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By: Keffer of Eastland (Senate Sponsor - Duncan) H.B. No. 2233
(In the Senate - Received from the House May 13, 2005;
May 16, 2005, read first time and referred to Committee on Finance;
May 23, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 14, Nays 0; May 23, 2005,
sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2233 By: Duncan
A BILL TO BE ENTITLED
AN ACT
relating to state and certain local fiscal matters; providing a
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 103.051, Civil Practice and Remedies
Code, is amended by amending Subsection (a) and adding Subsection
(b-1) to read as follows:
(a) To apply for compensation under this subchapter, the
claimant must file with the comptroller's judiciary section:
(1) an application for compensation provided for that
purpose by the comptroller;
(2) a verified copy of the pardon or court order
justifying the application for compensation; and
(3) a statement provided by the Texas Department of
Criminal Justice verifying the length of incarceration[; and
[(4) a certification of the claimant's actual
innocence of the crime for which the claimant was sentenced that is
signed by the attorney representing the state in the prosecution of
felonies in the county in which the sentence was rendered].
(b-1) The comptroller's duty on receipt of an application is
limited to the ministerial function of determining the completeness
of the application. If the comptroller determines that the
claimant's application does not provide all of the documentation
required by Subsection (a), the comptroller shall deny the claim
without prejudice.
SECTION 2. Article 103.002, Code of Criminal Procedure, is
amended to read as follows:
Art. 103.002. CERTAIN COSTS BARRED. (a) An officer may not
impose a cost or fee for a service not performed or for a service or
purpose for which a cost or fee is not expressly provided by law.
(b) All moneys collected as costs or fees that are not
expressly provided by law shall be remitted to the comptroller for
deposit into the general revenue fund to be administered under
Chapters 101 and 111, Tax Code.
SECTION 3. Article 103.0031(e), Code of Criminal Procedure,
is amended to read as follows:
(e) If a county or municipality has entered into a contract
under Subsection (a) and a person pays an amount that is less than
the aggregate total to be collected under Subsections (a) and (b),
[the allocation to the comptroller, the county or municipality,
and] the private attorney or vendor shall receive 30 percent of the
total amount collected, not to exceed the amount added as the
collection fee, and the remainder of the amount collected shall be
allocated in accordance with this chapter and Chapter 133, Local
Government Code [be reduced proportionately].
SECTION 4. Section 43.002(a), Education Code, is amended to
read as follows:
(a) On the first working day of each month in a state fiscal
year, the agency [comptroller] shall transfer from the permanent
school fund to the available school fund an amount equal to
one-twelfth of the annual distribution from the permanent school
fund to the available school fund as provided by Section 5(a),
Article VII, Texas Constitution, for the fiscal year.
SECTION 5. Section 51.009(c), Education Code, is amended to
read as follows:
(c) Each of the following shall be accounted for as
educational and general funds: net tuition, special course fees
charged under Sections 54.051(e) and (l), Education Code, lab fees,
student teaching fees, hospital and clinic fees, organized activity
fees, and proceeds from the sale of educational and general
equipment[, and indirect cost recovery fees].
SECTION 6. Section 63.202, Education Code, is amended by
amending Subsection (b) and adding Subsection (h) to read as
follows:
(b) Except as provided by Subsections (c), [and] (d), and
(h), money in the fund established under this subchapter may not be
used for any purpose.
(h) Expenses of managing and administering the assets of the
fund shall be paid from the fund.
SECTION 7. Section 63.302, Education Code, is amended by
amending Subsection (b) and adding Subsection (h) to read as
follows:
(b) Except as provided by Subsections (c), [and] (e), and
(h), money in the fund established under this subchapter may not be
used for any purpose.
(h) Expenses of managing and administering the assets of the
fund shall be paid from the fund.
SECTION 8. Sections 25.0015(b) and (c), Government Code,
are amended to read as follows:
(b) For a county that participates under Section 51.702(f)
under a resolution adopted and filed with the comptroller before
September 1, 2003, the amount shall be paid to the county's salary
fund in equal quarterly [monthly] installments, and of each $35,000
paid a county, $30,000 shall be paid from funds appropriated from
the judicial fund, and $5,000 shall be paid from funds appropriated
from the general revenue fund.
(c) For a county that participates under Section 51.702(f)
under a resolution adopted or filed with the comptroller on or after
September 1, 2003, the amount shall be paid to the county's salary
fund in equal quarterly [monthly] installments from funds
appropriated from the judicial fund.
SECTION 9. Section 25.00211(b), Government Code, is amended
to read as follows:
(b) The amount shall be paid to the county treasury for
deposit in the contributions fund created under Section 25.00213 in
equal quarterly [monthly] installments from funds appropriated
from the judicial fund.
SECTION 10. Section 26.007(b), Government Code, is amended
to read as follows:
(b) The amount shall be paid to the county's salary fund in
equal quarterly [monthly] installments from funds appropriated
from the judicial fund.
SECTION 11. Sections 74.061(c) and (h), Government Code,
are amended to read as follows:
(c) [The salary of a retired judge or justice while assigned
under this chapter shall be paid out of money appropriated from the
general revenue fund for that purpose in an amount equal to the
compensation received from state and county sources of the judge of
the court to which he is assigned.] The salary of a retired judge or
justice while assigned shall be determined pro rata for the period
of time that the judge or justice actually sits as the assigned
judge. The salary of a retired statutory county court judge
assigned under this chapter to serve in a district court shall be
paid by the state in the same manner as the salary of a retired
district judge assigned under this chapter to serve in a district
court is paid by the state.
(h) Notwithstanding Subsection (d) [(c)], the salary from
the state of a retired judge or justice assigned to a district court
is determined pro rata on [the sum of the regular judge's salary
from the county plus] the greater of:
(1) the regular judge's salary from the state on August
31, 1997; or
(2) 85 percent of the regular judge's salary from the
state, or a greater percentage of that salary, not to exceed 100
percent, as established by the General Appropriations Act for any
fiscal year.
SECTION 12. Section 403.019(c), Government Code, is amended
to read as follows:
(c) A contract under this section is not valid unless
approved by the attorney general. The attorney general shall
approve a contract if the attorney general determines that the
contract complies with the requirements of this section, that the
contract does not conflict with any contract formed under Section
2107.003(b), and that the contract [and] is in the best interest of
the state. No judicial action by any person on behalf of the state
under a contract authorized and approved by this section may be
brought unless approved by the attorney general.
SECTION 13. Section 2107.003, Government Code, is amended
to read as follows:
Sec. 2107.003. COLLECTION BY ATTORNEY GENERAL,
COMPTROLLER, OR OUTSIDE AGENT. (a) Except as provided by
Subsection (c), a state agency shall report an uncollected and
delinquent obligation to [request] the attorney general for
collection. The state agency must report the obligation on or
before the 120th day after the date the obligation becomes past due
or delinquent [to collect an obligation before the agency may
employ, retain, or contract with a person other than a full-time
employee of the state agency to collect the obligation].
(b) The attorney general:
(1) shall provide legal services for collection of the
obligation;
(2) may authorize the requesting state agency to
employ, retain, or contract, subject to approval by the attorney
general, with a person to collect the obligation; or
(3) if the attorney general determines it to be
economical and in the best interest of the state, may contract with
one or more persons [a person other than a full-time employee of the
agency] to collect the [an] obligation [that the attorney general
cannot collect].
(c) The comptroller may employ, retain, or contract with a
person other than a full-time state employee to collect delinquent
obligations that are owed the comptroller in the comptroller's
official capacity, are not collected through normal collection
procedures, and do not meet the guidelines adopted for collection
by the attorney general. A proposed contract under this subsection
shall be reviewed by the attorney general and may include a
collection fee computed on the amounts collected under the
contract.
(d) The agency contracting under Subsection (b) is entitled
to recover from the obligor, in addition to the amount of the
obligation, the costs incurred in undertaking the collection,
including the costs of a contract under this section. The obligor
is liable for costs of recovery under this section in an amount
equal to 30 percent of the sum of the amount of the obligation and
any interest due on the obligation.
(e) A contract formed under Subsection (b) must provide for
the compensation due to the contractor. The amount of the
compensation may not exceed 30 percent of the sum of the collected
amount of:
(1) the obligation;
(2) any penalty; and
(3) any interest.
(f) A contract formed under Subsection (b) or (c) may permit
or require the contractor to pursue in the name of this state a
judicial action to collect the amount of the obligation in a proper
court in or outside of this state.
(g) In a suit in a Texas state court to collect an obligation
under this section, the state is not:
(1) required to post security for costs;
(2) liable for costs; and
(3) liable for fees for:
(A) service of process;
(B) attorneys ad litem;
(C) arbitration; or
(D) mediation.
(h) An amount collected under a contract formed under
Subsection (b), including the costs of recovery and court costs or
other costs, shall be deposited in the fund or account to which the
obligation was required to be deposited. The contracting agency
shall pay the compensation due under the contract to the contractor
and shall pay to the applicable court any court costs collected.
(i) The contracting agency shall require a person
contracting under Subsection (b) to post a bond or other security in
an amount the contracting agency determines is sufficient to cover
all revenue or other property of the state that is expected to come
into the possession or control of the contractor in the course of
providing contract services.
(j) A person who contracts under Subsection (b) is an agent
of this state for purposes of determining priority of a claim to be
collected under the contract with respect to claims of other
creditors. The contractor does not exercise any sovereign power of
the state.
(k) The contracting state agency may provide a person
contracting under Subsection (b) any information, including
confidential information, that the agency is not prohibited from
sharing under an agreement with another state or with the United
States and that is:
(1) in the custody of the agency holding the claim; and
(2) necessary to the collection of the obligation.
(l) A person acting under a contract formed under Subsection
(b) or (c) and each employee or agent of that person is subject to
all prohibitions against the disclosure of confidential
information obtained from the contracting agency, the reporting
state agency, or their employees. A contractor or the contractor's
employee or agent who discloses confidential information in
violation of the prohibition is subject to the same penalties for
that disclosure as would apply to the contracting agency or its
employees.
(m) The contracting agency shall require a person who
contracts under Subsection (b) to obtain and maintain insurance
adequate to provide reasonable coverage for damages negligently,
recklessly, or intentionally caused by the contractor or the
contractor's employee or agent in the course of collecting an
obligation under the contract and to protect this state from
liability for those damages. The state is not liable for and may
not indemnify a person acting under a contract under Subsection (b)
for damages negligently, recklessly, or intentionally caused by the
contractor or the contractor's employee or agent in the course of
collecting an obligation under the contract.
(n) In addition to grounds for termination provided by the
contract terms, the attorney general or the contracting agency, as
applicable, may terminate a contract formed under Subsection (b) if
the contractor or the contractor's employee or agent:
(1) violates the federal Fair Debt Collection
Practices Act (15 U.S.C. Section 1692 et seq.);
(2) discloses confidential information to a person not
authorized to receive the information; or
(3) performs any act that results in a final judgment
for damages against this state.
SECTION 14. Section 2254.102(c), Government Code, is
amended to read as follows:
(c) This subchapter does not apply to a contract:
(1) with an agency to collect an obligation under
Section 2107.003(b); or
(2) for legal services entered into by an institution
of higher education under Section 153.006, Education Code.
SECTION 15. Sections 403.071(g) and (h), Government Code,
are amended to read as follows:
(g) Notwithstanding Subsection (a), the comptroller [and a
state agency] may [contract in writing for the comptroller to]
audit claims presented by a [the] state agency after the
comptroller prepares warrants or uses the electronic funds transfer
system to pay the claims. The [If the comptroller and a state
agency execute a contract, the] comptroller may determine [decide]
the types of claims that will be audited after payment.
(h) [This subsection applies if the comptroller and a state
agency have contracted in accordance with Subsection (g).] The
comptroller shall audit claims after payment under Subsection (g)
in the same manner [way] that the comptroller audits claims before
payment under Subsection (a). The comptroller may establish
requirements and adopt rules concerning the time that a state
agency must retain documentation in its files to enable a
postpayment audit. If a postpayment audit by the comptroller shows
that a claim presented by a state agency was invalid, the
comptroller may:
(1) implement procedures to ensure that similar
invalid claims from the state agency are not paid in the future;
(2) report to the governor, the lieutenant governor,
the speaker of the house of representatives, the state auditor, and
the Legislative Budget Board the results of the audit;
(3) require the state agency to obtain a refund of the
monies from the payee; and
(4) [cancel the contract with the state agency; and
[(5)] reduce the state agency's remaining
appropriations by the amount of the claim.
SECTION 16. Section 403.074(g), Government Code, is amended
to read as follows:
(g) The comptroller shall pay under this section any claim
that satisfies the requirements of:
(1) Subchapter B, Chapter 103, Civil Practice and
Remedies Code, as provided by Section 103.151, Civil Practice and
Remedies Code; or
(2) Article 26.051, Code of Criminal Procedure.
SECTION 17. Section 404.024, Government Code, is amended by
adding Subsection (m) to read as follows:
(m) In entering into a direct security repurchase agreement
or a reverse security repurchase agreement, the comptroller may
agree to accept cash on an overnight basis in lieu of the
securities, obligations, or participation certificates identified
in Section 404.001(3). Cash held by the state under this subsection
is not a deposit of state or public funds for the purposes of any
law, including this subchapter or Subchapter D, that requires a
deposit of state or public funds to be collateralized by eligible
securities.
SECTION 18. Section 404.124(c), Government Code, is amended
to read as follows:
(c) The committee may determine whether the notes will be
sold on a negotiated or competitive bid basis. If the committee
determines that competitive bids are appropriate, the underwriter
of any notes issued under this section shall be selected by the
method of sale that is most advantageous to the state under the
circumstances, including a sale using an Internet auction site. An
[solicitation of sealed bids and an] appropriate bid notice shall
be published at least one time in one or more recognized financial
publications of general circulation published within the state and
one or more recognized financial publications of general
circulation published outside the state. Unless all bids are
rejected, the underwriter shall be selected from the bids received.
The comptroller may not sell the notes in a manner not approved.
SECTION 19. Subchapter A, Chapter 659, Government Code, is
amended by adding Section 659.007 to read as follows:
Sec. 659.007. EARNINGS STATEMENTS. (a) In this section,
"state agency" has the meaning assigned by Section 403.013.
(b) A state agency may provide a written or electronic
earnings statement to an officer or employee of the agency.
(c) The comptroller may adopt rules and establish
procedures concerning the earnings statements provided by state
agencies that under Subchapter C, Chapter 2101, are required to use
the uniform statewide payroll system.
SECTION 20. Sections 659.044(a) and (d), Government Code,
as amended by Sections 32 and 104, Chapter 1158, Acts of the 77th
Legislature, Regular Session, 2001, are reenacted to read as
follows:
(a) Except as provided by Subsection (e), the monthly amount
of longevity pay is $20 for every three years of lifetime service
credit.
(d) An employee may not receive from the state as longevity
pay more than the amount determined under Subsection (a) or (e), as
applicable, regardless of the number of positions the employee
holds or the number of hours the employee works each week.
SECTION 21. Section 659.044(e), Government Code, is amended
to read as follows:
(e) This subsection applies only to an employee of the Texas
Youth Commission who is receiving less than the maximum amount of
hazardous duty pay that the commission may pay to the employee under
Section 659.303. The employee's monthly amount of longevity pay is
the sum of:
(1) $20 [$4] for every three years [each year] of
lifetime service credit, which may not include any period served in
a hazardous duty position; and
(2) the lesser of:
(A) $20 [$4] for every three years [each year]
served in a hazardous duty position; or
(B) the difference between:
(i) $7 for each year served in a hazardous
duty position; and
(ii) the amount paid by the commission for
each year served in a hazardous duty position.
SECTION 22. Section 659.255(a)(3), Government Code, is
amended to read as follows:
(3) "Merit salary increase" means an increase in
compensation to:
(A) a higher step rate in the same classified
salary group, if the classified employee is compensated under a
salary group that is divided into steps [Salary Schedule A of the
General Appropriations Act]; or
(B) a higher rate within the range of the same
classified salary group, if the classified employee is compensated
under a salary group that is not divided into steps [Salary Schedule
B of the General Appropriations Act].
SECTION 23. Sections 659.256(c) and (f), Government Code,
are amended to read as follows:
(c) When an employee is promoted within [to a position in a
higher salary group in] Salary Schedule A of the General
Appropriations Act or from Salary Schedule B or C of the General
Appropriations Act to Salary Schedule A of the General
Appropriations Act, the employee shall receive a salary rate that
is at least 3.4 percent [one step] higher than the employee's salary
rate before promotion or the minimum rate of the new salary range,
whichever is higher, and may, at the discretion of the state agency
administrator, receive an annual salary rate up to and including
the maximum rate of the new salary range. [When an employee is
promoted from a position in Salary Schedule B or C of the General
Appropriations Act to a position in Salary Schedule A of the General
Appropriations Act, the employee shall receive a step rate that is
at least one step above the rate the employee received before
promotion or the minimum rate of the new salary range, whichever is
higher, and may, at the discretion of the state agency
administrator, receive an annual rate up to and including the
maximum rate of the new salary range.]
(f) Notwithstanding the other provisions of this section,
an employee whose salary prior to promotion exceeds the maximum
rate of the employee's assigned salary group may not receive more
than the maximum rate of the new salary group, even if the increase
is less than one step in a salary group that is divided into steps
[Salary Schedule A of the General Appropriations Act] or 3.4
percent in a salary group that is not divided into steps [Salary
Schedule B of the General Appropriations Act].
SECTION 24. Section 659.257(c), Government Code, is amended
to read as follows:
(c) When an employee is demoted within [to a position in a
lower salary group in] Salary Schedule A of the General
Appropriations Act or from Salary Schedule B or C of the General
Appropriations Act to Salary Schedule A of the General
Appropriations Act, the employee will receive a salary rate of at
least 3.4 percent [one step] below the rate the employee received
before demotion. [When an employee is demoted from a position in
Salary Schedule B or C of the General Appropriations Act to a
position in Salary Schedule A of the General Appropriations Act,
the employee shall receive a step rate that is at least 3.4 percent
below the rate the employee received before demotion.]
SECTION 25. Section 660.024(a), Government Code, is amended
to read as follows:
(a) The chief administrator of a state agency must give
advance written approval for any travel related to official state
business for which a reimbursement for travel expenses is claimed
or for which an advance for travel expenses to be incurred is
sought. The advance written approval may be communicated
electronically. [A copy of the written approval shall be submitted
with the travel voucher to the comptroller in accordance with
Section 660.027.]
SECTION 26. Sections 660.027(b), (d), and (e), Government
Code, are amended to read as follows:
(b) A voucher submitted under Subsection (a) is valid only
if:
(1) the state agency submitting the voucher approves
it in accordance with Chapter 2103 and, if required by law,
certifies the voucher; and
(2) the state employee who incurred the travel expense
or, if the employee is unavailable, another individual acceptable
to the comptroller approves the description, information, and
documentation required by Subsection (d) [voucher] in writing or
electronically, except that the employee's approval is not required
if another person is required by law to provide the approval.
(d) A voucher must be supported by:
(1) a description of [describe] the official state
business performed; and
(2) [be accompanied by] the information and
documentation that the comptroller considers necessary for the
comptroller to determine compliance with this chapter, the travel
provisions of the General Appropriations Act, and the rules adopted
by the comptroller under this chapter.
(e) The comptroller may require a state agency to provide to
the comptroller the description, information, and documentation
required under [by] Subsection (d):
(1) on the form adopted by the comptroller under
Subsection (c);
(2) electronically;
(3) by submitting receipts or other documents; or
(4) [(3)] by any [a] combination of Subdivisions (1),
[and] (2), and (3).
SECTION 27. Section 1431.001(2), Government Code, is
amended to read as follows:
(2) "Eligible countywide district" means:
(A) a flood control district or a hospital
district the boundaries of which are substantially coterminous with
the boundaries of a county with a population of three million or
more; or
(B) a hospital district created in a county with
a population of more than 800,000 in which no hospital district was
located before September 1, 2003.
SECTION 28. Section 2256.011, Government Code, is amended
by amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) A fully collateralized repurchase agreement is an
authorized investment under this subchapter if the repurchase
agreement:
(1) has a defined termination date;
(2) except as provided by Subsection (e), is secured
by obligations described by Section 2256.009(a)(1); [and]
(3) requires the securities being purchased by the
entity to be pledged to the entity, held in the entity's name, and
deposited at the time the investment is made with the entity or with
a third party selected and approved by the entity; and
(4) is placed through a primary government securities
dealer, as defined by the Federal Reserve, or a financial
institution doing business in this state.
(e) An entity may agree to secure the agreement by accepting
cash on an overnight basis in lieu of the obligations identified in
Section 2256.009(a)(1). Cash held by an entity under this
subsection is not a deposit of public funds for purposes of any
statute, including Chapter 2257, that requires a deposit of public
funds to be collateralized by eligible securities.
SECTION 29. (a) Section 103.007, Human Resources Code, is
amended by amending Subsection (c) and adding Subsection (d) to
read as follows:
(c) A person who operates a facility that is licensed under
this chapter must file an application for a renewal license not
later than the 45th day before the expiration date of the current
license on a form prescribed by the department together with a
renewal fee of $25.
(d) An application for license renewal submitted to the
department later than the 45th day before the expiration date of the
current license must be accompanied by a late application fee in
accordance with department rules.
(b) The change in law made by this section applies only to an
application for license renewal that is submitted on or after
September 1, 2005.
SECTION 30. Chapter 103, Human Resources Code, is amended
by adding Section 103.0076 to read as follows:
Sec. 103.0076. FEASIBILITY INSPECTION. (a) The department
shall adopt a procedure under which a person who is considering
applying for a license to operate an adult day-care facility may
request an on-site compliance review by qualified department
personnel of an existing unlicensed building for conformance with
the department's licensing standards and the relevant occupancy
chapters of the Life Safety Code of the National Fire Protection
Association. In adopting the procedure, the department shall set
reasonable deadlines by which the department must complete the
feasibility inspection.
(b) Not later than the 30th day after the date a person
requests a feasibility inspection under this section, the
department shall complete the inspection and inform the person in
writing of the results of the inspection. If the building complies
with the department's licensing standards and the relevant Life
Safety Code occupancy chapters, the department may not subsequently
change the licensing standards and the relevant Life Safety Code
occupancy chapters applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a feasibility inspection under this section.
(d) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct feasibility inspections under this section.
(e) The feasibility inspection procedure provided by this
section does not include inspection of an existing unlicensed
building for conformance with the Texas Accessibility Standards as
administered and enforced by the Texas Department of Licensing and
Regulation.
SECTION 31. (a) Section 142.0105, Health and Safety Code,
is amended to read as follows:
Sec. 142.0105. LICENSE RENEWAL. (a) A person who is
otherwise eligible to renew a license may renew an unexpired
license by submitting a completed application for renewal and
paying the required renewal fee to the department not later than the
45th day before the expiration date of the license. A person whose
license has expired may not engage in activities that require a
license [until the license has been renewed].
(b) An application for license renewal submitted to the
department later than the 45th day before the expiration date of a
current license is subject to an additional late application fee in
accordance with department rules [A person whose license has been
expired for 90 days or less may renew the license by paying to the
department a renewal fee that is equal to 1-1/2 times the normally
required renewal fee].
(c) [A person whose license has been expired for more than
90 days may obtain a new license by complying with the requirements
and procedures for obtaining an original license.
[(d)] Not later than the 120th [60th] day before the date a
person's license is scheduled to expire, the department shall send
written notice of the impending expiration to the person at the
person's last known address according to the records of the
department. The written notice must include an application for
licensure and instructions for completing the application.
(b) The change in law made by this section applies only to an
application for license renewal that is submitted on or after
September 1, 2005.
SECTION 32. Section 142.017, Health and Safety Code, is
amended by amending Subsection (e) and adding Subsection (j) to
read as follows:
(e) Except as provided in Subsection (j), the [The]
department by rule shall provide the home and community support
services agency with a reasonable period of time following the
first day of a violation to correct the violation before assessing
an administrative penalty if a plan of correction has been
implemented.
(j) The department is not required to provide the home and
support services agency with a reasonable period of time following
the first day of a violation to correct the violation before
assessing an administrative penalty if the department determines
that the violation:
(1) results in serious harm to or death of a client;
(2) constitutes a serious threat to the health or
safety of a client;
(3) substantially limits the agency's capacity to
provide care;
(4) is a violation in which a person:
(A) makes a false statement, that the person
knows or should know is false, of a material fact:
(i) on an application for issuance or
renewal of a license or in an attachment to the application; or
(ii) with respect to a matter under
investigation by the department;
(B) refuses to allow a representative of the
department to inspect a book, record, or file required to be
maintained by an agency;
(C) wilfully interferes with the work of a
representative of the department or the enforcement of this
chapter;
(D) wilfully interferes with a representative of
the department preserving evidence of a violation of this chapter
or a rule, standard, or order adopted or license issued under this
chapter;
(E) fails to pay a penalty assessed by the
department under this chapter not later than the 10th day after the
date the assessment of the penalty becomes final; or
(F) fails to submit:
(i) a plan of correction not later than the
10th day after the date the person receives a statement of licensing
violations; or
(ii) an acceptable plan of correction not
later than the 30th day after the date the person receives
notification from the department that the previously submitted plan
of correction is not acceptable;
(5) is a violation of Section 142.0145; or
(6) involves the rights of the elderly under Chapter
102, Human Resources Code.
SECTION 33. Subchapter A, Chapter 142, Health and Safety
Code, is amended by adding Sections 142.0031 and 142.0032 to read as
follows:
Sec. 142.0031. EARLY COMPLIANCE REVIEW. (a) The
department by rule shall adopt a procedure under which a person
proposing to construct or modify a free-standing hospice may submit
building plans to the department for review for compliance with the
department's architectural requirements before beginning
construction or modification. In adopting the procedure, the
department shall set reasonable deadlines by which the department
must complete review of submitted plans.
(b) Not later than the 30th day after the date building
plans are submitted under this section, the department shall review
the plans for compliance with the department's architectural
requirements and inform the person in writing of the results of the
review. If the plans comply with the department's architectural
requirements, the department may not subsequently change the
architectural requirements applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a review under this section.
(d) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct reviews under this section.
(e) The review procedure provided by this section does not
include review of building plans for compliance with the Texas
Accessibility Standards as administered and enforced by the Texas
Department of Licensing and Regulation.
Sec. 142.0032. FEASIBILITY INSPECTION. (a) The department
shall adopt a procedure under which a person who is considering
applying for a license to operate a free-standing hospice may
request an on-site compliance review by qualified department
personnel of an existing unlicensed building for conformance with
the department's licensing standards and the relevant occupancy
chapters of the Life Safety Code of the National Fire Protection
Association. In adopting the procedure, the department shall set
reasonable deadlines by which the department must complete the
feasibility inspection.
(b) Not later than the 30th day after the date a person
requests a feasibility inspection under this section, the
department shall complete the inspection and inform the person in
writing of the results of the inspection. If the building complies
with the department's licensing standards and the relevant Life
Safety Code occupancy chapters, the department may not subsequently
change the licensing standards and the relevant Life Safety Code
occupancy chapters applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a feasibility inspection under this section.
(d) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct feasibility inspections under this section.
(e) The feasibility inspection procedure provided by this
section does not include inspection of an existing unlicensed
building for conformance with the Texas Accessibility Standards as
administered and enforced by the Texas Department of Licensing and
Regulation.
SECTION 34. Section 242.034, Health and Safety Code, is
amended by adding Subsection (i) to read as follows:
(i) An application for license renewal that is submitted to
the department later than the 45th day before the expiration date of
a current license is subject to an additional late application fee
in accordance with department rules.
SECTION 35. Subchapter B, Chapter 242, Health and Safety
Code, is amended by adding Section 242.0386 to read as follows:
Sec. 242.0386. FEASIBILITY INSPECTION. (a) The department
shall adopt a procedure under which a person who is considering
applying for a license to operate an institution may request an
on-site compliance review by qualified department personnel of an
existing unlicensed building for conformance with the department's
licensing standards and the relevant occupancy chapters of the Life
Safety Code of the National Fire Protection Association. In
adopting the procedure, the department shall set reasonable
deadlines by which the department must complete the feasibility
inspection.
(b) Not later than the 30th day after the date a person
requests a feasibility inspection under this section, the
department shall complete the inspection and inform the person in
writing of the results of the inspection. If the building complies
with the department's licensing standards and the relevant Life
Safety Code occupancy chapters, the department may not subsequently
change the licensing standards and the relevant Life Safety Code
occupancy chapters applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a feasibility inspection under this section.
(d) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct feasibility inspections under this section.
(e) The feasibility inspection procedure provided by this
section does not include inspection of an existing unlicensed
building for conformance with the Texas Accessibility Standards as
administered and enforced by the Texas Department of Licensing and
Regulation.
SECTION 36. (a) Section 242.097, Health and Safety Code, is
amended by adding Subsection (e) to read as follows:
(e) A fee charged under Subsection (a) or (b) that is not
paid by a nursing or convalescent home on or before the due date is
late and the home must pay an additional fee in accordance with
department rules.
(b) The change in law made by this section applies only to a
fee that first becomes due on or after September 1, 2005.
SECTION 37. (a) Section 242.0975, Health and Safety Code,
is amended by adding Subsection (d) to read as follows:
(d) A fee charged under Subsection (a) or (b) that is not
paid by a facility on or before the due date is late and the facility
must pay an additional fee in accordance with department rules.
(b) The change in law made by this section applies only to a
fee that first becomes due on or after September 1, 2005.
SECTION 38. (a) Section 247.024, Health and Safety Code, is
amended by adding Subsection (e) to read as follows:
(e) An application for license renewal that is submitted to
the department later than the 45th day before the expiration date of
a current license is subject to a late application fee in accordance
with department rules.
(b) The change in law made by this section applies only to an
application for license renewal that is submitted on or after
September 1, 2005.
SECTION 39. Subchapter B, Chapter 247, Health and Safety
Code, is amended by adding Section 247.0262 to read as follows:
Sec. 247.0262. FEASIBILITY INSPECTION. (a) The department
shall adopt a procedure under which a person who is considering
applying for a license to operate an assisted living facility may
request an on-site compliance review by qualified department
personnel of:
(1) an existing unlicensed building for conformance
with the department's licensing standards and the relevant
occupancy chapters of the Life Safety Code of the National Fire
Protection Association; or
(2) an existing licensed facility that wants to change
its capacity or licensure type.
(b) In adopting the procedure under Subsection (a), the
department shall set reasonable deadlines by which the department
must complete a feasibility inspection.
(c) Not later than the 30th day after the date a person
requests a feasibility inspection under this section, the
department shall complete the inspection and inform the person in
writing of the results of the inspection. If the building complies
with the department's licensing standards and the relevant Life
Safety Code occupancy chapters, the department may not subsequently
change the licensing standards and the relevant Life Safety Code
occupancy chapters applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(d) The department may charge a reasonable fee for
conducting a feasibility inspection under this section.
(e) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct reviews under this section.
(f) The feasibility inspection procedure provided by this
section does not include inspection of an existing unlicensed
building for conformance with the Texas Accessibility Standards as
administered and enforced by the Texas Department of Licensing and
Regulation.
SECTION 40. (a) Section 252.034, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) An application for license renewal that is submitted to
the department later than the 45th day before the expiration date of
a current license is subject to a late application fee in accordance
with department rules.
(b) The change in law made by this section applies only to an
application for license renewal that is submitted on or after
September 1, 2005.
SECTION 41. Subchapter B, Chapter 252, Health and Safety
Code, is amended by adding Section 252.0376 to read as follows:
Sec. 252.0376. FEASIBILITY INSPECTION. (a) The department
shall adopt a procedure under which a person who is considering
applying for a license to operate a facility may request an on-site
compliance review by qualified department personnel of an existing
unlicensed building for conformance with the department's
licensing standards and the relevant occupancy chapters of the Life
Safety Code of the National Fire Protection Association. In
adopting the procedure, the department shall set reasonable
deadlines by which the department must complete the feasibility
inspection.
(b) Not later than the 30th day after the date a person
requests a feasibility inspection under this section, the
department shall complete the inspection and inform the person in
writing of the results of the inspection. If the building complies
with the department's licensing standards and the relevant Life
Safety Code occupancy chapters, the department may not subsequently
change the licensing standards and the relevant Life Safety Code
occupancy chapters applicable to the project unless:
(1) the change is required by federal law; or
(2) the person fails to complete the project within a
reasonable time.
(c) The department may charge a reasonable fee for
conducting a feasibility inspection under this section.
(d) A fee collected under this section shall be deposited in
the general revenue fund and may be appropriated only to the
department to conduct feasibility inspections under this section.
(e) The feasibility inspection procedure provided by this
section does not include inspection of an existing unlicensed
building for conformance with the Texas Accessibility Standards as
administered and enforced by the Texas Department of Licensing and
Regulation.
SECTION 42. (a) Section 252.095, Health and Safety Code, is
amended by adding Subsection (e) to read as follows:
(e) A fee charged under Subsection (a) that is not paid on or
before the due date is late and the facility must pay an additional
fee in accordance with department rules.
(b) The change in law made by this section applies only to a
fee charged under Section 252.095(a), Health and Safety Code, that
first becomes due on or after September 1, 2005.
SECTION 43. (a) Section 103.006(b), Human Resources Code,
is amended to read as follows:
(b) The license expires two years [one year] from the date
of its issuance.
(b) The change in law made by this section applies only to a
license issued under Section 103.006, Human Resources Code, as
amended by this section, on or after September 1, 2005. A license
issued under Section 103.006, Human Resources Code, before
September 1, 2005, expires as provided by the license and the law as
it existed immediately before September 1, 2005, and the former law
is continued for that purpose.
SECTION 44. (a) Section 142.006(b), Health and Safety
Code, is amended to read as follows:
(b) A license issued under this chapter expires two years
[one year] after the date of issuance. The department may issue an
initial license for a shorter term [of less than one year] to
conform expiration dates for a locality or an applicant. The
department, in accordance with department [board] rules, may issue
a temporary license to an applicant for an initial license.
(b) The change in law made by this section applies only to a
license issued under Section 142.006, Health and Safety Code, as
amended by this section, on or after September 1, 2005. A license
issued under Section 142.006, Health and Safety Code, before
September 1, 2005, expires as provided by the license and the law as
it existed immediately before September 1, 2005, and the former law
is continued for that purpose.
SECTION 45. (a) Section 142.010(a), Health and Safety
Code, is amended to read as follows:
(a) The department [board] shall set license fees for home
and community support services agencies in amounts that are
reasonable to meet the costs of administering this chapter, except
that the fees may not be less than $600 [$300] or more than $2,000
[$1,000] for a license to provide home health, hospice, or personal
assistance services.
(b) The change in law made by this section applies only to a
fee for a license issued under Chapter 142, Health and Safety Code,
as amended by this section, for a license issued on or after
September 1, 2005. The fee for a license issued before September 1,
2005, is the fee as set by rules adopted under that chapter as they
existed immediately before September 1, 2005, and the former law is
continued for that purpose.
SECTION 46. (a) Sections 247.023(a) and (b), Health and
Safety Code, are amended to read as follows:
(a) The department shall issue a license if, after
inspection and investigation, it finds that the applicant, the
assisted living facility, and all controlling persons with respect
to the applicant or facility meet the requirements of this chapter
and the standards adopted under this chapter. The license expires
on the second anniversary of the date of its issuance.
(b) To renew a license, the license holder must submit to
the department the [annual] license renewal fee.
(b) The change in law made by this section applies only to a
license issued under Section 247.023, Health and Safety Code, as
amended by this section, on or after September 1, 2005. A license
issued under Section 247.023, Health and Safety Code, before
September 1, 2005, expires as provided by the license and the law as
it existed immediately before September 1, 2005, and the former law
is continued for that purpose.
SECTION 47. (a) Section 247.024(a), Health and Safety Code,
is amended to read as follows:
(a) The department [board] shall set license fees imposed by
this chapter:
(1) on the basis of the number of beds in assisted
living facilities required to pay the fee; and
(2) in amounts reasonable and necessary to defray the
cost of administering this chapter, but not to exceed $1,500
[$750].
(b) The change in law made by this section applies only to a
fee for a license issued under Chapter 247, Health and Safety Code,
as amended by this section, for a license issued on or after
September 1, 2005. The fee for a license issued before September 1,
2005, is the fee as set by rules adopted under that chapter as they
existed immediately before September 1, 2005, and the former law is
continued for that purpose.
SECTION 48. Section 101.001(a), Insurance Code, is amended
to read as follows:
(a) It is a state concern that many residents of this state
hold insurance policies issued by persons or insurers who are not
authorized to do insurance business in this state and who are not
qualified as eligible surplus lines insurers under Chapter 981
[Article 1.14-2]. These residents face often insurmountable
obstacles in asserting legal rights under the policies in foreign
forums under unfamiliar laws and rules of practice.
SECTION 49. Subchapter A, Chapter 101, Insurance Code, is
amended by adding Section 101.005 to read as follows:
Sec. 101.005. APPLICABILITY OF CHAPTER TO ELIGIBLE SURPLUS
LINES INSURERS. Notwithstanding any other provision of this
chapter, this chapter does not apply to an eligible surplus lines
insurer.
SECTION 50. Section 101.053, Insurance Code, is amended by
amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) Sections 101.051 and 101.052 do not apply to:
(1) the lawful transaction of surplus lines insurance
[under Chapter 981];
(2) the lawful transaction of reinsurance by insurers;
(3) a transaction in this state that:
(A) involves a policy that:
(i) is lawfully solicited, written, and
delivered outside this state; and
(ii) covers, at the time the policy is
issued, only subjects of insurance that are not resident, located,
or expressly to be performed in this state; and
(B) takes place after the policy is issued;
(4) a transaction:
(A) that involves an insurance contract
independently procured by the insured from an insurance company not
authorized to do insurance business in this state through
negotiations occurring entirely outside this state;
(B) that is reported; and
(C) on which premium tax is paid in accordance
with Chapter 226;
(5) a transaction in this state that:
(A) involves group life, health, or accident
insurance, other than credit insurance, and group annuities in
which the master policy for the group was lawfully issued and
delivered in a state in which the insurer or person was authorized
to do insurance business; and
(B) is authorized by a statute of this state;
(6) an activity in this state by or on the sole behalf
of a nonadmitted captive insurance company that insures solely:
(A) directors' and officers' liability insurance
for the directors and officers of the company's parent and
affiliated companies;
(B) the risks of the company's parent and
affiliated companies; or
(C) both the individuals and entities described
by Paragraphs (A) and (B);
(7) the issuance of a qualified charitable gift
annuity under Chapter 102; or
(8) a lawful transaction by a servicing company of the
Texas workers' compensation employers' rejected risk fund under
Section 4.08, Article 5.76-2, as that article existed before its
repeal.
(d) For purposes of Subsection (b)(1), "lawful transaction
of surplus lines insurance" means an insurance transaction under
which insurance is procured through an eligible surplus lines
insurer, as defined by Section 981.002.
SECTION 51. Section 101.201(b), Insurance Code, is amended
to read as follows:
(b) This section does not apply to [insurance procured by a
licensed surplus lines agent from an eligible surplus lines insurer
as defined by Chapter 981 and] independently procured contracts of
insurance, as described in Section 101.053(b)(4), that are reported
and on which premium tax is paid in accordance with Chapter [225 or]
226.
SECTION 52. Section 101.203(c), Insurance Code, is amended
to read as follows:
(c) This section does not apply to:
(1) a transaction in this state that:
(A) involves a policy that:
(i) is lawfully solicited, negotiated,
written, and delivered outside this state; and
(ii) covers, at the time the policy is
issued, only subjects of insurance that are not resident, located,
or expressly to be performed in this state; and
(B) takes place after the policy is issued; or
(2) surplus lines insurance procured through an
eligible surplus lines insurer [carriers] as defined by Section
981.002 [Article 1.14-2].
SECTION 53. Section 101.301(b), Insurance Code, is amended
to read as follows:
(b) This section does not apply to:
(1) a transaction described by Section 101.053(b)(4);
or
(2) surplus lines insurance procured through an
eligible surplus lines insurer [carriers] as defined by Section
981.002 [Article 1.14-2].
SECTION 54. Section 225.002, Insurance Code, is amended to
read as follows:
Sec. 225.002. APPLICABILITY OF CHAPTER. This chapter
applies only to a surplus lines agent who collects gross premiums
for surplus lines insurance.
SECTION 55. Section 226.001, Insurance Code, is amended to
read as follows:
Sec. 226.001. DEFINITION [DEFINITIONS]. In this
subchapter, premium [:
[(1) "Insurer" has the meaning assigned by Section
101.002 and includes:
[(A) an insurer that does not hold a certificate
of authority in this state;
[(B) an eligible surplus lines insurer; and
[(C) an insurer that holds a certificate of
authority in this state.
[(2) "Premium"] includes any consideration for
insurance, including:
(1) [(A)] a premium;
(2) [(B)] a membership fee;
(3) [(C)] an assessment; or
(4) [(D)] dues.
SECTION 56. Section 226.002, Insurance Code, is amended to
read as follows:
Sec. 226.002. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to an unauthorized insurer who charges gross premiums
for insurance on a subject resident, located, or to be performed in
this state.
SECTION 57. Subsections (a), (b), and (g), Section 226.003,
Insurance Code, are amended to read as follows:
(a) A tax is imposed on each unauthorized insurer that
charges gross premiums subject to taxation under this section. The
rate of the tax is 4.85 percent of the gross premiums charged by the
unauthorized insurer.
(b) Except as otherwise provided by this section, in
determining an unauthorized insurer's taxable gross premiums, the
insurer shall include any premium for insurance on a subject
resident, located, or to be performed in this state.
(g) The following premiums are not subject to the tax
imposed by this subchapter:
(1) premiums on insurance procured [by a licensed
surplus lines agent] from an eligible surplus lines insurer as
defined by Section 981.002 [Chapter 981 on which premium tax is paid
in accordance with Chapter 225]; and
(2) premiums on an independently procured contract of
insurance on which premium tax is paid in accordance with
Subchapter B[; and
[(3) premiums on a contract of insurance written by an
insurer that holds a certificate of authority in this state and that
is authorized to write the contract].
SECTION 58. Sections 226.005(b) and (c), Insurance Code,
are amended to read as follows:
(b) An unauthorized insurer shall pay the tax imposed by
this subchapter using a form prescribed by the comptroller. An
insured or agent may pay the tax in lieu of the unauthorized
insurer.
(c) The tax imposed under [by] this subchapter, if not paid
when due, is a liability of the unauthorized insurer, the [insurer]
agent, and the insured until paid.
SECTION 59. Section 226.052, Insurance Code, is amended to
read as follows:
Sec. 226.052. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to an insured who procures an insurance contract in
accordance with Section 101.053(b)(4).
SECTION 60. Section 981.002(1), Insurance Code, is amended
to read as follows:
(1) "Eligible surplus lines insurer" means an insurer
that is not an unauthorized [authorized] insurer, but that is
eligible under Subchapter B, in which surplus lines insurance is
placed or may be placed under this chapter.
SECTION 61. Section 981.004, Insurance Code, is amended by
adding Subsection (c) to read as follows:
(c) An eligible surplus lines insurer is not an unauthorized
insurer and is not subject to Chapter 101.
SECTION 62. Section 981.005, Insurance Code, is amended to
read as follows:
Sec. 981.005. VALIDITY OF CONTRACTS. (a) Unless a
material and intentional violation of this chapter [or Section 12,
Article 1.14-2,] exists, an insurance contract obtained from an
eligible surplus lines insurer is:
(1) valid and enforceable as to all parties; and
(2) recognized in the same manner as a comparable
contract issued by an authorized insurer.
(b) A material and intentional violation of this chapter [or
Section 12, Article 1.14-2,] does not preclude the insured from
enforcing the insured's rights under the contract.
SECTION 63. Section 981.006, Insurance Code, is amended to
read as follows:
Sec. 981.006. SANCTIONS. Chapter 82 applies to a surplus
lines agent or an eligible surplus lines insurer that violates:
(1) this chapter;
(2) Chapter 225 [Section 12, Article 1.14-2]; or
(3) a rule or order adopted under Subchapter B or
Section 981.005.
SECTION 64. Section 981.008, Insurance Code, is amended to
read as follows:
Sec. 981.008. SURPLUS LINES INSURANCE PREMIUM TAX. The
premiums charged for surplus lines insurance are subject to the
premium tax imposed under Chapter 225 [Section 12, Article 1.14-2].
SECTION 65. Section 981.101, Insurance Code, is amended by
amending Subsection (b) and adding Subsections (d) and (e) to read
as follows:
(b) A surplus lines document must state, in 11-point type,
the following:
This insurance contract is with an insurer not licensed to
transact insurance in this state and is issued and delivered
as surplus line coverage under the Texas insurance statutes.
The Texas Department of Insurance does not audit the finances
or review the solvency of the surplus lines insurer providing
this coverage, and the insurer is not a member of the property
and casualty insurance guaranty association created under
Article 21.28-C, Insurance Code. Chapter 225 [Section 12,
Article 1.14-2], Insurance Code, requires payment of a
__________ (insert appropriate tax rate) percent tax on gross
premium.
(d) Each eligible surplus lines insurer shall annually file
with the stamping office a report, in a format prescribed by the
stamping office, containing the following information regarding
each surplus lines policy:
(1) policy number;
(2) insured's name and address;
(3) policy effective and expiration dates;
(4) written premium allocated to Texas; and
(5) name, address, and agent license number of the
surplus lines agent who placed the policy, or, in the case of a
group of insurers that includes individual unincorporated
insurers, the group or its eligible members shall provide:
(A) policy information, which may be aggregated
or summarized as approved by the commissioner; and
(B) other information as directed by the
commissioner.
(e) Information provided under Subsection (d) is
confidential and may not be made available to the public.
SECTION 66. Section 981.104(b), Insurance Code, is amended
to read as follows:
(b) A change made under Subsection (a) may not result in
coverage or an insurance contract that would violate this chapter
or Chapter 225 [Section 12, Article 1.14-2,] if originally issued
on that basis.
SECTION 67. Section 981.160, Insurance Code, is amended to
read as follows:
Sec. 981.160. NO ENFORCEMENT AUTHORITY. This subchapter
does not give the stamping office authority to enforce this chapter
or Chapter 225 [Section 12, Article 1.14-2].
SECTION 68. Section 302.001, Local Government Code, is
amended by amending Subdivision (1) and adding Subdivision (3) to
read as follows:
(1) "Energy savings performance contract" means a
contract for energy or water conservation or usage measures to
reduce energy or water consumption or net operating costs or to
increase energy-related or water-related revenues of local
government facilities in which the estimated savings in utility
costs or the estimated increase in revenues resulting from the
measures is guaranteed to offset the cost of the measures over a
specified period. The term includes a contract for the
installation or implementation of:
(A) insulation of a building structure and
systems within the building;
(B) storm windows or doors, caulking or weather
stripping, multiglazed windows or doors, heat-absorbing or
heat-reflective glazed and coated window or door systems, or other
window or door system modifications that reduce energy consumption;
(C) automatic energy control systems, including
computer software and technical data licenses;
(D) heating, ventilating, or air-conditioning
system modifications or replacements that reduce energy or water
consumption;
(E) lighting fixtures that increase energy
efficiency;
(F) energy recovery systems;
(G) electric systems improvements;
(H) water-conserving fixtures, appliances, and
equipment or the substitution of non-water-using fixtures,
appliances, and equipment;
(I) water-conserving landscape irrigation
equipment;
(J) landscaping measures that reduce watering
demands and capture and hold applied water and rainfall, including:
(i) landscape contouring, including the use
of berms, swales, and terraces; and
(ii) the use of soil amendments that
increase the water-holding capacity of the soil, including compost;
(K) rainwater harvesting equipment and equipment
to make use of water collected as part of a storm-water system
installed for water quality control;
(L) equipment for recycling or reuse of water
originating on the premises or from other sources, including
treated municipal effluent;
(M) equipment needed to capture water from
nonconventional, alternate sources, including air-conditioning
condensate or graywater, for nonpotable uses;
(N) metering equipment [needed to segregate
water use in order to identify water conservation opportunities or
verify water savings]; or
(O) other energy or water conservation-related
improvements or equipment, including improvements or equipment
relating to renewable energy or nonconventional water sources or
water reuse.
(3) "Usage measure" means a technology or practice
related to the use of energy or water.
SECTION 69. Section 302.002(b), Local Government Code, is
amended to read as follows:
(b) Each energy or water conservation or usage measure must
comply with current local, state, and federal construction,
plumbing, and environmental codes and regulations.
Notwithstanding Section 302.001(1), an energy savings performance
contract may not include improvements or equipment that allow or
cause water from any condensing, cooling, or industrial process or
any system of nonpotable usage over which public water supply
system officials do not have sanitary control to be returned to the
potable water supply.
SECTION 70. Section 302.003, Local Government Code, is
amended to read as follows:
Sec. 302.003. PAYMENT AND PERFORMANCE BOND.
Notwithstanding any other law, before entering into an energy
savings performance contract, the governing body of the local
government shall require the provider of the energy or water
conservation or usage measures to file with the governing body a
payment and performance bond relating to the installation of the
measures in accordance with Chapter 2253, Government Code. The
governing body may also require a separate bond to cover the value
of the guaranteed savings on the contract.
SECTION 71. Section 302.004, Local Government Code, is
amended to read as follows:
Sec. 302.004. METHOD OF FINANCING; TERMS OF CONTRACT. (a)
An energy savings performance contract may be financed:
(1) under a lease-purchase contract that has a term
not to exceed 15 years from the final date of installation and that
meets federal tax requirements for tax-free municipal leasing or
long-term financing;
(2) with the proceeds of bonds; or
(3) under a contract with the provider of the energy or
water conservation or usage measures that has a term not to exceed
15 years from the final date of installation.
(b) An energy savings performance contract shall contain
provisions requiring the provider of the energy or water
conservation or usage measures to guarantee the amount of the
savings or the increased revenues, or both, to be realized by the
local government under the contract. If the term of the contract
exceeds one year, the local government's contractual obligations in
any one year during the term of the contract beginning after the
final date of installation may not exceed the total energy, water,
wastewater, and operating cost savings or increased revenues, or
both, including electrical, gas, water, wastewater, or other
utility cost savings and operating cost savings or increased
revenues, or both, resulting from the measures as determined by the
local government in this subsection, divided by the number of years
in the contract term.
SECTION 72. Section 302.005(b), Local Government Code, is
amended to read as follows:
(b) Before entering into an energy savings performance
contract, the governing body must require that the cost savings or
increased revenues, or both, projected by an offeror be reviewed by
a licensed engineer who is not an officer or employee of an offeror
for the contract under review or otherwise associated with the
contract or the offeror. An engineer who reviews a contract shall
maintain the confidentiality of any proprietary information the
engineer acquires while reviewing the contract. Sections 1001.053
and 1001.407, Occupations Code, apply to work performed under the
contract.
SECTION 73. Section 430.003, Local Government Code, is
amended to read as follows:
Sec. 430.003. EXEMPTIONS OF CERTAIN [STATE] PROPERTY FROM
INFRASTRUCTURE FEES. (a) No county, municipality, or utility
district may collect from a state agency or public or private
institution of higher education, including a public junior college
as defined by Section 61.003, Education Code, any fee charged for
the development or maintenance of programs of facilities for the
control of excess water or storm water.
(b) This section does not apply to a municipality with a
population of less than 25,000.
SECTION 74. Section 433(a), Probate Code, is amended to
read as follows:
(a) Mode of Recovery. When funds of an estate have been paid
to the comptroller, any heir, devisee, or legatee of the estate, or
their assigns, or any of them, may recover the portion of such funds
to which he, she, or they are entitled. The person claiming such
funds shall institute suit on or before the fourth anniversary of
the date of the order requiring payment to the comptroller, by
petition filed in the district court of Travis County, against the
comptroller, setting forth the plaintiff's right to such funds, and
the amount claimed by him. Any heir, devisee, legatee, or their
assigns of an estate whose funds were paid to the state treasurer
under this chapter before September 1, 1991, must initiate suit
under this section not later than September 1, 2009.
SECTION 75. Section 74.101(a), Property Code, is amended to
read as follows:
(a) Each holder who on June 30 holds property that is
presumed abandoned under Chapter 72, 73, or 75 of this code or under
Chapter 154, Finance Code, shall file a report of that property on
or before the following November 1. The comptroller may require the
report to be in a particular format, including an electronic [a]
format that can be read by a computer if the holder is reporting 10
or more items of property.
SECTION 76. Section 74.401, Property Code, is amended by
adding Subsection (f) to read as follows:
(f) The comptroller may sell as a gift, novelty, or
collectible item, but not as an investment, a stock, bond,
certificate, or similar instrument that is nonredeemable and
nontransferable because it has been canceled or issued by a company
that has been dissolved or terminated and the existence of which has
not been revived or reinstated. The comptroller may sell an
instrument under this subsection at a public sale or in another
manner determined to be appropriate by the comptroller, including
an online sale. Before selling an instrument under this
subsection, the comptroller must stamp the face of the instrument
with a prominent mark indicating that the instrument has been
canceled. At the time of the sale and of the delivery of the
instrument to the purchaser, the comptroller must provide written
notice to the purchaser as required by this subsection. The notice
must be printed in a font size that is at least as large as the
largest font size on the page of the notice and include statements
substantially similar to the following:
"(1) the comptroller is not a registered
broker-dealer;
(2) this instrument is not being sold for investment
purposes; and
(3) this instrument is nonredeemable and
nontransferable because it has been canceled or issued by a company
that has been dissolved or terminated and the existence of which has
not been revived or reinstated."
SECTION 77. Section 74.507(b), Property Code, is amended to
read as follows:
(b) The person who informs a potential claimant and by
contract or other written agreement is to receive a percentage of
the value of the property may not file or receive a [form to] claim
form on behalf of a claimant.
SECTION 78. Section 74.601, Property Code, is amended by
adding Subsection (g) to read as follows:
(g) If an owner does not assert a claim for unclaimed funds
reported to the comptroller and the owner is reported to be the
state or a state agency, the comptroller may deposit the unclaimed
funds to the credit of the general revenue fund. The comptroller
may establish procedures and adopt rules as necessary to implement
this section.
SECTION 79. (a) Section 6.03, Tax Code, is amended by adding
Subsection (a-1) to read as follows:
(a-1) Notwithstanding Subsection (a) or any change in the
method or procedure for appointing directors adopted under Section
6.031 before the date this subsection becomes effective, in an
appraisal district established for a county with a population of
less than 5,000, one director is appointed by the governing body of
the most populous municipality that participates in the district,
excluding the population of any portion of a municipality for which
another appraisal district appraises property. The governing body
of the municipality shall make the appointment by resolution and
submit the resolution to the chief appraiser before December 15. If
a vacancy occurs on the board of directors in the position held by
the member appointed by the governing body, the governing body
shall appoint a person to fill the vacancy. The governing body may
recall a member appointed by the governing body by submitting a
resolution to the chief appraiser stating that the municipality is
recalling the member. A change under Section 6.031 made after this
subsection becomes effective is not valid if the governing body
adopts a resolution opposing the change and files it with the chief
appraiser. The municipality is considered to be a taxing unit
entitled to vote on the appointment of board members for purposes of
Section 6.034. The other directors are appointed in the manner
otherwise applicable to the district under this section or Section
6.031 by the other taxing units that participate in the appraisal
district. If those directors are appointed as provided by this
section, the total dollar amount of taxes imposed in the district by
the municipality is excluded from the calculation of the voting
entitlements of the other taxing units. The governing body of the
municipality may not participate in a vote to fill a vacancy in a
position on the board held by a member appointed by the other taxing
units or to recall a member of the board appointed by the other
taxing units.
(b) The change in law made by this section applies only to
the selection of appraisal district directors for terms beginning
on or after January 1, 2006. The change in law made by this section
does not affect the selection of appraisal district directors for
terms beginning before that date.
(c) If the directors of an appraisal district described by
Section 6.03(a-1), Tax Code, as added by this Act, serve staggered
terms, one of the directors must be appointed by the governing body
of the most populous municipality that participates in the district
at:
(1) the first election of directors after the
effective date of this section, if the board of directors consists
of an even number of directors; or
(2) the first election of directors after the
effective date of this section at which the greater number of
directors is elected, if the board of directors consists of an odd
number of directors.
(d) This section takes effect immediately if this Act
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this section takes effect September 1, 2005.
SECTION 80. Subchapter C, Chapter 41, Tax Code, is amended
by adding Section 41.445 to read as follows:
Sec. 41.445. NOTICE OF FILING OF NOTICE OF PROTEST. (a) On
request of a taxing unit that participates in the appraisal
district, the secretary of the appraisal review board shall send by
regular mail to the presiding officer of the governing body of the
taxing unit a copy of each notice of protest pertaining to:
(1) a property that is or may be taxable by the taxing
unit; or
(2) a property that is or may be taxable by the taxing
unit and that is appraised by the chief appraiser at more than a
certain amount, as specified by the taxing unit.
(b) The secretary shall mail a copy of a notice of protest as
required by this section not later than the 10th day after the date
the notice is filed.
SECTION 81. Sections 41.47(a) and (d), Tax Code, are
amended to read as follows:
(a) Not later than the 30th day after the date the notice of
a protest is filed or as soon thereafter as practicable, the [The]
appraisal review board hearing the [a] protest shall determine the
protest and make its decision by written order.
(d) The board shall deliver by certified mail a notice of
issuance of the order and a copy of the order to the property owner
and the chief appraiser. In addition, the board shall send by
regular mail a notice of issuance of the order and a copy of the
order to the presiding officer of the governing body of each taxing
unit to which a copy of the notice of protest was mailed under
Section 41.445.
SECTION 82. Section 43.04, Tax Code, is amended to read as
follows:
Sec. 43.04. SUIT TO COMPEL COMPLIANCE WITH DEADLINES. The
governing body of a taxing unit may sue the chief appraiser or
members of the appraisal review board, as applicable, for failure
to comply with the deadlines imposed by Section 25.22(a), 26.01(a),
[or] 41.12, or 41.47(a). If the court finds that the chief
appraiser or appraisal review board failed to comply for good cause
shown, the court shall enter an order fixing a reasonable deadline
for compliance. If the court finds that the chief appraiser or
appraisal review board failed to comply without good cause, the
court shall enter an order requiring the chief appraiser or
appraisal review board to comply with the deadline not later than
the 10th day after the date the judgment is signed. In a suit
brought under this section, the court may enter any other order the
court considers necessary to ensure compliance with the court's
deadline or the applicable statutory requirements. Failure to obey
an order of the court is punishable as contempt.
SECTION 83. Section 41.445, Tax Code, as added by this Act,
and Sections 41.47 and 43.04, Tax Code, as amended by this Act,
apply only to a protest the notice of which is filed on or after
January 1, 2006.
SECTION 84. (a) Section 151.304(b), Tax Code, is amended to
read as follows:
(b) In this section, "occasional sale" means:
(1) one or two sales of taxable items, other than an
amusement service, at retail during a 12-month period by a person
who does not habitually engage, or hold himself out as engaging, in
the business of selling taxable items at retail;
(2) the sale of the entire operating assets of a
business or of a separate division, branch, or identifiable segment
of a business;
(3) a transfer of all or substantially all the
property used by a person in the course of an activity if after the
transfer the real or ultimate ownership of the property is
substantially similar to that which existed before the transfer;
[or]
(4) the sale of not more than 10 admissions for
amusement services during a 12-month period by a person who does not
hold himself out as engaging, or does not habitually engage, in
providing amusement services; or
(5) the sale of tangible personal property by an
individual if:
(A) the property was originally bought by the
individual or a member of the individual's family for the personal
use of the individual or the individual's family;
(B) the individual does not hold a permit issued
under this chapter and is not required to obtain a permit as a
"seller" or "retailer" as those terms are defined by Section
151.008;
(C) the individual does not employ an auctioneer,
broker, or factor, other than an online auction, to sell the
property; and
(D) the total receipts from sales of the
individual's tangible personal property in a calendar year does not
exceed $3,000.
(b) The change in law made by this section does not affect
tax liability accruing before the effective date of this section.
That liability continues in effect as if this section had not been
enacted, and the former law is continued in effect for the
collection of taxes due and for civil and criminal enforcement of
the liability for those taxes.
(c) This section takes effect July 1, 2005, if this Act
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this section takes effect September 1, 2005.
SECTION 85. (a) Subchapter L, Chapter 151, Tax Code, is
amended by adding Section 151.715 to read as follows:
Sec. 151.715. COLLECTION OF AMOUNTS IN EXCESS OF TAX
IMPOSED; CIVIL PENALTY. (a) A person may not collect as a tax
imposed by this chapter:
(1) any amount that exceeds the tax actually imposed
by this chapter on the sale of a taxable item; or
(2) any amount on the sale of an item that is exempt
from the tax imposed by this chapter.
(b) The comptroller shall send a written notice to a person
who violates Subsection (a) that directs the person to cease
collecting amounts described by that subsection. If, after the
person receives two written notices from the comptroller, the
person continues collecting an amount described by that subsection,
the person shall pay a penalty of $1,000 for each sale on which the
person collects an amount described by that subsection.
(c) The penalty provided by this section is assessed without
regard to whether the person against whom the penalty is assessed
remits to the comptroller the excess amounts collected.
(b) Section 151.715, Tax Code, as added by this section,
applies only to the sale of an item that occurs on or after the
effective date of this section. The sale of an item that occurs
before the effective date of this section is governed by the law in
effect on the date the sale occurred, and the former law is
continued in effect for that purpose.
SECTION 86. Sections 162.001(9), (19), (20), (42), and
(43), Tax Code, are amended to read as follows:
(9) "Blending" means the mixing together of one or
more [petroleum] products with other products [another product],
regardless of the original character of the product blended, to
produce a product that is offered for sale, sold, or used as a motor
fuel or [if the product obtained by the blending] is capable of use
in the generation of power for the propulsion of a motor vehicle.
The term does not include mixing that occurs in the process of
refining by the original refiner of crude petroleum or the
commingling of products during transportation in a pipeline.
(19) "Diesel fuel" means kerosene or another liquid,
or a combination of liquids blended together, offered for sale,
sold, [that is suitable for] or used as a fuel for a [for the
propulsion of] diesel-powered engine [motor vehicles]. The term
includes products commonly referred to as kerosene, light cycle
oil, #1 diesel fuel, #2 diesel fuel, dyed or undyed diesel fuel,
aviation jet fuel, biodiesel, distillate fuel, cutter stock, or
heating oil, but does not include gasoline, aviation gasoline, or
liquefied gas.
(20) "Distributor" means a person who acquires motor
fuel from a licensed supplier, permissive supplier, or another
licensed distributor and who makes sales at wholesale and whose
activities may also include sales at retail. The term includes a
person engaged in the tax-free sale of dyed diesel fuel to marine
vessels.
(42) "Motor fuel" means gasoline, diesel fuel,
liquefied gas, and other products that are offered for sale, sold,
or [can be] used as propellants for [to propel] a motor vehicle.
(43) "Motor fuel transporter" means a person who
transports gasoline, diesel fuel, or gasoline blended fuel for hire
outside the bulk transfer/terminal system by means of a transport
vehicle, a railroad tank car, or a marine vessel.
SECTION 87. Section 162.004(b), Tax Code, is amended to
read as follows:
(b) The shipping document issued by the terminal operator or
operator of a bulk plant shall contain the following information
and any other information required by the comptroller:
(1) the terminal control number of the terminal or
physical address of the bulk plant from which the motor fuel was
received;
(2) the name [and license number] of the purchaser;
(3) the date the motor fuel was loaded;
(4) the net gallons loaded, or the gross gallons
loaded if the fuel was purchased from a bulk plant;
(5) the destination state of the motor fuel, as
represented by the purchaser of the motor fuel or the purchaser's
agent; and
(6) a description of the product being transported.
SECTION 88. Section 162.016(a), Tax Code, is amended to
read as follows:
(a) A person may not import motor fuel to a destination in
this state or export motor fuel to a destination outside this state
by any means unless the person possesses a shipping document for
that fuel created by the terminal or bulk plant at which the fuel
was received. The shipping document must include:
(1) the name and physical address of the terminal or
bulk plant from which the motor fuel was received for import or
export;
(2) the name [and federal employer identification
number, or the social security number if the employer
identification number is not available,] of the carrier
transporting the motor fuel;
(3) the date the motor fuel was loaded;
(4) the type of motor fuel;
(5) the number of gallons:
(A) in temperature-adjusted gallons if purchased
from a terminal for export or import; or
(B) in temperature-adjusted gallons or in gross
gallons if purchased from a bulk plant;
(6) the destination of the motor fuel as represented
by the purchaser of the motor fuel and the number of gallons of the
fuel to be delivered, if delivery is to only one state;
(7) the name[, federal employer identification
number, license number, and physical address] of the purchaser of
the motor fuel;
(8) the name of the person responsible for paying the
tax imposed by this chapter, as given to the terminal by the
purchaser if different from the licensed supplier or distributor;
and
(9) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
SECTION 89. Section 162.113(d), Tax Code, is amended to
read as follows:
(d) The supplier or permissive supplier shall [has the
right], after notifying the comptroller of the licensed
distributor's or licensed importer's failure to remit taxes under
this section, [to] terminate the ability of the licensed
distributor or licensed importer to defer the payment of gasoline
tax. The supplier or permissive supplier shall reinstate without
delay the right of the licensed distributor or licensed importer to
defer the payment of gasoline tax after the comptroller provides to
the supplier or permissive supplier notice that the licensed
distributor or licensed importer is in good standing with the
comptroller for the purposes of the gasoline tax imposed under this
subchapter.
SECTION 90. Section 162.115, Tax Code, is amended by adding
Subsection (m-1) to read as follows:
(m-1) In addition to the records specifically required by
this section, a license holder shall keep any other record required
by the comptroller.
SECTION 91. Sections 162.116(a) and (d), Tax Code, are
amended to read as follows:
(a) The monthly return and supplements of each supplier and
permissive supplier shall contain for the period covered by the
return:
(1) [the number of net gallons of gasoline received by
the supplier or permissive supplier during the month, sorted by
product code, seller, point of origin, destination state, carrier,
and receipt date;
[(2)] the number of net gallons of gasoline removed at
a terminal rack during the month from the account of the supplier,
sorted by product code, person receiving the gasoline, terminal
code, and carrier;
(2) [(3)] the number of net gallons of gasoline
removed during the month for export, sorted by product code, person
receiving the gasoline, terminal code, destination state, and
carrier;
(3) [(4)] the number of net gallons of gasoline
removed during the month from a terminal located in another state
for conveyance to this state, as indicated on the shipping document
for the gasoline, sorted by product code, person receiving the
gasoline, terminal code, and carrier;
(4) [(5)] the number of net gallons of gasoline the
supplier or permissive supplier sold during the month in
transactions exempt under Section 162.104, sorted by [product code,
carrier,] purchaser[, and terminal code;
[(6) the number of net gallons of gasoline sold in the
bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license]; and
(5) [(7)] any other information required by the
comptroller.
(d) For purposes of Subsection (c), all payments or credits
in reduction of a customer's account must be applied ratably
between motor fuels and other goods sold to the customer, and the
credit allowed will be the tax on the number of gallons represented
by the motor fuel portion of the credit. The comptroller may not
require a supplier or permissive supplier to remit from a payment or
credit in reduction of a customer's account any tax for which the
supplier or permissive supplier was allowed to take a credit.
SECTION 92. Section 162.118, Tax Code, is amended to read as
follows:
Sec. 162.118. INFORMATION REQUIRED ON DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain for the period covered by the return:
(1) the number of net gallons of gasoline received by
the distributor during the month, sorted by product code and[,]
seller[, point of origin, destination state, carrier, and receipt
date];
(2) the number of net gallons of gasoline removed at a
terminal rack by the distributor during the month, sorted by
product code, seller, and terminal code[, and carrier];
(3) the number of net gallons of gasoline removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of gasoline removed by
the distributor during the month from a terminal located in another
state for conveyance to this state, as indicated on the shipping
document for the gasoline, sorted by product code, seller, terminal
code, bulk plant address, and carrier;
(5) the number of net gallons of gasoline the
distributor sold during the month in transactions exempt under
Section 162.104, sorted by product code and purchaser; and
(6) any other information required by the comptroller.
SECTION 93. Section 162.123, Tax Code, is amended to read as
follows:
Sec. 162.123. INFORMATION REQUIRED ON BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
for the period covered by the return:
(1) [the number of net gallons of gasoline received by
the blender during the month, sorted by product code, seller, point
of origin, carrier, and receipt date;
[(2)] the number of net gallons of product blended
with gasoline during the month, sorted by product code, type of
blending agent if no product code exists, seller, and carrier;
[(3) the number of net gallons of blended gasoline
sold during the month and the license number or name and address of
the entity receiving the blended gasoline;] and
(2) [(4)] any other information required by the
comptroller.
SECTION 94. Section 162.127, Tax Code, is amended by adding
Subsection (g) to read as follows:
(g) The comptroller shall issue a refund warrant to a
distributor not later than the 60th day after the date the
comptroller receives a valid refund claim from the distributor. If
the comptroller does not issue the refund warrant by that date, the
amount of the refund draws interest at the rate provided by Section
111.060 beginning on the 61st day after the date the comptroller
receives the valid refund claim and ending on the date the
comptroller issues the refund warrant.
SECTION 95. Section 162.206, Tax Code, is amended by
amending Subsection (c) and adding Subsections (c-1) and (h-1) to
read as follows:
(c) A person may not make a tax-free purchase and a licensed
supplier or distributor may not make a tax-free sale to a purchaser
of any dyed diesel fuel under this section using a signed statement
for the first sale or purchase and for any subsequent sale or
purchase[:
[(1) for the purchase or the sale of more than 7,400
gallons of dyed diesel fuel in a single delivery; or
[(2)] in a calendar month for [in which the person has
previously purchased from all sources or in which the licensed
supplier has previously sold to that purchaser] more than:
(1) [(A)] 10,000 gallons of dyed diesel fuel;
(2) [(B)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in the original production of, or
to increase the production of, oil or gas and furnishes the supplier
with a letter of exception issued by the comptroller; or
(3) [(C)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in agricultural off-highway
equipment.
(c-1) The monthly limitations prescribed by Subsection (c)
apply regardless of whether the dyed diesel fuel is purchased in a
single transaction during that month or in multiple transactions
during that month.
(h-1) For purposes of this section, the purchaser is
considered to have furnished the signed statement to the licensed
supplier or distributor if the supplier or distributor verifies
that the purchaser has an end user number issued by the comptroller.
The licensed supplier or distributor shall use the comptroller's
Internet website or other materials provided or produced by the
comptroller to verify this information.
SECTION 96. Section 162.214(d), Tax Code, is amended to
read as follows:
(d) The supplier or permissive supplier shall [has the
right], after notifying the comptroller of the licensed
distributor's or licensed importer's failure to remit taxes under
this section, [to] terminate the ability of the licensed
distributor or licensed importer to defer the payment of diesel
fuel tax. The supplier or permissive supplier shall reinstate
without delay the right of the licensed distributor or licensed
importer to defer the payment of diesel fuel tax after the
comptroller provides to the supplier or permissive supplier notice
that the licensed distributor or licensed importer is in good
standing with the comptroller for the purposes of diesel fuel tax
imposed under this subchapter.
SECTION 97. Section 162.216, Tax Code, is amended by adding
Subsection (m-1) to read as follows:
(m-1) In addition to the records specifically required by
this section, a license holder shall keep any other record required
by the comptroller.
SECTION 98. Sections 162.217(a) and (d), Tax Code, are
amended to read as follows:
(a) The monthly return and supplements of each supplier and
permissive supplier shall contain for the period covered by the
return:
(1) [the number of net gallons of diesel fuel received
by the supplier or permissive supplier during the month, sorted by
product code, seller, point of origin, destination state, carrier,
and receipt date;
[(2)] the number of net gallons of diesel fuel removed
at a terminal rack during the month from the account of the
supplier, sorted by product code, person receiving the diesel fuel,
terminal code, and carrier;
(2) [(3)] the number of net gallons of diesel fuel
removed during the month for export, sorted by product code, person
receiving the diesel fuel, terminal code, destination state, and
carrier;
(3) [(4)] the number of net gallons of diesel fuel
removed during the month from a terminal located in another state
for conveyance to this state, as indicated on the shipping document
for the diesel fuel, sorted by product code, person receiving the
diesel fuel, terminal code, and carrier;
(4) [(5)] the number of net gallons of diesel fuel the
supplier or permissive supplier sold during the month in
transactions exempt under Section 162.204, sorted by [product code,
carrier,] purchaser[, and terminal code;
[(6) the number of net gallons of diesel fuel sold in
the bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license]; and
(5) [(7)] any other information required by the
comptroller.
(d) For the purpose of Subsection (c), all payments or
credits in reduction of a customer's account must be applied
ratably between motor fuels and other goods sold to the customer,
and the credit allowed will be the tax on the number of gallons
represented by the motor fuel portion of the credit. The
comptroller may not require a supplier or permissive supplier to
remit from a payment or credit in reduction of a customer's account
any tax for which the supplier or permissive supplier was allowed to
take a credit.
SECTION 99. Section 162.219, Tax Code, is amended to read as
follows:
Sec. 162.219. INFORMATION REQUIRED ON DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain for the period covered by the return:
(1) the number of net gallons of diesel fuel received
by the distributor during the month, sorted by product code and[,]
seller [, point of origin, destination state, carrier, and receipt
date];
(2) the number of net gallons of diesel fuel removed at
a terminal rack by the distributor during the month, sorted by
product code, seller, and terminal code[, and carrier];
(3) the number of net gallons of diesel fuel removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of diesel fuel removed by
the distributor during the month from a terminal located in another
state for conveyance to this state, as indicated on the shipping
document for the diesel fuel, sorted by product code, seller,
terminal code, bulk plant address, and carrier;
(5) the number of net gallons of diesel fuel the
distributor sold during the month in transactions exempt under
Section 162.204, sorted by product code and by the entity receiving
the diesel fuel;
(6) the number of net gallons of[,] dyed diesel fuel
sold to a purchaser under a signed statement[,] or dyed diesel fuel
sold to a dyed diesel fuel bonded user, sorted by product code and
by the entity receiving the diesel fuel; and
(7) [(6)] any other information required by the
comptroller.
SECTION 100. Section 162.224, Tax Code, is amended to read
as follows:
Sec. 162.224. INFORMATION REQUIRED ON BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
for the period covered by the return:
(1) [the number of net gallons of diesel fuel received
by the blender during the month, sorted by product code, seller,
point of origin, carrier, and receipt date;
[(2)] the number of net gallons of product blended
with diesel fuel during the month, sorted by product code, type of
blending agent if no product code exists, seller, and carrier;
[(3) the number of net gallons of blended diesel fuel
sold during the month and the license number or name and address of
the entity receiving the blended diesel fuel;] and
(2) [(4)] any other information required by the
comptroller.
SECTION 101. Section 162.229, Tax Code, is amended by
adding Subsection (g) to read as follows:
(g) The comptroller shall issue a refund warrant to a
distributor not later than the 60th day after the date the
comptroller receives a valid refund claim from the distributor. If
the comptroller does not issue the refund warrant by that date, the
amount of the refund draws interest at the rate provided by Section
111.060 beginning on the 61st day after the date the comptroller
receives the valid refund claim and ending on the date the
comptroller issues the refund warrant.
SECTION 102. Section 162.230(d), Tax Code, is amended to
read as follows:
(d) A supplier, [or] permissive supplier, or distributor
that determines taxes were erroneously reported and remitted or
that paid more taxes than were due to this state because of a
mistake of fact or law may take a credit on the monthly tax report on
which the error has occurred and tax payment made to the
comptroller. The credit must be taken before the expiration of the
applicable period of limitation as provided by Chapter 111.
SECTION 103. Sections 162.404(c) and (d), Tax Code, are
amended to read as follows:
(c) The prohibition under Section 162.403(32) does not
apply to the tax-free sale or distribution of diesel fuel
authorized by Section 162.204(a)(1) [162.204(1)], (2), or (3).
(d) The prohibition under Section 162.403(33) does not
apply to the tax-free sale or distribution of gasoline under
Section 162.104(a)(1) [162.104(1)], (2), or (3).
SECTION 104. Section 311.0125, Tax Code, is amended by
adding Subsection (f) to read as follows:
(f) If under this section a municipality has entered into a
tax abatement agreement with an owner of real or personal property
in a reinvestment zone designated under this chapter, the
municipality may not enter into a tax abatement agreement
authorized by any other law of this state in connection with the
same property of that owner.
SECTION 105. (a) This section applies only to a homestead
preservation reinvestment zone that is designated in the manner
provided by statute by an ordinance adopted by the governing body of
a municipality and in connection with which the municipality has
established an ad valorem tax increment fund.
(b) A taxing unit, as defined by Section 1.04, Tax Code, may
enter into a tax abatement agreement with an owner of real or
personal property in a homestead preservation reinvestment zone,
regardless of whether the taxing unit deposits or agrees to deposit
any portion of its tax increment into the tax increment fund for the
zone.
(c) To be effective, an agreement to abate ad valorem taxes
on real property in a homestead preservation reinvestment zone
under this section must be approved by:
(1) the governing body of the reinvestment zone; and
(2) the governing body of each taxing unit that
imposes ad valorem taxes on real property in the reinvestment zone
and deposits or agrees to deposit any of its tax increment into the
tax increment fund for the zone.
(d) In any contract entered into by the governing body of a
homestead preservation reinvestment zone in connection with bonds
or other obligations, the governing body may covenant that it will
not approve an ad valorem tax abatement agreement that applies to
real property in that zone.
(e) If a taxing unit enters into an ad valorem tax abatement
agreement authorized by this section, ad valorem taxes that are
abated under that agreement are not considered taxes to be imposed
or produced by that taxing unit in calculating the amount of:
(1) the tax increment of that taxing unit; or
(2) that taxing unit's deposit to the tax increment
fund for the homestead preservation reinvestment zone.
(f) Notwithstanding any other law:
(1) at least 45 percent of the revenue from the tax
increment fund expended annually must benefit families that have a
yearly income at or below 50 percent of the area median family
income, adjusted for family size;
(2) the municipality must spend at least 70 percent of
the revenue from the tax increment fund expended annually for the
purchase of real property and the construction or rehabilitation of
affordable housing in the zone; and
(3) not more than 10 percent of the revenue expended
annually from the tax increment fund may be spent for
infrastructure improvements necessary to support the construction
or rehabilitation of affordable housing within the zone.
SECTION 106. If a provision of this Act relating to the
expenditure of revenue from the tax increment fund established for
a homestead preservation reinvestment zone conflicts with a
provision of any other act of the 79th Legislature, Regular
Session, 2005, it is the intent of the legislature that the
provision of this Act prevail, regardless of the relative dates of
enactment of this Act and the other act or acts.
SECTION 107. Section 623.052(b), Transportation Code, is
amended to read as follows:
(b) Before a person may operate a vehicle under this
section, the person must:
(1) contract with the department to indemnify the
department for the cost of the maintenance and repair for damage
caused by a vehicle crossing that part of the highway; and
(2) execute an adequate surety bond to compensate for
the cost of maintenance and repair, approved by [the comptroller
and] the attorney general, with a corporate surety authorized to do
business in this state, conditioned on the person fulfilling each
obligation of the agreement.
SECTION 108. Section 404.024, Government Code, is amended
by amending Subsections (b) and (l) and adding Subsections (n) and
(o) to read as follows:
(b) State funds not deposited in state depositories shall be
invested by the comptroller in:
(1) direct security repurchase agreements;
(2) reverse security repurchase agreements;
(3) direct obligations of or obligations the principal
and interest of which are guaranteed by the United States;
(4) direct obligations of or obligations guaranteed by
agencies or instrumentalities of the United States government;
(5) bankers' acceptances that:
(A) are eligible for purchase by the Federal
Reserve System;
(B) do not exceed 270 days to maturity; and
(C) are issued by a bank whose other comparable
short-term obligations are rated in [that has received] the highest
short-term [credit] rating category, within which there may be
subcategories or gradations, including such subcategories or
gradations as "rating category" or "rated," indicating relative
standing by a nationally recognized statistical rating
organization, as defined by Rule 2a-7 (17 C.F.R. Part 270.2a-7),
promulgated under the Investment Company Act of 1940 by the
Securities and Exchange Commission [investment rating firm];
(6) commercial paper that:
(A) does not exceed 270 days to maturity; and
(B) except as provided by Subsection (i), is
issued by an entity whose other comparable short-term obligations
are rated in [has received] the highest short-term [credit] rating
category by a nationally recognized statistical rating
organization [investment rating firm];
(7) contracts written by the treasury in which the
treasury grants the purchaser the right to purchase securities in
the treasury's marketable securities portfolio at a specified price
over a specified period and for which the treasury is paid a fee and
specifically prohibits naked-option or uncovered option trading;
(8) direct obligations of or obligations guaranteed by
the Inter-American Development Bank, the International Bank for
Reconstruction and Development (the World Bank), the African
Development Bank, the Asian Development Bank, and the International
Finance Corporation that have received the highest long-term
[credit] rating categories for debt obligations by a nationally
recognized statistical rating organization [investment rating
firm];
(9) bonds issued, assumed, or guaranteed by the State
of Israel;
(10) obligations of a state or an agency, county,
city, or other political subdivision of a state;
(11) mutual funds secured by obligations that are
described by Subdivisions (1) through (6), including pooled funds:
(A) established by the Texas Treasury
Safekeeping Trust Company;
(B) operated like a mutual fund; and
(C) with portfolios consisting only of
dollar-denominated securities; [and]
(12) foreign currency for the sole purpose of
facilitating investment by state agencies that have the authority
to invest in foreign securities;
(13) asset-backed securities, as defined by the
Securities and Exchange Commission in Rule 2a-7 (17 C.F.R. Part
270.2a-7), that are rated at least A or its equivalent by a
nationally recognized statistical rating organization and that
have a weighted-average maturity of five years or less; and
(14) corporate debt obligations that are rated at
least A or its equivalent by a nationally recognized statistical
rating organization and mature in five years or less from the date
on which the obligations were "acquired," as defined by the
Securities and Exchange Commission in Rule 2a-7 (17 C.F.R. Part
270.2a-7).
(l) The comptroller may lend securities under procedures
established by the comptroller. The procedures must be consistent
with industry practice and must include a requirement to fully
secure the loan with cash, obligations described by Subsections
(b)(1)-(6), or a combination of cash and the described obligations.
Notwithstanding any provision to the contrary, cash may be
reinvested in the items permitted under Subsection (b) or mutual
funds secured by the items permitted under Subsection (b) [In this
subsection, "obligation" means an item described by Subsections
(b)(1)-(6)].
(n) In entering into a direct security repurchase agreement
or a reverse security repurchase agreement, the comptroller may
agree to accept cash on an overnight basis in lieu of the
securities, obligations, or participation certificates identified
in Section 404.001(3). Cash held by the state under this subsection
is not a deposit of state or public funds for purposes of any
statute, including this subchapter or Subchapter D, that requires a
deposit of state or public funds to be collateralized by eligible
securities.
(o) Notwithstanding any other law to the contrary, any
government investment pool created to function as a money market
mutual fund and managed by the comptroller or the Texas Treasury
Safekeeping Trust Company may invest the funds it receives in
investments that are "eligible securities," as defined by the
Securities and Exchange Commission in Rule 2a-7 (17 C.F.R. Part
270.2a-7), if it maintains a dollar-weighted average portfolio
maturity of 90 days or less, with the maturity of each portfolio
security calculated in accordance with Rule 2a-7 (17 C.F.R. Part
270.2a-7), and meets the diversification requirements of Rule 2a-7.
SECTION 109. Section 2256.011, Government Code, is amended
by adding Subsection (f) to read as follows:
(f) For purposes of this section, an entity may agree to
accept cash on an overnight basis in lieu of the obligations
identified in Section 2256.009(a)(1). Cash held by an entity under
this subsection is not a deposit of public funds for purposes of any
statute, including Chapter 2257, that requires a deposit of public
funds to be collateralized by eligible securities.
SECTION 110. Section 2256.016, Government Code, is amended
by amending Subsections (a) and (f) and adding Subsection (i) to
read as follows:
(a) An entity may invest its funds and funds under its
control through an eligible investment pool if the governing body
of the entity by rule, order, ordinance, or resolution, as
appropriate, authorizes investment in the particular pool. An
investment pool created to function as a money market mutual fund
may invest the funds it receives from entities in investments that
are "eligible securities," as defined by the Securities and
Exchange Commission in Rule 2a-7 (17 C.F.R. Part 270.2a-7),
promulgated under the Investment Company Act of 1940. Any other
[An] investment pool shall invest the funds it receives from
entities in authorized investments permitted by this subchapter.
(f) To be eligible to receive funds from and invest funds on
behalf of an entity under this chapter, a public funds investment
pool created to function as a money market mutual fund must:
(1) mark its portfolio to market daily, and, to the
extent reasonably possible, stabilize at a $1 net asset value. If
the ratio of the market value of the portfolio divided by the book
value of the portfolio is less than 0.995 or greater than 1.005,
portfolio holdings shall be sold as necessary to maintain the ratio
between 0.995 and 1.005;
(2) maintain a dollar-weighted average portfolio
maturity of 90 days or less, with the maturity of each portfolio
security calculated in accordance with Rule 2a-7 (17 C.F.R. Part
270.2a-7); and
(3) meet the diversification requirements of Rule 2a-7
(17 C.F.R. Part 270.2a-7) promulgated by the Securities and
Exchange Commission.
(i) In this section, "stated maturity date" means the
average life of a security with periodic principal payments, the
number of days until the next interest rate reset date for variable
rate securities, or the final maturity date for all other
securities.
SECTION 111. (a) Section 442.015, Government Code, is
amended by adding Subsection (h) to read as follows:
(h) The comptroller may manage the assets of the Texas
preservation trust fund account in the same manner as the
comptroller may manage the assets of certain permanent funds under
Section 403.1068.
(b) Section 285.063, Health and Safety Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
(c) Section 775.0753, Health and Safety Code, is amended by
adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
(d) Section 776.0753, Health and Safety Code, is amended by
adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held as provided by
this subchapter.
(e) Article 1.16(b), Insurance Code, is amended to read as
follows:
(b) Assessments for the expenses of such domestic
examination which shall be sufficient to meet all the expenses and
disbursements necessary to comply with the provisions of the laws
of Texas relating to the examination of insurance companies and to
comply with the provisions of this Article and Articles 1.17 and
1.18 of this Code, shall be made by the State Board of Insurance
upon the corporations or associations to be examined taking into
consideration annual premium receipts, and/or admitted assets that
are not attributable to 90 percent of pension plan contracts as
defined in Section 818(a) of the Internal Revenue Code of 1986 (26
U.S.C. Section 818(a)), and/or insurance in force; provided such
assessments shall be made and collected as follows: (1) expenses
attributable directly to a specific examination including
employees' salaries and expenses and expenses provided by Section
803.007 [Article 1.28] of this Code shall be collected at the time
of examination; (2) assessments calculated annually for each
corporation or association which take into consideration annual
premium receipts, and/or admitted assets that are not attributable
to 90 percent of pension plan contracts as defined in Section 818(a)
of the Internal Revenue Code of 1986 (26 U.S.C. Section 818(a)),
and/or insurance in force shall be assessed annually for each such
corporation or association. In computing the assessments, the
board may not consider insurance premiums for insurance contracted
for by a state or federal governmental entity to provide welfare
benefits to designated welfare recipients or contracted for in
accordance with or in furtherance of Title 2, Human Resources Code,
or the federal Social Security Act (42 U.S.C. Section 301 et seq.).
The amount of all examination and evaluation fees paid in each
taxable year to the State of Texas by an insurance carrier shall be
allowed as a credit on the amount of premium taxes due [under this
article]. The limitations provided by Sections 803.007(1) and
(2)(B) of this code for domestic insurance companies apply to
foreign insurance companies.
(f) Section 222.002(b), Insurance Code, is amended to read
as follows:
(b) Except as otherwise provided by this section, in
determining an insurer's taxable gross premiums or a health
maintenance organization's taxable gross revenues, the insurer or
health maintenance organization shall include the total gross
amounts of premiums, membership fees, assessments, dues, revenues,
and other considerations received by the insurer or health
maintenance organization in a calendar year from any kind of health
maintenance organization certificate or contract or insurance
policy or contract covering risks on individuals or groups [a
person] located in this state and arising from the business of a
health maintenance organization or the business of life insurance,
accident insurance, health insurance, life and accident insurance,
life and health insurance, health and accident insurance, life,
health, and accident insurance, including variable life insurance,
credit life insurance, and credit accident and health insurance for
profit or otherwise or for mutual benefit or protection.
(g) Section 223.003(a), Insurance Code, is amended to read
as follows:
(a) An annual tax is imposed on all [each title insurance
company that receives] premiums from the business of title
insurance. The rate of the tax is 1.35 percent of [the] title
insurance [company's] taxable premiums for a calendar year,
including any premiums retained by a title insurance agent as
provided by Section 223.005. For purposes of this chapter, a person
engages in the business of title insurance if the person engages in
an activity described by Section 2501.005.
(h) Section 252.003, Insurance Code, is amended to read as
follows:
Sec. 252.003. PREMIUMS SUBJECT TO TAXATION. An insurer
shall pay maintenance taxes under this chapter on the correctly
reported gross premiums [collected] from writing insurance in this
state against loss or damage by:
(1) bombardment;
(2) civil war or commotion;
(3) cyclone;
(4) earthquake;
(5) excess or deficiency of moisture;
(6) explosion as defined by Article 5.52;
(7) fire;
(8) flood;
(9) frost and freeze;
(10) hail;
(11) insurrection;
(12) invasion;
(13) lightning;
(14) military or usurped power;
(15) an order of a civil authority made to prevent the
spread of a conflagration, epidemic, or catastrophe;
(16) rain;
(17) riot;
(18) the rising of the waters of the ocean or its
tributaries;
(19) smoke or smudge;
(20) strike or lockout;
(21) tornado;
(22) vandalism or malicious mischief;
(23) volcanic eruption;
(24) water or other fluid or substance resulting from
the breakage or leakage of sprinklers, pumps, or other apparatus
erected for extinguishing fires, water pipes, or other conduits or
containers;
(25) weather or climatic conditions; [or]
(26) windstorm;
(27) an event covered under a home warranty insurance
policy; or
(28) an event covered under an inland marine insurance
policy.
(i) Section 271.002(a), Insurance Code, is amended to read
as follows:
(a) A maintenance fee is imposed on all [each insurer with
gross] premiums subject to assessment under Section 271.006.
(j) Section 1502.053, Insurance Code, is amended to read as
follows:
Sec. 1502.053. EXEMPTION FROM CERTAIN TAXES. (a) The
issuer of a [A] children's health benefit plan approved under
Section 1502.051 [issuer] is not subject to the premium tax or the
tax on revenues imposed under Chapter 222 with respect to money
received for coverage provided under that plan.
(b) The issuer of a children's health benefit plan is not
subject to the retaliatory tax imposed under Chapter 281 with
respect to money received for coverage provided under that plan.
(k) Section 383.101, Local Government Code, is amended by
adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
(l) Section 387.012, Local Government Code, is amended to
read as follows:
Sec. 387.012. EFFECTIVE DATE OF TAX. (a) The adoption of
the tax, the change of the tax rate, or the repeal of the tax takes
effect on the first day of the first calendar quarter occurring
after the expiration of the first complete quarter occurring after
the date the comptroller receives a notice of the results of the
election adopting, changing, or repealing the tax.
(b) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
chapter.
(m) Section 21.05(e), Tax Code, is amended to read as
follows:
(e) For purposes of this subchapter, a commercial aircraft
shall mean an instrumentality of air commerce that is:
(1) primarily engaged in the transportation of cargo,
passengers, or equipment for others for consideration at least 50
percent of the time;
(2) economically employed when it is moving from point
to point as a means of transportation for a fee, flat rate, or
expense charge; and
(3) operated or managed by a certificated air carrier.
A certificated air carrier is one engaged in interstate or
intrastate commerce under authority of the Federal Aviation
Administration of the U.S. Department of Transportation under 14
C.F.R. Part 121 or 135.
(n) Subchapter B, Chapter 111, Tax Code, is amended by
adding Section 111.0515 to read as follows:
Sec. 111.0515. RESTRICTED OR CONDITIONAL PAYMENTS OF TAXES,
PENALTIES, AND INTEREST PROHIBITED. Unless the restriction or
condition is authorized by this title, a restriction or condition
placed on a check in payment of taxes by the maker of the check that
purports to limit the amount of taxes owed to an amount less than
that stated in the comptroller's records, or a restriction or
condition placed on a check in payment of penalties and interest on
delinquent taxes by the maker that purports to limit the amount of
the penalties and interest to an amount less than the amount of
penalties and interest accrued on the delinquent taxes, is void.
(o) Subchapter B, Chapter 111, Tax Code, is amended by
adding Section 111.065 to read as follows:
Sec. 111.065. EXPEDITIOUS ASSISTANCE FOR TAXPAYERS. (a)
As expeditiously as possible, the comptroller shall:
(1) refund or credit any amount of tax overpaid by a
person; and
(2) correct any erroneous assessment.
(b) The comptroller shall amend any audit or the records of
any audit period as expeditiously as possible if necessary to
comply with Subsection (a).
(p) Section 111.107, Tax Code, is amended to read as
follows:
Sec. 111.107. WHEN REFUND OR CREDIT IS PERMITTED. (a)
Except as otherwise expressly provided, a person may request a
refund or a credit or the comptroller may make a refund or issue a
credit for the overpayment of a tax imposed by this title at any
time before the expiration of the period during which the
comptroller may assess a deficiency for the tax and not thereafter
unless the refund or credit is requested:
(1) under Subchapter B of Chapter 112 and the refund is
made or the credit is issued under a court order;
(2) under the provision of Section 111.104(c)(3)
applicable to a refund claim filed after a jeopardy or deficiency
determination becomes final; or
(3) under Chapter 162 [153], except Section
162.126(f), 162.128(d), 162.228(f), or 162.230(d) [153.1195(e),
153.121(d), 153.2225(e), or 153.224(d)].
(b) A person may not refile a refund claim for the same
transaction or item, tax type, period, and ground or reason that was
previously denied by the comptroller in a refund hearing.
(q) Sections 151.011(a) and (c), Tax Code, are amended to
read as follows:
(a) Except as provided by Subsection (c) [of this section],
"use" means the exercise of a right or power incidental to the
ownership of tangible personal property over tangible personal
property, including tangible personal property other than printing
[printed] material that has been processed, fabricated, or
manufactured into other property or attached to or incorporated
into other property transported into this state, and, except as
provided by Section 151.056(b) [of this code], includes the
incorporation of tangible personal property into real estate or
into improvements of real estate whether or not the real estate is
subsequently sold.
(c) "Use" does not include the sale of tangible personal
property or a taxable service in the regular course of business, the
transfer of a taxable service as an integral part of the transfer of
tangible personal property in the regular course of business, or
the transfer of tangible personal property as an integral part of
the transfer of a taxable service in the regular course of business.
"Use" also does not include the sale outside this state of raw
materials that are processed, fabricated, or manufactured into
printed materials outside this state if the printed materials are
subsequently brought or delivered into this state.
(r) Section 151.3111(b), Tax Code, is amended to read as
follows:
(b) Subsection (a) does not apply to the performance of a
service on:
(1) tangible personal property that would be exempted
solely because of the exempt status of the seller of the property;
(2) tangible personal property that is exempted solely
because of the application of Section 151.303, 151.304, or 151.306;
(3) motor vehicles, trailers, or semitrailers as
defined, taxed, or exempted by Chapter 152; [or]
(4) a taxable boat or motor as defined by Section
160.001; [.]
(5) tangible [(6) Tangible] personal property exempt
under Section 151.326; or
(6) through December 31, 2007, tangible personal
property that is exempted solely because of the application of
Section 151.3162.
(s) Sections 151.3162(d) and (e), Tax Code, are amended to
read as follows:
(d) The exemption provided by Subsection (b) takes effect
January 1, 2008. Until that date, a person is entitled to an
exemption [a credit or refund] of a portion of the taxes paid under
this chapter on an item that after January 1, 2008, will be exempted
from the taxes imposed by this chapter under Subsection (b). The
amount of the exemption [credit or refund] is determined as
follows:
(1) for an item for which the taxable event occurs on
or after October 1, 2001, and before January 1, 2004, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 33 percent of the tax paid on the item;
(2) for an item for which the taxable event occurs on
or after January 1, 2004, and before January 1, 2006, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 50 percent of the tax paid on the item; and
(3) for an item for which the taxable event occurs on
or after January 1, 2006, and before January 1, 2008, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 75 percent of the tax paid on the item.
(e) A taxpayer entitled to a credit or refund under
Subsection (d), as that subsection existed on September 30, 2005,
may elect to receive either a credit or a refund. A taxpayer who
elects to receive a credit must claim the credit on the return for a
period that ends not later than the first anniversary of the date on
which the taxable event occurred. A taxpayer who elects to receive
a refund must apply to the comptroller for the refund before or
during the calendar year following the year in which the tax on the
item was paid.
(t) Section 171.110, Tax Code, is amended by adding
Subsection (m) to read as follows:
(m) Except as otherwise provided by this section, in
computing taxable earned surplus, a corporation is considered to
have made an election to use the same methods used in filing its
federal income tax return.
(u) Section 171.1121(b), Tax Code, is amended to read as
follows:
(b) Except as otherwise provided by this section, a
corporation shall use the same accounting methods to apportion
taxable earned surplus as the corporation used to compute taxable
earned surplus [in computing reportable federal taxable income].
(v) Section 171.801(2), Tax Code, is amended to read as
follows:
(2) "Qualified capital investment" means tangible
personal property, as defined by 26 C.F.R. Section 1.1245-3(b)(1),
that is first placed in service in a strategic investment area, or
first placed in service in a county with a population of less than
50,000 by a corporation primarily engaged in agricultural
processing, and that is described as Section 1245 property by [in]
Section 1245(a), Internal Revenue Code, such as engines, machinery,
tools, and implements used in a trade or business or held for
investment and subject to an allowance for depreciation, cost
recovery under the accelerated cost recovery system, or
amortization. The term does not include land [real property] or
buildings and their structural components. Property that is leased
under a capitalized lease is considered a "qualified capital
investment," but property that is leased under an operating lease
is not considered a "qualified capital investment." Property
expensed under Section 179, Internal Revenue Code, is not
considered a "qualified capital investment."
(w) Section 183.053(b), Tax Code, is amended to read as
follows:
(b) The total of bonds, certificates of deposit, letters of
credit, or other security determined to be sufficient by the
comptroller of a permittee subject to the tax imposed by this
chapter shall be in an amount that the comptroller determines to be
sufficient to protect the fiscal interests of the state. The
comptroller may not set the amount of security at less than $1,000
or more than the greater of $100,000 or four times the amount of the
permittee's average monthly tax liability [$50,000].
(x) Section 201.102, Tax Code, is amended to read as
follows:
Sec. 201.102. CASH SALES. If gas is sold for cash only, the
tax shall be computed on the producer's gross cash receipts.
Payments from a purchaser of gas to a producer for the purpose of
reimbursing the producer for taxes due under this chapter are not
part of the gross cash receipts [unless the reimbursement amount
for taxes due under this chapter is separately stated in the sales
contract].
(y) Sections 313.021(1) and (2), Tax Code, are amended to
read as follows:
(1) "Qualified investment" means:
(A) tangible personal property, as defined by 26
C.F.R. Section 1.1245-3(b)(1), that is first placed in service in
this state during the applicable qualifying time period that begins
on or after January 1, 2002, and is described as Section 1245
property by Section 1245(a), Internal Revenue Code of 1986;
(B) tangible personal property that is first
placed in service in this state during the applicable qualifying
time period that begins on or after January 1, 2002, without regard
to whether the property is affixed to or incorporated into real
property, and that is used in connection with the manufacturing,
processing, or fabrication in a cleanroom environment of a
semiconductor product, without regard to whether the property is
actually located in the cleanroom environment, including:
(i) integrated systems, fixtures, and
piping;
(ii) all property necessary or adapted to
reduce contamination or to control airflow, temperature, humidity,
chemical purity, or other environmental conditions or
manufacturing tolerances; and
(iii) production equipment and machinery,
moveable cleanroom partitions, and cleanroom lighting; or
(C) a building or a permanent, nonremovable
component of a building that is built or constructed during the
applicable qualifying time period that begins on or after January
1, 2002, and that houses tangible personal property described by
Paragraph (A) or (B).
(2) "Qualified property" means:
(A) land:
(i) that is located in an area designated as
a reinvestment zone under Chapter 311 or 312 or as an enterprise
zone under Chapter 2303, Government Code;
(ii) on which a person proposes to
construct a new building or erect or affix a new improvement that
does not exist before the date the owner applies for a limitation on
appraised value under this subchapter;
(iii) that is not subject to a tax abatement
agreement entered into by a school district under Chapter 312; and
(iv) on which, in connection with the new
building or new improvement described by Subparagraph (ii), the
owner of the land, or the owner of a leasehold interest in the land,
proposes to:
(a) make a qualified investment in an
amount equal to at least the minimum amount required by Section
313.023; and
(b) create at least 25 new jobs;
(B) the new building or other new improvement
described by Paragraph (A)(ii); and
(C) tangible personal property that:
(i) is not subject to a tax abatement
agreement entered into by a school district under Chapter 312; and
(ii) except for new equipment described in
Section 151.318(q) or (q-1), is first placed in service in the new
building or in or on the new improvement described by Paragraph
(A)(ii), or on the land on which that new building or new
improvement is located, if the personal property is ancillary and
necessary to the business conducted in that new building or in or on
that new improvement.
(z) Section 321.203, Tax Code, is amended by amending
Subsections (b)-(e) and adding Subsection (n) to read as follows:
(b) If a retailer has only one place of business in this
state, all of the retailer's retail sales of taxable items
[tangible personal property] are consummated at that place of
business except as provided by Subsection (e).
(c) If a retailer has more than one place of business in this
state, a sale of a taxable item [tangible personal property] by the
retailer is consummated at the retailer's place of business:
(1) from which the retailer ships or delivers the item
[property], if the retailer ships or delivers the item [property]
to a point designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item [property], if the purchaser or lessee takes
possession of and removes the item [property] from a place of
business of the retailer.
(d) If neither the possession of a taxable item [tangible
personal property] is taken at nor shipment or delivery of the item
[property] is made from the retailer's place of business in this
state, the sale is consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
salesman who took the order operates.
(e) A sale of a taxable item [tangible personal property] is
consummated at the location in this state to which the item
[property] is shipped or delivered or at which possession is taken
by the customer if transfer of possession of the item [property]
occurs at, or shipment or delivery of the item [property]
originates from, a location in this state other than a place of
business of the retailer and if:
(1) the retailer is an itinerant vendor who has no
place of business;
(2) the retailer's place of business where the
purchase order is initially received or from which the retailer's
salesman who took the order operates is outside this state; or
(3) the purchaser places the order directly with the
retailer's supplier and the item [property] is shipped or delivered
directly to the purchaser by the supplier.
(n) A sale of a service described by Section 151.0047 to
remodel, repair, or restore nonresidential real property is
consummated at the location of the job site. However, if the job
site includes areas in multiple municipalities, the sale is
consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent who took the order operates.
(aa) Section 321.302, Tax Code, is amended by adding
Subsection (c-1) to read as follows:
(c-1) For purposes of Subsection (c)(3), "full amount of the
tax due" means the amount of municipal tax to be allocated that can
be determined without a comptroller's audit of the person's
records.
(bb) Section 321.503, Tax Code, is amended to read as
follows:
Sec. 321.503. STATE'S SHARE. Before sending any money to a
municipality under this subchapter the comptroller shall deduct two
percent of the amount of the taxes collected within the
municipality during the period for which a distribution is made as
the state's charge for its services under this chapter and shall[,
subject to premiums payments under Section 321.501(c),] credit the
money deducted to the general revenue fund.
(cc) Section 323.102(c), Tax Code, is amended to read as
follows:
(c) A tax imposed under Section 323.105 of this code or
Chapter 326 or 383, Local Government Code, takes effect on the first
day of the first calendar quarter after the expiration of the first
complete calendar quarter occurring after the date on which the
comptroller receives a notice of the action as required by Section
323.405(b).
(dd) Section 323.203, Tax Code, is amended by amending
Subsections (b)-(e) and adding Subsection (m) to read as follows:
(b) If a retailer has only one place of business in this
state, all of the retailer's retail sales of taxable items
[tangible personal property] are consummated at that place of
business except as provided by Subsection (e).
(c) If a retailer has more than one place of business in this
state, a sale of a taxable item [tangible personal property] by the
retailer is consummated at the retailer's place of business:
(1) from which the retailer ships or delivers the item
[property], if the retailer ships or delivers the item [property]
to a point designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item [property], if the purchaser or lessee takes
possession of and removes the item [property] from a place of
business of the retailer.
(d) If neither the possession of a taxable item [tangible
personal property] is taken at nor shipment or delivery of the item
[property] is made from the retailer's place of business in this
state, the sale is consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
salesman who took the order operates.
(e) A sale of a taxable item [tangible personal property] is
consummated at the location in this state to which the item
[property] is shipped or delivered or at which possession is taken
by the customer if transfer of possession of the item [property]
occurs at, or shipment or delivery of the item [property]
originates from, a location in this state other than a place of
business of the retailer and if:
(1) the retailer is an itinerant vendor who has no
place of business;
(2) the retailer's place of business where the
purchase order is initially received or from which the retailer's
salesman who took the order operates is outside this state; or
(3) the purchaser places the order directly with the
retailer's supplier and the item [property] is shipped or delivered
directly to the purchaser by the supplier.
(m) A sale of a service described by Section 151.0047 to
remodel, repair, or restore nonresidential real property is
consummated at the location of the job site. However, if the job
site includes areas in multiple municipalities, the sale is
consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent who took the order operates.
(ee) Section 323.503, Tax Code, is amended to read as
follows:
Sec. 323.503. STATE'S SHARE. Before sending any money to a
county under this subchapter the comptroller shall deduct two
percent of the amount of the taxes collected within the county
during the period for which a distribution is made as the state's
charge for its services under this chapter and shall[, subject to
premiums payments under Section 323.501(c),] credit the money
deducted to the general revenue fund.
(ff) The heading to Subchapter A, Chapter 16, Utilities
Code, is amended to read as follows:
SUBCHAPTER A. ASSESSMENT ON UTILITY GROSS RECEIPTS [PUBLIC
UTILITIES]
(gg) The heading to Section 16.001, Utilities Code, is
amended to read as follows:
Sec. 16.001. ASSESSMENT ON UTILITY GROSS RECEIPTS [PUBLIC
UTILITIES].
(hh) Sections 16.001(a) and (b), Utilities Code, are
amended to read as follows:
(a) To defray the expenses incurred in the administration of
this title, an assessment is imposed on each telecommunications
utility, electric [public] utility, retail electric provider, and
electric cooperative within the jurisdiction of the commission that
serves the ultimate consumer, including each interexchange
telecommunications carrier.
(b) An assessment under this section is equal to one-sixth
of one percent of the telecommunications utility's, electric
[public] utility's, retail electric provider's, or electric
cooperative's gross receipts from rates charged to the ultimate
consumer in this state.
(ii) Section 16.002(b), Utilities Code, is amended to read
as follows:
(b) A telecommunications utility, electric [public]
utility, retail electric provider, or electric cooperative may
instead make quarterly payments due August 15, November 15,
February 15, and May 15.
(jj) The following sections of the Tax Code are repealed:
(1) Section 151.103(d);
(2) Section 151.202(c);
(3) Section 321.203(l), Tax Code, as added by Chapter
1310, Acts of the 78th Legislature, Regular Session, 2003; and
(4) Section 323.203(l).
(kk) The changes in law made by this Act to Section 201.102,
Tax Code, apply to a refund claim or determination under Chapter
111, Tax Code, without regard to whether the taxes that are the
subject of the refund claim or determination are due before, on, or
after the effective date of this Act.
(ll) The changes in law made by this Act to Section 111.009,
Tax Code, apply only to a petition for redetermination filed on or
after the effective date of this Act.
(mm) If a change in law made to Section 16.001 or 16.002,
Utilities Code, by this Act conflicts with another bill enacted by
the 79th Legislature, Regular Session, 2005, that amends Section
16.001 or 16.002, including H.B. No. 1779, that other bill
controls.
(nn) This section takes effect October 1, 2005.
SECTION 112. Section 161.081, Health and Safety Code, is
amended by adding Subdivision (7) to read as follows:
(7) "Attempt" means committing an act amounting to
more than mere preparation that tends but fails to effect the
commission of the offense intended.
SECTION 113. Subchapter H, Chapter 161, Health and Safety
Code, is amended by adding Section 161.0821 to read as follows:
Sec. 161.0821. PURCHASE OF CIGARETTES OR TOBACCO PRODUCTS
BY PERSONS YOUNGER THAN 18 YEARS OF AGE PROHIBITED. (a) A person
who is younger than 18 years of age commits an offense if the person
purchases or attempts to purchase cigarettes or tobacco products.
(b) An offense under this section is a Class C misdemeanor.
SECTION 114. Section 2303.401, Government Code, is amended
to read as follows:
Sec. 2303.401. DEFINITIONS. In this subchapter:
(1) "Certified job" means a new or retained job that:
(A) has provided at least 1,820 hours of
employment a year to a qualified employee of a qualified business as
described by Section 2303.402;
(B) is intended to exist for at least three years
after the date on which the comptroller makes the initial
certification of hiring commitments for the qualified business
under Section 2303.516(d); and
(C) has been certified by the comptroller as
eligible for receipt of a state benefit under this chapter.
(2) "New permanent job" means a new employment
position created by a qualified business as described by Section
2303.402 that:
(A) has provided at least 1,820 hours of
employment a year to a qualified employee; and
(B) is intended to exist at the qualified
business site for at least three years after the date on which a
state benefit is received as authorized by this chapter.
(3) [(2)] "Retained job" means a job that existed with
a qualified business before designation of the business's project
or activity as an enterprise project that:
(A) has provided employment to a qualified
employee of at least 1,820 hours annually; and
(B) is intended to be an employment position for
at least three years after the date on which a state benefit is
received as authorized by this chapter.
SECTION 115. Section 2303.4072, Government Code, is amended
to read as follows:
Sec. 2303.4072. ENTERPRISE PROJECT CLAIM FOR STATE BENEFIT.
A person must make a claim to the comptroller for a state benefit as
prescribed under this chapter and Chapters 151 and 171, Tax Code,
not later than six [18] months after the date on which the term of
the enterprise project designation expires as provided by Section
2303.404.
SECTION 116. Section 2303.504, Government Code, as amended
by Section 2.02, Chapter 1134, Acts of the 77th Legislature,
Regular Session, 2001, is amended to read as follows:
Sec. 2303.504. STATE TAX REFUNDS AND CREDITS; REPORT. (a)
In this section, "triple jumbo enterprise project" has the meaning
assigned by Section 2303.407.
(a-1) Subject to Section 2303.516, an enterprise project is
entitled to:
(1) a refund of state taxes under Section 151.429, Tax
Code; and
(2) a franchise tax credit under Subchapter P or Q,
Chapter 171, Tax Code, but only if the enterprise project was
designated as an enterprise project on or after September 1, 2003,
and approved as a triple jumbo enterprise project on or before
September 1, 2004.
(b) At the time of receipt of any tax benefit available as a
result of participating in the enterprise zone program, including a
state sales and use tax refund or franchise tax credit, three
percent of the amount of the tax benefit shall be transferred to the
Texas economic development bank fund under Subchapter B, Chapter
489, to defray the cost of administering this chapter.
(c) Not later than the 60th day after the last day of each
fiscal year, the comptroller shall report to the bank the statewide
total of actual jobs created, actual jobs retained, and the tax
refunds and credits made under this section during that fiscal
year.
SECTION 117. Sections 2303.516(b) and (d), Government Code,
are amended to read as follows:
(b) The comptroller [bank] may determine that the business
or project is not entitled to a refund or credit of state taxes
under Section 2303.504(a-1) if the comptroller [bank] finds that:
(1) the business or project is not willing to
cooperate with the comptroller [bank] in providing the comptroller
[bank] with the information the comptroller [bank] needs to
determine state benefits [make the determination under Subsection
(a)]; or
(2) the business or project has substantially failed
to follow through on any commitments made by it or on its behalf
under this chapter.
(d) A qualified business may obtain a state benefit, earned
through a specific enterprise project designation, on completion
of:
(1) a certification of the project or activity for
completeness that is conducted [an audit performed] by the
comptroller to verify [that will certify] hiring commitments of a
qualified business under this chapter;
(2) a certification conducted by the comptroller to
verify [and eligible] purchases of taxable items made by or on
behalf of the [a] qualified business under this chapter; and
(3) a verification of the capital investment for the
project or activity, conducted by the comptroller, to determine the
level of benefit achieved by the qualified business.
SECTION 118. Section 2303.517, Government Code, is amended
to read as follows:
Sec. 2303.517. REPORT. Before obtaining a state benefit,
the qualified business must submit to the comptroller [bank] a
certified report of the actual number of jobs created or retained
and the capital investment made at or committed to the qualified
business site.
SECTION 119. (a) Sections 151.429(a), (b), (c), (e), and
(g), Tax Code, are amended to read as follows:
(a) An enterprise project is eligible for a refund in the
amount provided by this section of the taxes imposed by this chapter
on purchases of taxable items [:
[(1) equipment or machinery sold to an enterprise
project for use at the qualified business site;
[(2) building materials sold to an enterprise project
for use in remodeling, rehabilitating, or constructing a structure
at the qualified business site;
[(3) labor for remodeling, rehabilitating, or
constructing a structure by an enterprise project at the qualified
business site; and
[(4) electricity and natural gas purchased and
consumed in the normal course of business at the qualified business
site].
(b) Subject to the limitations provided by Subsection (c) of
this section, an enterprise project qualifies for a refund of taxes
under this section based on the amount of capital investment made at
the qualified business site and refund per job with a maximum refund
to be included in a computation of a tax refund for the project. A
capital investment at the qualified business site of:
(1) $40,000 to $399,999 will result in a refund of up
to $2,500 per job with a maximum refund of $25,000 for the creation
or retention of 10 certified jobs;
(2) $400,000 to $999,999 will result in a refund of up
to $2,500 per job with a maximum refund of $62,500 for the creation
or retention of 25 certified jobs;
(3) $1,000,000 to $4,999,999 will result in a refund
of up to $2,500 per job with a maximum refund of $312,500 for the
creation or retention of 125 certified jobs;
(4) $5,000,000 to $149,999,999 will result in a refund
of up to $2,500 per job with a maximum refund of $1,250,000 for the
creation or retention of 500 certified jobs;
(5) $150,000,000 to $249,999,999 will result in a
refund of up to $5,000 per job with a maximum refund of $2,500,000
for the creation or retention of 500 certified jobs; or
(6) $250,000,000 or more will result in a refund of up
to $7,500 per job with a maximum refund of $3,750,000 for the
creation or retention of 500 certified jobs.
(c) The total amount of tax refund that an enterprise
project may apply for in a state fiscal year may not exceed
$250,000. If an enterprise project qualifies in a state fiscal year
for a refund of taxes in an amount in excess of the limitation
provided by this subsection, it may apply for a refund of those
taxes in a subsequent year, subject to the $250,000 limitation for
each year. The total amount that may be refunded to an enterprise
project under this section may not exceed the amount determined by
multiplying $250,000 by the number of state fiscal years during
which the enterprise project created one or more certified jobs for
qualified employees.
(e) In this section:
(1) "Enterprise project" means a person designated by
the Texas Economic Development Bank as an enterprise project under
Chapter 2303, Government Code.
(2) "Enterprise zone," "qualified employee," and
"qualified hotel project" have the meanings assigned to those terms
by Section 2303.003, Government Code.
(3) "New permanent job" means a new employment
position created by a qualified business as described by Section
2303.402, Government Code, that:
(A) has provided at least 1,820 hours of
employment a year to a qualified employee; and
(B) is intended to exist for at least three years
after a state benefit is received under Chapter 2303, Government
Code.
(4) "Retained job" has the meaning assigned by Section
2303.401, Government Code.
(4-a) "Certified job" has the meaning assigned by
Section 2303.401, Government Code.
(5) "Double jumbo enterprise project" and "triple
jumbo enterprise project" have the meanings assigned by Section
2303.407, Government Code.
(g) The refund provided by this section is conditioned on
the enterprise project maintaining for a three-year period at least
the same number [level] of certified jobs [employment of qualified
employees] as existed on the date the comptroller initially
certified the hiring commitments for the project under Section
2303.516(d), Government Code [at the time it qualified for a refund
for a period of three years from that date]. The comptroller shall
annually certify whether that number [level] of certified jobs
[employment of qualified employees] has been maintained. On
certifying that such a number [level] has not been maintained, the
comptroller shall assess that portion of the refund attributable to
any such decrease in certified jobs [employment], including penalty
and interest from the date of the refund.
(b) The change in law made by this section to Section
151.429, Tax Code, applies only to an application for a tax refund
made on or after the effective date of this Act. An application for
a tax refund made before the effective date of this Act is governed
by the law in effect on the date the application was made, and the
former law is continued in effect for that purpose.
SECTION 120. (a) Section 151.4291(a), Tax Code, is amended
to read as follows:
(a) A defense readjustment project is eligible for a refund
in the amount provided by this section of the taxes imposed by this
chapter on purchases of taxable items [:
[(1) equipment or machinery sold to a defense
readjustment project for use in a readjustment zone;
[(2) building materials sold to a defense readjustment
project for use in remodeling, rehabilitating, or constructing a
structure in a readjustment zone;
[(3) labor for remodeling, rehabilitating, or
constructing a structure by a defense readjustment project in a
readjustment zone; and
[(4) electricity and natural gas purchased and
consumed in the normal course of business in the readjustment
zone].
(b) The change in law made by this section to Section
151.4291, Tax Code, applies only to an application for a tax refund
made on or after the effective date of this Act. An application for
a tax refund made before the effective date of this Act is governed
by the law in effect on the date the application was made, and the
former law is continued in effect for that purpose.
SECTION 121. Section 171.721(2), Tax Code, is amended to
read as follows:
(2) "Strategic investment area" means an area that is
determined by the comptroller under Section 171.726 that is:
(A) a county within this state with above state
average unemployment and below state average per capita income;
(B) an area within this state that is:
(i) an area consisting of a federally
designated empowerment zone and associated areas that could be
developed; or
(ii) a federally designated renewal
community [urban enterprise community or an urban enhanced
enterprise community]; or
(C) a defense economic readjustment zone
designated under Chapter 2310, Government Code.
SECTION 122. Section 171.751, Tax Code, is amended by
adding Subdivision (5-a) and amending Subdivisions (8) and (9) to
read as follows:
(5-a) "Enterprise project" means a person designated
as an enterprise project under Chapter 2303, Government Code.
(8) "Qualified business" means an establishment:
(A) primarily engaged in agricultural
processing, central administrative offices, distribution, data
processing, manufacturing, research and development, or
warehousing;
(B) that was designated as an enterprise project
under Chapter 2303, Government Code, on or after September 1, 2003,
and approved as a triple jumbo enterprise project, as defined by
Section 2303.407, Government Code, on or before September 1, 2004;
or
(C) that was designated as a defense readjustment
project under Chapter 2310, Government Code, on or after September
1, 2001.
(9) "Qualifying job" means:
(A) a new permanent full-time job that:
(i) [(A)] is located in:
(a) [(i)] a strategic investment
area; or
(b) [(ii)] a county within this state
with a population of less than 50,000, if the job is created by a
business primarily engaged in agricultural processing;
(ii) [(B)] requires at least 1,600 hours of
work a year;
(iii) [(C)] pays at least 110 percent of
the county average weekly wage for the county where the job is
located;
(iv) [(D)] is covered by a group health
benefit plan for which the business pays at least 80 percent of the
premiums or other charges assessed under the plan for the employee;
(v) [(E)] is not transferred from one area
in this state to another area in this state; and
(vi) [(F)] is not created to replace a
previous employee;
(B) a new permanent full-time job created by an
enterprise project at a qualified business site, as defined by
Section 2303.003, Government Code, regardless of whether the job
meets the qualifications prescribed by Paragraph (A)(i)(a); or
(C) a job created or retained by a qualified
business described by Subdivision (8)(C).
SECTION 123. Subchapter P, Chapter 171, Tax Code, is
amended by adding Section 171.7542 to read as follows:
Sec. 171.7542. LENGTH OF CREDIT. (a) This section applies
only to a corporation that was:
(1) designated as an enterprise project on or after
September 1, 2003, and approved as a triple jumbo enterprise
project, as defined by Section 2303.407, Government Code, on or
before September 1, 2004; or
(2) designated as a defense readjustment project under
Chapter 2310, Government Code, on or after September 1, 2001.
(b) Notwithstanding Section 171.753, a corporation to which
this section applies may establish a credit equal to 25 percent of
the total wages and salaries paid or to be paid by the corporation
for qualifying jobs created during the period beginning on the date
the project is designated as an enterprise project or as a defense
readjustment project, as applicable, through December 31, 2008.
(c) Subject to Sections 171.755 and 171.756, the
corporation may claim:
(1) the entire amount of the credit established under
Subsection (b) on the first report originally due on or after
September 1, 2005; or
(2) an equal portion of the total credit established
under Subsection (b) on each report originally due on or after
September 1, 2005, and before January 1, 2009.
(d) A corporation that establishes the credit authorized by
Subsection (b) shall provide to the comptroller an estimate of the
total wages and salaries on which the corporation establishes the
credit. The corporation shall provide the estimate on the first
report originally due on or after September 1, 2005.
(e) This section expires January 1, 2009.
SECTION 124. Section 171.801, Tax Code, is amended by
amending Subdivision (2) and adding Subdivision (4) to read as
follows:
(2) "Qualified capital investment" means tangible
personal property first placed in service in a strategic investment
area, [or] first placed in service in a county with a population of
less than 50,000 by a corporation primarily engaged in agricultural
processing, first placed in service by an enterprise project,
regardless of whether the project is located in an enterprise zone,
as defined by Section 2303.003, Government Code, or first placed in
service by a defense readjustment project, and that is described in
Section 1245(a), Internal Revenue Code, such as engines, machinery,
tools, and implements used in a trade or business or held for
investment and subject to an allowance for depreciation, cost
recovery under the accelerated cost recovery system, or
amortization. The term does not include real property or buildings
and their structural components. Property that is leased under a
capitalized lease is considered a "qualified capital investment,"
but property that is leased under an operating lease is not
considered a "qualified capital investment." Property expensed
under Section 179, Internal Revenue Code, is not considered a
"qualified capital investment."
(4) "Defense readjustment project" and "enterprise
project" have the meanings assigned by Section 171.751.
SECTION 125. Section 171.8015, Tax Code, is amended to read
as follows:
Sec. 171.8015. TANGIBLE PERSONAL PROPERTY FIRST PLACED IN
SERVICE BY [IN] AN ENTERPRISE PROJECT [ZONE]. For purposes of
determining whether an investment is a "qualified capital
investment" under Section 171.801, "tangible personal property
first placed in service by [in] an enterprise project [zone]"
includes tangible personal property:
(1) purchased by an enterprise project [by a qualified
business] for placement in an incomplete improvement that is under
active construction or other physical preparation;
(2) identified by a purchase order, invoice, billing,
sales slip, or contract; and
(3) physically present at the enterprise project's
qualified business site, as defined by Section 2303.003, Government
Code, [zone] and in use by the enterprise project on the original
due date of the report on which the credit is taken [qualified
business not later than September 30, 2005].
SECTION 126. Section 171.802, Tax Code, is amended by
amending Subsection (c) and adding Subsection (d-1) to read as
follows:
(c) A corporation may claim a credit or take a carryforward
credit without regard to whether the strategic investment area or
enterprise zone in which it made the qualified capital investment
subsequently loses its designation as a strategic investment area
or enterprise zone, if applicable.
(d-1) A corporation that has been designated as an
enterprise project or as a defense readjustment project and is
certified by the Texas Economic Development Bank as a qualified
business under Section 2303.402 or 2310.302, Government Code, may
qualify for the credit provided by this subchapter, regardless of
whether the corporation meets the qualifications prescribed by
Subsection (b).
SECTION 127. Section 171.803, Tax Code, is amended by
adding Subsection (b) to read as follows:
(b) A corporation, that on or after September 1, 2001, has
been designated as an enterprise project, without regard to whether
the enterprise project is located in an enterprise zone, or as a
defense readjustment project, may, beginning on the date the
project is designated, establish a credit equal to 7.5 percent of
the qualified capital investment.
SECTION 128. Section 171.804, Tax Code, is amended to read
as follows:
Sec. 171.804. LENGTH OF CREDIT. (a) Except as provided by
Subsection (b), the [The] credit established shall be claimed in
five equal installments of one-fifth the credit amount over the
five consecutive reports beginning with the report based upon the
period during which the qualified capital investment was made.
(b) Subject to Section 171.805, a corporation that has been
designated as an enterprise project or as a defense readjustment
project may claim the entire credit earned on a report originally
due on or after September 1, 2003, and before January 1, 2009.
SECTION 129. The following laws are repealed:
(1) Section 2303.516(c), Government Code;
(2) Section 76, Chapter 1310, Acts of the 78th
Legislature, Regular Session, 2003;
(3) Section 981.056, Insurance Code; and
(4) Sections 162.016(h) and 351.102(c), Tax Code.
SECTION 130. (a) In accordance with Section 311.031(c),
Government Code, which gives effect to a substantive amendment
enacted by the same legislature that codifies the amended statute,
the text of Sections 226.001-226.003 and 226.005, Insurance Code,
as set out in this Act, gives effect to changes made by Section 76,
Chapter 1310, Acts of the 78th Legislature, Regular Session, 2003.
(b) To the extent of any conflict, this Act prevails over
another Act of the 79th Legislature, Regular Session, 2005,
relating to nonsubstantive additions and corrections in enacted
codes.
SECTION 131. (a) Except as provided by Subsection (b) of
this section or as otherwise provided by this Act, this Act takes
effect immediately if it receives a vote of two-thirds of all the
members elected to each house, as provided by Section 39, Article
III, Texas Constitution. If this Act does not receive the vote
necessary for immediate effect:
(1) the changes, reenactments, and additions in law
made by this Act to the statutes that are not specifically listed in
this section take effect on the 91st day after the last day of the
legislative session, except as otherwise provided by this Act; and
(2) the changes in law made by this Act to the
following statutes take effect September 1, 2005:
(A) Section 103.0031, Code of Criminal
Procedure;
(B) Sections 25.0015, 25.00211, 26.007, 74.061,
403.071, 404.024, 660.024, 660.027, 2256.011, and 2256.016,
Government Code;
(C) Section 433, Probate Code;
(D) Sections 74.101, 74.401, 74.507, and 74.601,
Property Code; and
(E) Section 623.052, Transportation Code.
(b) The changes in law made by this Act by amending the
following statutes or adding the following statutes take effect
September 1, 2005:
(1) Section 43.002, Education Code;
(2) Sections 659.255, 659.256, 659.257, 2303.401,
2303.4072, 2303.504, 2303.516, and 2303.517, Government Code;
(3) Sections 101.001, 101.005, 101.053, 101.201,
101.203, 101.301, 225.002, 226.001, 226.002, 226.003, 226.005,
226.052, 981.002, 981.004, 981.005, 981.006, 981.008, 981.101,
981.104, and 981.160, Insurance Code; and
(4) Sections 151.429, 151.4291, 151.715, 171.721,
171.751, 171.7542, 171.801, 171.8015, 171.802, 171.803, and
171.804, Tax Code.
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