20 Sec. 134.028. INSPECTION PROCEDURE. Inspections by the
905-21 commission shall:
905-22 (1) occur irregularly, averaging not fewer than one
905-23 partial inspection each month and one complete inspection each
905-24 calendar quarter for the surface coal mining and reclamation
905-25 operation covered by each permit;
905-26 (2) occur without prior notice to the permit holder or
905-27 the permit holder's agents or employees except for necessary
906-1 on-site meetings with the permit holder; and
906-2 (3) include filing inspection reports adequate to
906-3 enforce the requirements of, and to carry out, this chapter.
906-4 Sec. 134.029. PROCEDURE ON DETECTION OF VIOLATION. On
906-5 detection of a violation of this chapter, an inspector, in writing,
906-6 shall:
906-7 (1) promptly inform the operator; and
906-8 (2) report the violation to the commission.
906-9 Sec. 134.030. RULES REGARDING MONITORING, REPORTING, AND
906-10 INSPECTIONS. The commission shall adopt rules for:
906-11 (1) informing an operator of a violation detected by
906-12 an inspector; and
906-13 (2) making public all inspection and monitoring
906-14 reports and other records and reports required to be kept under
906-15 this chapter and rules adopted under this chapter and not
906-16 confidential under Section 134.031.
906-17 Sec. 134.031. CONFIDENTIALITY. (a) Information pertaining
906-18 to coal seams, test borings, core samplings, or soil samples
906-19 required by Section 134.052 shall be made available to an affected
906-20 person. However, information that pertains only to the analysis of
906-21 the chemical and physical properties of the coal, except
906-22 information regarding mineral or chemical content that is
906-23 potentially toxic in the environment, is confidential and is not a
906-24 public record.
906-25 (b) Information submitted to the commission concerning
906-26 mineral deposits, test borings, core samplings, or trade secrets or
906-27 commercial or financial information relating to the competitive
907-1 rights of the applicant and specifically identified as confidential
907-2 by the applicant, if not essential for public review as determined
907-3 by the commission, may not be disclosed by a member, agent, or
907-4 employee of the commission.
907-5 (c) Information submitted to the commission under Section
907-6 134.041 concerning mineral deposits, test borings, core samplings,
907-7 or trade secrets or commercial or financial information relating to
907-8 the competitive rights of the applicant and specifically identified
907-9 as confidential by the applicant, if not essential for public
907-10 review as determined by the commission, may not be disclosed by a
907-11 member, agent, or employee of the commission. However, information
907-12 required by another section that must, by the terms of the other
907-13 section, be on public file or available to an affected person and
907-14 information about the chemical and physical properties of the coal
907-15 that relate to mineral or elemental contents that are potentially
907-16 toxic in the environment is not confidential.
907-17 (d) Information submitted to the commission under Section
907-18 134.014 as confidential concerning trade secrets or privileged
907-19 commercial or financial information that relates to the competitive
907-20 rights of the person intending to explore the described area is not
907-21 available for public examination.
907-22 Sec. 134.032. DETERMINATION REGARDING PRIME FARMLAND. The
907-23 commission may determine that land is not prime farmland because of
907-24 its soil type or slope.
907-25 (Sections 134.033-134.040 reserved for expansion
907-26 SUBCHAPTER C. PLANS
907-27 Sec. 134.041. RECLAMATION PLAN. A reclamation plan
908-1 submitted as part of a permit application shall include, in
908-2 sufficient detail to demonstrate that reclamation required by this
908-3 chapter can be accomplished, a statement that:
908-4 (1) identifies land subject to the surface coal mining
908-5 operation over the estimated life of the operation and the size,
908-6 sequence, and timing of any subareas for which individual permits
908-7 for surface coal mining will likely be sought;
908-8 (2) describes the condition of the land to be covered
908-9 by the permit before any mining, including:
908-10 (A) the uses existing at the time of the
908-11 application and, if the land has a history of mining, the uses that
908-12 preceded any mining;
908-13 (B) the capability of the land before any mining
908-14 to support a variety of uses, considering soil and foundation
908-15 characteristics, topography, vegetative cover, and, if applicable,
908-16 a soil survey prepared under Section 134.052(a)(16);
908-17 (C) the productivity of the land before mining,
908-18 including appropriate classification as prime farmland; and
908-19 (D) if the land is classified as prime farmland,
908-20 the average yield of food, fiber, forage, or wood products obtained
908-21 from the land under high levels of management;
908-22 (3) describes the proposed use of the land after
908-23 reclamation, including:
908-24 (A) a discussion of the utility and capacity of
908-25 the reclaimed land to support a variety of alternative uses and the
908-26 relationship of those uses to existing land uses; and
908-27 (B) the comments of state and local governments
909-1 or agencies of state or local government that must approve or
909-2 authorize the proposed use of the land after reclamation;
909-3 (4) describes in detail how the proposed postmining
909-4 land use is to be achieved and the necessary support activities
909-5 that may be needed to achieve that use;
909-6 (5) specifies the engineering techniques proposed to
909-7 be used in mining and reclamation and describes the major
909-8 equipment;
909-9 (6) includes a plan for the control of surface water
909-10 drainage and water accumulation;
909-11 (7) includes, if appropriate, a plan for backfilling,
909-12 soil stabilization and compacting, grading, and appropriate
909-13 revegetation;
909-14 (8) includes a plan for soil reconstruction,
909-15 replacement, and stabilization under the performance standards in
909-16 Section 134.092(a)(7) for land identified as prime farmland under
909-17 Section 134.052(a)(16);
909-18 (9) estimates the cost for each acre of the
909-19 reclamation, including a statement as to how the permit holder
909-20 plans to comply with each requirement in Sections 134.091-134.109;
909-21 (10) describes the consideration given to maximizing
909-22 the use and conservation of the solid fuel resource being recovered
909-23 so that affecting the land again in the future can be minimized;
909-24 (11) provides an estimated timetable for accomplishing
909-25 each major step in the reclamation plan;
909-26 (12) describes the consideration given to making the
909-27 surface mining and reclamation operations consistent with surface
910-1 owner plans and applicable land use plans and programs;
910-2 (13) identifies the steps to be taken to comply with
910-3 applicable air and water quality laws, rules, and regulations and
910-4 any applicable health and safety standards;
910-5 (14) describes the consideration given to developing
910-6 the reclamation plan in a manner consistent with local physical,
910-7 environmental, and climatological conditions;
910-8 (15) contains the results of test borings the
910-9 applicant has made at the permit area or other equivalent
910-10 information in a form satisfactory to the commission, including:
910-11 (A) the location of subsurface water; and
910-12 (B) an analysis of the chemical properties of
910-13 the coal and overburden that can be expected to adversely affect
910-14 the environment;
910-15 (16) identifies:
910-16 (A) any land contiguous to the area to be
910-17 covered by the permit, or any interest or option on an interest in
910-18 the contiguous land, held by the applicant; and
910-19 (B) any pending bid by the applicant on an
910-20 interest in the contiguous land; and
910-21 (17) describes in detail the measures to be taken
910-22 during the mining and reclamation process to assure the protection
910-23 of:
910-24 (A) the quality of surface-water systems and
910-25 groundwater systems, both on and off the mine site, from adverse
910-26 effects of the mining and reclamation process;
910-27 (B) the rights of present users to surface-water
911-1 systems and groundwater systems, both on and off the mine site; and
911-2 (C) the quantity of surface-water systems and
911-3 groundwater systems, both on and off the mine site, from adverse
911-4 effects of the mining and reclamation process, or to provide
911-5 alternative sources of water where the protection of quantity
911-6 cannot be assured.
911-7 Sec. 134.042. BLASTING PLAN. An applicant for a surface
911-8 coal mining and reclamation permit shall submit to the commission
911-9 as part of its application a blasting plan that outlines the
911-10 procedures and standards by which the operator will comply with
911-11 Section 134.092(a)(15).
911-12 (Sections 134.043-134.050 reserved for expansion
911-13 SUBCHAPTER D. SURFACE COAL MINING PERMITS
911-14 Sec. 134.051. PERMIT REQUIRED FOR OPERATION. A person may
911-15 not conduct a surface coal mining operation in this state without
911-16 first obtaining a permit for that operation from the commission
911-17 under this chapter.
911-18 Sec. 134.052. CONTENTS OF PERMIT APPLICATION. (a) A permit
911-19 application must be submitted in a manner satisfactory to the
911-20 commission and must contain:
911-21 (1) the name and address of:
911-22 (A) the applicant;
911-23 (B) each owner of record of the property to be
911-24 mined;
911-25 (C) each holder of record of any leasehold
911-26 interest in the property;
911-27 (D) the purchaser of record of the property
912-1 under a real estate contract;
912-2 (E) the operator if the operator is not the
912-3 applicant;
912-4 (F) the principals, officers, and resident agent
912-5 of a person described by Paragraph (A), (B), (C), (D), or (E) if
912-6 the person is a business entity other than a sole proprietor; and
912-7 (G) the owners of record of the property
912-8 adjoining the permit area;
912-9 (2) a description of any:
912-10 (A) current or previous surface coal mining
912-11 permits held by the applicant; or
912-12 (B) other pending application by the applicant;
912-13 (3) information about ownership and management of the
912-14 applicant or operator required by commission rule;
912-15 (4) a statement of whether the applicant or a
912-16 subsidiary, affiliate, or other person controlled by or under
912-17 common control with the applicant:
912-18 (A) has held a federal or state mining permit
912-19 that has been suspended or revoked in the five years preceding the
912-20 date the application is submitted and, if so, a brief explanation
912-21 of the facts involved; or
912-22 (B) has forfeited a mining bond or similar
912-23 security deposited in lieu of bond and, if so, a brief explanation
912-24 of the facts involved;
912-25 (5) a copy of the notice required by Section 134.059;
912-26 (6) a description of:
912-27 (A) the type and method of the existing or
913-1 proposed coal mining operation;
913-2 (B) the engineering techniques proposed or in
913-3 use; and
913-4 (C) the equipment in use or proposed to be used;
913-5 (7) the anticipated or actual starting and termination
913-6 dates of each phase of the mining operation and number of acres of
913-7 land to be affected;
913-8 (8) an accurate map or plan, to an appropriate scale,
913-9 clearly showing:
913-10 (A) the land to be affected as of the date of
913-11 the application; and
913-12 (B) the area of land in the permit area on which
913-13 the applicant has the right to enter and begin surface mining
913-14 operations;
913-15 (9) the documents on which the applicant bases the
913-16 applicant's right to enter and begin surface mining operations on
913-17 the affected area;
913-18 (10) a statement of whether the applicant's right to
913-19 enter and begin surface mining operations on the affected area is
913-20 the subject of pending court litigation;
913-21 (11) the name of the watershed and location of the
913-22 surface streams or tributaries into which surface and pit drainage
913-23 will be discharged;
913-24 (12) a determination of the probable consequences of
913-25 the mining and reclamation operation, if any, both on and off the
913-26 mine site, with respect to the hydrologic regime and the quantity
913-27 and quality of water in surface-water systems and groundwater
914-1 systems, including the dissolved and suspended solids under
914-2 seasonal flow conditions;
914-3 (13) sufficient data on the mine site and surrounding
914-4 areas for the commission to assess the probable cumulative impacts
914-5 of all anticipated mining in the area on the hydrology of the area,
914-6 particularly on water availability;
914-7 (14) when requested by the commission, the published
914-8 climatological factors peculiar to the locality of the land to be
914-9 affected, including:
914-10 (A) the average seasonal precipitation;
914-11 (B) the average direction and velocity of
914-12 prevailing winds; and
914-13 (C) the seasonal temperature ranges;
914-14 (15) a statement of the result of test borings or core
914-15 samplings from the permit area, including:
914-16 (A) logs of the drill holes;
914-17 (B) the thickness of the coal seam found;
914-18 (C) an analysis of the chemical properties of
914-19 the coal;
914-20 (D) the sulfur content of any coal seam;
914-21 (E) a chemical analysis of any potentially acid-
914-22 or toxic-forming sections of the overburden; and
914-23 (F) a chemical analysis of the stratum lying
914-24 immediately underneath the coal to be mined;
914-25 (16) for land in the permit application that a
914-26 reconnaissance inspection suggests may be prime farmland, a soil
914-27 survey made or obtained according to standards established by the
915-1 secretary of agriculture to confirm the exact location of the land;
915-2 (17) a reclamation plan that complies with this
915-3 chapter;
915-4 (18) if applicable, a schedule listing any notices of
915-5 violations as provided by Section 134.069;
915-6 (19) a certificate satisfactory to the commission that
915-7 the applicant has a public liability insurance policy as described
915-8 by Section 134.053 in effect for the surface coal mining and
915-9 reclamation operation for which the permit is sought, or evidence
915-10 satisfactory to the commission that the applicant should be allowed
915-11 to be self-insured; and
915-12 (20) other data and maps the commission requires by
915-13 rule.
915-14 (b) A determination under Subsection (a)(12) is not required
915-15 until hydrologic information on the general area before mining is
915-16 made available from an appropriate state agency, but the permit may
915-17 not be approved until the information is available and has been
915-18 incorporated into the application.
915-19 (c) The commission may waive Subsection (a)(15) for a
915-20 particular application if the commission determines in writing that
915-21 the information is unnecessary.
915-22 Sec. 134.053. LIABILITY INSURANCE POLICY. (a) The public
915-23 liability insurance policy required by Section 134.052(a)(19) shall
915-24 provide for personal injury and property damage protection in an
915-25 amount adequate to compensate a person who is:
915-26 (1) damaged as a result of the surface coal mining and
915-27 reclamation operations, including the use of explosives; and
916-1 (2) entitled to compensation under state law.
916-2 (b) The policy shall be maintained in effect during the term
916-3 of the permit and any renewal for the entire period in which
916-4 reclamation operations are conducted.
916-5 Sec. 134.054. MARKING OF SITE. The permit area shall be
916-6 readily identifiable by appropriate markers on the site.
916-7 Sec. 134.055. APPLICATION FEES. (a) An application for a
916-8 surface mining permit or for renewal or revision of a surface
916-9 mining permit must be accompanied by an application fee determined
916-10 by the commission in accordance with a published fee schedule. The
916-11 commission shall base the application fee as nearly as possible on
916-12 the actual or anticipated cost of reviewing the application.
916-13 (b) The application fee may not be less than:
916-14 (1) $5,000 for an initial surface mining permit;
916-15 (2) $3,000 for renewal of a surface mining permit; or
916-16 (3) $500 for revision of a surface mining permit.
916-17 (c) The initial application fee and the application fee for
916-18 renewal of a surface mining permit may be paid in equal annual
916-19 installments during the term of the permit.
916-20 Sec. 134.056. ANNUAL FEE. In addition to the application
916-21 fees required by Section 134.055, each permit holder shall pay to
916-22 the commission an annual fee, in an amount determined by the
916-23 commission, for each acre of land in the permit area on which the
916-24 permit holder actually conducted operations for removing coal
916-25 during the year. The fee is due not later than March 15 of the
916-26 year following the year of the removal operations. The fee may not
916-27 be less than $120 an acre.
917-1 Sec. 134.057. SMALL MINE EXEMPTION. The commission shall
917-2 designate a qualified public or private laboratory to prepare the
917-3 determination of probable hydrologic consequences and statement of
917-4 the results of test borings or core samplings required by Section
917-5 134.052 and shall pay the costs of preparing the determination and
917-6 statement if:
917-7 (1) a surface coal mining operator makes a request in
917-8 writing; and
917-9 (2) the commission finds that the probable total
917-10 annual production at all locations of the surface coal mining
917-11 operator will not exceed 100,000 tons.
917-12 Sec. 134.058. PUBLIC INSPECTION OF APPLICATION. (a) An
917-13 applicant for a surface coal mining and reclamation permit shall
917-14 file a copy of the application for public inspection with the
917-15 county clerk of the county in which the mining is proposed to
917-16 occur. This subsection does not apply to information in the
917-17 application pertaining to the coal seam itself.
917-18 (b) Copies of any records, reports, inspection materials, or
917-19 information obtained under this chapter by the commission shall be
917-20 made immediately available to the public at central and sufficient
917-21 locations in the county, multicounty, and state area of mining so
917-22 that they are conveniently available to residents in the areas of
917-23 mining. This subsection does not apply to records, reports,
917-24 inspection materials, or information that is confidential under
917-25 Section 134.031.
917-26 Sec. 134.059. NOTICE BY APPLICANT. At the time the
917-27 applicant submits an application for a surface coal mining and
918-1 reclamation permit or renewal of an existing permit, the applicant
918-2 shall publish an advertisement in a newspaper of general
918-3 circulation in the locality of the proposed site at least once a
918-4 week for four consecutive weeks that:
918-5 (1) shows the ownership and describes the location and
918-6 boundaries of the proposed site sufficiently so that the proposed
918-7 operation can be readily located; and
918-8 (2) states that the application is available for
918-9 public inspection at the county courthouse of the county in which
918-10 the property lies.
918-11 Sec. 134.060. NOTIFICATION BY COMMISSION. (a) The
918-12 commission shall notify local governmental bodies, planning
918-13 agencies, and sewage and water treatment authorities in the
918-14 locality of a proposed surface coal mining operation that the
918-15 operator intends to conduct a surface mining operation.
918-16 (b) The notice shall indicate the application number and the
918-17 county courthouse in which a copy of the proposed surface coal
918-18 mining and reclamation plan can be inspected.
918-19 Sec. 134.061. COMMENTS. (a) During a period established by
918-20 the commission, a local body, agency, authority, or company
918-21 described by Section 134.060 may submit written comments on the
918-22 effect of the proposed operation on the environment in the entity's
918-23 area of responsibility.
918-24 (b) The commission shall immediately send the comments to
918-25 the applicant.
918-26 (c) The comments shall be made available to the public at
918-27 the same location as the mining application.
919-1 Sec. 134.062. WRITTEN OBJECTIONS. (a) Not later than the
919-2 30th day after the date of the last publication of notice under
919-3 Section 134.059, an affected person or a federal, state, or local
919-4 governmental agency or authority is entitled to file with the
919-5 commission written objections to a proposed initial or revised
919-6 application for a surface coal mining and reclamation permit.
919-7 (b) The commission shall immediately send the objections to
919-8 the applicant.
919-9 (c) The objections shall be made available to the public.
919-10 Sec. 134.063. REQUEST FOR PUBLIC HEARING; NOTICE. (a) Not
919-11 later than the 45th day after the date of the last publication of
919-12 notice under Section 134.059, the applicant or an affected person
919-13 may request a hearing on the application. The hearing shall be
919-14 held not later than the 30th day after the date the commission
919-15 receives the request.
919-16 (b) The commission shall publish notice of the date, time,
919-17 and location of the public hearing in a local newspaper of general
919-18 circulation in the locality of the proposed surface coal mining
919-19 operations at least once a week for three consecutive weeks before
919-20 the scheduled hearing date.
919-21 Sec. 134.064. NOTICE OF APPROVAL OR DENIAL. The commission
919-22 shall notify the applicant and any objector that the permit
919-23 application has been approved or denied:
919-24 (1) within the time provided by Chapter 2001,
919-25 Government Code, if a public hearing is held under Section 134.063;
919-26 or
919-27 (2) not later than the 45th day after the date of the
920-1 last publication of notice of application if a public hearing is
920-2 not held.
920-3 Sec. 134.065. PROCEDURE. Chapter 2001, Government Code,
920-4 applies to a permit application under this chapter. Notice of
920-5 hearing and appeal is governed by that chapter, except as provided
920-6 by Section 134.063.
920-7 Sec. 134.066. PERMIT APPROVAL OR DENIAL. (a) On the basis
920-8 of a complete application for a surface coal mining and reclamation
920-9 permit or a revision or renewal of a permit, as required by this
920-10 chapter, the commission shall grant, require modification of, or
920-11 deny a permit application.
920-12 (b) The commission shall notify the applicant of its
920-13 decision in writing within a reasonable time as set by the
920-14 commission.
920-15 (c) An applicant for a permit or a permit revision has the
920-16 burden of establishing that the application complies with this
920-17 chapter.
920-18 (d) Not later than the 10th day after the date the
920-19 commission grants a permit, the commission shall notify the county
920-20 judge in the county in which the land to be affected is located
920-21 that a permit has been issued and shall describe the location of
920-22 the land.
920-23 Sec. 134.067. WRITTEN FINDINGS REQUIRED. (a) The
920-24 commission may not approve an application for a permit or a permit
920-25 revision unless it finds, in writing, using the information in the
920-26 application or information otherwise available that will be
920-27 documented in the approval and made available to the applicant,
921-1 that:
921-2 (1) the application is accurate and complete and
921-3 complies with this chapter;
921-4 (2) the applicant has demonstrated that the
921-5 reclamation required by this chapter can be accomplished under the
921-6 reclamation plan contained in the application;
921-7 (3) the commission has assessed the probable
921-8 cumulative impact that all anticipated surface coal mining in the
921-9 area will have on the hydrologic balance, and the proposed
921-10 operation has been designed to prevent material damage to the
921-11 hydrologic balance outside the permit area;
921-12 (4) the area proposed to be mined is not included in
921-13 an area:
921-14 (A) designated unsuitable for surface coal
921-15 mining under this chapter; or
921-16 (B) under study for this designation in an
921-17 administrative proceeding begun under this chapter;
921-18 (5) the proposed surface coal mining operation, if
921-19 located west of the 100th meridian west longitude, will not:
921-20 (A) interrupt, discontinue, or preclude farming
921-21 on alluvial valley floors that are irrigated or naturally
921-22 subirrigated, excluding:
921-23 (i) undeveloped rangeland that is not
921-24 significant to farming on the alluvial valley floors; and
921-25 (ii) land on which the commission finds
921-26 that the farming to be interrupted, discontinued, or precluded is
921-27 of such small acreage as to have negligible impact on the farm's
922-1 agricultural production; or
922-2 (B) materially damage the quantity or quality of
922-3 water in surface or underground water systems that supply those
922-4 valley floors; and
922-5 (6) the applicant has submitted to the commission, if
922-6 the ownership of the coal has been severed from the private surface
922-7 estate:
922-8 (A) the surface owner's written consent to the
922-9 extraction of coal by surface mining methods; or
922-10 (B) a conveyance that expressly grants or
922-11 reserves the right to extract the coal by surface mining methods.
922-12 (b) Subsection (a)(4)(B) does not apply to an area as to
922-13 which an administrative proceeding has begun if the applicant
922-14 demonstrates that, before January 1, 1977, the applicant made
922-15 substantial legal and financial commitments in relation to the
922-16 operation for which the applicant is applying for a permit.
922-17 (c) Subsection (a)(5) does not apply to a surface coal
922-18 mining operation that in the year preceding May 9, 1979:
922-19 (1) produced coal in commercial quantities and was
922-20 located in or adjacent to alluvial valley floors; or
922-21 (2) had obtained specific permit approval by the
922-22 commission to conduct surface coal mining operations in the
922-23 alluvial valley floors.
922-24 Sec. 134.068. DETERMINATION OF OWNERSHIP. If the ownership
922-25 of the coal has been severed from the private surface estate by a
922-26 conveyance that does not expressly grant the right to extract coal
922-27 by surface mining methods, the surface-subsurface legal
923-1 relationship shall be determined in accordance with state law.
923-2 Sec. 134.069. SCHEDULE OF NOTICES OF VIOLATIONS. (a) The
923-3 applicant shall file with the application a schedule listing any
923-4 notices of violations of this chapter or of a law, rule, or
923-5 regulation of the United States or this state pertaining to air or
923-6 water environmental protection incurred by the applicant in
923-7 connection with a surface coal mining operation in this state
923-8 during the three years before the application date.
923-9 (b) The applicant shall include in the schedule the final
923-10 resolution of any notice of violation.
923-11 Sec. 134.070. EFFECT OF PAST OR PRESENT VIOLATION. (a) If
923-12 the schedule under Section 134.069 or other information available
923-13 to the commission indicates that a surface coal mining operation
923-14 owned or controlled by the applicant is currently in violation of
923-15 this chapter or another law referred to in that section, the
923-16 commission may not issue a permit until the applicant submits proof
923-17 that:
923-18 (1) the violation has been corrected or is being
923-19 corrected to the satisfaction of the commission, department, or
923-20 agency with jurisdiction over the violation; or
923-21 (2) the applicant is contesting the notice of
923-22 violation.
923-23 (b) The commission may not issue a permit to an applicant if
923-24 it finds, after opportunity for hearing, that the applicant or
923-25 operator specified in the application controls or has controlled
923-26 mining operations with a demonstrated pattern of wilful violations
923-27 of this chapter that, by their nature and duration and the
924-1 resulting irreparable damage to the environment, indicate an intent
924-2 not to comply with this chapter.
924-3 Sec. 134.071. PERMIT FOR MINING ON PRIME FARMLAND. (a)
924-4 After consulting with the secretary of agriculture and under
924-5 regulations issued under the federal Act by the secretary of the
924-6 interior with the concurrence of the secretary of agriculture, the
924-7 commission shall grant a permit to mine on prime farmland if:
924-8 (1) the area proposed to be mined contains prime
924-9 farmland;
924-10 (2) the commission makes the findings required by
924-11 Section 134.067 for the application under consideration; and
924-12 (3) the commission in addition finds in writing that:
924-13 (A) the operator has the technological
924-14 capability to restore the mined area within a reasonable time to a
924-15 level of yield equal to or higher than that of nonmined prime
924-16 farmland in the surrounding area under equivalent levels of
924-17 management; and
924-18 (B) the applicant can meet the soil
924-19 reconstruction standards of the federal Act.
924-20 (b) This section does not apply to:
924-21 (1) a permit issued before August 3, 1977;
924-22 (2) a revision or renewal of a permit issued before
924-23 August 3, 1977; or
924-24 (3) an existing surface mining operation for which a
924-25 permit was issued before August 3, 1977.
924-26 Sec. 134.072. TERM. (a) A permit is issued for a term not
924-27 to exceed five years.
925-1 (b) The commission may grant a permit for a specified longer
925-2 term if:
925-3 (1) an applicant demonstrates that a specified longer
925-4 term is reasonably needed to allow the applicant to obtain
925-5 necessary financing for equipment or the opening of the operation;
925-6 and
925-7 (2) the application for the specified longer term is
925-8 complete.
925-9 Sec. 134.073. TERMINATION ON FAILURE TO BEGIN OPERATIONS.
925-10 (a) A permit terminates if the permit holder has not begun the
925-11 surface coal mining operation covered by the permit on or before
925-12 the third anniversary of the date on which the period for which the
925-13 permit is issued begins.
925-14 (b) The commission may grant reasonable extensions of time
925-15 on a showing that the extensions are necessary because of:
925-16 (1) litigation that precludes the beginning of
925-17 operations or threatens substantial economic loss to the permit
925-18 holder; or
925-19 (2) conditions beyond the control and without the
925-20 fault or negligence of the permit holder.
925-21 (c) With respect to coal to be mined for use in a synthetic
925-22 fuel facility or specific major electric generating facility, a
925-23 permit holder is considered to have begun surface mining operations
925-24 at the time the construction of the facility is initiated.
925-25 Sec. 134.074. SUCCESSOR IN INTEREST. A successor in
925-26 interest to a permit holder may continue the surface coal mining
925-27 and reclamation plan of the original permit holder until the
926-1 successor's application is granted or denied if the successor:
926-2 (1) applies for a new permit not later than the 30th
926-3 day after the date the person succeeds to the interest; and
926-4 (2) is able to obtain the same bond coverage as the
926-5 original permit holder.
926-6 Sec. 134.075. RIGHT TO RENEWAL. A permit issued under this
926-7 chapter carries with it the right of successive renewal on
926-8 expiration for areas within the boundaries of the existing permit.
926-9 Sec. 134.076. APPLICATION FOR AND ISSUANCE OF RENEWAL. (a)
926-10 A permit holder may apply for renewal.
926-11 (b) After the public notice requirements of Sections
926-12 134.059-134.063 have been met, the commission shall renew the
926-13 permit unless the opponents of renewal establish and the commission
926-14 makes written findings that:
926-15 (1) the terms of the existing permit are not being
926-16 satisfactorily met;
926-17 (2) the present surface coal mining and reclamation
926-18 operation does not comply with the environmental protection
926-19 standards of this chapter;
926-20 (3) the requested renewal substantially jeopardizes
926-21 the operator's continuing responsibility for existing permit areas;
926-22 (4) the operator has not provided evidence that the
926-23 performance bond in effect for the operation and any additional
926-24 bond the commission may require under Section 134.121 will continue
926-25 in effect for the renewal requested in the application; or
926-26 (5) additional revised or updated information required
926-27 by the commission has not been provided.
927-1 (c) Before renewing a permit, the commission shall notify
927-2 the appropriate public authorities.
927-3 Sec. 134.077. EXTENSION OF PERMIT AREA. (a) Except for
927-4 incidental boundary revisions, an extension of the permit area must
927-5 be made by application for another permit.
927-6 (b) If an application for renewal of an existing permit
927-7 includes a proposal to extend the mining operation beyond the
927-8 boundaries authorized in the permit, the part of the application
927-9 that addresses new land areas must meet all standards applicable to
927-10 a new application under this chapter.
927-11 (c) Notwithstanding Subsection (b), if the surface coal
927-12 mining operations authorized by the existing permit are not subject
927-13 to the standards contained in Section 134.067(a)(5), the part of
927-14 the application for renewal that addresses new land areas
927-15 previously identified in the reclamation plan submitted under
927-16 Section 134.041 is not subject to those standards.
927-17 Sec. 134.078. TERM OF RENEWAL PERMIT. A permit renewal is
927-18 for a term not to exceed the term of the original permit
927-19 established by this chapter.
927-20 Sec. 134.079. TIME LIMIT FOR RENEWAL APPLICATION.
927-21 Application for permit renewal must be made not later than the
927-22 120th day before the date the existing permit expires.
927-23 Sec. 134.080. APPLICATION FOR PERMIT REVISION. During the
927-24 term of a permit, the permit holder may submit to the commission an
927-25 application for a permit revision, together with a revised
927-26 reclamation plan.
927-27 Sec. 134.081. APPROVAL OR DISAPPROVAL OF PERMIT REVISION.
928-1 (a) The commission may not approve an application for a permit
928-2 revision unless the commission finds that reclamation as required
928-3 by this chapter can be accomplished under the revised reclamation
928-4 plan.
928-5 (b) The commission shall approve or disapprove the revision
928-6 not later than the 90th day after the date the permit holder
928-7 submits the application to the commission.
928-8 Sec. 134.082. GUIDELINES FOR REVISION. (a) The commission
928-9 shall establish guidelines for determining the scale or extent of a
928-10 revision request for which all permit application information
928-11 requirements and procedures, including notice and hearings, apply.
928-12 (b) A revision that proposes significant alterations in the
928-13 reclamation plan is subject at a minimum to notice and hearing
928-14 requirements.
928-15 Sec. 134.083. COMMISSION REQUIREMENT OF PERMIT REVISION OR
928-16 MODIFICATION. (a) The commission, within a time prescribed by
928-17 rule, shall review outstanding permits and may require reasonable
928-18 revision or modification of a permit during the term of the permit.
928-19 (b) A revision or modification must be supported by a
928-20 written finding and is subject to the notice and hearing
928-21 requirements of Chapter 2001, Government Code.
928-22 Sec. 134.084. TRANSFER OF PERMIT. A person may not
928-23 transfer, assign, or sell the rights granted under a permit issued
928-24 under this chapter without the written approval of the commission.
928-25 (Sections 134.085-134.090 reserved for expansion
928-26 SUBCHAPTER E. PERFORMANCE STANDARDS
928-27 Sec. 134.091. OPERATIONS REQUIRED TO MEET PERFORMANCE
929-1 STANDARDS. A permit issued under this chapter to conduct surface
929-2 coal mining operations shall require that the operations meet the
929-3 applicable performance standards of this chapter.
929-4 Sec. 134.092. PERFORMANCE STANDARDS. (a) Performance
929-5 standards for surface coal mining and reclamation operations shall
929-6 require an operator:
929-7 (1) to conduct surface coal mining operations to
929-8 maximize the use and conservation of the solid fuel resource being
929-9 recovered so that affecting the land again through future surface
929-10 coal mining can be minimized;
929-11 (2) to restore the land affected to a condition
929-12 capable of supporting the uses that it could support before mining
929-13 or reasonably likely higher or better uses if:
929-14 (A) the uses do not present an actual or
929-15 probable hazard to public health or safety or pose an actual or
929-16 probable threat of water diminution or pollution; and
929-17 (B) the permit applicant's declared proposed
929-18 land use following reclamation:
929-19 (i) is not considered impractical or
929-20 unreasonable;
929-21 (ii) is not inconsistent with applicable
929-22 land use policies and plans;
929-23 (iii) does not involved unreasonable delay
929-24 in implementation; and
929-25 (iv) does not violate federal, state, or
929-26 local law;
929-27 (3) except as provided by Sections 134.093(b),
930-1 134.094(b), and 134.107, to backfill, compact where advisable to
930-2 ensure stability or to prevent leaching of toxic materials, and
930-3 grade to restore the approximate original contour of the land with
930-4 depressions eliminated, unless small depressions are needed to
930-5 retain moisture to assist revegetation or as otherwise authorized
930-6 under this chapter;
930-7 (4) to stabilize and protect the surface areas,
930-8 including spoil piles affected by the surface coal mining and
930-9 reclamation operation, for effective control of erosion and
930-10 attendant air and water pollution;
930-11 (5) to remove the topsoil from the land in a separate
930-12 layer and replace it on the backfill area or, if the topsoil is not
930-13 used immediately, to segregate it in a separate pile from other
930-14 spoil;
930-15 (6) to restore the topsoil or the best available
930-16 subsoil that is best able to support vegetation;
930-17 (7) for prime farmland to be mined and reclaimed, at a
930-18 minimum:
930-19 (A) to segregate the A horizon of the natural
930-20 soil, unless it can be shown that other available soil materials
930-21 will create a final soil having a greater productive capacity, and,
930-22 if this material is not used immediately, to stockpile it
930-23 separately from other spoil and provide needed protection from wind
930-24 and water erosion or contamination by other acid or toxic
930-25 materials;
930-26 (B) to segregate the B horizon of the natural
930-27 soil, underlying C horizons or other strata, or a combination of
931-1 those horizons or other strata that are shown to be texturally and
931-2 chemically suitable for plant growth and that can be shown to be
931-3 equally or more favorable for plant growth than the B horizon, in
931-4 sufficient quantities to create in the regraded final soil a root
931-5 zone of a depth and quality comparable to that which existed in the
931-6 natural soil and, if this material is not used immediately, to
931-7 stockpile it separately from other spoil and provide needed
931-8 protection from wind and water erosion or contamination by other
931-9 acid or toxic material;
931-10 (C) to replace and regrade the root zone
931-11 material described by Subsection (a)(7)(B) with proper compaction
931-12 and uniform depth over the regraded spoil material; and
931-13 (D) to redistribute and grade uniformly the
931-14 surface soil horizon described by Subsection (a)(7)(A);
931-15 (8) to create a permanent impoundment of water on a
931-16 mining site as part of a reclamation activity if:
931-17 (A) the approved mining and reclamation plan and
931-18 permit authorize impoundment; and
931-19 (B) it is adequately demonstrated that:
931-20 (i) the size of the impoundment is
931-21 adequate for its intended purposes;
931-22 (ii) the impoundment dam construction will
931-23 be designed to achieve necessary stability with an adequate margin
931-24 of safety compatible with that of structures constructed under the
931-25 Watershed Protection and Flood Prevention Act, 16 U.S.C. Section
931-26 1001 et seq. (1954);
931-27 (iii) the quality of impounded water will
932-1 be permanently suitable for its intended use;
932-2 (iv) discharges from the impoundment will
932-3 not degrade the water quality in the receiving stream below water
932-4 quality standards established under applicable federal and state
932-5 law;
932-6 (v) the water level will be reasonably
932-7 stable;
932-8 (vi) final grading will provide adequate
932-9 safety and access for proposed water users; and
932-10 (vii) the impoundment will not reduce the
932-11 quality or quantity of water used by adjacent or surrounding
932-12 landowners for agricultural, industrial, recreational, or domestic
932-13 uses;
932-14 (9) to conduct any augering operation associated with
932-15 surface mining so as to maximize recoverability of coal reserves
932-16 remaining after the operation and reclamation are complete and to
932-17 seal the auger holes with an impervious and noncombustible material
932-18 to prevent drainage unless the commission determines that the
932-19 resulting impoundment of water in the auger holes may create a
932-20 hazard to the environment or the public health or safety;
932-21 (10) to minimize disturbances to the prevailing
932-22 hydrologic balance at the mine site in associated offsite areas and
932-23 to the quality and quantity of water in surface-water systems and
932-24 groundwater systems both during and after surface coal mining
932-25 operations and during reclamation by:
932-26 (A) avoiding acid or other toxic mine drainage
932-27 by measures including:
933-1 (i) preventing water from contacting or
933-2 removing water from contact with toxic-producing deposits;
933-3 (ii) treating drainage to reduce toxic
933-4 content that adversely affects downstream water when the drainage
933-5 is released to a watercourse; or
933-6 (iii) casing, sealing, or otherwise
933-7 managing boreholes, shafts, and wells and keeping acid or other
933-8 toxic drainage from entering surface water and groundwater;
933-9 (B) conducting surface coal mining operations
933-10 to:
933-11 (i) prevent, to the extent possible using
933-12 the best technology currently available, additional contributions
933-13 of suspended solids to streamflow or runoff outside the permit
933-14 area; and
933-15 (ii) prevent those contributions from
933-16 exceeding requirements set by applicable state or federal law;
933-17 (C) constructing any siltation structures under
933-18 Subsection (a)(10)(B) before beginning surface coal mining
933-19 operations;
933-20 (D) cleaning out and removing temporary or large
933-21 settling ponds or other siltation structures from drainways after
933-22 disturbed areas are revegetated and stabilized and depositing the
933-23 silt and debris at a site and in a manner approved by the
933-24 commission;
933-25 (E) restoring the recharge capacity of the mined
933-26 area to approximate premining conditions;
933-27 (F) avoiding channel deepening or enlargement in
934-1 operations requiring the discharge of water from a mine;
934-2 (G) preserving throughout the mining and
934-3 reclamation process the essential hydrologic functions of alluvial
934-4 valley floors in the arid and semiarid areas of the country; and
934-5 (H) performing other actions the commission
934-6 prescribes;
934-7 (11) with respect to surface disposal of mine wastes,
934-8 tailings, coal processing wastes, and other wastes in areas other
934-9 than the mine workings or excavations:
934-10 (A) to stabilize the waste piles in designated
934-11 areas through construction in compacted layers including the use of
934-12 incombustible and impervious materials, if necessary; and
934-13 (B) to assure that the final contour of the
934-14 waste pile will be compatible with natural surroundings and that
934-15 the site can and will be stabilized and revegetated according to
934-16 this chapter;
934-17 (12) to refrain from surface coal mining within 500
934-18 feet of an active or abandoned underground mine to prevent a
934-19 breakthrough and to protect the health or safety of miners;
934-20 (13) to design, locate, construct, operate, maintain,
934-21 enlarge, modify, and remove or abandon, in accordance with the
934-22 standards developed under commission rule, existing and new coal
934-23 mine waste piles used temporarily or permanently as dams or
934-24 embankments;
934-25 (14) to ensure that debris, acid-forming materials,
934-26 toxic materials, or materials constituting a fire hazard are
934-27 treated, buried and compacted, or otherwise disposed of in a manner
935-1 designed to prevent contamination of surface water or groundwater
935-2 and that contingency plans are developed to prevent sustained
935-3 combustion;
935-4 (15) to ensure that explosives are used in accordance
935-5 with state and federal law, including commission rules;
935-6 (16) to ensure that reclamation efforts proceed in an
935-7 environmentally sound manner and as contemporaneously as
935-8 practicable with the surface coal mining operations;
935-9 (17) to ensure that the construction, maintenance, and
935-10 postmining conditions of access roads into and across the site of
935-11 operations will control or prevent:
935-12 (A) erosion and siltation;
935-13 (B) water pollution; and
935-14 (C) damage to:
935-15 (i) fish or wildlife or their habitat; or
935-16 (ii) public or private property;
935-17 (18) to refrain from constructing roads or other
935-18 access ways up a stream bed or drainage channel or so near the
935-19 channel as to seriously alter the normal flow of water;
935-20 (19) to establish on regraded areas and other affected
935-21 land a diverse, effective, and permanent vegetative cover:
935-22 (A) of the seasonal variety native to the area
935-23 of land to be affected;
935-24 (B) capable of self-regeneration and plant
935-25 succession; and
935-26 (C) at least equal in extent of cover to the
935-27 natural vegetation of the area;
936-1 (20) to assume responsibility for successful
936-2 revegetation as required by Subsection (a)(19) for five years after
936-3 the last year of augmented seeding, fertilizing, irrigation, or
936-4 other work in order to assure compliance with that subsection;
936-5 (21) to protect off-site areas from slides or damage
936-6 occurring during the surface coal mining and reclamation operations
936-7 and to refrain from depositing spoil material or locating any part
936-8 of the operations or waste accumulations outside the permit area;
936-9 (22) to place the excess spoil material resulting from
936-10 surface coal mining and reclamation activities in accordance with
936-11 Section 134.106;
936-12 (23) to meet other standards necessary to achieve
936-13 reclamation in accordance with the purposes of this chapter,
936-14 considering the physical, climatological, and other characteristics
936-15 of the site;
936-16 (24) to the extent possible, using the best technology
936-17 currently available, to minimize disturbance and adverse impacts of
936-18 the operation on fish, wildlife, and related environmental values
936-19 and to enhance those resources where practicable; and
936-20 (25) to provide an undisturbed natural barrier
936-21 beginning at the elevation of the lowest coal seam to be mined and
936-22 extending from the outslope for the distance the commission
936-23 determines shall be retained in place as a barrier to slides and
936-24 erosion.
936-25 (b) In Subsection (a)(13), "coal mine waste piles" means
936-26 piles consisting of mine wastes, tailings, coal processing wastes,
936-27 or other liquid and solid wastes.
937-1 Sec. 134.093. BACKFILLING, GRADING, AND COMPACTING:
937-2 INSUFFICIENT OVERBURDEN. (a) This section applies to a surface
937-3 coal mining operation:
937-4 (1) that is carried out at the same location over a
937-5 substantial period;
937-6 (2) that transects the coal deposit;
937-7 (3) in which the thickness of the coal deposit
937-8 relative to the volume of the overburden is large; and
937-9 (4) for which the operator demonstrates that the
937-10 overburden and other spoil and waste materials at a particular
937-11 point in the permit area or otherwise available from the entire
937-12 permit area are insufficient, considering volumetric expansion, to
937-13 restore the approximate original contour.
937-14 (b) Notwithstanding Section 134.092(a)(3), the operator, at
937-15 a minimum, shall backfill, grade, and compact, where advisable,
937-16 using the available overburden and other spoil and waste materials
937-17 to attain the lowest practicable grade but not more than the angle
937-18 of repose, to provide adequate drainage, and to cover the
937-19 acid-forming and other toxic materials in order to achieve an
937-20 ecologically sound land use compatible with the surrounding region.
937-21 Sec. 134.094. BACKFILLING, GRADING, AND COMPACTING:
937-22 SUFFICIENT OVERBURDEN. (a) This section applies to a surface coal
937-23 mining operation:
937-24 (1) in which the volume of overburden is large
937-25 relative to the thickness of the coal deposit; and
937-26 (2) for which the operator demonstrates that because
937-27 of volumetric expansion the amount of overburden and other spoil
938-1 and waste materials removed in the course of the mining operation
938-2 is more than sufficient to restore the approximate original
938-3 contour.
938-4 (b) Notwithstanding Section 134.092(a)(3), the operator
938-5 shall, after restoring the approximate contour, backfill, grade,
938-6 and compact, where advisable, the excess overburden and other spoil
938-7 and waste materials to attain the lowest grade but not more than
938-8 the angle of repose and to cover the acid-forming and other toxic
938-9 materials in order to achieve an ecologically sound land use
938-10 compatible with the surrounding region. The overburden or spoil
938-11 shall be shaped and graded to prevent slides, erosion, and water
938-12 pollution and shall be revegetated in accordance with this chapter.
938-13 Sec. 134.095. MAINTENANCE OF TOPSOIL OR OTHER STRATA. (a)
938-14 The performance standards shall require that, if the topsoil is not
938-15 replaced on a backfill area within a time short enough to avoid
938-16 deterioration of the topsoil, the operator shall maintain a
938-17 successful cover by quick-growing plant or other means so that the
938-18 topsoil:
938-19 (1) is preserved from wind and water erosion;
938-20 (2) remains free of contamination by other acid or
938-21 toxic material; and
938-22 (3) is in a usable condition for sustaining vegetation
938-23 when restored during reclamation.
938-24 (b) The performance standards shall require that, if topsoil
938-25 is of insufficient quantity or of poor quality for sustaining
938-26 vegetation requirements or if other strata can be shown to be more
938-27 suitable for vegetation requirements, the operator shall remove,
939-1 segregate, and preserve in the manner provided by Section
939-2 134.092(a)(5) and Subsection (a) the other strata that are best
939-3 able to support vegetation.
939-4 Sec. 134.096. SPECIFICATIONS FOR SOIL REMOVAL, STORAGE,
939-5 REPLACEMENT, AND RECONSTRUCTION. For prime farmland to be mined
939-6 and reclaimed, the applicable specifications for soil removal,
939-7 storage, replacement, and reconstruction are those established by
939-8 the secretary of agriculture.
939-9 Sec. 134.097. REMOVAL, STORAGE, AND REPLACEMENT OF SOIL AND
939-10 OVERBURDEN WITHOUT REGARD TO SOIL HORIZONS. (a) This section
939-11 applies only to prime farmland to be mined and reclaimed.
939-12 (b) On proper documentation supporting the use of the
939-13 mining technique to obtain crop yields equivalent to or higher than
939-14 yields on surrounding nonmined soil of the same type, the
939-15 commission may authorize the permit holder, without regard to soil
939-16 horizons, to:
939-17 (1) remove the soil and overburden in one step;
939-18 (2) store the soil and overburden in one stockpile;
939-19 and
939-20 (3) begin reclamation by replacing and grading the
939-21 stockpile material.
939-22 Sec. 134.098. PROHIBITION ON AUGERING. The commission may
939-23 prohibit augering if necessary to:
939-24 (1) maximize the use, recoverability, or conservation
939-25 of the solid fuel resources; or
939-26 (2) protect against adverse water quality impacts.
939-27 Sec. 134.099. CERTIFICATION OF SILTATION STRUCTURE. The
940-1 performance standards shall require that a siltation structure
940-2 constructed under Section 134.092(a)(10)(B) be certified by a
940-3 qualified registered engineer to be constructed as designed and as
940-4 approved in the reclamation plan.
940-5 Sec. 134.100. PROXIMITY OF MINE TO OTHER MINES: EXCEPTION.
940-6 Notwithstanding Section 134.092(a)(12), the commission shall permit
940-7 an operator to mine near or through an abandoned underground mine
940-8 or closer to an active underground mine than allowed by that
940-9 section if:
940-10 (1) the nature, timing, and sequencing of the
940-11 approximate coincidence of specific surface mine activities with
940-12 specific underground mine activities are jointly approved by the
940-13 regulatory authorities concerned with surface mine regulation and
940-14 the health and safety of underground miners; and
940-15 (2) the operations will result in:
940-16 (A) improved resource recovery;
940-17 (B) abatement of water pollution; or
940-18 (C) elimination of hazards to the health and
940-19 safety of the public.
940-20 Sec. 134.101. RULES REGARDING USE OF EXPLOSIVES. The
940-21 commission rules described by Section 134.092(a)(15) shall require
940-22 that:
940-23 (1) adequate advance written notice be given to local
940-24 governments and residents who might be affected by the use of the
940-25 explosives, by:
940-26 (A) publishing the planned blasting schedule in
940-27 a newspaper of general circulation in the locality;
941-1 (B) mailing a copy of the proposed blasting
941-2 schedule to each resident living within one-half mile of the
941-3 proposed blasting site; and
941-4 (C) providing daily notice before blasting to
941-5 residents in the area;
941-6 (2) a log be maintained for at least three years and
941-7 made available for public inspection on request, detailing:
941-8 (A) the location of the blasts;
941-9 (B) the pattern and depth of the drill holes;
941-10 (C) the amount of explosives used for each hole;
941-11 and
941-12 (D) the order and length of delay in the blasts;
941-13 (3) the type of explosives and detonating equipment
941-14 and the size, timing, and frequency of blasts be limited according
941-15 to the physical conditions of the site to prevent:
941-16 (A) injury to persons;
941-17 (B) damage to public and private property
941-18 outside the permit area;
941-19 (C) adverse impacts on an underground mine; and
941-20 (D) change in the course, channel, or
941-21 availability of groundwater or surface water outside the permit
941-22 area;
941-23 (4) blasting operations be conducted by trained and
941-24 competent persons certified by the commission; and
941-25 (5) on the request of a resident or owner of a
941-26 man-made structure within one-half mile of the permit area, the
941-27 applicant or permit holder:
942-1 (A) conduct a preblasting survey of the
942-2 structures in an area to be decided by the commission; and
942-3 (B) submit the survey to the commission with a
942-4 copy to the resident or owner making the request.
942-5 Sec. 134.102. VARIANCE TO PERMIT UNDERGROUND MINING
942-6 OPERATIONS BEFORE RECLAMATION. (a) The commission may grant a
942-7 variance from the contemporaneous reclamation requirement of
942-8 Section 134.092(a)(16) for specific areas within the reclamation
942-9 plan to permit underground mining operations before reclamation if:
942-10 (1) the applicant proposes to combine surface mining
942-11 operations with underground mining operations to assure maximum
942-12 practical recovery of the coal resources; and
942-13 (2) the commission finds in writing that:
942-14 (A) the applicant has presented, as part of the
942-15 permit application, specific, feasible plans for the proposed
942-16 underground mining operations;
942-17 (B) the proposed underground mining operations
942-18 are necessary or desirable to assure maximum practical recovery of
942-19 the coal resource and will avoid multiple disturbances of the
942-20 surface;
942-21 (C) the applicant has satisfactorily
942-22 demonstrated that:
942-23 (i) the plan for the underground mining
942-24 operations conforms to requirements for underground mining in the
942-25 jurisdiction; and
942-26 (ii) permits necessary for the underground
942-27 mining operations have been issued by the appropriate authority;
943-1 (D) the applicant has shown that the areas
943-2 proposed for the variance are necessary for implementing the
943-3 proposed underground mining operations;
943-4 (E) substantial environmental damage, either on
943-5 or off the site, will not result from the delay in completing
943-6 reclamation as required by this chapter; and
943-7 (F) provisions for the off-site storage of spoil
943-8 will comply with Section 134.106.
943-9 (b) Liability under the bond filed by the applicant with the
943-10 commission under Section 134.121 must extend for the duration of
943-11 the underground mining operations and until Sections
943-12 134.092-134.106 and Sections 134.128-134.134 have been complied
943-13 with.
943-14 (c) The commission must adopt specific rules to govern the
943-15 granting of a variance under this section and may impose additional
943-16 requirements it considers necessary.
943-17 (d) The commission shall review a variance granted under
943-18 this section not later than the third anniversary of the date the
943-19 permit is issued.
943-20 Sec. 134.103. USE OF INTRODUCED SPECIES FOR REVEGETATION.
943-21 Notwithstanding Section 134.092(a)(19), introduced species may be
943-22 used in the revegetation process where necessary to achieve the
943-23 approved postmining land use plan.
943-24 Sec. 134.104. RESPONSIBILITY FOR REVEGETATION: AREA OF LOW
943-25 PRECIPITATION. Notwithstanding Section 134.092(a)(20), in areas or
943-26 regions of the state where the annual average precipitation is 26
943-27 inches or less, an operator's assumption of responsibility and
944-1 liability extends for 10 years after the last year of augmented
944-2 seeding, fertilizing, irrigation, or other work.
944-3 Sec. 134.105. RESPONSIBILITY FOR REVEGETATION: LONG-TERM
944-4 INTENSIVE AGRICULTURAL POSTMINING USE. (a) The applicable 5- or
944-5 10-year period of responsibility for revegetation begins on the
944-6 date of initial planting for long-term intensive agricultural
944-7 postmining land use if the commission approves a long-term
944-8 intensive agricultural postmining land use.
944-9 (b) The commission may grant an exception to Section
944-10 134.092(a)(19) if the commission issues a written finding approving
944-11 a long-term intensive agricultural postmining land use as part of
944-12 the mining and reclamation plan.
944-13 Sec. 134.106. SPOIL DISPOSAL. (a) The performance
944-14 standards shall require an operator:
944-15 (1) to transport the excess spoil material resulting
944-16 from surface coal mining and reclamation activities and place it in
944-17 a controlled manner in position for concurrent compaction to assure
944-18 mass stability and to prevent mass movement;
944-19 (2) to dispose of spoil only within the bonded permit
944-20 areas;
944-21 (3) to remove the organic matter immediately before
944-22 spoil placement;
944-23 (4) to use appropriate surface and internal drainage
944-24 systems and diversion ditches to prevent spoil erosion and
944-25 movement;
944-26 (5) to use a spoil disposal area that does not contain
944-27 springs, natural watercourses, or wet weather seeps unless lateral
945-1 drains are constructed from the wet areas to the main underdrains
945-2 in a manner that prevents the water from filtering into the spoil
945-3 pile;
945-4 (6) if the spoil is placed on a slope:
945-5 (A) to place the spoil on the most moderate
945-6 slope among the slopes on which, in the judgment of the commission,
945-7 the spoil could be placed in compliance with this chapter; and
945-8 (B) where possible, to place the spoil on or
945-9 above a natural terrace, bench, or berm if that placement provides
945-10 additional stability and prevents mass movement;
945-11 (7) to construct a rock toe buttress of sufficient
945-12 size to prevent mass movement if the toe of the spoil rests on a
945-13 downslope; and
945-14 (8) to place the spoil in compliance with other
945-15 provisions of this chapter.
945-16 (b) The final configuration of the spoil disposal area shall
945-17 be compatible with the natural drainage pattern and surroundings
945-18 and suitable for intended uses.
945-19 (c) The design of the spoil disposal area shall be certified
945-20 by a qualified registered professional engineer in conformance with
945-21 professional standards.
945-22 Sec. 134.107. PERMIT WITHOUT REGARD TO REQUIREMENT TO
945-23 RESTORE TO APPROXIMATE ORIGINAL CONTOUR. (a) The commission may
945-24 grant a permit, without regard to the requirement to restore to
945-25 approximate original contour set forth in Section 134.092(a)(3) or
945-26 134.108(a)(2), for the surface mining of coal if:
945-27 (1) the mining operation will remove an entire coal
946-1 seam or seams running through the upper fraction of a mountain,
946-2 ridge, or hill, except as provided by Subsection (b)(1), by
946-3 removing the overburden and creating a level plateau or a gently
946-4 rolling contour that has no highwalls remaining and that can
946-5 support postmining uses in accord with this section;
946-6 (2) an industrial, commercial, agricultural,
946-7 residential, or public facility use, including use as a
946-8 recreational facility, is proposed for the postmining use of
946-9 affected land;
946-10 (3) after consultation with the appropriate land use
946-11 planning agencies, if any, the proposed postmining land use is
946-12 considered to constitute an economic or public use of the affected
946-13 land equal to or better than premining use;
946-14 (4) the applicant presents specific plans for the
946-15 proposed postmining land use and appropriate assurances that the
946-16 use will be:
946-17 (A) compatible with adjacent land uses;
946-18 (B) obtainable according to data regarding
946-19 expected need and market;
946-20 (C) assured of investment in necessary public
946-21 facilities;
946-22 (D) supported by commitments from public
946-23 agencies, where appropriate;
946-24 (E) practicable with respect to private
946-25 financial capability for completion of the proposed use;
946-26 (F) planned under a schedule attached to the
946-27 reclamation plan so as to integrate the mining operation and
947-1 reclamation with the postmining land use; and
947-2 (G) designed by a registered engineer in
947-3 conformance with professional standards established to assure the
947-4 stability, drainage, and configuration necessary for the intended
947-5 use of the site;
947-6 (5) the proposed use is consistent with adjacent land
947-7 uses and existing state and local land use plans and programs;
947-8 (6) the commission provides the county in which the
947-9 land is located and any state or federal agency that the
947-10 commission, in its discretion, determines to have an interest in
947-11 the proposed use an opportunity of not more than 60 days to review
947-12 and comment on the proposed use; and
947-13 (7) the other requirements of this chapter are met.
947-14 (b) In granting a permit under this section, the commission
947-15 shall require that:
947-16 (1) the toe of the lowest coal seam and the associated
947-17 overburden are retained in place as a barrier to slides and
947-18 erosion;
947-19 (2) the reclaimed area is stable;
947-20 (3) the resulting plateau or rolling contour drains
947-21 inward from the outslopes except at specified points;
947-22 (4) natural watercourses are not damaged;
947-23 (5) spoil is placed on the mountaintop bench as
947-24 necessary to achieve the planned postmining land use and any excess
947-25 spoil material not retained on the mountaintop is placed in
947-26 accordance with Section 134.106;
947-27 (6) the stability of the spoil retained on the
948-1 mountaintop is ensured; and
948-2 (7) the other requirements of this chapter are met.
948-3 (c) The commission shall adopt specific rules to govern the
948-4 granting of permits under this section and may impose additional
948-5 requirements it considers necessary.
948-6 (d) A permit granted under this section shall be reviewed
948-7 not later than the third anniversary of the date the permit is
948-8 issued unless the applicant demonstrates that the proposed
948-9 development is proceeding in accordance with the terms of the
948-10 approved schedule and reclamation plan.
948-11 Sec. 134.108. STEEP SLOPE SURFACE COAL MINING. (a) An
948-12 operator of a steep slope surface coal mining operation, in
948-13 addition to meeting the general performance standards of this
948-14 subchapter:
948-15 (1) shall ensure that during surface coal mining on
948-16 steep slopes, debris, abandoned or disabled equipment, spoil
948-17 material, or waste mineral matter is not placed on the downslope
948-18 below the bench or mining cut;
948-19 (2) shall backfill with spoil material to:
948-20 (A) return the site to the approximate original
948-21 contour; and
948-22 (B) maintain the stability of the material after
948-23 mining and reclamation; and
948-24 (3) may not disturb land above the top of the
948-25 highwall.
948-26 (b) Notwithstanding Subsection (a)(1), the operator shall
948-27 permanently store under Section 134.106 spoil material in excess of
949-1 that required to reconstruct the approximate original contour under
949-2 Section 134.092(a)(3) or Subsection (a)(2).
949-3 (c) Notwithstanding Subsection (a)(3), the operator may
949-4 disturb land above the top of the highwall if the commission finds
949-5 that the disturbance will facilitate compliance with the
949-6 environmental protection standards of this subchapter. The amount
949-7 of land disturbed above the highwall may not exceed the amount
949-8 necessary to facilitate the compliance.
949-9 (d) This section does not apply to an operator who:
949-10 (1) is mining on flat or gently rolling terrain on
949-11 which an occasional steep slope is encountered through which the
949-12 mining operations are to proceed, leaving a plain or predominantly
949-13 flat area; or
949-14 (2) meets the requirements of Section 134.107.
949-15 (e) In this section, "steep slope" means a slope:
949-16 (1) that exceeds 20 degrees; or
949-17 (2) less than or equal to 20 degrees determined by the
949-18 commission to be a steep slope after considering soil, climate, or
949-19 other characteristics of the region or the state.
949-20 Sec. 134.109. VARIANCE FROM REQUIREMENT TO RESTORE CONTOUR.
949-21 (a) The commission may grant a variance from the requirement in
949-22 Section 134.108(a)(2) to restore to approximate original contour
949-23 after steep slope surface coal mining if:
949-24 (1) the surface owner requests in writing, as part of
949-25 the permit application, that the variance be granted to render the
949-26 land suitable after reclamation for industrial, commercial,
949-27 residential, or public use, including use as a recreational
950-1 facility;
950-2 (2) the watershed control of the affected area is
950-3 improved; and
950-4 (3) other requirements of this section are met.
950-5 (b) The watershed control of an affected area is considered
950-6 to be improved for purposes of Subsection (a) if the potential use
950-7 of the affected land is:
950-8 (1) considered by the commission, after consultation
950-9 with the appropriate land use planning agencies, if any, to
950-10 constitute an economic or public use equal to or better than the
950-11 premining use;
950-12 (2) designed and certified by a qualified registered
950-13 professional engineer in conformance with professional standards
950-14 established to assure the stability, drainage, and configuration
950-15 necessary for the intended use of the site; and
950-16 (3) approved by the appropriate state environmental
950-17 agencies.
950-18 (c) In granting a variance under this section, the
950-19 commission shall require the operator to:
950-20 (1) backfill with spoil material to cover the highwall
950-21 completely and ensure that the material maintains stability after
950-22 mining and reclamation;
950-23 (2) place off the mine bench only the amount of spoil
950-24 necessary to achieve the planned postmining land use;
950-25 (3) comply with Section 134.106 in placing spoil off
950-26 the mine bench;
950-27 (4) ensure stability of the spoil retained on the
951-1 bench; and
951-2 (5) meet the other requirements of this chapter.
951-3 (d) The commission shall adopt specific rules to govern the
951-4 granting of variances under this section and may impose additional
951-5 requirements it considers necessary.
951-6 (e) A variance granted under this section shall be reviewed
951-7 not later than the third anniversary of the date the permit is
951-8 issued unless the permit holder demonstrates that the proposed
951-9 development is proceeding in accordance with the terms of the
951-10 reclamation plan.
951-11 Sec. 134.110. WATER SUPPLY REPLACEMENT. The operator of a
951-12 surface coal mining operation shall replace the water supply of an
951-13 owner of an interest in real property who obtains all or part of
951-14 the owner's supply of water for domestic, agricultural, industrial,
951-15 or other legitimate use from an underground or surface source if
951-16 the supply has been affected by contamination, diminution, or
951-17 interruption proximately resulting from the surface coal mining
951-18 operation.
951-19 (Sections 134.111-134.120 reserved for expansion
951-20 SUBCHAPTER F. BONDS AND DEPOSITS
951-21 Sec. 134.121. PERFORMANCE BOND REQUIREMENT. (a) After a
951-22 surface coal mining and reclamation permit application has been
951-23 approved but before the permit is issued, the applicant shall file
951-24 with the commission, on a form prescribed and furnished by the
951-25 commission, a performance bond payable to this state and
951-26 conditioned on the faithful performance of the requirements of this
951-27 chapter and the permit.
952-1 (b) The initial bond shall cover the area of land in the
952-2 permit area on which the applicant will begin and conduct surface
952-3 coal mining and reclamation operations during the initial term of
952-4 the permit.
952-5 (c) The permit holder shall provide an additional bond or
952-6 bonds to cover a succeeding increment of surface coal mining and
952-7 reclamation operations conducted in the permit area at the time the
952-8 increment begins.
952-9 Sec. 134.122. AMOUNT OF BOND. (a) The commission shall
952-10 determine the amount of the bond required for each bonded area.
952-11 (b) The amount of the bond shall:
952-12 (1) reflect the probable difficulty of the
952-13 reclamation, considering factors including:
952-14 (A) topography;
952-15 (B) geology of the site;
952-16 (C) hydrology; and
952-17 (D) revegetation potential; and
952-18 (2) be sufficient to assure completion of the
952-19 reclamation plan if the commission has to perform the work in the
952-20 event of forfeiture.
952-21 (c) The bond for the entire area under one permit may not be
952-22 less than $10,000.
952-23 Sec. 134.123. BOND WITHOUT SURETY. The commission may
952-24 accept the bond of an applicant without separate surety if the
952-25 applicant demonstrates to the satisfaction of the commission the
952-26 existence of a suitable and continuous operation sufficient for
952-27 authorization to self-insure or bond the amount.
953-1 Sec. 134.124. ALTERNATIVE TO BONDING PROGRAM. Instead of
953-2 establishing a bonding program under this subchapter, the
953-3 commission may approve an alternative system that will achieve the
953-4 purposes of the bonding program under this subchapter.
953-5 Sec. 134.125. EXTENT OF LIABILITY UNDER BOND. Liability
953-6 under the bond shall be for the duration of the surface coal mining
953-7 and reclamation operation and of the applicant's responsibility for
953-8 revegetation.
953-9 Sec. 134.126. SECURITY FOR BOND. (a) The applicant and a
953-10 corporate surety licensed to do business in this state shall
953-11 execute the bond unless the applicant elects to deposit security
953-12 under Subsection (b).
953-13 (b) The applicant may elect to deposit as security for the
953-14 performance of the applicant's obligations under the bond:
953-15 (1) cash;
953-16 (2) negotiable bonds of the United States government
953-17 or the state; or
953-18 (3) negotiable certificates of deposit of a bank
953-19 organized or transacting business in the United States.
953-20 (c) The cash deposit or market value of the securities
953-21 deposited under Subsection (b) must equal or exceed the amount of
953-22 the bond required for the bonded area.
953-23 Sec. 134.127. ADJUSTMENT OF AMOUNT OF BOND OR DEPOSIT. The
953-24 commission periodically shall adjust the amount of the bond or
953-25 deposit required and the terms of each acceptance of the
953-26 applicant's bond to reflect changes in:
953-27 (1) the acreage affected; or
954-1 (2) the cost of future reclamation.
954-2 Sec. 134.128. APPLICATION FOR RELEASE OF BOND OR DEPOSIT.
954-3 The permit holder may file a request with the commission for the
954-4 release of all or part of a performance bond or deposit.
954-5 Sec. 134.129. NOTICE. (a) Not later than the 30th day
954-6 after the date the permit holder files with the commission an
954-7 application for release of a bond or deposit, the permit holder
954-8 shall submit a copy of an advertisement placed at least once a week
954-9 for four consecutive weeks in a newspaper of general circulation in
954-10 the locality of the surface coal mining operation. The
954-11 advertisement is part of a bond release application and shall:
954-12 (1) identify the precise location of the land
954-13 affected;
954-14 (2) state the number of acres;
954-15 (3) identify the permit and the date the permit was
954-16 approved;
954-17 (4) state the amount of the bond filed and the portion
954-18 sought to be released;
954-19 (5) describe the type and give appropriate dates of
954-20 reclamation work performed; and
954-21 (6) describe the results achieved as they relate to
954-22 the permit holder's reclamation plan.
954-23 (b) As part of a bond release application, the applicant
954-24 shall submit copies of letters the applicant has sent to adjoining
954-25 property owners, local governmental bodies, planning agencies, and
954-26 sewage and water treatment authorities in the locality, as the
954-27 commission directs, notifying them of the applicant's intention to
955-1 seek release from the bond.
955-2 Sec. 134.130. INSPECTION AND EVALUATION. (a) Not later
955-3 than the 30th day after the date the commission receives a request
955-4 under Section 134.128 and a copy of an advertisement or letters
955-5 under Section 134.129, the commission shall inspect and evaluate
955-6 the reclamation work involved.
955-7 (b) The evaluation shall consider, among other things:
955-8 (1) the degree of difficulty in completing any
955-9 remaining reclamation;
955-10 (2) whether pollution of surface and subsurface water
955-11 is occurring;
955-12 (3) the probability that pollution will continue to
955-13 occur in the future; and
955-14 (4) the estimated cost of abating the pollution.
955-15 Sec. 134.131. RELEASE OF BOND OR DEPOSIT. (a) The
955-16 commission may release part or all of the bond or deposit if the
955-17 commission is satisfied that the reclamation covered by the bond or
955-18 deposit or part of the reclamation has been accomplished as
955-19 required by this chapter according to the schedule provided by this
955-20 section.
955-21 (b) The commission may release 60 percent of the bond or
955-22 deposit for the applicable permit area if the permit holder
955-23 completes the backfilling, regrading, and drainage control of a
955-24 bonded area in accordance with the reclamation plan.
955-25 (c) The commission may release part of the bond after
955-26 successful revegetation has been established on the regraded mined
955-27 lands in accordance with the reclamation plan. In determining the
956-1 amount of the bond to be released under this subsection, the
956-2 commission shall retain, for the period of permit holder
956-3 responsibility specified under Section 134.092(a)(20), 134.104, or
956-4 134.105, a bond amount for the revegetated area that is sufficient
956-5 for a third party to establish revegetation.
956-6 (d) The commission may not release any of the bond or
956-7 deposit under Subsection (c) if:
956-8 (1) the land to which the release would apply is
956-9 contributing suspended solids to streamflow or runoff outside the
956-10 permit area in excess of the requirements of Section
956-11 134.092(a)(10); or
956-12 (2) soil productivity for prime farmland has not
956-13 returned to levels of yield equivalent to those of nonmined land of
956-14 the same soil type in the surrounding area under equivalent
956-15 management practices, as determined from the soil survey performed
956-16 under Section 134.052(a)(16).
956-17 (e) If a silt dam will be retained as a permanent
956-18 impoundment under Section 134.092(a)(8), the commission may release
956-19 the part of the bond authorized by Subsection (c) after provisions
956-20 for sound future maintenance have been made with the commission.
956-21 (f) The commission may release the remaining part of the
956-22 bond if:
956-23 (1) the permit holder has successfully completed all
956-24 surface coal mining and reclamation activities;
956-25 (2) the period of permit holder responsibility
956-26 specified under Section 134.092(a)(20), 134.104, or 134.105 has
956-27 expired; and
957-1 (3) all reclamation requirements of this chapter have
957-2 been met.
957-3 Sec. 134.132. NOTICE TO PERMIT HOLDER OF DECISION TO APPROVE
957-4 OR DISAPPROVE RELEASE. (a) The commission shall notify the permit
957-5 holder in writing of its decision to release or not to release all
957-6 or part of the bond or deposit:
957-7 (1) not later than the 60th day after the date the
957-8 request is filed if a public hearing is not held; or
957-9 (2) not later than the 30th day after the date of the
957-10 hearing if a public hearing is held.
957-11 (b) If the commission disapproves the application for
957-12 release of all or part of the bond, it shall notify the permit
957-13 holder, in writing:
957-14 (1) stating the reasons for disapproval;
957-15 (2) recommending corrective actions necessary to
957-16 secure the release; and
957-17 (3) allowing opportunity for a public hearing.
957-18 Sec. 134.133. NOTICE TO COUNTY JUDGE. Not later than the
957-19 31st day before the date of release of all or part of a bond, the
957-20 commission, by certified mail, shall notify the county judge of any
957-21 county in which the surface coal mining operation is located that
957-22 an application for the release has been filed with the commission.
957-23 Sec. 134.134. OBJECTIONS TO RELEASE. (a) A person is
957-24 entitled to file a written objection to a proposed release of a
957-25 bond if the person:
957-26 (1) has a legal interest that might be adversely
957-27 affected by release of the bond; or
958-1 (2) is the responsible officer or head of a federal,
958-2 state, or local governmental agency that:
958-3 (A) has jurisdiction by law or has special
958-4 expertise with respect to an environmental, social, or economic
958-5 impact involved in the mining operation; or
958-6 (B) is authorized to develop and enforce
958-7 environmental standards with respect to the operation.
958-8 (b) Objections must be filed with the commission not later
958-9 than the 30th day after the date of the last publication of the
958-10 notice under Section 134.129.
958-11 (c) If a written objection is filed and a public hearing is
958-12 requested, not later than the 30th day after the date the hearing
958-13 is requested the commission shall:
958-14 (1) inform the interested parties of the time and
958-15 place of the hearing; and
958-16 (2) hold the hearing in the locality of the surface
958-17 coal mining operation or at the state capital, at the option of the
958-18 person objecting to the proposed release.
958-19 (d) The commission shall advertise the date, time, and
958-20 location of the hearing in a newspaper of general circulation in
958-21 the locality of the surface coal mining operation for two
958-22 consecutive weeks.
958-23 (e) The hearing and any appeal shall be conducted under
958-24 Chapter 2001, Government Code.
958-25 (Sections 134.135-134.140 reserved for expansion
958-26 SUBCHAPTER G. ABANDONED MINE RECLAMATION
958-27 Sec. 134.141. FUND PARTICIPATION. (a) The commission may
959-1 take any action necessary to:
959-2 (1) ensure this state's participation to the fullest
959-3 extent practicable in the abandoned mine reclamation fund
959-4 established by the federal Act; and
959-5 (2) act as this state's agency for that participation.
959-6 (b) Under the federal Act, the commission by rule shall:
959-7 (1) establish priorities that meet the terms of that
959-8 Act for the expenditure of money in the fund;
959-9 (2) designate the land and water eligible for
959-10 reclamation or abatement expenditures;
959-11 (3) submit reclamation plans, annual projects, and
959-12 applications to the appropriate authorities under that Act; and
959-13 (4) administer money received for abandoned mine
959-14 reclamation or related purposes.
959-15 Sec. 134.142. ELIGIBILITY OF LAND AND WATER. Land and water
959-16 are eligible for reclamation or abatement expenditures if:
959-17 (1) the land was mined for coal or was affected by
959-18 coal mining, waste banks, coal processing, or other coal mining
959-19 processing;
959-20 (2) the land was abandoned or inadequately reclaimed
959-21 before August 3, 1977; and
959-22 (3) there is no continuing reclamation responsibility
959-23 for the land under state or federal law.
959-24 Sec. 134.143. RIGHT OF ENTRY. The commission may enter any
959-25 property to conduct studies or exploratory work to determine:
959-26 (1) the existence of adverse effects of past coal
959-27 mining practices; and
960-1 (2) the feasibility of reclamation.
960-2 Sec. 134.144. RECLAMATION BY COMMISSION. (a) The
960-3 commission may enter property adversely affected by past coal
960-4 mining practices or other property necessary to have access to that
960-5 property to do the things necessary or expedient to reclaim the
960-6 property if the commission:
960-7 (1) makes a finding of fact that:
960-8 (A) land or water resources have been adversely
960-9 affected by past coal mining practices;
960-10 (B) the adverse effects are at a stage at which,
960-11 in the public interest, action to reclaim the land or water
960-12 resources should be taken; and
960-13 (C) the owners of the land or water resources
960-14 where entry must be made to reclaim the land or water resources:
960-15 (i) are not known or readily available; or
960-16 (ii) will not permit this state or a
960-17 political subdivision to enter the property to reclaim the land or
960-18 water resources; and
960-19 (2) gives notice by mail to the owners, if known, or,
960-20 if not known, by posting notice on the premises and advertising
960-21 once in a newspaper of general circulation in the county in which
960-22 the land lies.
960-23 (b) The money expended for the work and the benefits
960-24 accruing to the premises entered are chargeable against the land
960-25 and mitigate or offset a claim for, or an action brought by an
960-26 owner of an interest in the premises for, damages from the entry.
960-27 This subsection does not create a new right of action or eliminate
961-1 an existing immunity.
961-2 Sec. 134.145. ACQUISITION. This state may acquire by
961-3 purchase, donation, or condemnation land that is adversely affected
961-4 by past coal mining practices if:
961-5 (1) it is in the public interest; and
961-6 (2) the commission determines that:
961-7 (A) acquiring the land is necessary for
961-8 successful reclamation;
961-9 (B) the acquired land, after reclamation, will:
961-10 (i) serve recreational and historical
961-11 purposes;
961-12 (ii) serve conservation and reclamation
961-13 purposes; or
961-14 (iii) provide open space benefits; and
961-15 (C) permanent facilities such as a treatment
961-16 plant or a relocated stream channel will be constructed on the land
961-17 for the reclamation, acquisition of coal refuse disposal sites and
961-18 the coal refuse on those sites will serve the purposes of this
961-19 section, or public ownership is desirable to meet emergency
961-20 situations and prevent recurrences of the adverse effects of past
961-21 coal mining practices.
961-22 Sec. 134.146. TITLE. Title to land acquired under Section
961-23 134.145 shall be in the name of this state.
961-24 Sec. 134.147. COST OF LAND. The price paid for land
961-25 acquired under Section 134.145 shall reflect the market value of
961-26 the land as adversely affected by past coal mining practices.
961-27 Sec. 134.148. SALE OF ACQUIRED LAND. (a) If land acquired
962-1 under Section 134.145 is considered suitable for industrial,
962-2 commercial, residential, or recreational development, this state
962-3 may sell the land by public sale under a system of competitive
962-4 bidding at not less than fair market value and under rules adopted
962-5 to ensure that the land is put to proper use consistent with local
962-6 plans, if any, as determined by the commission.
962-7 (b) The land may be sold only when authorized by the
962-8 secretary of the interior if federal money was involved in the
962-9 acquisition of the land to be sold.
962-10 Sec. 134.149. HEARING ON SALE. (a) The commission, after
962-11 appropriate public notice and on request, shall hold a public
962-12 hearing in the county or counties in which land acquired under
962-13 Section 134.145 is located.
962-14 (b) The hearing shall be held at a time that gives residents
962-15 and local governments maximum opportunity to participate in the
962-16 decision about the use or disposition of the land after
962-17 reclamation.
962-18 Sec. 134.150. LIEN. (a) Not later than six months after
962-19 the date projects to reclaim privately owned land are completed,
962-20 the commission:
962-21 (1) shall itemize the money spent; and
962-22 (2) may file a statement of the money spent with the
962-23 clerk of the county in which the land lies, together with a
962-24 notarized appraisal by an independent appraiser of the value of the
962-25 land before the reclamation if the money spent will result in a
962-26 significant increase in property value.
962-27 (b) The statement is a lien on the land second only to a
963-1 property tax lien. The amount of the lien may not exceed the
963-2 amount determined by either of two appraisals to be the increase in
963-3 the market value of the land as a result of the reclamation.
963-4 (c) A lien may not be filed under this section against the
963-5 property of a person who:
963-6 (1) owned the surface before May 2, 1977; and
963-7 (2) did not consent to, participate in, or exercise
963-8 control over the mining operation that necessitated the reclamation
963-9 performed under this chapter.
963-10 Sec. 134.151. HEARING ON LIEN. Not later than the 60th day
963-11 after the date the lien is filed, an affected landowner may
963-12 petition the commission for a hearing on the amount of the lien.
963-13 The hearing and any appeal shall be conducted under Chapter 2001,
963-14 Government Code.
963-15 Sec. 134.152. EMERGENCY POWERS. (a) The commission may
963-16 spend money available for abandoned mine reclamation for the
963-17 emergency reclamation of eligible land and water if the commission
963-18 finds that:
963-19 (1) an emergency exists constituting a danger to the
963-20 public health, safety, or general welfare; and
963-21 (2) there is not another person who will act
963-22 expeditiously to abate the emergency by reclamation.
963-23 (b) The commission may enter land where an emergency exists
963-24 and other land necessary to have access to that land to:
963-25 (1) abate the emergency by reclamation; and
963-26 (2) do the things necessary or expedient to protect
963-27 the public health, safety, or general welfare.
964-1 (c) Entry under this section is an exercise of the police
964-2 power and not an act of condemnation of property or trespass.
964-3 (d) Money spent under this section and the benefits accruing
964-4 to the premises entered are chargeable against the land and
964-5 mitigate or offset a claim for, or an action brought by an owner of
964-6 an interest in the premises for, damages by virtue of the entry.
964-7 This subsection does not create a new right of action or eliminate
964-8 an existing immunity.
964-9 (Sections 134.153-134.160 reserved for expansion
964-10 SUBCHAPTER H. ENFORCEMENT
964-11 Sec. 134.161. CONDITION, PRACTICE, OR VIOLATION CREATING
964-12 IMMINENT DANGER OR CAUSING IMMINENT HARM. (a) The commission or
964-13 its authorized representative shall immediately order the cessation
964-14 of surface coal mining operations or the relevant part of those
964-15 operations if, after an inspection, the commission or its
964-16 authorized representative determines that:
964-17 (1) a condition exists, a practice exists, or a
964-18 violation of this chapter or a permit condition required by this
964-19 chapter exists; and
964-20 (2) the condition, practice, or violation:
964-21 (A) creates an imminent danger to the health or
964-22 safety of the public; or
964-23 (B) is causing or can reasonably be expected to
964-24 cause significant imminent environmental harm to land, air, or
964-25 water resources.
964-26 (b) The commission, in addition to the cessation order,
964-27 shall require the operator to take any steps the commission
965-1 considers necessary to completely abate the imminent danger to
965-2 health or safety or significant imminent environmental harm if the
965-3 commission finds that the ordered cessation will not completely
965-4 abate the imminent danger or environmental harm.
965-5 Sec. 134.162. VIOLATION NOT CREATING IMMINENT DANGER OR
965-6 CAUSING IMMINENT HARM. (a) The commission or its authorized
965-7 representative shall issue a notice to a permit holder who is
965-8 violating this chapter or a permit condition required by this
965-9 chapter and shall set a reasonable time not to exceed 90 days for
965-10 abating the violation if, after an inspection, the commission or
965-11 its authorized representative determines that:
965-12 (1) the permit holder is violating this chapter or a
965-13 permit condition required by this chapter; and
965-14 (2) the violation:
965-15 (A) does not create an imminent danger to the
965-16 health or safety of the public; and
965-17 (B) is not causing or reasonably expected to
965-18 cause significant imminent environmental harm to land, air, or
965-19 water resources.
965-20 (b) The commission or its authorized representative shall
965-21 order a cessation of surface mining operations or the part of the
965-22 operations relevant to the violation if:
965-23 (1) the time for abatement, as originally set or
965-24 subsequently extended, expires;
965-25 (2) the commission or its authorized representative
965-26 shows good cause; and
965-27 (3) the commission or its authorized representative
966-1 finds in writing that the violation has not been abated.
966-2 Sec. 134.163. TERM OF CESSATION ORDER. Except as provided
966-3 by Section 134.167, a cessation order under Section 134.161 or
966-4 134.162 remains in effect until the commission:
966-5 (1) determines the violation has been abated; or
966-6 (2) modifies, vacates, or terminates the order under
966-7 Section 134.166.
966-8 Sec. 134.164. CONTINUOUS VIOLATION. (a) The commission
966-9 shall issue an order to a permit holder promptly to show cause why
966-10 a permit should not be suspended or revoked if, after an
966-11 inspection:
966-12 (1) the commission has reason to believe that a
966-13 pattern of violations of this chapter or of permit conditions
966-14 required by this chapter exists or has existed; and
966-15 (2) the commission or its authorized representative
966-16 finds that the violations are:
966-17 (A) caused by the failure of the permit holder
966-18 to comply with this chapter or the permit conditions because of
966-19 indifference, lack of diligence, or lack of reasonable care; or
966-20 (B) wilfully caused by the permit holder.
966-21 (b) The order shall set a time, place, and date for a public
966-22 hearing. The hearing is of record and is subject to Chapter 2001,
966-23 Government Code.
966-24 (c) The commission shall promptly suspend or revoke the
966-25 permit if the permit holder does not show cause why the permit
966-26 should not be suspended or revoked.
966-27 (d) The permit holder shall immediately stop surface coal
967-1 mining operations on the permit area and shall complete reclamation
967-2 within a time specified by the commission if the commission revokes
967-3 the permit. The commission shall declare the performance bonds for
967-4 the operation forfeited if the permit holder fails to comply with
967-5 this subsection.
967-6 Sec. 134.165. FORM OF NOTICE OR ORDER. (a) A notice or
967-7 order issued under Section 134.161, 134.162, or 134.164 shall:
967-8 (1) state with reasonable specificity the nature of
967-9 the violation and the remedial action required;
967-10 (2) state the time established for abatement; and
967-11 (3) reasonably describe the part of the surface coal
967-12 mining and reclamation operation to which the notice or order
967-13 applies.
967-14 (b) The commission or its authorized representative shall
967-15 promptly give the notice or order to the permit holder or the
967-16 permit holder's agent.
967-17 Sec. 134.166. MODIFICATION, VACATION, OR TERMINATION OF
967-18 NOTICE OR ORDER. The commission or its authorized representative
967-19 may modify, vacate, or terminate a notice or order issued under
967-20 Section 134.161, 134.162, or 134.164.
967-21 Sec. 134.167. EXPIRATION OF NOTICE OR ORDER. If a notice or
967-22 order issued under Section 134.161, 134.162, or 134.164 requires
967-23 the operator to stop mining, the notice or order expires not later
967-24 than the 30th day after the date of actual notice to the operator
967-25 unless a public hearing is held at or reasonably near the site so
967-26 that the site can be viewed during the hearing.
967-27 Sec. 134.168. APPLICATION FOR COMMISSION REVIEW OF NOTICE OR
968-1 ORDER. (a) A permit holder to whom the commission issues a notice
968-2 or order under Section 134.161 or 134.162 or an affected person may
968-3 apply to the commission for review of the notice or order not later
968-4 than the 30th day after the date of receipt of the notice or order
968-5 or the date the notice or order is modified, vacated, or
968-6 terminated.
968-7 (b) The filing of an application for review under this
968-8 section does not stay a notice or order.
968-9 Sec. 134.169. INVESTIGATION AND HEARING ON APPLICATION FOR
968-10 REVIEW. (a) On receipt of an application filed under Section
968-11 134.168, the commission shall investigate as it considers
968-12 appropriate.
968-13 (b) The investigation shall provide an opportunity for a
968-14 public hearing, at the request of the applicant or the affected
968-15 person, to enable the applicant or the person to present
968-16 information relating to the issuance and continuance of the notice
968-17 or order or the modification, vacation, or termination of the
968-18 notice or order.
968-19 (c) The permit holder and other affected persons shall be
968-20 given written notice of the time and place of the hearing not later
968-21 than the sixth day before the date of the hearing.
968-22 (d) The hearing is of record and is subject to Chapter 2001,
968-23 Government Code.
968-24 Sec. 134.170. COMMISSION FINDINGS AND DECISION. (a) On
968-25 receiving the investigation report, the commission shall:
968-26 (1) make findings of fact; and
968-27 (2) issue a written decision incorporating:
969-1 (A) its findings; and
969-2 (B) an order vacating, affirming, modifying, or
969-3 terminating:
969-4 (i) the notice or order; or
969-5 (ii) the modification, vacation, or
969-6 termination of the notice or order.
969-7 (b) If the application for review concerns a cessation order
969-8 issued under Section 134.161 or 134.162, the commission shall issue
969-9 the written decision not later than the 30th day after the date it
969-10 receives the application for review unless it grants temporary
969-11 relief under Section 134.171.
969-12 Sec. 134.171. REQUEST FOR TEMPORARY RELIEF. (a) Before the
969-13 investigation and hearing required by Section 134.169 are
969-14 completed, the applicant may file with the commission a written
969-15 request that the commission grant temporary relief from a notice or
969-16 order issued under Section 134.161 or 134.162, together with a
969-17 detailed statement giving reasons for granting the relief.
969-18 (b) The commission shall promptly issue an order or decision
969-19 granting or denying the relief. If the applicant requests relief
969-20 from a cessation order issued under Section 134.161 or 134.162, the
969-21 order or decision on the request shall be issued not later than the
969-22 fifth day after the date the request is received.
969-23 (c) The commission may grant the relief, under conditions
969-24 prescribed by the commission, if:
969-25 (1) a hearing has been held:
969-26 (A) in the locality of the permit area on the
969-27 request for temporary relief; and
970-1 (B) in which all parties have had an opportunity
970-2 to be heard;
970-3 (2) the applicant shows that there is a substantial
970-4 likelihood that the findings of the commission will favor the
970-5 applicant; and
970-6 (3) the relief will not:
970-7 (A) adversely affect the health or safety of the
970-8 public; or
970-9 (B) cause significant, imminent environmental
970-10 harm to land, air, or water resources.
970-11 Sec. 134.172. ASSESSMENT OF COSTS INCURRED IN ADMINISTRATIVE
970-12 PROCEEDING OR JUDICIAL REVIEW. (a) If the commission issues an
970-13 order under Sections 134.161-134.171 or in an administrative
970-14 proceeding under this chapter, the commission may, on request of
970-15 any person, assess against the person to whom the order is issued
970-16 or the commission the costs and expenses, including attorney's
970-17 fees, that the commission determines the requestor reasonably
970-18 incurred in connection with the requestor's participation in the
970-19 action or proceeding.
970-20 (b) If the commission issues an order under Sections
970-21 134.161-134.171 or in an administrative proceeding under this
970-22 chapter and the commission's decision is appealed, the court may,
970-23 on request of any person, assess against the person to whom the
970-24 order is issued or the commission the costs and expenses, including
970-25 attorney's fees, that the commission determines the requestor
970-26 reasonably incurred in connection with the requestor's
970-27 participation in judicial review of the action or proceeding.
971-1 Sec. 134.173. CIVIL ACTION. (a) The commission may request
971-2 the attorney general to institute a civil action for relief,
971-3 including a permanent or temporary injunction, restraining order,
971-4 or other appropriate order, if the permit holder:
971-5 (1) violates or does not comply with an order or
971-6 decision issued by the commission under this chapter;
971-7 (2) interferes with, hinders, or delays the commission
971-8 or its authorized representative in carrying out Sections
971-9 134.161-134.172;
971-10 (3) refuses to admit an authorized representative to
971-11 the mine;
971-12 (4) refuses to allow an authorized representative to
971-13 inspect the mine;
971-14 (5) refuses to furnish information or a report
971-15 requested by the commission under the commission's rules; or
971-16 (6) refuses to allow access to and copying of records
971-17 the commission determines reasonably necessary to carry out this
971-18 chapter.
971-19 (b) The action shall be brought in a district court in
971-20 Travis County or in the county in which the greater part of the
971-21 surface mining and reclamation operation is located.
971-22 (c) The court has jurisdiction to provide appropriate
971-23 relief.
971-24 (d) Relief granted by the court to enforce Subsection (a)(1)
971-25 continues in effect until the earlier of the date on which:
971-26 (1) all proceedings for review of the order are
971-27 completed or finally terminated; or
972-1 (2) the court sets aside or modifies the order.
972-2 Sec. 134.174. ADMINISTRATIVE PENALTY FOR VIOLATION OF PERMIT
972-3 CONDITION OR THIS CHAPTER. (a) The commission may assess an
972-4 administrative penalty against a person who violates a permit
972-5 condition or this chapter. The commission shall assess an
972-6 administrative penalty if the violation leads to the issuance of a
972-7 cessation order.
972-8 (b) The penalty may not exceed $5,000 for each violation.
972-9 Each day a violation continues may be considered a separate
972-10 violation for purposes of penalty assessments.
972-11 (c) In determining the amount of the penalty, the commission
972-12 shall consider:
972-13 (1) the person's history of violations at the
972-14 particular surface coal mining operation;
972-15 (2) the seriousness of the violation, including:
972-16 (A) any irreparable harm to the environment; and
972-17 (B) any hazard to the health or safety of the
972-18 public;
972-19 (3) whether the person was negligent; and
972-20 (4) the demonstrated good faith of the person in
972-21 attempting to comply rapidly after notification of the violation.
972-22 Sec. 134.175. PENALTY ASSESSMENT PROCEDURE. (a) The
972-23 commission may assess an administrative penalty under Section
972-24 134.174 only after giving the person charged with a violation an
972-25 opportunity for a public hearing.
972-26 (b) If a public hearing is held, the commission shall make
972-27 findings of fact and issue a written decision as to the occurrence
973-1 of the violation and the amount of the penalty. The decision shall
973-2 incorporate, if appropriate, an order to pay the penalty.
973-3 (c) If appropriate, the commission shall consolidate the
973-4 hearing with other proceedings under Sections 134.161-134.173. A
973-5 hearing under this section is of record and is subject to Chapter
973-6 2001, Government Code.
973-7 (d) If the person does not take the opportunity for a public
973-8 hearing, the commission may assess an administrative penalty after
973-9 determining that a violation has occurred and the amount of the
973-10 penalty. The commission shall then issue an order to pay the
973-11 penalty.
973-12 Sec. 134.176. PAYMENT OF PENALTY; REFUND. (a) Not later
973-13 than the 30th day after the date the commission issues a notice or
973-14 order charging that a violation of this chapter has occurred, the
973-15 commission shall inform the person charged of the proposed amount
973-16 of the penalty.
973-17 (b) Not later than the 30th day after the date the person is
973-18 informed under Subsection (a), the person shall:
973-19 (1) pay the proposed penalty in full; or
973-20 (2) forward the proposed amount to the commission for
973-21 placement in an escrow account if the person wishes to contest the
973-22 amount of the penalty or the fact of the violation.
973-23 (c) If administrative or judicial review of the proposed
973-24 penalty determines that a violation did not occur or that the
973-25 amount of the penalty should be reduced, the commission, not later
973-26 than the 30th day after the date of the determination, shall remit
973-27 the appropriate amount to the person, with interest at the
974-1 prevailing United States Department of the Treasury rate.
974-2 Sec. 134.177. ADMINISTRATIVE PENALTY FOR FAILING TO CORRECT
974-3 VIOLATION FOR WHICH CITATION HAS BEEN ISSUED. (a) The commission
974-4 shall assess a person who does not correct a violation for which a
974-5 citation has been issued under Section 134.161 within the time
974-6 permitted for its correction an administrative penalty of not less
974-7 than $750 for each day the violation continues after that time.
974-8 (b) If the person initiates a review proceeding in which the
974-9 commission orders, after an expedited hearing, the suspension of
974-10 the abatement requirements of the citation after determining that
974-11 the person will suffer irreparable loss or damage from the
974-12 application of those requirements, the period during which the
974-13 person must correct the violation before the commission may impose
974-14 an administrative penalty under this section expires when the
974-15 commission enters a final order.
974-16 (c) If the person initiates a review proceeding in which a
974-17 court orders the suspension of an abatement requirement of the
974-18 citation, the period during which the person must correct the
974-19 violation before the commission may impose an administrative
974-20 penalty under this section expires when the court enters an order.
974-21 Sec. 134.178. RECOVERY OF ADMINISTRATIVE PENALTY. The
974-22 attorney general at the request of the commission may bring a civil
974-23 action to recover an administrative penalty owed under this
974-24 chapter.
974-25 Sec. 134.179. CRIMINAL PENALTY FOR WILFUL AND KNOWING
974-26 VIOLATION. (a) A person commits an offense if the person wilfully
974-27 and knowingly violates a condition of a permit issued under this
975-1 chapter or does not comply with an order issued under this chapter,
975-2 except an order incorporated in a decision issued by the commission
975-3 under Section 134.175.
975-4 (b) An offense under this section is punishable by:
975-5 (1) a fine of not more than $10,000;
975-6 (2) imprisonment for not more than one year; or
975-7 (3) both the fine and the imprisonment.
975-8 Sec. 134.180. CRIMINAL PENALTY FOR FALSE STATEMENT,
975-9 REPRESENTATION, OR CERTIFICATION. (a) A person commits an offense
975-10 if the person knowingly makes a false statement, representation, or
975-11 certification, or knowingly fails to make a statement,
975-12 representation, or certification, in an application, record,
975-13 report, or other document filed or required to be maintained under
975-14 this chapter or under an order of decision issued by the commission
975-15 under this chapter.
975-16 (b) An offense under this section is punishable by:
975-17 (1) a fine of not more than $10,000;
975-18 (2) imprisonment for not more than one year; or
975-19 (3) both the fine and the imprisonment.
975-20 Sec. 134.181. PENALTY FOR DIRECTOR, OFFICER, OR AGENT OF
975-21 CORPORATION. (a) If a corporation violates a condition of a
975-22 permit issued under this chapter or does not comply with an order
975-23 issued under Section 134.161, 134.162, 134.164, 134.166, 134.170,
975-24 134.171, 134.172, or 134.173 or an order incorporated in a final
975-25 decision issued by the commission under this chapter, a director,
975-26 officer, or agent of the corporation who wilfully and knowingly
975-27 authorized, ordered, or carried out the violation or noncompliance
976-1 is subject to the same administrative penalties, fines, and
976-2 imprisonment that may be imposed under Sections 134.174 and
976-3 134.179.
976-4 (b) Subsection (a) does not apply to the violation of an
976-5 order incorporated in a decision issued by the commission under
976-6 Section 134.175.
976-7 Sec. 134.182. CITIZEN SUIT. (a) Except as provided by
976-8 Subsection (d), an affected person may bring a civil action to
976-9 compel compliance with this chapter against:
976-10 (1) the commission if the person alleges the
976-11 commission did not perform a nondiscretionary act under this
976-12 chapter;
976-13 (2) a state governmental instrumentality or agency if
976-14 the person alleges the instrumentality or agency is violating this
976-15 chapter or a rule, order, or permit adopted or issued under this
976-16 chapter; or
976-17 (3) any other person if the person alleges the other
976-18 person is violating a rule, order, or permit adopted or issued
976-19 under this chapter.
976-20 (b) A person who is injured or whose property is damaged by
976-21 a permit holder's violation of a rule, order, or permit adopted or
976-22 issued under this chapter may bring an action for damages,
976-23 including reasonable attorney's and expert witness's fees.
976-24 (c) Subsection (b) does not affect the rights established by
976-25 or limits imposed under the workers' compensation laws of this
976-26 state.
976-27 (d) A person may not bring an action under Subsection (a)(2)
977-1 or (3) if the state has brought and is diligently prosecuting a
977-2 civil action in state or federal court to require compliance with
977-3 this chapter or a rule, order, or permit adopted or issued under
977-4 this chapter.
977-5 Sec. 134.183. NOTICE TO COMMISSION BEFORE BRINGING SUIT;
977-6 SUIT BY STATE. (a) A person must give written notice to the
977-7 commission of an action under Section 134.182(a)(1) not later than
977-8 the 61st day before the date the person brings the action.
977-9 (b) The person must give notice under Subsection (a) as
977-10 prescribed by commission rule.
977-11 (c) The person may bring the action immediately after
977-12 notifying the commission if the violation or order complained of:
977-13 (1) constitutes an imminent threat to the health or
977-14 safety of the person; or
977-15 (2) would immediately affect a legal interest of the
977-16 person.
977-17 (d) A person must give written notice of the violation to
977-18 the commission and any alleged violator not later than the 61st day
977-19 before the date the person brings an action under Section
977-20 134.182(a)(2) or (3).
977-21 Sec. 134.184. VENUE. A person may bring an action under
977-22 Section 134.182 only in the judicial district in which the surface
977-23 coal mining operation complained of is located.
977-24 Sec. 134.185. INTERVENTION BY COMMISSION. The commission
977-25 may intervene as a matter of right in an action brought under
977-26 Section 134.182.
977-27 Sec. 134.186. COSTS OF SUIT; FILING OF BOND. (a) In
978-1 issuing a final order in an action brought under Section
978-2 134.182(a), a court may award a party litigation costs, including
978-3 attorney's and expert witness's fees, if the court determines the
978-4 award is appropriate.
978-5 (b) The court may require a person to file a bond or
978-6 equivalent security in accordance with the Texas Rules of Civil
978-7 Procedure if the person seeks a temporary restraining order or
978-8 preliminary injunction.
978-9 Sec. 134.187. RIGHTS UNDER OTHER LAW. Sections
978-10 134.182-134.186 do not restrict any right a person or class of
978-11 persons may have under a statute or common law to seek enforcement
978-12 of this chapter and rules adopted under this chapter or to seek
978-13 other relief, including relief against the commission.
978-14 Sec. 134.188. DEFENSE. It is a defense to a civil or
978-15 criminal penalty under this chapter that a person allegedly
978-16 conducting an iron ore or iron ore gravel mining and reclamation
978-17 operation in violation of this chapter has a written general
978-18 warranty of ownership of land, separate from any lease, from the
978-19 person authorizing the operation.
978-20 SECTION 12.03. (a) Notwithstanding amendments to Chapter
978-21 182, Natural Resources Code, made by the 70th Legislature, Regular
978-22 Session, 1987, correcting references to the Texas Tourist
978-23 Development Agency, Chapter 182, Natural Resources Code, is
978-24 repealed to reflect the expiration on September 1, 1983, of the law
978-25 from which it was derived (Article 6145-10, Vernon's Texas Civil
978-26 Statutes).
978-27 (b) Section 2.081, Chapter 735, Acts of the 65th
979-1 Legislature, Regular Session, 1977, is repealed.
979-2 ARTICLE 13. CHANGES RELATING TO PARKS AND WILDLIFE CODE
979-3 SECTION 13.01. Sections 31.041(b) and (d), Parks and
979-4 Wildlife Code, as amended by Chapters 450 and 587, Acts of the 73rd
979-5 Legislature, Regular Session, 1993, are reenacted to read as
979-6 follows:
979-7 (b) The application for a number must state that the
979-8 applicant is a dealer or manufacturer within the meaning of this
979-9 chapter, and the facts stated on the application must be sworn
979-10 before an officer authorized to administer oaths. The application
979-11 must be accompanied by photographs of the business sufficient to
979-12 show any sign the business is required to display and the extent of
979-13 the space the business is required to maintain. The application
979-14 must also be accompanied by a copy of the tax permit of the dealer
979-15 or manufacturer issued by the comptroller under Chapter 151, Tax
979-16 Code, if the dealer or manufacturer has a tax permit. The two-year
979-17 fee for a dealer's and manufacturer's number is $45 or an amount
979-18 set by the commission, whichever amount is more. No number may be
979-19 issued until the provisions of this section have been satisfied.
979-20 (d) A dealer or manufacturer holding a dealer's and
979-21 manufacturer's number may transfer a certificate of number or a
979-22 certificate of title to a vessel or outboard motor without securing
979-23 a certificate of number or certificate of title in the dealer's or
979-24 manufacturer's name if the vessel or outboard motor is sold in the
979-25 normal course of the dealer's or manufacturer's business. Any
979-26 other person transferring a vessel or outboard motor must secure a
979-27 certificate of number or certificate of title in the person's name
980-1 before transferring the certificate of number or the certificate of
980-2 title.
980-3 ARTICLE 14. CHANGES RELATING TO ADOPTION OF REVISED PENAL CODE
980-4 SECTION 14.01. Section 5.141(a), Alcoholic Beverage Code, is
980-5 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
980-6 of the 73rd Legislature, Regular Session, 1993, to read as follows:
980-7 (a) A commissioned inspector or representative of the
980-8 commission may purchase for an amount set by the commission, not to
980-9 exceed fair market value, a firearm issued to the inspector or
980-10 representative by the commission if the firearm is not listed as a
980-11 prohibited weapon under Section 46.05 <46.06>, Penal Code, and if
980-12 the firearm is retired by the commission for replacement purposes.
980-13 SECTION 14.02. Section 104.0035(c), Civil Practice and
980-14 Remedies Code, is amended to conform to Sections 1.01 and 1.15,
980-15 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
980-16 Session, 1993, to read as follows:
980-17 (c) This section does not apply to a person who is
980-18 criminally prosecuted for operating a motor vehicle <driving> while
980-19 intoxicated under Section 49.04, Penal Code <Article 6701l-1,
980-20 Revised Statutes>, for intoxication assault committed while
980-21 operating a motor vehicle under Section 49.07, Penal Code, or for
980-22 intoxication <involuntary> manslaughter under Section 49.08
980-23 <19.05(a)(2)>, Penal Code.
980-24 SECTION 14.03. Section 125.001, Civil Practice and Remedies
980-25 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
980-26 857, Acts of the 73rd Legislature, Regular Session, 1993, is
980-27 amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
981-1 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
981-2 as follows:
981-3 Sec. 125.001. Common Nuisance. A person who knowingly
981-4 maintains a place to which persons habitually go for the purpose of
981-5 prostitution or gambling in violation of the Penal Code, <for the
981-6 purpose of reckless discharge of a firearm as described by Section
981-7 42.015, Penal Code,> for the purpose of engaging in organized
981-8 criminal activity as a member of a combination <or as a member of a
981-9 criminal street gang> as described by Section 71.02, Penal Code, or
981-10 for the delivery or use of a controlled substance in violation of
981-11 Chapter 481, Health and Safety Code, maintains a common nuisance.
981-12 SECTION 14.04. Section 125.004(a), Civil Practice and
981-13 Remedies Code, is amended to conform to Sections 1.01 and 13.02,
981-14 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
981-15 Session, 1993, to read as follows:
981-16 (a) Proof that prostitution or gambling in violation of the
981-17 Penal Code<, that reckless discharge of a firearm as described by
981-18 Section 42.015, Penal Code,> or that the delivery or use of a
981-19 controlled substance in violation of Chapter 481, Health and Safety
981-20 Code, is frequently committed at the place involved <or that the
981-21 place is frequently used for reckless discharge of a firearm as
981-22 described by Section 42.015, Penal Code,> is prima facie evidence
981-23 that the proprietor knowingly permitted the act.
981-24 SECTION 14.05. Section 125.004(b), Civil Practice and
981-25 Remedies Code, as amended by Section 3, Chapter 857, and Section 2,
981-26 Chapter 968, Acts of the 73rd Legislature, Regular Session, 1993,
981-27 is amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
982-1 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
982-2 as follows:
982-3 (b) Evidence that persons have been convicted of gambling,
982-4 committing prostitution, <reckless discharge of a firearm as
982-5 described by Section 42.015, Penal Code,> engaging in organized
982-6 criminal activity as a member of a combination <or a criminal
982-7 street gang> as described by Section 71.02, Penal Code, or
982-8 delivering or using a controlled substance in violation of Chapter
982-9 481, Health and Safety Code, in the place involved is admissible to
982-10 show knowledge on the part of the defendant that the act occurred.
982-11 The originals or certified copies of the papers and judgments of
982-12 those convictions are admissible in the suit for injunction, and
982-13 oral evidence is admissible to show that the offense for which a
982-14 person was convicted was committed at the place involved.
982-15 SECTION 14.06. Section 125.004(g), Civil Practice and
982-16 Remedies Code, is amended to conform to Sections 1.01 and 13.02,
982-17 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
982-18 Session, 1993, to read as follows:
982-19 (g) Proof that organized criminal activity by a member of a
982-20 combination <or a criminal street gang> as described by Section
982-21 71.02, Penal Code, is frequently committed at a place or proof that
982-22 a place is frequently used for engaging in organized criminal
982-23 activity by a member of a combination <or a criminal street gang>
982-24 as described by Section 71.02, Penal Code, is prima facie evidence
982-25 that the proprietor knowingly permitted the act, unless the act
982-26 constitutes conspiring to commit an offense as described by Section
982-27 71.02, Penal Code.
983-1 SECTION 14.07. Section 125.021, Civil Practice and Remedies
983-2 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
983-3 857, Acts of the 73rd Legislature, Regular Session, 1993, is
983-4 amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
983-5 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
983-6 as follows:
983-7 Sec. 125.021. Public Nuisance. The habitual use or the
983-8 threatened or contemplated habitual use of any place for any of the
983-9 following purposes is a public nuisance:
983-10 (1) gambling, gambling promotion, or communicating
983-11 gambling information prohibited by law;
983-12 (2) promotion or aggravated promotion of prostitution;
983-13 (3) compelling prostitution;
983-14 (4) commercial manufacture, commercial distribution,
983-15 or commercial exhibition of obscene material;
983-16 (5) commercial exhibition of live dances or other acts
983-17 depicting real or simulated sexual intercourse or deviate sexual
983-18 intercourse;
983-19 (6) engaging in a voluntary fight between a man and a
983-20 bull if the fight is for a thing of value or a championship, if a
983-21 thing of value is wagered on the fight, or if an admission fee for
983-22 the fight is directly or indirectly charged, as prohibited by law;
983-23 <(7) reckless discharge of a firearm as described by
983-24 Section 42.015, Penal Code; or>
983-25 (7) engaging in organized criminal activity as a
983-26 member of a combination <or as a member of a criminal street gang>
983-27 as described by Section 71.02, Penal Code; or
984-1 (8) delivering or using a controlled substance in
984-2 violation of Chapter 481, Health and Safety Code.
984-3 SECTION 14.08. Section 125.041, Civil Practice and Remedies
984-4 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
984-5 857, Acts of the 73rd Legislature, Regular Session, 1993, is
984-6 amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
984-7 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
984-8 as follows:
984-9 Sec. 125.041. Public Nuisance. For the purposes of this
984-10 subchapter, a public nuisance is considered to exist at a place if
984-11 one or more of the following acts occurs at that place on a regular
984-12 basis:
984-13 (1) gambling, gambling promotion, or communication of
984-14 gambling information, as prohibited by Chapter 47, Penal Code;
984-15 (2) promotion or aggravated promotion of prostitution,
984-16 as prohibited by Chapter 43, Penal Code;
984-17 (3) compelling prostitution, as prohibited by Chapter
984-18 43, Penal Code;
984-19 (4) commercial manufacture, commercial distribution,
984-20 or commercial exhibition of material that is obscene, as defined by
984-21 Section 43.21, Penal Code;
984-22 (5) commercial exhibition of a live dance or other act
984-23 in which a person engages in real or simulated sexual intercourse
984-24 or deviate sexual intercourse, as defined by Section 43.01, Penal
984-25 Code;
984-26 <(6) reckless discharge of a firearm as described by
984-27 Section 42.015, Penal Code; or>
985-1 (6) engaging in organized criminal activity as a
985-2 member of a combination <or as a member of a criminal street gang>
985-3 as described by Section 71.02, Penal Code; or
985-4 (7) manufacture, delivery, or use of a controlled
985-5 substance in violation of Chapter 481, Health and Safety Code.
985-6 SECTION 14.09. The heading for Subchapter D, Chapter 125,
985-7 Civil Practice and Remedies Code, is amended to conform to Sections
985-8 1.01 and 13.02, Chapter 900 (S.B. 1067), Acts of the 73rd
985-9 Legislature, Regular Session, 1993, to read as follows:
985-10 SUBCHAPTER D. ORGANIZED CRIMINAL ACTIVITY <MEMBERSHIP
985-11 IN CRIMINAL STREET GANG>
985-12 SECTION 14.10. Section 125.061, Civil Practice and Remedies
985-13 Code, is amended to conform to Sections 1.01 and 13.02, Chapter 900
985-14 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
985-15 to read as follows:
985-16 Sec. 125.061. DEFINITIONS. In this subchapter,
985-17 "combination" has the meaning <and "criminal street gang" have the
985-18 meanings> assigned by Section 71.01, Penal Code.
985-19 SECTION 14.11. Section 125.062, Civil Practice and Remedies
985-20 Code, is amended to conform to Sections 1.01 and 13.02, Chapter 900
985-21 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
985-22 to read as follows:
985-23 Sec. 125.062. Public Nuisance; Combination <OR CRIMINAL
985-24 STREET GANG>. A combination <or criminal street gang> that
985-25 continuously or regularly associates in organized criminal
985-26 activities as described by Section 71.02, Penal Code, is a public
985-27 nuisance.
986-1 SECTION 14.12. Section 125.064(b), Civil Practice and
986-2 Remedies Code, is amended to conform to Sections 1.01 and 13.02,
986-3 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
986-4 Session, 1993, to read as follows:
986-5 (b) Any person who habitually associates with others to
986-6 engage in organized criminal activity as a member of a combination
986-7 <or criminal street gang> may be made a defendant in the suit. Any
986-8 person who owns or is responsible for maintaining a place that is
986-9 habitually used for engaging in organized criminal activity as
986-10 described by Section 71.02, Penal Code, may be made a defendant in
986-11 the suit.
986-12 SECTION 14.13. Section 125.065(a), Civil Practice and
986-13 Remedies Code, is amended to conform to Sections 1.01 and 13.02,
986-14 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
986-15 Session, 1993, to read as follows:
986-16 (a) If the court finds that a combination <or criminal
986-17 street gang> constitutes a public nuisance, the court may enter an
986-18 order enjoining a defendant in the suit from engaging in the
986-19 organized criminal activities of the combination <or gang>.
986-20 SECTION 14.14. Section 125.069, Civil Practice and Remedies
986-21 Code, is amended to conform to Sections 1.01 and 13.02, Chapter 900
986-22 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
986-23 to read as follows:
986-24 Sec. 125.069. Use of Place; Evidence. In an action brought
986-25 under this subchapter, proof that organized criminal activity by a
986-26 member of a combination <or a criminal street gang> as described by
986-27 Section 71.02, Penal Code, is frequently committed at a place or
987-1 proof that a place is frequently used for engaging in organized
987-2 criminal activity by a member of a combination <or a criminal
987-3 street gang> as described by Section 71.02, Penal Code, is prima
987-4 facie evidence that the proprietor knowingly permitted the act,
987-5 unless, the act constitutes conspiring to commit an offense as
987-6 described by Section 71.02.
987-7 SECTION 14.15. Chapter 128, Civil Practice and Remedies
987-8 Code, is repealed to conform to Section 1.01, Chapter 900 (S.B.
987-9 1067), Acts of the 73rd Legislature, Regular Session, 1993.
987-10 SECTION 14.16. Article 5.07, Code of Criminal Procedure, is
987-11 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
987-12 of the 73rd Legislature, Regular Session, 1993, to read as follows:
987-13 Art. 5.07. Venue for protective order offenses. The venue
987-14 for an offense under Section 25.07 <25.08>, Penal Code, is in the
987-15 county in which the order was issued or, without regard to the
987-16 identity or location of the court that issued the protective order,
987-17 in the county in which the offense was committed.
987-18 SECTION 14.17. Articles 14.03(a) and (b), Code of Criminal
987-19 Procedure, are amended to conform to Section 1.01, Chapter 900
987-20 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
987-21 to read as follows:
987-22 (a) Any peace officer may arrest, without warrant:
987-23 (1) persons found in suspicious places and under
987-24 circumstances which reasonably show that such persons have been
987-25 guilty of some felony, violation of Title 9, Chapter 42, Penal
987-26 Code, breach of the peace, or offense under Section 49.02, Penal
987-27 Code, or threaten, or are about to commit some offense against the
988-1 laws;
988-2 (2) persons who the peace officer has probable cause
988-3 to believe have committed an assault resulting in bodily injury to
988-4 another person and the peace officer has probable cause to believe
988-5 that there is danger of further bodily injury to that person;
988-6 (3) persons who the peace officer has probable cause
988-7 to believe have committed the offense defined by Section 25.07
988-8 <25.08>, Penal Code (violation of Protective Order), if the offense
988-9 is not committed in the presence of the peace officer; or
988-10 (4) persons who the peace officer has probable cause
988-11 to believe have committed an assault resulting in bodily injury to
988-12 a member of the person's family or household.
988-13 (b) A peace officer shall arrest, without a warrant, a
988-14 person the peace officer has probable cause to believe has
988-15 committed an offense under Section 25.07 <25.08>, Penal Code
988-16 (violation of Protective Order), if the offense is committed in the
988-17 presence of the peace officer.
988-18 SECTION 14.18. Article 15.27(h), Code of Criminal Procedure,
988-19 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
988-20 Acts of the 73rd Legislature, Regular Session, 1993, to read as
988-21 follows:
988-22 (h) This article applies to:
988-23 (1) an offense listed in Section 8(c), Article 42.18,
988-24 Code of Criminal Procedure; reckless conduct, as described by
988-25 Section 22.05, Penal Code; or a terroristic threat, as described by
988-26 Section 22.07, Penal Code;
988-27 (2) the unlawful use, sale, or possession of a
989-1 controlled substance, drug paraphernalia, or marihuana, as defined
989-2 by Chapter 481, Health and Safety Code;
989-3 (3) the unlawful possession of any of the weapons or
989-4 devices listed in Sections 46.01(1)-(14) or (16), Penal Code; or a
989-5 weapon listed as a prohibited weapon under Section 46.05 <46.06>,
989-6 Penal Code; or
989-7 (4) a criminal offense under Section 71.02, Penal
989-8 Code.
989-9 SECTION 14.19. Article 17.03(b), Code of Criminal Procedure,
989-10 is amended to conform to Sections 1.01 and 2.02, Chapter 900 (S.B.
989-11 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
989-12 as follows:
989-13 (b) Only the court before whom the case is pending may
989-14 release on personal bond a defendant who:
989-15 (1) is charged with an offense under the following
989-16 sections of the Penal Code:
989-17 (A) Section 19.03 (Capital Murder);
989-18 (B) Section 20.04 (Aggravated Kidnapping);
989-19 (C) Section 22.021 (Aggravated Sexual Assault);
989-20 (D) Section 22.03 (Deadly Assault on Law
989-21 Enforcement or Corrections Officer, Member or Employee of Board of
989-22 Pardons and Paroles, or Court Participant);
989-23 (E) Section 22.04 (Injury to a Child, <or an>
989-24 Elderly Individual, or Disabled Individual);
989-25 (F) Section 29.03 (Aggravated Robbery);
989-26 (G) Section 30.02 (Burglary); or
989-27 (H) Section 71.02 (Engaging in Organized
990-1 Criminal Activity);
990-2 (2) is charged with a <an aggravated> felony under
990-3 Chapter 481, Health and Safety Code, or Section 485.033, Health and
990-4 Safety Code, punishable by imprisonment for a minimum term or by a
990-5 maximum fine that is more than a minimum term or maximum fine for a
990-6 first degree felony; or
990-7 (3) does not submit to testing for the presence of a
990-8 controlled substance in the defendant's body as requested by the
990-9 court or magistrate under Subsection (c) of this article or submits
990-10 to testing and the test shows evidence of the presence of a
990-11 controlled substance in the defendant's body.
990-12 SECTION 14.20. Article 17.032(a), Code of Criminal
990-13 Procedure, is amended to conform to Section 1.01, Chapter 900 (S.B.
990-14 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
990-15 as follows:
990-16 (a) In this article, "violent offense" means an offense
990-17 under the following sections of the Penal Code:
990-18 (1) Section 19.02 (murder);
990-19 (2) Section 19.03 (capital murder);
990-20 (3) Section 20.03 (kidnapping);
990-21 (4) Section 20.04 (aggravated kidnapping);
990-22 (5) Section 21.11 (indecency with a child);
990-23 (6) Section 22.01(a)(1) (assault);
990-24 (7) Section 22.011 (sexual assault);
990-25 (8) Section 22.02 (aggravated assault);
990-26 (9) Section 22.021 (aggravated sexual assault);
990-27 (10) Section 22.04 (injury to a child, elderly
991-1 individual, or disabled individual <invalid>); or
991-2 (11) Section 29.03 (aggravated robbery).
991-3 SECTION 14.21. Article 17.41(a), Code of Criminal Procedure,
991-4 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
991-5 Acts of the 73rd Legislature, Regular Session, 1993, to read as
991-6 follows:
991-7 (a) This article applies to a defendant charged with an
991-8 offense under any of the following provisions of the Penal Code, if
991-9 committed against a child 12 years of age or younger:
991-10 (1) Chapter 21 (Sexual Offenses) or 22 (Assaultive
991-11 Offenses);
991-12 (2) Section 25.02 (Prohibited Sexual Conduct)
991-13 <(Incest)>; or
991-14 (3) <Section 25.06 (Solicitation of a Child, as added
991-15 by Chapter 413, Acts of the 65th Legislature, Regular Session,
991-16 1977); or>
991-17 <(4)> Section 43.25 (Sexual Performance by a Child).
991-18 SECTION 14.22. Article 37.0711(h), Code of Criminal
991-19 Procedure, is amended to conform to Section 1.01, Chapter 900 (S.B.
991-20 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
991-21 as follows:
991-22 (h) If a defendant is convicted of an offense under Section
991-23 19.03(a)(7) <19.03(a)(6)>, Penal Code, the court shall submit the
991-24 issues under Subsections (b) and (e) of this section only with
991-25 regard to the conduct of the defendant in murdering the deceased
991-26 individual first named in the indictment.
991-27 SECTION 14.23. Article 37.072(c), Code of Criminal
992-1 Procedure, is amended to conform to Section 1.01, Chapter 900 (S.B.
992-2 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
992-3 as follows:
992-4 (c) This article applies to a defendant convicted under one
992-5 of the following sections of the Penal Code:
992-6 (1) Section 21.08;
992-7 (2) Section 21.11;
992-8 (3) Section 22.011;
992-9 (4) Section 22.021;
992-10 (5) Section 25.02;
992-11 (6) <Section 25.06;>
992-12 <(7)> Section 43.24;
992-13 (7) <(8)> Section 43.25;
992-14 (8) <(9)> Section 43.251; or
992-15 (9) <(10)> Section 43.26.
992-16 SECTION 14.24. Section 1, Article 38.071, Code of Criminal
992-17 Procedure, is amended to conform to Section 1.01, Chapter 900 (S.B.
992-18 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
992-19 as follows:
992-20 Sec. 1. This article applies only to a proceeding in the
992-21 prosecution of an offense defined by any of the following sections
992-22 of the Penal Code if the offense is alleged to have been committed
992-23 against a child 12 years of age or younger and if the trial court
992-24 finds that the child is unavailable to testify at the trial of the
992-25 offense, and applies only to the statements or testimony of that
992-26 child:
992-27 (1) Section 21.11 (Indecency with a Child);
993-1 (2) Section 22.011 (Sexual Assault);
993-2 (3) Section 22.02 (Aggravated Assault);
993-3 (4) Section 22.021 (Aggravated Sexual Assault);
993-4 (5) Section 22.04(e) <22.04(b)> (Injury to a Child,
993-5 <or an> Elderly Individual, or Disabled Individual);
993-6 (6) Section 22.04(f) <22.04(c)> (Injury to a Child,
993-7 <or an> Elderly Individual, or Disabled Individual), if the conduct
993-8 is committed intentionally or knowingly;
993-9 (7) Section 25.02 (Prohibited Sexual Conduct)
993-10 <(Incest)>; or
993-11 (8) <Section 25.06 (Solicitation of a Child), if the
993-12 offense is a felony of the third degree; or>
993-13 <(9)> Section 43.25 (Sexual Performance by a Child).
993-14 SECTION 14.25. Section 1, Article 38.072, Code of Criminal
993-15 Procedure, is amended to conform to Section 1.01, Chapter 900 (S.B.
993-16 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
993-17 as follows:
993-18 Sec. 1. This article applies to a proceeding in the
993-19 prosecution of an offense under any of the following provisions of
993-20 the Penal Code, if committed against a child 12 years of age or
993-21 younger:
993-22 (1) Chapter 21 (Sexual Offenses) or 22 (Assaultive
993-23 Offenses);
993-24 (2) Section 25.02 (Prohibited Sexual Conduct)
993-25 <(Incest)>; or
993-26 (3) <Section 25.06 (Solicitation of a Child, added by
993-27 Chapter 413, Acts of the 65th Legislature, Regular Session, 1977);
994-1 or>
994-2 <(4)> Section 43.25 (Sexual Performance by a Child).
994-3 SECTION 14.26. Article 45.06, Code of Criminal Procedure, is
994-4 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
994-5 of the 73rd Legislature, Regular Session, 1993, to read as follows:
994-6 Art. 45.06. Fines and special expenses. The governing body
994-7 of each incorporated city, town or village shall by ordinance
994-8 prescribe such rules, not inconsistent with any law of this State,
994-9 as may be proper to enforce, by execution against the property of
994-10 the defendant, or imprisonment of the defendant, the collection of
994-11 all fines imposed by such court, and shall also have power to adopt
994-12 such rules and regulations concerning the practice and procedure in
994-13 such court as said governing body may deem proper, not inconsistent
994-14 with any law of this State. All such fines; a special expense, not
994-15 to exceed $25 for the issuance and service of a warrant of arrest
994-16 for an offense under Section 38.10 <38.11>, Penal Code, or under
994-17 Section 149, Uniform Act Regulating Traffic on Highways (Article
994-18 6701d, Vernon's Texas Civil Statutes); and the special expenses
994-19 described in Article 17.04 dealing with the requisites of a
994-20 personal bond and a special expense for the issuance and service of
994-21 a warrant of arrest, after due notice, not to exceed $25, shall be
994-22 paid into the city treasury for the use and benefit of the city,
994-23 town or village. The governing body of each incorporated city,
994-24 town or village may by ordinance authorize a municipal court to
994-25 collect a special expense for services performed in cases in which
994-26 the laws of this State require that the case be dismissed because
994-27 of actions by or on behalf of the defendant which were subsequent
995-1 to the date of the alleged offense. Such actions are limited to
995-2 compliance with the provisions of Subsection (a), Section 143A,
995-3 Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's
995-4 Texas Civil Statutes). Such special expense shall not exceed the
995-5 actual expenses incurred for the services or $10, whichever is
995-6 less.
995-7 SECTION 14.27. Article 56.32(4), Code of Criminal Procedure,
995-8 is amended to conform to Sections 1.01 and 1.15, Chapter 900 (S.B.
995-9 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
995-10 as follows:
995-11 (4) "Criminally injurious conduct" means conduct that:
995-12 (A) occurs or is attempted;
995-13 (B) poses a substantial threat of personal
995-14 injury or death;
995-15 (C) is punishable by fine, imprisonment, or
995-16 death, or would be punishable by fine, imprisonment, or death if
995-17 the person engaging in the conduct possessed capacity to commit the
995-18 conduct; and
995-19 (D) does not arise out of the ownership,
995-20 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
995-21 unless the conduct is intended to cause personal injury or death in
995-22 violation of Section 38, Uniform Act Regulating Traffic on Highways
995-23 (Article 6701d, Vernon's Texas Civil Statutes), or Section 49.07 or
995-24 49.08, Penal Code <Article 6701l-1, Revised Statutes>.
995-25 SECTION 14.28. Article 56.41(b), Code of Criminal Procedure,
995-26 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
995-27 Acts of the 73rd Legislature, Regular Session, 1993, to read as
996-1 follows:
996-2 (b) The attorney general shall deny an application for
996-3 compensation under this subchapter if:
996-4 (1) the criminally injurious conduct is not reported
996-5 as provided by Section 56.46 of this code;
996-6 (2) the application is not made in the manner provided
996-7 by Sections 56.36 and 56.37 of this code;
996-8 (3) the victim or individual whose injury or death
996-9 gives rise to the application knowingly and willingly participated
996-10 in the criminally injurious conduct;
996-11 (4) the claimant is the offender or an accomplice of
996-12 the offender;
996-13 (5) an award of compensation to the claimant would
996-14 benefit the offender or an accomplice of the offender; or
996-15 (6) the victim was incarcerated in a penal
996-16 institution, as defined by Section 1.07 <1.07(26)>, Penal Code, at
996-17 the time the offense was committed.
996-18 SECTION 14.29. Section 51.909(a), Education Code, is amended
996-19 to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts of the
996-20 73rd Legislature, Regular Session, 1993, to read as follows:
996-21 (a) The governing board of a public institution of higher
996-22 education may expel from that institution any student who is a
996-23 citizen of a country other than the United States attending the
996-24 institution under a nonimmigrant visa issued by the Immigration and
996-25 Naturalization Service and who is finally convicted of an offense
996-26 under Section 28.03, 28.04, 42.02, 42.03, or 42.05, <or 42.09,>
996-27 Penal Code, <as amended,> or under Section 4.30 of this code.
997-1 SECTION 14.30. Section 51.03(f), Family Code, is amended to
997-2 conform to Section 1.01, Chapter 900 (S.B. 1067), Acts of the 73rd
997-3 Legislature, Regular Session, 1993, to read as follows:
997-4 (f) Conduct described under Subsection (b)(1) of this
997-5 section, other than conduct that violates Section 49.02 <42.08>,
997-6 Penal Code, prohibiting public intoxication, does not constitute
997-7 conduct indicating a need for supervision unless the child has been
997-8 referred to the juvenile court under Section 51.08(b) of this code.
997-9 SECTION 14.31. Section 54.031(a), Family Code, is amended to
997-10 conform to Section 1.01, Chapter 900 (S.B. 1067), Acts of the 73rd
997-11 Legislature, Regular Session, 1993, to read as follows:
997-12 (a) This section applies to a hearing under this title in
997-13 which a child is alleged to be a delinquent child on the basis of a
997-14 violation of any of the following provisions of the Penal Code, if
997-15 a child 12 years of age or younger is the alleged victim of the
997-16 violation:
997-17 (1) Chapter 21 (Sexual Offenses) or 22 (Assaultive
997-18 Offenses);
997-19 (2) Section 25.02 (Prohibited Sexual Conduct)
997-20 <(Incest)>; or
997-21 (3) <Section 25.06 (Solicitation of a Child, added by
997-22 Chapter 413, Acts of the 65th Legislature, Regular Session, 1977);
997-23 or>
997-24 <(4)> Section 43.25 (Sexual Performance by a Child).
997-25 SECTION 14.32. Section 54.042(b), Family Code, is amended to
997-26 conform to Sections 1.01 and 1.15, Chapter 900 (S.B. 1067), Acts of
997-27 the 73rd Legislature, Regular Session, 1993, to read as follows:
998-1 (b) The order under Subsection (a)(1) of this section shall
998-2 specify a period of suspension or denial that is:
998-3 (1) until the child reaches the age of 17 or for a
998-4 period of 365 days, whichever is longer; or
998-5 (2) if the court finds that the child has engaged in
998-6 conduct violating the laws of this state prohibiting operating a
998-7 motor vehicle <driving> while intoxicated, by reason of the
998-8 introduction of alcohol into the body, under Section 49.04, Penal
998-9 Code, or intoxication assault committed while operating a motor
998-10 vehicle under Section 49.07, Penal Code <Article 6701l-1, Revised
998-11 Statutes>, and also determines that the child has previously been
998-12 found to have engaged in conduct violating the same laws, until the
998-13 child reaches the age of 19 or for a period of 365 days, whichever
998-14 is longer.
998-15 SECTION 14.33. Section 82.030(e), Government Code, is
998-16 amended to conform to Sections 1.01 and 1.15, Chapter 900 (S.B.
998-17 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
998-18 as follows:
998-19 (e) The board may not deny an applicant the opportunity to
998-20 take the bar examination solely because the applicant:
998-21 (1) suffers or appears to suffer from chemical
998-22 dependency; or
998-23 (2) has been convicted of or is on community
998-24 supervision <probation> for a first offense of operating a motor
998-25 vehicle <driving> while intoxicated under Section 49.04, Penal
998-26 Code, or intoxication assault committed while operating a motor
998-27 vehicle under Section 49.07, Penal Code <Article 6701l-1, Revised
999-1 Statutes>.
999-2 SECTION 14.34. Section 82.038(d), Government Code, is
999-3 amended to conform to Sections 1.01 and 1.15, Chapter 900 (S.B.
999-4 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
999-5 as follows:
999-6 (d) The board may not deny a person who successfully takes
999-7 the bar examination a probationary license to practice law solely
999-8 because the person:
999-9 (1) suffers from chemical dependency; or
999-10 (2) has been convicted of or is on community
999-11 supervision <probation> for a first offense of operating a motor
999-12 vehicle <driving> while intoxicated under Section 49.04, Penal
999-13 Code, or intoxication assault committed while operating a motor
999-14 vehicle under Section 49.07, Penal Code <Article 6701l-1, Revised
999-15 Statutes>.
999-16 SECTION 14.35. Section 411.020(a), Government Code, is
999-17 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
999-18 of the 73rd Legislature, Regular Session, 1993, to read as follows:
999-19 (a) A commissioned officer of the department may purchase
999-20 for an amount set by the department, not to exceed fair market
999-21 value, a firearm issued to the officer by the department if the
999-22 firearm is not listed as a prohibited weapon under Section 46.05
999-23 <46.06>, Penal Code, and if the firearm is retired by the
999-24 department for replacement purposes.
999-25 SECTION 14.36. Section 501.006(g), Government Code, is
999-26 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
999-27 of the 73rd Legislature, Regular Session, 1993, to read as follows:
1000-1 (g) An inmate furloughed under this section and an inmate
1000-2 granted an emergency reprieve by the Board of Pardons and Paroles
1000-3 and the governor is considered to be in the custody of the
1000-4 institutional division, even if the inmate is not under physical
1000-5 guard while on furlough. If an inmate described by this subsection
1000-6 does not return to the institutional division at the time specified
1000-7 for the inmate's return, the inmate is an escapee for the purposes
1000-8 of Section 38.06 <38.07>, Penal Code.
1000-9 SECTION 14.37. Section 614.051(a), Government Code, is
1000-10 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
1000-11 of the 73rd Legislature, Regular Session, 1993, to read as follows:
1000-12 (a) An individual may purchase a firearm from a state agency
1000-13 if:
1000-14 (1) the individual was a peace officer commissioned by
1000-15 the agency;
1000-16 (2) the individual was honorably retired from the
1000-17 individual's commission by the state;
1000-18 (3) the firearm had been previously issued to the
1000-19 individual by the agency; and
1000-20 (4) the firearm is not a prohibited weapon under
1000-21 Section 46.05 <46.06>, Penal Code.
1000-22 SECTION 14.38. Section 614.052(a), Government Code, is
1000-23 amended to conform to Section 1.01, Chapter 900 (S.B. 1067), Acts
1000-24 of the 73rd Legislature, Regular Session, 1993, to read as follows:
1000-25 (a) An individual listed under Subsection (b) may purchase a
1000-26 firearm from a state agency if:
1000-27 (1) the firearm had been previously issued by the
1001-1 agency to a peace officer commissioned by the agency who died while
1001-2 commissioned, without regard to whether the officer died while
1001-3 discharging the officer's official duties; and
1001-4 (2) the firearm is not a prohibited weapon under
1001-5 Section 46.05 <46.06>, Penal Code.
1001-6 SECTION 14.39. Section 250.005(a), Health and Safety Code,
1001-7 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
1001-8 Acts of the 73rd Legislature, Regular Session, 1993, to read as
1001-9 follows:
1001-10 (a) A person convicted of an offense listed in this section
1001-11 may not be employed in a position the duties of which involve
1001-12 direct contact with a consumer in a facility:
1001-13 (1) an offense under Chapter 19, Penal Code (criminal
1001-14 homicide);
1001-15 (2) an offense under Chapter 20, Penal Code
1001-16 (kidnapping and false imprisonment);
1001-17 (3) an offense under Section 21.11, Penal Code
1001-18 (indecency with a child);
1001-19 (4) an offense under Section 25.031, Penal Code
1001-20 (agreement to abduct from custody);
1001-21 (5) <an offense under Section 25.06, Penal Code
1001-22 (solicitation of a child);>
1001-23 <(6)> an offense under Section 25.08 <25.11>, Penal
1001-24 Code (sale or purchase of a child);
1001-25 (6) <(7)> an offense under Section 28.02, Penal Code
1001-26 (arson);
1001-27 (7) <(8)> an offense under Section 29.02, Penal Code
1002-1 (robbery); or
1002-2 (8) <(9)> an offense under Section 29.03, Penal Code
1002-3 (aggravated robbery).
1002-4 SECTION 14.40. Section 250.006(c), Health and Safety Code,
1002-5 is amended to correct a reference to read as follows:
1002-6 (c) A conviction for any of the following offenses may bar
1002-7 employment under this section:
1002-8 (1) an offense under Chapter 22, Penal Code
1002-9 (assaultive offenses);
1002-10 (2) an offense under Chapter 30, Penal Code (burglary
1002-11 and criminal trespass);
1002-12 (3) an offense under Chapter 31, Penal Code (theft);
1002-13 (4) an offense under Chapter 46, Penal Code (weapons);
1002-14 (5) a felony violation of a statute intended to
1002-15 control the possession or distribution of a substance included in
1002-16 Chapter 481<, Government Code (Texas Controlled Substances Act)>;
1002-17 (6) an offense under Chapter 32, Penal Code (fraud);
1002-18 (7) an offense under Section 21.07, Penal Code (public
1002-19 lewdness);
1002-20 (8) an offense under Section 21.08, Penal Code
1002-21 (indecent exposure); or
1002-22 (9) an offense under Chapter 43, Penal Code (public
1002-23 indecency).
1002-24 SECTION 14.41. Section 464.035, Health and Safety Code, is
1002-25 amended to conform to Sections 1.01 and 1.15, Chapter 900
1002-26 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
1002-27 to read as follows:
1003-1 Sec. 464.035. Payment of Contract Amounts. To pay for
1003-2 services provided under a contract with an alcoholism program or
1003-3 center, the commissioners court by order may dedicate for payment
1003-4 to the program or center a percentage of the money received by the
1003-5 county as fines for alcohol-related offenses committed while
1003-6 operating a motor vehicle under Sections 49.04 and 49.07, Penal
1003-7 Code <Article 6701l-1, Revised Statutes>.
1003-8 SECTION 14.42. Section 691.033(d), Health and Safety Code,
1003-9 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
1003-10 Acts of the 73rd Legislature, Regular Session, 1993, to read as
1003-11 follows:
1003-12 (d) To aid prosecutions under Section 42.08 <42.10>, Penal
1003-13 Code, the board shall adopt rules that clearly state the activities
1003-14 that are authorized by the board in relation to the dissection of a
1003-15 body.
1003-16 SECTION 14.43. Section 821.023(a), Health and Safety Code,
1003-17 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
1003-18 Acts of the 73rd Legislature, Regular Session, 1993, to read as
1003-19 follows:
1003-20 (a) A finding in county court that the owner of an animal is
1003-21 guilty of an offense under Section 42.09 <42.11>, Penal Code,
1003-22 involving the animal is prima facie evidence at a hearing
1003-23 authorized by Section 821.022 that the animal has been cruelly
1003-24 treated.
1003-25 SECTION 14.44. Section 821.023(b), Health and Safety Code,
1003-26 is amended to conform to Section 1.01, Chapter 900 (S.B. 1067),
1003-27 Acts of the 73rd Legislature, Regular Session, 1993, to read as
1004-1 follows:
1004-2 (b) A statement of an owner made at a hearing provided for
1004-3 under this subchapter is not admissible in a trial of the owner for
1004-4 an offense under Section 42.09 <42.11>, Penal Code.
1004-5 SECTION 14.45. Section 50.021(a), Human Resources Code, is
1004-6 amended to conform to Sections 1.01 and 13.02, Chapter 900
1004-7 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993,
1004-8 to read as follows:
1004-9 (a) The board shall revoke or suspend a license or order of
1004-10 recognition, place on probation a person whose license or order of
1004-11 recognition has been suspended, or reprimand a person with a
1004-12 license or order of recognition for any of the following reasons:
1004-13 (1) violating a provision of this chapter or a rule of
1004-14 the board;
1004-15 (2) circumventing or attempting to circumvent this
1004-16 chapter or a rule of the board;
1004-17 (3) participating, directly or indirectly, in a plan,
1004-18 scheme, or arrangement attempting or having as its purpose the
1004-19 evasion of this chapter or a rule of the board;
1004-20 (4) engaging in unethical conduct;
1004-21 (5) engaging in conduct which discredits or tends to
1004-22 discredit the profession of social work;
1004-23 (6) performing an act, allowing an omission, or making
1004-24 an assertion or representation that is fraudulent, deceitful, or
1004-25 misleading or that in any manner tends to create a misleading
1004-26 impression;
1004-27 (7) knowingly associating with or permitting or
1005-1 allowing the use of any licensed person's professional services or
1005-2 professional identification in a project or enterprise that the
1005-3 person knows or with the exercise of reasonable diligence should
1005-4 know is a practice that violates this chapter or a rule of the
1005-5 board pertaining to the practice of social work;
1005-6 (8) knowingly associating with or permitting the use
1005-7 of a licensed person's name, professional services, professional
1005-8 identification, or endorsement in connection with a venture or
1005-9 enterprise that the person knows or with the exercise of reasonable
1005-10 diligence should know is a trade, business, or professional
1005-11 practice of a fraudulent, deceitful, misleading, or dishonest
1005-12 nature;
1005-13 (9) revealing, directly or indirectly, or causing to
1005-14 be revealed a confidential communication transmitted to the
1005-15 licensed person by a client or recipient of his services except as
1005-16 may be required by law;
1005-17 (10) having a certificate or a license to practice
1005-18 social work in another jurisdiction denied, suspended, or revoked
1005-19 for reasons or causes the board finds would constitute a violation
1005-20 of this chapter or a rule pertaining to the practice of social work
1005-21 adopted by the board;
1005-22 (11) having been convicted of a felony in an American
1005-23 jurisdiction;
1005-24 (12) refusing to do or perform any act or service for
1005-25 which the person is licensed under this chapter solely on the basis
1005-26 of the recipient's age, sex, race, religion, national origin,
1005-27 color, or political affiliation; or
1006-1 (13) committing an act <in violation of Section 21.14,
1006-2 Penal Code, or> for which liability exists under Chapter 81, Civil
1006-3 Practice and Remedies Code.
1006-4 SECTION 14.46. Section 1, Article 5.03-1, Insurance Code, is
1006-5 amended to conform to Sections 1.01 and 1.15, Chapter 900 (S.B.
1006-6 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1006-7 as follows:
1006-8 Sec. 1. A premium surcharge in an amount to be prescribed by
1006-9 the State Board of Insurance shall be assessed by an insurer
1006-10 defined in Article 5.01, Texas Insurance Code, against an insured
1006-11 for no more than three years immediately following the date of
1006-12 conviction of the insured of an offense committed while operating a
1006-13 motor vehicle under Section 49.04 or 49.07, Penal Code <Article
1006-14 6701l-1, Revised Statutes>, or an offense under Section 49.08
1006-15 <Subdivision (2), Subsection (a), Section 19.05>, Penal Code. The
1006-16 premium surcharge shall be applied only to private passenger
1006-17 automobile policies as defined by the State Board of Insurance.
1006-18 SECTION 14.47. Section 12(a), Article 21.28-A, Insurance
1006-19 Code, is amended to conform to Section 1.01, Chapter 900 (S.B.
1006-20 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1006-21 as follows:
1006-22 (a) Other statutes authorized for use and application in
1006-23 conjunction with this Article are Section 14 of Article 17.25, and
1006-24 Articles 14.33 and 22.22 of the Insurance Code. Also authorized
1006-25 for use, in conjunction with this Article, in delinquency
1006-26 proceedings or threatened insolvencies of insurers, are any other
1006-27 statutes or laws possible of application with this Act or in the
1007-1 procedures of this Act, or in augmentation of this Act whether or
1007-2 not directed as applicable by such other statute; but in the event
1007-3 of conflict between this Article and any other Article, the
1007-4 provisions of this Article shall govern. <Section 32.35, Penal
1007-5 Code, does not apply to the Commissioner of Insurance acting under
1007-6 this Article or to a supervisor or conservator appointed pursuant
1007-7 to this Article.>
1007-8 SECTION 14.48. Section 401.013(a), Labor Code, is amended to
1007-9 conform to Sections 1.01 and 1.15, Chapter 900 (S.B. 1067), Acts of
1007-10 the 73rd Legislature, Regular Session, 1993, to read as follows:
1007-11 (a) In this subtitle, "intoxication" means the state of:
1007-12 (1) having an alcohol concentration as defined by
1007-13 Section 49.01, Penal Code <Article 6701l-1, Revised Statutes>, of
1007-14 0.10 or more; or
1007-15 (2) not having the normal use of mental or physical
1007-16 faculties resulting from the voluntary introduction into the body
1007-17 of:
1007-18 (A) an alcoholic beverage, as defined by Section
1007-19 1.04, Alcoholic Beverage Code;
1007-20 (B) a controlled substance or controlled
1007-21 substance analogue, as defined by Section 481.002, Health and
1007-22 Safety Code;
1007-23 (C) a dangerous drug, as defined by Section
1007-24 483.001, Health and Safety Code;
1007-25 (D) an abusable glue or aerosol paint, as
1007-26 defined by Section 485.001, Health and Safety Code; or
1007-27 (E) any similar substance, the use of which is
1008-1 regulated under state law.
1008-2 SECTION 14.49. Section 402.083(b), Labor Code, is amended to
1008-3 conform to Section 1.01, Chapter 900 (S.B. 1067), Acts of the 73rd
1008-4 Legislature, Regular Session, 1993, to read as follows:
1008-5 (b) Information concerning an employee who has been finally
1008-6 adjudicated of wrongfully obtaining payment under Section 415.008
1008-7 <of this code or Section 32.51, Penal Code,> is not confidential.
1008-8 SECTION 14.50. Section 32.32(a), Penal Code, is amended to
1008-9 correct a reference to read as follows:
1008-10 (a) For purposes of this section, "credit" includes:
1008-11 (1) a loan of money;
1008-12 (2) furnishing property or service on credit;
1008-13 (3) extending the due date of an obligation;
1008-14 (4) comaking, endorsing, or guaranteeing a note or
1008-15 other instrument for obtaining credit;
1008-16 (5) a line or letter of credit; and
1008-17 (6) a credit card, as defined in Section 32.31 (Credit
1008-18 Card or Debit Card Abuse).
1008-19 SECTION 14.51. Section 43.26(d), Penal Code, is amended to
1008-20 correct a reference to read as follows:
1008-21 (d) An offense under Subsection (a) <this section> is a
1008-22 felony of the third degree.
1008-23 SECTION 14.52. Section 39.06(d), Penal Code, is amended to
1008-24 correct a reference to read as follows:
1008-25 (d) In this section, "information that has not been made
1008-26 public" means any information to which the public does not
1008-27 generally have access, and that is prohibited from disclosure under
1009-1 Chapter 552, Government Code <424, Acts of the 63rd Legislature,
1009-2 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
1009-3 Statutes)>.
1009-4 SECTION 14.53. Section 47.02(c), Penal Code, is amended to
1009-5 correct a reference to read as follows:
1009-6 (c) It is a defense to prosecution under this section that
1009-7 the actor reasonably believed that the conduct:
1009-8 (1) was permitted under the Bingo Enabling Act
1009-9 (Article 179d, Vernon's Texas Civil Statutes);
1009-10 (2) was permitted under the Charitable Raffle Enabling
1009-11 Act (Article 179f, Revised Statutes);
1009-12 (3) consisted entirely of participation in the state
1009-13 lottery authorized by Chapter 466, Government Code <the State
1009-14 Lottery Act (Article 179g, Vernon's Texas Civil Statutes)>; or
1009-15 (4) was permitted under the Texas Racing Act (Article
1009-16 179e, Vernon's Texas Civil Statutes).
1009-17 SECTION 14.54. Section 47.09(a), Penal Code, is amended to
1009-18 correct a reference to read as follows:
1009-19 (a) It is a defense to prosecution under this chapter that
1009-20 the conduct:
1009-21 (1) was authorized under:
1009-22 (A) the Bingo Enabling Act (Article 179d,
1009-23 Vernon's Texas Civil Statutes);
1009-24 (B) the Texas Racing Act (Article 179e, Vernon's
1009-25 Texas Civil Statutes); or
1009-26 (C) the Charitable Raffle Enabling Act (Article
1009-27 179f, Revised Statutes);
1010-1 (2) consisted entirely of participation in the state
1010-2 lottery authorized by Chapter 466, Government Code <the State
1010-3 Lottery Act (Article 179g, Vernon's Texas Civil Statutes)>; or
1010-4 (3) was a necessary incident to the operation of the
1010-5 state lottery and was directly or indirectly authorized by <the>:
1010-6 (A) Chapter 466, Government Code <State Lottery
1010-7 Act>;
1010-8 (B) the lottery division of the comptroller's
1010-9 office;
1010-10 (C) the comptroller; or
1010-11 (D) the director of the lottery division.
1010-12 SECTION 14.55. Sections 49.04(a) and (c), Penal Code, are
1010-13 amended to read as follows:
1010-14 (a) A person commits an offense if the person is intoxicated
1010-15 while <driving or> operating a motor vehicle in a public place.
1010-16 (c) If it is shown on the trial of an offense under this
1010-17 section that at the time of the offense the person <driving or>
1010-18 operating the motor vehicle had an open container of alcohol in the
1010-19 person's immediate possession, the offense is a Class B
1010-20 misdemeanor, with a minimum term of confinement of six days.
1010-21 SECTION 14.56. Sections 49.09(a), (b), (c), and (e), Penal
1010-22 Code, are amended to read as follows:
1010-23 (a) If it is shown on the trial of an offense under Section
1010-24 49.04, 49.05, or 49.06 that the person has previously been
1010-25 convicted one time of an offense relating to the <driving or>
1010-26 operating of a motor vehicle while intoxicated, an offense of
1010-27 operating an aircraft while intoxicated, or an offense of operating
1011-1 a watercraft while intoxicated, the offense is a Class A
1011-2 misdemeanor, with a minimum term of confinement of 15 days.
1011-3 (b) If it is shown on the trial of an offense under Section
1011-4 49.04, 49.05, or 49.06 that the person has previously been
1011-5 convicted two times of an offense relating to the <driving or>
1011-6 operating of a motor vehicle while intoxicated, an offense of
1011-7 operating an aircraft while intoxicated, or an offense of operating
1011-8 a watercraft while intoxicated, the offense is a felony of the
1011-9 third degree.
1011-10 (c) For the purposes of this section:
1011-11 (1) "Offense relating to the <driving or> operating of
1011-12 a motor vehicle while intoxicated" means:
1011-13 (A) an offense under Section 49.04;
1011-14 (B) an offense under Article 6701l-1, Revised
1011-15 Statutes, as that law existed before September 1, 1994;
1011-16 (C) an offense under Article 6701l-2, Revised
1011-17 Statutes, as that law existed before January 1, 1984; or
1011-18 (D) an offense under the laws of another state
1011-19 that prohibit the operation of a motor vehicle while intoxicated.
1011-20 (2) "Offense of operating an aircraft while
1011-21 intoxicated" means:
1011-22 (A) an offense under Section 49.05;
1011-23 (B) an offense under Section 1, Chapter 46, Acts
1011-24 of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
1011-25 Vernon's Texas Civil Statutes), as that law existed before
1011-26 September 1, 1994; or
1011-27 (C) an offense under the laws of another state
1012-1 that prohibit the operation of an aircraft while intoxicated.
1012-2 (3) "Offense of operating a watercraft while
1012-3 intoxicated" means:
1012-4 (A) an offense under Section 49.06;
1012-5 (B) an offense under Section 31.097, Parks and
1012-6 Wildlife Code, as that law existed before September 1, 1994; or
1012-7 (C) an offense under the laws of another state
1012-8 that prohibit the operation of a watercraft while intoxicated.
1012-9 (e) A conviction may not be used for purposes of enhancement
1012-10 under this section if:
1012-11 (1) the conviction was a final conviction under
1012-12 Subsection (e) and was for an offense committed more than 10 years
1012-13 before the offense for which the person is being tried was
1012-14 committed; and
1012-15 (2) the person has not been convicted of an offense
1012-16 under Section 49.04, 49.05, or 49.06 or any offense related to
1012-17 <driving or> operating a motor vehicle while intoxicated committed
1012-18 within 10 years before the date on which the offense for which the
1012-19 person is being tried was committed.
1012-20 SECTION 14.57. Section 41, Bingo Enabling Act (Article 179d,
1012-21 Vernon's Texas Civil Statutes), is amended to conform to Section
1012-22 1.01, Chapter 900 (S.B. 1067), Acts of the 73rd Legislature,
1012-23 Regular Session, 1993, to read as follows:
1012-24 Sec. 41. Application of Penal Code. Section 47.08 <47.09>,
1012-25 Penal Code, applies to any prosecution for a violation of this Act.
1012-26 SECTION 14.58. Section 23(a), Psychologists' Certification
1012-27 and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes),
1013-1 is amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
1013-2 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1013-3 as follows:
1013-4 (a) The Board shall revoke or suspend a license or
1013-5 certificate, place on probation a person whose license or
1013-6 certificate has been suspended, or reprimand a license or
1013-7 certificate holder if the license or certificate holder:
1013-8 (1) has been convicted of a felony or of a violation
1013-9 of the law involving moral turpitude by any court; the conviction
1013-10 of a felony shall be the conviction of any offense which if
1013-11 committed within this state would constitute a felony under the
1013-12 laws of this state;
1013-13 (2) uses drugs or intoxicating liquors to an extent
1013-14 that affects his professional competency;
1013-15 (3) has been guilty of fraud or deceit in connection
1013-16 with his services rendered as a psychologist;
1013-17 (4) except as provided by Section 15B of this Act, has
1013-18 aided or abetted a person, not a licensed psychologist, in
1013-19 representing that person as a psychologist within this state;
1013-20 (5) except as provided by Section 15B of this Act, has
1013-21 represented himself or herself to be a psychologist licensed in
1013-22 this state at a time he or she was not licensed to practice
1013-23 psychology in this state, or practiced psychology in this state
1013-24 without a license to practice psychology in this state;
1013-25 (6) violates a rule adopted by the Board; <or>
1013-26 (7) violates a provision of this Act; or
1013-27 (8) has committed an act <in violation of Section
1014-1 21.14, Penal Code, or> for which liability exists under Chapter 81,
1014-2 Civil Practice and Remedies Code.
1014-3 SECTION 14.59. Section 25(a), Licensed Marriage and Family
1014-4 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
1014-5 amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
1014-6 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1014-7 as follows:
1014-8 (a) The board shall suspend or revoke a license, place on
1014-9 probation a person whose license has been suspended, or reprimand a
1014-10 license holder if the license holder has:
1014-11 (1) been convicted of a felony or a misdemeanor
1014-12 involving moral turpitude;
1014-13 (2) obtained or attempted to obtain registration by
1014-14 fraud or deception;
1014-15 (3) used drugs or alcohol to an extent that affects
1014-16 professional competence;
1014-17 (4) been grossly negligent in performing professional
1014-18 duties;
1014-19 (5) been adjudicated mentally incompetent by a court
1014-20 of competent jurisdiction;
1014-21 (6) practiced in a manner detrimental to the public
1014-22 health or welfare;
1014-23 (7) advertised in a manner that tends to deceive or
1014-24 defraud the public;
1014-25 (8) had a license or certification revoked by a
1014-26 licensing agency or by a certifying professional organization;
1014-27 (9) otherwise violated this Act or a rule or code of
1015-1 ethics adopted under this Act; or
1015-2 (10) committed an act <in violation of Section 21.14,
1015-3 Penal Code, or> for which liability exists under Chapter 81, Civil
1015-4 Practice and Remedies Code.
1015-5 SECTION 14.60. Section 16(a), Licensed Professional
1015-6 Counselor Act (Article 4512g, Vernon's Texas Civil Statutes), is
1015-7 amended to conform to Sections 1.01 and 13.02, Chapter 900 (S.B.
1015-8 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1015-9 as follows:
1015-10 (a) The board shall revoke, suspend, suspend on an emergency
1015-11 basis, or refuse to renew the license of a counselor, place on
1015-12 probation a counselor whose license has been suspended, or
1015-13 reprimand a counselor if the counselor:
1015-14 (1) has committed an act <in violation of Section
1015-15 21.14, Penal Code, or> for which liability exists under Chapter 81,
1015-16 Civil Practice and Remedies Code;
1015-17 (2) has violated this Act or a rule or code of ethics
1015-18 adopted by the board;
1015-19 (3) is legally committed to an institution because of
1015-20 mental incompetence from any cause; or
1015-21 (4) <(3)> offers to pay or agrees to accept any
1015-22 remuneration, directly or indirectly, to or from any person or
1015-23 entity for securing or soliciting a patient or patronage.
1015-24 SECTION 14.61. Section 16, Chapter 635, Acts of the 72nd
1015-25 Legislature, Regular Session, 1991 (Article 4512o, Vernon's Texas
1015-26 Civil Statutes), is amended to conform to Sections 1.01 and 13.02,
1015-27 Chapter 900 (S.B. 1067), Acts of the 73rd Legislature, Regular
1016-1 Session, 1993, to read as follows:
1016-2 Sec. 16. License refusal; disciplinary actions. The
1016-3 commission may refuse to issue or renew a license, place on
1016-4 probation a license holder whose license has been suspended,
1016-5 reprimand a license holder, or revoke or suspend a license issued
1016-6 under this Act for:
1016-7 (1) violating or assisting another to violate this Act
1016-8 or a rule of the commission adopted under this Act;
1016-9 (2) circumventing or attempting to circumvent this Act
1016-10 or a rule of the commission adopted under this Act;
1016-11 (3) participating, directly or indirectly, in a plan
1016-12 the purpose of which is the evasion of this Act or a rule of the
1016-13 commission adopted under this Act;
1016-14 (4) engaging in false, misleading, or deceptive
1016-15 conduct as defined by Section 17.46, Business & Commerce Code;
1016-16 (5) engaging in conduct that discredits or tends to
1016-17 discredit the profession of chemical dependency counseling;
1016-18 (6) revealing or causing to be revealed, directly or
1016-19 indirectly, a confidential communication made to the licensed
1016-20 chemical dependency counselor by a client or recipient of services,
1016-21 except as required by law;
1016-22 (7) having a license to practice chemical dependency
1016-23 counseling in another jurisdiction refused, suspended, or revoked
1016-24 for a reason that the commission finds would constitute a violation
1016-25 of this Act or a commission rule established under this Act;
1016-26 (8) refusing to perform an act or service for which
1016-27 the person is licensed to perform under this Act on the basis of
1017-1 the client's or recipient's age, sex, race, religion, national
1017-2 origin, color, or political affiliation; or
1017-3 (9) committing an act <in violation of Section 21.14,
1017-4 Penal Code, or> for which liability exists under Chapter 81, Civil
1017-5 Practice and Remedies Code.
1017-6 SECTION 14.62. Section 1(5), Article 6252-13c.1, Revised
1017-7 Statutes, is amended to conform to Section 1.01, Chapter 900 (S.B.
1017-8 1067), Acts of the 73rd Legislature, Regular Session, 1993, to read
1017-9 as follows:
1017-10 (5) "Reportable conviction or adjudication" means:
1017-11 (A) a conviction for violation of Section 21.11
1017-12 (Indecency with a child), 22.011 (Sexual assault), 22.021
1017-13 (Aggravated sexual assault), 25.02 (Prohibited sexual conduct)
1017-14 <(Incest)>, Penal Code;
1017-15 (B) a conviction for violation of Section 43.25
1017-16 (Sexual performance by a child) or 43.26 (Possession or promotion
1017-17 of child pornography), Penal Code;
1017-18 (C) the fourth conviction for a violation of
1017-19 Section 21.08 (Indecent exposure), Penal Code;
1017-20 (D) an adjudication of delinquent conduct based
1017-21 on a violation of one of the offenses listed in Paragraph (A) or
1017-22 (B) of this subdivision or for which four violations of the
1017-23 offenses listed in Paragraph (C) of this subdivision are shown; or
1017-24 (E) a deferred adjudication for an offense
1017-25 listed in Paragraph (A) or (B) of this subdivision.
1017-26 ARTICLE 15. CHANGES RELATING TO TAX CODE
1017-27 SECTION 15.01. Section 11.13(n), Tax Code, is amended to
1018-1 reflect the abolition of county education districts to read as
1018-2 follows:
1018-3 (n) In addition to any other exemptions provided by this
1018-4 section, an individual is entitled to an exemption from taxation by
1018-5 a taxing unit of a percentage of the appraised value of his
1018-6 residence homestead if the exemption is adopted by the governing
1018-7 body of the taxing unit before May 1 in the manner provided by law
1018-8 for official action by the body. If the percentage set by the
1018-9 taxing unit produces an exemption in a tax year of less than $5,000
1018-10 when applied to a particular residence homestead, the individual is
1018-11 entitled to an exemption of $5,000 of the appraised value. The
1018-12 percentage adopted by the taxing unit may not exceed 20 percent.
1018-13 <If the percentage set by the voters produces an exemption in a tax
1018-14 year of less than $5,000 when applied to a particular residence
1018-15 homestead, the individual is entitled to an exemption of $5,000 of
1018-16 the appraised value. The percentage adopted by the voters may not
1018-17 exceed 20 percent.>
1018-18 SECTION 15.02. Section 351.105(a), Tax Code, is amended to
1018-19 correct a reference to read as follows:
1018-20 (a) An eligible coastal municipality that levies and
1018-21 collects an occupancy tax authorized by this chapter at a rate of
1018-22 seven percent shall pledge a portion of the revenue equal to at
1018-23 least one percent of the cost of a room to either or both of the
1018-24 following purposes:
1018-25 (1) the payment of the bonds that the municipality or
1018-26 a park board of trustees may issue under Section 3, Chapter 63,
1018-27 Acts of the 59th Legislature, Regular Session, 1965 (Article
1019-1 1269j-4.1, Vernon's Texas Civil Statutes), or under Chapter 306,
1019-2 Local Government Code <33, Acts of the 57th Legislature, 3rd Called
1019-3 Session, 1962 (Article 6081g-1, Vernon's Texas Civil Statutes)>, in
1019-4 order to provide all or part of the funds for the establishment,
1019-5 acquisition, purchase, construction, improvement, enlargement,
1019-6 equipment, or repair of public improvements, including parks, civic
1019-7 centers, civic center buildings, auditoriums, exhibition halls,
1019-8 coliseums, marinas, cruise ship terminal facilities, hotels,
1019-9 motels, parking facilities, golf courses, trolley or trolley
1019-10 transportation systems, and other facilities as may be considered
1019-11 advisable in connection with these facilities that serve the
1019-12 purpose of attracting visitors and tourists to the municipality; or
1019-13 (2) the maintenance, improvement, or operation of the
1019-14 parks, civic centers, civic center buildings, auditoriums,
1019-15 exhibition halls, coliseums, marinas, cruise ship terminal
1019-16 facilities, hotels, motels, parking facilities, golf courses,
1019-17 trolley or trolley transportation systems, and other facilities as
1019-18 may be considered advisable in connection with these facilities
1019-19 that serve the purpose of attracting visitors and tourists to the
1019-20 municipality.
1019-21 ARTICLE 16. CHANGES RELATING TO WATER CODE
1019-22 SECTION 16.01. Section 17.927(b), Water Code, is amended to
1019-23 correct a citation to read as follows:
1019-24 (b) The application and plan must:
1019-25 (1) comply with board requirements;
1019-26 (2) describe in detail the method for delivering water
1019-27 supply and sewer services and the persons to whom the services will
1020-1 be provided;
1020-2 (3) describe the method for complying with minimum
1020-3 state standards for water supply and sewer services adopted by the
1020-4 board under Section 16.342 of this code;
1020-5 (4) include a budget that estimates the total cost of
1020-6 providing water supply and sewer services to the economically
1020-7 distressed area and a proposed schedule and method for repayment of
1020-8 financial assistance consistent with board rules and guidelines;
1020-9 (5) describe existing water supply and sewer
1020-10 facilities located in the economically distressed area and include
1020-11 with the description:
1020-12 (A) the county map required by Section 366.036
1020-13 <366.102>, Health and Safety Code; or
1020-14 (B) a document prepared and certified by an
1020-15 engineer registered to practice in this state describing the plan
1020-16 for providing water supply and sewer services to the economically
1020-17 distressed area;
1020-18 (6) provide proof that the appropriate political
1020-19 subdivision has adopted the model rules developed under Section
1020-20 16.343 of this code;
1020-21 (7) include information on the ability of potential
1020-22 customers to pay for the services provided by the project including
1020-23 composite data prepared by the applicant pursuant to board rules
1020-24 and guidelines from surveys of those potential customers covering
1020-25 income, family size, personal expenses, employment status, and
1020-26 other information required by board rule;
1020-27 (8) include an estimate of the per household cost of
1021-1 providing the services contemplated by the project with supporting
1021-2 data;
1021-3 (9) describe the procedures to be used to collect
1021-4 money from residents who use the proposed water supply and sewer
1021-5 services including procedures for collection of delinquent
1021-6 accounts;
1021-7 (10) include a requirement that a contractor who
1021-8 agrees to acquire, construct, extend, or provide water supply and
1021-9 sewer services executes a performance bond in the amount of 100
1021-10 percent of the contract price;
1021-11 (11) contain an agreement to comply with applicable
1021-12 procurement procedures in contract awards for water supply and
1021-13 sewer services;
1021-14 (12) if located in the service area of a retail public
1021-15 utility or public utility that has a certificate of public
1021-16 convenience and necessity under Chapter 13 of this code, include a
1021-17 document in the form of an affidavit signed by the chief executive
1021-18 officer of the utility, which shall cooperate with the political
1021-19 subdivision, stating that the utility does not object to the
1021-20 construction and operation of the services and facilities in its
1021-21 service area;
1021-22 (13) include a map of the economically distressed area
1021-23 together with supporting information relating to dwellings in the
1021-24 area;
1021-25 (14) describe in detail the methods for incorporating
1021-26 water conservation into the provision of water and sewer services
1021-27 to the economically distressed area; and
1022-1 (15) include any other information required by the
1022-2 board.
1022-3 SECTION 16.02. Section 27.015(c), Water Code, is amended to
1022-4 correct an error in enrolling House Bill 2043, Acts of the 73rd
1022-5 Legislature, Regular Session, 1993, to read as follows:
1022-6 (c) The commission shall find that there will be no
1022-7 impairment of oil or gas mineral rights if the railroad commission
1022-8 has issued a letter under Subsection (a) that concludes that
1022-9 drilling and using the disposal well will not endanger or injure
1022-10 any known oil or gas reservoir <formation>.
1022-11 ARTICLE 17. RENUMBERING
1022-12 SECTION 17.01. The following provisions of enacted codes are
1022-13 renumbered or relettered and appropriate cross-references are
1022-14 changed in order to eliminate duplicate citations or to relocate
1022-15 misplaced provisions:
1022-16 (1) Section 102.19, Alcoholic Beverage Code, as added
1022-17 by Chapter 934, Acts of the 73rd Legislature, Regular Session,
1022-18 1993, is renumbered as Section 102.20, Alcoholic Beverage Code.
1022-19 (2) Section 22.002, Civil Practice and Remedies Code,
1022-20 as added by Chapter 449, Acts of the 73rd Legislature, Regular
1022-21 Session, 1993, is renumbered as Section 22.003, Civil Practice and
1022-22 Remedies Code.
1022-23 (3) Section 12, Article 42.131, Code of Criminal
1022-24 Procedure, as added by Chapter 809, Acts of the 73rd Legislature,
1022-25 Regular Session, 1993, is renumbered as Section 14, Article 42.131,
1022-26 Code of Criminal Procedure.
1022-27 (4) Article 102.017, Code of Criminal Procedure, as
1023-1 added by Chapter 900, Acts of the 73rd Legislature, Regular
1023-2 Session, 1993, is renumbered as Article 102.018, Code of Criminal
1023-3 Procedure.
1023-4 (5) Subsection (o), Section 51.306, Education Code, as
1023-5 added by Chapter 431, Acts of the 73rd Legislature, Regular
1023-6 Session, 1993, is relettered as Subsection (q), Section 51.306,
1023-7 Education Code.
1023-8 (6) Section 51.929, Education Code, as added by
1023-9 Chapter 228, Acts of the 73rd Legislature, Regular Session, 1993,
1023-10 is renumbered as Section 51.930, Education Code.
1023-11 (7) Section 51.929, Education Code, as added by
1023-12 Chapter 724, Acts of the 73rd Legislature, Regular Session, 1993,
1023-13 is renumbered as Section 51.931, Education Code.
1023-14 (8) Section 54.541, Education Code, as added by
1023-15 Chapter 341, Acts of the 73rd Legislature, Regular Session, 1993,
1023-16 is renumbered as Section 54.542, Education Code.
1023-17 (9) Section 54.541, Education Code, as added by
1023-18 Chapter 894, Acts of the 73rd Legislature, Regular Session, 1993,
1023-19 is renumbered as Section 54.543, Education Code.
1023-20 (10) Section 61.0592, Education Code, as added by
1023-21 Chapter 374, Acts of the 73rd Legislature, Regular Session, 1993,
1023-22 is renumbered as Section 61.0593, Education Code.
1023-23 (11) Section 61.083, Education Code, as added by
1023-24 Chapter 621, Acts of the 73rd Legislature, Regular Session, 1993,
1023-25 is renumbered as Section 61.084, Education Code.
1023-26 (12) Subchapter O, Chapter 61, Education Code, as
1023-27 added by Chapter 609, Acts of the 73rd Legislature, Regular
1024-1 Session, 1993, is relettered as Subchapter P, Chapter 61, Education
1024-2 Code.
1024-3 (13) Section 411.0095, Government Code, as added by
1024-4 Chapter 790, Acts of the 73rd Legislature, Regular Session, 1993,
1024-5 is renumbered as Section 411.0096, Government Code.
1024-6 (14) Section 431.085, Government Code, as added by
1024-7 Chapter 268, Acts of the 73rd Legislature, Regular Session, 1993,
1024-8 is renumbered as Section 431.0825, Government Code.
1024-9 (15) Section 493.013, Government Code, as added by
1024-10 Chapter 988, Acts of the 73rd Legislature, Regular Session, 1993,
1024-11 is renumbered as Section 493.014, Government Code.
1024-12 (16) Section 494.011, Government Code, as added by
1024-13 Chapter 988, Acts of the 73rd Legislature, Regular Session, 1993,
1024-14 is renumbered as Section 494.014, Government Code.
1024-15 (17) Section 501.059, Government Code, as added by
1024-16 Chapter 786, Acts of the 73rd Legislature, Regular Session, 1993,
1024-17 is renumbered as Section 501.060, Government Code.
1024-18 (18) Chapter 87, Health and Safety Code, as added by
1024-19 Chapter 41, Acts of the 73rd Legislature, Regular Session, 1993, is
1024-20 renumbered as Chapter 88, Health and Safety Code, and Sections
1024-21 87.001, 87.002, 87.003, 87.004, 87.005, 87.006, 87.007, 87.008, and
1024-22 87.009, as added by that Act, are renumbered as Sections 88.001,
1024-23 88.002, 88.003, 88.004, 88.005, 88.006, 88.007, 88.008, and 88.009,
1024-24 Health and Safety Code, respectively.
1024-25 (19) Chapter 146, Health and Safety Code, as added by
1024-26 Chapter 269, Acts of the 73rd Legislature, Regular Session, 1993,
1024-27 is renumbered as Chapter 147, Health and Safety Code, and Sections
1025-1 146.001, 146.002, 146.003, 146.004, 146.005, 146.006, 146.007,
1025-2 146.008, 146.009, 146.010, 146.011, 146.012, and 146.013, as added
1025-3 by that Act, are renumbered as Sections 147.001, 147.002, 147.003,
1025-4 147.004, 147.005, 147.006, 147.007, 147.008, 147.009, 147.010,
1025-5 147.011, 147.012, and 147.013, Health and Safety Code,
1025-6 respectively.
1025-7 (20) Subchapter K, Chapter 161, Health and Safety
1025-8 Code, as added by Chapter 573, Acts of the 73rd Legislature,
1025-9 Regular Session, 1993, is relettered as Subchapter L, Chapter 161,
1025-10 Health and Safety Code.
1025-11 (21) Subsection (d), Section 192.003, Health and
1025-12 Safety Code, as added by Chapter 519, Acts of the 73rd Legislature,
1025-13 Regular Session, 1993, is relettered as Subsection (g), Section
1025-14 192.003, Health and Safety Code.
1025-15 (22) Section 241.058, Health and Safety Code, as added
1025-16 by Chapter 705, Acts of the 73rd Legislature, Regular Session,
1025-17 1993, is renumbered as Section 241.060, Health and Safety Code.
1025-18 (23) Section 262.035, Health and Safety Code, as added
1025-19 by Chapter 614, Acts of the 73rd Legislature, Regular Session,
1025-20 1993, is renumbered as Section 262.036, Health and Safety Code.
1025-21 (24) Subchapter F, Chapter 285, Health and Safety
1025-22 Code, as added by Chapter 645, Acts of the 72nd Legislature,
1025-23 Regular Session, 1991, is relettered as Subchapter G, Chapter 285,
1025-24 Health and Safety Code.
1025-25 (25) Chapter 313, Health and Safety Code, as added by
1025-26 Chapter 638, Acts of the 73rd Legislature, Regular Session, 1993,
1025-27 is renumbered as Chapter 314, Health and Safety Code, and Sections
1026-1 313.001, 313.002, 313.003, 313.004, 313.005, 313.006, 313.007, and
1026-2 313.008, Health and Safety Code, as added by that Act, are
1026-3 renumbered as Sections 314.001, 314.002, 314.003, 314.004, 314.005,
1026-4 314.006, 314.007, and 314.008, Health and Safety Code,
1026-5 respectively.
1026-6 (26) Subsection (f), Section 361.021, Health and
1026-7 Safety Code, as added by Chapter 303, Acts of the 72nd Legislature,
1026-8 Regular Session, 1991, is relettered as Subsection (j), Section
1026-9 361.021, Health and Safety Code.
1026-10 (27) Section 361.0232, Health and Safety Code, as
1026-11 added by Chapter 336, Acts of the 72nd Legislature, Regular
1026-12 Session, 1991, is renumbered as Section 361.0235, Health and Safety
1026-13 Code.
1026-14 (28) Subsection (h), Section 365.012, Health and
1026-15 Safety Code, as added by Chapter 740, Acts of the 73rd Legislature,
1026-16 Regular Session, 1993, is relettered as Subsection (k), Section
1026-17 365.012, Health and Safety Code.
1026-18 (29) Subsection (c), Section 401.415, Health and
1026-19 Safety Code, as added by Section 3, Chapter 810, Acts of the 73rd
1026-20 Legislature, Regular Session, 1993, is relettered as Subsection
1026-21 (d), Section 401.415, Health and Safety Code.
1026-22 (30) Subsection (b), Section 402.273, Health and
1026-23 Safety Code, as amended and redesignated by Chapter 878, Acts of
1026-24 the 73rd Legislature, Regular Session, 1993, is relettered as
1026-25 Subsection (c), Section 402.273, Health and Safety Code.
1026-26 (31) Section 533.044, Health and Safety Code, as added
1026-27 by Chapter 973, Acts of the 73rd Legislature, Regular Session,
1027-1 1993, is renumbered as Section 533.045, Health and Safety Code.
1027-2 (32) Section 571.0065, Health and Safety Code, as
1027-3 added by Chapter 903, Acts of the 73rd Legislature, Regular
1027-4 Session, 1993, is renumbered as Section 571.0066, Health and Safety
1027-5 Code.
1027-6 (33) Subsection (f), Section 574.081, Health and
1027-7 Safety Code, as added by Chapter 705, Acts of the 73rd Legislature,
1027-8 Regular Session, 1993, is relettered as Subsection (g), Section
1027-9 574.081, Health and Safety Code.
1027-10 (34) Chapter 757, Health and Safety Code, as added by
1027-11 Chapter 801, Acts of the 73rd Legislature, Regular Session, 1993,
1027-12 is renumbered as Chapter 758, Health and Safety Code, and Sections
1027-13 757.001, 757.002, and 757.003, Health and Safety Code, as added by
1027-14 that Act, are renumbered as Sections 758.001, 758.002, and 758.003,
1027-15 Health and Safety Code, respectively.
1027-16 (35) Chapter 757, Health and Safety Code, as added by
1027-17 Chapter 909, Acts of the 73rd Legislature, Regular Session, 1993,
1027-18 is renumbered as Chapter 759, Health and Safety Code, and Sections
1027-19 757.001, 757.002, 757.003, 757.004, and 757.005, as added by that
1027-20 Act, are renumbered as Sections 759.001, 759.002, 759.003, 759.004,
1027-21 and 759.005, Health and Safety Code, respectively.
1027-22 (36) Subsection (i), Section 76.009, Human Resources
1027-23 Code, as added by Chapter 417, Acts of the 73rd Legislature,
1027-24 Regular Session, 1993, is relettered as Subsection (j), Section
1027-25 76.009, Human Resources Code.
1027-26 (37) Section 140.005, Local Government Code, as added
1027-27 by Chapter 1042, Acts of the 73rd Legislature, Regular Session,
1028-1 1993, is renumbered as Section 140.007, Local Government Code.
1028-2 (38) Chapter 174, Local Government Code, as added by
1028-3 Chapter 663, Acts of the 73rd Legislature, Regular Session, 1993,
1028-4 is renumbered as Chapter 175, Local Government Code, and Sections
1028-5 174.001, 174.002, 174.003, 174.004, 174.005, 174.006, and 174.007,
1028-6 Local Government Code, as added by that Act, are renumbered as
1028-7 Sections 175.001, 175.002, 175.003, 175.004, 175.005, 175.006, and
1028-8 175.007, Local Government Code, respectively.
1028-9 (39) Section 253.007, Local Government Code, as added
1028-10 by Chapter 206, Acts of the 73rd Legislature, Regular Session,
1028-11 1993, is renumbered as Section 253.008, Local Government Code.
1028-12 (40) Subsection (h), Section 272.001, Local Government
1028-13 Code, as added by Chapter 509, Acts of the 73rd Legislature,
1028-14 Regular Session, 1993, is relettered as Subsection (i), Section
1028-15 272.001, Local Government Code.
1028-16 (41) Section 291.007, Local Government Code, as added
1028-17 by Chapter 818, Acts of the 73rd Legislature, Regular Session,
1028-18 1993, is renumbered as Section 291.008, Local Government Code.
1028-19 (42) Section 5.008, Property Code, as added by Chapter
1028-20 846, Acts of the 73rd Legislature, Regular Session, 1993, is
1028-21 renumbered as Section 5.009, Property Code.
1028-22 (43) Section 12.017, Property Code, as added by
1028-23 Chapter 1004, Acts of the 73rd Legislature, Regular Session, 1993,
1028-24 is renumbered as Section 12.018, Property Code.
1028-25 (44) Section 92.010, Property Code, as added by
1028-26 Chapter 938, Acts of the 73rd Legislature, Regular Session, 1993,
1028-27 is renumbered as Section 92.011, Property Code.
1029-1 (45) Section 11.436, Tax Code, as added by Chapter
1029-2 779, Acts of the 73rd Legislature, Regular Session, 1993, is
1029-3 renumbered as Section 11.437, Tax Code.
1029-4 (46) Section 23.12A, Tax Code, is renumbered as
1029-5 Section 23.121, Tax Code.
1029-6 (47) Section 23.12B, Tax Code, is renumbered as
1029-7 Section 23.122, Tax Code.
1029-8 (48) Subsection (h), Section 25.25, Tax Code, as added
1029-9 by Chapter 347, Acts of the 73rd Legislature, Regular Session,
1029-10 1993, is relettered as Subsection (k), Section 25.25, Tax Code.
1029-11 (49) Subdivision (16), Section 152.001, Tax Code, as
1029-12 added by Chapter 587, Acts of the 73rd Legislature, Regular
1029-13 Session, 1993, is renumbered as Subdivision (17), Section 152.001,
1029-14 Tax Code.
1029-15 (50) Subdivision (10), Section 160.001, Tax Code, as
1029-16 added by Chapter 718, Acts of the 73rd Legislature, Regular
1029-17 Session, 1993, is renumbered as Subdivision (12), Section 160.001,
1029-18 Tax Code.
1029-19 (51) Subdivision (8), Section 351.001, Tax Code, as
1029-20 added by Chapter 680, Acts of the 73rd Legislature, Regular
1029-21 Session, 1993, is renumbered as Subdivision (9), Section 351.001,
1029-22 Tax Code.
1029-23 (52) Section 26.178, Water Code, as added by Chapter
1029-24 16, Acts of the 73rd Legislature, Regular Session, 1993, is
1029-25 renumbered as Section 26.179, Water Code.
1029-26 SECTION 17.02. If the number, letter, or designation
1029-27 assigned by this article conflicts with a number, letter, or
1030-1 designation assigned by another Act of the 74th Legislature, the
1030-2 other Act controls, and the number, letter, or designation assigned
1030-3 by this article has no effect.
1030-4 ARTICLE 18. EFFECTIVE DATE; EMERGENCY
1030-5 SECTION 18.01. This Act takes effect September 1, 1995.
1030-6 SECTION 18.02. The importance of this legislation and the
1030-7 crowded condition of the calendars in both houses create an
1030-8 emergency and an imperative public necessity that the
1030-9 constitutional rule requiring bills to be read on three several
1030-10 days in each house be suspended, and this rule is hereby suspended.
1030-11 emergency and an imperative public necessity that the
1030-12 constitutional rule requiring bills to be read on three several
1030-13 days in each house be suspended, and this rule is hereby suspended.