1-1     By:  Cain, Shapiro                                     S.B. No. 409
 1-2           (In the Senate - Filed January 25, 2001; January 29, 2001,
 1-3     read first time and referred to Committee on State Affairs;
 1-4     February 21, 2001, reported favorably by the following vote:  Yeas
 1-5     9, Nays 0; February 21, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to the powers and duties of the Texas Turnpike Authority
 1-9     division of the Texas Department of Transportation, including the
1-10     power of eminent domain.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Subdivision (4), Section 361.001, Transportation
1-13     Code, is amended to read as follows:
1-14                 (4)  "Turnpike project" means a [toll] highway
1-15     constructed, maintained, or operated under this chapter as part of
1-16     the state highway system and any improvement, extension, or
1-17     expansion to the highway and includes:
1-18                       (A)  a facility to relieve traffic congestion and
1-19     promote safety;
1-20                       (B)  a bridge, tunnel, overpass, underpass,
1-21     interchange, entrance plaza, approach, toll house, service road,
1-22     ramp, or service station;
1-23                       (C)  an administration, storage, or other
1-24     building the authority considers necessary to operate the project;
1-25     [and]
1-26                       (D)  property rights, easements, and interests
1-27     the authority acquires to construct or operate the project; and
1-28                       (E)  a parking area or structure, rest stop,
1-29     park, and any other improvement or amenity the authority considers
1-30     necessary, useful, or beneficial for the operation of a turnpike
1-31     project.
1-32           SECTION 2.  Section 361.004, Transportation Code, is amended
1-33     to read as follows:
1-34           Sec. 361.004.  CONSTRUCTION COSTS.  (a)  The cost of
1-35     acquisition, construction, improvement, extension, or expansion of
1-36     a turnpike project under this chapter includes the cost of:
1-37                 (1)  the actual acquisition, construction, improvement,
1-38     extension, or expansion of the project;
1-39                 (2)  acquisition of real property, rights-of-way,
1-40     property rights, easements, and interests;
1-41                 (3)  machinery and equipment;
1-42                 (4)  interest before, during, and for one year after
1-43     construction, improvement, extension, or expansion;
1-44                 (5)  traffic estimates, engineering and legal services,
1-45     plans, specifications, surveys, appraisals, cost and revenue
1-46     estimates, and other expenses necessary or incident to determining
1-47     the feasibility of the construction, improvement, extension, or
1-48     expansion;
1-49                 (6)  necessary or incidental administrative, legal, and
1-50     other expenses;
1-51                 (7)  financing; and
1-52                 (8)  placement of the project in operation and expenses
1-53     related to the initial operation of the turnpike project.
1-54           (b)  Costs attributable to a turnpike project for which bonds
1-55     are issued that are incurred before the issuance of the bonds may
1-56     be reimbursed from the proceeds of the sale of the bonds.
1-57           SECTION 3.  Subsections (b) through (g), Section 361.031,
1-58     Transportation Code, are amended to read as follows:
1-59           (b)  The authority may perform, procure from other divisions
1-60     of the department with the consent of the department, or procure
1-61     from outside service providers any portion of the services the
1-62     authority requires for:
1-63                 (1)  right-of-way acquisition;
1-64                 (2)  roadway finance, design, and construction;
 2-1                 (3)  environmental affairs; [or]
 2-2                 (4)  legal services;
 2-3                 (5)  roadway maintenance;
 2-4                 (6)  toll revenue collection; or
 2-5                 (7)  traffic operations.
 2-6           (c)  [With the approval of the commission, the authority may
 2-7     perform, procure from other divisions of the department with the
 2-8     consent of the department, or procure from outside service
 2-9     providers any portion of the services the authority requires for
2-10     roadway maintenance, toll revenue collection, or traffic
2-11     operations.]
2-12           [(d)]  To perform its functions under this chapter, the
2-13     authority may use the facilities and personnel of the department in
2-14     the same manner as other divisions of the department.
2-15           (d) [(e)]  If the comptroller assigns numbers to state
2-16     agencies for accounting purposes, the comptroller shall assign a
2-17     separate agency number to the authority.
2-18           (e) [(f)]  The exercise by the authority of the powers
2-19     conferred by this chapter in the construction, operation, and
2-20     maintenance of a turnpike project is:
2-21                 (1)  in all respects for the benefit of the people of
2-22     this state, for the increase of their commerce and prosperity, and
2-23     for the improvement of their health and living conditions and
2-24     public safety; and
2-25                 (2)  an essential governmental function of the state.
2-26           (f) [(g)]  The commission shall employ a director of the
2-27     authority who serves as the authority's chief administrative
2-28     officer.  The director serves at the pleasure of the commission.
2-29           SECTION 4.  Subsection (b), Section 361.042, Transportation
2-30     Code, is amended to read as follows:
2-31           (b)  The authority may:
2-32                 (1)  construct, maintain, repair, and operate turnpike
2-33     projects in this state;
2-34                 (2)  acquire, hold, and dispose of property in the
2-35     exercise of its powers and the performance of its duties under this
2-36     chapter;
2-37                 (3)  with the approval of the governor and the
2-38     commission, enter into contracts or operating agreements with
2-39     similar authorities or agencies of another state, including a state
2-40     of the United Mexican States;
2-41                 (4)  enter into contracts or agreements necessary or
2-42     incidental to its duties and powers under this chapter;
2-43                 (5)  employ consulting engineers, accountants,
2-44     construction and financial experts, superintendents, managers, and
2-45     other employees and agents the authority considers necessary and
2-46     set their compensation;
2-47                 (6)  employ attorneys to advance or defend legal
2-48     actions pertaining to the division's activities, notwithstanding
2-49     any other law to the contrary, including Section 402.0212,
2-50     Government Code;
2-51                 (7)  receive grants for the construction of a turnpike
2-52     project and receive contributions of money, property, labor, or
2-53     other things of value from any source to be used for the purposes
2-54     for which the grants or contributions are made;
2-55                 (8)  adopt and enforce rules[, if the commission
2-56     concurs,] not inconsistent with this chapter for the use of any
2-57     turnpike project, including rules establishing speed limits and
2-58     maximum allowable vehicle and load weight limits for turnpike
2-59     projects; [and]
2-60                 (9)  engage in marketing, advertising, and other
2-61     activities to promote the development and use of turnpike projects
2-62     and may enter into contracts or agreements necessary to procure
2-63     marketing, advertising, or other promotional services from outside
2-64     service providers;
2-65                 (10)  with the concurrence of the commission, form,
2-66     develop, or utilize a corporation created under Chapter 431 for the
2-67     promotion and development of turnpike projects; and
2-68                 (11)  do all things necessary or appropriate to carry
2-69     out the powers expressly granted by this chapter.
 3-1           SECTION 5.  Section 361.054, Transportation Code, is amended
 3-2     to read as follows:
 3-3           Sec. 361.054.  AUDIT.  Notwithstanding any other law to the
 3-4     contrary, the [The] authority shall have an independent [a]
 3-5     certified public accountant audit the authority's books and
 3-6     accounts at least annually.  The cost of the audit may be treated
 3-7     as part of the cost of construction or operation of a turnpike
 3-8     project.  This section does not affect the ability of a state
 3-9     agency to audit the authority's books and accounts.
3-10           SECTION 6.  Section 361.131, Transportation Code, is amended
3-11     to read as follows:
3-12           Sec. 361.131.  POWERS AND PROCEDURES OF AUTHORITY IN
3-13     ACQUIRING PROPERTY.  Except as otherwise provided by this chapter,
3-14     the authority, acting by and through the board, has the same powers
3-15     and may use the same procedures as the commission or the department
3-16     in acquiring property.
3-17           SECTION 7.  Subsections (a) and (c), Section 361.132,
3-18     Transportation Code, are amended to read as follows:
3-19           (a)  The authority [board] may acquire, in the name of the
3-20     state, public or private real property it determines necessary or
3-21     convenient for the construction, expansion, enlargement, extension,
3-22     improvement, or operation of a turnpike project or for otherwise
3-23     carrying out this chapter.
3-24           (c)  The authority [board] may acquire the real property by
3-25     any method, including purchase and condemnation.  The authority
3-26     [board] may purchase public or private real property on the terms
3-27     and at the price the authority [board] and the owner consider
3-28     reasonable.
3-29           SECTION 8.  Subsection (b), Section 361.135, Transportation
3-30     Code, is amended to read as follows:
3-31           (b)  The board, with the concurrence of the commission, may
3-32     condemn real property that the authority determines is:
3-33                 (1)  necessary or appropriate to construct or to
3-34     efficiently operate a turnpike project;
3-35                 (2)  necessary to restore public or private property
3-36     damaged or destroyed, including property necessary or convenient to
3-37     mitigate an environmental effect that directly results from the
3-38     construction, operation, or maintenance of a turnpike project;
3-39                 (3)  necessary for access, approach, service, and
3-40     interchange roads; [or]
3-41                 (4)  necessary to provide proper drainage and ground
3-42     slope for a turnpike project; or
3-43                 (5)  necessary otherwise to carry out this chapter.
3-44           SECTION 9.  Section 361.137, Transportation Code, is amended
3-45     by adding Subsection (f) to read as follows:
3-46           (f)  After a declaration of taking is filed, the case shall
3-47     proceed as any other case in eminent domain under Chapter 21,
3-48     Property Code.
3-49           SECTION 10.  Subsection (a), Section 361.141, Transportation
3-50     Code, is amended to read as follows:
3-51           (a)  The authority may not pay compensation for public real
3-52     property, parkways, streets, highways, alleys, or reservations it
3-53     takes, except for:
3-54                 (1)  parks and playgrounds; and
3-55                 (2)  property acquired under restrictions and
3-56     limitations requiring payment of compensation.
3-57           SECTION 11.  Section 361.171, Transportation Code, is amended
3-58     by adding Subsection (g) to read as follows:
3-59           (g)  In addition to other permitted uses, the proceeds of a
3-60     bond issue may be used to pay costs incurred before the issuance of
3-61     the bonds, including costs of environmental review, design,
3-62     planning, acquisition of property, relocation assistance,
3-63     construction, and operation.
3-64           SECTION 12.  Subsection (a), Section 361.179, Transportation
3-65     Code, is amended to read as follows:
3-66           (a)  The authority may:
3-67                 (1)  impose tolls for the use of each turnpike project
3-68     and the different parts or sections of each turnpike project; and
3-69                 (2)  notwithstanding anything in Chapter 202 to the
 4-1     contrary, contract with a person for the use of part of a turnpike
 4-2     project or lease or sell part of a turnpike project, including the
 4-3     right-of-way adjoining the paved portion, for any purpose,
 4-4     including placing on the adjoining right-of-way a gas station,
 4-5     garage, store, hotel, restaurant, railroad tracks, telephone line,
 4-6     telecommunication line, telecommunications facilities and
 4-7     equipment, and electric line, and set the terms for the use, lease,
 4-8     or sale.
 4-9           SECTION 13.  Subsection (a), Section 361.181, Transportation
4-10     Code, is amended to read as follows:
4-11           (a)  Notwithstanding Section 361.179 or any other provision
4-12     of this chapter to the contrary, the authority may pay the expenses
4-13     of studying the cost and feasibility and any other expenses
4-14     relating to the preparation and issuance of turnpike revenue bonds
4-15     for the construction of a proposed turnpike project by:
4-16                 (1)  using available revenue derived from an existing
4-17     turnpike project;
4-18                 (2)  borrowing money and issuing interest-bearing
4-19     evidences of indebtedness or entering into a loan agreement payable
4-20     out of available revenue anticipated to be derived from the
4-21     operation of an existing turnpike project; [and]
4-22                 (3)  pledging available revenue anticipated to be
4-23     derived from the operation of an existing turnpike project; and
4-24                 (4)  using money received from the department for
4-25     feasibility studies undertaken at the request of the commission.
4-26           SECTION 14.  Section 361.182, Transportation Code, is amended
4-27     by adding Subsection (i) to read as follows:
4-28           (i)  The commission may request that the authority conduct a
4-29     feasibility study for any proposed turnpike project.  The expenses
4-30     of a study requested by the commission shall be paid for by the
4-31     department.  If the turnpike project is constructed, the department
4-32     shall be reimbursed for money paid to the authority from the
4-33     proceeds of turnpike revenue bonds issued for, or other proceeds
4-34     that may be used for, the construction, improvement, extension,
4-35     expansion, or operation of the project.
4-36           SECTION 15.  Subsection (c), Section 361.232, Transportation
4-37     Code, is amended to read as follows:
4-38           (c)  If feasible, the [The] authority shall provide access to
4-39     properties previously abutting [move and replace, with an equal or
4-40     better facility,] a county or other public road that is taken for a
4-41     turnpike project and [affects or severs.  The authority] shall pay
4-42     abutting property owners the expenses or [and] any resulting
4-43     damages for denial of access to the road.
4-44           SECTION 16.  Section 361.234, Transportation Code, is amended
4-45     by adding Subsections (d) and (e) and redesignating existing
4-46     Subsections (d), (e), and (f) as Subsections (f), (g), and (h) to
4-47     read as follows:
4-48           (d)  The authority may reduce the total costs to be paid by
4-49     the authority by 10 percent for each 30-day period or portion of a
4-50     30-day period that the relocation exceeds the limit specified by
4-51     the authority unless the public utility's failure to timely perform
4-52     results from a material action or inaction by the authority or from
4-53     conditions that the authority agrees were beyond the reasonable
4-54     control of the utility.  If an owner or operator of a public
4-55     utility facility does not timely remove or relocate the facility as
4-56     required under Subsection (b) and the authority relocates the
4-57     facility, the authority shall relocate the facility in a safe
4-58     manner that complies with applicable law and utility construction
4-59     standards recognized by the authority and that minimizes disruption
4-60     of utility service and shall notify the public utility of the
4-61     relocation.  Relocation of a public utility facility by the
4-62     authority is at the expense of the public utility unless the
4-63     authority determines that the failure of the public utility to
4-64     timely relocate the facility was the result of circumstances beyond
4-65     the control of the utility, in which case the authority shall pay
4-66     the cost of the relocation.
4-67           (e)  Notwithstanding anything in this chapter to the
4-68     contrary:
4-69                 (1)  Subchapter B, Chapter 181, Utilities Code, applies
 5-1     to the laying and maintenance of pipes, mains, conductors, and
 5-2     other facilities used for conducting gas by a gas utility described
 5-3     in that subchapter through, under, along, across, and over a
 5-4     turnpike project constructed by the authority; and
 5-5                 (2)  the authority has the powers and duties assigned
 5-6     to the commission by Subchapter B, Chapter 181, Utilities Code.
 5-7           (f)  Notwithstanding anything in this chapter to the
 5-8     contrary, Subchapter C, Chapter 181, Utilities Code, applies to the
 5-9     erection, construction, maintenance, and operation of lines and
5-10     poles owned by an electric utility, as that term is defined by
5-11     Section 181.041, Utilities Code, over, under, across, on, and along
5-12     a turnpike project constructed by the authority.  The authority has
5-13     the powers and duties delegated to the commission by Subchapter C,
5-14     Chapter 181, Utilities Code.
5-15           (g) [(e)]  Notwithstanding anything in this chapter to the
5-16     contrary, the laws of this state applicable to the use of public
5-17     roads, streets, and waters of this state by a telephone and
5-18     telegraph corporation apply to the erection, construction,
5-19     maintenance, location, and operation of a line, pole, or other
5-20     fixture by a telephone and telegraph corporation over, under,
5-21     across, on, and along a turnpike project constructed by the
5-22     authority.
5-23           (h) [(f)]  In this section, "public utility facility" means a
5-24     track, pipe, main, conduit, cable, wire, tower, pole, or other item
5-25     of equipment or an appliance of a public utility or other person.
5-26           SECTION 17.  Subsection (a), Section 361.306, Transportation
5-27     Code, is amended to read as follows:
5-28           (a)  The authority shall adopt rules, procedures, and
5-29     guidelines governing negotiations to promote fairness, obtain
5-30     private participants in turnpike projects, and promote confidence
5-31     among those participants.  The rules must contain criteria relating
5-32     to the qualifications of the participants and the award of the
5-33     contracts and may authorize the authority to impose a fee for
5-34     reviewing proposals for private involvement in a turnpike project.
5-35           SECTION 18.  Subsections (e), (f), and (g), Section 545.354,
5-36     Transportation Code, are amended to read as follows:
5-37           (e)  [Sections 545.353 and 545.355 to 545.359 do not apply to
5-38     any part of a turnpike project constructed and maintained by the
5-39     authority and covered under Subsection (d) unless a turnpike
5-40     constructed by the authority becomes part of the state highway
5-41     system, in which event the Texas Transportation Commission has the
5-42     sole authority to alter prima facie speed limits on the turnpike
5-43     project.]
5-44           [(f)]  The authority may not:
5-45                 (1)  alter the general rule established by Section
5-46     545.351(a); or
5-47                 (2)  establish a speed limit of more than 70 miles per
5-48     hour.
5-49           (f) [(g)]  The authority, in conducting the engineering and
5-50     traffic investigation specified by Subsection (a), shall follow the
5-51     procedure for establishing speed zones adopted by the Texas
5-52     Department of Transportation.
5-53           SECTION 19.  Section 621.102, Transportation Code, is amended
5-54     by amending Subsection (a) and adding Subsection (h) to read as
5-55     follows:
5-56           (a)  Except as provided by Subsection (h), the [The]
5-57     commission may set the maximum gross weight of a vehicle and its
5-58     load, maximum gross weight of a combination of vehicles and loads,
5-59     maximum axle load, or maximum wheel load that may be moved over a
5-60     state highway or a farm or ranch road if the commission finds that
5-61     heavier maximum weight would rapidly deteriorate or destroy the
5-62     road or a bridge or culvert along the road.  A maximum weight or
5-63     load set under this subsection may not exceed the maximum set by
5-64     statute for that weight or load.
5-65           (h)  The Texas Turnpike Authority may set, in the same manner
5-66     as the commission under this section, the maximum gross weight of a
5-67     vehicle and its load, the maximum gross weight of a combination of
5-68     vehicles and loads, maximum axle load, or maximum wheel load that
5-69     may be moved over a turnpike project as defined by Section 361.001.
 6-1           SECTION 20.  This Act takes effect immediately if it receives
 6-2     a vote of two-thirds of all the members elected to each house, as
 6-3     provided by Section 39, Article III, Texas Constitution.  If this
 6-4     Act does not receive the vote necessary for immediate effect, this
 6-5     Act takes effect September 1, 2001.
 6-6                                  * * * * *