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By:  Homer, Laubenberg, Hegar                                     H.B. No. 2912


A BILL TO BE ENTITLED
AN ACT
relating to industrial development corporations; providing a civil penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Sections 2(11)(A) and (C), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), are amended to read as follows: (A) "Project" shall mean the land, buildings, equipment, facilities, targeted infrastructure, and improvements (one or more) that are [to promote new and expanded business development or] found by the board of directors to be required or suitable for the [promotion of] development, retention, or [and] expansion of manufacturing and industrial facilities. "Project" also includes[, job creation and retention, job training, educational facilities,] research and development facilities, transportation facilities (including but not limited to airports, ports, mass commuting facilities, and parking facilities), sewage or solid waste disposal facilities, recycling facilities, air or water pollution control facilities, [facilities for the furnishing of water to the general public,] distribution centers, small warehouse facilities capable of serving as decentralized storage and distribution centers, [and] facilities for use by institutions of higher education, and corporate headquarters facilities [for the promotion of development or redevelopment and expansion, including costs of administration and operation, of a military base closed or realigned pursuant to recommendation of the Defense Closure and Realignment Commission pursuant to the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. Section 2687 note) as amended, and of facilities which are related to any of the foregoing, and in furtherance of the public purposes of this Act, all as defined in the rules of the department, irrespective of whether in existence or required to be identified, acquired, or constructed thereafter]. "Project" also includes job training required or suitable for the promotion of development and expansion of business enterprises and other enterprises described by this Act, as provided by Section 38 of this Act. "Project" also includes expenditures found by the board of directors to be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises that create or retain primary jobs, limited to streets and roads, water and electric utilities, gas utilities, drainage and related improvements, and telecommunications and Internet improvements. (C) As used in this Act, the term blighted or economically depressed areas shall mean those areas and areas immediately adjacent thereto within a city which by reason of the presence of a substantial number of substandard, slum, deteriorated, or deteriorating structures, or which suffer from a high relative rate of unemployment, or which have been designated and included in a tax incremental district created under Chapter 695, Acts of the 66th Legislature, Regular Session, 1979 (Article 1066d, Vernon's Texas Civil Statutes), or any combination of the foregoing, the city finds and determines, after a hearing, substantially impair or arrest the sound growth of the city, or constitute an economic or social liability and are a menace to the public health, safety, or welfare in their present condition and use. The department shall adopt guidelines that describe the kinds of areas that may be considered to be blighted or economically depressed. The city shall consider these guidelines in making its findings and determinations. Notice of the hearing at which the city considers establishment of [a development area or] an economically depressed or blighted area shall be posted at the city hall before the hearing. "Federally assisted new communities" shall mean those federally assisted areas which have received or will receive assistance in the form of loan guarantees under Title X of the National Housing Act and a portion of the federally assisted area has received grants under Section 107(a)(1) of the Housing and Community Development Act of 1974, as amended. SECTION 2. Section 2, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended by adding Subdivisions (17) and (18) to read as follows: (17) "Primary job" means a job that is: (A) available at a company for which a majority of the products or services of that company are ultimately exported to regional, statewide, national, or international markets infusing new dollars into the local economy; and (B) included in one of the following sectors of the North American Industry Classification System (NAICS):NAICS Sector # Description 111 Crop Production 112 Animal Production 113 Forestry and Logging 11411 Commercial Fishing 115 Support Activities for Agriculture and Forestry 211-213 Mining 221 Utilities 311-339 Manufacturing 42 Wholesale Trade 48-49 Transportation and Warehousing 51 (excluding 51213 Information (excluding movie theaters and and 512132) drive-in theaters) 523-525 Securities, Commodity Contracts, and Other Financial Investments and Related Activities; Insurance Carriers and Related Activities; Funds, Trusts, and Other Financial Vehicles 5413, 5415, 5416, Scientific Research and Development Services 5417, and 5419 551 Management of Companies and Enterprises (18) "Corporate headquarters facilities" means buildings proposed for construction and occupancy as the principal office for a business enterprise's administrative and management services. SECTION 3. Section 3(b), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (b) This Act shall be [liberally] construed in conformity with the intention of the legislature herein expressed. SECTION 4. Section 4A(t), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (t) The department, with the assistance of the Texas [Natural Resource Conservation] Commission on Environmental Quality, may encourage the cleanup of contaminated property by corporations created under this section through the use of sales and use tax proceeds. A corporation created under this section may use proceeds from the sales and use tax to undertake the cleanup of contaminated property only if the use of tax proceeds for that purpose is authorized by a majority of the qualified voters of the city voting in an election called and held for that purpose. The ballot in an election held under this subsection shall be printed to provide for voting for or against the proposition: "The use of sales and use tax proceeds for the cleanup of contaminated property." SECTION 5. Section 4A, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended by adding Subsections (u) and (v) to read as follows: (u)(1) In this subsection: (A) "Base taxable value" means the taxable value of property located in the defined area of a project as of January 1 of the year in which the agreement is entered into under this subsection. (B) "Corresponding taxing unit" means another taxing unit of the same type of political subdivision as a taxing unit that enters into an agreement under this subsection. (C) "Taxing unit" has the meaning assigned by Section 1.04, Tax Code. (2) Before entering into an agreement under this subsection, the corporation undertaking the project must designate a defined area that includes the territory where the project is to be located. (3) A taxing unit other than a school district may enter into an agreement with a corporation created under this section to invest in a project that is undertaken by the corporation and that is not located in the territory of the taxing unit. A corporation may enter into an agreement under this subsection with more than one taxing unit. (4) An agreement entered into under this subsection shall state the base taxable value of the property in the defined area of the project. (5) The agreement may provide that the taxing unit is entitled to receive from the corporation, in exchange for the investment, an amount equal to a specified percentage of the tax revenue from taxes imposed by the corresponding taxing unit that taxes property located in the defined area of the project on the taxable value of the property in the defined area that exceeds the base taxable value, for as long as the corresponding taxing unit imposes taxes on that property. (6) If a corporation enters into an agreement under this subsection, the corporation shall enter into an agreement with a corresponding taxing unit that taxes property located in the defined area of the project to recover the amount paid by the corporation to a taxing unit as provided by Subdivision (5) of this subsection. (v)(1) In this subsection, "base taxable value" has the meaning assigned by Subsection (u) of this section. (2) Before entering into an agreement under this subsection, the corporation undertaking the project must designate a defined area that includes the territory where the project is to be located. (3) A corporation created under this section may enter into an agreement with another corporation created under this section to invest in a project undertaken by the other corporation. (4) An agreement entered into under this subsection shall state the base taxable value of the property in the defined area that is taxable by the city that created the corporation undertaking the project. (5) The agreement may provide that the corporation making the investment is entitled to receive from the city that created the corporation undertaking the project, in exchange for the investment, an amount equal to a specified percentage of the tax revenue from taxes imposed by the city on the taxable value of the defined area of the project that exceeds the base taxable value, for as long as the city imposes taxes on that property. SECTION 6. Section 4B(a)(2), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (2) "Project" means land, buildings, equipment, facilities, expenditures, and improvements included in the definition of that term under Section 2 of this Act, and includes job training as provided by Section 38 of this Act. For purposes of this section, the term includes recycling facilities, and land, buildings, equipment, facilities, and improvements found by the board of directors to: (A) be required or suitable for use for professional and amateur (including children's) sports, athletic, entertainment, tourist, convention, and public park purposes and events, including stadiums, ball parks, auditoriums, amphitheaters, concert halls, [learning centers,] parks and park facilities, open space improvements, [municipal buildings,] museums, exhibition facilities, and related store, restaurant, concession, and automobile parking facilities, related area transportation facilities, and related roads, streets, and water and sewer facilities, and other related improvements that enhance any of those items; (B) promote or develop new or expanded business enterprises that create or retain primary jobs, including a project to provide public safety facilities, streets and roads, drainage and related improvements, demolition of existing structures, general municipally owned improvements, as well as any improvements or facilities that are related to any of those projects and any other project that the board in its discretion determines promotes or develops new or expanded business enterprises that create or retain primary jobs; (C) be required or suitable for the promotion of development and expansion of affordable housing, as defined by 42 U.S.C. Section 12745; (D) be required or suitable for the development or improvement of water supply facilities, including dams, transmission lines, well field developments, and other water supply alternatives; [or] (E) be required or suitable for the development and institution of water conservation programs, including incentives to install water-saving plumbing fixtures, educational programs, brush control programs, and programs to replace malfunctioning or leaking water lines and other water facilities; (F) be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises, including streets and roads, water and electric utilities, drainage and related improvements, and telecommunications and Internet improvements; or (G) be required for job training that is suitable for job creation and retention. SECTION 7. Section 4B(a-1), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (a-1)(1) A corporation may undertake a project under this section other than a project described by Subsection (a)(2)(G) of this section unless within 60 days after first publishing notice of a specific project or type of general project other than a project described by Subsection (a)(2)(G) of this section the governing body of the city receives a petition from more than 10 percent of the registered voters of the city where the petition requests that an election be held before that specific project or that general type of project is undertaken. An election is not required to be held after the submission of a petition under this subdivision if the qualified citizens of the city have previously approved the undertaking of a specific project or that general type of project that is the subject of the petition at an election called for that purpose by the governing body of the city or in conjunction with another election required to be held under this section. (2) A corporation may not undertake a project described by Subsection (a)(2)(G) of this section unless the governing body of the city creating the corporation under this section orders an election on the question of undertaking the project and the majority of the votes cast at the election are in favor of the undertaking. SECTION 8. Section 4B(a-5), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (a-5) Notwithstanding any other provision of this section, a corporation created under this section may use proceeds from the sales and use tax to undertake a project described by Subsection (a)(2)(D) or (E) of this section only if the use of tax proceeds for that purpose is authorized by a majority of the qualified voters of the city voting in an election called and held for that purpose. The ballot in an [proposition at the] election held under this subsection shall be printed to provide for voting for or against the proposition: "The use of sales and use tax proceeds for infrastructure relating to _______ (insert water supply facilities or water conservation programs, as appropriate)." [to adopt a sales and use tax under Subsection (d) of this section must clearly describe the project to be undertaken by the corporation if the project is described by Subsection (a)(2)(D) or (E) of this section]. SECTION 9. Section 4B, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended by adding Subsection (a-6) to read as follows: (a-6)(1) In this subsection, "land-locked community" means a city that has within its city limits and extraterritorial jurisdiction less than 500 acres that can be used for the development of manufacturing or industrial facilities in accordance with the zoning laws or land use restrictions of the city. (2) For a land-locked community that creates or has created a corporation governed by this section, "project" also includes expenditures found by the board of directors to be required for the promotion of new or expanded business enterprises and commercial activity within the land-locked community. (3) A corporation may not undertake a project described by Subdivision (2) of this subsection unless the governing body of the land-locked community creating the corporation under this section orders an election on the question of undertaking the project and the majority of the votes cast at the election are in favor of the undertaking. SECTION 10. Section 4B(c), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (c) The board of directors of a corporation under this section consists of seven directors who are appointed by the governing body of the eligible city for two-year terms of office. A director may be removed by the governing body of the eligible city at any time without cause. Each director of a corporation created by an eligible city with a population of 20,000 or more must be a resident of the eligible city. Each director of a corporation created by an eligible city with a population of less than 20,000 must be a resident of the eligible city, be a resident of [or] the county in which the major part of the area of the eligible city is located, or reside at a place that is within 10 miles of the eligible city's boundaries and is in a county bordering the county in which the major part of the area of the eligible city is located. Three directors shall be persons who are not employees, officers, or members of the governing body of the eligible city. A majority of the entire membership of the board is a quorum. The board shall conduct all meetings within the boundaries of the eligible city. The board shall appoint a president, a secretary, and other officers of the corporation that the governing body of the eligible city considers necessary. The corporation's registered agent must be an individual resident of the state and the corporation's registered office must be within the boundaries of the eligible city. SECTION 11. Section 4B(p), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is amended to read as follows: (p) The department, with the assistance of the Texas [Natural Resource Conservation] Commission on Environmental Quality, may encourage the cleanup of contaminated property by corporations created under this section through the use of sales and use tax proceeds. Notwithstanding any other provision of this section, a corporation created under this section may use proceeds from the sales and use tax to undertake the cleanup of contaminated property only if the use of tax proceeds for that purpose is authorized by a majority of the qualified voters of the city voting in an election called and held for that purpose. The ballot in an election held under this subsection shall be printed to provide for voting for or against the proposition: "The use of sales and use tax proceeds for the cleanup of contaminated property." SECTION 12. The Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes) is amended by adding Sections 40 and 41 to read as follows: Sec. 40. DIRECT INCENTIVE PROVIDED TO BUSINESS ENTERPRISE. (a) A corporation created under this Act may not provide a direct incentive to or make an expenditure on behalf of a business enterprise under a project as defined by Section 2 or 4B(a)(2) of this Act unless the corporation enters into a performance agreement with the business enterprise. (b) A performance agreement between a corporation and business enterprise, at a minimum, must provide for a schedule of jobs and capital investment to be made or created as consideration for any direct incentives provided or expenditures made by the corporation under the agreement. The performance agreement must also specify the terms under which repayment must be made if the business enterprise fails to meet the performance requirements specified in the agreement. Sec. 41. REQUIREMENT FOR THIRD-PARTY CONTRACT FOR BUSINESS RECRUITMENT OR DEVELOPMENT. (a) This section does not apply to a payment to an employee of the corporation. (b) A corporation organized under Section 4A or 4B of this Act must enter into a written contract approved by the corporation's board of directors in connection with the payment of a commission, fee, or other compensation or thing of value to a broker, agent, or other third party who is involved in business recruitment or development. (c) A corporation that violates Subsection (b) of this section is liable to the state for a civil penalty in an amount not to exceed $10,000. (d) The attorney general may bring an action to recover the civil penalty in a district court in Travis County or the county in which the violation occurred. SECTION 13. Section 2(11)(B), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), is repealed. SECTION 14. The changes in law made by Sections 2 and 4B(a)(2), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), as amended by this Act, apply only to a project that is undertaken or approved, by an election or otherwise, on or after the effective date of this Act. A project that is undertaken or approved before the effective date of this Act is governed by the law in effect on the date the project is undertaken or approved, and the former law is continued in effect for that purpose. SECTION 15. This Act takes effect immediately if it 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 Act takes effect September 1, 2003.