SRC-JEC, MWN C.S.S.B. 305 77(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 305
77R1052 MXM-DBy: Harris
Natural Resources
4/5/2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

Periodically, state agencies undergo a review by the Sunset Advisory
Commission. During the interim of the 76th Legislature, the Texas Parks and
Wildlife Department (TPWD) went through the Sunset process. C.S.S.B. 305
continues the TPWD for 12 years and makes the statutory changes recommended
by the Sunset Commission. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Parks and Wildlife
Commission in SECTION 13 (Section11.0161, Parks and Wildlife Code), SECTION
14 (Section 11.0172, Parks and Wildlife Code), SECTION 16 (Section 11.0182,
Parks and Wildlife Code), SECTION 22 (Section 11.0275, Parks and Wildlife
Code) and SECTION 25 (Sections 11.202, 11.203, and 11.205, Parks and
Wildlife Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 11.002, Parks and Wildlife Code, to require the
Parks and Wildlife Commission (commission) to develop and implement
policies that clearly separate the policymaking responsibilities of the
commission and the management responsibilities of the director and the
Parks and Wildlife Department (department) staff, rather than the
respective responsibilities of the commission and the department staff. 

SECTION 2. Amends Section 11.0111, Parks and Wildlife Code, to provide that
unless continued in existence as provided by Chapter 325 (Texas Sunset
Act), Government Code, the department is abolished September 1, 2013,
rather than 2001. 

SECTION 3. Amends Section 11.012, Parks and Wildlife Code, by adding
Subsection (d), to require the governor, in making appointments under this
section, to attempt to include persons with certain areas of expertise. 

SECTION 4. Amends Section 11.0121, Parks and Wildlife Code, to prohibit a
person from being a public member of the commission if the person or the
person's spouse meets certain criteria. Deletes text regarding eligibility
for appointment. 

SECTION 5. Amends Section 11.0122, Parks and Wildlife Code, as follows:

Sec. 11.0122. CONFLICT OF INTEREST. Defines "Texas trade association."
Prohibits a person from being a member of the commission or being a
department employee employed in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of establishing
an exemption to the overtime provisions of the federal Fair Labor Act of
1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments, if the
person meets certain criteria. Deletes text regarding a commission member
or an employee of the department. 

SECTION 6. Amends Section 11.0123, Parks and Wildlife Code, as follows:
 
Sec. 11.0123. New heading: LOBBYIST PROHIBITION. Prohibits a person from
being a member of the commission or acting as the general counsel to the
commission or the department if the person is required to register as a
lobbyist under Chapter 305 (Registration of Lobbyist), Government Code,
because, rather than by virtue, of the person's activities for compensation
on behalf of a profession related to the operation of  the department.
Makes conforming and nonsubstantive changes.  

SECTION 7.  Amends Section 11.0124, Parks and Wildlife Code, to require
appointments to the commission to be made without regard to certain
factors. 

SECTION 8. Amends Section 11.0125, Parks and Wildlife Code, to provide that
it is a ground for removal from the commission that a member, rather than
if a member, meets certain conditions. Provides that the validity of an
action of the commission is not affected by the fact that it is, rather
than was, taken when a ground for removal of a commission member exists,
rather than existed. Requires the director, if the director has knowledge
that a potential ground for removal exists, to notify the presiding
officer, rather than chairman, of the commission of the potential ground.
Requires the potential officer to then notify the governor and the attorney
general that a potential ground for removal exists. Requires the director,
if the potential ground for removal involves the presiding officer, to
notify the next highest ranking officer of the commission, who will then
notify the governor and attorney general that a potential ground for
removal exists. 

SECTION 9. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0126, as follows: 

Sec. 11.0126. TRAINING PROGRAM FOR COMMISSION MEMBERS. Prohibits a person
who is appointed to and qualifies for office as a member of the commission
from voting, deliberating, or being counted as a member in attendance at a
meeting of the commission until the person completes a training program
that complies with this section. Requires the training program to provide
the person with certain information.  Entitles a person appointed to the
commission to reimbursement, as provided by the General Appropriations Act,
for the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before or after
the person qualifies for office. 

SECTION 10. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0127, as follows: 

Sec. 11.0127. TRAINING FOR EMPLOYEES ON STATE INCENTIVE PROGRAM. Requires
the director or the director's designee to provide to agency employees
information and training on the benefits and methods of participation in
the state employee incentive program under Chapter 2108B (Procedures for
Negotiated Rulemaking), Government Code. 

SECTION 11. Amends Section 11.014, Parks and Wildlife Code, as follows:

Sec. 11.014. New heading: PRESIDING OFFICER. Requires the governor to
designate a member of the commission as the presiding officer of the
commission to serve in that capacity at the pleasure of the governor.
Deletes text regarding a member appointed as chairman biennially for a term
of two years. Deletes text requiring the commission to elect biennially a
vicechairman from among its members. Provides that a vacancy in the office
of presiding officer is filled in the same manner as the original
designation.  Deletes text regarding filling a vacancy in the office of
chairman or vice-chairman.   Makes conforming changes. 

SECTION 12. Amends Section 11.0151, Parks and Wildlife Code, to define
"major decision." Requires the commission, or any committee of the
commission with at least five commission members serving on the committee,
to provide an opportunity for public testimony in an open meeting before
making a major decision. 

 SECTION 13. Amends Section 11.0161, Parks and Wildlife Code, as follows:

Sec. 11.0161. New heading: NOTIFICATION OF COMMISSION ACTIVITIES;
COMPLAINTS. Requires the department to maintain a file on each written
complaint filed with the department that the department has the authority
to resolve. Requires the file to include certain information. Requires the
department to provide to the person filing the complaint and to each person
who is a subject of the complaint a copy of the department's policies and
procedures relating to complaint investigation and resolution. Requires the
department, at least quarterly until final disposition of the complaint, to
notify the person filing the complaint and each person who is a subject of
the complaint of the status of the investigation unless the notice would
jeopardize an undercover investigation. Authorizes the commission to adopt
rules to define the types of complaints to which this section applies. 

SECTION 14. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0172, as follows: 

Sec. 11.0172. LIMIT ON CONTRACTS FOR PUBLICATIONS. Defines "publication"
and "youth."  Prohibits the department from contracting with a person
regarding a publication unless the contract provides the department the
authority to:  terminate the contract, retain final approval over the
content of the publication, including advertising, and request and receive
an appropriate number of copies of the publication that contain advertising
that is appropriate for viewing by youth.  Requires the commission to adopt
rules regarding the types of advertising that are appropriate for viewing
by youth. 

SECTION 15.  Amends Section 11.0181, Parks and Wildlife Code, by adding
Subsection (c) to require the department to manage the outreach and
education activities performed under this section to ensure that the
activities fulfill certain criteria. 

SECTION 16. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0182, as follows: 

Sec. 1.0182. EMPLOYEE FUND-RAISING. Requires the commission by rule to
adopt policies to govern fund-raising activities by department employees on
behalf of the department. Requires the rules to set certain criteria.
Requires the executive director of the Parks and Wildlife Department
(director) to approve and manage fund-raising activities by department
employees on behalf of the department in accordance with commission rules. 

SECTION 17. Amends Section 11.021, Parks and Wildlife Code, to require the
director or the director's designee to provide to commission members and
the department employees, as often as necessary, information regarding the
requirements for office or employment, rather than their qualifications,
under this chapter, including information regarding a person's
responsibilities under applicable laws relating to standards of conduct for
state officers or employees. 

SECTION 18. Amends Section 11.022, Parks and Wildlife Code, to require the
director or the director's designee to prepare and maintain a written
policy statement that implements a program of equal employment opportunity
to ensure that all personnel decisions, rather than transactions, are made
without regard to certain factors. Requires the policy statement to include
certain information. Deletes text regarding the policy statement including
a comprehensive analysis, procedures of determination, and reasonable
methods. Requires the policy statement to meet certain conditions. Deletes
text regarding the policy statement covering an annual period and being
updated at least annually. Makes conforming changes. 

SECTION 19. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0255, as follows: 

 Sec. 11.0255. EVALUATION OF CONSTRUCTION PROJECTS. Requires the department
to calculate the costs of each department construction project as the
project is completed. Requires the department, in calculating the costs, to
utilize certain methods. Requires the State Council on Competitive
Government, on request, to provide technical assistance to the department,
including assistance with the application of the council's cost accounting
procedures and instructions. Requires the department, using the costs
calculated under this section for completed projects, to evaluate the costs
and benefits of contracting with private entities or individuals to manage
proposed construction-related tasks or projects. 

SECTION 20. Amends Section 11.026, Parks and Wildlife Code, to authorize
the department, with an exception, to accept gifts of property or money in
support of any department purpose authorized in this code. Prohibits the
department from accepting a gift or other donation from a person who holds
a commercial license issued by the department. 

SECTION 21. Amends Section 11.0261, Parks and Wildlife Code, as follows:

Sec. 11.0261. New heading: PROHIBITION AGAINST ACCEPTANCE OF GIFTS,
GRATUITIES, AND OTHER THINGS OF VALUE; EXCEPTION. Authorizes a department
employee to accept reimbursement for travel expenses from the official
nonprofit partner designated by the commission under Section 11.025 if
certain conditions are met. Makes a conforming change. 

SECTION 22. Amends Chapter 11B, Parks and Wildlife Code, by adding Section
11.0275, as follows: 

Sec. 11.0275. PROHIBITION ON ALCOHOL AND TOBACCO ADVERTISING AND
PARTICIPATION.  Defines "publication."  Prohibits the department from
accepting an advertisement that promotes the sale of tobacco or alcohol
beverages in a publication sponsored or published by the department.
Provides that a public service advertisement to educate the public
regarding the risks associated with alcoholic beverages is not considered
an advertisement that promotes the sale of alcoholic beverages under this
section.  Prohibits such an advertisement from containing a promotion
focused on a product or using a brand identifier or alcohol product logo.
Authorizes such an advertisement to use a corporate logo that does not use
a brand identifier or alcohol product logo.  Requires the commission to
adopt rules regarding promotions, sponsorships, advertisements, and logos. 

SECTION 23. Amends Chapter 11, Parks and Wildlife Code, by adding
Subchapter H, as follows: 

SUBCHAPTER H. LAND AND WATER RESOURCES CONSERVATION PLAN

 Sec. 11.101. DEFINITION. Defines "conservation."

Sec. 11.102. PLAN APPROVAL; HEARING REQUIRED. Requires the department to
obtain approval from the commission for each development plan required by
statute for a geographical area managed by the department. Requires the
commission to hold a hearing on approval of the plan. 
 
Sec. 11.103. INVENTORY.  Requires the department to inventory all land and
water associated with certain resources that meet certain criteria.
Requires the department to create a permanent database of the resources
inventoried under this section and to update  the database as necessary, at
least once every 10 years, to reflect changes in the resources. 

Sec. 11.104. LAND AND WATER RESOURCES CONSERVATION AND RECREATION PLAN.
Requires the department, using the inventory prepared under Section 11.103,
to perform certain procedures.  Requires the department, based on the
analysis, to  prepare a land and water resources conservation and
recreation plan. Requires the plan to include criteria for determining how
to meet the state's conservation and recreation needs. Requires the
department to revise the plan as necessary to reflect changes in the
inventory developed under Section 11.103. Requires the department to modify
any existing plans regarding parks and wildlife management areas to make
the existing plans consistent with the land and water conservation and
recreation plan. Requires the department to base its decisions regarding
the state's conservation needs on the criteria developed in the plan,
including decisions relating to certain items. 
 
Sec. 11.105. COORDINATION OF CONSERVATION AND RECREATION OPERATIONS.
Requires the department to perform certain procedures. 

SECTION 24.  Amends Chapter 11, Parks and Wildlife Code, by adding
Subchapter I, as follows: 

SUBCHAPTER I. STATEWIDE COMMERCIAL PROJECTS

 Sec. 11.151. DEFINITIONS. Defines "statewide commercial project."

Sec. 11.152. BUSINESS PLANS. Requires each business plan developed under
this subchapter to include certain information. 

Sec. 11.153. DEPARTMENT PLAN: OPERATIONAL STRATEGIES. Requires the
department to develop an agency wide business plan to guide its overall
operational strategies for statewide commercial projects. Requires the plan
to meet certain criteria. Requires the department to use the services of
the State Council on Competitive Government, where appropriate, in
fulfilling the department's duties. 

Sec. 11.154. INDIVIDUAL PROJECT PLANS. Requires the department to develop a
business plan for each statewide commercial project. Requires the plan to
contain certain information. Requires the director to review the plan for
each project at least annually to assess the overall performance and value
of the project. Authorizes the department to modify a plan as necessary to
meet changing conditions. 

Sec. 11.155. ADJUSTMENT OR TERMINATION OF PROJECT FOR FAILURE TO MEET
FINANCIAL OBJECTIVES. Requires the department, except as provided by
Subsection (b), to adjust or terminate a statewide commercial project that
fails to meet the financial objectives stated in the project's plan.
Provides that this section does not apply if the department determines that
the project possesses a positive public relations value or fulfills a
useful educational purpose. 

Sec. 11.156. CONTRACT WITH PRIVATE SECTOR. Requires the department to
consider contracting out a statewide commercial project to a private entity
or individual, including a nonprofit entity or individual. 

SECTION 25. Amends Chapter 11, Parks and Wildlife Code, by adding
Subchapter J, as follows: 

SUBCHAPTER J. NONPROFIT PARTNERSHIPS

Sec. 11.201. DEFINITIONS. Defines "nonprofit partner" and  "official
nonprofit partner." 

Sec. 11.202. GENERAL DUTIES. Authorizes the department to select and
cooperate with nonprofit partners to serve department goals.  Requires the
department to obtain commission approval for each nonprofit partner.
Requires the commission by rule to establish best practices for nonprofit
partners to comply with. 

 Sec. 11.203. ACCOUNTABILITY OF NONPROFIT PARTNERS; INVESTMENT
RESTRICTIONS. Requires the commission by rule to require a nonprofit
partner to comply with specified state standards and safeguards for
accounting for state assets held by the nonprofit partner. Provides that
Chapter 2256 (Public Funds Investment), Government Code, applies to a
nonprofit partner to the extent that the partner controls state money. 

Sec. 11.204. PLAN. Requires the department to provide to each nonprofit
partner a copy of the plan developed under Section 11.104. 

Sec. 11.205. OFFICIAL NONPROFIT PARTNER. Requires the commission to
designate a single nonprofit partner as the official nonprofit partner of
the department, unless the commission determines in writing that no
nonprofit partner is capable of effectively implementing the goals of this
section. Requires the official nonprofit partner to be dedicated to meeting
department goals. Authorizes the official nonprofit partner to accept
certain items to further department goals, including a donation made in the
name of the department. Authorizes the official partner to use state money
to acquire property or engage in construction activities only if that
acquisition or construction is consistent with the department's
conservation and recreation priorities outlined in the plan developed under
Section 11.104. Authorizes the official nonprofit partner to organize and
manage accounts for local nonprofit partners or other organizations to
benefit specific state park or other sites under the department's
jurisdiction. Requires the commission by rule to establish certain
guidelines. 

Sec. 11.206. AUDIT OF OFFICIAL NONPROFIT PARTNER. Requires the official
nonprofit partner to be audited annually by an independent auditor.
Requires the partner to file the audit with the commission. Provides that
the official nonprofit partner's financial transactions involving and
financial records relating to state money held by the foundation are
subject to audit by the state auditor as provided in Section 321.013
(Powers and Duties of State Auditor), Government Code.  

Sec. 11.207. EMPLOYEE BENEFITS. Authorizes a nonprofit partner to provide
money to the department for the department to award, at the department's
discretion, to a department employee as a salary supplement, bonus, award,
or other benefit, including a scholarship. 

Sec. 11.208. EXPENDITURES; LIMITS. Requires the department to direct, by
the terms of the contract or grant, how a nonprofit partner is authorized
to spend any state money it receives. Prohibits a state employee from
directly spending or obligating a nonprofit partner's money. Prohibits a
nonprofit partner from spending state money to receive certain influence. 

SECTION 26. Amends Section 12.025, Parks and Wildlife Code, to require the
department to consider certain matters in setting priorities for the
provision of money to a landowner under this section. 

SECTION 27. Amends Sections 13.001(a), (b), and (c), Parks and Wildlife
Code, to provide that certain items are under the department's control and
custody, except as otherwise provided by law. Requires the commission to
establish a classification system for state parks and wildlife management
area that categorizes wildlife management areas, parks, or a portion of
parks as wildlife management areas, recreational areas, natural areas, or
historical sites, rather than areas. Prohibits the commission from
classifying a historical site as a historical park. Makes conforming and
nonsubstantive changes. 

SECTION 28. Amends Section 13.002, Parks and Wildlife Code, as follows:

Sec. 13.002. New heading: DEVELOPMENT AND ACQUISITION OF OUTDOOR AREAS.
Deletes text regarding the department's authorization to prepare, maintain
and revise a statewide comprehensive plan. 

 SECTION 29. Amends Section 13.005, Parks and Wildlife Code, as follows:

Sec. 13.005. New heading: ACQUISITION OF HISTORICAL SITES. Requires the
department to formulate plans for the preservation and development of
historical sites. Requires the department, before formulating a plan for a
specific site, to conduct an archeological survey of the site. Requires the
department, in formulating plans, to consider certain criteria. Requires
the department and the Texas Historical Commission (THC) to form a joint
panel to establish criteria for determining whether a site is of statewide
significance and to promote the continuity of a historic sites program.
Makes conforming changes. 

SECTION 30. Amends Chapter 13A, Parks and Wildlife Code, by adding Sections
13.005113.0053, as follows: 

Sec. 13.0051. COORDINATION WITH TEXAS HISTORICAL COMMISSION; REPORT ON
PRESERVATION PLANS. Requires the department to meet regularly with the THC
regarding plans to preserve and develop historical sites in this state. 

Sec. 13.0052. REPORTS. Requires the department to periodically prepare
reports on plans to preserve and develop historical sites in this state. 

Sec. 13.0053. REFERENCE TO HISTORICAL SITES. Defines "publication" and
prohibits the department from referring to a historical site as a
"historical park" in a department publication or on a department sign or
marker. Makes a conforming change. 

SECTION 31. Amends Section 13.010, Parks and Wildlife Code, as follows:

Sec. 13.010. New heading: HISTORIC SITES. Authorizes the department to
locate, designate, and suitably mark historic grounds, battlefields, and
other historic spots in Texas as historic sites. 

SECTION 32. Amends Chapter 77A, Parks and Wildlife Code, by adding Section
77.005, as follows: 

Sec. 77.005. STUDY AND REPORT ON SHRIMP INDUSTRY AND RESOURCES. Requires
the department, using the shrimp management plan required by Section 77.007
and the research conducted under Section 77.004, to comprehensively study
shrimp resources, including the shrimp population, and the shrimp industry.
Requires the study to analyze certain issues. Requires the department, in
conducting the study, to solicit and consider input from certain entities.
Requires the department to report on the status of the study to certain
persons. Authorizes the department to repeat the study and report as
necessary to adequately regulate the shrimp industry and to preserve shrimp
resources. Requires the commission to base policies and rules relating to
shrimping on the results of the most recent study completed under this
section. 

SECTION 33. Amends Section 11.001(4), Parks and Wildlife Code, to make a
conforming change. 

SECTION 34. Amends Section 11.0162, Parks and Wildlife Code, to make
conforming changes. 

SECTION 35. Amends Section 21.013(b), Parks and Wildlife Code, to make a
conforming change. 

SECTION 36. Amends Section 21.014, Parks and Wildlife Code, to make a
conforming change. 

SECTION 37. Amends Section 22.055(b), Parks and Wildlife Code, to make a
conforming change. 

SECTION 38. Amends Section 81.206(a), Parks and Wildlife Code, to make a
conforming change. 

 SECTION 39. Requires the department to study all outreach and education
activities performed under Section 11.0181, Parks and Wildlife Code, to
determine whether the activities meet certain criteria. Requires the
department, not later than September 1, 2002, to report to certain entities
on the study's results. Requires the department, until the report is
submitted, to limit  spending on outreach and education activities
performed under Section 11.0181, Parks and Wildlife Code, unless the
department can prove to the commission that the spending is for an activity
that is effective, or is required by statute. 

SECTION 40. Prohibits the department from acquiring a new park, historical
site, or wildlife site before the department has completed the inventory
required by Section 11.103, Parks and Wildlife Code, as added by this Act,
and the commission has approved the plan prepared by the department.
Provides that this Section does not apply to acquisitions, as determined by
the department, that meet certain criteria. 

SECTION 41.  Defines "publication" and "youth."  Provides that to the
extent a contract for a publication does not expressly allow the Parks and
Wildlife Department to terminate the contract, retain final approval over
the content, or request and receive copies, the department is required to
negotiate a modification to or otherwise modify the contract to contain
certain provisions not later than March 1, 2002. 

SECTION 42.  Requires the department, not later than September 1, 2002, to
complete the initial report required under Section 77.005(c), Parks and
Wildlife Code, as added by this Act. 

SECTION 43. Requires the department, not later than October 15, 2002, to
prepare the initial plan required under Section 11.104, Parks and Wildlife
Code, as added by this Act. 

SECTION 44. Makes application of this Act regarding commission members
prospective. 

SECTION 45. Effective date: September 1, 2001. 

SUMMARY OF COMMITTEE CHANGES

Differs from the original as follows:

SECTION 3.  Amends the previously proposed text regarding fields of
expertise. 

SECTION 4.  Amends the previously proposed text to include a license issued
under Chapter 43D. 

SECTION 11.  Amends the previously proposed amendments to delete text and
requirements regarding the designation of an assistant presiding officer. 

SECTION 14.  Amends the previously proposed Section 11.0172 to include the
definition of "youth," change the provisions regarding the publication
contract, and add rulemaking authority. 

SECTION 15.  Adds provisions in SECTION 15.

Redesignates subsequent SECTIONS 15-38 as SECTIONS 16-39, with changes.

SECTION 20.  Amends previously proposed SECTION 19 to clarify the text.

SECTION 21.  Clarifies that the nonprofit partner is designated by the
commission, rather than the department. 

SECTION 22.  Makes further provisions regarding a public service
advertisement and grants the commission rulemaking authority regarding
promotional and sponsorship opportunities at department  events. 

SECTION 23.  Modifies the heading of Subchapter H.  Clarifies the text
regarding land and water resources and a "land and water resource
conservation and recreation plan," rather than a "comprehensive statewide
operational plan for conservation." Includes recreation as a goal along
with conservation. 

SECTION 25.  Modifies the definition of "nonprofit partner."  Adds the
requirement that the department obtain commission approval for each
nonprofit partner.  Adds the exception regarding the commission's
determination that no nonprofit partner is capable of implementing the
goals of the section.   

SECTION 26.  Eliminates the previously proposed amendments to Section
12.025(a), Parks and Wildlife Code.  Modifies the previously proposed
amendments to Subsection (b). 

SECTION 39.  Clarifies a compliance provision.

Deletes the text of previously proposed SECTION 39, regarding compliance
with the provisions of this Act. 

SECTION 40.  Adds a provision regarding the commission's approval of the
plan. 

SECTION 41.  Adds provisions regarding definitions,  transfers text from
previously proposed SECTION 14 (Section 11.0172(c), Parks and Wildlife
Code) and modifies provisions regarding a contract for publication.  

Redesignates previously proposed SECTION 43 as SECTION 42 and SECTION 41 as
SECTION 43, with changes. 

SECTION 43.  Changes the previously proposed deadline of February 2, 2002,
to October 15, 2002.