SRC-AMY S.B. 1677 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 1677
78R7093 MTB-FBy: Barrientos
Infrastructure Development and Security
4/11/2003
As Filed


DIGEST AND PURPOSE 

Senate Bill 342, 77th Texas Legislature, added Section 361.005 to the
Transportation Code, to transfer the powers and duties of the former board
of directors of the Texas Department of Transportation's (TxDOT) Texas
Turnpike Authority Division to the Texas Transportation Commission (TTC),
but not all necessary reference changes were made in existing law.
Additionally, TxDOT's legal authority, with regard to turnpike projects,
needs some clarification. Chapter 361 (Texas Turnpike Authority) contains
obsolete references and provisions that duplicate other statutes
applicable to TxDOT, which complicates the development of turnpike
projects.  As proposed, S.B. 1677 clarifies TTC's power regarding
financing, construction, improvement, maintenance, and operation of
turnpike projects, and provides additional powers, including increased
authority for TTC and TxDOT to enter into exclusive development agreements
for the construction, improvement, maintenance, and operation of turnpike
projects.   

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Transportation
Commission in SECTION 60 (Section 361.3025, Transportation Code) and
SECTION 64 (Section 361.306, Transportation Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 201.112(a), Transportation Code, to make a
conforming change by including Chapter 361 (State Highway Turnpike
Projects). Makes nonsubstantive changes. 

SECTION 2.  Amends the heading to Chapter 361, Transportation Code, to
read as follows: 

Chapter 361.  STATE HIGHWAY TURNPIKE PROJECTS

SECTION 3.  Amends Sections 361.001(2), (3), (4), and (5), Transportation
Code, to delete the definition of "board," redefine "turnpike project,"
and redesignate Subdivisions (3)-(5) as Subdivisions (2)-(4). 

SECTION 4.  Amends the heading to Chapter 361B, Transportation Code, to
read as follows: 

SUBCHAPTER B.  ADMINISTRATIVE PROVISIONS

SECTION 5.  Amends and reenacts Section 361.031, Transportation Code, as
follows: 

Sec. 361.031.  TEXAS TURNPIKE AUTHORITY.  (a) Provides that the Texas
Turnpike Authority (authority) is responsible for promoting and
coordinating the development of turnpike projects under this chapter.
Requires the Texas Transportation Commission (TTC) and the executive
director of the Texas Department of Transportation (director) to assign
duties to the authority and other offices of the Texas Department of
Transportation (TxDOT) as appropriate for the proper administration of
this chapter and other law. Deletes text referring to powers under the
chapter to study, design, construct, operate, expand, enlarge, or extend a
turnpike project. 

(b) Replaces the authority with TxDOT as the entity exercising powers
conferred  by this chapter in the construction, operation, and maintenance
of a turnpike project. 

SECTION 6.  Redesignates Section 361.042, Transportation Code, as Section
361.032, Transportation Code, and amends the section, as follows: 

Sec. 361.032. GENERAL PROVISIONS AND DUTIES.  (a) Requires TTC, rather
than the board of the directors of the authority, to adopt rules for the
implementation and administration of this chapter, rather than the
regulation of its affairs and the conduct of its business and to undertake
other duties delegated by TTC.  Deletes text referring to considering,
studying, planning, and developing turnpike projects.  Makes
nonsubstantive changes. 

(b)  Deletes text referring to employing attorneys, adopting and enforcing
rules, and forming, developing, or utilizing a corporation.  Redesignates
Subdivisions (7), (9), and (11) as Subdivisions (6), (7), and (8). 

SECTION 7.  Redesignates Section 361.054, Transportation Code, as Section
361.033, Transportation Code, and amends the section, as follows: 

Sec. 361.033.  AUDIT.  Requires an audit of TxDOT's, rather than the
authority's, books and accounts for activities under this chapter, at
least annually.  Requires the audit to 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.  Makes conforming
changes. 

SECTION 8.  Amends the heading to Chapter 361C, Transportation Code, to
read as follows: 

SUBCHAPTER C.  DEVELOPMENT OF TURNPIKE PROJECTS

SECTION 9.  Amends Section 361.101, Transportation Code, to require TTC to
approve, by order, final designation, rather than the location of the
project before final designation, and to make a conforming change. 

SECTION 10.  Amends Section 361.103, Transportation Code, as follows:

Sec. 361.103.  New heading: APPLICATION OF OTHER LAW.  Requires all other
law applicable to TxDOT, TTC, or the state highway system to apply to the
development, construction, maintenance, and operation of a turnpike
project under this chapter, unless in conflict with a provision of this
chapter.  Deletes text referring to the provision of an environmental
review. 

SECTION 11.  Amends Chapter 361C, Transportation Code, by adding Section
361.104, as follows: 

Sec. 361.104.  ENTRANCES AND EXITS OF TURNPIKE PROJECT.  Requires TxDOT to
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 to
prohibit entrance to a project at any place not designated as an entrance. 

SECTION 12.  Amends Section 361.131, Transportation Code, as follows:

Sec. 361.131.  New heading: POWERS AND PROCEDURES OF DEPARTMENT IN
ACQUIRING PROPERTY.  Provides that TxDOT has the same powers and is
authorized to use the same procedures in acquiring property under this
chapter as TTC or TxDOT in acquiring property under Chapter 203D
(Acquisition of Property) and in disposing of surplus property acquired
under this chapter as TTC or TxDOT under Chapter 202B (Sale, Exchange, or
Return of Highway Property). 
 
SECTION 13.  Amends Section 361.132, Transportation Code, as follows:

Sec. 361.132.  ACQUISITION OF PROPERTY.  (a) - (c) Make conforming changes.

(d) Provides that 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 TxDOT determines are
necessary or convenient to provides a location for an ancillary facility
that generated revenue for use in the construction, maintenance, or
operation of a turnpike project, including a gas station, garage, store,
hotel, or restaurant, to 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, among other
areas or activities.  Redesignates Subdivisions (6)-(9) as Subdivisions
(7)-(10). 

(e) and (f) Make conforming changes.

SECTION 14.  Sections 361.133(b) and (c), Transportation Code, to make
conforming changes. 

SECTION 15.  Amends Section 361.134, Transportation Code, to make
conforming changes. 

SECTION 16.  Amends Section 361.135, Transportation Code, as follows:

Sec. 361.135.  CONDEMNATION OF REAL PROPERTY.  (a) Authorizes TTC  to
approve the acquisition of, rather than the board with TTC's concurrence,
to 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 under certain
circumstances.  Makes a conforming change. 

(b) Authorizes TTC, to approve the condemnation of, rather than the board
with TTC's concurrence, to condemn, real property that TTC determines is
necessary or convenient for the construction or operation of a turnpike
project, rather than appropriate to construct or efficiently operate, as
described by Section 361.132(d), in addition to other necessities.  Makes
a nonsubstantive change. 

(c) Deletes existing Subsection (c) referring to authorizing the authority
to construct a supplemental facility, and redesignates Subsection (d) as
Subsection (c).  Replaces a reference to the authority's board of
directors' failure to accept and pay for the real property with TxDOT's
failure to accept and pay for the real property. 

(d)  Redesignates this subsection from Subsection (e).  Provides that an
undertaking under Subsection (c)(2), rather than (d)(2), or an act or
obligation of TxDOT, rather than the authority, or TTC rather than the
board of directors of the authority, does not impose any liability on the
state, TxDOT or TTC, except liability that may be paid from the money
authorized by this chapter.  Makes conforming changes. 

SECTION  17.  Amends Section 361.136, Transportation Code, to make
conforming changes. 

SECTION  18.  Amends Sections 361.137(a), (b), (c), and (d),
Transportation Code, to make conforming changes. 

SECTION  19.  Amends Sections 361.138(a) and (b), Transportation Code, to
make conforming changes. 

SECTION  20.  Amends Section 361.141(a), Transportation Code, to make
conforming changes. 

SECTION  21.  Amends Section 361.142, Transportation Code, to make
conforming changes. 
 
SECTION 22.  Amends Sections 361.171(a), (b), (c), (d) and (e),
Transportation Code, as follows: 

(a)  Authorizes TTC, rather than the authority, to provide for the
issuance of turnpike revenue bonds, by order rather than resolution, to
pay all or part of the cost of a turnpike project. 

(b)-(e) Make conforming changes.

SECTION  23.  Amends Section 361.172, Transportation Code, to make
conforming changes. 

SECTION  24.  Amends Section 361.173, Transportation Code,  as follows:

Sec.361.173.  PAYMENT OF BONDS; CREDIT OF STATE NOT PLEDGED.  (a) Makes a
conforming change. 

(b) Provides that TTC and TxDOT, rather than the 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. 

(d) Makes a conforming change.

SECTION  25.  Amends Section 361.174, Transportation Code, to delete a
reference to money other than that derived from a different turnpike
project, and to make conforming changes. 

SECTION  26.  Amends Section 361.175, Transportation Code, to make
conforming changes. 

SECTION  27.  Amends Sections 361.176(a) and (e), Transportation Code, to
make conforming changes. 

SECTION  28.  Amends Section 361.177, Transportation Code, to make
conforming changes. 

SECTION  29.  Amends Section 361.178, Transportation Code, to make
conforming changes. 

SECTION  30.  Amends Sections 361.179(a), (b), (d) (e), and (g),
Transportation Code, as follows: 

(a) Makes a conforming change.

(b) Includes contributions with other revenue as a contributor to a fund
to pay certain costs. 

(d)-(e) and (g) Make conforming changes.

SECTION  31.  Amends Sections 361.181(a) and (b), Transportation Code, as
follows: 

(a) Deletes text referring to using money received from TxDOT for
feasibility studies, undertaken at TTC's request.  Makes conforming and
nonsubstantive changes. 

(b) Makes a conforming change.

SECTION  32.  Amends Sections 361.182 (a), (b), (d), (f), (h), and (i),
Transportation Code, as follows: 

(a) and (b) Make conforming changes.

(d) Authorizes TTC to delegate the authority to authorize a feasibility
study to the director.  Makes a conforming change. 

 (f) Makes a conforming change.

(h) Redesignates this subsection from Subsection (i).  Deletes text
referring to money transferred to TxDOT for the benefit of the authority.
Authorizes TTC to authorize, rather than request the authority to conduct,
a feasibility study to be funded in accordance with Chapter 222E (Toll
Facilities).  Deletes text referring to the expense of the study. 

SECTION 33.  Amends Section 361.183(b), Transportation Code, to make a
conforming change. 

SECTION 34.  Amends Sections 361.184(a), (b), and (c), Transportation
Code, to make conforming changes. 

SECTION 35.  Amends Section 361.185, Transportation Code, to make
conforming changes. 

SECTION 36.  Amends Section 361.186, Transportation Code, as follows:

Sec. 361.186.  REMEDIES.  Deletes text referring to a coupon incident to a
bond and makes conforming changes. 

SECTION 37.  Amends Section 361.187(a), Transportation Code, to make
conforming changes. 

SECTION 38.  Amends Section 361.188, Transportation Code, to make a
conforming change. 

SECTION 39.  Amends Section 361.189, Transportation Code, to make
conforming changes. 

SECTION 40.  Amends Section 361.191, Transportation Code, as follows:

Sec. 361.191.  New heading: EXPENDITURE OF MONEY AUTHORIZED BY COMMISSION.
(a) Authorizes TTC, rather than TxDOT, to provide for the expenditure of
money for the cost of the acquisition, construction, maintenance, or
operation of a turnpike project.  Authorizes TTC, rather than TxDOT, to
require the repayment of, rather than the authority to repay, money
provided under this section from toll revenue or other sources on terms
established by TTC. 

(b) Makes a conforming change.

SECTION 41.  Amends Section 361.231(a), Transportation Code, to delete the
specification to the extent applicable, in reference to awarding a TxDOT
contract for the construction, improvement, repair, or maintenance of a
turnpike.  Includes a reference to Section 223.010 (Deposit and Investment
of Retained Amount).  Makes conforming and nonsubstantive changes. 

SECTION 42.  Amends Sections 361.232(b), (c), and (d), Transportation
Code, to make conforming and nonsubstantive changes. 

SECTION 43.  Amends Sections 361.233(a) and (c), Transportation Code, to
make conforming changes. 

SECTION 44.  Amends Sections 361.234(a), (b), (d), (e), (f), and (g),
Transportation Code, as follows: 

(a), (b), and (d) Make conforming changes.

(e)  Deletes text referring to the authorities powers and duties. Makes
conforming and nonsubstantive changes. 

(f) and (g) Make conforming changes.

SECTION 45.  Amends Section 361.235(a), Transportation Code, to make
conforming changes. 

 SECTION 46.  Amends Section 361.236, Transportation Code, to make a
conforming change. 

SECTION 47.  Amends Section 361.238(c), Transportation Code, to make a
conforming change. 

SECTION 48.  Amends Section 361.251, Transportation Code, as follows:

Sec. 361.251.  New heading: TURNPIKE PROJECT A STATE HIGHWAY.  Provides
that a turnpike project is a state highway subject to all laws applicable
to the regulation and control of traffic on a state highway, rather than a
public highway. 

SECTION 49.  Amends Section 361.253, Transportation Code, by amending
Subsections (b), (d), (e), and (g), and adding Subsection (i), as follows: 

(b), (d), and (e) Make conforming changes.

(g) Requires the court in which a person is convicted of an offense under
this section to collect the proper toll and administrative fee and forward
them to TxDOT for deposit in the depository bank used for that purpose.
Makes a conforming change. 

(i) Authorizes TxDOT to contract, in accordance with Section 2107.003
(Collection by Attorney General or Outside Agent), 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 50.  Amends Section 361.255(b), Transportation Code, to make
conforming changes. 

SECTION 51.  Amends Sections 361.256 (a), (b), and (d), Transportation
Code, to make conforming changes. 

SECTION 52.  Amends the heading to Chapter 361H, Transportation Code, to
read as follows: 

SUBCHAPTER H. TRANSFER OF TURNPIKE PROJECT

SECTION 53.  Amends Section 361.281, Transportation Code, to include a
regional mobility authority created under Section 361.003 (Regional
Mobility Authority) in the list of entities to which this subchapter
applies. 

SECTION 54.  Amends Section 361.282, Transportation Code, as follows:

Sec. 361.282.  LEASE, SALE, OR CONVEYANCE OF TURNPIKE PROJECT.  (a)
Includes a regional mobility authority in the list of entities to which
TxDOT is authorized to lease, sell, or convey in another manner a turnpike
project. 

(b) Makes conforming and nonsubstantive changes.

SECTION 55.  Amends Section 361.283, Transportation Code, as follows:

Sec. 361.283.  New heading: DISCHARGE OF OUTSTANDING BONDED INDEBTEDNESS.
Makes a conforming change. 

SECTION 56.  Amends Chapter 361H, Transportation Code, by adding Section
361.284, as follows: 

Sec. 361.284.  REPAYMENT OF DEPARTMENT'S EXPENDITURES.  (a) Requires an
agreement to lease, sell, or convey a turnpike project under Section
361.282, to 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, except as provided by Subsection (b). 

 (b) Authorizes TTC to 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, TxDOT, and the public, that equal or exceed the
amount of repayment waived. 

SECTION 57.  Amends Section 361.285(a), Transportation Code, to make a
conforming change. 

SECTION 58.  Amends Section 361.301, Transportation Code, as follows: 

Sec. 361.301.  AGREEMENTS WITH PUBLIC OR PRIVATE ENTITIES TO CONSTRUCT,
MAINTAIN, REPAIR, AND OPERATE TURNPIKE PROJECTS. Provides that,
notwithstanding Chapter 361.231, Transportation Code, and Chapter 2254A
(Professional Services), Government Code, TxDOT may enter into certain
agreements.  Makes a conforming change. 

(b) Makes a conforming change.

SECTION 59.  Amends Section 361.302, Transportation Code, as follows:

Sec. 361.302.  New heading: EXCLUSIVE DEVELOPMENT AGREEMENTS WITH PRIVATE
ENTITIES.  Authorizes an exclusive development agreement to include the
functions of design, construction, and operation in any combination, and
to use any constitutionally permissible source of funds without
restriction on the number of exclusive development agreements that TxDOT
may enter.  Makes a conforming change. 

(b) Authorizes the project to be financed in whole or in part by invested
private funding. 

(c) Creates this subsection from existing text.  Makes a conforming change.

(d) Provides that, until a final contract is executed relating to a
proposed project, certain information is confidential, is not subject to
disclosure, inspection, or copying under Chapter 552 (Public Information),
and is not subject to any means of legal compulsion for its release. 

(e) Provides that an agreement under this section is not subject to the
requirements of Section 361.231. 

SECTION 60.  Amends Chapter 361I, Transportation Code, by adding Section
361.3025, as follows: 

Sec. 361.3025.  PERFORMANCE AND PAYMENT SECURITY.  (a) Requires TxDOT,
notwithstanding Section 223.006 (Contractor's Bond),Transportation Code,
and the requirements of Chapter 2253B (General Requirements; Liability),
Government Code, to require a private entity entering into an exclusive
development agreement under Section 361.302 to provide performance and
payment bonds or alternative forms of security in an amount sufficient to
protect TxDOT and ensure proper performance of the agreement, and payment
bond beneficiaries who have a contractual relationship with the private
entity or a subcontractor of the private entity to supply labor or
material. 

(b) Requires the performance and payment bonds or alternative forms of
security to be in an amount equal to the cost of constructing the project. 

(c) Requires TxDOT, if it determines that it is impracticable for a
private entity to provide security in the amount described by Subsection
(b), to set the amount of the bonds or the alternative forms of security. 

(d) Provides that a performance and payment bonds 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) Requires the amount of the payment to be not less than the amount of
the performance security. 

(f) Authorizes TxDOT, in addition to performance and payment bonds, to
require certain alternate forms of security. 

(g) Requires TTC to prescribe requirements, by rule, for alternate forms
of security provided under this section. 

SECTION 61.  Amends Section 361.303, Transportation Code, to make
conforming changes. 

SECTION 62.  Amends Section 361.304, Transportation Code, to make
conforming changes. 

SECTION 63.  Amends Section 361.305, Transportation Code, to make
conforming changes. 

SECTION 64.  Amends Section 361.306, Transportation Code, as follows:

Sec. 361.306.  New heading: RULES, PROCEDURES, AND GUIDELINES GOVERNING
SELECTION AND NEGOTIATING PROCESS.  (a) Requires TTC to adopt rules,
procedures, and guideline, governing selection, in addition to
negotiation. Makes conforming changes. 

(b) Authorizes TxDOT to pay a private entity that submits an unsuccessful
response to a request for proposals (RFP), a stipulated amount of the
final contract price for any costs incurred in preparing the proposal.
Requires the stipulated amount to be stated in the RFP and prohibits the
amount from exceeding the value of any work product contained in the
proposal that can, as determined by TxDOT, be used by TxDOT in the
performance of its functions.  Authorizes TxDOT to make use of any work
product contained in the proposal, including the technologies, techniques,
methods, processes, and information contained in the project design, after
payment of the stipulated amount. 

(c), (d), and (d) Redesignated from Subsections (b), (c), and (d).  Makes
conforming changes. 

SECTION 65.  Amends Section 361.307, Transportation Code, to make
conforming changes. 

SECTION 66.  Amends Section 361.331(a), Transportation Code, to delete
text referring to TTC's approval and to make conforming changes. 

SECTION 67.  Amends Section 361.333, Transportation Code, to make
conforming changes. 

SECTION 68.  Amends Sections 361.334(a) and (e), Transportation Code, to
make conforming changes. 

SECTION 69.  Amends Section 361.335, Transportation Code, to make
conforming changes. 

SECTION 70.  Amends Sections 362.003(b) and (c), Transportation Code, as
follows: 

(b) Provides that Chapters 1201 (Public Security Procedures Act) and 1371
(Obligations for Certain Public Improvements), Government Code, and
Subchapters A (General Provisions), B (Advance Refunding Procedures), and
C (Direct Deposit With Paying Agent), Chapter 1207 (Refunding Bonds),
Government Code, apply to bonds issued by TTC under this chapter. 

(c) Authorizes TxDOT to enter into all agreements necessary or convenient
to effectuate the purposes of this chapter.  Deletes text referring to the
chapter being cumulative of  laws affecting the authority and chapters
reference regarding applicability to bonds. 

SECTION 71.  Amends Sections 362.007(a) and (b), Transportation Code, to
make conforming changes. 

SECTION 72.  Amends Section 362.008, Transportation Code, as follows:

Sec. 362.008.  ADDITIONAL AGREEMENTS OF DEPARTMENT. Makes a conforming
change. 

SECTION 73.  Amends the heading to Section 545.354, Transportation Code,
to read as follows: 

Sec. 545.354.  AUTHORITY OF  REGIONAL TOLLWAY AUTHORITIES TO ALTER SPEED
LIMITS ON TURNPIKE PROJECTS. 

SECTION 74.  Amends Section 545.354(a)(1), Transportation Code, to
redefine "authority." 

SECTION 75.  Amends Section 621.102(a), Transportation Code, to delete an
exception provided by Subsection (h). 

SECTION 76.  Repealer: Sections 222.103(i) and (j) (Cost Participation),
361.005 (Transfer of Board's Powers and Duties), 361.043 (Entrances and
Exits of Turnpike Project), 361.046 (Compensation of Employees), 361.0485
(Board Meeting by Telephone Conference Call), 361.049 (Consultants),
361.050 (Disadvantaged Business), 361.051 (Public Access), 361.052 (Public
Complaints), 361.053 (Evidence of Action by Authority), 361.055 (Successor
Agency to Authority), 361.102 (Public Hearings), 361.184(f) (Texas
Turnpike Authority Revolving Fund), 361.231(b) (Awarding of Contracts),
361.237 (Operation of Turnpike Project), 361.308 (Participation on Certain
Other Boards, Commissions, or Public Bodies), 362.001(1) (Definitions),
362.052 (Commission Review of Bonds), 362.053 (Contracts Between
Commission and Texas Turnpike), and 621.102(h) (Commission's Authority to
Set Maximum Weights). 

SECTION 77.  Effective date:  upon passage or September 1, 2003.