Amend CSHB 3588 by adding the following appropriately
numbered article and renumbering subsequent articles accordingly:
ARTICLE ____. TEXAS TURNPIKE AUTHORITY
SECTION __.01. Section 201.112(a), Transportation Code, is
amended to read as follows:
(a) The commission may by rule establish procedures for the
informal resolution of a claim arising out of a contract described
by:
(1) Section 22.018;
(2) Chapter 223; [or]
(3) Chapter 361; or
(4) Chapter 2254, Government Code.
SECTION __.02. The heading to Chapter 361, Transportation
Code, is amended to read as follows:
CHAPTER 361. STATE HIGHWAY [TEXAS] TURNPIKE
PROJECTS [AUTHORITY]
SECTION __.03. Sections 361.001(2), (3), (4), and (5),
Transportation Code, are amended to read as follows:
(2) ["Board" means the board of directors of the
authority.
[(3)] "Owner" includes a person having title to or an
interest in any property, rights, easements, and interests
authorized to be acquired under this chapter.
(3) [(4)] "Turnpike project" means a toll highway
constructed, maintained, or operated under this chapter as part of
the state highway system and any improvement, extension, or
expansion to the highway and includes:
(A) a facility to relieve traffic congestion and
promote safety;
(B) a bridge, tunnel, overpass, underpass,
interchange, entrance plaza, approach, toll house, service road,
ramp, or service station;
(C) an administration, storage, or other
building the department [authority] considers necessary to operate
the project;
(D) property rights, easements, and interests
the department [authority] acquires to construct or operate the
project;
(E) a parking area or structure, rest stop, park,
and any other improvement or amenity the department [authority]
considers necessary, useful, or beneficial for the operation of a
turnpike project; and
(F) a toll-free facility that is appurtenant to
and necessary for the efficient operation of a turnpike project,
including a service road, access road, ramp, interchange, bridge,
or tunnel.
(4) [(5)] "Regional tollway authority" means a
regional tollway authority created under Chapter 366.
SECTION __.04. The heading to Subchapter B, Chapter 361,
Transportation Code, is amended to read as follows:
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
[TEXAS TURNPIKE AUTHORITY]
SECTION __.05. Section 361.031, Transportation Code, as
amended by Chapters 920 and 1237, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
Sec. 361.031. TEXAS TURNPIKE AUTHORITY. (a) The Texas
Turnpike Authority is a division of the Texas Department of
Transportation. The [that has full] authority is responsible for
promoting and coordinating the development of turnpike projects
under this chapter. The commission and the director shall assign
duties to [exercise all powers granted to it under this chapter.
Powers granted to the department under this chapter and Chapter 362
to study, design, construct, operate, expand, enlarge, or extend a
turnpike project as a part of the state highway system shall be
exercised by the department acting by and through] the authority
and other offices of the department as appropriate for the proper
administration of this chapter and other law.
(b) The exercise by the department [authority] of the powers
conferred by this chapter in the construction, operation, and
maintenance of a turnpike project is:
(1) in all respects for the benefit of the people of
this state, for the increase of their commerce and prosperity, and
for the improvement of their health and living conditions and
public safety; and
(2) an essential governmental function of the state.
SECTION __.06. Section 361.042, Transportation Code, is
redesignated as Section 361.032, Transportation Code, and amended
to read as follows:
Sec. 361.032 [361.042]. GENERAL POWERS AND DUTIES. (a) The
commission [board] shall[:
[(1) on its own initiative or at the request of the
commission, consider, study, plan, and develop turnpike projects
under this chapter;
[(2)] adopt rules for the implementation and
administration of this chapter [regulation of its affairs and the
conduct of its business; and
[(3) undertake such other duties as are delegated to it
by the commission].
(b) The department [authority] may:
(1) construct, maintain, repair, and operate turnpike
projects in this state;
(2) acquire, hold, and dispose of property in the
exercise of its powers and the performance of its duties under this
chapter;
(3) with the approval of the governor and the
commission, enter into contracts or operating agreements with
similar authorities or agencies of another state, including a state
of the United Mexican States;
(4) enter into contracts or agreements necessary or
incidental to its duties and powers under this chapter;
(5) employ consulting engineers, accountants,
construction and financial experts, superintendents, managers, and
other employees and agents the department [authority] considers
necessary and set their compensation;
(6) [employ attorneys to advance or defend legal
actions pertaining to the division's activities, notwithstanding
any other law to the contrary, including Section 402.0212,
Government Code;
[(7)] receive grants for the construction of a turnpike
project and receive contributions of money, property, labor, or
other things of value from any source to be used for the purposes
for which the grants or contributions are made;
(7) notwithstanding Chapter 2113, Government Code,
[(8) adopt and enforce rules not inconsistent with this chapter for
the use of any turnpike project, including rules establishing speed
limits and maximum allowable vehicle and load weight limits for
turnpike projects;
[(9)] engage in marketing, advertising, and other
activities to promote the development and use of turnpike projects
and may enter into contracts or agreements necessary to procure
marketing, advertising, or other promotional services from outside
service providers;
[(10) with the concurrence of the commission, form,
develop, or utilize a corporation created under Chapter 431 for the
promotion and development of turnpike projects;] and
(8) [(11)] do all things necessary or appropriate to
carry out the powers expressly granted by this chapter.
SECTION __.07. Section 361.054, Transportation Code, is
redesignated as Section 361.033, Transportation Code, and amended
to read as follows:
Sec. 361.033 [361.054]. AUDIT. Notwithstanding any other
law to the contrary, the department [authority] shall have an
independent certified public accountant audit the department's
[authority's] books and accounts for activities under this chapter
at least annually. The audit shall be conducted in accordance with
the requirements of any trust agreement securing bonds issued under
this chapter that is in effect at the time of the audit. The cost of
the audit may be treated as part of the cost of construction or
operation of a turnpike project. This section does not affect the
ability of a state agency to audit the department's [authority's]
books and accounts.
SECTION __.08. The heading to Subchapter C, Chapter 361,
Transportation Code, is amended to read as follows:
SUBCHAPTER C. DEVELOPMENT [APPROVAL] OF
TURNPIKE PROJECTS
SECTION __.09. Section 361.101, Transportation Code, is
amended to read as follows:
Sec. 361.101. DETERMINATION OF TURNPIKE PROJECTS. The
department [authority] may:
(1) construct, maintain, repair, and operate a
turnpike project to:
(A) facilitate vehicular traffic throughout this
state;
(B) promote the agricultural and industrial
development of this state;
(C) effect traffic safety; or
(D) improve connections between highways of this
state, adjoining states, and the United Mexican States; and
(2) at any time determine to undertake a turnpike
project, except that the commission by order must approve [the
location of the project before] final designation.
SECTION __.10. Section 361.103, Transportation Code, is
amended to read as follows:
Sec. 361.103. APPLICATION OF OTHER LAW. All other law
applicable to the department, the commission, or the state highway
system shall apply to the development, construction, maintenance,
and operation of a turnpike project under this chapter unless in
conflict with a provision of this chapter. [ENVIRONMENTAL REVIEW.
(a) The authority by rule shall provide for the authority's
environmental review of turnpike projects. The rules must provide
for:
[(1) public comment on environmental reviews of
turnpike projects, including the types of projects for which public
hearings are required, and a procedure for requesting a public
hearing on an environmental review for which a public hearing is not
required;
[(2) the environmental factors and impacts the
authority will evaluate in its environmental reviews; and
[(3) environmental review of alternate routes for a
proposed turnpike project.
[(b) The environmental review of a turnpike project must be
conducted before the location or alignment of the project is
adopted.
[(c) The commission must approve each environmental review
under this section before construction of a turnpike project
begins.
[(d) At least once during each five-year period, the
authority, after a public hearing, shall review the rules relating
to environmental review and make appropriate changes.]
SECTION __.11. Subchapter C, Chapter 361, Transportation
Code, is amended by adding Section 361.104 to read as follows:
Sec. 361.104. ENTRANCES AND EXITS OF TURNPIKE PROJECT. The
department shall:
(1) designate the location of and establish, limit,
and control the entrances and exits of a turnpike project as
considered necessary or desirable to ensure the proper operation
and maintenance of the project; and
(2) prohibit entrance to a project at any place not
designated as an entrance.
SECTION __.12. Section 361.131, Transportation Code, is
amended to read as follows:
Sec. 361.131. POWERS AND PROCEDURES OF DEPARTMENT
[AUTHORITY] IN ACQUIRING PROPERTY. Except as otherwise provided by
this chapter, the department [authority, acting by and through the
board,] has the same powers and may use the same procedures:
(1) in acquiring property under this chapter as the
commission or the department in acquiring property under Subchapter
D, Chapter 203; and
(2) in disposing of surplus property acquired under
this chapter as the commission or the department under Subchapter
B, Chapter 202.
SECTION __.13. Section 361.132, Transportation Code, is
amended to read as follows:
Sec. 361.132. ACQUISITION OF PROPERTY. (a) The department
[authority] may acquire, in the name of the state, public or private
real property it determines necessary or convenient for the
construction, expansion, enlargement, extension, improvement, or
operation of a turnpike project or for otherwise carrying out this
chapter.
(b) The real property the department [authority] may
acquire under this subchapter includes:
(1) public parks, playgrounds, or reservations;
(2) parts of or rights in public parks, playgrounds,
or reservations;
(3) rights-of-way;
(4) property rights, including:
(A) a right of ingress or egress; and
(B) a reservation right in real property that
restricts or prohibits for not more than seven years the:
(i) addition of a new improvement on the
real property;
(ii) addition to or modification of an
existing improvement on the real property; or
(iii) subdivision of the real property;
(5) franchises;
(6) easements; and
(7) other interests in real property.
(c) The department [authority] may acquire the real
property by any method, including purchase and condemnation. The
department [authority] may purchase public or private real property
on the terms and at the price the department [authority] and the
owner consider reasonable.
(d) Property necessary or convenient for the construction
or operation of a turnpike project under Subsection (a) includes an
interest in real property, a property right, or materials that the
department [authority] determines are necessary or convenient to:
(1) protect a turnpike project;
(2) drain a turnpike project;
(3) divert a stream, river, or other watercourse from
the right-of-way of a turnpike project;
(4) store materials or equipment used in the
construction or maintenance of a turnpike project;
(5) provide a location for an ancillary facility that
generates revenue for use in the construction, maintenance, or
operation of a turnpike project, including a gas station, garage,
store, hotel, or restaurant;
(6) construct or operate a warehouse, toll house, toll
plaza, service station, or other facility used in connection with
the construction, maintenance, or operation of a turnpike project;
(7) [(6)] lay out, construct, or maintain a roadside
park;
(8) [(7)] lay out, construct, or maintain a parking lot
that will contribute to the maximum use of a turnpike project with
the least possible congestion;
(9) [(8)] mitigate an adverse environmental effect
that directly results from the construction or maintenance of a
turnpike project; or
(10) [(9)] accomplish any other purpose related to the
location, construction, improvement, maintenance, beautification,
preservation, or operation of a turnpike project.
(e) The department [authority] shall comply with all
relocation assistance procedures applicable to the department in
connection with any displacement of owners or tenants as a
consequence of the department's [authority's] acquisition of real
property under this chapter.
(f) The department [authority] may acquire timber, earth,
stone, gravel, or other materials as necessary to carry out a
purpose under this chapter.
SECTION __.14. Sections 361.133(b) and (c), Transportation
Code, are amended to read as follows:
(b) The governing body of a political subdivision or public
agency may without advertising convey title to or rights or
easements in real property the department [authority] needs in
connection with the construction or operation of a turnpike
project.
(c) Notwithstanding any law to the contrary, a political
subdivision or a state agency may lease, lend, grant, or convey to
the department [authority] at its request real property, including
highways and other real property already devoted to public use,
that may be necessary or appropriate to accomplish the department's
[authority's] purposes. The political subdivision or state agency
may lease, lend, grant, or convey the property:
(1) on terms the subdivision or agency determines
reasonable and fair; and
(2) without advertisement, court order, or other
action or formality other than the regular and formal action of the
subdivision or agency concerned.
SECTION __.15. Section 361.134, Transportation Code, is
amended to read as follows:
Sec. 361.134. DESCRIPTION OF REAL PROPERTY. Real property
acquired by the department under this chapter [authority] shall be
described so as to locate the boundary line of the property with
reference to:
(1) lot and block lines and corners of all existing and
recorded subdivision properties, if applicable; or
(2) survey lines and corners.
SECTION __.16. Section 361.135, Transportation Code, is
amended to read as follows:
Sec. 361.135. CONDEMNATION OF REAL PROPERTY. (a) The
[board, with the concurrence of the] commission[,] may approve the
acquisition of [acquire] public or private real property in the
name of the state by the exercise of the power of condemnation under
the laws applicable to the exercise of that power on property for
public use if:
(1) the department [authority] and the owner cannot
agree on a reasonable price for the property; or
(2) the owner is legally incapacitated, absent,
unknown, or unable to convey title.
(b) The [board, with the concurrence of the] commission[,]
may approve the condemnation of [condemn] real property that the
commission [authority] determines is:
(1) necessary or convenient for the construction or
operation of [appropriate to construct or to efficiently operate] a
turnpike project, as described by Section 361.132(d);
(2) necessary to restore public or private property
damaged or destroyed, including property necessary or convenient to
mitigate an environmental effect that directly results from the
construction, operation, or maintenance of a turnpike project;
(3) necessary for access, approach, service, and
interchange roads;
(4) necessary to provide proper drainage and ground
slope for a turnpike project; or
(5) necessary otherwise to carry out this chapter.
(c) [The authority may construct a supplemental facility
only on real property the authority purchases.
[(d)] The court having jurisdiction of a condemnation
proceeding may:
(1) make orders as are just to the department
[authority] and the owners of the real property; and
(2) require an undertaking or other security to secure
the owners against any loss or damage by reason of the department's
[board's] failure to accept and pay for the real property.
(d) [(e)] An undertaking or security under Subsection (c)(2)
[(d)(2)] or an act or obligation of the department [authority] or
the commission [board] does not impose any liability on the state,
the department [authority], or the commission [board] except
liability that may be paid from the money authorized by this
chapter.
SECTION __.17. Section 361.136, Transportation Code, is
amended to read as follows:
Sec. 361.136. SEVERANCE OF REAL PROPERTY. (a) If a
turnpike project severs an owner's real property, the department
[authority] shall pay:
(1) the value of the property acquired; and
(2) the damages to the remainder of the owner's
property caused by the severance, including damages caused by the
inaccessibility of one tract from the other.
(b) The department [authority] may negotiate for and
purchase the severed real property or either part of the severed
real property if the department [authority] and the owner agree on
terms for the purchase.
SECTION __.18. Sections 361.137(a), (b), (c), and (d),
Transportation Code, are amended to read as follows:
(a) The department [authority] may file a declaration of
taking with the clerk of the court:
(1) in which the department [authority] files a
condemnation petition under Chapter 21, Property Code; or
(2) to which the case is assigned.
(b) The department [authority] may file the declaration of
taking concurrently with or subsequent to the petition but may not
file the declaration after the special commissioners have made an
award in the condemnation proceeding.
(c) The department may not file a declaration of taking
before the completion of:
(1) all environmental documentation, including a
final environmental impact statement or a record of decision, that
is required by federal or state law;
(2) all public hearings and meetings, including those
held in connection with the environmental process and under
Sections 201.604 and 203.021, that are required by federal or state
law; and
(3) all notifications required by Section 203.022.
(d) [(c)] The declaration of taking must include:
(1) a specific reference to the legislative authority
for the condemnation;
(2) a description and plot plan of the real property to
be condemned, including the following information if applicable:
(A) the municipality in which the property is
located;
(B) the street address of the property; and
(C) the lot and block number of the property;
(3) a statement of the property interest to be
condemned;
(4) the name and address of each property owner that
the department [authority] can obtain after reasonable
investigation and a description of the owner's interest in the
property; and
(5) a statement that immediate possession of all or
part of the property to be condemned is necessary for the timely
construction of a turnpike project.
(e) [(d)] A deposit to the registry of the court of an amount
equal to the appraised value, as determined by the department
[authority], of the property to be condemned must accompany the
declaration of taking.
SECTION __.19. Sections 361.138(a) and (b), Transportation
Code, are amended to read as follows:
(a) Immediately on the filing of a declaration of taking,
the department [authority] shall serve a copy of the declaration on
each person possessing an interest in the condemned property by a
method prescribed by Section 21.016(d), Property Code. The
department [authority] shall file evidence of the service with the
clerk of the court. On filing of that evidence, the department
[authority] may take possession of the property pending the
litigation.
(b) If the condemned property is a homestead or a portion of
a homestead as defined by Section 41.002, Property Code, the
department [authority] may not take possession sooner than the 91st
[31st] day after the date of service under Subsection (a).
SECTION __.20. Section 361.141(a), Transportation Code, is
amended to read as follows:
(a) The department [authority] may not pay compensation for
public real property, parkways, streets, highways, alleys, or
reservations it takes, except for:
(1) parks and playgrounds; and
(2) property acquired under restrictions and
limitations requiring payment of compensation.
SECTION __.21. Section 361.142, Transportation Code, is
amended to read as follows:
Sec. 361.142. COVENANTS, CONDITIONS, RESTRICTIONS, OR
LIMITATIONS. Covenants, conditions, restrictions, or limitations
affecting property acquired in any manner by the department
[authority] are not binding against the department [authority] and
do not impair the department's [authority's] ability to use the
property for a purpose authorized by this chapter. The
beneficiaries of the covenants, conditions, restrictions, or
limitations are not entitled to enjoin the department [authority]
from using the property for a purpose authorized under this
chapter, but this section does not affect the right of a person to
seek damages to the person's property under Section 17, Article I,
Texas Constitution.
SECTION __.22. Section 361.171, Transportation Code, is
amended to read as follows:
(a) The commission [authority] by order [resolution] may
authorize [provide for] the issuance of turnpike revenue bonds to
pay all or part of the cost of a turnpike project. Each project
shall be financed and built by a separate bond issue. The proceeds
of a bond issue may be used solely for the payment of the project for
which the bonds were issued and may not be divided between or among
two or more projects. Each project is a separate undertaking, the
cost of which shall be determined separately.
(b) As determined in the order authorizing the issuance, the
[The] bonds of each issue shall:
(1) [must] be dated;
(2) bear interest at the rate or rates provided by the
order and beginning on the dates provided by the order and as
authorized by law, or bear no interest;
(3) mature at the time or times provided by the order,
not exceeding 40 years from their date or dates, [determined by the
authority]; and
(4) [may] be made redeemable before maturity, at the
price or prices and under the terms provided by the order [set by
the authority in the proceeding authorizing the issuance of the
bonds].
(c) The commission [authority] may sell the bonds at public
or private sale in the manner and for the price it determines to be
in the best interest of the department [authority].
(d) The proceeds of each bond issue shall be disbursed in
the manner and under the restrictions, if any, the commission
[authority] provides in the order [resolution] authorizing the
issuance of the bonds or in the trust agreement securing the bonds.
(e) If the proceeds of a bond issue are less than the
turnpike project cost, additional bonds may [in like manner] be
issued in the same manner to pay the costs of a turnpike project
[provide the amount of the deficit]. Unless otherwise provided in
the order [resolution] authorizing the issuance of the bonds or in
the trust agreement securing the bonds, the additional bonds are on
a parity with and are payable, without preference of priority, from
the same fund as [without preference or priority of] the bonds first
issued. In addition, the commission may issue bonds for a turnpike
project secured by a lien on the revenue of the turnpike project
subordinate to the lien on the revenue securing other bonds issued
for the turnpike project.
(f) If the proceeds of a bond issue exceed the cost of the
turnpike project for which the bonds were issued, the surplus shall
be segregated from the other money of the commission and used only
for the purposes specified in the order authorizing the issuance
[deposited to the credit of the sinking fund for the bonds].
(g) In addition to other permitted uses, the proceeds of a
bond issue may be used to pay costs incurred before the issuance of
the bonds, including costs of environmental review, design,
planning, acquisition of property, relocation assistance,
construction, and operation.
(h) Bonds issued and delivered under this chapter and
interest coupons on the bonds are a security under Chapter 8,
Business & Commerce Code.
(i) Bonds issued under this chapter and income from the
bonds, including any profit made on the sale or transfer of the
bonds, are exempt from taxation in this state.
SECTION __.23. Section 361.172, Transportation Code, is
amended to read as follows:
Sec. 361.172. APPLICABILITY OF OTHER LAW; CONFLICTS [LAWS].
[(a) Except as provided by Subsection (b), the authority may issue
turnpike revenue bonds or turnpike revenue refunding bonds under
this chapter without complying with any other law applicable to the
issuance of bonds.]
All [(b) Notwithstanding any other provisions of this
chapter, the following] laws affecting the issuance of bonds by
governmental entities, including Chapters 1201, 1202, 1204, 1207,
and 1371, Government Code, apply to bonds issued under this
chapter. To the extent of a conflict between those laws and this
chapter, the provisions of this chapter prevail [by the authority:]
[(1) Chapters 1201, 1202, 1204, and 1371, Government
Code; and]
[(2) Subchapters A-C, Chapter 1207, Government Code].
SECTION __.24. Section 361.173, Transportation Code, is
amended to read as follows:
Sec. 361.173. PAYMENT OF BONDS; CREDIT OF STATE NOT
PLEDGED. (a) The principal of, interest on, and any redemption
premium on bonds issued by the commission under this chapter
[authority] are payable solely from:
(1) [the money authorized for their payment under this
chapter or other law; and]
[(2)] the revenue of the turnpike project for which the
bonds were issued, including tolls pledged to pay the bonds; and[.]
(2) amounts received under a credit agreement relating
to the turnpike project for which the bonds are issued.
(b) Bonds issued under this chapter do not constitute a debt
of the state or a pledge of the faith and credit of the state. Each
bond must contain on its face a statement to the effect that:
(1) the state, the commission, and the department
[authority] are not obligated to pay the bond or the interest on the
bond from a source other than the amount pledged to pay the bond and
the interest on the bond; and
(2) the faith and credit and the taxing power of the
state are not pledged to the payment of the principal of or interest
on the bond.
(c) The commission and the department [authority] may not
incur financial obligations that cannot be paid from tolls or
revenue derived from owning or operating turnpike projects or from
money provided by law.
SECTION __.25. Section 361.174, Transportation Code, is
amended to read as follows:
Sec. 361.174. SOURCES OF PAYMENT OF AND SECURITY FOR
TURNPIKE PROJECT BONDS. Notwithstanding any other provisions of
this chapter, turnpike project bonds issued by the commission
[authority] may[:
[(1)] be payable from and secured by payments made
under an agreement with a local governmental entity as provided by
Subchapter A, Chapter 362, and may state on their faces any pledge
of revenue or taxes and any security for the bonds under the
agreement[; and
[(2) be payable from and secured by money derived from
any other source available to the authority, other than money
derived from a different turnpike project].
SECTION __.26. Section 361.175, Transportation Code, is
amended to read as follows:
Sec. 361.175. TURNPIKE REVENUE REFUNDING BONDS. (a) The
commission [authority] by order [resolution] may provide for the
issuance of turnpike revenue refunding bonds to:
(1) refund any outstanding bonds issued under this
chapter for a turnpike project, including the payment of any
redemption premium on the bonds and any interest accrued as of the
date of redemption of the bonds; and
(2) construct improvements, extensions, or
enlargements to the turnpike project for which the outstanding
bonds were issued.
(b) This chapter, to the extent applicable, governs:
(1) the issuance of the refunding bonds;
(2) the maturities and other details of the bonds;
(3) the rights of the bondholders; and
(4) the rights and obligations of the commission and
the department [authority] with respect to the bonds and the
bondholders.
(c) The commission [authority] may:
(1) issue refunding bonds in exchange for outstanding
bonds; or
(2) sell refunding bonds and use the proceeds to pay or
provide for the payment of the outstanding bonds.
SECTION __.27. Subchapter E, Chapter 361, Transportation
Code, is amended by adding Sections 361.1751-361.1753 to read as
follows:
Sec. 361.1751. INTERIM BONDS. (a) The commission may,
before issuing definitive bonds, issue interim bonds, with or
without coupons, exchangeable for definitive bonds.
(b) An order authorizing interim bonds may provide that the
interim bonds recite that the bonds are issued under this chapter.
The recital is conclusive evidence of the validity and the
regularity of the bonds' issuance.
Sec. 361.1752. EFFECT OF LIEN. (a) A lien on or a pledge of
revenue from a turnpike project or on a reserve, replacement, or
other fund established in connection with a bond issued under this
chapter:
(1) is enforceable at the time of payment for and
delivery of the bond;
(2) applies to each item on hand or subsequently
received;
(3) applies without physical delivery of an item or
other act; and
(4) is enforceable against any person having a claim,
in tort, contract, or other remedy, against the commission or the
department without regard to whether the person has notice of the
lien or pledge.
(b) An order authorizing the issuance of bonds is not
required to be recorded except in the regular records of the
department.
Sec. 361.1753. APPROVAL OF BONDS BY ATTORNEY GENERAL. (a)
The commission shall submit to the attorney general for examination
the record of proceedings relating to bonds authorized under this
chapter. The record shall include the bond proceedings and any
contract securing or providing revenue for the payment of the
bonds.
(b) If the attorney general determines that the bonds, the
bond proceedings, and any supporting contract are authorized by
law, the attorney general shall approve the bonds and deliver to the
comptroller:
(1) a copy of the legal opinion of the attorney general
stating the approval; and
(2) the record of proceedings relating to the
authorization of the bonds.
(c) On receipt of the legal opinion of the attorney general
and the record of proceedings relating to the authorization of the
bonds, the comptroller shall register the record of proceedings.
(d) After approval by the attorney general, the bonds, the
bond proceedings, and any supporting contract are valid,
enforceable, and incontestable in any court or other forum for any
reason and are binding obligations according to their terms for all
purposes.
SECTION __.28. Sections 361.176(a) and (e), Transportation
Code, are amended to read as follows:
(a) Bonds issued under this chapter may be secured by a
trust agreement between the commission [authority] and a corporate
trustee that is a trust company or a bank that has the powers of a
trust company.
(e) A trust agreement may:
(1) set forth the rights and remedies of the
bondholders and the trustee;
(2) restrict the individual right of action by
bondholders as is customary in trust agreements or trust indentures
securing corporate bonds and debentures; and
(3) contain provisions the commission [authority]
determines reasonable and proper for the security of the
bondholders.
SECTION __.29. Section 361.177, Transportation Code, is
amended to read as follows:
Sec. 361.177. PROVISIONS PROTECTING AND ENFORCING RIGHTS
AND REMEDIES OF BONDHOLDERS. A trust agreement or order
[resolution] providing for the issuance of bonds may contain
[reasonable] provisions to protect and enforce the rights and
remedies of the bondholders, including:
(1) covenants establishing the commission's [stating
the] duties relating [of the authority in relation] to:
(A) the acquisition of property; [and]
(B) the construction, improvement, expansion,
maintenance, repair, operation, and insurance of the turnpike
project in connection with which the bonds were authorized; and
(C) [(B)] the custody, safeguarding, and
application of money; [and]
(2) covenants prescribing events that constitute
default;
(3) covenants prescribing terms on which any or all of
the bonds become or may be declared due before maturity;
(4) covenants relating to the rights, powers,
liabilities, or duties that arise on the breach of a duty of the
commission; and
(5) [(2)] provisions for the employment of consulting
engineers in connection with the construction or operation of the
turnpike project.
SECTION __.30. Section 361.178, Transportation Code, is
amended to read as follows:
Sec. 361.178. FURNISHING OF INDEMNIFYING BONDS OR PLEDGE OF
SECURITIES. A bank or trust company incorporated under the laws of
[that has its main office or a branch office in] this state and that
acts as depository of the proceeds of bonds or of revenue may
furnish indemnifying bonds or pledge securities that the department
[authority] requires.
SECTION __.31. Sections 361.179(a), (b), (d), (e), and (g),
Transportation Code, are amended to read as follows:
(a) The department [authority] may:
(1) impose tolls for the use of each turnpike project
and the different parts or sections of each turnpike project; and
(2) notwithstanding anything in Chapter 202 to the
contrary, contract with a person for the use of part of a turnpike
project or lease [or sell] part of a turnpike project[, including
the right-of-way adjoining the paved portion,] for [any purpose,
including placing on the adjoining right-of-way] a gas station,
garage, store, hotel, restaurant, railroad tracks, utilities, and
[telephone line, telecommunication line,] telecommunications
facilities and equipment[, and electric line,] and set the terms
for the use or[,] lease[, or sale].
(b) The tolls shall be set so that the aggregate of tolls
from the turnpike project:
(1) provides a fund sufficient with other revenue and
contributions, if any, to pay:
(A) the cost of maintaining, repairing, and
operating the project; and
(B) the principal of and interest on the bonds
issued for the project as those bonds become due and payable; and
(2) creates reserves for the purposes listed under
Subdivision (1).
(d) The tolls and other revenue derived from the turnpike
project for which bonds were issued, except the part necessary to
pay the cost of maintenance, repair, and operation and to provide
reserves for those costs as may be provided in the order
[resolution] authorizing the issuance of the bonds or in the trust
agreement securing the bonds, shall be set aside at regular
intervals as may be provided in the order [resolution] or trust
agreement in a sinking fund that is pledged to and charged with the
payment of:
(1) interest on the bonds as it becomes due;
(2) principal of the bonds as it becomes due;
(3) necessary charges of paying agents for paying
principal and interest; and
(4) the redemption price or the purchase price of
bonds retired by call or purchase as provided by the bonds.
(e) Use and disposition of money to the credit of the
sinking fund are subject to the order [resolution] authorizing the
issuance of the bonds or to the trust agreement.
(g) Money in the sinking fund, less the reserve provided by
the order [resolution] or trust agreement, if not used within a
reasonable time to purchase bonds for cancellation, shall be
applied to the redemption of bonds at the applicable redemption
price.
SECTION __.32. Section 361.183(b), Transportation Code, is
amended to read as follows:
(b) Money spent under Subsection (a) for a proposed turnpike
is reimbursable, with the consent of the commission [authority], to
the person paying the expenses out of the proceeds from turnpike
revenue bonds issued for or other proceeds that may be used for the
construction, improvement, extension, expansion, or operation of
the project.
SECTION __.33. Section 361.185, Transportation Code, is
amended to read as follows:
Sec. 361.185. TRUST FUND. (a) All money received under
this chapter, whether as proceeds from the sale of bonds or as
revenue, is a trust fund to be held and applied as provided by this
chapter. Notwithstanding any other law, including Section 9,
Chapter 1123, Acts of the 75th Legislature, Regular Session, 1997,
and without the prior approval of the comptroller, funds held under
this chapter shall be held in trust by a banking institution chosen
by the department [authority] or, at the discretion of the
department [authority], in trust in the state treasury outside the
general revenue fund.
(b) The order [resolution] authorizing the issuance of
bonds or the trust agreement securing the bonds shall provide that
an officer to whom or a bank or trust company to which the money is
paid shall act as trustee of the money and shall hold and apply the
money for the purpose of the order [resolution] or trust agreement,
subject to this chapter and the order [resolution] or trust
agreement.
SECTION __.34. Section 361.186, Transportation Code, is
amended to read as follows:
Sec. 361.186. REMEDIES. Except to the extent restricted by
a trust agreement, a holder of a bond issued under this chapter [or
of a coupon incident to a bond] and a trustee under a trust
agreement may:
(1) protect and enforce by a legal proceeding a right
under:
(A) this chapter or another law of this state;
(B) the trust agreement; or
(C) the order [resolution] authorizing the
issuance of the bond; and
(2) compel the performance of a duty this chapter, the
trust agreement, or the order [resolution] requires the commission
or the department [authority] or an officer of the commission or the
department [authority] to perform, including the imposing of tolls.
SECTION __.35. Section 361.187(a), Transportation Code, is
amended to read as follows:
(a) The commission [authority] is exempt from taxation of or
assessments on:
(1) a turnpike project;
(2) property the department [authority] acquires or
uses under this chapter; or
(3) income from property described by Subdivision (1)
or (2).
SECTION __.36. Section 361.188, Transportation Code, is
amended to read as follows:
Sec. 361.188. VALUATION OF BONDS SECURING DEPOSIT OF PUBLIC
FUNDS. Bonds of the commission [authority, when they are
accompanied by the unmatured coupons incident to the bonds,] may
secure the deposit of public funds of the state or a political
subdivision of the state to the extent of the lesser of the face
value of the bonds or their market value.
SECTION __.37. Section 361.189, Transportation Code, is
amended to read as follows:
Sec. 361.189. USE OF SURPLUS REVENUE. The commission by
order [resolution] may authorize the use of surplus revenue of a
turnpike project to pay the costs of another turnpike project
within the region[, other than a project financed under Subchapter
I, or a toll-free project]. The commission may in the order
[resolution] prescribe terms for the use of the revenue, including
the pledge of the revenue, but may not take an action under this
section that violates, impairs, or is inconsistent with a bond
order [resolution], trust agreement, or indenture governing the use
of the surplus revenue.
SECTION __.38. Section 361.191, Transportation Code, is
amended to read as follows:
Sec. 361.191. EXPENDITURE OF MONEY AUTHORIZED BY COMMISSION
[DEPARTMENT OF TRANSPORTATION]. (a) The commission [Texas
Department of Transportation] may provide for the expenditure of
money for the cost of the acquisition, construction, maintenance,
or operation of a turnpike project [by the authority]. The
commission [department] may require the repayment of [authority to
repay] money provided under this section from toll revenue or other
sources on terms established by the commission.
(b) Money repaid as required by the commission [department]
shall be deposited to the credit of the fund from which the money
was provided. Money deposited as required by this section is exempt
from the application of Section 403.095, Government Code.
SECTION __.39. Section 361.231(a), Transportation Code, is
amended to read as follows:
[(a)] A contract of the department [authority] for the
construction, improvement, repair, or maintenance of a turnpike
project shall[, to the extent applicable,] be awarded under the
same terms as a contract of the department under Sections
223.001-223.007, [223.009,] and 223.009-223.011 [223.010].
SECTION __.40. Sections 361.232(b), (c), and (d),
Transportation Code, are amended to read as follows:
(b) The department [authority] may construct a grade
separation at an intersection of a turnpike project with a railroad
or highway and change the line or grade of a highway to accommodate
it to the design of a grade separation. The department [authority]
shall pay the cost of a grade separation and any damage incurred in
changing a line or grade of a railroad or highway as part of the cost
of the turnpike project.
(c) If feasible, the department [authority] shall provide
access to properties previously abutting a county or other public
road that is taken for a turnpike project and shall pay abutting
property owners the expenses or any resulting damages for denial of
access to the road.
(d) If the department [authority] finds it necessary to
change the location of a portion of a highway, it shall reconstruct
the highway at the location the [authority and the] department
determines [determine] to be most favorable. The reconstructed
highway must be of substantially the same type and in as good
condition as the original highway. The department [authority]
shall determine and pay the cost of the reconstruction and any
damage incurred in changing the location of a highway as part of the
cost of the turnpike project.
SECTION __.41. Sections 361.233(a) and (c), Transportation
Code, are amended to read as follows:
(a) The department [authority] and its authorized agents
may enter any real property, water, or premises in this state to
make a survey, sounding, drilling, or examination it determines
necessary or appropriate for the purposes of this chapter.
(c) The department [authority] shall make reimbursement for
any actual damages to real property, water, or premises that result
from an activity described by Subsection (a).
SECTION __.42. Sections 361.234(a), (b), (d), (e), (f), and
(g), Transportation Code, are amended to read as follows:
(a) The commission [authority] may adopt rules for the
installation, construction, maintenance, repair, renewal,
relocation, and removal of a public utility facility in, on, along,
over, or under a turnpike project.
(b) If the department [authority] determines it is
necessary that a public utility facility located in, on, along,
over, or under a turnpike project be relocated in the project,
removed from the project, or carried along or across the turnpike by
grade separation, the owner or operator of the facility shall
relocate or remove the facility in accordance with the order of the
department [authority]. The department [authority], as a part of
the cost of the turnpike project or the cost of operating the
project, shall pay the cost of the relocation, removal, or grade
separation, including the cost of:
(1) installing the facility in a new location or
locations;
(2) interests in real property, and other rights
acquired to accomplish the relocation or removal; and
(3) maintenance of grade separation structures.
(d) The department [authority] and the public utility shall
have 90 days from the date the department [authority] provides
written notice to the public utility of the need for relocation of
utility facilities to reach an agreement concerning the period for
completion of the relocation. The 90-day period may be extended by
mutual written agreement. If the parties are unable to reach an
agreement for the period for completion of the relocation, the
department [authority] may specify a reasonable period. The
department [authority] may reduce the total costs to be paid by the
department [authority] by 10 percent for each 30-day period or
portion of a 30-day period that the relocation exceeds the period
specified by agreement between the department [authority] and
public utility or as reasonably specified by the department
[authority] if no agreement is reached, unless the public utility's
failure to timely perform results from a material action or
inaction by the department [authority] or from conditions that were
beyond the reasonable control of the utility. If an owner or
operator of a public utility facility does not timely remove or
relocate the facility as required under Subsection (b) and the
department [authority] relocates the facility, the department
[authority] shall relocate the facility in a safe manner that
complies with applicable law and utility construction standards
recognized by the department [authority] and that minimizes
disruption of utility service and shall notify the public utility
and other appropriate regulatory agencies of the relocation. A
public utility shall reimburse the department [authority] for
expenses reasonably incurred for the relocation of a public utility
facility unless the failure of the public utility to timely
relocate the facility was the result of circumstances beyond the
control of the utility, in which case the department [authority]
shall pay the cost of the relocation.
(e) Notwithstanding anything in this chapter to the
contrary,[:
[(1)] Subchapter B, Chapter 181, Utilities Code,
applies to the laying and maintenance of pipes, mains, conductors,
and other facilities used for conducting gas by a gas utility
described in that subchapter through, under, along, across, and
over a turnpike project constructed by the department [authority;
and
[(2) the authority has the powers and duties assigned
to the commission by Subchapter B, Chapter 181, Utilities Code].
(f) Notwithstanding anything in this chapter to the
contrary, Subchapter C, Chapter 181, Utilities Code, applies to the
erection, construction, maintenance, and operation of lines and
poles owned by an electric utility, as that term is defined by
Section 181.041, Utilities Code, over, under, across, on, and along
a turnpike project constructed by the department [authority. The
authority has the powers and duties delegated to the commission by
Subchapter C, Chapter 181, Utilities Code].
(g) Notwithstanding anything in this chapter to the
contrary, the laws of this state applicable to the use of public
roads, streets, and waters of this state by a telephone and
telegraph corporation apply to the erection, construction,
maintenance, location, and operation of a line, pole, or other
fixture by a telephone and telegraph corporation over, under,
across, on, and along a turnpike project constructed by the
department [authority].
SECTION __.43. Section 361.235(a), Transportation Code, is
amended to read as follows:
(a) The department [authority] may use real property owned
by the state, including submerged land, that the department
[authority] considers necessary for the construction or operation
of a turnpike project.
SECTION __.44. Section 361.236, Transportation Code, is
amended to read as follows:
Sec. 361.236. MAINTENANCE OF TURNPIKE PROJECT. The
department [authority] shall maintain and keep in good condition
and repair each turnpike project opened to traffic.
SECTION __.45. Section 361.238(b) and (c), Transportation
Code, are amended to read as follows:
(b) If the conditions of Subsections (a)(1) and (2) are met,
the commission may continue to charge a toll to fund the
construction, maintenance, and operation of other turnpike
projects in the region in which the turnpike project is located
[sufficient to pay the costs of maintaining the facility].
(c) The following entities shall consider offering motor
vehicle operators the option of using a transponder to pay tolls
without stopping, to mitigate congestion at toll locations, to
enhance traffic flow, and to otherwise increase the efficiency of
operations:
(1) the department [authority];
(2) an entity to which a project authorized by this
chapter is transferred; or
(3) a third party service provider under contract with
an entity described by Subdivision (1) or (2).
SECTION __.46. Section 361.251, Transportation Code, is
amended to read as follows:
Sec. 361.251. TURNPIKE PROJECT A STATE [PUBLIC] HIGHWAY. A
turnpike project is a state highway subject to all laws applicable
to the regulation and control of traffic on a state [public]
highway.
SECTION __.47. Section 361.253, Transportation Code, is
amended by amending Subsections (b), (d), (e), and (g) and adding
Subsection (i) to read as follows:
(b) The department [authority] may impose and collect the
administrative fee, so as to recover the cost of collecting the
unpaid toll, not to exceed $100. The department [authority] shall
send a written notice of nonpayment to the registered owner of the
vehicle at that owner's address as shown in the vehicle
registration records of the department by first class mail not
later than the 30th day after the date of the alleged failure to pay
and may require payment not sooner than the 30th day the date the
notice was mailed. The registered owner shall pay a separate toll
and administrative fee for each event of nonpayment under Section
361.252.
(d) It is an exception to the application of Subsection (a)
or (c) if the registered owner of the vehicle is a lessor of the
vehicle and not later than the 30th day after the date the notice of
nonpayment is mailed provides to the department [authority] a copy
of the rental, lease, or other contract document covering the
vehicle on the date of the nonpayment under Section 361.252, with
the name and address of the lessee clearly legible. If the lessor
provides the required information within the period prescribed, the
department [authority] may send a notice of nonpayment to the
lessee at the address shown on the contract document by first class
mail before the 30th day after the date of receipt of the required
information from the lessor. The lessee of the vehicle for which
the proper toll was not paid who is mailed a written notice of
nonpayment under this subsection and fails to pay the proper toll
and administrative fee within the time specified by the notice of
nonpayment commits an offense. The lessee shall pay a separate toll
and administrative fee for each event of nonpayment. Each failure
to pay a toll or administrative fee under this subsection is a
separate offense.
(e) It is an exception to the application of Subsection (a)
or (c) if the registered owner of the vehicle transferred ownership
of the vehicle to another person before the event of nonpayment
under Section 361.252 occurred, submitted written notice of the
transfer to the department in accordance with Section 520.023, and,
before the 30th day after the date the notice of nonpayment is
mailed, provides to the department [authority] the name and address
of the person to whom the vehicle was transferred. If the former
owner of the vehicle provides the required information within the
period prescribed, the department [authority] may send a notice of
nonpayment to the person to whom ownership of the vehicle was
transferred at the address provided the former owner by first class
mail before the 30th day after the date of receipt of the required
information from the former owner. The subsequent owner of the
vehicle for which the proper toll was not paid who is mailed a
written notice of nonpayment under this subsection and fails to pay
the proper toll and administrative fee within the time specified by
the notice of nonpayment commits an offense. The subsequent owner
shall pay a separate toll and administrative fee for each event of
nonpayment under Section 361.252. Each failure to pay a toll or
administrative fee under this subsection is a separate offense.
(g) The court in which a person is convicted of an offense
under this section shall also collect the proper toll and
administrative fee and forward the toll and fee to the department
for deposit in the depository bank used for that purpose
[authority].
(i) The department may contract, in accordance with Section
2107.003, Government Code, with a person to collect the unpaid toll
and administrative fee before referring the matter to a court with
jurisdiction over the offense.
SECTION __.48. Section 361.255(b), Transportation Code, is
amended to read as follows:
(b) Any peace officer of this state may seize a stolen or
insufficiently funded transponder and return it to the department
[authority], except that an insufficiently funded transponder may
not be seized sooner than the 30th day after the date the department
[authority] has sent a notice of delinquency to the holder of the
account.
SECTION __.49. Sections 361.256(a), (b), and (d),
Transportation Code, are amended to read as follows:
(a) To aid in the collection of tolls and in the enforcement
of toll violations, the department [authority] may use automated
enforcement technology that it determines is necessary, including
automatic vehicle license plate identification photography and
video surveillance, by electronic imaging or photographic copying.
(b) Automated enforcement technology approved by the
department [authority] under Subsection (a) may be used only for
the purpose of producing, depicting, photographing, or recording an
image of a license plate attached to the front or rear of a vehicle.
(d) Evidence obtained from technology approved by the
department [authority] under Subsection (a) may not be used in the
prosecution of an offense other than under Section 361.252 or
361.253.
SECTION __.50. The heading to Subchapter H, Chapter 361,
Transportation Code, is amended to read as follows:
SUBCHAPTER H. TRANSFER OF TURNPIKE PROJECT [TO COUNTY,
[MUNICIPALITY, REGIONAL TOLLWAY AUTHORITY,
[OR LOCAL GOVERNMENT CORPORATION]
SECTION __.51. Section 361.281, Transportation Code, is
amended to read as follows:
Sec. 361.281. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to:
(1) a county with a population of more than 1.5
million;
(2) a local government corporation serving a county
with a population of more than 1.5 million;
(3) an adjacent county in a joint turnpike authority
with a county with a population of more than 1.5 million;
(4) a municipality with a population of more than
170,000 that is adjacent to the United Mexican States; [or]
(5) a regional tollway authority created under Chapter
366; or
(6) a regional mobility authority created under
Section 361.003.
SECTION __.52. Section 361.282, Transportation Code, is
amended to read as follows:
Sec. 361.282. LEASE, SALE, OR CONVEYANCE OF TURNPIKE
PROJECT. (a) The department [authority] may lease, sell, or convey
in another manner a turnpike project to a county, a municipality,
regional tollway authority, regional mobility authority, or a local
government corporation created under Chapter 431.
(b) The [authority, the] commission[,] and the governor
must approve the transfer of the turnpike project as being in the
best interests of the state and the entity receiving the turnpike
project.
SECTION __.53. Section 361.283, Transportation Code, is
amended to read as follows:
Sec. 361.283. DISCHARGE OF [AUTHORITY'S] OUTSTANDING
BONDED INDEBTEDNESS. An agreement to lease, sell, or convey a
turnpike project under Section 361.282 must provide for the
discharge and final payment or redemption of the department
[authority's] outstanding bonded indebtedness for the project.
SECTION __.54. Subchapter H, Chapter 361, Transportation
Code, is amended by adding Section 361.284 to read as follows:
Sec. 361.284. REPAYMENT OF DEPARTMENT'S EXPENDITURES. (a)
Except as provided by Subsection (b), an agreement to lease, sell,
or convey a turnpike project under Section 361.282 must provide for
the repayment of any expenditures of the department for the design,
construction, operation, and maintenance of the project that have
not been reimbursed with the proceeds of bonds issued for the
project.
(b) The commission may waive repayment of all or a portion
of the expenditures if it finds that the transfer will result in
substantial net benefits to the state, the department, and the
public that equal or exceed the amount of repayment waived.
SECTION __.55. Section 361.285(a), Transportation Code, is
amended to read as follows:
(a) An agreement for the lease, sale, or conveyance of a
turnpike project under this subchapter shall be submitted to the
attorney general for approval as part of the records of proceedings
relating to the issuance of bonds of the county, municipality,
regional tollway authority, regional mobility authority, or local
government corporation.
SECTION __.56. Section 361.301, Transportation Code, is
amended to read as follows:
Sec. 361.301. AGREEMENTS WITH PUBLIC OR PRIVATE ENTITIES TO
CONSTRUCT, MAINTAIN, REPAIR, AND OPERATE TURNPIKE PROJECTS. (a)
Notwithstanding Section 361.231 and Subchapter A, Chapter 2254,
Government Code, the department [The authority] may enter into an
agreement with a public or private entity, including a toll road
corporation, to permit the entity, independently or jointly with
the department [authority], to construct, maintain, repair, and
operate turnpike projects.
(b) The department [authority] may authorize the investment
of public and private money, including debt and equity
participation, to finance a function described by this section.
SECTION __.57. Section 361.302, Transportation Code, is
amended to read as follows:
Sec. 361.302. COMPREHENSIVE [EXCLUSIVE] DEVELOPMENT
AGREEMENTS [WITH PUBLIC OR PRIVATE ENTITIES]. (a) Subject to
Section 361.3021, the department [The authority] may enter into a
comprehensive [use an exclusive] development agreement with a
private entity to construct, maintain, repair, operate, extend, or
expand a turnpike project.
(b) In this subchapter, "comprehensive development
agreement" means an agreement with a private entity that, at a
minimum, provides for the design and construction of a turnpike
project and may also provide for the financing, acquisition,
maintenance, or operation of a turnpike project [by invested
private funding or by public and private funding].
(c) The department [authority:]
[(1) has broad discretion to negotiate the terms of
financing; and]
[(2)] may negotiate provisions relating to
professional and consulting services provided in connection with a
comprehensive development agreement [regard to the turnpike
project and to the construction, maintenance, and operation of the
project, including provisions for combining those services].
(d) The authority to enter into comprehensive development
agreements provided by this section expires on August 31, 2011.
SECTION __.58. Subchapter I, Chapter 361, Transportation
Code, is amended by adding Sections 361.3021-361.3024 to read as
follows:
Sec. 361.3021. LIMITATION ON DEPARTMENT FINANCIAL
PARTICIPATION. The amount of money disbursed by the department
from the state highway fund and the Texas mobility fund during a
federal fiscal year to pay the costs under comprehensive
development agreements may not exceed 40 percent of the obligation
authority under the federal-aid highway program that is distributed
to this state for the fiscal year.
Sec. 361.3022. PROCESS FOR ENTERING INTO COMPREHENSIVE
DEVELOPMENT AGREEMENTS. (a) If the department enters into a
comprehensive development agreement, the department shall use a
competitive procurement process that provides the best value for
the department. The department may accept unsolicited proposals
for a proposed project or solicit proposals in accordance with this
section.
(b) The department shall establish rules and procedures for
accepting unsolicited proposals that require the private entity to
include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) a proposed financial plan for the proposed project
that includes, at a minimum:
(A) projected project costs; and
(B) proposed sources of funds.
(c) The department shall publish a request for competing
proposals and qualifications in the Texas Register that includes
the criteria used to evaluate the proposals, the relative weight
given to the criteria, and a deadline by which proposals must be
received if:
(1) the department decides to issue a request for
qualifications for a proposed project; or
(2) the department authorizes the further evaluation
of an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) The department may interview a private entity
submitting an unsolicited proposal or responding to a request under
Subsection (c). The department shall evaluate each proposal based
on the criteria described in the notice. The department must
qualify at least two private entities to submit detailed proposals
for a project under Subsection (f) unless the department does not
receive more than one proposal or one response to a request under
Subsection (c).
(f) The department shall issue a request for detailed
proposals from all private entities qualified under Subsection (e)
if the department proceeds with the further evaluation of a
proposed project. A request under this subsection may require
additional information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) detailed engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) costing methodology; or
(6) any other information the department considers
relevant or necessary.
(g) In issuing a request for proposals under Subsection (f),
the department may solicit input from entities qualified under
Subsection (e) or any other person. The department may also solicit
input regarding alternative technical concepts after issuing a
request under Subsection (f).
(h) The department shall rank each proposal based on the
criteria described in the request for proposals and select the
private entity whose proposal offers the apparent best value to the
department.
(i) The department may enter into discussions with the
private entity whose proposal offers the apparent best value. The
discussions shall be limited to:
(1) incorporation of aspects of other proposals for
the purpose of achieving the overall best value for the department;
(2) clarifications and minor adjustments in
scheduling, cash flow, and similar items; and
(3) matters that have arisen since the submission of
the proposal.
(j) If at any point in discussions under Subsection (i), it
appears to the department that the highest ranking proposal will
not provide the department with the overall best value, the
department may enter into discussions with the private entity
submitting the next-highest ranking proposal.
(k) The department may withdraw a request for competing
proposals and qualifications or a request for detailed proposals at
any time. The department may then publish a new request for
competing proposals and qualifications.
(l) The department may require that an unsolicited proposal
be accompanied by a nonrefundable fee sufficient to cover all or
part of its cost to review the proposal.
(m) The department may pay an unsuccessful private entity
that submits a response to a request for detailed proposals under
Subsection (f) a stipulated amount of the final contract price for
any costs incurred in preparing that proposal. The stipulated
amount must be stated in the request for proposals and may not
exceed the value of any work product contained in the proposal that
can, as determined by the department, be used by the department in
the performance of its functions. The use by the department of any
design element contained in an unsuccessful proposal is at the sole
risk and discretion of the department and does not confer liability
on the recipient of the stipulated amount under this section. After
payment of the stipulated amount:
(1) the department owns the exclusive rights to, and
may make use of any work product contained in, the proposal,
including the technologies, techniques, methods, processes, and
information contained in the project design; and
(2) the work product contained in the proposal becomes
the property of the department.
(n) The department may prescribe the general form of a
comprehensive development agreement and may include any matter the
department considers advantageous to the department. The
department and the private entity shall finalize the specific terms
of a comprehensive development agreement.
(o) Subchapter A, Chapter 223, and Chapter 2254, Government
Code, do not apply to a comprehensive development agreement entered
into under Section 361.302.
Sec. 361.3023. CONFIDENTIALITY OF INFORMATION RELATING TO
COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) To encourage private
entities to submit proposals under Section 361.3022, the following
information is confidential, is not subject to disclosure,
inspection, or copying under Chapter 552, Government Code, and is
not subject to disclosure, discovery, subpoena, or other means of
legal compulsion for its release until a final contract for a
proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information provided under Section 361.3022(b)(1) and (2);
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement; and
(3) information created or collected by the department
or its agent during consideration of a proposal for a comprehensive
development agreement.
(b) After the department completes its final ranking of
proposals under Section 361.3022(h), the final rankings of each
proposal under each of the published criteria are not confidential.
Sec. 361.3024. PERFORMANCE AND PAYMENT SECURITY. (a)
Notwithstanding Section 223.006 and the requirements of Subchapter
B, Chapter 2253, Government Code, the department shall require a
private entity entering into a comprehensive development agreement
under Section 361.302 to provide a performance and payment bond or
an alternative form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the department; and
(B) payment bond beneficiaries who have a direct
contractual relationship with the private entity or a subcontractor
of the private entity to supply labor or material.
(b) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) If the department determines that it is impracticable
for a private entity to provide security in the amount described by
Subsection (b), the department shall set the amount of the bonds or
the alternative forms of security.
(d) A payment or performance bond or alternative form of
security is not required for the portion of an agreement that
includes only design or planning services, the performance of
preliminary studies, or the acquisition of real property.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to performance and payment bonds, the
department may require the following alternate forms of security:
(1) a cashier's check drawn on a financial entity
specified by the department;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the department.
(g) The department by rule shall prescribe requirements for
alternate forms of security provided under this section.
SECTION __.59. Section 361.303, Transportation Code, is
amended to read as follows:
Sec. 361.303. OWNERSHIP OF TURNPIKE PROJECT. (a) A
turnpike project that is the subject of a comprehensive development
agreement with a private entity, including the facilities acquired
or constructed on the project, is public property and belongs to the
department [authority].
(b) Notwithstanding Subsection (a), the department
[authority] may enter into an agreement that provides for the lease
of rights-of-way, the granting of easements, the issuance of
franchises, licenses, or permits, or any lawful uses to enable a
private entity to construct, operate, and maintain a turnpike
project, including supplemental facilities. At the termination of
the agreement, the turnpike project, including the facilities, is
to be in a state of proper maintenance as determined by the
department [authority] and shall be returned to the department
[authority] in satisfactory condition at no further cost.
SECTION __.60. Section 361.304, Transportation Code, is
amended to read as follows:
Sec. 361.304. LIABILITY FOR PRIVATE OBLIGATIONS. The
department [authority] may not incur a financial obligation for a
private entity that constructs, maintains, or operates a turnpike
project. The state[, the authority,] or a political subdivision of
the state is not liable for any financial or other obligations of a
turnpike project solely because a private entity constructs,
finances, or operates any part of the project.
SECTION __.61. Section 361.305, Transportation Code, is
amended to read as follows:
Sec. 361.305. TERMS OF PRIVATE PARTICIPATION. (a) The
department [authority] shall negotiate the terms of private
participation in a turnpike project, including:
(1) methods to determine the applicable cost, profit,
and project distribution between the private equity investors and
the department [authority];
(2) reasonable methods to determine and classify toll
rates;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
construction, operation, and maintenance standards, expenses, and
costs.
(b) A comprehensive development agreement entered into
under Section 361.302 must include a provision authorizing the
department to purchase, under terms and conditions agreed to by the
parties, the interest of a private equity investor in a turnpike
agreement.
(c) The department may only enter into a comprehensive
development agreement under Section 361.302 with a private equity
investor if the project is identified in the department's unified
transportation program or is located on a transportation corridor
identified in the statewide transportation plan.
SECTION __.62. Section 361.306, Transportation Code, is
amended to read as follows:
Sec. 361.306. RULES, PROCEDURES, AND GUIDELINES GOVERNING
SELECTION AND NEGOTIATING PROCESS. (a) The commission [authority]
shall adopt rules, procedures, and guidelines governing selection
and negotiations to promote fairness, obtain private participants
in turnpike projects, and promote confidence among those
participants. The rules must contain criteria relating to the
qualifications of the participants and the award of the contracts
[and may authorize the authority to impose a fee for reviewing
proposals for private involvement in a turnpike project].
(b) The department [authority] shall have up-to-date
procedures for participation in negotiations on turnpike projects.
(c) The department [authority] has exclusive judgment to
determine the terms of an agreement.
(d) The department [authority] shall include the attorney
general or the attorney general's designated representative in a
negotiation with a private participant.
SECTION __.63. Section 361.307, Transportation Code, is
amended to read as follows:
Sec. 361.307. AGREEMENTS WITH PRIVATE ENTITIES AND OTHER
GOVERNMENTAL AGENCIES. (a) The department [authority] and a
private entity jointly may enter into an agreement with another
governmental agency or entity, including a federal agency, an
agency of this or another state, including the United Mexican
States or a state of the United Mexican States, or a political
subdivision, to independently or jointly provide services, to study
the feasibility of a turnpike project, or to finance, construct,
operate, and maintain a turnpike project.
(b) The department may not enter into an agreement with the
United Mexican States or a state of the United Mexican States
without the approval of the governor.
SECTION __.64. Section 361.331(a), Transportation Code, is
amended to read as follows:
(a) After the department [authority] conducts a public
hearing in each affected county, [and with the approval of] the
commission[, the authority] may designate as a pooled turnpike
project two or more turnpike projects that are wholly or partly
located in the territory of:
(1) a metropolitan planning organization; or
(2) two adjacent districts of the department.
SECTION __.65. Section 361.333, Transportation Code, is
amended to read as follows:
Sec. 361.333. ISSUANCE OF TURNPIKE REVENUE BONDS; PLEDGE OF
PROJECT REVENUE. Subject to this chapter, the commission
[authority] may:
(1) provide by order [resolution] for the issuance of
turnpike revenue bonds to pay all or part of the cost of a pooled
turnpike project; and
(2) pledge all or part of the revenue of the project.
SECTION __.66. Sections 361.334(a) and (e), Transportation
Code, are amended to read as follows:
(a) The commission [authority] by order [resolution] may
issue turnpike revenue refunding bonds to:
(1) refund any outstanding bonds issued under this
chapter for a pooled turnpike project, including any redemption
premium on the bonds and any interest accrued as of the date of
redemption of the bonds; and
(2) construct an improvement, extension, or
enlargement to a pooled turnpike project.
(e) The commission [authority] may:
(1) issue refunding bonds in exchange for outstanding
bonds; or
(2) sell refunding bonds and use the proceeds to
redeem outstanding bonds.
SECTION __.67. Section 361.335, Transportation Code, is
amended to read as follows:
Sec. 361.335. ISSUANCE OF BONDS AND PLEDGE OF TURNPIKE
PROJECT REVENUE WITHOUT REGARD TO WHETHER BONDS ARE REFUNDED.
Without regard to whether bonds are refunded, the commission
[authority] by order [resolution] may:
(1) issue bonds, of parity or otherwise, to:
(A) pay all or part of the cost of a pooled
turnpike project; or
(B) construct an improvement, extension, or
enlargement to a pooled turnpike project; and
(2) pledge all or part of the revenue of the pooled
turnpike project to the payment of the bonds.
SECTION __.68. Sections 362.003(b) and (c), Transportation
Code, are amended to read as follows:
(b) This chapter is cumulative of all laws affecting the
commission, the department, and the local governmental entities,
except that in the event any other law conflicts with this chapter,
the provisions of this chapter prevail. Chapters 1201 and 1371,
Government Code, and Subchapters A, B, and C, Chapter 1207,
Government Code, apply to bonds issued by the commission under this
chapter.
(c) The department may [This chapter is cumulative of all
laws affecting the authority, and the authority is authorized to]
enter into all agreements necessary or convenient to effectuate the
purposes of this chapter. [Particularly, but not by way of
limitation, the provisions of Chapters 1201 and 1371, Government
Code, and Subchapters A-C, Chapter 1207, Government Code, and
Chapter 361 are applicable to the bonds issued by the authority
under this chapter.]
SECTION __.69. Sections 362.007(a) and (b), Transportation
Code, are amended to read as follows:
(a) Under authority of Section 52, Article III, Texas
Constitution, a local governmental entity other than a nonprofit
corporation may, upon the required vote of the qualified voters, in
addition to all other debts, issue bonds or enter into and make
payments under agreements with the department [authority], not to
exceed 40 years in term, in any amount not to exceed one-fourth of
the assessed valuation of real property within the local
governmental entity, except that the total indebtedness of any
municipality shall never exceed the limits imposed by other
provisions of the constitution, and levy and collect taxes to pay
the interest thereon and provide a sinking fund for the redemption
thereof, for the purposes of construction, maintenance, and
operation of turnpike projects of the department [authority], or in
aid thereof.
(b) In addition to Subsection (a), a local governmental
entity may, within any applicable constitutional limitations,
agree with the department [authority] to issue bonds or enter into
and make payments under an agreement to construct, maintain, or
operate any portion of a turnpike project of the department
[authority].
SECTION __.70. Section 362.008, Transportation Code, is
amended to read as follows:
Sec. 362.008. ADDITIONAL AGREEMENTS OF DEPARTMENT
[AUTHORITY]. The department [authority] may enter into any
agreement necessary or convenient to achieve the purposes of this
subchapter.
SECTION __.71. The heading to Section 545.354,
Transportation Code, is amended to read as follows:
Sec. 545.354. AUTHORITY OF [TEXAS TURNPIKE AUTHORITY AND]
REGIONAL TOLLWAY AUTHORITIES TO ALTER SPEED LIMITS ON TURNPIKE
PROJECTS.
SECTION __.72. Section 545.354(a)(1), Transportation Code,
is amended to read as follows:
(1) In this section, "authority" means [the Texas
Turnpike Authority or] a regional tollway authority governed by
Chapter 366.
SECTION __.73. Section 621.102(a), Transportation Code, is
amended to read as follows:
(a) The [Except as provided by Subsection (h), the]
commission may set the maximum single axle weight, tandem axle
weight, or gross weight of a vehicle, or maximum single axle weight,
tandem axle weight, or gross weight of a combination of vehicles and
loads, that may be moved over a state highway or a farm or ranch road
if the commission finds that heavier maximum weight would rapidly
deteriorate or destroy the road or a bridge or culvert along the
road. A maximum weight set under this subsection may not exceed the
maximum set by statute for that weight.
SECTION __.74. Sections 222.103(i) and (j), 361.005,
361.043, 361.046, 361.0485, 361.049, 361.051, 361.052, 361.053,
361.055, 361.102, 361.181, 361.182, 361.184, 361.231(b), 361.237,
361.308, 362.001(1), 362.052, 362.053, and 621.102(h),
Transportation Code, are repealed.
SECTION __.75. This article takes effect immediately if this
Act receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this article takes effect September 1, 2003.