78R13682 JTS-F
By: Ogden S.B. No. 1924
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of a regional mobility authority,
including the power of eminent domain and the power to issue bonds;
providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 6, Transportation Code, is
amended by adding Chapter 370 to read as follows:
CHAPTER 370. REGIONAL MOBILITY AUTHORITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 370.001. SHORT TITLE. This chapter may be cited as the
Regional Mobility Authority Act.
Sec. 370.002. PURPOSES; LIBERAL CONSTRUCTION. (a) The
purposes of this chapter are:
(1) to expand and improve transportation facilities
and systems in this state;
(2) to promote the consideration and use of multimodal
forms of transportation to address transportation needs in regions
of the state;
(3) to create regional mobility authorities to secure
and acquire rights-of-way for urgently needed transportation
systems and to plan, design, construct, operate, expand, extend,
and modify those systems; and
(4) to reduce burdens and demands on the limited money
available to the commission and to increase the effectiveness and
efficiency of the commission.
(b) This chapter shall be liberally construed to effect its
purposes.
Sec. 370.003. DEFINITIONS. In this chapter:
(1) "Authority" means a regional mobility authority
organized under this chapter or under Section 361.003, as that
section existed before September 1, 2003.
(2) "Board" means the board of directors of an
authority.
(3) "Bond" includes a bond, certificate, note, or
other obligation of an authority authorized by this chapter,
another statute, or the Texas Constitution.
(4) "Bond proceeding" includes a bond resolution and a
bond indenture authorized by the bond resolution, a credit
agreement, loan agreement, or other agreement entered into in
connection with the bond or the payments to be made under the
agreement, and any other agreement between an authority and another
person providing security for the payment of a bond.
(5) "Bond resolution" means an order or resolution of
a board authorizing the issuance of a bond.
(6) "Bondholder" means the owner of a bond and
includes a trustee acting on behalf of an owner of a bond under the
terms of a bond indenture.
(7) "Exclusive development agreement" means an
agreement with a private entity that, at a minimum, provides for the
design and construction of a transportation project and may also
provide for the financing, acquisition, maintenance, or operation
of a transportation project.
(8) "Governmental entity" means a political
subdivision of the state, including a municipality or a county, a
political subdivision of a county, a group of adjoining counties, a
district organized or operating under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution, the department, a rail
district, a transit authority, a nonprofit corporation, including a
transportation corporation, that is created under Chapter 431, or
any other public entity or instrumentality.
(9) "Highway" means a road, highway, farm-to-market
road, or street under the supervision of the state or a political
subdivision of this state.
(10) "Public utility facility" means:
(A) a water, wastewater, natural gas, or
petroleum pipeline or facility;
(B) an electric transmission or distribution
facility; or
(C) telecommunications infrastructure,
including fiber optic cable, conduit, and wireless communications
facilities.
(11) "Revenue" means fares, fees, rents, tolls, and
other money received by an authority from the ownership or
operation of a transportation project.
(12) "Surplus revenue" means revenue that exceeds:
(A) an authority's debt service requirements for
a transportation project;
(B) coverage requirements of a bond indenture for
a transportation project;
(C) costs of operation and maintenance for a
transportation project;
(D) cost of repair, expansion, or improvement of
a transportation project;
(E) funds allocated for feasibility studies; and
(F) necessary reserves as determined by the
authority.
(13) "System" means a transportation project or a
combination of transportation projects designated as a system by
the board under Section 370.034.
(14) "Transportation project" means:
(A) a turnpike project;
(B) a system;
(C) a passenger or freight rail facility,
including:
(i) tracks;
(ii) a rail line;
(iii) switching, signaling, or other
operating equipment;
(iv) a depot;
(v) a locomotive;
(vi) rolling stock;
(vii) a maintenance facility; and
(viii) other real and personal property
associated with a rail operation;
(D) a roadway with a functional classification
greater than a local road or rural minor collector;
(E) border crossing inspection stations;
(F) a ferry;
(G) an airport;
(H) a pedestrian or bicycle facility;
(I) an air quality improvement initiative;
(J) a public utility facility; and
(K) if applicable, projects and programs listed
in the most recently approved state implementation plan for the
area covered by the authority, including an early action compact.
(15) "Turnpike project" means a highway of any number
of lanes, with or without grade separations, owned or operated by an
authority under this chapter and any improvement, extension, or
expansion to that highway, including:
(A) an improvement to relieve traffic congestion
or promote safety;
(B) a bridge, tunnel, overpass, underpass,
interchange, service road, ramp, entrance plaza, approach, or
tollhouse;
(C) an administration, storage, or other
building the authority considers necessary for the operation of a
turnpike project;
(D) a parking area or structure, rest stop, park,
and other improvement or amenity the authority considers necessary,
useful, or beneficial for the operation of a turnpike project; and
(E) a property right, easement, or interest the
authority acquires to construct or operate the turnpike project.
Sec. 370.004. CONSTRUCTION COSTS DEFINED. (a) The cost of
acquisition, construction, improvement, extension, or expansion of
a transportation project under this chapter includes the cost of:
(1) the actual acquisition, construction,
improvement, extension, or expansion of the transportation
project;
(2) the acquisition of real property, rights-of-way,
property rights, easements, and other interests in real property;
(3) machinery and equipment;
(4) interest payable before, during, and for not more
than three years after acquisition, construction, improvement,
extension, or expansion as provided in the bond proceedings;
(5) traffic estimates, revenue estimates, engineering
and legal services, plans, specifications, surveys, appraisals,
construction cost estimates, and other expenses necessary or
incidental to determining the feasibility of the acquisition,
construction, improvement, extension, or expansion;
(6) necessary or incidental administrative, legal,
and other expenses;
(7) compliance with laws, regulations, and
administrative rulings, including any costs associated with
necessary environmental mitigation measures;
(8) financing; and
(9) expenses related to the initial operation of the
transportation project.
(b) Costs attributable to a transportation project and
incurred before the issuance of bonds to finance the transportation
project may be reimbursed from the proceeds of sale of the bonds.
[Sections 370.005-370.030 reserved for expansion]
SUBCHAPTER B. CREATION AND POWERS OF REGIONAL MOBILITY AUTHORITIES
Sec. 370.031. CREATION OF A REGIONAL MOBILITY AUTHORITY.
(a) At the request of one or more counties, the commission by order
may authorize the creation of a regional mobility authority for the
purposes of constructing, maintaining, and operating
transportation projects in a region of this state. An authority is
governed in accordance with Subchapter F.
(b) An authority may not be created without the approval of
the commission under Subsection (a).
Sec. 370.0315. ADDITION AND WITHDRAWAL OF COUNTIES. (a)
One or more counties may petition the commission for approval to
become part of an existing authority. The commission may approve
the petition only if:
(1) the board has agreed to the addition; and
(2) the commission finds that the affected political
subdivisions in the county or counties will be adequately
represented on the board.
(b) One or more counties may petition the commission for
approval to withdraw from an authority. The commission may approve
the petition only if:
(1) the authority has no bonded indebtedness; or
(2) the authority has debt other than bonded
indebtedness, but the board has agreed to the withdrawal.
(c) A county may not become part of an authority or withdraw
from an authority without the approval of the commission.
Sec. 370.032. NATURE OF REGIONAL MOBILITY AUTHORITY. (a)
An authority is a body politic and corporate and a political
subdivision of this state.
(b) An authority is a governmental unit as that term is
defined in Section 101.001, Civil Practice and Remedies Code.
(c) The exercise by an authority of the powers conferred by
this chapter in the acquisition, design, financing, construction,
operation, and maintenance of a transportation project or system
is:
(1) in all respects for the benefit of the people of
the counties in which an authority operates and of the people of
this state, for the increase of their commerce and prosperity, and
for the improvement of their health, living conditions, and public
safety; and
(2) an essential governmental function of the state.
(d) The operations of an authority are governmental, not
proprietary, functions.
Sec. 370.033. GENERAL POWERS. (a) An authority, through
its board, may:
(1) adopt rules for the regulation of its affairs and
the conduct of its business;
(2) adopt an official seal;
(3) study, evaluate, design, finance, acquire,
construct, maintain, repair, and operate transportation projects,
individually or as one or more systems, provided that a
transportation project that is subject to Subpart C, 23 C.F.R. Part
450, is:
(A) included in the plan approved by the
applicable metropolitan planning organization; and
(B) consistent with the statewide transportation
plan and the statewide transportation improvement plan;
(4) acquire, hold, and dispose of property in the
exercise of its powers and the performance of its duties under this
chapter;
(5) enter into contracts or operating agreements with
a similar authority, another governmental entity, or an agency of
the United States, a state of the United States, the United Mexican
States, or a state of the United Mexican States;
(6) enter into contracts or agreements necessary or
incidental to its powers and duties under this chapter;
(7) cooperate and work directly with property owners
and governmental entities and officials to support an activity
required to promote or develop a transportation project;
(8) employ and set the compensation and benefits of
administrators, consulting engineers, attorneys, accountants,
construction and financial experts, superintendents, managers,
full-time and part-time employees, agents, consultants, and other
persons as the authority considers necessary or useful;
(9) notwithstanding Sections 221.003 and 222.031 and
subject to Subsection (j), apply for, directly or indirectly
receive and spend loans, gifts, grants, and other contributions for
any purpose of this chapter, including the construction of a
transportation project, and receive and spend contributions of
money, property, labor, or other things of value from any source,
including the United States, a state of the United States, the
United Mexican States, a state of the United Mexican States, the
commission, the department, a subdivision of this state, or a
governmental entity or private entity, to be used for the purposes
for which the grants, loans, or contributions are made, and enter
into any agreement necessary for the grants, loans, or
contributions;
(10) install, construct, maintain, repair, renew,
relocate, and remove public utility facilities in, on, along, over,
or under a transportation project;
(11) organize a corporation under Chapter 431 for the
promotion and development of transportation projects;
(12) adopt and enforce rules not inconsistent with
this chapter for the use of any transportation project, including
tolls, fares, or other user fees, speed and weight limits, and
traffic and other public safety rules;
(13) enter into leases, operating agreements, service
agreements, licenses, franchises, and similar agreements with a
public or private party governing the party's use of all or any
portion of a transportation project and the rights and obligations
of the authority with respect to a transportation project;
(14) borrow money from or enter into a loan agreement
or other arrangement with the state infrastructure bank; and
(15) do all things necessary or appropriate to carry
out the powers and duties expressly granted or imposed by this
chapter.
(b) Except as provided by this subsection, property that is
a part of a transportation project of an authority is not subject to
condemnation or the exercise of the power of eminent domain by any
person, including a governmental entity. The department may
condemn property that is a part of a transportation project of an
authority if the property is needed for the construction,
reconstruction, or expansion of a state highway or rail facility.
(c) An authority may, if requested by the commission,
perform any function not specified by this chapter to promote or
develop a transportation project in this state.
(d) An authority may sue and be sued and plead and be
impleaded in its own name.
(e) An authority may rent, lease, franchise, license, or
make portions of its properties available for use by others in
furtherance of its powers under this chapter by increasing the
feasibility or the revenue of a transportation project.
(f) An authority and a governmental entity may enter into a
contract, agreement, interlocal agreement, or other similar
arrangement under which the authority may plan, design, construct,
or operate a transportation project on behalf of the governmental
entity. An authority may enter into a contract with the department
under which the authority will plan, develop, operate, or maintain
a transportation project on behalf of the department.
(g) Payments to be made to an authority under a contract
described by Subsection (f) constitute operating expenses of the
transportation project or system that is to be operated under the
contract. The contract may extend for the number of years as agreed
to by the parties.
(h) An authority shall adopt a written drug and alcohol
policy restricting the use of controlled substances by officers and
employees of the authority, prohibiting the consumption of
alcoholic beverages by employees while on duty, and prohibiting
employees from working for the authority while under the influence
of a controlled substance or alcohol. An authority may adopt
policies regarding the testing of employees suspected of being in
violation of the authority's drug and alcohol policy. The policy
shall provide that, unless required by court order or permitted by
the person who is the subject of the testing, the authority shall
keep the results of the test confidential.
(i) An authority shall adopt written procedures governing
its procurement of goods and services that are consistent with
general laws applicable to the authority.
(j) An authority may not apply for federal highway or rail
funds without the approval of the department.
(k) The authority granted to an authority under Subsection
(a)(10) does not include the authority to operate a public utility
facility that provides retail public utility service.
(l) If an authority establishes an airport in Central Texas,
the authority may not establish the airport at a location
prohibited to the department by Section 21.069(c).
Sec. 370.034. ESTABLISHMENT OF TRANSPORTATION SYSTEMS. (a)
If an authority determines that the traffic needs of the counties in
which it operates and the traffic needs of the surrounding region
could be most efficiently and economically met by jointly operating
two or more transportation projects as one operational and
financial enterprise, it may create a system made up of those
transportation projects. An authority may create more than one
system and may combine two or more systems into one system. An
authority may finance, acquire, construct, and operate additional
transportation projects as additions to or expansions of a system
if the authority determines that the transportation project could
most efficiently and economically be acquired or constructed 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
transportation project that is not a part of the system or with the
revenue of another system.
Sec. 370.035. CONVERSION AND TRANSFER OF STATE HIGHWAY
SYSTEM PROJECTS. (a) The commission by order may convert a segment
of the free state highway system to a turnpike project and transfer
that segment to an authority, or may transfer an existing turnpike
project that is part of the state highway system, whether
previously tolled or not, to an authority if:
(1) the commission determines that the proposed
transfer is an integral part of the region's overall plan to improve
mobility in the region;
(2) the commission determines that the public has a
reasonable alternative route on nontoll roads; and
(3) the authority agrees to assume all liability and
responsibility for the maintenance and operation of the turnpike
project on its transfer.
(b) An authority shall reimburse the commission for the cost
of a transferred turnpike project unless the commission determines
that the transfer will result in a substantial net benefit to the
state, the department, and the traveling public that equals or
exceeds that cost.
(c) In computing the cost of the turnpike project, the
commission shall:
(1) include the total amount spent by the department
for the original construction of the turnpike project, including
the costs associated with the preliminary engineering and design
engineering for plans, specifications, and estimates, the
acquisition of necessary rights-of-way, and actual construction of
the turnpike project and all necessary appurtenant facilities; and
(2) consider the anticipated future costs of
expanding, improving, maintaining, operating, or extending the
turnpike project to be incurred by the authority and not by the
department if the turnpike project is transferred.
(d) The commission may, at the time a turnpike project is
transferred, remove the turnpike project from the state highway
system. After a transfer, the commission has no liability,
responsibility, or duty for the maintenance or operation of the
turnpike project.
(e) Before transferring a turnpike project that is part of
the state highway system under this section, the commission shall
conduct a public hearing at which interested persons shall be
allowed to speak on the proposed transfer. Notice of the hearing
must be published in the Texas Register, one or more newspapers of
general circulation in the counties in which the turnpike project
is located, and a newspaper, if any, published in the counties of
the applicable authority.
(f) The commission shall adopt rules to implement this
section. The rules shall include criteria and guidelines for the
approval of a transfer of a turnpike project.
(g) An authority shall adopt rules providing criteria and
guidelines for approval of the transfer of a turnpike project under
this section.
(h) The commission may not transfer the Queen Isabella
Causeway in Cameron County to an authority under this section.
Sec. 370.036. TRANSFER OF BONDED TURNPIKE PROJECT TO
DEPARTMENT. (a) An authority may transfer to the department a
turnpike project of the authority that has outstanding bonded
indebtedness if the commission:
(1) agrees to the transfer; and
(2) agrees to assume the outstanding bonded
indebtedness.
(b) The commission may assume the outstanding bonded
indebtedness only if the assumption:
(1) is not prohibited under the terms of an existing
trust agreement or indenture securing bonds or other obligations
issued by the commission for another project;
(2) does not prevent the commission from complying
with covenants of the commission under an existing trust agreement
or indenture; and
(3) does not cause a rating agency maintaining a
rating on outstanding obligations of the commission to lower the
existing rating.
(c) If the commission agrees to the transfer under
Subsection (a), the authority shall convey the turnpike project and
any real property acquired to construct or operate the turnpike
project to the department.
(d) At the time of a conveyance under this section, the
commission shall designate the turnpike project as part of the
state highway system. After the designation, the authority has no
liability, responsibility, or duty to maintain or operate the
transferred turnpike project.
Sec. 370.037. TRANSFER OF FERRY CONNECTING STATE HIGHWAYS.
(a) The commission by order may transfer a ferry operated under
Section 342.001 to an authority if:
(1) the commission determines that the proposed
transfer is an integral part of the region's overall plan to improve
mobility in the region; and
(2) the authority:
(A) agrees to the transfer; and
(B) agrees to assume all liability and
responsibility for the maintenance and operation of the ferry on
its transfer.
(b) An authority shall reimburse the commission for the cost
of a transferred ferry unless the commission determines that the
transfer will result in a substantial net benefit to the state, the
department, and the traveling public that equals or exceeds that
cost.
(c) In computing the cost of the ferry, the commission
shall:
(1) include the total amount spent by the department
for the original construction of the ferry, including the costs
associated with the preliminary engineering and design engineering
for plans, specifications, and estimates, the acquisition of
necessary rights-of-way, and actual construction of the ferry and
all necessary appurtenant facilities; and
(2) consider the anticipated future costs of
expanding, improving, maintaining, or operating the ferry to be
incurred by the authority and not by the department if the ferry is
transferred.
(d) The commission shall, at the time the ferry is
transferred, remove the ferry from the state highway system. After
a transfer, the commission has no liability, responsibility, or
duty for the maintenance or operation of the ferry.
(e) Before transferring a ferry that is a part of the state
highway system under this section, the commission shall conduct a
public hearing at which interested persons shall be allowed to
speak on the proposed transfer. Notice of the hearing must be
published in the Texas Register, one or more newspapers of general
circulation in the counties in which the ferry is located, and a
newspaper, if any, published in the counties of the applicable
authority.
(f) The commission shall adopt rules to implement this
section. The rules must include criteria and guidelines for the
approval of a transfer of a ferry.
(g) An authority shall adopt rules establishing criteria
and guidelines for approval of the transfer of a ferry under this
section.
(h) An authority may temporarily charge a toll for use of a
ferry transferred under this section to pay the costs necessary for
an expansion of the ferry. An authority may permanently charge a
toll for use of ferry facilities that are an expansion of the ferry
transferred under this section.
Sec. 370.038. COMMISSION RULES. (a) The commission shall
adopt rules that:
(1) govern the creation of an authority;
(2) govern the commission's approval of a project
under Section 370.188 and other commission approvals required by
this chapter;
(3) establish design and construction standards for a
transportation project that will connect with a highway in the
state highway system or a department rail facility;
(4) establish minimum audit and reporting
requirements and standards;
(5) establish minimum ethical standards for authority
directors and employees; and
(6) govern the authority of an authority to contract
with the United Mexican States or a state of the United Mexican
States.
(b) The commission shall appoint a rules advisory committee
to advise the department and the commission on the development of
the commission's initial rules required by this section. The
committee must include one or more members representing an existing
authority, if applicable. Chapter 2110, Government Code, does not
apply to the committee. This subsection expires on the date the
commission adopts initial rules under this section.
[Sections 370.039-370.070 reserved for expansion]
SUBCHAPTER C. FEASIBILITY OF REGIONAL TRANSPORTATION PROJECTS
Sec. 370.071. EXPENDITURES FOR FEASIBILITY STUDIES. (a)
An authority may pay the expenses of studying the cost and
feasibility and any other expenses relating to the preparation and
issuance of bonds for a proposed transportation project by:
(1) using legally available revenue derived from an
existing transportation project;
(2) borrowing money and issuing bonds or entering into
a loan agreement payable out of legally available revenue
anticipated to be derived from the operation of an existing
transportation project; or
(3) pledging to the payment of the bonds or a loan
agreement legally available revenue anticipated to be derived from
the operation of transportation projects or revenue legally
available to the authority from another source.
(b) Money spent under this section for a proposed
transportation project must be reimbursed to the transportation
project from which the money was spent from the proceeds of bonds
issued for the acquisition and construction of the proposed
transportation project.
(c) The use of any money of a transportation project to
study the feasibility of another transportation project or used to
repay any money used for that purpose does not constitute an
operating expense of the transportation project producing the
revenue and may be paid only from the surplus money of the
transportation project as determined by the authority.
Sec. 370.072. FEASIBILITY STUDY FUND. (a) An authority may
maintain a feasibility study fund. The fund is a revolving fund
held in trust by a banking institution chosen by the authority and
shall be kept separate from the money for a transportation project.
(b) An authority may transfer an amount from a surplus fund
established for a transportation project to the authority's
feasibility study fund if the remainder of the surplus fund after
the transfer is not less than any minimum amount required by the
bond proceedings to be retained for that transportation project.
(c) Money in the feasibility study fund may be used only to
pay the expenses of studying the cost and feasibility and any other
expenses relating to:
(1) the preparation and issuance of bonds for the
acquisition and construction of a proposed transportation project;
(2) the financing of the improvement, extension, or
expansion of an existing transportation project; and
(3) private participation, as authorized by law, in
the financing of a proposed transportation project, the refinancing
of an existing transportation project or system, or the
improvement, extension, or expansion of a transportation project.
(d) Money spent under Subsection (c) for a proposed
transportation project must be reimbursed from the proceeds of
revenue bonds issued for, or other proceeds that may be used for,
the acquisition, construction, improvement, extension, expansion,
or operation of the transportation project.
(e) For a purpose described by Subsection (c), an authority
may borrow money and issue promissory notes or other
interest-bearing evidences of indebtedness payable out of its
feasibility study fund, pledging money in the fund or to be placed
in the fund.
Sec. 370.073. FEASIBILITY STUDY BY MUNICIPALITY, COUNTY,
OTHER GOVERNMENTAL ENTITY, OR PRIVATE GROUP. (a) One or more
municipalities, counties, or other governmental entities, a
combination of municipalities, counties, and other governmental
entities, or a private group or combination of individuals in this
state may pay all or part of the expenses of studying the cost and
feasibility and any other expenses relating to:
(1) the preparation and issuance of bonds for the
acquisition or construction of a proposed transportation project by
an authority;
(2) the improvement, extension, or expansion of an
existing transportation project of the authority; or
(3) the use of private participation under applicable
law in connection with the acquisition, construction, improvement,
expansion, extension, maintenance, repair, or operation of a
transportation project by an authority.
(b) Money spent under Subsection (a) for a proposed
transportation project is reimbursable without interest and with
the consent of the authority to the person paying the expenses
described in Subsection (a) out of the proceeds from revenue bonds
issued for or other proceeds that may be used for the acquisition,
construction, improvement, extension, expansion, maintenance,
repair, or operation of the transportation project.
[Sections 370.074-370.110 reserved for expansion]
SUBCHAPTER D. TRANSPORTATION PROJECT FINANCING
Sec. 370.111. TRANSPORTATION REVENUE BONDS. (a) An
authority, by bond resolution, may authorize the issuance of bonds
to pay all or part of the cost of a transportation project, to
refund any bonds previously issued for the transportation project,
or to pay for all or part of the cost of a transportation project
that will become a part of another system.
(b) As determined in the bond resolution, the bonds of each
issue shall:
(1) be dated;
(2) bear interest at the rate or rates provided by the
bond resolution and beginning on the dates provided by the bond
resolution and as authorized by law, or bear no interest;
(3) mature at the time or times provided by the bond
resolution, not exceeding 40 years from their date or dates; and
(4) be made redeemable before maturity at the price or
prices and under the terms provided by the bond resolution.
(c) An authority may sell the bonds at public or private
sale in the manner and for the price it determines to be in the best
interest of the authority.
(d) The proceeds of each bond issue shall be disbursed in
the manner and under any restrictions provided in the bond
resolution.
(e) Additional bonds may be issued in the same manner to pay
the costs of a transportation project. Unless otherwise provided
in the bond resolution, the additional bonds shall be on a parity,
without preference or priority, with bonds previously issued and
payable from the revenue of the transportation project. In
addition, an authority may issue bonds for a transportation project
secured by a lien on the revenue of the transportation project
subordinate to the lien on the revenue securing other bonds issued
for the transportation project.
(f) If the proceeds of a bond issue exceed the cost of the
transportation project for which the bonds were issued, the surplus
shall be segregated from the other money of the authority and used
only for the purposes specified in the bond resolution.
(g) Bonds issued and delivered under this chapter and
interest coupons on the bonds are a security under Chapter 8,
Business & Commerce Code.
(h) Bonds issued under this chapter and income from the
bonds, including any profit made on the sale or transfer of the
bonds, are exempt from taxation in this state.
(i) Bonds issued under this chapter shall be considered
authorized investments under Chapter 2256, Government Code, for
this state, any governmental entity, and any other public entity
proposing to invest in the bonds.
Sec. 370.112. INTERIM BONDS. (a) An authority may, before
issuing definitive bonds, issue interim bonds, with or without
coupons, exchangeable for definitive bonds.
(b) The interim bonds may be authorized and issued in
accordance with this chapter, without regard to a requirement,
restriction, or procedural provision in any other law.
(c) A bond resolution authorizing interim bonds may provide
that the interim bonds recite that the bonds are issued under this
chapter. The recital is conclusive evidence of the validity and the
regularity of the bonds' issuance.
Sec. 370.113. PAYMENT OF BONDS; STATE AND COUNTY CREDIT.
(a) The principal of, interest on, and any redemption premium on
bonds issued by an authority are payable solely from:
(1) the revenue of the transportation project for
which the bonds are issued;
(2) payments made under an agreement with the
commission, the department, or other governmental entity as
provided by Subchapter G;
(3) money derived from any other source available to
the authority, other than money derived from a transportation
project that is not part of the same system or money derived from a
different system, except to the extent that the surplus revenue of a
transportation project or system has been pledged for that purpose;
and
(4) amounts received under a credit agreement relating
to the transportation project for which the bonds are issued.
(b) Bonds issued under this chapter do not constitute a debt
of this state or of a governmental entity, or a pledge of the faith
and credit of this state or of a governmental entity. Each bond
must contain on its face a statement to the effect that the state,
the authority, or any governmental entity 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 and taxing power of this state or of
any governmental entity are pledged to the payment of the principal
of or interest on the bond. This subsection does not apply to a
governmental entity that has entered into an agreement under
Section 370.303.
(c) An authority may not incur a financial obligation that
cannot be paid from revenue derived from owning or operating the
authority's transportation projects or from other revenue provided
by law.
Sec. 370.114. EFFECT OF LIEN. (a) A lien on or a pledge of
revenue from a transportation project under this chapter or on a
reserve, replacement, or other fund established in connection with
a bond issued under this chapter:
(1) is enforceable at the time of payment for and
delivery of the bond;
(2) applies to each item on hand or subsequently
received;
(3) applies without physical delivery of an item or
other act; and
(4) is enforceable against any person having a claim,
in tort, contract, or other remedy, against the applicable
authority without regard to whether the person has notice of the
lien or pledge.
(b) A bond resolution is not required to be recorded except
in the regular records of the authority.
Sec. 370.115. BOND INDENTURE. (a) Bonds issued by an
authority under this chapter may be secured by a bond indenture
between the authority and a corporate trustee that is a trust
company or a bank that has the powers of a trust company.
(b) A bond indenture may pledge or assign the revenues to be
received but may not convey or mortgage any part of a transportation
project.
(c) A bond indenture may:
(1) set forth the rights and remedies of the
bondholders and the trustee;
(2) restrict the individual right of action by
bondholders as is customary in trust agreements or indentures of
trust securing corporate bonds and debentures; and
(3) contain provisions the authority determines
reasonable and proper for the security of the bondholders,
including covenants:
(A) establishing the authority's duties relating
to:
(i) the acquisition of property;
(ii) the construction, maintenance,
operation, and repair of and insurance for a transportation
project; and
(iii) custody, safeguarding, and
application of money;
(B) prescribing events that constitute default;
(C) prescribing terms on which any or all of the
bonds become or may be declared due before maturity; and
(D) relating to the rights, powers, liabilities,
or duties that arise on the breach of a duty of the authority.
(d) An expense incurred in carrying out a trust agreement
may be treated as part of the cost of operating the transportation
project.
(e) In addition to all other rights by mandamus or other
court proceeding, an owner or trustee of a bond issued under this
chapter may enforce the owner's rights against an issuing
authority, the authority's employees, the authority's board, or an
agent or employee of the authority's board and is entitled to:
(1) require the authority or the board to impose and
collect tolls, fares, fees, charges, and other revenue sufficient
to carry out any agreement contained in the bond proceedings; and
(2) apply for and obtain the appointment of a receiver
for the transportation project or system.
Sec. 370.116. APPROVAL OF BONDS BY ATTORNEY GENERAL. (a)
An authority shall submit to the attorney general for examination
the record of proceedings relating to bonds authorized under this
chapter. The record shall include the bond proceedings and any
contract securing or providing revenue for the payment of the
bonds.
(b) If the attorney general determines that the bonds, the
bond proceedings, and any supporting contract are authorized by
law, the attorney general shall approve the bonds and deliver to the
comptroller:
(1) a copy of the legal opinion of the attorney general
stating the approval; and
(2) the record of proceedings relating to the
authorization of the bonds.
(c) On receipt of the legal opinion of the attorney general
and the record of proceedings relating to the authorization of the
bonds, the comptroller shall register the record of proceedings.
(d) After approval by the attorney general, the bonds, the
bond proceedings, and any supporting contract are valid,
enforceable, and incontestable in any court or other forum for any
reason and are binding obligations according to their terms for all
purposes.
Sec. 370.117. FURNISHING OF INDEMNIFYING BONDS OR PLEDGES
OF SECURITIES. (a) A bank or trust company incorporated under the
laws of this state that acts as depository of the proceeds of bonds
or of revenue may furnish indemnifying bonds or pledge securities
that an authority requires.
(b) Bonds of an authority may secure the deposit of public
money of this state or a political subdivision of this state to the
extent of the lesser of the face value of the bonds or their market
value.
Sec. 370.118. APPLICABILITY OF OTHER LAW; CONFLICTS. All
laws affecting the issuance of bonds by local governmental
entities, including Chapters 1201, 1202, 1204, and 1371, Government
Code, apply to bonds issued under this chapter. To the extent of a
conflict between those laws and this chapter, the provisions of
this chapter prevail.
[Sections 370.119-370.160 reserved for expansion]
SUBCHAPTER E. ACQUISITION, CONSTRUCTION, AND OPERATION OF
TRANSPORTATION PROJECTS
Sec. 370.161. TRANSPORTATION PROJECTS EXTENDING INTO OTHER
COUNTIES. (a) An authority may acquire, construct, operate,
maintain, expand, or extend a transportation project only in:
(1) a county that is a part of the authority; or
(2) a county that is not a part of the authority if:
(A) the transportation project in that county is
a continuation of a transportation project of the authority
extending from a county adjacent to that county;
(B) the county is given an opportunity to become
part of the authority on terms and conditions acceptable to the
authority and that county; and
(C) the commissioners court of the county agrees
to the proposed acquisition, construction, operation, maintenance,
expansion, or extension of the transportation project in that
county.
(b) An authority, under an agreement with another
governmental entity, may construct, operate, maintain, expand, or
extend a transportation project in a county that is not part of the
authority and is not owned by the authority.
Sec. 370.162. POWERS AND PROCEDURES OF AUTHORITY IN
ACQUIRING PROPERTY. (a) An authority may construct or improve a
transportation project on real property, including a right-of-way
acquired by the authority or provided to the authority for that
purpose by the commission, a political subdivision of this state,
or any other governmental entity.
(b) Except as provided by this chapter, an authority has the
same powers and may use the same procedures as the commission in
acquiring property.
Sec. 370.163. ACQUISITION OF PROPERTY. (a) An authority
may acquire in the name of the authority public or private property
it determines necessary or convenient for the construction,
operation, maintenance, expansion, or extension of a
transportation project or for otherwise carrying out this chapter
only if the primary purpose of an acquisition is the furtherance of
a transportation project.
(b) The property an authority may acquire under this
subchapter includes all or any portion of, and rights in and to:
(1) public or private land, streets, alleys,
rights-of-way, parks, playgrounds, and reservations;
(2) franchises;
(3) easements;
(4) licenses; and
(5) other interests in real and other property.
(c) An authority may acquire real property by any method,
including purchase and condemnation. An authority may purchase
public or private real property on the terms and at the price the
authority and the property owner consider reasonable.
(d) Covenants, conditions, restrictions, or limitations
affecting property acquired in any manner by the authority are not
binding against the authority and do not impair the authority's
ability to use the property for a purpose authorized by this
chapter. The beneficiaries of the covenants, conditions,
restrictions, or limitations may not enjoin the authority from
using the property for a purpose authorized under this chapter, but
this section does not affect the right of a person to seek
compensation for damages to the person's property under Section 17,
Article I, Texas Constitution.
(e) Subsection (d) does not affect the obligation of the
authority under other state law to compensate this state for
acquiring or using property owned by or on behalf of the state.
Sec. 370.164. RIGHT OF ENTRY. (a) To acquire property
necessary or useful in connection with a transportation project, an
authority may, on or after the fourth day after the date the
authority gives notice to the owner of the real property, water, or
premises, enter any real property, water, or premises to make a
survey, geotechnical evaluation, sounding, or examination.
(b) To ensure the safety and convenience of the public, an
authority shall, when entering any real property, water, or
premises on which is located a public utility facility:
(1) comply with applicable industry standard safety
codes and practices; and
(2) notwithstanding Subsection (a), give the owner or
operator of the facility not less than 10 days' notice before
entering the real property, water, or premises.
(c) An entry under Subsection (a) or (b) is not:
(1) a trespass; or
(2) an entry under a pending condemnation proceeding.
(d) The authority shall make reimbursements for any actual
damages to real property, water, or premises that result from an
activity described by Subsection (a) or (b).
Sec. 370.165. CONDEMNATION OF REAL PROPERTY. (a) Subject
to Subsection (c), an authority may acquire public or private real
property in the name of the authority by the exercise of the power
of condemnation under the laws applicable to the exercise of that
power on property for public use if:
(1) the authority and the property owner cannot agree
on a reasonable price for the property; or
(2) the property owner is legally incapacitated,
absent, unknown, or unable to convey title.
(b) An authority may condemn real property that the
authority determines is:
(1) necessary or appropriate to construct or to
efficiently operate a transportation project;
(2) necessary to restore public or private property
damaged or destroyed, including property necessary or convenient to
mitigate an environmental effect that directly results from the
construction, operation, or maintenance of a transportation
project;
(3) necessary for access, approach, or interchange
roads;
(4) necessary to provide proper drainage or ground
slope for a transportation project; or
(5) otherwise necessary to implement this chapter.
(c) An authority may construct a supplemental facility only
on real property the authority purchases.
(d) An authority's acquisition of any property of the
commission under this section or any other section of this chapter
or an authority's relocation, rerouting, disruption, or alteration
of any facility of the commission is considered a conversion of a
state highway under Section 370.035 and is subject to each
requirement or approval of a conversion under that section.
(e) The authority granted under this section does not
include the authority to condemn a bridge connecting this state to
the United Mexican States that is owned by a county or municipality.
Sec. 370.166. DECLARATION OF TAKING. (a) An authority may
file a declaration of taking with the clerk of the court:
(1) in which the authority files a condemnation
petition under Chapter 21, Property Code; or
(2) to which the case is assigned.
(b) An authority may file the declaration of taking
concurrently with or subsequent to the filing of the condemnation
petition but may not file the declaration after the special
commissioners have made an award in the condemnation proceeding.
(c) The declaration of taking must include:
(1) a specific reference to the legislative authority
for the condemnation;
(2) a description and plot plan of the real property to
be condemned, including the following information if applicable:
(A) the municipality in which the property is
located;
(B) the street address of the property; and
(C) the lot and block number of the property;
(3) a statement of the property interest to be
condemned;
(4) the name and address of each property owner that
the authority can obtain after reasonable investigation and a
description of that owner's interest in the property; and
(5) a statement that immediate possession of all or
part of the property to be condemned is necessary for the timely
construction of a transportation project.
(d) A deposit to the registry of the court of an amount equal
to the fair market value, as determined by the authority, of the
property to be condemned and any damages to the remainder must
accompany the declaration of taking.
(e) Instead of the deposit under Subsection (d), at its
option, the authority may, concurrently with the declaration of a
taking, tender in favor of the owner of the property a bond or other
security in an amount sufficient to secure the owner for the value
of the property taken and damages to remaining property, if the
authority obtains the court's approval.
(f) The date on which the declaration is filed is the date of
taking for the purpose of assessing the value of the property taken
and damages to any remaining property to which an owner is entitled.
(g) An owner may draw upon the deposit held by the court
under Subsection (d) on the same terms and conditions as are
applicable under state law to a property owner's withdrawal of a
commissioners' award deposited under Section 21.021(a)(1),
Property Code.
(h) A property owner who is a defendant in an eminent domain
action filed by an authority under this chapter has 20 days after
the date of service of process of both a condemnation petition and a
notice of declaration of taking to give notice to the court in which
the action is pending of the property owner's preference that the
condemnation petition be placed on the court's docket in the same
manner as other cases pending in the court. On receipt of timely
notice from the property owner, the court in which the action is
pending shall place the case on its docket in the same manner as
other cases pending in the court.
Sec. 370.167. POSSESSION OF PROPERTY. (a) Immediately on
the filing of a declaration of taking, an authority shall serve a
copy of the declaration on each person possessing an interest in the
condemned property by a method prescribed by Section 21.016(d),
Property Code. The authority shall file evidence of the service
with the clerk of the court. On filing of that evidence, the
authority may take possession of the property on the same terms as
if a commissioners hearing had been conducted, pending the
litigation.
(b) If the condemned property is a homestead or a portion of
a homestead as defined by Section 41.002, Property Code, an
authority may not take possession before the 31st day after the date
of service under Subsection (a).
(c) A property owner or tenant who refuses to vacate the
property or yield possession is subject to forcible entry and
detainer under Chapter 24, Property Code.
Sec. 370.168. SEVERANCE OF REAL PROPERTY. (a) If a
transportation project of an authority severs a property owner's
real property, the authority shall pay:
(1) the value of the property acquired; and
(2) the damages, if any, 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) At its option, an authority may negotiate for and
purchase the severed real property or any part of the severed real
property if the authority and the property owner agree on terms for
the purchase. An authority may sell and dispose of severed real
property that it determines is not necessary or useful to the
authority. Severed property must be appraised before being offered
for sale by the authority.
Sec. 370.169. ACQUISITION OF RIGHTS IN PUBLIC REAL
PROPERTY. (a) An authority may use real property, including
submerged land, streets, alleys, and easements, owned by this state
or a local government that the authority considers necessary for
the construction or operation of a transportation project.
(b) This state or a local government having charge of public
real property may consent to the use of the property for a
transportation project.
(c) Except as provided by Section 370.035, this state or a
local government may convey, grant, or lease to an authority real
property, including highways and other real property devoted to
public use and rights or easements in real property, that may be
necessary or convenient to accomplish a purpose of the authority,
including the construction or operation of a transportation
project. A conveyance, grant, or lease under this section may be
made without advertising, court order, or other action other than
the normal action of this state or local government necessary for a
conveyance, grant, or lease.
(d) This section does not deprive the School Land Board of
the power to execute a lease for the development of oil, gas, and
other minerals on state-owned real property adjoining a
transportation project or in tidewater limits. A lease may provide
for directional drilling from the adjoining property or tidewater
area.
(e) This section does not affect the obligation of the
authority under another law to compensate this state for acquiring
or using property owned by or on behalf of this state. An
authority's use of property owned by or on behalf of this state is
subject to any covenants, conditions, restrictions, or limitations
affecting that property.
Sec. 370.170. COMPENSATION FOR AND RESTORATION OF PUBLIC
PROPERTY. (a) Except as provided by Section 370.035 or 370.165(c),
an authority may not pay compensation for public real property,
parkways, streets, highways, alleys, or reservations it takes,
other than:
(1) a park, playground, or designated environmental
preserve;
(2) property owned by or on behalf of this state that
under law requires compensation to this state for the use or
acquisition of the property; or
(3) as provided by this chapter.
(b) Public property damaged in the exercise of a power
granted by this chapter shall be restored or repaired and placed in
its original condition as nearly as practicable.
(c) An authority has full easements and rights-of-way
through, across, under, and over any property owned by the state or
any local government that are necessary or convenient to construct,
acquire, or efficiently operate a transportation project or system
under this chapter. This subsection does not affect the obligation
of the authority under other law to compensate this state for the
use or acquisition of an easement or right-of-way on property owned
by or on behalf of this state. An authority's use of property owned
by or on behalf of this state is subject to any covenants,
conditions, restrictions, or limitations affecting that property.
Sec. 370.171. PUBLIC UTILITY FACILITIES. (a) An authority
may adopt rules for the installation, construction, operation,
maintenance, repair, renewal, relocation, or removal of a public
utility facility in, on, along, over, or under a transportation
project.
(b) If an authority determines it is necessary that a public
utility facility located in, on, along, over, or under a
transportation project be relocated in the transportation project,
removed from the transportation project, or carried along or across
the transportation project by grade separation, the owner or
operator of the facility shall relocate or remove the facility in
accordance with the requirements of the authority and in a manner
that does not impede the design, financing, construction,
operation, or maintenance of the transportation project.
(c) The authority, as a part of the cost of the
transportation project or the cost of operating the transportation
project, shall pay the cost of the relocation, removal, or grade
separation of a public utility facility under Subsection (a),
including the cost of:
(1) installation of the facility in a new location;
(2) damages incurred by the utility to its facilities
and services;
(3) interests in real property and other rights
acquired to accomplish the relocation or removal; and
(4) maintenance of grade separation structures.
(d) The authority may reduce the total costs to be paid by
the authority under Subsection (c) by 10 percent for each 30-day
period or portion of a 30-day period by which the relocation or
removal exceeds the reasonable limit specified by the authority
unless the failure of the owner or operator of the facility to
timely relocate or remove the facility results directly from:
(1) a material action or inaction of the authority; or
(2) conditions beyond the reasonable control of the
owner or operator of the facility, including:
(A) an act of God; or
(B) a labor shortage or strike.
(e) If an owner or operator of a public utility facility
does not timely relocate or remove the facility as required by
Subsection (b), the authority may do so at the expense of the owner
or operator. If the authority relocates or removes a facility under
this subsection the authority shall relocate or remove the facility
in a safe manner that:
(1) complies with applicable law; and
(2) attempts to minimize the disruption of utility
service.
(f) The owner or operator of a public utility facility
relocated or removed under Subsection (e) shall reimburse the
authority for the expenses incurred for the relocation or removal
of the facility, except that the owner or operator is not required
to reimburse the authority if the failure of the owner or operator
to timely relocate or remove the facility was the direct result of
circumstances beyond the control of the owner or operator.
(g) Not later than 60 days before relocating or removing a
public utility facility under Subsection (e), an authority shall
provide to the utility:
(1) written notice of the department's determination
that the facility must be removed;
(2) a final plan for relocation of the facility; and
(3) reasonable terms and conditions for the relocation
or removal of the facility.
(h) Subchapter C, Chapter 181, Utilities Code, applies to
the erection, construction, maintenance, and operation of a line or
pole owned by an electric utility, as that term is defined by
Section 181.041, Utilities Code, over, under, across, on, and along
a transportation project or system constructed by an authority. An
authority has:
(1) the powers and duties delegated to the
commissioners court by that subchapter; and
(2) exclusive jurisdiction and control of utilities
located in its rights-of-way.
(i) Subchapter B, Chapter 181, Utilities Code, applies to
the laying and maintenance of facilities used for conducting gas by
a gas utility, as that term is defined by Section 181.021, Utilities
Code, through, under, along, across, and over a transportation
project or system constructed by an authority except as otherwise
provided by this section. An authority has:
(1) the power and duties delegated to the
commissioners court by that subchapter; and
(2) exclusive jurisdiction and control of utilities
located in its right-of-way.
(j) The laws of this state applicable to the use of public
roads, streets, and waters by a telephone or telegraph corporation
apply to the erection, construction, maintenance, location, and
operation of a line, pole, or other fixture by a telephone or
telegraph corporation over, under, across, on, and along a
transportation project constructed by an authority under this
chapter.
Sec. 370.172. LEASE, SALE, OR CONVEYANCE OF TRANSPORTATION
PROJECT. An authority may lease, sell, or convey in any other
manner a transportation project to a governmental entity with the
approval of the governing body of the governmental entity to which
the project is transferred.
Sec. 370.173. REVENUE. (a) An authority may:
(1) impose tolls, fees, fares, or other charges for
the use of each of its transportation projects and the different
parts or sections of each of its transportation projects; and
(2) contract with a person for the use of part of a
transportation project, or lease or sell part of a transportation
project, including the right-of-way adjoining the portion used to
transport people and property, for any purpose, including placing
on the adjoining right-of-way a gas station, garage, store, hotel,
restaurant, parking facility, railroad track, billboard, livestock
pasturage, telephone line or facility, telecommunication line or
facility, data transmission line or facility, or electric line or
facility, under terms set by the authority.
(b) Tolls, fees, fares, or other charges must be set at
rates or amounts so that the aggregate of tolls, fees, fares, or
other charges from an authority's transportation project, together
with other revenue of the transportation project:
(1) provides revenue sufficient to pay:
(A) the cost of maintaining, repairing, and
operating the transportation project; and
(B) the principal of and interest on any bonds
issued for the transportation project as those bonds become due and
payable; and
(2) creates reserves for a purpose listed under
Subdivision (1).
(c) Tolls, fees, fares, or other usage charges are not
subject to supervision or regulation by any agency of this state or
another governmental entity.
(d) Revenue derived from tolls, fees, and fares, and other
revenue derived from a transportation project for which bonds are
issued, other than any part necessary to pay the cost of
maintenance, repair, and operation and to provide reserves for
those costs as provided in the bond proceedings, shall be set aside
at regular intervals as provided in the bond resolution or trust
agreement in a sinking fund that is pledged to and charged with the
payment of:
(1) interest on the bonds as it becomes due;
(2) principal of the bonds as it becomes due;
(3) necessary charges of paying agents for paying
principal and interest;
(4) the redemption price or the purchase price of
bonds retired by call or purchase as provided in the bond
proceedings; and
(5) any amounts due under credit agreements.
(e) Use and disposition of money deposited to the credit of
the sinking fund is subject to the bond proceedings.
(f) To the extent permitted under the applicable bond
proceedings, revenue from one transportation project of an
authority may be used to pay the cost of another transportation
project of the authority.
(g) An authority may not use revenue from a transportation
project in a manner not authorized by this chapter. Except as
provided by this chapter, revenue derived from a transportation
project may not be applied for a purpose or to pay a cost other than
a cost or purpose that is reasonably related to or anticipated to be
for the benefit of a transportation project.
Sec. 370.174. AUTHORITY REVOLVING FUND. (a) An authority
may maintain a revolving fund to be held in trust by a banking
institution chosen by the authority separate from any other funds
and administered by the authority's board.
(b) An authority may transfer into its revolving fund money
from any permissible source, including:
(1) money from a transportation project if the
transfer does not diminish the money available for the project to
less than any amount required to be retained by the bond proceedings
pertaining to the project;
(2) money received by the authority from any source
and not otherwise committed, including money from the transfer of a
transportation project or system or sale of authority assets;
(3) money received from the state highway fund; and
(4) contributions, loans, grants, or assistance from
the United States, another state, another political subdivision of
this state, a foreign governmental entity, including the United
Mexican States or a state of the United Mexican States, a local
government, any private enterprise, or any person.
(c) The authority may use money in the revolving fund to:
(1) finance the acquisition, construction,
maintenance, or operation of a transportation project, including
the extension, expansion, or improvement of a transportation
project;
(2) provide matching money required in connection with
any federal, state, local, or private aid, grant, or other funding,
including aid or funding by or with public-private partnerships;
(3) provide credit enhancement either directly or
indirectly for bonds issued to acquire, construct, extend, expand,
or improve a transportation project;
(4) provide security for or payment of future or
existing debt for the design, acquisition, construction,
operation, maintenance, extension, expansion, or improvement of a
transportation project or system;
(5) borrow money and issue promissory notes or other
indebtedness payable out of the revolving fund for any purpose
authorized by this chapter; and
(6) provide for any other reasonable purpose that
assists in the financing of an authority as authorized by this
chapter.
(d) Money spent or advanced from the revolving fund for a
transportation project must be reimbursed from the money of that
transportation project. There must be a reasonable expectation of
repayment at the time the expenditure or advancement is authorized.
Sec. 370.175. USE OF SURPLUS REVENUE. (a) Each year, if an
authority determines that it has surplus revenue from
transportation projects, it shall reduce tolls, spend the surplus
revenue on other transportation projects in the counties of the
authority in accordance with Subsection (b), or deposit the surplus
revenue to the credit of the Texas Mobility Fund.
(b) Consistent with other law and commission rule, an
authority may spend surplus revenue on other transportation
projects by:
(1) constructing a transportation project located
within the counties of the authority;
(2) assisting in the financing of a toll or toll-free
transportation project of another governmental entity; or
(3) with the approval of the commission, constructing
a toll or toll-free transportation project and, on completion of
the project, transferring the project to another governmental
entity if:
(A) the other governmental entity authorizes the
authority to construct the project and agrees to assume all
liability and responsibility for the maintenance and operation of
the project on its transfer; and
(B) the project is constructed in compliance with
all laws applicable to the governmental entity.
Sec. 370.176. EXEMPTION FROM TAXATION OR ASSESSMENT. (a)
An authority is exempt from taxation of or assessments on:
(1) a transportation project or system;
(2) property the authority acquires or uses under this
chapter for a transportation project or system; or
(3) income from property described by Subdivision (1)
or (2).
(b) An authority is exempt from payment of development fees,
utility connection fees, assessments, and service fees imposed or
assessed by any governmental entity or any property owners' or
homeowners' association.
Sec. 370.177. ACTIONS AFFECTING EXISTING ROADS. (a) An
authority may impose a toll for transit over an existing free road,
street, or public highway transferred to the authority under this
chapter.
(b) An authority may construct a grade separation at an
intersection of a transportation project with a railroad or highway
and change the line or grade of a highway to accommodate the design
of the grade separation. The action may not affect a segment of the
state highway system without the department's consent. The
authority shall pay the cost of a grade separation and any damage
incurred in changing a line or grade of a railroad or highway as
part of the cost of the transportation project.
(c) If feasible, an authority shall provide access to
properties previously abutting a county road or other public road
that is taken for a transportation project and shall pay abutting
property owners the expenses or any resulting damages for a denial
of access to the road.
(d) If an authority changes the location of a segment of a
county road as part of its development of a transportation project,
the authority shall, on the request of the county, reconstruct that
segment of the road at a location that the authority determines, in
its discretion, restores the utility of the road. The
reconstruction and its associated costs are in furtherance of a
transportation project.
Sec. 370.178. FAILURE OR REFUSAL TO PAY TURNPIKE PROJECT
TOLL; OFFENSE; ADMINISTRATIVE PENALTY. (a) The operator of a
vehicle, other than an authorized emergency vehicle as defined by
Section 541.201, that is driven or towed through a toll collection
facility of a turnpike project shall pay the proper toll. The
operator of a vehicle who drives or tows a vehicle through a toll
collection facility and does not pay the proper toll commits an
offense. An offense under this subsection is a misdemeanor
punishable by a fine not to exceed $250.
(b) In the event of nonpayment of the proper toll as
required by Subsection (a), on issuance of a written notice of
nonpayment, the registered owner of the nonpaying vehicle is liable
for the payment of both the proper toll and an administrative fee.
(c) The authority may impose and collect the administrative
fee to recover the cost of collecting the unpaid toll, not to exceed
$100. The authority shall send a written notice of nonpayment to
the registered owner of the vehicle at that owner's address as shown
in the vehicle registration records of the department by first
class mail not later than the 30th day after the date of the alleged
failure to pay and may require payment not sooner than the 30th day
after the date the notice was mailed. The registered owner shall
pay a separate toll and administrative fee for each event of
nonpayment under Subsection (a).
(d) The registered owner of a vehicle for which the proper
toll was not paid who is mailed a written notice of nonpayment under
Subsection (c) and fails to pay the proper toll and administrative
fee within the time specified by the notice of nonpayment commits an
offense. Each failure to pay a toll or administrative fee under
this subsection is a separate offense.
(e) It is an exception to the application of Subsection (b)
or (d) that the registered owner of the vehicle is a lessor of the
vehicle and not later than the 30th day after the date the notice of
nonpayment is mailed provides to the authority a copy of the rental,
lease, or other contract document covering the vehicle on the date
of the nonpayment under Subsection (a), with the name and address of
the lessee clearly legible. If the lessor provides the required
information within the period prescribed, the authority may send a
notice of nonpayment to the lessee at the address shown on the
contract document by first class mail before the 30th day after the
date of receipt of the required information from the lessor. The
lessee of the vehicle for which the proper toll was not paid who is
mailed a written notice of nonpayment under this subsection and
fails to pay the proper toll and administrative fee within the time
specified by the notice of nonpayment commits an offense. The
lessee shall pay a separate toll and administrative fee for each
event of nonpayment. Each failure to pay a toll or administrative
fee under this subsection is a separate offense.
(f) It is an exception to the application of Subsection (b)
or (d) that the registered owner of the vehicle transferred
ownership of the vehicle to another person before the event of
nonpayment under Subsection (a) occurred, submitted written notice
of the transfer to the department in accordance with Section
520.023, and before the 30th day after the date the notice of
nonpayment is mailed, provides to the authority the name and
address of the person to whom the vehicle was transferred. If the
former owner of the vehicle provides the required information
within the period prescribed, the authority may send a notice of
nonpayment to the person to whom ownership of the vehicle was
transferred at the address provided by the former owner by first
class mail before the 30th day after the date of receipt of the
required information from the former owner. The subsequent owner
of the vehicle for which the proper toll was not paid who is mailed a
written notice of nonpayment under this subsection and fails to pay
the proper toll and administrative fee within the time specified by
the notice of nonpayment commits an offense. The subsequent owner
shall pay a separate toll and administrative fee for each event of
nonpayment under Subsection (a). Each failure to pay a toll or
administrative fee under this subsection is a separate offense.
(g) An offense under Subsection (d), (e), or (f) is a
misdemeanor punishable by a fine not to exceed $250.
(h) The court in which a person is convicted of an offense
under this section shall also collect the proper toll and
administrative fee and forward the toll and fee to the authority.
(i) In the prosecution of an offense under this section,
proof that the vehicle passed through a toll collection facility
without payment of the proper toll together with proof that the
defendant was the registered owner or the driver of the vehicle when
the failure to pay occurred, establishes the nonpayment of the
registered owner. The proof may be by testimony of a peace officer
or authority employee, video surveillance, or any other reasonable
evidence.
(j) It is a defense to prosecution under this section that
the motor vehicle in question was stolen before the failure to pay
the proper toll occurred and was not recovered by the time of the
failure to pay, but only if the theft was reported to the
appropriate law enforcement authority before the earlier of:
(1) the occurrence of the failure to pay; or
(2) eight hours after the discovery of the theft.
(k) In this section, "registered owner" means the owner of a
vehicle as shown on the vehicle registration records of the
department or the analogous department or agency of another state
or country.
Sec. 370.179. USE AND RETURN OF TRANSPONDERS. (a) For
purposes of this section, "transponder" means a device placed on or
within an automobile that is capable of transmitting or receiving
information used to assess or collect tolls. A transponder is
insufficiently funded if there is no money in the account for which
the transponder was issued.
(b) Any law enforcement or peace officer of an entity with
which an authority has contracted under Section 370.182(c) may
seize a stolen or insufficiently funded transponder and return it
to the authority that issued the transponder. An insufficiently
funded transponder may not be seized before the 30th day after the
date that an authority has sent a notice of delinquency to the
holder of the account.
(c) The following entities shall consider offering motor
vehicle operators the option of using a transponder to pay tolls
without stopping, to mitigate congestion at toll locations, to
enhance traffic flow, and to otherwise increase the efficiency of
operations:
(1) the authority;
(2) an entity to which a project authorized by this
chapter is transferred; or
(3) a third-party service provider under contract with
an entity described by Subdivision (1) or (2).
Sec. 370.180. CONTROLLED ACCESS TO TURNPIKE PROJECTS. (a)
An authority by order may designate a turnpike project or a portion
of a project as a controlled-access toll road.
(b) An authority by order may:
(1) prohibit the use of or access to or from a turnpike
project by a motor vehicle, bicycle, another classification or type
of vehicle, or a pedestrian;
(2) deny access to or from:
(A) a turnpike project;
(B) real property adjacent to a turnpike project;
or
(C) a street, road, alley, highway, or other
public or private way intersecting a turnpike project;
(3) designate locations on a turnpike project at which
access to or from the toll road is permitted;
(4) control, restrict, and determine the type and
extent of access permitted at a designated location of access to a
turnpike project; or
(5) erect appropriate protective devices to preserve
the utility, integrity, and use of a turnpike project.
(c) Denial of access to or from a segment of the state
highway system is subject to the approval of the commission.
Sec. 370.181. PROMOTION OF TRANSPORTATION PROJECT. An
authority may promote the use of a transportation project,
including a project that it operates on behalf of another entity, by
appropriate means, including advertising or marketing as the
authority determines appropriate.
Sec. 370.182. OPERATION OF TRANSPORTATION PROJECT. (a) An
authority shall operate a transportation project with employees of
the authority or by using services contracted under Subsection (b)
or (c).
(b) An authority may enter into an agreement with one or
more persons to provide, on terms and conditions approved by the
authority, personnel and services to design, construct, operate,
maintain, expand, enlarge, or extend the transportation project of
the authority.
(c) An authority may contract with any state or local
government for the services of peace officers of that agency.
Sec. 370.183. AUDIT. An authority shall have a certified
public accountant audit the authority's books and accounts at least
annually. The cost of the audit may be treated as part of the cost
of construction or operation of a transportation project.
Sec. 370.184. DISADVANTAGED BUSINESSES. (a) Consistent
with general law, an authority shall:
(1) set goals for the award of contracts to
disadvantaged businesses and attempt to meet the goals;
(2) attempt to identify disadvantaged businesses that
provide or have the potential to provide supplies, materials,
equipment, or services to the authority; and
(3) give disadvantaged businesses full access to the
authority's contract bidding process, inform the businesses about
the process, offer the businesses assistance concerning the
process, and identify barriers to the businesses' participation in
the process.
(b) This section does not exempt an authority from
competitive bidding requirements provided by other law.
Sec. 370.185. PROCUREMENT. An authority shall adopt rules
governing the award of contracts for goods and services.
Notwithstanding any other provision of state law, an authority may
procure goods and services, including materials, engineering,
design, construction, operations, maintenance, and other goods and
services, through any procedure authorized by this chapter.
Procurement of professional services is governed by Chapter 2254,
Government Code.
Sec. 370.186. COMPETITIVE BIDDING. A contract made by an
authority may be let by a competitive bidding procedure in which the
contract is awarded to the lowest responsible bidder that complies
with the authority's criteria.
Sec. 370.187. RESTRICTION ON LOCATION OF TURNPIKE PROJECTS.
An authority may not construct, maintain, or operate a turnpike
project in a county that, on November 6, 2001:
(1) was part of a regional tollway authority under
Chapter 366; or
(2) operated a turnpike project under Chapter 284.
Sec. 370.188. PROJECT APPROVAL. (a) An authority may not
begin construction of a transportation project that will connect to
the state highway system or to a department rail facility without
the approval of the commission.
(b) The commission by rule shall establish procedures and
criteria for an approval under this section. The rules must require
the commission to consider a request for project approval not later
than the 60th day after the date the department receives all
information reasonably necessary to review the request.
Sec. 370.189. ENVIRONMENTAL REVIEW OF AUTHORITY PROJECTS.
(a) An authority shall adopt rules for environmental review of a
transportation project that is not subject to review under the
National Environmental Policy Act (42 U.S.C. Section 4321 et seq.),
as amended. The rules must:
(1) specify the types of projects for which a public
hearing is required;
(2) establish procedures for public comment on the
environmental review, including a procedure for requesting a public
hearing on an environmental review for which a public hearing is not
required; and
(3) require:
(A) an evaluation of any direct or indirect
environmental effect of the project;
(B) an analysis of project alternatives; and
(C) a written report that briefly explains the
authority's review of the project and that specifies any mitigation
measures on environmental harm on which the project is conditioned.
(b) An environmental review of a project must be conducted
before the authority may approve the location or alignment of the
project.
(c) The authority shall consider the results of the
environmental review in executing its duties.
(d) The authority shall coordinate with the Texas
Commission on Environmental Quality and the Parks and Wildlife
Department in the preparation of an environmental review.
[Sections 370.190-370.250 reserved for expansion]
SUBCHAPTER F. GOVERNANCE
Sec. 370.251. BOARD OF DIRECTORS. (a) The governing body
of an authority is a board of directors consisting of
representatives of each county in which a transportation project of
the authority is located or is proposed to be located. The
commissioners court of each county that initially forms the
authority shall appoint at least two directors to the board.
Additional directors may be appointed to the board at the time of
initial formation by agreement of the counties creating the
authority to ensure fair representation of political subdivisions
in the counties of the authority that will be affected by a
transportation project of the authority, provided that the number
of directors must be an odd number. The commissioners court of a
county that is subsequently added to the authority shall appoint
one director to the board. The governor shall appoint one director
to the board who shall serve as the presiding officer of the board
and shall appoint an additional director to the board if an
appointment is necessary to maintain an odd number of directors on
the board.
(b) Unless the commissioners courts of the counties of the
authority unanimously agree otherwise, the commissioners court of
each county of an authority that contains an operating
transportation project of the authority shall appoint one
additional director.
(c) Directors serve staggered six-year terms, with the
terms of no more than one-third of the directors expiring on
February 1 of each odd-numbered year.
(d) One director appointed to the initial board of an
authority by the commissioners court of a county shall be
designated by the court to serve a term of two years and one
director designated to serve a term of four years. If one or more
directors are subsequently appointed to the board, the directors
other than the subsequent appointees shall determine the length of
the appointees' terms, to comply with Subsection (c).
(e) If a vacancy occurs on the board, the appointing
authority shall promptly appoint a successor to serve for the
unexpired portion of the term.
(f) All appointments to the board shall be made without
regard to race, color, disability, sex, religion, age, or national
origin.
(g) The following individuals are ineligible to serve as a
director:
(1) an elected official;
(2) a person who is not a resident of a county within
the geographic area of the authority;
(3) a department employee;
(4) an employee of a governmental entity any part of
which is located within the geographic boundaries of the authority;
and
(5) a person owning an interest in real property that
will be acquired for an authority project, if it is known at the
time of the person's proposed appointment that the property will be
acquired for the authority project.
(h) Each director has equal status and may vote.
(i) The vote of a majority attending a board meeting is
necessary for any action taken by the board. If a vacancy exists on
a board, the majority of directors serving on the board is a quorum.
(j) The commission may refuse to authorize the creation of
an authority if the commission determines that the proposed board
will not fairly represent political subdivisions in the counties of
the authority that will be affected by the creation of the
authority.
Sec. 370.2515. BOARD COMPOSITION PROPOSAL BY TURNPIKE
AUTHORITY. If a county in which a turnpike authority under Chapter
366 operates or a county owning or operating a toll project under
Chapter 284 is part of an authority, the turnpike authority or the
county may submit to the commission a proposed structure for the
board and a method of appointment to the board:
(1) at the creation of the authority if the county is a
county that initially forms an authority;
(2) when a new county is added to the authority; and
(3) when the county is initially added to the
authority.
Sec. 370.252. PROHIBITED CONDUCT FOR DIRECTORS AND
EMPLOYEES. (a) A director or employee of an authority may not:
(1) accept or solicit any gift, favor, or service
that:
(A) might reasonably influence the director or
employee in the discharge of an official duty; or
(B) the director or employee knows or should know
is being offered with the intent to influence the director's or
employee's official conduct;
(2) accept other employment or engage in a business or
professional activity that the director or employee might
reasonably expect would require or induce the director or employee
to disclose confidential information acquired by reason of the
official position;
(3) accept other employment or compensation that could
reasonably be expected to impair the director's or employee's
independence of judgment in the performance of the director's or
employee's official duties;
(4) make personal investments that could reasonably be
expected to create a substantial conflict between the director's or
employee's private interest and the interest of the authority;
(5) intentionally or knowingly solicit, accept, or
agree to accept any benefit for having exercised the director's or
employee's official powers or performed the director's or
employee's official duties in favor of another; or
(6) have a personal interest in an agreement executed
by the authority.
(b) A person is not eligible to serve as a director or chief
administrative officer of an authority if the person or the
person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization, other than a
governmental entity, that is regulated by or receives funds from
the authority or the department;
(2) directly or indirectly owns or controls more than
a 10 percent interest in a business or other organization that is
regulated by or receives funds from the authority or the
department;
(3) uses or receives a substantial amount of tangible
goods, services, or funds from the authority or the department; or
(4) is required to register as a lobbyist under
Chapter 305, Government Code, because of the person's activities
for compensation on behalf of a profession related to the operation
of the authority or the department.
(c) A person is not eligible to serve as a director or chief
administrative officer of an authority if the person is an officer,
employee, or paid consultant of a Texas trade association in the
field of road construction or maintenance, public transportation,
or aviation, or if the person's spouse is an officer, manager, or
paid consultant of a Texas trade association in the field of road
construction or maintenance, public transportation, or aviation.
(d) In this section, "Texas trade association" means a
nonprofit, cooperative, and voluntarily joined association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interests.
(e) A person is not ineligible to serve as a director or
chief administrative officer of an authority if the person has
received funds from the department for acquisition of highway
right-of-way unless the acquisition was for a project of the
authority.
Sec. 370.253. SURETY BONDS. (a) Before beginning a term,
each director shall execute a surety bond in the amount of $25,000,
and the secretary and treasurer shall execute a surety bond in the
amount of $50,000.
(b) Each surety bond must be:
(1) conditioned on the faithful performance of the
duties of office;
(2) executed by a surety company authorized to
transact business in this state; and
(3) filed with the secretary of state's office.
(c) The authority shall pay the expense of the bonds.
Sec. 370.254. REMOVAL OF DIRECTOR. (a) It is a ground for
removal of a director from the board if the director:
(1) did not have at the time of appointment the
qualifications required by Section 370.251;
(2) at the time of appointment or at any time during
the director's term, is ineligible under Section 370.251 or 370.252
to serve as a director;
(3) cannot discharge the director's duties for a
substantial part of the term for which the director is appointed
because of illness or disability; or
(4) is absent from more than half of the regularly
scheduled board meetings that the director is eligible to attend
during a calendar year.
(b) The validity of an action of the board is not affected by
the fact that it is taken when a ground for removal of a director
exists.
(c) If the chief administrative officer of the authority has
knowledge that a potential ground for removal exists, that person
shall notify the presiding officer of the board of the ground. The
presiding officer shall then notify the person that appointed the
director that a potential ground for removal exists.
Sec. 370.255. COMPENSATION OF DIRECTOR. Each director is
entitled to reimbursement for the director's actual expenses
necessarily incurred in the performance of the director's duties.
A director is not entitled to any additional compensation for the
director's services.
Sec. 370.256. EVIDENCE OF AUTHORITY ACTIONS. Actions of an
authority are the actions of its board and may be evidenced in any
legal manner, including a board resolution.
Sec. 370.257. PUBLIC ACCESS. An authority shall:
(1) make and implement policies that provide the
public with a reasonable opportunity to appear before the board to
speak on any issue under the jurisdiction of the authority; and
(2) prepare and maintain a written plan that describes
how an individual who does not speak English or who has a physical,
mental, or developmental disability may be provided reasonable
access to the authority's programs.
Sec. 370.258. INDEMNIFICATION. (a) An authority may
indemnify one or more of its directors or officers for necessary
expenses and costs, including attorney's fees, incurred by the
directors or officers in connection with any claim asserted against
the directors or officers in their respective capacities as
directors or officers.
(b) If an authority does not fully indemnify a director or
officer as provided by Subsection (a), the court in a proceeding in
which any claim against the director or officer is asserted or any
court with jurisdiction of an action instituted by the director or
officer on a claim for indemnity may assess indemnity against the
authority, its receiver, or trustee only if the court finds that, in
connection with the claim, the director or officer is not guilty of
negligence or misconduct.
(c) A court may not assess indemnity under Subsection (b)
for an amount paid by the director or officer to the authority.
(d) This section applies to a current or former director or
officer of the authority.
Sec. 370.259. PURCHASE OF LIABILITY INSURANCE. (a) An
authority shall insure its officers and employees from liability
arising from the use, operation, or maintenance of equipment that
is used or may be used in connection with the laying out,
construction, or maintenance of the authority's transportation
projects.
(b) Insurance coverage under this section must be provided
by the purchase of a policy of liability insurance from a reliable
insurance company authorized to do business in this state. The form
of the policy must be approved by the commissioner of insurance.
(c) This section is not a waiver of immunity of the
authority or the counties in an authority from liability for the
torts or negligence of an officer or employee of an authority.
(d) In this section, "equipment" includes an automobile,
motor truck, trailer, aircraft, motor grader, roller, tractor,
tractor power mower, locomotive, rail car, and other power
equipment.
Sec. 370.260. CERTAIN CONTRACTS AND SALES PROHIBITED. (a)
A director, agent, or employee of an authority may not:
(1) contract with the authority; or
(2) be directly or indirectly interested in:
(A) a contract with the authority; or
(B) the sale of property to the authority.
(b) A person who violates Subsection (a) is liable for a
civil penalty to the authority in an amount not to exceed $1,000.
Sec. 370.261. STRATEGIC PLANS AND ANNUAL REPORTS. (a) An
authority shall make a strategic plan for its operations. A
majority of the commissioners courts of the counties of the
authority shall by concurrent resolution determine the types of
information required to be included in the strategic plan. Each
even-numbered year, an authority shall issue a plan covering the
succeeding five fiscal years, beginning with the next odd-numbered
fiscal year.
(b) Not later than March 31 of each year, an authority shall
file with the commissioners court of each county of the authority a
written report on the authority's activities describing all
transportation revenue bond issuances anticipated for the coming
year, the financial condition of the authority, all project
schedules, and the status of the authority's performance under the
most recent strategic plan. At the invitation of a commissioners
court of a county of the authority, representatives of the board and
the administrative head of an authority shall appear before the
commissioners court to present the report and receive questions and
comments.
(c) The authority shall give notice to the commissioners
court of each county of the authority not later than the 90th day
before the date of issuance of revenue bonds.
Sec. 370.262. MEETINGS BY TELEPHONE CONFERENCE CALL. (a)
Chapter 551, Government Code, does not prohibit any open or closed
meeting of the board, a committee of the board, or the staff, or any
combination of the board or staff, from being held by telephone
conference call.
(b) A telephone conference call meeting is subject to the
notice requirements applicable to other meetings.
(c) Notice of a telephone conference call meeting that by
law must be open to the public must specify the location of the
meeting. The location must be a conference room of the authority or
other facility in a county of the authority that is accessible to
the public.
(d) Each part of the telephone conference call meeting that
by law must be open to the public shall be audible to the public at
the location specified in the notice and shall be tape-recorded or
documented by written minutes. On conclusion of the meeting, the
tape recording or the written minutes of the meeting shall be made
available to the public.
[Sections 370.263-370.300 reserved for expansion]
SUBCHAPTER G. PARTICIPATION IN FINANCING, CONSTRUCTION, AND
OPERATION OF TRANSPORTATION PROJECTS
Sec. 370.301. DEPARTMENT CONTRIBUTIONS TO TURNPIKE
PROJECTS. (a) The department may agree with an authority to
provide for or contribute to the payment of costs of financial or
engineering and traffic feasibility studies and the design,
financing, acquisition, construction, operation, or maintenance of
a turnpike project or system on terms agreed on by the commission or
department, as applicable, and the authority. The agreement may
not be inconsistent with the rights of the bondholders or persons
operating the turnpike project under a lease or other contract.
(b) The department may use its engineering and other
personnel, including consulting engineers and traffic engineers,
to conduct feasibility studies under Subsection (a).
(c) An obligation or expense incurred by the commission or
department under this section is a part of the cost of the turnpike
project for which the obligation or expense was incurred. The
commission or department may require money contributed by the
commission or department under this section to be repaid from tolls
or other revenue of the turnpike project on which the money was
spent. Money repaid as required by the commission or department
shall be deposited to the credit of the fund from which the
contribution was made. Money deposited as required by this section
is exempt from the application of Section 403.095, Government Code.
(d) The commission or department may use federal money for
any purpose described by this chapter.
(e) A turnpike project developed by an authority may not be
part of the state highway system unless otherwise agreed to by the
authority and the department.
(f) The commission may grant or loan department money to an
authority for the acquisition of land for or the construction,
maintenance, or operation of a turnpike project. The commission
may require the authority to repay money provided under this
section from toll revenue or other sources on terms established by
the commission.
(g) Money repaid as required by the commission shall be
deposited to the credit of the fund from which the money was
provided. Money deposited as required by this section is exempt
from the application of Section 403.095, Government Code.
Sec. 370.302. AGREEMENTS TO CONSTRUCT, MAINTAIN, AND
OPERATE TRANSPORTATION PROJECTS. (a) An authority may enter into
an agreement with a public or private entity, including a toll road
corporation, the United States, a state of the United States, the
United Mexican States, a state of the United Mexican States,
another governmental entity, or a political subdivision, to permit
the entity, independently or jointly with the authority, to study
the feasibility of a transportation project or to acquire, design,
finance, construct, maintain, repair, operate, extend, or expand a
transportation project. An authority and a private entity jointly
may enter into an agreement with another governmental entity to
study the feasibility of a transportation project or to acquire,
design, finance, construct, maintain, repair, operate, extend, or
expand a transportation project.
(b) An authority has broad discretion to negotiate
provisions in a development agreement with a private entity. The
provisions may include provisions relating to:
(1) the design, financing, construction, maintenance,
and operation of a transportation project in accordance with
standards adopted by the authority; and
(2) professional and consulting services to be
rendered under standards adopted by the authority in connection
with a transportation project.
(c) An authority may not incur a financial obligation on
behalf of, or guarantee the obligations of, a private entity that
constructs, maintains, or operates a transportation project.
(d) An authority or a county in an authority is not liable
for any financial or other obligation of a transportation project
solely because a private entity constructs, finances, or operates
any part of a transportation project.
(e) An authority may authorize the investment of public and
private money, including debt and equity participation, to finance
a function described by this section.
Sec. 370.303. AGREEMENTS BETWEEN AUTHORITY AND LOCAL
GOVERNMENTAL ENTITIES. (a) A governmental entity other than a
nonprofit corporation may, consistent with the Texas Constitution,
issue bonds, notes, or other obligations or enter into and make
payments under agreements with an authority to acquire, construct,
maintain, or operate a transportation project, whether inside or
outside the geographic boundaries of the governmental entity,
including agreements to pay the principal of, and interest on,
bonds, notes, or other obligations issued by the authority and make
payments under any related credit agreements. The entity may
impose and collect taxes to pay the interest on the bonds and to
provide a sinking fund for the redemption of the bonds.
(b) In addition to the powers provided by Subsection (a), a
governmental entity may, to the extent constitutionally permitted,
agree with an authority to issue bonds, notes, or other
obligations, create a taxing district or an entity to promote
economic development, fund public improvements to promote economic
development, or enter into and make payments under an agreement to
acquire, construct, maintain, or operate any portion of a
transportation project of the authority. An agreement may include
a means for a local governmental entity to provide funds for a
transportation project that benefits the governmental entity to be
developed by the authority.
(c) To make payments under an agreement under Subsection
(b), to pay the interest on bonds issued under Subsection (b), or to
provide a sinking fund for the bonds or the agreement, a
governmental entity may:
(1) pledge revenue from any available source,
including annual appropriations;
(2) impose and collect taxes; or
(3) pledge revenue and impose and collect taxes.
(d) The term of an agreement under this section may not
exceed 40 years.
(e) An election required to authorize action under this
subchapter must be held in conformity with Chapter 1251, Government
Code, or other law applicable to the governmental entity.
(f) The governing body of any governmental entity issuing
bonds, notes, or other obligations or entering into agreements
under this section may exercise the authority granted to the
governing body of an issuer with regard to issuance of obligations
under Chapter 1371, Government Code, except that the prohibition in
that chapter on the repayment of an obligation with ad valorem taxes
does not apply to an issuer exercising the authority granted by this
section.
Sec. 370.304. ADDITIONAL AGREEMENTS OF AUTHORITY. An
authority may enter into any agreement necessary or convenient to
achieve the purposes of this subchapter.
Sec. 370.305. EXCLUSIVE DEVELOPMENT AGREEMENTS. An
authority may use an exclusive development agreement to construct,
maintain, repair, operate, extend, or expand a transportation
project by invested private funding or by public funding, private
funding, or any combination. An agreement under this section is not
subject to a requirement or restriction of Section 222.103(i).
Sec. 370.306. PROCESS FOR ENTERING INTO EXCLUSIVE
DEVELOPMENT AGREEMENTS. (a) If an authority enters into an
exclusive development agreement, the authority shall use a
competitive procurement process that provides the best value for
the authority. The authority may accept unsolicited proposals for
a proposed transportation project or solicit proposals in
accordance with this section.
(b) The authority shall establish rules and procedures for
accepting unsolicited proposals that require the private entity to
include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) a proposed financial plan for the proposed project
that includes, at a minimum:
(A) projected project costs; and
(B) proposed sources of funds.
(c) The authority shall publish a request for competing
proposals and qualifications in the Texas Register that includes
the criteria used to evaluate the proposals, the relative weight
given to the criteria, and a deadline by which proposals must be
received if:
(1) the authority decides to issue a request for
qualifications for a proposed project; or
(2) the authority authorizes the further evaluation of
an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) An authority may interview a private entity submitting
an unsolicited proposal or responding to a request under Subsection
(c). The authority shall evaluate each proposal based on the
criteria described in the notice. The authority must qualify at
least two private entities to submit detailed proposals for a
project under Subsection (f) unless the authority does not receive
more than one proposal or one response to a request under Subsection
(c).
(f) An authority shall issue a request for detailed
proposals from all private entities qualified under Subsection (e)
if the authority proceeds with the further evaluation of a proposed
project. A request under this subsection may require additional
information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) detailed engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) costing methodology; or
(6) any other information the authority considers
relevant or necessary.
(g) In issuing a request for proposals under Subsection (f),
an authority may solicit input from entities qualified under
Subsection (e) or any other person. An authority may also solicit
input regarding alternative technical concepts after issuing a
request under Subsection (f).
(h) An authority shall rank each proposal based on the
criteria described in the request for proposals and select the
private entity whose proposal offers the best value to the
authority.
(i) An authority may require that an unsolicited proposal be
accompanied by a nonrefundable fee sufficient to cover all or part
of its cost to review the proposal.
(j) An authority shall pay an unsuccessful private entity
that submits a response to a request for detailed proposals under
Subsection (f) 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 authority, be used by the authority in the
performance of its functions. After payment of the stipulated
amount:
(1) the authority owns the exclusive rights to, and
may make use of any work product contained in, the proposal,
including the technologies, techniques, methods, processes, and
information contained in the project design; and
(2) the work product contained in the proposal becomes
the property of the authority.
(k) An authority shall prescribe the general form of an
exclusive development agreement and may include any matter the
authority considers advantageous to the authority. The authority
and the private entity shall negotiate the specific terms of an
exclusive development agreement.
(l) Subchapter A, Chapter 223, of this code and Chapter
2254, Government Code, do not apply to an exclusive development
agreement entered into under Section 370.305.
Sec. 370.307. CONFIDENTIALITY OF NEGOTIATIONS FOR
EXCLUSIVE DEVELOPMENT AGREEMENTS. To encourage private entities to
submit proposals under Section 370.306, 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 until a final contract for a proposed project is
entered into:
(1) all or part of a proposal submitted by a private
entity for an exclusive development agreement, except information
provided under Section 370.306(b);
(2) supplemental information or material submitted by
a private entity in connection with a proposal for an exclusive
development agreement; and
(3) information created or collected by an authority
or its agent during consideration of a proposal for an exclusive
development agreement.
Sec. 370.308. PERFORMANCE AND PAYMENT SECURITY. (a)
Notwithstanding Section 223.006 and the requirements of Subchapter
B, Chapter 2253, Government Code, an authority shall require a
private entity entering into an exclusive development agreement
under Section 370.005 to provide a performance and payment bond or
an alternative form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the authority; and
(B) 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) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) If an authority determines that it is impracticable for
a private entity to provide security in the amount described by
Subsection (b), the authority shall set the amount of the bonds or
the alternative forms of security.
(d) 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.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to performance and payment bonds, an
authority may require the following alternative forms of security:
(1) a cashier's check drawn on a financial entity
specified by the authority;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the authority.
(g) An authority by rule shall prescribe requirements for
alternative forms of security provided under this section.
Sec. 370.309. OWNERSHIP OF TRANSPORTATION PROJECTS. (a) A
transportation project that is the subject of a development
agreement with a private entity, including the facilities acquired
or constructed on the project, is public property and belongs to the
authority that entered into the agreement.
(b) An authority may enter into an agreement that provides
for the lease of rights-of-way, the granting of easements, the
issuance of franchises, licenses, or permits, or any lawful uses to
enable a private entity to construct, operate, and maintain a
transportation project, including supplemental facilities. At the
termination of the agreement, the transportation project,
including the facilities, must be in a state of proper maintenance
as determined by the authority and shall be returned to the
authority in satisfactory condition at no further cost.
Sec. 370.310. TERMS OF PRIVATE PARTICIPATION. An authority
shall negotiate the terms of private participation in a
transportation project, including:
(1) methods to determine the applicable cost, profit,
and project distribution between the private equity investors and
the authority;
(2) reasonable methods to determine and classify toll
rates;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
construction, operation, and maintenance standards, expenses, and
costs.
Sec. 370.311. RULES, PROCEDURES, AND GUIDELINES GOVERNING
NEGOTIATING PROCESS. (a) An authority shall adopt rules,
procedures, and other guidelines governing negotiations to promote
fairness, obtain private participants in transportation projects,
and promote confidence among those participants. The rules must
contain criteria relating to the qualifications of the participants
and the award of the contracts and may authorize the authority to
impose a fee for reviewing proposals for private involvement in a
transportation project.
(b) An authority shall have up-to-date procedures for
participation in negotiations on transportation projects.
(c) An authority has exclusive judgment to determine the
terms of an agreement.
(d) A proposal and related information submitted for
private involvement in a transportation project, and all documents
and information created by the authority or its agents during the
authority's consideration of a proposal for private involvement in
a transportation project, are excepted from disclosure,
inspection, or copying under Chapter 552, Government Code, and are
not subject to discovery, subpoena, or other means of legal
compulsion for release, until the authority has entered into an
agreement or until it has determined not to develop a proposed
project through an agreement with a private entity.
(e) An authority may agree to acquire the work product of an
unsuccessful proposer for the development of a project through an
exclusive development agreement or other form of private
involvement in a transportation project if the payment for such
work product does not exceed its value to the authority.
Sec. 370.312. PARTICIPATION ON CERTAIN OTHER BOARDS,
COMMISSIONS, OR PUBLIC BODIES. (a) An authority may participate in
and designate board members to serve as representatives on boards,
commissions, or public bodies, the purposes of which are to promote
the development of joint toll facilities in this state, between
this state and other states of the United States, or between this
state and the United Mexican States or states of the United Mexican
States.
(b) A fee or expense associated with authority
participation under this section may be reimbursed from money in
the authority's feasibility study fund.
Sec. 370.313. COMBINATION OF ENGINEERING, DESIGN, AND
CONSTRUCTION SERVICES. An authority may procure a combination of
engineering, design, and construction services in a single
procurement for a transportation project provided that any contract
awarded must be the one that results in the best value to the
authority.
Sec. 370.314. PERFORMANCE AND PAYMENT BONDS AND SECURITY.
Notwithstanding Chapter 2253, Government Code, an authority shall
require any party to an agreement to operate or maintain a
transportation project to provide performance and payment bonds or
other forms of security in amounts considered by the authority to be
adequate to protect the authority and to assure performance of all
obligations to the authority and to subcontractors providing
materials or labor for a transportation project.
Sec. 370.315. TRANS-TEXAS CORRIDOR PROJECTS. In the event
that an authority is requested by the commission to participate in
the development of a transportation project that has been
designated as part of the Trans-Texas Corridor, the authority shall
have, in addition to all powers granted in this chapter, all powers
of the department related to the development of Trans-Texas
Corridor projects.
[Sections 370.316-370.330 reserved for expansion]
SUBCHAPTER H. DISSOLUTION OF AUTHORITY
Sec. 370.331. VOLUNTARY DISSOLUTION. (a) An authority may
not be dissolved unless the dissolution is approved by the
commission.
(b) A board may submit a request to the commission for
approval to dissolve.
(c) The commission may approve a request to dissolve only
if:
(1) all debts, obligations, and liabilities of the
authority have been paid and discharged or adequate provision has
been made for the payment of all debts, obligations, and
liabilities;
(2) there are no suits pending against the authority,
or adequate provision has been made for the satisfaction of any
judgment, order, or decree that may be entered against it in any
pending suit; and
(3) the authority has commitments from other
governmental entities to assume jurisdiction of all authority
transportation facilities.
Sec. 370.332. INVOLUNTARY DISSOLUTION. (a) The commission
by order may require an authority to dissolve if the commission
determines that the authority has not substantially complied with
the requirements of a commission rule or an agreement between the
department and the authority.
(b) The commission may not require dissolution unless:
(1) the conditions described in Sections
370.331(c)(1) and (2) have been met; and
(2) the holders of any indebtedness have evidenced
their agreement to the dissolution.
SECTION 2. Section 361.003, Transportation Code, is
repealed.
SECTION 3. (a) This Act takes effect September 1, 2003.
(b) This Act does not affect the term of a member of the
board of directors of a regional mobility authority serving on the
effective date of this Act.