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78R4038 MTB-F
By: Wentworth S.B. No. 1712
A BILL TO BE ENTITLED
AN ACT
relating to the acquisition, financing, construction, operation,
and maintenance of rail facilities by the Texas Department of
Transportation; granting the authority to issue bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) the transportation of materials, products, and
people is essential to the continued economic vitality of this
state;
(2) the state contains many industries that are
heavily dependent on rail transportation for the movement of
materials and products;
(3) the rail transportation system in some areas of
this state is adversely affected by abandonment and discontinuance
proceedings that cause the cessation of rail service to those
areas;
(4) materials and products that cannot be transported
by rail are typically transported by truck over state highways and
local roads and bridges, thereby contributing to increased
congestion and roadway maintenance costs, decreased safety for the
traveling public, and a decrease in the expected life of those
roadways;
(5) the provision of passenger rail facilities and
systems will contribute to reducing the number of persons traveling
over state highways and local roads and bridges, thereby resulting
in decreased congestion and improved safety and air quality; and
(6) it is in the interest of all citizens of this state
that rail facilities and systems be part of a comprehensive state
transportation system to provide for the most efficient and
economical movement of essential materials and products to local,
national, and export markets and to provide for improved mobility
on, and the increased reliability of, the state's transportation
system.
SECTION 2. Title 5, Transportation Code, is amended by
adding Subtitle A to read as follows:
SUBTITLE A. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 91. RAIL FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 91.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Transportation
Commission.
(2) "Construction" includes design, planning, and
preliminary studies.
(3) "Department" means the Texas Department of
Transportation.
(4) "Maintenance facility" includes:
(A) a workshop;
(B) a service, storage, security, or personnel
facility; and
(C) equipment for a facility described by
Paragraph (B).
(5) "Operation" includes policing.
(6) "Rail facility" means real or personal property,
or any interest in that property, that is determined to be necessary
or convenient for the provision of a freight or passenger rail
facility or system, including commuter rail, intercity rail, and
high-speed rail. The term includes all property or interests
necessary or convenient for the acquiring, providing, using, or
equipping of a rail facility or system, including rights-of-way,
rolling stock, trackwork, train controls, stations, and
maintenance facilities.
(7) "Revenue" includes a charge, toll, rent, payment,
user fee, franchise fee, license fee, fare, tariff, and other
consideration:
(A) received in return for the use of:
(i) a rail facility; or
(ii) a service offered in connection with
the operation of a rail facility; or
(B) resulting from a sale or conveyance of a rail
facility.
(8) "Right-of-way" means a strip of land of a length
and width determined by the commission to be required, necessary,
or convenient for the provision of a rail facility or system and the
space over, under, or on the land where trackwork is to be located.
(9) "Station" means a passenger or freight service
building, terminal, station, ticketing facility, waiting area,
platform, concession, elevator, escalator, facility for
handicapped access, access road, parking facility for passengers,
baggage handling facility, or local maintenance facility, together
with any interest in real property necessary or convenient for
those items.
(10) "Surplus revenue" means:
(A) revenue that exceeds the department's debt
service requirements, coverage requirements of any bond indenture,
costs of operation and maintenance, and cost of expansion or
improvement of a rail facility or system; and
(B) reserves and reserve funds maintained by the
department.
(11) "Trackwork" means track, track beds, track bed
preparation, ties, rail fasteners, slabs, rails, emergency
crossovers, setout tracks, storage tracks, drains, fences,
ballast, switches, bridges, and structures.
(12) "Train controls" includes:
(A) signals, lights, and other signaling;
(B) interlocking equipment;
(C) speed monitoring equipment;
(D) braking systems;
(E) central traffic control facilities; and
(F) communication systems.
Sec. 91.002. PUBLIC PURPOSE. The following functions are
public and governmental functions, exercised for a public purpose,
and matters of public necessity:
(1) the acquisition, financing, construction,
operation, and maintenance of a rail facility under this chapter;
(2) the sale, lease, or license of a rail facility to a
rail operator and other public or private persons under this
chapter; and
(3) the exercise of any other power granted under this
chapter to the commission and the department.
Sec. 91.003. CHAPTER LIBERALLY CONSTRUED. This chapter
shall be liberally construed to effect its purposes.
Sec. 91.004. RULES. The commission may adopt rules and the
department may adopt procedures and prescribe forms necessary to
implement this chapter.
Sec. 91.005. GENERAL POWERS. The department may:
(1) plan and make policies for the location,
construction, maintenance, and operation of a rail facility or
system in this state;
(2) acquire, finance, construct, maintain, and
operate a passenger or freight rail facility, individually or as
one or more systems;
(3) for the purpose of acquiring or financing a rail
facility or system, accept a grant or loan from a:
(A) department or agency of the United States;
(B) department, agency, or political subdivision
of this state; or
(C) public or private person;
(4) contract with a public or private person to
finance, construct, maintain, or operate a rail facility under this
chapter; or
(5) perform any act necessary to the full exercise of
the department's powers under this chapter.
Sec. 91.006. RELIANCE ON PRIVATE ENTITIES. 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 a
railroad facility directly or through a private entity.
Sec. 91.007. COOPERATION OF STATE AGENCIES AND POLITICAL
SUBDIVISIONS. Within available resources, an agency or political
subdivision of this state shall cooperate with and assist the
department in exercising its powers and duties under this chapter.
Sec. 91.008. NOTIFICATION OF INTENT TO ABANDON OR
DISCONTINUE SERVICE. On receipt of notice of intent to abandon or
discontinue rail service served under 49 C.F.R. Section 1152.20, as
amended, the department shall coordinate with the governing body of
a municipality, county, or rural rail transportation district in
which all or a segment of the line is located to determine whether:
(1) the department should acquire the rail facility to
which the notice relates; or
(2) any other actions should be taken to provide for
continued rail transportation service.
[Sections 91.009–91.030 reserved for expansion]
SUBCHAPTER B. ACQUISITION AND DEVELOPMENT OF RAIL FACILITIES
Sec. 91.031. ESTABLISHMENT OF RAIL SYSTEMS. (a) If the
commission determines that the provision of rail transportation
services would be most efficiently and economically met by jointly
operating two or more rail facilities as one operational and
financial enterprise, it may create a system composed of those
facilities.
(b) The commission may create more than one system and may
combine two or more systems into one system.
(c) The department may finance, acquire, construct, and
operate additional rail facilities as additions to and expansions
of the system if the commission determines that the facility would
most efficiently and economically be acquired and constructed if it
were a part of the system and that the addition will benefit the
system.
(d) The revenue of a system shall be accounted for
separately and may not be commingled with the revenue of a rail
facility that is not part of the system.
Sec. 91.032. ACQUISITION OF RAIL FACILITIES. (a) The
commission may authorize the department to acquire an existing rail
facility at a location and on a route the commission determines to
be feasible and viable for rail transportation service.
(b) The department may enter into an agreement with the
owner of an operating railroad for the acquisition or use of a rail
facility on terms the department considers to be in the best
interest of the state.
(c) The department may acquire rolling stock or other
personal property under:
(1) conditional sales contracts;
(2) leases;
(3) equipment trust certificates; or
(4) any other form of contract or trust agreement.
Sec. 91.033. ENVIRONMENTAL REVIEW. (a) The department
shall conduct or approve all environmental evaluations or studies
required for the construction, maintenance, or operation of a rail
facility.
(b) The commission may adopt rules to allocate
responsibility for conducting an environmental evaluation or study
or preparing environmental documentation among entities involved
in the construction, maintenance, or operation of a rail facility
under this chapter.
Sec. 91.034. 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, maintenance, or operation of a rail facility 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, maintenance, or operation of a rail facility 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 an amount 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, maintenance, or
operation of a rail facility without regard to whether the need for
mitigation has already been established for a particular project.
Sec. 91.035. USE OF FACILITIES BELONGING TO PUBLIC OR
PRIVATE ENTITY. The department, for the purpose of acquiring,
constructing, maintaining, and operating freight or passenger rail
facilities and systems in this state, may:
(1) use a street, alley, road, highway, or other
public way of a municipality, county, or other political
subdivision with the consent of that political subdivision; and
(2) at the expense of the department, relocate, raise,
reroute, or change the grade of the construction of a street, alley,
highway, road, railroad, electric line and facility, telegraph and
telephone property and facility, pipeline and facility, conduit and
facility, and other properties, whether publicly or privately
owned, as necessary or useful in the construction, maintenance, and
operation of a rail facility or system.
Sec. 91.036. EXPENDITURE OF FUNDS. The department may
receive, accept, and expend funds from this state, a federal
agency, or other public or private source for:
(1) rail planning;
(2) studies to determine the viability of a rail
facility for rail transportation service;
(3) studies to determine the necessity for the
department's acquisition or construction of a rail facility; and
(4) the acquisition, construction, maintenance, or
operation of a rail facility under this chapter, including the
assessment and remediation of environmental contamination existing
in or on a rail facility.
[Sections 91.037–91.050 reserved for expansion]
SUBCHAPTER C. CONTRACTS
Sec. 91.051. AWARDING OF CONTRACTS. Unless otherwise
provided by this subchapter, a contract made by the department for
the construction, maintenance, or operation of a rail facility must
be let by a competitive bidding procedure in which the contract is
awarded to the lowest responsible bidder that complies with the
department's criteria.
Sec. 91.052. AGREEMENTS TO CONSTRUCT, MAINTAIN, AND OPERATE
RAIL FACILITIES. The department may enter into an agreement with a
public entity, including a political subdivision of this state, to
permit the entity, independently or jointly with the department, to
acquire, construct, maintain, or operate a rail facility or system.
Sec. 91.053. EXCLUSIVE DEVELOPMENT AGREEMENTS. (a) The
department may enter into an exclusive development agreement with a
private entity to construct, maintain, or operate a rail facility
or system. An exclusive development agreement may provide for:
(1) the lease of rights-of-way, the granting of
easements, or the issuance of franchises, concessions, licences, or
permits that are necessary to enable a private entity to construct,
maintain, or operate a rail facility or system; or
(2) the design, construction, maintenance, and
operation of a rail facility in any combination.
(b) The department, when contracting with a private entity
under this section, shall use a competitive procurement process
that provides the best value for the department, 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
bidders and the relative weight given to the criteria. The
department may accept unsolicited proposals for proposed projects
provided that the department issues a request for competing
proposals for those proposed projects accepted for further
evaluation. The department may require that a solicited or
unsolicited proposal be accompanied by a nonrefundable fee
sufficient to cover the department's cost to review the proposal.
(c) The department has broad discretion to negotiate
provisions in an exclusive development agreement with a private
entity. The provisions may relate to:
(1) professional and consulting services to be
rendered in connection with a rail facility or system; and
(2) the construction, maintenance, and operation of a
rail facility or system, including provisions for combining those
services.
(d) The department may authorize the investment of public
and private money, including debt and equity participation, to
finance a function described by this section.
(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) Section 91.051 does not apply to an agreement entered
into under this section.
Sec. 91.054. PAYMENT FOR WORK PRODUCT. (a) 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 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.
(b) After payment of the stipulated amount, the department
may make use of any work product contained in the proposal,
including the work product contained in the project design.
Sec. 91.055. LIABILITY FOR PRIVATE OBLIGATIONS. The
department may not incur a financial obligation on behalf of, or
otherwise guarantee the obligations of, a private entity that
constructs, maintains, or operates a rail facility or system.
Sec. 91.056. INFORMATION RELATED TO PROPOSALS. 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 a project under an exclusive development
agreement;
(2) any supplemental information or materials
submitted by a private entity in connection with a proposal for a
project under an exclusive development agreement; and
(3) any information created or collected by the
department or its agents during consideration of a proposal for a
project under an exclusive development agreement.
Sec. 91.057. PERFORMANCE AND PAYMENT SECURITY. (a)
Notwithstanding the requirements of Subchapter B, Chapter 2253,
Government Code, the department shall require a private entity
entering into an exclusive development agreement under Section
91.053 to provide performance and payment bonds or alternative
forms of security in an amount sufficient to:
(1) adequately protect the department and ensure the
proper performance of the agreement; and
(2) 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
the project unless the department determines that it is
impracticable 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. The amount of the
payment security may not be less than the amount of the performance
security.
(c) A payment and 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.
(d) In addition to performance and payment bonds, 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) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the department.
(e) The commission by rule shall prescribe requirements for
alternative forms of security provided under this section.
Sec. 91.058. SMALL AND DISADVANTAGED BUSINESSES. (a) The
department shall:
(1) set goals for the award of contracts to small and
disadvantaged businesses and attempt to meet the goals;
(2) attempt to identify small and disadvantaged
businesses that provide or have the potential to provide supplies,
materials, equipment, or services to the department; and
(3) give small and disadvantaged businesses full
access to the department's contract bidding process and other
contracting processes, inform the businesses about those
processes, offer the businesses assistance concerning those
processes, and identify barriers to the businesses' participation
in those processes.
(b) This section does not exempt the department from
competitive bidding requirements imposed by other law.
[Sections 91.059–91.070 reserved for expansion]
SUBCHAPTER D. FINANCING OF RAIL FACILITIES
Sec. 91.071. PERMISSIBLE SOURCES OF FUNDING. The
department may use any legally permissible source of funding in
acquiring, constructing, maintaining, and operating a rail
facility or system, including:
(1) appropriations from the state highway fund that
are not dedicated under Section 7-a, Article VIII, Texas
Constitution;
(2) proceeds from bonds secured by the Texas Mobility
Fund;
(3) donations, whether in kind or in cash; and
(4) loans from the state infrastructure bank.
Sec. 91.072. REVENUE BONDS. (a) The commission may
authorize the issuance of bonds to:
(1) pay all or part of the cost of acquiring,
constructing, maintaining, or operating a rail facility or system;
or
(2) 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.
Sec. 91.073. PAYMENT OF BONDS. The principal of, interest
on, and any redemption premium on bonds issued by the commission
under this chapter are payable solely from:
(1) the revenue of the rail facility or system for
which the bonds are issued, including revenue pledged to pay the
bonds;
(2) money received under Section 91.075;
(3) money derived from any other source available to
the department under this chapter, other than money derived from a
rail facility that is not part of the same system, except that
surplus revenue derived from one rail facility or system may be used
for another; and
(4) amounts received under a credit agreement relating
to the rail facility or system for which the bonds are issued.
Sec. 91.074. STATE CREDIT NOT PLEDGED. (a) 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 taxing power of the state is
pledged to the payment of the principal of or interest on the bond.
(b) The commission and the department may not incur
financial obligations under this chapter that cannot be paid from
revenue derived from owning or operating the department's rail
facilities and systems and from other revenue provided by law.
Sec. 91.075. GRANTS AND LOANS. The department may apply
for, accept, and expend money from grants, loans, or reimbursements
for any purpose of this chapter, including paying for the cost of
the acquisition, construction, maintenance, and operation of a rail
facility or system.
Sec. 91.076. REVENUE. (a) The department may require a
person, including any public or private entity, to pay a fee as a
condition of using any part of a rail facility or system.
(b) The department shall establish and maintain rents or
other compensation for the use of rail facilities or systems in an
amount that is, together with other revenue of the department
received under this chapter, sufficient to enable the department to
comply with the requirements of Section 91.073.
(c) The department may contract with a person for the use of
all or part of a rail facility or system or may lease or sell all or
part of a rail facility or system, including all or any part of the
right-of-way adjoining trackwork, for any purpose, including
placing on the adjoining right-of-way a storage or transfer
facility, warehouse, garage, parking facility, telecommunication
line or facility, restaurant, or gas station.
(d) All revenue received by the department under this
chapter:
(1) shall be deposited to the credit of the state
highway fund and may be used for any purpose authorized by this
chapter; and
(2) is exempt from the application of Section 403.095,
Government Code.
[Sections 91.077–91.090 reserved for expansion]
SUBCHAPTER E. ACQUISITION AND DISPOSAL OF PROPERTY
Sec. 91.091. ACQUISITION OF REAL PROPERTY. (a) The
commission may authorize the department to acquire in the name of
the state a right-of-way, a property right, or other interest in
real property determined to be necessary or convenient for the
department's acquisition, construction, maintenance, or operation
of rail facilities.
(b) The commission may authorize the department to acquire
property by any method, including purchase and condemnation.
Property may be purchased under any terms determined by the
department to be in the best interest of the state.
(c) Property may be purchased along alternative potential
routes for a rail facility even if only one of those potential
routes will ultimately be chosen as the final route.
Sec. 91.092. PROPERTY NECESSARY OR CONVENIENT FOR RAIL
FACILITIES. Property necessary or convenient for the department's
acquisition, construction, maintenance, or operation of rail
facilities includes an interest in real property or a property
right the commission determines is necessary or convenient to
provide:
(1) right-of-way for a location for:
(A) a rail facility; or
(B) the future expansion of a rail facility;
(2) land for mitigation of adverse environmental
effects;
(3) buffer zones for scenic or safety purposes; and
(4) revenue for use in acquiring, constructing,
maintaining, or operating a rail facility or system, including
revenue received under a contract described by Section 91.076(c).
Sec. 91.093. RIGHT OF ENTRY. (a) To acquire property
necessary or convenient for a rail facility, the department may
enter any premises or real property, including a body of water, to
make a survey, geotechnical evaluation, sounding, or examination.
(b) An entry under Subsection (a) is not:
(1) a trespass; or
(2) an entry under a pending condemnation procedure.
(c) The department shall make reimbursements for actual
damages that result from an entry under Subsection (a).
Sec. 91.094. CONVEYANCE OF PROPERTY BELONGING TO POLITICAL
SUBDIVISION OR PUBLIC AGENCY. The governing body of a
municipality, county, political subdivision, or public agency may,
without advertisement, convey the title to or a right in property
determined to be necessary or convenient by the department under
this subchapter.
Sec. 91.095. DISPOSAL OF PROPERTY. The department may
sell, convey, or otherwise dispose of any rights or other interests
in real property acquired under this subchapter that the commission
determines are no longer needed for department purposes.
[Sections 91.096–91.100 reserved for expansion]
SUBCHAPTER F. OPERATION AND USE OF RAIL FACILITIES
Sec. 91.101. CONTRACTS FOR RAIL TRANSPORTATION
SERVICES. The department may contract with a county or other
political subdivision of the state for the department to provide
rail transportation services on terms agreed to by the parties.
Sec. 91.102. CONTRACTS WITH RAIL OPERATORS. (a) The
department may lease all or part of a rail facility or system to a
rail operator. The department may contract with a rail operator for
the use or operation of all or part of a rail facility or system.
(b) The department shall encourage to the maximum extent
practical the participation of private enterprise in the operation
of rail facilities and systems.
(c) A lease agreement shall provide for the department's
monitoring of a rail operator's service and performance.
(d) The department may enter into an agreement with a rail
operator to sell all or any part of state-owned rail facilities on
terms the department considers to be in the best interest of the
state.
Sec. 91.103. JOINT USE OF RAIL FACILITIES. The department
may:
(1) enter into an agreement with a rail operator,
public utility, private utility, communication system, common
carrier, or transportation system for the common use of its
facilities, installations, or properties; and
(2) establish through routes, joint fares, and,
subject to approval of a tariff-regulating body having
jurisdiction, divisions of tariffs.
Sec. 91.104. ROUTINGS. The department may determine
routings for rail facilities acquired, constructed, or operated by
the department under this chapter.
Sec. 91.105. PLACEMENT OF UTILITY FACILITIES, LINES, AND
EQUIPMENT. (a) A utility has the same right to place its
facilities, lines, or equipment in, over, or across right-of-way
that is part of a state-owned rail facility as the utility has with
respect to the right-of-way of a state highway under Chapter 181,
Utilities Code. A utility shall notify the department of the
utility's intention to exercise authority over right-of-way that is
part of state-owned rail facilities.
(b) On receipt of notice under Subsection (a), the
department may designate the location in the right-of-way where the
utility may place its facilities, lines, or equipment.
(c) The department may require a utility to relocate the
utility's facilities, lines, or equipment, at the utility's
expense, to allow for the expansion or relocation of rail
facilities owned by the state. The department shall pay for the
cost of the relocation if the utility acquired an easement or a
leasehold interest in the real property occupied by the facility to
be relocated before the department acquired the right-of-way under
this chapter.
(d) A utility may use and operate a facility required to be
relocated under this section at the new location for the same period
and on the same terms as the utility had the right to do at the
previous location of the facility.
SECTION 3. Section 2, Chapter 1244, Acts of the 77th
Legislature, Regular Session, 2001 (Article 6550c-2, Vernon's
Texas Civil Statutes), is repealed.
SECTION 4. 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.