77R12282 DWS-F                           
         By George, et al.                                     H.B. No. 2369
         Substitute the following for H.B. No. 2369:
         By Averitt                                        C.S.H.B. No. 2369
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to state financing of the development and production of
 1-3     Texas biotechnological and biomedical products and small
 1-4     businesses; providing for the issuance of bonds.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Chapter 403, Government Code, is amended by
 1-7     adding Subchapter P to read as follows:
 1-8       SUBCHAPTER P. PRODUCT DEVELOPMENT AND SMALL BUSINESS INCUBATORS
 1-9           Sec. 403.401.  DEFINITIONS. In this subchapter:
1-10                 (1)  "Board" means the Product Development and Small
1-11     Business Incubator Board.
1-12                 (2)  "Comptroller" includes the designee of the
1-13     comptroller.
1-14                 (3)  "Financing" means a loan, loan guarantee, or
1-15     equity investment from the product development fund to a person for
1-16     use in the development and production of a product in this state,
1-17     or a grant, loan, or loan guarantee from the small business
1-18     incubator fund to a person for use in the development of a small
1-19     business in this state.
1-20                 (4)  "Office" means the office of the comptroller.
1-21                 (5)  "Product" includes an invention, device,
1-22     technique, or process, without regard to whether a patent has or
1-23     could be granted, that has advanced beyond the theoretical stage
1-24     and has or is readily capable of having a commercial application.
 2-1     The term does not include pure research.
 2-2                 (6)  "Product fund" means the Texas product development
 2-3     fund.
 2-4                 (7)  "Program" means the product development program or
 2-5     the small business incubator program.
 2-6                 (8)  "Small business fund" means the Texas small
 2-7     business incubator fund.
 2-8           Sec. 403.402.  PRODUCT DEVELOPMENT AND SMALL BUSINESS
 2-9     INCUBATOR BOARD. (a)  The Product Development and Small Business
2-10     Incubator Board is created in the office.
2-11           (b)  The board shall administer the programs, the product
2-12     fund, and the small business fund.
2-13           Sec. 403.403.  MEMBERS OF THE BOARD; APPOINTMENT; TERMS OF
2-14     OFFICE. (a)  The board consists of the comptroller and six persons
2-15     appointed by the governor.
2-16           (b)  In appointing members of the board, the governor shall
2-17     appoint:
2-18                 (1)  two persons having significant business leadership
2-19     experience in technology, particularly experience with the transfer
2-20     of research results into commercial applications;
2-21                 (2)  two persons employed by institutions of higher
2-22     education of this state who have experience in technological
2-23     research and its commercial applications; and
2-24                 (3)  two persons experienced and knowledgeable in
2-25     structuring and providing financing for technological products or
2-26     businesses.
2-27           (c)  Appointed members of the board serve two-year staggered
 3-1     terms with the terms of three members expiring February 1 of each
 3-2     odd-numbered year and the terms of three members expiring February
 3-3     1 of each even-numbered year.
 3-4           (d)  The comptroller is the presiding officer of the board.
 3-5           (e)  The board shall appoint a secretary of the board whose
 3-6     duties may be prescribed by law and by the board.
 3-7           (f)  Appointed members of the board serve without pay but are
 3-8     entitled to reimbursement for their actual expenses incurred in
 3-9     attending meetings of the board or in performing other work of the
3-10     board if that work is approved by the comptroller.
3-11           Sec. 403.404.  REMOVAL OF BOARD MEMBER. (a)  It is a ground
3-12     for removal from the board if an appointed member:
3-13                 (1)  cannot because of illness or disability discharge
3-14     the member's duties for a substantial part of the term for which
3-15     the member is appointed; or
3-16                 (2)  is absent from more than half of the regularly
3-17     scheduled board meetings that the member is eligible to attend
3-18     during a calendar year unless the absence is excused by majority
3-19     vote of the board.
3-20           (b)  The validity of an action of the board is not affected
3-21     by the fact that the action was taken when a ground for removal of
3-22     a board member existed.
3-23           Sec. 403.405.  TRAINING OF BOARD MEMBERS. (a)  Before an
3-24     appointed member of the board may assume the member's duties, the
3-25     member must complete at least one course of the training program
3-26     established under this section.
3-27           (b)  A training program established under this section shall
 4-1     provide information to the member regarding:
 4-2                 (1)  the enabling legislation that created the board;
 4-3                 (2)  the programs operated by the board;
 4-4                 (3)  the role and functions of the board;
 4-5                 (4)  the rules of the board, with an emphasis on the
 4-6     rules that relate to disciplinary and investigatory authority;
 4-7                 (5)  the current budget for the board;
 4-8                 (6)  the results of the most recent formal audit of the
 4-9     board;
4-10                 (7)  the requirements of the:
4-11                       (A)  open meetings law, Chapter 551;
4-12                       (B)  open records law, Chapter 552; and
4-13                       (C)  administrative procedure law, Chapter 2001;
4-14                 (8)  the requirements of the conflict of interest laws
4-15     and other laws relating to public officials; and
4-16                 (9)  any applicable ethics policies adopted by the
4-17     board or the Texas Ethics Commission.
4-18           Sec. 403.406.  MEETINGS. (a)  The board shall hold regular
4-19     meetings in Austin and other meetings at places and times scheduled
4-20     by the board in formal sessions and called by the comptroller.
4-21           (b)  The board shall develop and implement policies that
4-22     provide the public with a reasonable opportunity to appear before
4-23     the board and to speak on any issue under the jurisdiction of the
4-24     board.
4-25           (c)  The board shall make minutes of all meetings available
4-26     in the board's office for public inspection.
4-27           Sec. 403.407.  APPLICABILITY OF OPEN MEETINGS LAW AND
 5-1     ADMINISTRATIVE PROCEDURE LAW. The board is subject to the open
 5-2     meetings law, Chapter 551, and the administrative procedure law,
 5-3     Chapter 2001.
 5-4           Sec. 403.408.  STAFF. (a)  The employees of the comptroller
 5-5     selected by the comptroller for that purpose serve as the staff of
 5-6     the board.
 5-7           (b)  The comptroller shall select and supervise the staff of
 5-8     the board and perform other duties delegated to the comptroller by
 5-9     the board.
5-10           (c)  The comptroller shall provide to members of the board
5-11     and to board staff, as often as necessary, information regarding
5-12     their qualifications for office or employment under this subchapter
5-13     and their responsibilities under applicable laws relating to
5-14     standards of conduct for state officers or employees.
5-15           (d)  The board shall develop and implement policies that
5-16     clearly separate the policy-making responsibilities of the board
5-17     and the management responsibilities of the comptroller and the
5-18     office.
5-19           Sec. 403.409.  PROGRAM AND FACILITY ACCESSIBILITY. (a)  The
5-20     board shall comply with federal and state laws related to program
5-21     and facility accessibility.
5-22           (b)  The board shall prepare and maintain a written plan that
5-23     describes how a person who does not speak English can be provided
5-24     reasonable access to the board's programs and services.
5-25           Sec. 403.410.  POWERS OF THE BOARD; BONDS. (a)  The board has
5-26     the powers necessary and reasonable to carry out this subchapter
5-27     and may adopt rules, policies, and procedures necessary or
 6-1     reasonable to implement this subchapter.
 6-2           (b)  The board may issue general obligation bonds, up to the
 6-3     amounts authorized and as provided by Section 71, Article XVI,
 6-4     Texas Constitution, to fund the program.
 6-5           (c)  Not more than an amount equal to five percent of the
 6-6     total amount of bonds issued may be used to pay administrative fees
 6-7     involved in selling the bonds.
 6-8           Sec. 403.411.  TEXAS PRODUCT DEVELOPMENT FUND. (a)  The Texas
 6-9     product development fund is a revolving fund in the state treasury.
6-10           (b)  The product fund is composed of proceeds of bonds issued
6-11     under this subchapter, financing application fees, loan repayments,
6-12     guarantee fees, royalty receipts, dividend income, money
6-13     appropriated by the legislature for authorized purposes of the
6-14     product fund, amounts received by the state from loans, loan
6-15     guarantees, and equity investments made under this subchapter,
6-16     amounts received by the state from federal grants or other sources,
6-17     and any other amounts received under this subchapter and required
6-18     by resolution of the board to be deposited in the product fund.
6-19     The product fund contains a program account, an interest and
6-20     sinking account, and other accounts that the board authorizes to be
6-21     created and maintained.  Money in the product fund is available for
6-22     use by the board under this subchapter. Notwithstanding any other
6-23     provision of this subchapter, any money in the fund may be used for
6-24     debt service.
6-25           (c)  Money in the program account of the product fund, minus
6-26     the costs of issuance of bonds under this subchapter and necessary
6-27     costs of administering the product fund, may be used only to
 7-1     provide financing to aid in the development and production,
 7-2     including the commercialization, of new or improved products in
 7-3     this state.  The board shall provide financing from the product
 7-4     fund on the terms and conditions that the board determines to be
 7-5     reasonable, appropriate, and consistent with the purposes and
 7-6     objectives of the product fund and this subchapter, for the purpose
 7-7     of aiding in the development and production of new or improved
 7-8     products in this state.
 7-9           Sec. 403.412.  SMALL BUSINESS INCUBATOR FUND. (a)  The Texas
7-10     small business incubator fund is a revolving fund in the state
7-11     treasury.
7-12           (b)  The small business fund is composed of proceeds of bonds
7-13     issued under this subchapter, financing application fees, loan
7-14     repayments, guarantee fees, royalty receipts, dividend income,
7-15     money appropriated by the legislature for authorized purposes of
7-16     the small business fund, amounts received by the state from loans,
7-17     loan guarantees, and equity investments made under this subchapter,
7-18     amounts received by the state from federal grants or other sources,
7-19     and any other amounts received under this subchapter and required
7-20     by resolution of the board to be deposited in the small business
7-21     fund.  The small business fund contains a project account, an
7-22     interest and sinking account, and other accounts that the board
7-23     authorizes to be created and maintained.  Money in the small
7-24     business fund is available for use by the board under this
7-25     subchapter. Notwithstanding any other provision of this subchapter,
7-26     any money in the fund may be used for debt service.
7-27           (c)  Money in the project account of the small business fund,
 8-1     minus the costs of issuance of bonds under this subchapter and
 8-2     necessary costs of administering the small business fund, may be
 8-3     used only to provide financing to foster and stimulate the
 8-4     development of small businesses in this state.  The board shall
 8-5     provide financing from the small business fund on the terms and
 8-6     conditions that the board determines to be reasonable, appropriate,
 8-7     and consistent with the purposes and objectives of the small
 8-8     business fund and this subchapter, for the purpose of fostering and
 8-9     stimulating the development of new or existing small businesses in
8-10     this state.
8-11           Sec. 403.413.  ELIGIBLE PRODUCTS AND BUSINESSES; FINANCING.
8-12     (a)  Financing may be made under this subchapter only for a product
8-13     or small business approved by the board.
8-14           (b)  In determining eligible products and small businesses,
8-15     the board shall give special preference to products or businesses
8-16     in the areas of biotechnology and biomedicine that have the
8-17     greatest likelihood of commercial success, job creation, and job
8-18     retention in this state.  The board shall give further preference
8-19     to providing financing to projects or businesses that are:
8-20                 (1)  grantees under the small business innovation
8-21     research program established under 15 U.S.C. Section 638, as
8-22     amended;
8-23                 (2)  companies formed in this state to commercialize
8-24     research funded at least in part with state funds;
8-25                 (3)  applicants that have acquired other sources of
8-26     financing;
8-27                 (4)  companies formed in this state and receiving
 9-1     assistance from designated state small business development
 9-2     centers; or
 9-3                 (5)  applicants who are residents of this state doing
 9-4     business in this state and performing financed activities
 9-5     predominantly in this state.
 9-6           (c)  The board shall adopt rules governing the terms and
 9-7     conditions of the financing, specifically including requirements
 9-8     for appropriate security or collateral, equity interest, and the
 9-9     rights and remedies of the board and office in the event of a
9-10     default on the loan.  The rules must include a requirement that
9-11     applicants report to the board on the use of money distributed
9-12     through either fund.
9-13           (d)  Before approving the provision of financing to a person,
9-14     the board shall enter into an agreement with the person under which
9-15     the board will obtain an appropriate portion of royalties, patent
9-16     rights, equitable interests, or a combination of those royalties,
9-17     rights, and interests from or in the product or proceeds of the
9-18     product for which financing is requested.  Contracts executed under
9-19     this subchapter must include agreements to ensure proper use of
9-20     funds and the receipt of royalties, patent rights, or equity
9-21     interest, as appropriate.
9-22           (e)  The board may appoint an advisory committee of experts
9-23     in the areas of biotechnology and biomedicine to review projects
9-24     and businesses seeking financing from the board.
9-25           (f)  The amount of financing provided to a single recipient
9-26     may not exceed 10 percent of the total amount of bonds issued.
9-27           (g)  A claim of the state for a payment owed to the state
 10-1    under this subchapter by a person who has been provided financing
 10-2    has priority over all other claims against the person.
 10-3          Sec. 403.414.  APPLICATION PROCESS. (a)  To apply for
 10-4    financing from the board, an applicant shall submit to the board:
 10-5                (1)  an application for financing on a form prescribed
 10-6    by the board; and
 10-7                (2)  a reasonable application fee set by the board.
 10-8          (b)  The application must include a business plan, containing
 10-9    the information required by the board, including at a minimum:
10-10                (1)  information regarding:
10-11                      (A)  the history and financial condition of the
10-12    applicant, including the applicant's income statement;
10-13                      (B)  the applicant's present markets and market
10-14    prospects; and
10-15                      (C)  the integrity of the applicant's management;
10-16                (2)  a statement of the feasibility of the product for
10-17    which financing is requested, including the state of development of
10-18    any product to be developed and the proposed schedule of its
10-19    commercialization; and
10-20                (3)  if applicable, documentation of attempts to obtain
10-21    private financing.
10-22          (c)  The board shall determine, with respect to each
10-23    application for financing, whether:
10-24                (1)  the product or business for which financing is
10-25    requested is economically sound;
10-26                (2)  there is a reasonable expectation that the product
10-27    or business will be successful;
 11-1                (3)  the product or business will create or preserve
 11-2    jobs and otherwise benefit the economy of the state;
 11-3                (4)  the applicant has the management resources and
 11-4    other funding to complete the project;
 11-5                (5)  financing is necessary because full financing is
 11-6    unavailable in traditional capital markets or credit has been
 11-7    offered on terms that would preclude the success of the project;
 11-8    and
 11-9                (6)  there is reasonable assurance that the potential
11-10    revenues to be derived from the sale of the product will be
11-11    sufficient to repay any financing approved by the board.
11-12          (d)  After considering the application and all other
11-13    information it considers relevant, the board shall approve or deny
11-14    the application and promptly notify the applicant of its decision.
11-15          Sec. 403.415.  INFORMATION CONFIDENTIAL. (a)  Information
11-16    described by Subsection (b) collected, assembled, or maintained by
11-17    or for the board is confidential and may not be disclosed by the
11-18    board, the comptroller, or the office.
11-19          (b)  This section applies to information in any form provided
11-20    by or on behalf of an applicant for financing or a recipient of
11-21    financing under this subchapter, including information contained
11-22    in, accompanying, or derived from any application or report, that
11-23    relates to a product, to the development, application, manufacture,
11-24    or use of a product, or to the markets, market prospects, or
11-25    marketing of a product, and that is proprietary information of
11-26    actual or potential commercial value to the applicant or recipient
11-27    that has not been disclosed to the public.  Confidential
 12-1    information includes scientific and technological information,
 12-2    including computer programs and software, and marketing and
 12-3    business operation information, regardless of whether the product
 12-4    to which the information relates is patentable or capable of being
 12-5    registered under copyright or trademark laws or has a potential for
 12-6    being sold, traded, or licensed for a fee.  This section does not
 12-7    make confidential information in an account, voucher, or contract
 12-8    relating to the receipt or expenditure of public funds by the board
 12-9    or the comptroller under this subchapter.
12-10          (c)  Any application for financing that is withdrawn by the
12-11    applicant before approval or funding or that is denied by the board
12-12    shall be returned to the applicant promptly on request, together
12-13    with all materials submitted by or on behalf of the applicant that
12-14    relate to the application, except that the board may retain a
12-15    record of the submission and disposition of the application that
12-16    does not include any information described by Subsection (b).
12-17          Sec. 403.416.  PROGRAM COORDINATION. The board and office
12-18    shall coordinate the administration and funding of the programs.
12-19          SECTION 2.  This Act takes effect immediately if it receives
12-20    a vote of two-thirds of all the members elected to each house, as
12-21    provided by Section 39, Article III, Texas Constitution.  If this
12-22    Act does not receive the vote necessary for immediate effect, this
12-23    Act takes effect September 1, 2001.