1-1 By: Averitt (Senate Sponsor - Sibley) H.B. No. 3793
1-2 (In the Senate - Received from the House April 26, 1999;
1-3 April 27, 1999, read first time and referred to Committee on
1-4 Natural Resources; May 12, 1999, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 5, Nays 0;
1-6 May 12, 1999, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 3793 By: Armbrister
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the authority of the Brazos River Authority to contract
1-11 with certain persons, to manage property of the authority, and to
1-12 issue bonds for and otherwise finance services, facilities, or
1-13 works of the authority.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Chapter 13, Acts of the 41st Legislature, 2nd
1-16 Called Session, 1929, as amended, is amended by adding Sections 11
1-17 and 11-b to read as follows:
1-18 Sec. 11. (a) The Authority is a district and a river
1-19 authority as defined in the Regional Waste Disposal Act, as amended
1-20 (Chapter 30, Water Code), and all of the provisions of the Regional
1-21 Waste Disposal Act, as amended, are applicable to the Authority.
1-22 (b) As used in this Act:
1-23 (1) "Person" means any individual, partnership,
1-24 corporation, public utility, or other private entity or any public
1-25 agency.
1-26 (2) "Public agency" means any authority, district,
1-27 city, town, or other political subdivision, joint board, or other
1-28 public agency created pursuant to and operating under the laws of
1-29 the State of Texas.
1-30 (c) The Authority and all persons are authorized to contract
1-31 with each other in any manner and on terms as to which the parties
1-32 may agree with respect to any power, function, facilities, or
1-33 services which the Authority is authorized by law to provide or
1-34 finance. All public agencies are authorized to use and pledge any
1-35 available revenues for and in the payment of amounts due under the
1-36 contracts as an additional source or sources of payment of the
1-37 contracts or as the sole source or sources of payment of the
1-38 contracts and may covenant with respect to available revenues so as
1-39 to assure the availability of these revenues when required. The
1-40 term "revenues" as used in this subsection does not mean or include
1-41 revenues from ad valorem taxes levied and collected by a public
1-42 agency or the proceeds from the sale or refunding of bonds of a
1-43 public agency that are to be wholly or partially paid from ad
1-44 valorem taxes levied and collected by the public agency unless the
1-45 use or pledge of the tax revenues or bond proceeds are approved by
1-46 the qualified voters of the public agency at an election called for
1-47 the purpose of levying taxes or issuing or refunding bonds or both
1-48 for the purpose of using or pledging their revenues or proceeds
1-49 under contracts entered into under this subsection.
1-50 (d) Each public agency is authorized to fix, charge, and
1-51 collect fees, rates, charges, rentals, and other amounts for any
1-52 services or facilities provided by any utility operated by it or
1-53 provided pursuant to or in connection with any contract with the
1-54 Authority from its inhabitants or from any users or beneficiaries
1-55 of any utility, services, or facilities, including specifically
1-56 water charges, sewage charges, solid waste disposal system fees and
1-57 charges, including garbage collection or handling fees, and other
1-58 fees or charges and to use and pledge same to make payments to the
1-59 Authority required under the contract and may covenant to do so in
1-60 amounts sufficient to make all or any part of the payments to the
1-61 Authority when due. The payments shall, if the parties agree in
1-62 the contract, constitute an expense of operation of any facilities
1-63 or utility operated by the public agency.
1-64 (e) The Authority, acting through its Board, is authorized
2-1 to undertake and carry out any activities and to acquire, purchase,
2-2 construct, own, operate, maintain, repair, improve, or extend and
2-3 to lease or sell on terms and conditions, including rentals or sale
2-4 prices, on which the parties may agree any and all works,
2-5 improvements, facilities, plants, buildings, structures, equipment,
2-6 and appliances and all real and personal property or any interest
2-7 in real or personal property related thereto that are incident to
2-8 or necessary in carrying out or performing any power or function of
2-9 the Authority under this section.
2-10 (f) The Authority is authorized to issue bonds with respect
2-11 to the acquisition, purchase, construction, maintenance, repair,
2-12 improvement, and extension of works, improvements, facilities,
2-13 plants, buildings, structures, appliances, and property for the
2-14 purpose of exercising any of its powers and functions under this
2-15 section in the manner provided by this Act or any other applicable
2-16 law. The Authority is further authorized to issue revenue bonds to
2-17 pay for the costs of feasibility studies for proposed projects of
2-18 the Authority, including engineering, planning and design, and
2-19 environmental studies. The Authority is authorized to include in
2-20 any revenue bond issue the funds to operate and maintain for a
2-21 period not to exceed two years after completion of the facilities
2-22 acquired or constructed through the revenue bond issue. If any
2-23 bonds issued by the Authority recite that they are secured by a
2-24 pledge of payments under any contract, a copy of the contract and
2-25 the proceedings relating to the contract may be submitted to the
2-26 attorney general along with the bonds, and if the attorney general
2-27 finds that the bonds have been authorized and the contract or
2-28 contracts has or have been made and entered into in accordance with
2-29 law, then he shall approve the bonds and the contract or contracts,
2-30 and after the approval, the bonds and the contract or contracts
2-31 shall be incontestable in any court or other forum for any reason
2-32 and shall be valid and binding in accordance with its or their
2-33 terms and provisions for all purposes. The provisions of Chapter
2-34 503, Acts of the 54th Legislature, Regular Session, 1955, as
2-35 amended (Article 717k, Vernon's Texas Civil Statutes), Chapter 3,
2-36 Acts of the 61st Legislature, Regular Session, 1969, as amended
2-37 (Article 717k-2, Vernon's Texas Civil Statutes), Chapter 784, Acts
2-38 of the 61st Legislature, Regular Session, 1969, as amended (Article
2-39 717k-3, Vernon's Texas Civil Statutes), Chapter 845, Acts of the
2-40 67th Legislature, Regular Session, 1981, as amended (Article
2-41 717k-6, Vernon's Texas Civil Statutes), the Texas Uniform Facsimile
2-42 Signature of Public Officials Act, as amended (Article 717j-1,
2-43 Vernon's Texas Civil Statutes), and Chapter 656, Acts of the 68th
2-44 Legislature, Regular Session, 1983, as amended (Article 717q,
2-45 Vernon's Texas Civil Statutes), are applicable to bonds issued by
2-46 the Authority.
2-47 (g) This section is wholly sufficient authority within
2-48 itself for the issuance of the bonds, the execution of contracts,
2-49 and the performance of the other acts and procedures authorized in
2-50 this section by the Authority and all persons, including
2-51 specifically public agencies, without reference to any other
2-52 provisions of law or any restrictions or limitations contained
2-53 therein, except as in this section specifically provided; and in
2-54 any case, to the extent of any conflict or inconsistency between
2-55 any provisions of this subsection and any other provisions of law,
2-56 including any home-rule city charter, this subsection shall prevail
2-57 and control; provided, however, that the Authority and all persons,
2-58 including specifically public agencies, shall have the right to use
2-59 any other provisions of law not in conflict with the provisions of
2-60 this section to the extent convenient or necessary to carry out any
2-61 power or authority, express or implied, granted by this section.
2-62 Sec. 11-b. (a) The Authority is authorized to issue bonds
2-63 to acquire lands within the boundaries of the Authority on which
2-64 and adjacent to which a dam and reservoir project was authorized to
2-65 be constructed pursuant to Water Appropriation Permit No. 2925, and
2-66 to construct a dam and reservoir project on such lands. The lands
2-67 are designated pursuant to Subdivision (2), Subsection (f), Section
2-68 16.051, Water Code, as a site of unique value for the construction
2-69 of a dam and reservoir project, and the right is granted to
3-1 construct on the site a dam and reservoir with a capacity of not to
3-2 exceed 500,000 acre-feet, to divert from the unappropriated flows
3-3 of the Brazos River up to 500,000 acre-feet of water per annum, to
3-4 impound in the reservoir waters diverted from the Brazos River and
3-5 unappropriated inflows to the reservoir, and to divert and use from
3-6 the reservoir for municipal, industrial, and other purposes an
3-7 amount of water specified in the permit or amended permit issued
3-8 under Subsection (b) of this section, up to an average of 500,000
3-9 acre-feet per year.
3-10 (b) The Authority and other public agencies are authorized
3-11 to contract with each other and the Texas Water Development Board
3-12 to define the obligations of each public agency to pay for a
3-13 portion of the total costs of the dam and reservoir project
3-14 identified under Subsection (a) of this section, as the project was
3-15 authorized under Water Appropriation Permit No. 2925 or is proposed
3-16 to be modified, and to define their respective interests in the
3-17 water appropriation permit for the project. The Texas Natural
3-18 Resource Conservation Commission shall reissue to the Texas Water
3-19 Development Board, without notice or hearing, Water Appropriation
3-20 Permit No. 2925, and the Texas Water Development Board shall
3-21 transfer interests in the reissued permit to the Authority and
3-22 other public agencies as provided by the contract or contracts.
3-23 The reissued permit may be amended to authorize a modified project
3-24 upon submission of an application to amend by the holder or holders
3-25 of the permit. The permit as reissued and as so amended shall have
3-26 a priority date of September 1, 1999, provided the authorizations
3-27 in the amended permit do not exceed those set forth in Subsection
3-28 (a) of this section. The date by which construction of the project
3-29 must commence shall be September 1, 2018.
3-30 (c) Nothing in this section shall be construed as
3-31 prohibiting or impairing any lawful use, sale, or other curtailment
3-32 or diminution of waters that contribute to the flows of the Brazos
3-33 River at the proposed point of diversion for the project including,
3-34 without limitation, curtailment or diminution of discharges of
3-35 groundwater into tributaries of the Brazos River upstream of such
3-36 point, whether due to use or sale of such groundwater or any other
3-37 reason.
3-38 SECTION 2. Section 12, Chapter 368, Acts of the 44th
3-39 Legislature, 1st Called Session, 1935, as amended, is amended to
3-40 read as follows:
3-41 Sec. 12. Nothing in this Act shall be construed as
3-42 authorizing the Authority, and it shall not be authorized to
3-43 mortgage, or otherwise encumber any of its property of any kind,
3-44 real, personal or mixed, or any interest therein, or to acquire any
3-45 such property or interest subject to a mortgage or conditional
3-46 sale, provided that this Section shall not be construed as
3-47 preventing the pledging of the revenues of the Authority as herein
3-48 authorized. Nothing in this Act shall be construed as authorizing
3-49 the sale, release or other disposition of any such property or
3-50 interest by the Authority, or any receiver of any of the Authority
3-51 property, or through any court proceedings, or otherwise; provided,
3-52 however, that the Authority may sell for cash any such property or
3-53 interest [in an aggregate value not exceeding the sum of One
3-54 Hundred Thousand Dollars ($100,000) in any one (1) year] if the
3-55 Board by affirmative vote of eleven (11) of its members shall have
3-56 determined that the property or interest is not necessary to the
3-57 business of the Authority, and shall have approved the terms of any
3-58 such sale, it being the intention of this Act that except by sale
3-59 as in this Section expressly authorized, no such property or
3-60 interest shall ever come into the ownership or control, directly of
3-61 indirectly, of any person, firm or corporation other than a public
3-62 authority created under the laws of the State of Texas. All
3-63 property of the Authority shall be at all times exempted from
3-64 forced sale, and nothing in this Act contained shall authorize the
3-65 sale of any of the property of the Authority under any judgment
3-66 rendered in any suit and such sales are hereby prohibited and
3-67 forbidden. Notwithstanding any restrictions or provisions in this
3-68 Section 12 or in this Act contained, the Authority, acting by a
3-69 majority vote of the members of its Board, shall have the power to
4-1 construct or purchase from any person, firm or corporation with
4-2 which Authority shall have contracted to sell hydro-electric power,
4-3 (herein referred to in this Section as "Customer") transmission
4-4 lines and other property used or to be used by such Customer for
4-5 the transmission of or in connection with power purchased or to be
4-6 purchased from the Authority, and to lease all, or any portion of
4-7 such property to such Customer for all or any portion of the time
4-8 during the term of such hydro-electric power purchase contract,
4-9 which lease may contain provisions, which shall be valid and
4-10 enforceable, giving the lessee the right to purchase from the
4-11 Authority all or any portion of said property at or within the time
4-12 specified in the lease and for a price and upon terms and
4-13 conditions specified in the lease. Such price shall never be less
4-14 than the depreciated value, determined in the manner prescribed in
4-15 such lease plus one per cent (1%) of the original cost of such
4-16 property. [Any price paid or to be paid because of such purchase
4-17 shall not be taken into consideration in applying the limitation of
4-18 One Hundred Thousand Dollars ($100,000) in any one (1) year of the
4-19 value of property that may be sold by the Authority as hereinabove
4-20 in this Section 12 prescribed, but such payment may be made in
4-21 excess of such limitation.]
4-22 SECTION 3. Proof of publication of the constitutional notice
4-23 required in the enactment hereof under the provisions of Article
4-24 XVI, Section 59(d), of the Texas Constitution has been made in the
4-25 manner provided therein and a copy of said notice and the bill as
4-26 originally introduced have been delivered to the Governor of the
4-27 State of Texas as required in such constitutional provision, and
4-28 such notice and delivery are hereby found and declared to be proper
4-29 and sufficient to satisfy such requirements.
4-30 SECTION 4. The importance of this legislation and the
4-31 crowded condition of the calendars in both houses create an
4-32 emergency and an imperative public necessity that the
4-33 constitutional rule requiring bills to be read on three several
4-34 days in each house be suspended, and this rule is hereby suspended,
4-35 and that this Act take effect and be in force from and after its
4-36 passage, and it is so enacted.
4-37 * * * * *