78R4353 CLG-D
By:  Dukes                                                        H.B. No. 2398
A BILL TO BE ENTITLED
AN ACT
relating to fiscal accountability for the receipt of a subsidy or 
other form of assistance for economic development purposes; 
providing a civil penalty.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Subtitle F, Title 4, Government Code, is amended 
by adding Chapter 489 to read as follows:
CHAPTER 489. ECONOMIC DEVELOPMENT AND FISCAL ACCOUNTABILITY
SUBCHAPTER A.  GENERAL PROVISIONS
	Sec. 489.001.  DEFINITIONS.  In this chapter:                           
		(1)  "Corporate parent" means a person that owns or 
controls 50 percent or more of a recipient corporation.
		(2)  "Date of the subsidy" means the date on which the 
recipient corporation receives the development subsidy, except 
that:
			(A)  if the development subsidy involves the 
purchase of new equipment, the date of the subsidy is the date on 
which the recipient corporation places the equipment into service; 
or
			(B)  if the development subsidy is for an 
improvement made to property, the date of the subsidy is the earlier 
of:
				(i)  the date on which the last improvement                          
to the property is made; or                                            
				(ii)  the date on which the recipient 
corporation occupies the property.
		(3)  "Department" means the Texas Department of 
Economic Development or its successor.
		(4)  "Development subsidy" means an expenditure of 
public money or financial assistance in the form of a bond, grant, 
loan at a rate below the commercial rate, loan guarantee, tax 
credit, tax increment financing, fee waiver, land price subsidy, 
matching funds, tax abatement, tax exemption, or tax reduction that 
is provided to a recipient corporation for economic development 
purposes.  The term does not include:
			(A)  financial assistance that is generally 
available to all businesses or to a general class of similar 
businesses; and
			(B)  bonds issued to refund outstanding bonds.                        
		(5)  "Full-time employee" means an employee who is 
normally scheduled to work at least 35 hours a week.
		(6)  "Granting entity" means a state agency or local 
governmental entity that grants a development subsidy.
		(7)  "Local governmental entity" means a county, 
municipality, or other political subdivision of this state and a 
municipally created economic development corporation, including a 
development corporation organized under the Development 
Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil 
Statutes).
		(8)  "Part-time employee" means an employee who is not 
a full-time employee or temporary employee.
		(9)  "Person" does not include a government or 
governmental subdivision or agency;
		(10)  "Project" means any undertaking or work that the 
granting entity determines will result in new or expanded business 
development or opportunities or other types of economic 
development;
		(11)  "Project site" means the site of a project for 
which a development subsidy is granted.
		(12)  "Property-taxing entity" means an entity that 
imposes taxes on real or personal property in this state.
		(13)  "Recipient corporation" means a person that 
receives a development subsidy from a granting entity.
		(14)  "Small business" means a corporation that:                       
			(A)  is formed to make a profit;                                      
			(B)  has fewer than 20 full-time employees or less 
than $1 million in annual gross receipts; and
			(C)  does not have a subsidiary or corporate 
parent that has more than 20 full-time employees or more than $1 
million in annual gross receipts.
		(15)  "Temporary employee" means an individual 
employed on a temporary basis for the performance of services for an 
employer during regular employee absences, temporary skill 
shortages, seasonal work loads, special assignments and projects, 
and other similar work situations for a limited period.
	Sec. 489.002.  PUBLIC RECORD; DISCLOSURE.  A report or other 
document required to be prepared or maintained under this chapter, 
including an application, progress report, or recapture notice, and 
any related record or proceeding, is a public record subject to 
Chapter 552.
[Sections 489.003–489.100 reserved for expansion]
SUBCHAPTER B.  DEVELOPMENT SUBSIDIES
	Sec. 489.101.  APPLICABILITY OF SUBCHAPTER TO CERTAIN 
DEVELOPMENT SUBSIDY AMOUNTS.  Except as otherwise provided by this 
subchapter, this subchapter applies only to a development subsidy 
of more than $25,000.
	Sec. 489.102.  APPLICATION.  (a)  To receive a development 
subsidy for a project, a person eligible for the subsidy must file a 
written application with the appropriate granting entity. The 
application must be on a form prescribed by the department and must 
contain:
		(1)  an application tracking number provided by the 
granting entity; 
		(2)  the name, business address, and business phone 
number of the chief executive officer of the granting entity 
provided by the granting entity;
		(3)  the name, business address, and business phone 
number of the chief executive officer of the applicant;
		(4)  the name, business address, and business phone 
number of the chief executive officer of the applicant's corporate 
parent, if any;
		(5)  the street address of the project site;                           
		(6)  the three-digit North American industry 
classification system number of the project site;
		(7)  the total number of full-time, part-time, and 
temporary employees employed by the applicant at the project site 
on the date of the application;
		(8)  the total number of full-time, part-time, and 
temporary employees in this state that are employed by the 
corporate parent and each subsidiary of the applicant, if any, as of 
December 31 of the prior fiscal year;
		(9)  the dollar amount or fair market value to the 
applicant of the development subsidy for which application is being 
made;
		(10)  the number of the applicant's current full-time, 
part-time, and temporary employment positions at the project site 
for which the hourly wage is:
			(A)  less than $6 an hour;                                            
			(B)  at least $6 an hour but less than $7;                            
			(C)  at  least $7 an hour but less than $8;                           
			(D)  at least $8 an hour but less than $9;                            
			(E)  at  least $9 an hour but less than $10;                          
			(F)  at least $10 an hour but less than $11;                          
			(G)  at  least $11 an hour but less than $12;                         
			(H)  at least $12 an hour but less than $13;                          
			(I)  at  least $13 an hour but less than $14; or                      
			(J)  at least $14 an hour;                                            
		(11)  the number of new full-time, part-time, and 
temporary employment positions to be created by the applicant at 
the project site for which the starting wage is:
			(A)  less than $6 an hour;                                            
			(B)  at least $6 an hour but less than $7;                            
			(C)  at  least $7 an hour but less than $8;                           
			(D)  at least $8 an hour but less than $9;                            
			(E)  at  least $9 an hour but less than $10;                          
			(F)  at least $10 an hour but less than $11;                          
			(G)  at  least $11 an hour but less than $12;                         
			(H)  at least $12 an hour but less than $13;                          
			(I)  at  least $13 an hour but less than $14; or                      
			(J)  at least $14 an hour;                                            
		(12)  the average hourly wage to be paid to the 
applicant's current full-time, part-time, and temporary employees 
at the project site for each of the wage groups described by 
Subdivision (10);
		(13)  the average hourly wage to be paid to the 
applicant's new full-time, part-time, and temporary employees at 
the project site for each of the wage groups described by 
Subdivision (11);
		(14)  if the project site is located in a metropolitan 
statistical area, as defined by the federal office of management 
and budget, the average hourly wage paid to nonsupervisory 
employees in this state for the industries involved at the project, 
as established by the United States Bureau of Labor Statistics;
		(15)  if the project site is located outside the 
boundaries of a metropolitan statistical area, the average weekly 
wage paid to nonsupervisory employees in the county for industries 
involved at the project, as established by the United States 
Department of Commerce;
		(16)  the type and amount of health care coverage to be 
provided by the applicant to its employees not later than the 90th 
day after the commencement of employment at the project site, 
including any costs of the coverage to be paid by the employees;
		(17)  a description of any other development subsidy 
for which the applicant has filed an application or is eligible for 
and interested in receiving, including the name of the granting 
entity for each subsidy;
		(18)  a statement as to whether receipt of the 
development subsidy will cause a reduction in the workforce at any 
other project site or job site of the applicant or the applicant's 
corporate parent in this state or another state as a result of 
automation, merger, acquisition, corporate restructuring, or other 
business activity; and
		(19)  a statement as to whether the project involves 
the relocation of jobs from another location and if it does involve 
the relocation of jobs, the number of full-time, part-time, and 
temporary employees to be relocated to the project site, and the 
location from which the employees are being transferred.
	(b)  The application must include a signed sworn statement of 
the chief executive officer of the applicant certifying that the 
application has been reviewed by the officer for factual accuracy.
	Sec. 489.103.  SUBSIDY LIMIT AND JOB QUALITY STANDARDS.  (a)  
A granting entity may not grant a development subsidy if the cost 
per employment position is greater than $35,000.
	(b)  The cost per employment position is determined by 
dividing the total amount or face value of the development subsidy 
by the number of full-time employment positions to be created by the 
applicant as described in the application.
	(c)  A granting entity may not grant a subsidy to an 
applicant unless the applicant pays wages to employees at the 
project site that are equal to or exceed  85 percent of the average 
wage rate established under Sections 489.102(a)(14) and (15), as 
appropriate, except that if the applicant is a small business, the 
applicant shall pay wages that are equal to or exceed 75 percent of 
the average wage rate established under those sections.
	Sec. 489.104.  APPROVAL OF APPLICATION; AWARDING OF 
DEVELOPMENT SUBSIDY.  (a)  On receipt of a proper application, the 
granting entity shall review the application for approval.
	(b)  A granting entity may not approve an application unless:           
		(1)  the applicant agrees to:                                          
			(A)  meet its job creation, wage, and health care 
coverage requirements not later than the second anniversary of the 
date of the subsidy; and
			(B)  maintain those requirements for the term of 
the subsidy or five years, whichever is later; and
		(2)  the corporate parent of the applicant, if any, 
agrees to maintain at least 90 percent of its workforce in this 
state on the date of the subsidy for the later of five years or the 
term of the subsidy.
	(c)  A granting entity shall send a copy of each approved 
application to the department not later than the 15th day after the 
date of approval.  The granting entity shall maintain a file of 
applications for development subsidies that are not approved.
	Sec. 489.105.  ANNUAL PROGRESS REPORT.  (a)  Not later than 
February 1 of each year, each granting entity shall file a progress 
report with the department for each project for which a development 
subsidy has been granted during the previous fiscal year.
	(b)  The progress report must contain:                                  
		(1)  the application tracking number;                                  
		(2)  the name, business address, and business phone 
number of the granting entity and of the entity's chief executive 
officer;
		(3)  the name, business address, and business phone 
number of the recipient corporation and of the corporation's chief 
executive officer;
		(4)  a summary of the number of full-time, part-time, 
and temporary employment positions required, created, and lost 
during the year, by wage groups as described by Sections 
489.102(a)(10) and (11);
		(5)  the type and amount of health care coverage 
provided to employees at the project site, including any costs of 
the coverage to be paid by the employees;
		(6)  a comparison of the total number of full-time, 
part-time, and temporary employees in this state employed by the 
recipient's corporate parent, if any, on the date of the 
application and on the date of the report; and
		(7)  a statement as to whether the use of the 
development subsidy during the fiscal year has reduced the 
workforce at any other project site or job site of the recipient 
corporation or its corporate parent, in this state or another 
state, as a result of automation, merger, acquisition, corporate 
restructuring, or other business activity.
	(c)  The progress report must include a signed sworn 
statement of the chief executive officer of the recipient 
corporation certifying that the report has been reviewed by the 
officer for factual accuracy.
	(d)  On each progress report following the initial progress 
report, the granting entity must indicate whether the recipient 
corporation has met or is still in compliance with its job creation, 
wage, and health care coverage requirements and whether the 
corporate parent of the recipient corporation, if any, has met or is 
still in compliance with its state employment requirement.  If 
either the recipient corporation or its corporate parent are not in 
compliance with any of the requirements described in this 
subsection, the recipient corporation or corporate parent shall 
state the reason for the noncompliance.
	(e)  A granting entity shall file a progress report until the 
later of:
		(1)  the end of the term of the development subsidy; or                
		(2)  the fifth anniversary of the date of the subsidy.                 
	Sec. 489.106.  RECAPTURE. (a)  If a granting entity 
determines that a corporation has failed to comply with the 
requirements of Section 489.103 and 489.104, the granting body 
shall recapture the development subsidy from the recipient 
corporation as follows:
		(1)  if a recipient corporation fails to create the 
required number of jobs, pay the required wages, or provide the 
required health care coverage, the amount to be recaptured shall be 
computed based on the pro rata amount by which the unfulfilled jobs, 
wages, or benefits bear to the total amount of the development 
subsidy; and
		(2)  if a corporate parent fails to maintain 90 percent 
of its employment in this state, the percentage rate of the amount 
to be recaptured is equal to the percentage rate by which the 
employment is less than 90 percent multiplied by two.
	(b)  The granting entity shall provide notice to the 
recipient corporation of its intent to recapture the development 
subsidy.   The notice must include the grounds for the recapture and 
the amount to be recaptured.
	(c)  The recipient corporation shall remit to the granting 
entity the amount recaptured under this section not later than the 
60th calendar day after the date on which the recapture notice is 
received by the corporation.
	(d)  If a recipient corporation defaults on a development 
subsidy for three consecutive calendar years, the granting entity 
shall declare the subsidy void and shall notify the department and 
the recipient corporation of its declaration.  The recipient 
corporation must pay any remaining amount or face value of the 
development subsidy to the granting entity not later than the 180th 
calendar day after the date on which the notice of default is 
received by the corporation.
	(e)  A recipient corporation may appeal a determination or 
declaration made by a granting entity under this section to the 
department.
	Sec. 489.107.  UPDATE REPORT ON DEVELOPMENT SUBSIDY.  (a)  
Not later than the 15th day after the second anniversary of the date 
of the subsidy, the granting entity shall file a report with the 
department that contains the same information required under 
Section 489.105 for the two-year period, including whether the 
recipient corporation has achieved its job creation, wage, and 
health care coverage requirements and whether the corporate parent, 
if any, has maintained its state employment requirement.
	(b)  The update report must include a signed sworn statement 
of the chief executive officer of the recipient corporation 
certifying that the report has been reviewed by the officer for 
factual accuracy.
	Sec. 489.108.  PUBLISHING OF REPORTS.  For each of the 
reports required under this subchapter, the department shall 
annually consolidate all of the information contained in the 
reports and make the consolidated information available in both 
written and electronic form, including making the information 
available in a printable format on the department's Internet 
website.
[Sections 489.109-489.200 reserved for expansion]
SUBCHAPTER C.  ECONOMIC DEVELOPMENT BUDGETS AND REPORTS
	Sec. 489.201.  CONSOLIDATED ECONOMIC DEVELOPMENT BUDGET. 
(a)  In this section, "company" means a corporation, partnership, 
limited partnership, registered limited liability partnership, 
trust, association, joint stock company, joint venture, limited 
liability company, or other form of business organization.  The 
term does not include a sole proprietorship or individual.
	(b)  Not later than the 90th day after the end of the state's 
fiscal year, the comptroller shall submit an annual consolidated 
economic development budget to the legislature.  The report must 
include:
		(1)  for each state agency or local governmental entity 
that developed or engaged in an economic development activity or 
project:
			(A)  legislative appropriations for each economic 
development activity or project, if any;
			(B)  the amount of bond proceeds, taxes, or other 
revenue received or collected in connection with or to support each 
economic development activity or project, if applicable; and
			(C)  the amount spent on each economic development 
activity or project;
		(2)  the amount of revenue foregone by this state or a 
local governmental entity, to the extent it is possible to assess, 
because of exemptions, discounts, exclusions, credits, special 
valuations, or abatements provided by this state or a local 
governmental entity to a company in relation to:
			(A)  the state sales, excise, and use tax under 
Chapter 151, Tax Code;
			(B)  the franchise tax under Chapter 171, Tax 
Code;                 
			(C)  property taxes, including school district 
property taxes, property taxes imposed for special district 
purposes, and property taxes imposed on inventory;
			(D)  utility taxes; and                                               
			(E)  gross receipts taxes; and                                        
		(3)  the name of each company that claimed any 
exemption, discount, exclusion, credit, special valuation, or 
abatement described by Subdivision (2) in an amount equal to or 
greater than $5,000, including the dollar amount received by that 
company.
	(c)  The report may not include an itemization for any  
exemption, discount, exclusion, credit, special valuation, or 
abatement described by Subsection (b)(2) in an amount that is less 
than $5,000.  The comptroller shall report the total dollar amount 
for those exemptions, discounts, exclusions, credits, special 
valuations, or abatements and the total number of companies 
receiving them.
	(d)  Each state agency and local governmental entity shall 
cooperate with the comptroller to the extent necessary and allowed 
by law to enable the comptroller to prepare the report required by 
this section.
	Sec. 489.202.  CONSOLIDATED REPORT OF PROPERTY TAX 
ABATEMENTS AND REDUCTIONS.  (a)  Not later than the 90th day after 
the end of the entity's fiscal year, each property-taxing entity 
shall submit, on a form prescribed by the comptroller, an annual 
report to the comptroller regarding any real property in the 
entity's jurisdiction that has received an exemption from taxation 
under a property tax abatement agreement or a reduction from 
taxation for economic development purposes during the entity's 
fiscal year.
	(b)  The report must include:                                           
		(1)  the name of the property owner;                                   
		(2)  the location of the property, including the street 
address of the property;
		(3)  the term of any tax abatement agreement, including 
the beginning and ending dates of the property tax exemption;
		(4)  the schedule of any tax reduction for the 
property;             
		(5)  the portion of the value of the property that is 
exempt from taxation in each year covered by a tax abatement 
agreement;
		(6)  the appraised value of the property before any tax 
abatement agreement or reduction takes effect;
		(7)  an estimate of any loss in ad valorem tax revenue 
from the property during the term of any tax abatement agreement or 
as a result of any tax reduction; and
		(8)  any other tax abatement, reduction, or exemption 
provided by the entity for the property.
	(c)  At the end of the entity's fiscal year, each 
property-taxing entity shall also submit a report to the 
comptroller containing the total property tax revenue foregone by 
the entity during the fiscal year as a result of property tax 
abatements, reductions, or exemptions provided in the entity's 
jurisdiction.
	(d)  If a property-taxing entity fails to submit a required 
report within the prescribed time, the comptroller shall withhold 
further payments of any development subsidy to the delinquent 
entity until the entity files the required report.
	Sec. 489.203.  PUBLISHING OF REPORTS.  For each of the 
reports required under this subchapter, the comptroller shall 
annually consolidate all of the information contained in the 
reports and make the consolidated information available in both 
written and electronic form, including making the information 
available in a printable format on the comptroller's Internet 
website.
[Sections 489.204-489.300 reserved for expansion]
SUBCHAPTER D. MONITORING AND ENFORCEMENT
	Sec. 489.301.  ACCESS TO PROJECT SITE AND CERTAIN RECORDS.  
(a)  The granting entity and the department have the authority to 
access the project site and the relevant records of the recipient 
corporation at any reasonable time for purposes of monitoring the 
project and preparing a progress or other report required under 
this chapter.
	(b)  A recipient corporation that fails to provide the 
granting entity with the information or access required under this 
section is liable to the state for a civil penalty in an amount not 
to exceed:
		(1)  $1,000 for each day of violation occurring after 
the 10th day after the date on which the report is due but before the 
21st day after the due date of the report; or
		(2)  $5,000 for each day of violation occurring after 
the 20th day after the report's due date.
	(c)  The attorney general may bring suit to recover the civil 
penalty imposed by this section.
	Sec. 489.302.  PRIVATE ENFORCEMENT ACTION.  (a)  If a 
granting entity fails to enforce this chapter, any interested 
person may bring an action to compel enforcement of this chapter.
	(b)  The court shall award reasonable attorney's fees and 
court costs to a prevailing plaintiff under this section.
	SECTION 2.  This Act takes effect July 1, 2004.