By: Ogden S.B. No. 1399
A BILL TO BE ENTITLED
AN ACT
relating to the establishment, designation, construction, and
operation of a system of multimodal facilities to be designated as
the Trans Texas Corridor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 6, Transportation Code, is
amended by adding Chapter 227 to read as follows:
CHAPTER 227. TRANS TEXAS CORRIDOR
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 227.001. SHORT TITLE. This chapter may be cited as the
Trans Texas Corridor Act.
Sec. 227.002. DEFINITIONS. In this chapter:
(1) "Construction" includes extension, expansion, and
improvement.
(2) "Facility" means:
(A) a state highway;
(B) a turnpike;
(C) freight or passenger rail, including
commuter rail, intercity rail, and high-speed rail;
(D) a pipeline, including a pipeline carrying
crude oil, petroleum products, natural gas, water, sewage,
chemicals, or other goods;
(E) a utility transmission line, including power
lines;
(F) a communications line, including data
transmission lines, telephone lines, telegraph lines, and
television cables;
(G) any other method of transporting people,
property, power, or information that relies on or benefits from
continuous fixed structures; or
(H) any structure that is reasonably necessary
for the effective operation of a method of transportation, such as
an intermodal transfer or staging area, a weigh station, an
inspection station, a rest area, a service station, a restaurant, a
train or bus station, a warehouse, a freight interchange, a
switching yard, a maintenance yard, and a pipeline pumping station.
(3) "Fee" includes any charge, toll, rent, lease
payment, user fee, franchise fee, percentage fee, license fee,
fare, tariff, or other consideration received in return for the use
of:
(A) property that is part of the Trans Texas
Corridor,
(B) a facility on the Trans Texas Corridor, or
(C) any service that is offered in connection
with the Trans Texas Corridor.
(4) "Operation" includes maintenance and repair.
(5) "Trans Texas Corridor" means the statewide system
of facilities designated by the commission under this chapter.
(6) "Turnpike" has the meaning assigned to turnpike
project in Section 361.001.
Sec. 227.003. RULES. The commission may promulgate rules
and the department may implement procedures and forms as necessary
or convenient to implement this chapter.
Sec. 227.004. APPLICABILITY TO OTHER LAW. (a) All laws
governing the financing, design, construction, or operation of a
state highway apply to the financing, design, construction, or
operation of a highway under this chapter unless in conflict with
this chapter.
(b) all laws governing the financing, construction, or
operation of a turnpike by the department apply to the financing,
construction, or operation of a turnpike as part of the Trans Texas
Corridor unless in conflict with this chapter.
SUBCHAPTER B. ESTABLISHMENT
Sec. 227.011. DESIGNATION. The commission shall designate
the Trans Texas Corridor.
Sec. 227.012. ROUTE SELECTION. The commission shall
consider the following criteria when selecting a route for a
segment of the Trans Texas Corridor:
(1) current and projected traffic patterns;
(2) the safety of motorists;
(3) potential risks to non-motorists from spills or
accidents of any kind;
(4) environmental effects, including the effect on air
quality;
(5) current and projected economic development;
(6) the current and projected need for additional
transportation options; and
(7) system connectivity.
Sec. 227.013. PUBLIC PARTICIPATION. Before designating a
route for a segment of the Trans Texas Corridor, the department
shall hold one or more public hearings.
Sec. 227.014. ESTABLISHMENT OF DISCRETE SYSTEMS. (a) If
the commission determines that the mobility needs of this state
would be most efficiently and economically met by jointly operating
two or more facilities as one operational and financial enterprise,
it may create a system composed of those facilities. The commission
may create more than one system and may combine two or more systems
into one system. The commission may finance, construct, and
operate an additional facility as an expansion of a system if the
commission determines that the facility would most efficiently and
economically be constructed and operated if it were a part of the
system and that the addition will benefit the system.
(b) The revenue of a system shall be accounted for
separately and may not be commingled with the revenue of a facility
that is not a part of the system.
Sec. 227.015. LOCATION OF FACILITIES. Notwithstanding any
other law, including Chapter 181, Utilities Code, Chapter 402,
Local Government Code, and Section 49.220, Water Code, the
department may specify the location of any facility on the Trans
Texas Corridor and may direct the time and manner of construction or
operation of any facility on the Trans Texas Corridor.
Sec. 227.016. URBAN CORRIDORS. The commission may link the
Trans Texas Corridor to an urban area through an urban corridor. An
urban corridor may include any of or all the facilities on the Trans
Texas Corridor. An urban corridor may be designated by the
commission as a segment of the Trans Texas Corridor or as a separate
transportation corridor. The commission and the department shall
have the same powers with respect to an urban corridor that they
have with respect to the Trans Texas Corridor.
SUBCHAPTER C. DEVELOPMENT AND OPERATION
Sec. 227.021. AUTHORITY OF DEPARTMENT. (a) The department
may construct and operate any facility as part of the Trans Texas
Corridor or may authorize any governmental or private entity to
construct or operate any facility that is part of the Trans Texas
Corridor.
(b) Subject to the provisions of Section 227.029, the
department may grant or deny access by any facility or driveway to
the Trans Texas Corridor.
Sec. 227.022. PARTICIPATION BY OTHER ENTITIES.
(a) Notwithstanding any other law, any tolled or non-tolled
highway on the Trans Texas Corridor that is constructed or operated
by another entity shall be part of the state highway system. This
subsection applies even if the entity constructing or operating the
highway is not independently authorized to construct or operate
highways on the state highway system.
(b) If the department authorizes another governmental
entity to construct or operate any facility on the Trans Texas
Corridor, that entity will have all the powers granted to the
department by this chapter with respect to that facility, including
the right to collect fees, except that any property acquired shall
be held in the name of the state.
(c) Notwithstanding any other law, if the department
authorizes another governmental entity to construct or operate any
facility on the Trans Texas Corridor, that entity may perform the
authorized function without regard to geographic limits on the
entity's jurisdiction.
(d) If the department authorizes another governmental
entity to construct or operate any facility on the Trans Texas
Corridor, that entity will not be liable for claims relating to the
Trans Texas Corridor except to the extent that the department would
be liable if it were constructing or operating the facility.
(e) Participation in the Trans Texas Corridor shall not be
construed to create a joint venture or to give rise to joint and
several liability among governmental entities. Only the
governmental entity having actual and direct operating control may
be held liable under Chapter 101, Civil Practice and Remedies Code.
Sec. 227.023. PARTICIPATION BY PRIVATE ENTITIES. (a) To
the maximum extent practical and economical, the department shall
encourage the participation of private entities in the construction
and operation of facilities.
(b) The department shall contract with a private entity to
operate a railroad using facilities owned by the department and may
not use department employees to operate a railroad. The department
may maintain railroad facilities directly or through a private
entity.
Sec. 227.024. HIGHWAYS. (a) A highway, including a
turnpike, on the Trans Texas Corridor is a part of the state highway
system.
(b) Notwithstanding any other law, the department may
dedicate one or more highway lanes on the Trans Texas Corridor to
the exclusive use of designated classes of vehicles.
Sec. 227.025. VEHICLE SIZE AND WEIGHT LIMITS. (a) The
commission may authorize the operation of vehicles exceeding the
height, length, and gross and axle weight limitations of Subchapter
C, Chapter 621 on highway segments of the Trans Texas Corridor if
supported by an engineering and traffic study that includes an
analysis of the structural capacity of bridges and pavements,
current and projected traffic patterns and volume, and potential
effects on public safety.
(b) The authority granted under this section does not apply
to the operation of a vehicle on a highway that is not part of the
Trans Texas Corridor.
Sec. 227.026. NON-HIGHWAY FACILITIES. (a) The department
may acquire rolling stock or other personal property under a
conditional sales contract, lease, equipment trust certificate, or
any other form of contract or trust agreement for use in connection
with a rail or other facility.
(b) The department may enter into agreements with a rail
operator, public utility, private utility, communications system,
common carrier, transportation system, or other entity for the
common use of any facility.
Sec. 227.027. ENVIRONMENTAL REVIEW. (a) The department
shall conduct or approve all environmental evaluations or studies
required for any activity associated with the Trans Texas Corridor.
(b) The commission may promulgate rules to allocate
responsibilities for conducting environmental evaluations or
studies or preparing environmental documentation among entities
involved in the construction or operation of any facility on the
Trans Texas Corridor.
Sec. 227.028. ENVIRONMENTAL MITIGATION. (a) The
department may acquire, maintain, hold, restore, enhance, develop,
or redevelop property for the purpose of mitigating a past,
present, or future adverse environmental effect arising from the
construction or operation of any part of the Trans Texas Corridor
without regard to whether the need for mitigation has already been
established for a particular project.
(b) The department may contract with a governmental or
private entity to maintain, control, hold, restore, enhance,
develop, or redevelop property for the mitigation of a past,
present, or future adverse environmental effect arising from the
construction or operation of any part of the Trans Texas Corridor
without regard to whether the need for mitigation has already been
established for a particular project.
(c) If authorized by the applicable regulatory authority,
the department may pay a sum of money to an appropriate governmental
or private entity instead of acquiring or managing property for the
mitigation of a past, present, or future adverse environmental
effect arising from construction or operation of any part of the
Trans Texas Corridor without regard to whether the need for
mitigation has already been established for a particular project.
Sec. 227.029. RELOCATION OF EXISTING FACILITIES. (a) The
department may construct a grade separation at an intersection of
the Trans Texas Corridor with another facility and may change the
line or grade of a facility to accommodate it to the design of a
grade separation. The department shall pay the cost of a grade
separation and any damage incurred in changing a line or grade of a
facility.
(b) If the department finds it necessary to change the
location of a portion of a facility, it shall reconstruct the
facility at the location the department determines to be most
favorable. The reconstructed facility must be of substantially the
same type and in as good condition as the original facility. The
department shall determine and pay the cost of the reconstruction
and any damage incurred in changing the location of a facility.
(c) This section does not apply to the conversion of any
road that is a part of the state highway system to a highway on the
Trans Texas Corridor.
Sec. 227.030. AUTHORITY TO ENTER EXCLUSIVE DEVELOPMENT
AGREEMENT. (a) The department may enter an exclusive development
agreement with a private or governmental entity to construct or
operate any facility that is part of the Trans Texas Corridor.
Notwithstanding any other law, including Section 222.103(i), an
exclusive development agreement may include the functions of
design, construction, and operation in any combination and may use
any constitutionally permissible source of funds without
restriction on the number of exclusive development agreements that
the department may enter.
(b) The facility may be financed in whole or in part by
private investment.
(c) Notwithstanding any other law, the department:
(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 project and
to the construction and operation of the facility, including
provisions for combining those services in any combination.
Sec. 227.031. PROCESS FOR ENTERING EXCLUSIVE DEVELOPMENT
AGREEMENT. (a) The department, when entering an exclusive
development agreement with a private entity, shall use a
competitive procurement process that provides the best value for
the state, including contracting through the issuance of requests
for proposals. The department shall publish in the request for
bids, proposals, or qualifications the criteria that will be used
to evaluate the offerors and the relative weight given to the
criteria.
(b) The department may accept unsolicited proposals for
proposed projects, but may not enter an exclusive development
agreement unless it first issues a request for competing proposals.
(c) The department may require that a solicited or
unsolicited proposal be accompanied by a non-reimbursable fee
sufficient to cover all or part of its cost to review the proposal.
(d) The department may pay an unsuccessful private entity
that submits a response to a request for proposals 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. After payment of the stipulated amount, the department
may make use of any work product contained in the proposal,
including the technologies, techniques, methods, processes, and
information contained in the project design.
(e) The department shall prescribe the form of an exclusive
development agreement and may include any matter the department
considers advantageous to the state.
(f) Subchapter A, Chapter 223, and Chapter 2254, Government
Code, do not apply to an exclusive development agreement entered
into under this section.
Sec. 227.032. CONFIDENTIALITY OF NEGOTIATIONS FOR
EXCLUSIVE DEVELOPMENT AGREEMENTS. Until a final contract is
executed with respect to a proposed project, 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:
(1) all or any part of a proposal submitted by a
private entity for an exclusive development agreement;
(2) any supplemental information or materials
submitted by a private entity in connection with a proposal for an
exclusive development agreement; and
(3) any information created or collected by the
department or its agents during consideration of a proposal for an
exclusive development agreement.
Sec. 227.033. FORMS OF SECURITY FOR CONTRACTORS.
(a) Notwithstanding any other law, including Section 223.006 and
Subchapter B, Chapter 2253, Government Code, the department shall
require a private entity entering into an exclusive development
agreement or a construction or maintenance contract to provide
performance and payment bonds or alternative forms of security in
an amount sufficient to protect the department and ensure the
proper performance of the agreement, and to protect 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) The performance and payment bonds or alternative forms
of security shall be in an amount equal to the cost of constructing
or maintaining the project unless the department determines that it
is impractical for the private entity to provide security in that
amount, in which case the department shall set the amount of the
bonds or the alternative forms of security. 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. In no case will the amount of the
payment security be less than the amount of the performance
security.
(c) The department may require the following alternative
forms of security:
(1) a cashier's check drawn on a financial entity
specified by the department;
(2) United States bonds or notes;
(3) irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the department.
(d) The commission by rule shall prescribe requirements for
alternative forms of security provided under this section.
Sec. 227.034. UNAUTHORIZED USE. Notwithstanding any other
law, the department may remove unauthorized personal property,
including vehicles, from the Trans Texas Corridor without notice
and at the owner's expense. Removed property may be stored until
claimed by the owner. If removed property is not claimed by the
owner within 72 hours after the date and time of removal, it shall
be considered abandoned within the meaning of Chapter 683. The
department and its employees shall not be held liable for damage to
property that is removed from the Trans Texas Corridor under this
chapter.
SUBCHAPTER D. RIGHT OF WAY ACQUISITION
Sec. 227.041. POWERS AND PROCEDURES. (a) The commission
may acquire, in the name of the state, an interest in real property
or a property right that may be necessary or convenient for the
construction or operation of any facility that is part of the Trans
Texas Corridor. The commission may acquire an interest in real
property or a property right by condemnation or by purchase under
any terms and conditions it considers proper. Property may be
purchased for possible use as part of the Trans Texas Corridor even
if a final decision has not been made that the Trans Texas Corridor
will ultimately be located on that property. Property may be
purchased along alternative potential routes for the Trans Texas
Corridor even if only one of those potential routes will ultimately
be chosen as the final route.
(b) An interest in real property or a property right is
necessary or convenient for the construction or operation of a
facility if it is located in or contiguous to an existing or planned
segment of the Trans Texas Corridor and if its acquisition will
further the purposes of the Trans Texas Corridor. Permissible
purposes include providing right of way or a location for a
facility, providing land for mitigation of adverse environmental
effects, providing buffer zones for scenic or safety purposes,
allowing for possible future expansion of any facility, and
generating revenue, directly or indirectly, for use in constructing
or operating the Trans Texas Corridor.
(c) All laws governing the acquisition of right of way for a
state highway apply to the acquisition of right of way for the Trans
Texas Corridor unless in conflict with this chapter.
Sec. 227.042. RIGHT TO RECEIVE FEES AS PAYMENT FOR REAL
PROPERTY. (a) Instead of paying for real property with a single
fixed payment, the department may, with a landowner's consent, pay
the landowner in the form of an intangible legal right to receive a
percentage of identified fees related to the applicable segment of
the Trans Texas Corridor.
(b) A right to receive fees granted under this section shall
expire no later than 50 years after it is granted.
(c) A right to fees granted under this section shall be
subordinate to any bonds that are issued for the applicable segment
of the Trans Texas Corridor and that are secured by the same fees.
Sec. 227.043. GRANT OF LEGAL RIGHTS AS PAYMENT FOR REAL
PROPERTY. (a) Instead of paying for real property with a single
fixed payment, the department may, with a landowner's consent, pay
the landowner in the form of an exclusive or a nonexclusive right to
use or operate a facility on the Trans Texas Corridor.
(b) A right granted under this section shall expire no later
than 50 years after it is granted.
Sec. 227.044. PURCHASE AND LEASEBACK. The department may
acquire real property for the Trans Texas Corridor and immediately
lease it back to the seller for any period or for an indefinite
period.
Sec. 227.045. SEVERANCE OF REAL PROPERTY. (a) If the
Trans Texas Corridor severs an owner's real property by dividing it
into two or more noncontiguous parcels, the department 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 may negotiate for and purchase the
remainder of the severed real property or either part of the severed
real property if the department and the owner agree on terms for the
purchase.
(c) If the Trans Texas Corridor severs an owner's real
property by dividing it into two or more noncontiguous parcels, the
department shall construct, at the election of the landowner, a
grade separation connecting the two parcels.
Sec. 227.046. OTHER GOVERNMENTAL ENTITIES. If the
department authorizes another governmental entity to construct or
operate any segment of or any facility on the Trans Texas Corridor,
that entity will have all the powers and duties of the department
under this subchapter.
SUBCHAPTER E. FINANCING
Sec. 227.061. PERMISSIBLE SOURCES OF FUNDING. To the full
extent permitted by the constitution, the department may use any
available source of funding in acquiring property for,
constructing, and operating the Trans Texas Corridor. Permissible
sources of funding include appropriations; fees; proceeds from
bonds secured by fees; donations, whether in kind or in cash;
private investments; loans from the state infrastructure bank;
contributions by governmental entities; and loans, grants, and
reimbursements from the federal government.
Sec. 227.062. REVENUE BONDS. (a) The commission may
authorize the issuance of bonds to pay all or part of the cost of
acquiring, constructing, or operating a facility or a system
created under Section 227.014, or to refund any bonds previously
issued for the facility or system.
(b) Chapters 1201, 1202, 1204, 1207, and 1371, Government
Code apply to bonds issued by the commission. To the extent there
is a conflict between those laws and this chapter, the provisions of
this chapter prevail.
(c) The principal of, interest on, and any redemption
premium on bonds issued by the commission may be paid from any
source that is not dedicated to another purpose by the
constitution, by statute, or by contract.
(d) 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 the
state is 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 neither the faith and credit nor the
taxing power of the state are pledged to the payment of the
principal of or interest on the bond.
(e) The commission may not incur financial obligations that
cannot be paid from revenue derived from owning or operating a
facility or system and from other revenue provided by law.
(f) In issuing revenue bonds for which the proceeds will
solely be used for a turnpike, the commission may exercise any
additional powers granted under Subchapter E, Chapter 361.
Sec. 227.063. LOANS. The department may borrow money from
the federal government or the state infrastructure bank created
under Subchapter D, Chapter 222, to fund the construction or
operation of a facility under this chapter.
SUBCHAPTER F. REVENUE
Sec. 227.071. FEES. (a) Notwithstanding any other law,
including Chapter 181, Utilities Code, Chapter 402, Local
Government Code, and Section 49.220, Water Code, and except as
provided in Subsection (e), the department may require any person,
including any governmental or private entity, to pay a fee as a
condition of using any part of the Trans Texas Corridor.
(b) The commission may establish fees to be charged by the
department under this chapter. Fees may be set as absolute amounts,
as a percentage of revenue, as a percentage of actual use or
throughput, as a designated portion or percentage of initial
project funding, or on any other reasonable basis. Subject to
approval of any tariff-regulating body having jurisdiction, the
commission may establish joint fees and divisions of fees.
(c) A fee may exceed the department's costs, but the
commission may not set a fee that is prohibitive or that
discriminates unreasonably among users or potential users of a
facility.
(d) In setting fees under this section, the commission shall
consider:
(1) the acquisition cost of the property being used;
(2) the value of the property being transported or of
the service being offered;
(3) any costs to the department or to the public
occasioned by the use, including environmental effects;
(4) comparable fees set by the competitive
marketplace; and
(5) the desirable effects of full utilization of the
Trans Texas Corridor on the state's economy and its citizens.
(e) If a public road is replaced or eliminated by the Trans
Texas Corridor and if any facility made use of the right of way of
that public road under Chapter 181, Utilities Code, Chapter 402,
Local Government Code, or Section 49.220, Water Code, the
department may not require the owner of that facility to pay a fee
as a condition of using a segment of the Trans Texas Corridor for a
replacement facility.
Sec. 227.072. LEASE OF PROPERTY OR RIGHTS. (a) The
department may lease property on the Trans Texas Corridor to any
governmental or private entity. A lease shall not be for a term
longer than 50 years.
(b) The department may grant a franchise right to use or
operate a facility on the Trans Texas Corridor. A franchise right
under this section may not be granted for a term longer than 50
years.
(c) The department may grant an exclusive or a nonexclusive
license to access and use any portion of the Trans Texas Corridor
for any purpose. A license granted under this section may be for
any period or for an indefinite period.
(d) Property may be leased and franchise rights and licenses
may be granted for any purpose, including use as a facility and use
for unrelated commercial, industrial, or agricultural purposes.
(e) In return for a lease, a franchise right, or a license,
the department may accept anything of value as consideration.
Permissible consideration includes cash payments, installment
payments, payments based on percentages of use or throughput,
interests in real estate, personal property, and intangible legal
rights.
Sec. 227.073. DISPOSITION OF FEES. To the extent that it is
not dedicated to another purpose by the constitution, by statute,
or by contract, all revenue received by the department under this
chapter shall be deposited to the credit of the state highway fund
and may be used for any purpose authorized by this chapter.
Subchapter D, Chapter 316, Government Code, and Section 403.095,
Government Code, do not apply to revenue received under this
chapter.
SECTION 2. Subchapter H, Chapter 545, Transportation Code,
is amended by adding Section 545.3531 to read as follows:
Sec. 545.3531. AUTHORITY OF TEXAS TRANSPORTATION
COMMISSION TO ESTABLISH SPEED LIMITS ON TRANS TEXAS CORRIDOR.
(a) Notwithstanding Section 545.352, the Texas Transportation
Commission, by order recorded in its minutes and except as provided
in Subsection (d), may determine and declare on a highway segment of
the Trans Texas Corridor designated under Chapter 227 a reasonable
and safe prima facie speed limit in excess of a prima facie speed
limit in Section 545.352.
(b) In determining whether a prima facie speed limit is
reasonable and safe, the commission shall conduct an engineering
and traffic investigation and shall consider the width and
condition of the pavement, the usual traffic at the affected area,
the suitability of existing safety features, and other
circumstances.
(c) A prima facie speed limit that is declared by the
commission under this section is effective when the department
erects signs giving notice of the new limit. A new limit that is
enacted under this section is effective at all times or at other
times as determined.
(d) The commission may not:
(1) modify the rules established by Section
545.351(b); or
(2) establish a speed limit of more than 85 miles per
hour.
(e) The commission, in conducting the engineering and
traffic investigation specified by Subsection (b), shall follow the "
Procedures for Establishing Speed Zones" as adopted by the
commission.
SECTION 3. 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.