79R4402 JTS-F
By: Krusee H.B. No. 2702
A BILL TO BE ENTITLED
AN ACT
relating to the construction, acquisition, financing, maintenance,
management, operation, ownership, and control of transportation
facilities and the progress, improvement, policing, and safety of
transportation in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 91.051, Transportation Code, is amended
to read as follows:
Sec. 91.051. AWARDING OF CONTRACTS. Except for a contract
entered into under Section 91.052, 91.054, or 91.102 [Unless
otherwise provided by this subchapter], a contract made by the
department for the financing, design, construction, maintenance,
or operation of a rail facility must be let by a competitive bidding
procedure in which the contract is awarded to the lowest
responsible bidder that complies with the department's criteria.
SECTION 2. Subchapter C, Chapter 91, Transportation Code,
is amending by adding Sections 91.054-91.061 to read as follows:
Sec. 91.054. COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a)
The department may enter into a comprehensive development agreement
with a private entity to finance, design, acquire, construct,
maintain, or operate a rail facility or system.
(b) In this subchapter, "comprehensive development
agreement" means an agreement that, at a minimum, provides for the
design and construction of a rail facility or system and may also
provide for the financing, designing, acquisition, maintenance, or
operation of the rail facility or system.
(c) The department may negotiate provisions relating to
professional and consulting services provided in connection with a
comprehensive development agreement.
(d) The department may authorize the investment of public
and private money, including debt and equity participation, to
finance a function described by this section.
(e) Claims arising under a comprehensive development
agreement are subject to Section 201.112.
Sec. 91.055. PROCESS FOR ENTERING INTO COMPREHENSIVE
DEVELOPMENT AGREEMENTS. (a) If the department enters into a
comprehensive development agreement, the department shall use a
competitive procurement process that provides the best value for
the department. The department may accept unsolicited proposals
for a proposed project or solicit proposals in accordance with this
section.
(b) The department shall establish rules and procedures for
accepting unsolicited proposals that require the private entity to
include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) any other information the department considers
relevant or necessary.
(c) The department shall publish a notice advertising a
request for competing proposals and qualifications in the Texas
Register that includes the criteria to be used to evaluate the
proposals, the relative weight given to the criteria, and a
deadline by which proposals must be received if:
(1) the department decides to issue a request for
qualifications for a proposed project; or
(2) the department authorizes the further evaluation
of an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) The department may interview a private entity
submitting an unsolicited proposal or responding to a request under
Subsection (c). The department shall evaluate each proposal based
on the criteria described in the request for competing proposals
and qualifications and may qualify or shortlist private entities to
submit detailed proposals under Subsection (f). The department
must qualify or shortlist at least two private entities to submit
detailed proposals for a project under Subsection (f) unless the
department does not receive more than one proposal or one response
to a request under Subsection (c).
(f) The department shall issue a request for detailed
proposals from all private entities qualified or shortlisted under
Subsection (e) if the department proceeds with the further
evaluation of a proposed project. A request under this subsection
may require additional information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) a financial plan, including costing methodology
and cost proposals; or
(6) any other information the department considers
relevant or necessary.
(g) In issuing a request for proposals under Subsection (f),
the department may solicit input from entities qualified under
Subsection (e) or any other person. The department may also solicit
input regarding alternative technical concepts after issuing a
request under Subsection (f).
(h) The department shall evaluate each proposal based on the
criteria described in the request for detailed proposals and select
the private entity whose proposal offers the apparent best value to
the department.
(i) The department may enter into negotiations with the
private entity whose proposal offers the apparent best value for
the purpose of establishing the final terms of a comprehensive
development agreement.
(j) If at any point in negotiations under Subsection (i) it
appears to the department that the highest ranking proposal will
not provide the department with the overall best value, the
department may enter into negotiations with the private entity
submitting the next highest ranking proposal.
(k) The department may withdraw a request for competing
proposals and qualifications or a request for detailed proposals at
any time. The department may then publish a new request for
competing proposals and qualifications.
(l) The department may require that an unsolicited proposal
be accompanied by a nonrefundable fee sufficient to cover all or
part of its cost to review the proposal.
(m) The department shall pay an unsuccessful private entity
that submits a responsive proposal in response to a request for
detailed proposals under Subsection (f) a stipulated amount in
exchange for the work product contained in that proposal. The
stipulated amount must be stated in the request for proposals and
may not exceed the value of any work product contained in the
proposal that can, as determined by the department, be used by the
department in the performance of its functions. The use by the
department of any design element contained in an unsuccessful
proposal is at the sole risk and discretion of the department and
does not confer liability on the recipient of the stipulated amount
under this section. After payment of the stipulated amount:
(1) the department owns with the unsuccessful proposer
jointly the rights to, and may make use of any work product
contained in, the proposal, including the technologies,
techniques, methods, processes, ideas, and information contained
in the project design; and
(2) the use by the unsuccessful proposer of any
portion of the work product contained in the proposal is at the sole
risk of the unsuccessful proposer and does not confer liability on
the department.
(n) The department may prescribe the general form of a
comprehensive development agreement and may include any matter the
department considers advantageous to the department. The
department and the private entity shall finalize the specific terms
of a comprehensive development agreement.
(o) Chapter 2254, Government Code, does not apply to a
comprehensive development agreement entered into under Section
91.054.
Sec. 91.056. CONFIDENTIALITY OF INFORMATION RELATING TO
COMPREHENSIVE DEVELOPMENT AGREEMENTS. (a) To encourage private
entities to submit proposals under Section 91.055, the following
information is confidential, is not subject to disclosure,
inspection, or copying under Chapter 552, Government Code, and is
not subject to disclosure, discovery, subpoena, or other means of
legal compulsion for its release until a final contract for a
proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information provided under Sections 91.055(b)(1) and (2), unless
the private entity consents to the disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement, unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by the department
or its agent during consideration of a proposal for a comprehensive
development agreement.
(b) After the department completes its final ranking of
proposals under Section 91.055(h), the final rankings of each
proposal under each of the published criteria cease to be
confidential.
Sec. 91.057. PERFORMANCE AND PAYMENT SECURITY. (a)
Notwithstanding the requirements of Subchapter B, Chapter 2253,
Government Code, the department shall require a private entity
entering into a comprehensive development agreement under Section
91.054 to provide a performance and payment bond or an alternative
form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the department; and
(B) payment bond beneficiaries who have a direct
contractual relationship with the private entity or a subcontractor
of the private entity to supply labor or material.
(b) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of financing,
designing, constructing, or maintaining the project.
(c) If the department determines that it is impracticable
for a private entity to provide security in the amount described by
Subsection (b), the department shall set the amount of the bonds or
the alternative forms of security.
(d) A payment or performance bond or alternative form of
security is not required for the portion of an agreement that
includes only design or planning services, the performance of
preliminary studies, or the acquisition of real property.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to or instead of performance and payment
bonds, the department may require the following alternative forms
of security:
(1) a cashier's check drawn on a financial entity
specified by the department;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the department.
(g) The commission by rule shall prescribe requirements for
alternate forms of security provided under this section.
Sec. 91.058. OWNERSHIP OF RAIL FACILITY OR SYSTEM. (a) A
rail facility or system that is the subject of a comprehensive
development agreement with a private entity, including the
facilities financed, designed, acquired, or constructed on the
project, is public property and shall be jointly owned by the
department and the private entity.
(b) Notwithstanding Subsection (a), the department may
enter into an agreement that provides for the lease of
rights-of-way, the granting of easements, the issuance of
franchises, licenses, or permits, or any lawful uses to enable a
private entity to finance, design, construct, operate, and maintain
a rail facility or system. At the termination of the agreement, the
rail facility or system is to be in a state of proper maintenance as
determined by the department and shall be returned to the
department in satisfactory condition at no further cost.
(c) Notwithstanding Section 11.11, Tax Code, a private
entity that leases a rail facility or system under a comprehensive
development agreement is exempt from taxation of or assessment on
the facility or system.
Sec. 91.059. LIABILITY FOR PRIVATE OBLIGATIONS. The
department may not incur a financial obligation for a private
entity that finances, designs, constructs, maintains, or operates a
rail facility or system. The state or a political subdivision of
the state is not liable for any financial or other obligations of a
rail facility or system solely because a private entity finances,
designs, constructs, or operates any part of the project.
Sec. 91.060. TERMS OF PRIVATE PARTICIPATION. (a) The
department shall negotiate the terms of private participation in a
rail facility or system, including:
(1) methods to determine the applicable cost, profit,
and project distribution among the private participants and the
department;
(2) reasonable methods to determine and classify fare
rates;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
financing, design, construction, operation, and maintenance
standards, expenses, and costs.
(b) A comprehensive development agreement entered into
under Section 91.054 must include a provision authorizing the
department to purchase, under terms and conditions agreed to by the
parties, the interest of a private participant in a rail facility or
system designed, financed, constructed, operated, or maintained
under the comprehensive development agreement.
Sec. 91.061. RULES, PROCEDURES, AND GUIDELINES GOVERNING
SELECTION AND NEGOTIATING PROCESS. (a) The commission shall adopt
rules, procedures, and guidelines governing selection of a
developer for a comprehensive development agreement and
negotiations to promote fairness, obtain private participants in
rail facility projects, and promote confidence among those
participants. The rules must contain criteria relating to the
qualifications of the participants and the award of the contracts.
(b) The department shall have up-to-date procedures for
participation in negotiations on rail facility projects.
(c) The department has exclusive judgment to determine the
terms of an agreement.
SECTION 3. Section 91.071, Transportation Code, is amended
to read as follows:
Sec. 91.071. FUNDING. The [(a) Except as provided in
Subsection (b), the] department may use any available funds to
implement this chapter, including funds from the state
infrastructure bank.
[(b) Each fiscal year, the total amount disbursed by the
department from the state highway fund to implement this chapter
may not exceed $12.5 million. This subsection does not apply to:
[(1) the acquisition of abandoned rail facilities
described in Section 91.007;
[(2) funding derived from the issuance of bonds,
private investment, and donations;
[(3) federal funds from the Federal Railroad
Administration, from the Federal Transit Administration, or
authorized and appropriated by the United States Congress for a
specific project;
[(4) grants awarded by the governor from the Texas
Enterprise Fund; and
[(5) grading and bed preparation.]
SECTION 4. Section 91.074(c), Transportation Code, is
amended to read as follows:
(c) The department may contract with a person for the use of
all or part of a rail facility or system or may lease or sell all or
part of a rail facility or system, including all or any part of the
right-of-way adjoining trackwork, for any purpose, including
placing on the adjoining right-of-way a storage or transfer
facility, warehouse, garage, parking facility, telecommunication
line or facility, restaurant, or gas station. A rail facility or
system that is used or leased by a private entity for a commercial
purpose is not exempt from ad valorem taxation and is subject to
local zoning regulations and building standards.
SECTION 5. Subchapter D, Chapter 91, Transportation Code,
is amended by adding Section 91.075 to read as follows:
Sec. 91.075. PASS-THROUGH FARES. (a) In this section,
"pass-through fare" means:
(1) a per passenger fee or a per passenger mile fee
that is determined by the number of passengers using a passenger
rail facility; or
(2) a fee that is determined based on the number of
carloads or commodity tonnages shipped using a freight rail
facility.
(b) The department may enter into an agreement with a public
or private entity that provides for the payment of pass-through
fares to the public or private entity as reimbursement for the
acquisition, design, development, financing, construction,
relocation, maintenance, or operation of a passenger rail facility
or a freight rail facility by the entity.
(c) The department or other public entity may use any
available funds for the purpose of making a pass-through fare
payment under this section, including funds from the state
infrastructure bank.
(d) The commission may adopt rules necessary to implement
this section. Rules adopted under this subsection may include
criteria for:
(1) determining the amount of pass-through fares to be
paid under this section; and
(2) allocating the risk that ridership on a passenger
rail facility or carloads or commodity tonnages shipped on a
freight rail facility will be higher or lower than the parties to an
agreement under this section anticipated in entering into the
agreement.
(e) Money repaid to the department under this section shall
be deposited to the credit of the fund from which the money was
originally provided and is exempt from the application of Section
403.095, Government Code.
SECTION 6. Section 91.102, Transportation Code, is amended
by adding Subsection (e) to read as follows:
(e) Notwithstanding Section 11.11, Tax Code, a private
entity that leases a rail facility or system is exempt from taxation
of or assessment on the facility or system.
SECTION 7. Section 201.001, Transportation Code, is amended
to read as follows:
Sec. 201.001. DEFINITIONS. (a) In this title:
(1) "Commission" means the Texas Transportation
Commission.
(2) "Department" means the Texas Department of
Transportation.
(3) "Director" means the executive director of the
Texas Department of Transportation.
(b) In this subtitle, "toll project" means one or more
tolled lanes of a highway or an entire toll highway constructed,
maintained, or operated as a part of the state highway system and
any improvement, extension, or expansion to the highway, including:
(1) a facility to relieve traffic congestion and
promote safety;
(2) a bridge, tunnel, overpass, underpass,
interchange, entrance plaza, approach, toll booth, toll plaza,
service road, ramp, or service center;
(3) an administration, storage, or other building,
operations center, maintenance or other facility, equipment, or
system the department considers necessary to operate the project;
(4) property rights, easements, and interests the
department acquires to construct, maintain, or operate the project;
(5) a parking area or structure, rest stop, park, and
any other improvement or amenity the department considers
necessary, useful, or beneficial for the operation and maintenance
of the project; and
(6) a nontolled facility that is appurtenant to and
necessary for the efficient operation and maintenance of the
project, including a connector, service road, access road, ramp,
interchange, bridge, or tunnel.
SECTION 8. Section 203.004, Transportation Code, is
transferred to Subchapter H, Chapter 201, Transportation Code,
redesignated as Section 201.617, Transportation Code, and amended
to read as follows:
Sec. 201.617 [203.004]. [CONTRACTS FOR MANAGEMENT OF
PROPERTY USED FOR] MITIGATION OF ADVERSE ENVIRONMENTAL
IMPACTS. (a) If directed by an applicable regulatory authority
to mitigate an adverse environmental impact that is a direct result
of a state highway improvement project, the [The] department may:
(1) pay a fee to an appropriate public agency or
private entity in lieu of acquiring or agreeing to manage property;
(2) transfer real property to an entity designated by
an agency of the United States without monetary consideration if
the property is used or is proposed to be used for mitigation
purposes; or
(3) contract with any public or private entity for the
management of property owned by the department and used for [the]
mitigation purposes [of an adverse environmental impact directly
resulting from the construction or maintenance of a state highway].
(b) A contract under this section is not subject to Chapter
771, Government Code.
(c) In this section, "management," in connection with
property, means administration, control, or maintenance that is
required by an agency of the United States.
SECTION 9. Subchapter K, Chapter 201, Transportation Code,
is amended by adding Section 201.907 to read as follows:
Sec. 201.907. CONTRACT FOR ENFORCEMENT. The department and
a public or private entity jointly may contract with an agency of
this state or a local governmental entity for the services of peace
officers employed by the agency or entity to enforce laws related
to:
(1) the regulation and control of vehicular traffic on
a state highway; and
(2) the payment of the proper toll on a toll project.
SECTION 10. Section 203.052(b), Transportation Code, is
amended to read as follows:
(b) Property necessary or convenient to a state highway for
purposes of Subsection (a) includes an interest in real property, a
property right, or a material that the commission determines is
necessary or convenient to:
(1) protect a state highway;
(2) drain a state highway;
(3) divert a stream, river, or other watercourse from
the right-of-way of a state highway;
(4) store materials or equipment for use or used in the
construction or maintenance of a state highway;
(5) construct or operate a warehouse, toll house, toll
plaza, service station, or other facility used in connection with
the construction, maintenance, or operation of a state highway;
(6) lay out, construct, or maintain a roadside park;
(7) lay out, construct, or maintain a parking lot that
will contribute to maximum use of a state highway with the least
possible congestion;
(8) mitigate an adverse environmental effect that
directly results from construction or maintenance of a state
highway; [or]
(9) provide a location for an ancillary facility that
is anticipated to generate revenue for use in the design,
development, financing, construction, maintenance, or operation of
a toll project, including a gas station, garage, store, hotel,
restaurant, or other commercial facility; or
(10) accomplish any other purpose related to the
location, construction, improvement, maintenance, beautification,
preservation, or operation of a state highway.
SECTION 11. Sections 203.0521(b) and (c), Transportation
Code, are amended to read as follows:
(b) Instead of making a single fixed payment for real
property purchased under Subsection (a) for a toll project, the
department may agree to make a payment to the owner in the form of an
intangible legal right to receive a percentage of identified
revenue attributable to the applicable segment of the toll project
[The department may acquire the remainder under this section only
if the owner of the property consents to the acquisition of the
remainder].
(c) A right to receive revenue under Subsection (b) is
subject to any pledge of the revenue under the term of a trust
agreement securing bonds issued for the applicable segment of the
toll project. [The department is not required to make an offer on a
remainder if an appraisal or environmental investigation indicates
the presence of hazardous materials or substances.]
SECTION 12. Section 203.055, Transportation Code, is
amended to read as follows:
Sec. 203.055. ACQUISITION OF RIGHTS IN PUBLIC REAL PROPERTY
[CONVEYANCE OF PROPERTY BELONGING TO POLITICAL SUBDIVISION OR
PUBLIC AGENCY]. (a) The governing body of a political subdivision
or public agency that owns or is in charge of public real property
may consent to the use of the property for highway purposes.
(b) The governing body of a political subdivision or public
agency may, without advertisement, convey the title to or rights or
easements [a right] in real property that the department needs[:
[(1) is owned by the political subdivision or public
agency; and
[(2) may be acquired by the commission under this
subchapter] for highway purposes.
(c) Notwithstanding any law to the contrary, at the request
of the department, a political subdivision or a state agency may
lease, lend, grant, or convey to the department real property,
including a highway or real property currently devoted to public
use, that may be necessary or appropriate to accomplish the
department's purposes. The political subdivision or state agency
may lease, lend, grant, or convey the property:
(1) on terms the subdivision or agency determines
reasonable and fair; and
(2) without advertisement, court order, or other
action or formality other than the regular and formal action of the
subdivision or agency concerned or action in the manner required by
law.
[(b) In this section, "political subdivision" includes a
county or municipality.]
SECTION 13. Sections 361.137, 361.138, 361.233, and
361.142, Transportation Code, are transferred to Subchapter D,
Chapter 203, Transportation Code, redesignated as Sections
203.066, 203.067, 203.068, and 203.069, Transportation Code, and
amended to read as follows:
Sec. 203.066 [361.137]. DECLARATION OF TAKING FOR TOLL
PROJECT. (a) This section and Sections 203.067 and 203.068 apply
only to a taking for a toll project.
(b) The department may file a declaration of taking with the
clerk of the court:
(1) in which the department files a condemnation
petition under Chapter 21, Property Code; or
(2) to which the case is assigned.
(c) [(b)] The department may file the declaration of taking
concurrently with or subsequent to the petition but may not file the
declaration after the special commissioners have made an award in
the condemnation proceeding.
(d) [(c)] The department may not file a declaration of
taking before the completion of:
(1) all environmental documentation, including a
final environmental impact statement or a record of decision, that
is required by federal or state law;
(2) all public hearings and meetings, including those
held in connection with the environmental process and under
Sections 201.604 and 203.021, that are required by federal or state
law; and
(3) all notifications required by Section 203.022.
(e) [(d)] The declaration of taking must include:
(1) a specific reference to the legislative authority
for the condemnation;
(2) a description and plot plan of the real property to
be condemned, including the following information if applicable:
(A) the municipality in which the property is
located;
(B) the street address of the property; and
(C) the lot and block number of the property;
(3) a statement of the property interest to be
condemned;
(4) the name and address of each property owner that
the department can obtain after reasonable investigation and a
description of the owner's interest in the property; and
(5) a statement that immediate possession of all or
part of the property to be condemned is necessary for the timely
construction of a turnpike project.
(f) [(d-1)] A deposit to the registry of the court of an
amount equal to the appraised value, as determined by the
department, of the property to be condemned must accompany the
declaration of taking.
(g) [(e)] The date on which the declaration is filed is the
date of taking for the purpose of assessing damages to which a
property owner is entitled.
(h) [(f)] After a declaration of taking is filed, the case
shall proceed as any other case in eminent domain under Chapter 21,
Property Code.
Sec. 203.067 [361.138]. POSSESSION OF PROPERTY FOR TOLL
PROJECT. (a) Immediately on the filing of a declaration of taking
under Section 203.066, the department shall serve a copy of the
declaration on each person possessing an interest in the condemned
property by a method prescribed by Section 21.016(d), Property
Code. The department shall file evidence of the service with the
clerk of the court. On filing of that evidence, the department may
take possession of the property pending the litigation.
(b) If the condemned property is a homestead or a portion of
a homestead as defined by Section 41.002, Property Code, the
department may not take possession sooner than the 91st day after
the date of service under Subsection (a).
(c) A property owner or tenant who refuses to vacate the
property or yield possession is subject to forcible entry and
detainer under Chapter 24, Property Code.
Sec. 203.068 [361.233]. RIGHT OF ENTRY FOR TOLL PROJECT.
(a) The department and its authorized agents may enter any real
property, water, or premises in this state to make a survey,
sounding, drilling, or examination it determines necessary or
appropriate for the purposes of the development of a toll project
[this chapter].
(b) An entry under this section is not:
(1) a trespass; or
(2) an entry under a pending condemnation proceeding.
(c) The department shall make reimbursement for any actual
damages to real property, water, or premises that result from an
activity described by Subsection (a).
Sec. 203.069 [361.142]. COVENANTS, CONDITIONS,
RESTRICTIONS, OR LIMITATIONS. Covenants, conditions,
restrictions, or limitations affecting property acquired in any
manner by the department are not binding against the department and
do not impair the department's ability to use the property for a
purpose authorized by this chapter. The beneficiaries of the
covenants, conditions, restrictions, or limitations are not
entitled to enjoin the department from using the property for a
purpose authorized under this chapter, but this section does not
affect the right of a person to seek damages to the person's
property under Section 17, Article I, Texas Constitution.
SECTION 14. Section 221.001(1), Transportation Code, is
amended to read as follows:
(1) "Highway" includes a tolled or nontolled public
road or part of a tolled or nontolled public road and a bridge,
culvert, or other necessary structure related to a public road,
including buildings.
SECTION 15. Section 222.104, Transportation Code, is
amended to read as follows:
Sec. 222.104. PASS-THROUGH TOLLS. (a) In this section,
"pass-through toll" means a per vehicle fee or a per vehicle mile
fee that is determined by the number of vehicles using a highway.
(b) The department may enter into an agreement with a public
or private entity that provides for the payment of pass-through
tolls to the public or private entity as reimbursement for the
design, development, financing, construction, maintenance, or
operation of a toll or nontoll facility on the state highway system
by the public or private entity.
(c) The department and a regional mobility authority, a
regional tollway authority, or a county acting under Chapter 284
may enter into an agreement [with a regional mobility authority, a
regional tollway authority, or a county acting under Chapter 284]
that provides for:
(1) the payment of pass-through tolls to the authority
or county as compensation for the payment of all or a portion of the
costs of operating and maintaining a state highway or a portion of a
state highway transferred to the authority or county and converted
to a toll facility [of the authority or county] that the department
estimates it would have incurred if the highway had not been
converted; or
(2) the payment by the authority or county of
pass-through tolls to the department as reimbursement for all or a
portion of the costs incurred by the department to design, develop,
finance, construct, and maintain a state highway or a portion of a
state highway converted to a toll facility under Section 366.035 or
370.035, as applicable, and transferred to the authority or county.
(d) The department or other public entity may use any
available funds for the purpose of making a pass-through toll
payment under this section, including funds from the state
infrastructure bank.
(e) A regional mobility authority, a regional tollway
authority, or a county acting under Chapter 284 is authorized to
secure and pay its obligations under an agreement under this
section from any lawfully available funds.
(f) [(e)] The commission may adopt rules necessary to
implement this section. Rules adopted under this subsection may
include [establish] criteria for:
(1) determining the amount of pass-through tolls to be
paid under this section; and
(2) allocating the risk that traffic volume will be
higher or lower than the parties to an agreement under this section
anticipated in entering the agreement.
(g) Money repaid to the department under this section shall
be deposited to the credit of the fund from which the money was
originally provided and is exempt from the application of Section
403.095, Government Code.
SECTION 16. Section 224.151(9), Transportation Code, is
amended to read as follows:
(9) "Restricted lane" includes:
(A) a high occupancy vehicle lane;
(B) a toll lane under Section 228.007 [224.154];
and
(C) an exclusive lane.
SECTION 17. Section 227.001(9), Transportation Code, is
amended to read as follows:
(9) "Turnpike" has the meaning assigned to toll
[turnpike] project under Section 228.001 [361.001].
SECTION 18. Section 227.023, Transportation Code, is
amended by amending Subsection (c) and adding Subsection (d) to
read as follows:
(c) To the extent and in the manner that the department may
enter into comprehensive development agreements under Subchapter
G, Chapter 228 [361] with regard to turnpikes, the department may
enter into a comprehensive development agreement under this chapter
that provides for the financing, development, design,
construction, or operation of a facility or a combination of
facilities on the Trans-Texas Corridor. All provisions of
Subchapter G, Chapter 228 [361] relating to comprehensive
development agreements for turnpikes apply to comprehensive
development agreements for facilities under this chapter,
including provisions relating to the confidentiality of
information. Claims arising under a comprehensive development
agreement are subject to Section 201.112.
(d) Notwithstanding Section 11.11, Tax Code, a private
entity that leases a facility under a comprehensive development
agreement, other than a facility described in Section 227.001(4)(E)
that is used for commercial purposes, is exempt from taxation of or
assessment on the facility.
SECTION 19. Section 227.041, Transportation Code, is
amended to read as follows:
Sec. 227.041. POWERS AND PROCEDURES. (a) Except as
otherwise provided by this subchapter, the commission has the same
powers and duties relating to the condemnation and acquisition of
real property for a facility of the Trans-Texas Corridor that the
commission and the department have relating to the condemnation or
purchase of real property under Subchapter D, Chapter 203, [361,
and Section 361.233] for a toll [turnpike] project. The commission
may purchase an option to purchase property, other than real
property, a property right, or a right-of-way used for a public
utility facility, that the commission is considering for possible
use as part of the Trans-Texas Corridor even if it has not been
finally decided that the Trans-Texas Corridor will be located on
that property. An option to purchase may be purchased along
alternative potential routes for the Trans-Texas Corridor even if
only one of those potential routes will be selected as the final
route.
(b) An interest in real property or a property right is
necessary or convenient for the construction or operation of a
facility if it is located in or contiguous to an existing or planned
segment of the Trans-Texas Corridor or is needed for mitigation of
adverse environmental effects, and if its acquisition will further
the primary purposes of the Trans-Texas Corridor. Primary purposes
include:
(1) providing right-of-way or a location for a
facility;
(2) providing land for mitigation of adverse
environmental effects;
(3) providing buffer zones for scenic or safety
purposes;
(4) allowing for possible future expansion of any
facility; and
(5) generating revenue, directly or indirectly, for
use in constructing or operating the Trans-Texas Corridor from or
for ancillary facilities that directly benefit users of the
Trans-Texas Corridor.
(c) [Unless in conflict with this chapter, all laws
governing the acquisition of right-of-way for a state highway apply
to the acquisition of right-of-way for the Trans-Texas Corridor.
Sections 203.056, 203.057, and 203.058 apply to an acquisition by
the department from a state agency.] Compensation to a state agency
under those sections shall be reasonable and may take the form of a
single payment, a participation payment under Section 227.042, or
both a single payment and a participation payment.
SECTION 20. Subtitle B, Title 6, Transportation Code, is
amended by adding Chapter 228, and Sections 361.001, 361.301,
361.307, and 361.032, Transportation Code, are transferred to
Chapter 228, Transportation Code, designated as Subchapter A, and
amended to read as follows:
CHAPTER 228. STATE HIGHWAY TOLL PROJECTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 228.001 [361.001]. DEFINITIONS. In this chapter:
(1) "Air quality project" means a project or program
of the department or another governmental entity that the
commission determines will mitigate or prevent air pollution caused
by the construction, maintenance, or use of public roads.
["Authority" means the Texas Turnpike Authority division of the
Texas Department of Transportation.]
(2) "Bond" means bonds, notes, or other obligations
issued under Subchapter C or another law with respect to a toll
project or system. ["Owner" includes a person having title to or an
interest in any property, rights, easements, and interests
authorized to be acquired under this chapter.]
(3) "System" means a toll project or any combination
of toll projects designated as a system under Section 228.011.
(4) "Toll ["Turnpike] project" means one or more toll
lanes or an entire [a] toll highway constructed, maintained, or
operated [under this chapter] as part of the state highway system
and any improvement, extension, or expansion to the highway and
includes:
(A) a facility to relieve traffic congestion and
promote safety;
(B) a bridge, tunnel, overpass, underpass,
interchange, entrance plaza, approach, toll house, service road,
ramp, or service station;
(C) an administration, storage, or other
building, an operations center, a maintenance or other facility, or
equipment the department considers necessary to operate the
project;
(D) property rights, easements, and interests
the department acquires to construct or operate the project;
(E) a parking area or structure, rest stop, park,
and any other improvement or amenity the department considers
necessary, useful, or beneficial for the operation of a toll
[turnpike] project; and
(F) a nontolled [toll-free] facility that is
appurtenant to and necessary for the efficient operation and
maintenance of a toll [turnpike] project, including a connector,
service road, access road, ramp, interchange, bridge, or tunnel.
(5) "Transportation project" means:
(A) a tolled or nontolled state highway
improvement project;
(B) a toll project eligible for department cost
participation under Section 222.103;
(C) the acquisition, construction, maintenance,
or operation of a rail facility or system under Chapter 91;
(D) the acquisition, construction, maintenance,
or operation of a state-owned ferry under Subchapter A, Chapter
342;
(E) a public transportation project under
Chapter 455 or 456;
(F) the establishment, construction, or repair
of an aviation facility under Chapter 21; and
(G) a passenger rail project of another
governmental entity. [(4) "Regional tollway authority" means a
regional tollway authority created under Chapter 366.]
Sec. 228.002 [361.301]. AGREEMENTS WITH PUBLIC [OR PRIVATE]
ENTITIES [TO CONSTRUCT, MAINTAIN, REPAIR, AND OPERATE TURNPIKE
PROJECTS]. The [(a) Notwithstanding Section 361.231 and
Subchapter A, Chapter 2254, Government Code, the] department may
enter into an agreement with a public [or private] entity[,
including a toll road corporation,] to permit the entity,
independently or jointly with the department, to design, develop,
finance, construct, maintain, repair, or [and] operate a toll
project [turnpike projects].
[(b) The department may authorize the investment of public
and private money, including debt and equity participation, to
finance a function described by this section.]
Sec. 228.003 [361.307]. AGREEMENTS WITH [PRIVATE ENTITIES
AND] OTHER GOVERNMENTAL AGENCIES. (a) The department [and a
private entity jointly] may, with the approval of the governor and
the commission, enter into an agreement with another governmental
agency or entity, including a federal agency, an agency of this or
another state, including the United Mexican States or a state of the
United Mexican States, or a political subdivision, to independently
or jointly provide services, to study the feasibility of a toll
[turnpike] project, or to finance, construct, operate, and maintain
a toll [turnpike] project.
(b) If the department enters into an agreement with a
private entity, including a comprehensive development agreement
under Subchapter G, the department and the private entity may
jointly enter into an agreement under Subsection (a). [The
department may not enter into an agreement with the United Mexican
States or a state of the United Mexican States without the approval
of the governor.]
Sec. 228.004. PROMOTION OF TOLL PROJECT. [361.032. GENERAL
POWERS AND DUTIES. (a) The commission shall adopt rules for the
implementation and administration of this chapter.
[(b)] The department may,[:
[(1) construct, maintain, repair, and operate
turnpike projects in this state;
[(2) acquire, hold, and dispose of property in the
exercise of its powers and the performance of its duties under this
chapter;
[(3) with the approval of the governor and the
commission, enter into contracts or operating agreements with
similar authorities or agencies of another state, including a state
of the United Mexican States;
[(4) enter into contracts or agreements necessary or
incidental to its duties and powers under this chapter;
[(5) employ consulting engineers, accountants,
construction and financial experts, superintendents, managers, and
other employees and agents the department considers necessary and
set their compensation;
[(6) receive grants for the construction of a turnpike
project and receive contributions of money, property, labor, or
other things of value from any source to be used for the purposes
for which the grants or contributions are made;
[(7)] notwithstanding Chapter 2113, Government Code,
engage in marketing, advertising, and other activities to promote
the development and use of toll [turnpike] projects and may enter
into contracts or agreements necessary to procure marketing,
advertising, or other promotional services from outside service
providers[; and
[(8) do all things necessary or appropriate to carry
out the powers expressly granted by this chapter].
SECTION 21. Subchapter A, Chapter 228, Transportation Code,
is amended by adding Section 228.005 to read as follows:
Sec. 228.005. TOLL REVENUE. Except as provided by
Subchapter C, toll revenue collected or received by the department
under this chapter:
(1) shall be deposited in the state highway fund;
(2) may be used by the department to finance the
construction, maintenance, or operation of a transportation
project or air quality project in the region; and
(3) is exempt from the application of Section 403.095,
Government Code.
SECTION 22. Sections 361.189 and 224.154, Transportation
Code, are transferred to Subchapter A, Chapter 228, Transportation
Code, redesignated as Sections 228.006 and 228.007, Transportation
Code, and amended to read as follows:
Sec. 228.006 [361.189]. USE OF SURPLUS REVENUE. The
commission by order may authorize the use of surplus revenue of a
toll [turnpike] project or system to pay the costs of a
transportation [another turnpike] project or air quality project
within the region. The commission may in the order prescribe terms
for the use of the revenue, including the pledge of the revenue, but
may not take an action under this section that violates, impairs, or
is inconsistent with a bond order, trust agreement, or indenture
governing the use of the surplus revenue.
Sec. 228.007 [224.154]. TOLL LANES. (a) The
[Notwithstanding any law of this state relating to charging tolls
on existing free public highways, and subject to Section
224.1541(d), the] commission may by order authorize the department
to charge a toll for the use of one or more lanes of a state highway
[facility], including a high occupancy vehicle lane designated
under Section 224.153 or an exclusive lane designated under Section
224.1541[, for the purposes of congestion mitigation].
(b) If the commission authorizes the department to charge a
toll under Subsection (a), the department may enter into an
agreement with a regional tollway authority described in Chapter
366, a transit authority described in Chapter 451, 452, or 453, a
regional mobility authority under Chapter 370 [361], a county
acting under Chapter 284, or a transportation corporation:
(1) to design, construct, operate, or maintain a toll
lane under this section; and
(2) to charge a toll for the use of one or more lanes of
a state highway facility under this section.
(c) The commission may by order authorize the department or
the entity contracted to operate the toll lane to set the amount of
toll charges. Any toll charges shall be imposed in a reasonable and
nondiscriminatory manner.
(d) [Revenue generated from toll charges and collection
fees assessed by the department in connection with a toll lane shall
be deposited in the state highway fund and may be used only for
projects for the improvement of the state highway system.] Revenue
generated from toll charges and collection fees assessed by an
entity with whom the department contracts under this section shall
be allocated as required by the terms of the agreement.
(e) Before the commission authorizes the department to
charge a toll under Subsection (a) on a traffic lane that had been
opened to traffic as a nontolled facility, the department must
comply with Subchapter E. [The powers granted by this section are
subject to the restrictions of 23 U.S.C. Section 129.]
SECTION 23. Section 224.1541(d), Transportation Code, is
transferred to Subchapter A, Chapter 228, Transportation Code,
redesignated as Section 228.008, Transportation Code, and amended
to read as follows:
Sec. 228.008. TOLLS ON EXCLUSIVE LANE. [(d)] The department
may not charge a toll for the use of an exclusive lane unless:
(1) the lanes or multilane facility adjacent to the
exclusive lane is tolled; or
(2) a vehicle that is authorized to use the tolled
exclusive lane is authorized to use nontolled adjacent lanes or an
adjacent nontolled multilane facility.
SECTION 24. Sections 361.180 and 361.033, Transportation
Code, are transferred to Subchapter A, Chapter 228, Transportation
Code, redesignated as Sections 228.009 and 228.010, Transportation
Code, and amended to read as follows:
Sec. 228.009 [361.180]. TOLLS ON CONVERTED HIGHWAYS. If
converted to a toll facility under Section 222.102 or Subchapter E
[362.0041], the commission may impose a toll for transit over an
existing nontolled [free] public highway.
Sec. 228.010 [361.033]. AUDIT. Notwithstanding any other
law to the contrary, the department shall have an independent
certified public accountant audit the department's books and
accounts for each toll project or system [activities under this
chapter] at least annually. The audit shall be conducted in
accordance with the requirements of any trust agreement securing
bonds issued under Subchapter C [this chapter] that is in effect at
the time of the audit. The cost of the audit may be treated as part
of the cost of construction or operation of a toll project or system
[turnpike project]. This section does not affect the ability of a
state agency to audit the department's books and accounts.
SECTION 25. Subchapter A, Chapter 228, Transportation Code,
is amended by adding Section 228.011 to read as follows:
Sec. 228.011. ESTABLISHMENT OF TOLL SYSTEMS. (a) If the
commission determines that the mobility needs of a region of this
state could be most efficiently and economically met by jointly
operating two or more toll projects in that region as one
operational and financial enterprise, it may create a system
composed of those projects. The commission may create more than one
system in a region and may combine two or more systems in a region
into one system. The department may finance, acquire, construct,
and operate additional toll projects in the region as additions to
or expansions of a system if the commission determines that the toll
project could most efficiently and economically be acquired or
constructed if it were part of the system and that the addition will
benefit the system.
(b) The revenue of a system shall be accounted for
separately and may not be commingled with the revenue of a toll
project that is not part of the system or with the revenue of
another system.
(c) In this section, "region" means a metropolitan
statistical area.
SECTION 26. Chapter 228, Transportation Code, is amended by
adding Subchapter B to read as follows:
SUBCHAPTER B. USE AND OPERATION OF TOLL PROJECTS OR SYSTEMS
Sec. 228.051. DESIGNATION. The commission by order may
designate one or more lanes of a segment of the state highway system
as a toll project or system.
Sec. 228.052. OPERATION OF TOLL PROJECT OR SYSTEM. The
department may enter into an agreement with one or more persons to
provide, on terms approved by the department, personnel, equipment,
systems, facilities, and services necessary to operate a toll
project or system, including the operation of toll plazas and lanes
and customer service centers and the collection of tolls.
SECTION 27. Sections 361.179, 361.252, 361.253, 361.254,
361.255, and 361.256, Transportation Code, are transferred to
Subchapter B, Chapter 228, Transportation Code, redesignated as
Sections 228.053, 228.054, 228.055, 228.056, 228.057, and 228.058,
Transportation Code, and amended to read as follows:
Sec. 228.053 [361.179]. REVENUE. (a) The department may:
(1) impose tolls for the use of each toll [turnpike]
project or system and the different segments or parts of each
[turnpike] project or system; and
(2) in addition to the powers granted [notwithstanding
anything] in Chapter 202 [to the contrary], contract with a person
for the use of part of a toll [turnpike] project or system or lease
part of a toll [turnpike] project or system for a gas station,
garage, store, hotel, restaurant, railroad tracks, utilities, and
telecommunications facilities and equipment and set the terms for
the use or lease.
(b) The tolls shall be set so that, at a minimum, the
aggregate of tolls from the toll [turnpike] project or system:
(1) provides a fund sufficient with other revenue and
contributions, if any, to pay:
(A) the cost of maintaining, repairing, and
operating the project or system; and
(B) the principal of and interest on the bonds
issued under Subchapter C for the project or system as those bonds
become due and payable; and
(2) creates reserves for the purposes listed under
Subdivision (1).
(c) The tolls are not subject to supervision or regulation
by any other state agency.
(d) The tolls and other revenue derived from the toll
[turnpike] project or system for which bonds were issued, except
the part necessary to pay the cost of maintenance, repair, and
operation and to provide reserves for those costs as may be provided
in the order authorizing the issuance of the bonds or in the trust
agreement securing the bonds, shall be set aside at regular
intervals as may be provided in the order or trust agreement in a
sinking fund that is pledged to and charged with the payment of:
(1) interest on the bonds as it becomes due;
(2) principal of the bonds as it becomes due;
(3) necessary charges of paying agents for paying
principal and interest; and
(4) the redemption price or the purchase price of
bonds retired by call or purchase as provided by the bonds.
(e) Use and disposition of money to the credit of the
sinking fund are subject to the order authorizing the issuance of
the bonds or to the trust agreement.
(f) The revenue and disbursements for each toll [turnpike]
project or system shall be kept separately. The revenue from one
[turnpike] project may not be used to pay the cost of another
project except as authorized by Section 228.006 [361.189].
(g) Money in the sinking fund, less the reserve provided by
the order or trust agreement, if not used within a reasonable time
to purchase bonds for cancellation, shall be applied to the
redemption of bonds at the applicable redemption price.
Sec. 228.054 [361.252]. FAILURE OR REFUSAL TO PAY TOLL;
OFFENSE. (a) The operator of a vehicle, other than an authorized
emergency vehicle, that is driven or towed through a toll
collection facility shall pay the proper toll.
(b) The operator of a vehicle who drives or tows a vehicle
through a toll collection facility and does not pay the proper toll
commits an offense.
(c) An offense under this section is a misdemeanor
punishable by a fine not to exceed $250.
(d) In this section, "authorized emergency vehicle" has the
meaning assigned by Section 541.201.
Sec. 228.055 [361.253]. ADMINISTRATIVE FEE; NOTICE;
OFFENSE. (a) In the event of nonpayment of the proper toll as
required by Section 228.054 [361.252], on issuance of a written
notice of nonpayment, the registered owner of the nonpaying vehicle
is liable for the payment of both the proper toll and an
administrative fee.
(b) The department may impose and collect the
administrative fee, so as to recover the cost of collecting the
unpaid toll, not to exceed $100. The department shall send a written
notice of nonpayment to the registered owner of the vehicle at that
owner's address as shown in the vehicle registration records of the
department by first class mail [not later than the 30th day after
the date of the alleged failure to pay] and may require payment not
sooner than the 30th day after the date the notice was mailed. The
registered owner shall pay a separate toll and administrative fee
for each event of nonpayment under Section 228.054 [361.252].
(c) The registered owner of a vehicle for which the proper
toll was not paid who is mailed a written notice of nonpayment under
Subsection (b) and fails to pay the proper toll and administrative
fee within the time specified by the notice of nonpayment commits an
offense. Each failure to pay a toll or administrative fee under
this subsection is a separate offense.
(d) It is an exception to the application of Subsection (a)
or (c) if the registered owner of the vehicle is a lessor of the
vehicle and not later than the 30th day after the date the notice of
nonpayment is mailed provides to the department a copy of the
rental, lease, or other contract document covering the vehicle on
the date of the nonpayment under Section 228.054 [361.252], with
the name and address of the lessee clearly legible. If the lessor
provides the required information within the period prescribed, the
department may send a notice of nonpayment to the lessee at the
address shown on the contract document by first class mail before
the 30th day after the date of receipt of the required information
from the lessor. The lessee of the vehicle for which the proper
toll was not paid who is mailed a written notice of nonpayment under
this subsection and fails to pay the proper toll and administrative
fee within the time specified by the notice of nonpayment commits an
offense. The lessee shall pay a separate toll and administrative
fee for each event of nonpayment. Each failure to pay a toll or
administrative fee under this subsection is a separate offense.
(e) It is an exception to the application of Subsection (a)
or (c) if the registered owner of the vehicle transferred ownership
of the vehicle to another person before the event of nonpayment
under Section 228.054 [361.252] occurred, submitted written notice
of the transfer to the department in accordance with Section
520.023, and, before the 30th day after the date the notice of
nonpayment is mailed, provides to the department the name and
address of the person to whom the vehicle was transferred. If the
former owner of the vehicle provides the required information
within the period prescribed, the department may send a notice of
nonpayment to the person to whom ownership of the vehicle was
transferred at the address provided the former owner by first class
mail before the 30th day after the date of receipt of the required
information from the former owner. The subsequent owner of the
vehicle for which the proper toll was not paid who is mailed a
written notice of nonpayment under this subsection and fails to pay
the proper toll and administrative fee within the time specified by
the notice of nonpayment commits an offense. The subsequent owner
shall pay a separate toll and administrative fee for each event of
nonpayment under Section 228.054 [361.252]. Each failure to pay a
toll or administrative fee under this subsection is a separate
offense.
(f) An offense under this section is a misdemeanor
punishable by a fine not to exceed $250.
(g) The court in which a person is convicted of an offense
under this section shall also collect the proper toll and
administrative fee and forward the toll and fee to the department
for deposit in the depository bank used for that purpose.
(h) In this section, "registered owner" means the owner of a
vehicle as shown on the vehicle registration records of the
department or the analogous department or agency of another state
or country.
(i) The department may contract, in accordance with Section
2107.003, Government Code, with a person to collect the unpaid toll
and administrative fee before referring the matter to a court with
jurisdiction over the offense.
Sec. 228.056 [361.254]. PRESUMPTIONS; PRIMA FACIE
EVIDENCE; DEFENSES. (a) In the prosecution of an offense under
Section 228.054 [361.252] or 228.055 [361.253], proof that the
vehicle was driven or towed through the toll collection facility
without payment of the proper toll may be shown by a video
recording, photograph, electronic recording, or other appropriate
evidence, including evidence obtained by automated enforcement
technology.
(b) In the prosecution of an offense under Section
228.055(c) [361.253(c)], (d), or (e):
(1) it is presumed that the notice of nonpayment was
received on the fifth day after the date of mailing;
(2) a computer record of the department of the
registered owner of the vehicle is prima facie evidence of its
contents and that the defendant was the registered owner of the
vehicle when the underlying event of nonpayment under Section
228.054 [361.252] occurred; and
(3) a copy of the rental, lease, or other contract
document covering the vehicle on the date of the underlying event of
nonpayment under Section 228.054 [361.252] is prima facie evidence
of its contents and that the defendant was the lessee of the vehicle
when the underlying event of nonpayment under Section 228.054
[361.252] occurred.
(c) It is a defense to prosecution under Section 228.055(c)
[361.253(c)], (d), or (e) that the motor vehicle in question was
stolen before the failure to pay the proper toll occurred and had
not been recovered before the failure to pay occurred, but only if
the theft was reported to the appropriate law enforcement authority
before the earlier of:
(1) the occurrence of the failure to pay; or
(2) eight hours after the discovery of the theft.
Sec. 228.057 [361.255]. ELECTRONIC TOLL COLLECTION [USE AND
RETURN OF TRANSPONDERS]. (a) For purposes of this section, a
"transponder" means a device, placed on or within an automobile,
that is capable of transmitting information used to assess or to
collect tolls. A transponder is "insufficiently funded" when there
are no remaining funds in the account in connection with which the
transponder was issued.
(b) Any peace officer of this state may seize a stolen or
insufficiently funded transponder and return it to the department,
except that an insufficiently funded transponder may not be seized
sooner than the 30th day after the date the department has sent a
notice of delinquency to the holder of the account.
(c) The department may enter into an agreement with one or
more persons to market and sell transponders for use on department
toll roads.
(d) The department may charge reasonable fees for
administering electronic toll collection customer accounts.
Sec. 228.058 [361.256]. AUTOMATED ENFORCEMENT TECHNOLOGY.
(a) To aid in the collection of tolls and in the enforcement of toll
violations, the department may use automated enforcement
technology that it determines is necessary, including automatic
vehicle license plate identification photography and video
surveillance, by electronic imaging or photographic copying.
(b) Automated enforcement technology approved by the
department under Subsection (a) may be used only for the purpose of
producing, depicting, photographing, or recording an image of a
license plate attached to the front or rear of a vehicle.
(c) This section does not authorize the use of automated
enforcement technology for any other purpose.
(d) Evidence obtained from technology approved by the
department under Subsection (a) may not be used in the prosecution
of an offense other than under Section 228.054 [361.252] or 228.055
or in the prosecution of a capital offense [361.253].
SECTION 28. Sections 361.004, 361.171, 361.172, 361.173,
361.174, 361.1751, 361.1752, 361.1753, 361.176, 361.177, 361.178,
361.183, 361.185, 361.186, 361.187, and 361.188, Transportation
Code, are transferred to Chapter 228, Transportation Code,
designated as Subchapter C, and amended to read as follows:
SUBCHAPTER C. TOLL REVENUE BONDS
Sec. 228.101 [361.004]. CONSTRUCTION COSTS. (a) The cost of
[acquisition,] construction, improvement, extension, or expansion
of a toll [turnpike] project or system under this chapter includes
the cost of:
(1) the actual acquisition, design, development,
planning, financing, construction, improvement, extension, or
expansion of the project or system;
(2) acquisition of real property, rights-of-way,
property rights, easements, and interests;
(3) the acquisition of machinery, [and] equipment,
software, and intellectual property;
(4) interest before, during, and for one year after
construction, improvement, extension, or expansion;
(5) traffic estimates, engineering, [and] legal and
other advisory services, plans, specifications, surveys,
appraisals, cost and revenue estimates, and other expenses
necessary or incident to determining the feasibility of the
construction, improvement, extension, or expansion;
(6) necessary or incidental administrative, legal,
and other expenses;
(7) financing; and
(8) placement of the project or system in operation
and expenses related to the initial operation of the [turnpike]
project or system.
(b) Costs attributable to a toll [turnpike] project or
system for which bonds are issued that are incurred before the
issuance of the bonds may be reimbursed from the proceeds of the
sale of the bonds.
Sec. 228.102 [361.171]. ISSUANCE OF [TURNPIKE REVENUE]
BONDS. (a) The commission by order may authorize the issuance of
toll [turnpike] revenue bonds to pay all or part of the cost of a
toll [turnpike] project or system. [Each project shall be financed
and built by a separate bond issue.] The proceeds of a bond issue
may be used solely for the payment of the project or system for
which the bonds were issued and may not be divided between or among
two or more projects. Each project is a separate undertaking, the
cost of which shall be determined separately.
(b) As determined in the order authorizing the issuance, the
bonds of each issue shall:
(1) be dated;
(2) bear interest at the rate or rates provided by the
order and beginning on the dates provided by the order and as
authorized by law, or bear no interest;
(3) mature at the time or times provided by the order,
not exceeding 40 years from their date or dates; and
(4) be made redeemable before maturity, at the price
or prices and under the terms provided by the order.
(c) The commission may sell the bonds at public or private
sale in the manner and for the price it determines to be in the best
interest of the department.
(d) The proceeds of each bond issue shall be disbursed in
the manner and under the restrictions, if any, the commission
provides in the order authorizing the issuance of the bonds or in
the trust agreement securing the bonds.
(e) If the proceeds of a bond issue are less than the toll
[turnpike] project or system cost, additional bonds may be issued
in the same manner to pay the costs of a [turnpike] project or
system. Unless otherwise provided in the order authorizing the
issuance of the bonds or in the trust agreement securing the bonds,
the additional bonds are on a parity with and are payable, without
preference or priority, from the same fund as the bonds first
issued. In addition, the commission may issue bonds for a
[turnpike] project or system secured by a lien on the revenue of the
[turnpike] project or system subordinate to the lien on the revenue
securing other bonds issued for the [turnpike] project or system.
(f) If the proceeds of a bond issue exceed the cost of the
toll [turnpike] project or system for which the bonds were issued,
the surplus shall be segregated from the other money of the
commission and used only for the purposes specified in the order
authorizing the issuance.
(g) In addition to other permitted uses, the proceeds of a
bond issue may be used to pay costs incurred before the issuance of
the bonds, including costs of environmental review, design,
planning, acquisition of property, relocation assistance,
construction, and operation.
(h) Bonds issued and delivered under this subchapter
[chapter] and interest coupons on the bonds are a security under
Chapter 8, Business & Commerce Code.
(i) Bonds issued under this subchapter [chapter] and income
from the bonds, including any profit made on the sale or transfer of
the bonds, are exempt from taxation in this state.
Sec. 228.103 [361.172]. APPLICABILITY OF OTHER LAW;
CONFLICTS. All laws affecting the issuance of bonds by
governmental entities, including Chapters 1201, 1202, 1204, 1207,
and 1371, Government Code, apply to bonds issued under this
subchapter [chapter]. To the extent of a conflict between those
laws and this subchapter [chapter], the provisions of this
subchapter [chapter] prevail.
Sec. 228.104 [361.173]. PAYMENT OF BONDS; CREDIT OF STATE
NOT PLEDGED. (a) The principal of, interest on, and any redemption
premium on bonds issued by the commission under this subchapter
[chapter] are payable solely from:
(1) the revenue of the toll [turnpike] project or
system for which the bonds are issued, including tolls pledged to
pay the bonds;
(2) the proceeds of bonds issued for the [turnpike]
project or system;
(3) the amounts deposited in a debt service reserve
fund as required by the trust agreement securing bonds issued for
the [turnpike] project or system; [and]
(4) amounts received under a credit agreement relating
to the [turnpike] project or system for which the bonds are issued;
(5) surplus revenue of another project or system as
authorized by Section 228.006; and
(6) amounts received by the department:
(A) as pass-through tolls under Section 222.104;
(B) under an agreement with a local governmental
entity entered into under Section 228.254;
(C) under other agreements with a local
governmental entity relating to the project or system for which the
bonds are issued; and
(D) under a comprehensive development agreement
entered into under Subchapter G.
(b) Bonds issued under this subchapter [chapter] do not
constitute a debt of the state or a pledge of the faith and credit of
the state. Each bond must contain on its face a statement to the
effect that:
(1) the state, the commission, and the department are
not obligated to pay the bond or the interest on the bond from a
source other than the amount pledged to pay the bond and the
interest on the bond; and
(2) the faith and credit and the taxing power of the
state are not pledged to the payment of the principal of or interest
on the bond.
(c) The commission and the department may not incur
financial obligations that cannot be paid from tolls or revenue
derived from owning or operating toll [turnpike] projects or
systems or from money provided by law.
Sec. 228.105 [361.174]. SOURCES OF PAYMENT OF AND SECURITY
FOR TOLL REVENUE [TURNPIKE PROJECT] BONDS. Notwithstanding any
other provisions of this subchapter, toll revenue [chapter,
turnpike project] bonds issued by the commission may:
(1) be payable from and secured by:
(A) payments made under an agreement with a local
governmental entity as provided by Section 228.254 [Subchapter A,
Chapter 362];
(B) the proceeds of bonds issued for the toll
[turnpike] project or system; [or]
(C) amounts deposited in a debt service reserve
fund as required by the trust agreement securing bonds issued for
the [turnpike] project or system; or
(D) surplus revenue of another toll project or
system as authorized by Section 228.006; and
(2) state on their faces any pledge of revenue or taxes
and any security for the bonds under the agreement.
Sec. 228.106 [361.1751]. INTERIM BONDS. (a) The commission
may, before issuing definitive bonds, issue interim bonds, with or
without coupons, exchangeable for definitive bonds.
(b) An order authorizing interim bonds may provide that the
interim bonds recite that the bonds are issued under this
subchapter [chapter]. The recital is conclusive evidence of the
validity and the regularity of the bonds' issuance.
Sec. 228.107 [361.1752]. EFFECT OF LIEN. (a) A lien on or a
pledge of revenue, a contract payment, or a pledge of money to the
payment of bonds issued under this subchapter is valid and
effective in accordance with Chapter 1208, Government Code, and
[from a turnpike project or on a reserve, replacement, or other fund
established in connection with a bond issued under this chapter]:
(1) is enforceable in any court at the time of payment
for and delivery of the bond;
(2) applies to each item on hand or subsequently
received;
(3) applies without physical delivery of an item or
other act; and
(4) is enforceable in any court against any person
having a claim, in tort, contract, or other remedy, against the
commission or the department without regard to whether the person
has notice of the lien or pledge.
(b) An order authorizing the issuance of bonds is not
required to be recorded except in the regular records of the
department.
Sec. 228.108 [361.1753]. APPROVAL OF BONDS BY ATTORNEY
GENERAL. (a) The commission shall submit to the attorney general
for examination the record of proceedings relating to bonds
authorized under this subchapter [chapter]. The record shall
include the bond proceedings and any contract securing or providing
revenue for the payment of the bonds.
(b) If the attorney general determines that the bonds, the
bond proceedings, and any supporting contract are authorized by
law, the attorney general shall approve the bonds and deliver to the
comptroller:
(1) a copy of the legal opinion of the attorney general
stating the approval; and
(2) the record of proceedings relating to the
authorization of the bonds.
(c) On receipt of the legal opinion of the attorney general
and the record of proceedings relating to the authorization of the
bonds, the comptroller shall register the record of proceedings.
(d) After approval by the attorney general, the bonds, the
bond proceedings, and any supporting contract are valid,
enforceable, and incontestable in any court or other forum for any
reason and are binding obligations according to their terms for all
purposes.
Sec. 228.109 [361.176]. TRUST AGREEMENT. (a) Bonds issued
under this subchapter [chapter] may be secured by a trust agreement
between the commission and a corporate trustee that is a trust
company or a bank that has the powers of a trust company.
(b) A trust agreement may pledge or assign the tolls and
other revenue to be received but may not convey or mortgage any part
of a toll [turnpike] project or system.
(c) A trust agreement may not evidence a pledge of the
revenue of a toll [turnpike] project or system except:
(1) to pay the cost of maintaining, repairing, and
operating the project or system;
(2) to pay the principal of, interest on, and any
redemption premium on the bonds as they become due and payable;
(3) to create and maintain reserves for the purposes
described by Subdivisions (1) and (2), as prescribed by Section
228.053 [361.179]; and
(4) as otherwise provided by law.
(d) Notwithstanding Subsection (c), surplus revenue may be
used for a transportation or air quality [another turnpike] project
as authorized by Section 228.006 [361.189].
(e) A trust agreement may:
(1) set forth the rights and remedies of the
bondholders and the trustee;
(2) restrict the individual right of action by
bondholders as is customary in trust agreements or trust indentures
securing corporate bonds and debentures; and
(3) contain provisions the commission determines
reasonable and proper for the security of the bondholders.
(f) The expenses incurred in carrying out a trust agreement
may be treated as part of the cost of operating the toll [turnpike]
project or system.
Sec. 228.110 [361.177]. PROVISIONS PROTECTING AND ENFORCING
RIGHTS AND REMEDIES OF BONDHOLDERS. A trust agreement or order
providing for the issuance of bonds may contain provisions to
protect and enforce the rights and remedies of the bondholders,
including:
(1) covenants establishing the commission's duties
relating to:
(A) the acquisition of property;
(B) the design, development, financing,
construction, improvement, expansion, maintenance, repair,
operation, and insurance of the toll [turnpike] project or system
in connection with which the bonds were authorized; and
(C) the custody, safeguarding, and application
of money;
(2) covenants prescribing events that constitute
default;
(3) [covenants prescribing terms on which any or all
of the bonds become or may be declared due before maturity;
[(4)] covenants relating to the rights, powers,
liabilities, or duties that arise on the breach of a duty of the
commission; and
(4) [(5)] provisions for the employment of consulting
engineers in connection with the construction or operation of the
[turnpike] project or system.
Sec. 228.111 [361.178]. FURNISHING OF INDEMNIFYING BONDS
OR PLEDGE OF SECURITIES. A bank or trust company incorporated under
the laws of this state that acts as depository of the proceeds of
bonds or of revenue may furnish indemnifying bonds or pledge
securities that the department requires.
Sec. 228.112 [361.183]. FEASIBILITY STUDY BY MUNICIPALITY,
COUNTY, OR PRIVATE GROUP. (a) One or more municipalities, one or
more counties, a combination of municipalities and counties, or a
private group or combination of individuals in this state may pay
all or part of the expenses of studying the cost and feasibility and
any other expenses relating to:
(1) the preparation and issuance of toll [turnpike]
revenue bonds for the construction of a proposed toll [turnpike]
project or system;
(2) the improvement, extension, or expansion of an
existing project or system; or
(3) the use of private participation under Subchapter
G [I].
(b) Money spent under Subsection (a) for a proposed toll
project or system [turnpike] is reimbursable, with the consent of
the commission, to the person paying the expenses out of the
proceeds from toll [turnpike] revenue bonds issued for or other
proceeds that may be used for the financing, design, development,
construction, improvement, extension, expansion, or operation of
the project.
Sec. 228.113 [361.185]. TRUST FUND. (a) All money
received under this subchapter [chapter], whether as proceeds from
the sale of bonds or as revenue, is a trust fund to be held and
applied as provided by this subchapter [chapter]. Notwithstanding
any other law, including Section 9, Chapter 1123, Acts of the 75th
Legislature, Regular Session, 1997, and without the prior approval
of the comptroller, funds held under this subchapter [chapter]
shall be held in trust by a banking institution chosen by the
department or, at the discretion of the department, in trust in the
state treasury outside the general revenue fund.
(b) The order authorizing the issuance of bonds or the trust
agreement securing the bonds shall provide that an officer to whom
or a bank or trust company to which the money is paid shall act as
trustee of the money and shall hold and apply the money for the
purpose of the order or trust agreement, subject to this subchapter
[chapter] and the order or trust agreement.
Sec. 228.114 [361.186]. REMEDIES. Except to the extent
restricted by a trust agreement, a holder of a bond issued under
this subchapter [chapter] and a trustee under a trust agreement
may:
(1) protect and enforce by a legal proceeding in any
court a right under:
(A) this subchapter [chapter] or another law of
this state;
(B) the trust agreement; or
(C) the order authorizing the issuance of the
bond; and
(2) compel the performance of a duty this subchapter
[chapter], the trust agreement, or the order requires the
commission or the department or an officer of the commission or the
department to perform, including the imposing of tolls.
Sec. 228.115 [361.187]. EXEMPTION FROM TAXATION OR
ASSESSMENT. (a) The commission is exempt from taxation of or
assessments on:
(1) a toll [turnpike] project or system;
(2) property the department acquires or uses under
this subchapter [chapter]; or
(3) income from property described by Subdivision (1)
or (2).
(b) Bonds issued under this subchapter [chapter] and income
from the bonds, including any profit made on the sale or transfer of
the bonds, are exempt from taxation in this state.
Sec. 228.116 [361.188]. VALUATION OF BONDS SECURING
DEPOSIT OF PUBLIC FUNDS. Bonds of the commission may secure the
deposit of public funds of the state or a political subdivision of
the state to the extent of the lesser of the face value of the bonds
or their market value.
SECTION 29. Subchapter H, Chapter 361, Transportation Code,
is transferred to Chapter 228, Transportation Code, redesignated as
Subchapter D, and amended to read as follows:
SUBCHAPTER D [H]. TRANSFER OF TOLL [TURNPIKE] PROJECT
[Sec. 361.281. APPLICABILITY OF SUBCHAPTER. This
subchapter applies only to:
[(1) a county with a population of more than 1.5
million;
[(2) a local government corporation serving a county
with a population of more than 1.5 million;
[(3) an adjacent county in a joint turnpike authority
with a county with a population of more than 1.5 million;
[(4) a municipality with a population of more than
170,000 that is adjacent to the United Mexican States;
[(5) a regional tollway authority created under
Chapter 366; or
[(6) a regional mobility authority organized under
Chapter 370 or Section 361.003, as that section existed before June
22, 2003.]
Sec. 228.151 [361.282]. LEASE, SALE, OR CONVEYANCE OF TOLL
[TURNPIKE] PROJECT. (a) The department may lease, sell, or
transfer [convey] in another manner a toll [turnpike] project or
system to a governmental entity that has the authority to operate a
tolled highway [county, a municipality, regional tollway
authority, regional mobility authority,] or a local government
corporation created under Chapter 431.
(b) The commission and the governor must approve the
transfer of the toll [turnpike] project or system as being in the
best interests of the state and the entity receiving the [turnpike]
project or system.
Sec. 228.152 [361.283]. DISCHARGE OF OUTSTANDING BONDED
INDEBTEDNESS. An agreement to lease, sell, or convey a toll
[turnpike] project or system under Section 228.151 [361.282] must
provide for the discharge and final payment or redemption of the
department's outstanding bonded indebtedness for the project or
system.
Sec. 228.153 [361.284]. REPAYMENT OF DEPARTMENT'S
EXPENDITURES. (a) Except as provided by Subsection (b), an
agreement to lease, sell, or convey a toll [turnpike] project or
system under Section 228.151 [361.282] must provide for the
repayment of any expenditures of the department for the financing,
design, development, construction, operation, or [and] maintenance
of the highway [project] that have not been reimbursed with the
proceeds of bonds issued for the highway [project].
(b) The commission may waive repayment of all or a portion
of the expenditures if it finds that the transfer will result in
substantial net benefits to the state, the department, and the
public that equal or exceed the amount of repayment waived.
Sec. 228.154 [361.285]. APPROVAL OF AGREEMENT BY ATTORNEY
GENERAL. (a) An agreement for the lease, sale, or conveyance of a
toll [turnpike] project or system under this subchapter shall be
submitted to the attorney general for approval as part of the
records of proceedings relating to the issuance of bonds of the
county, municipality, regional tollway authority, regional
mobility authority, or local government corporation.
(b) If the attorney general determines that the agreement is
in accordance with law, the attorney general shall approve the
agreement and deliver to the commission a copy of the legal opinion
of the attorney general stating that approval.
SECTION 30. Section 362.0041, Transportation Code, is
transferred to Chapter 228, Transportation Code, designated as
Subchapter E, and amended to read as follows:
SUBCHAPTER E. CONVERSION OF NONTOLLED HIGHWAY
Sec. 228.201 [362.0041]. COMMISSION DETERMINATION
[CONVERSION OF PROJECTS]. (a) The [Except as provided in
Subsections (d) and (g), the] commission may by order convert a
nontolled state highway or a segment of a nontolled state highway
[the free state highway system] to a toll project [facility] if it
determines that the conversion will improve overall mobility in the
region or is the most feasible and economic means to accomplish
necessary expansion, improvements, or extensions to that segment of
the state highway system.
Sec. 228.202. PUBLIC HEARING. [(b)] Prior to converting a
state highway or a segment of a [the] state highway [system] under
this subchapter [section], the commission shall conduct a public
hearing for the purpose of receiving comments from interested
persons concerning the proposed conversion [transfer]. Notice of
the hearing shall be published in the Texas Register, one or more
newspapers of general circulation, and a newspaper, if any,
published in the county or counties in which the involved highway is
located.
Sec. 228.203. RULES. [(c)] The commission shall adopt
rules implementing this subchapter [section], including criteria
and guidelines for the approval of a conversion of a highway.
Sec. 228.204. QUEEN ISABELLA CAUSEWAY. [(d)] The
commission may not convert the Queen Isabella Causeway in Cameron
County to a toll project [facility].
Sec. 228.205. COUNTY APPROVAL. [(e) Subchapter G, Chapter
361, applies to a highway converted to a toll facility under this
section.
[(f) Toll revenue collected under this section:
[(1) shall be deposited in the state highway fund;
[(2) may be used by the department to finance the
improvement, extension, expansion, or operation of the converted
segment of highway and may not be collected except for those
purposes; and
[(3) is exempt from the application of Section
403.095, Government Code.
[(g)] The commission may only convert a segment of the state
highway system under this subchapter [section] if the conversion is
approved by the commissioners court of each county within which the
segment is located.
SECTION 31. Sections 362.001, 362.003, 362.006, and
362.007, Transportation Code, are transferred to Chapter 228,
Transportation Code, designated as Subchapter F, and amended to
read as follows:
SUBCHAPTER F. JOINT TOLL PROJECTS
Sec. 228.251 [362.001]. DEFINITIONS. In this subchapter:
(1) [(2)] "Bonds" includes certificates, notes, and
other obligations of an issuer authorized by statute, municipal
home-rule charter, or the Texas Constitution.
(2) [(3) "Cost" means those costs included under
Section 361.004.
[(4)] "Local governmental entity" means a political
subdivision of the state, including a municipality or a county, a
political subdivision of a county, a group of adjoining counties, a
defined district, or a nonprofit corporation, including a
transportation corporation created under Chapter 431.
[(5) "Turnpike project" has the meaning assigned by
Section 361.001.]
Sec. 228.252 [362.003]. APPLICABILITY OF OTHER LAW;
CONFLICTS. (a) This subchapter [chapter] is cumulative of all laws
affecting the issuance of bonds by local governmental entities,
particularly, but not by way of limitation, provisions of Chapters
1201 and 1371, Government Code, and Subchapters A-C, Chapter 1207,
Government Code, are applicable to and apply to all bonds issued
under this subchapter [chapter], regardless of any classification
of any such local governmental entities thereunder; provided,
however, in the event of any conflict between such laws and this
subchapter [chapter], the provisions of this subchapter [chapter]
prevail.
(b) This subchapter [chapter] is cumulative of all laws
affecting the commission, the department, and the local
governmental entities, except that in the event any other law
conflicts with this subchapter [chapter], the provisions of this
subchapter [chapter] prevail. Chapters 1201 and 1371, Government
Code, and Subchapters A, B, and C, Chapter 1207, Government Code,
apply to bonds issued by the commission under this subchapter
[chapter].
(c) The department may enter into all agreements necessary
or convenient to effectuate the purposes of this subchapter
[chapter].
Sec. 228.253 [362.006]. USE OF FEDERAL FUNDS. The
department may use federal funds for any purpose described by this
subchapter.
Sec. 228.254 [362.007]. AGREEMENTS BETWEEN AUTHORITY AND
LOCAL GOVERNMENTAL ENTITIES. (a) Under authority of Section 52,
Article III, Texas Constitution, a local governmental entity other
than a nonprofit corporation may, upon the required vote of the
qualified voters, in addition to all other debts, issue bonds or
enter into and make payments under agreements with the department,
not to exceed 40 years in term, in any amount not to exceed
one-fourth of the assessed valuation of real property within the
local governmental entity, except that the total indebtedness of
any municipality shall never exceed the limits imposed by other
provisions of the constitution, and levy and collect taxes to pay
the interest thereon and provide a sinking fund for the redemption
thereof, for the purposes of construction, maintenance, and
operation of toll [turnpike] projects or systems of the department,
or in aid thereof.
(b) In addition to Subsection (a), a local governmental
entity may, within any applicable constitutional limitations,
agree with the department to issue bonds or enter into and make
payments under an agreement to construct, maintain, or operate any
portion of a toll [turnpike] project or system of the department.
(c) To make payments under an agreement under Subsection (b)
or pay the interest on bonds issued under Subsection (b) and to
provide a sinking fund for the bonds or the contract, a local
governmental entity may:
(1) pledge revenue from any available source,
including annual appropriations;
(2) levy and collect taxes; or
(3) provide for a combination of Subdivisions (1) and
(2).
(d) The term of an agreement under this section may not
exceed 40 years.
(e) Any election required to permit action under this
subchapter must be held in conformance with Chapter 1251,
Government Code, or other law applicable to the local governmental
entity.
SECTION 32. Chapter 228, Transportation Code, is amended by
adding Subchapter G to read as follows:
SUBCHAPTER G. COMPREHENSIVE DEVELOPMENT AGREEMENTS
Sec. 228.301. AUTHORITY. (a) Subject to Section 228.302,
the department may enter into a comprehensive development agreement
with a private entity to design, develop, finance, construct,
maintain, repair, operate, extend, or expand a toll project.
(b) In this subchapter, "comprehensive development
agreement" means an agreement that, at a minimum, provides for the
design and construction, rehabilitation, expansion, or improvement
of a toll project and may also provide for the financing,
acquisition, maintenance, or operation of a toll project.
(c) The department may negotiate provisions relating to
professional and consulting services provided in connection with a
comprehensive development agreement.
(d) Money disbursed by the department under a comprehensive
development agreement is not included in the amount:
(1) required to be spent in a state fiscal biennium for
engineering and design contracts under Section 223.041; or
(2) appropriated in Strategy A.1.1.
Plan/Design/Manage of the General Appropriations Act for that
biennium for the purpose of making the computation under Section
223.041.
(e) The department may authorize the investment of public
and private money, including debt and equity participation, to
finance a function described by this section.
Sec. 228.302. LIMITATION ON DEPARTMENT FINANCIAL
PARTICIPATION. The amount of money disbursed by the department
from the state highway fund and the Texas mobility fund during a
federal fiscal year to pay the costs under comprehensive
development agreements may not exceed 40 percent of the obligation
authority under the federal-aid highway program that is distributed
to this state for the fiscal year.
Sec. 228.303. PROCESS FOR ENTERING INTO COMPREHENSIVE
DEVELOPMENT AGREEMENTS. (a) If the department enters into a
comprehensive development agreement, the department shall use a
competitive procurement process that provides the best value for
the department. The department may accept unsolicited proposals
for a proposed project or solicit proposals in accordance with this
section.
(b) The department shall establish rules and procedures for
accepting unsolicited proposals that require the private entity to
include in the proposal:
(1) information regarding the proposed project
location, scope, and limits;
(2) information regarding the private entity's
qualifications, experience, technical competence, and capability
to develop the project; and
(3) any other information the department considers
relevant or necessary.
(c) The department shall publish a notice advertising a
request for competing proposals and qualifications in the Texas
Register that includes the criteria to be used to evaluate the
proposals, the relative weight given to the criteria, and a
deadline by which proposals must be received if:
(1) the department decides to issue a request for
qualifications for a proposed project; or
(2) the department authorizes the further evaluation
of an unsolicited proposal.
(d) A proposal submitted in response to a request published
under Subsection (c) must contain, at a minimum, the information
required by Subsections (b)(2) and (3).
(e) The department may interview a private entity
submitting an unsolicited proposal or responding to a request under
Subsection (c). The department shall evaluate each proposal based
on the criteria described in the request for competing proposals
and qualifications and may qualify or shortlist private entities to
submit detailed proposals under Subsection (f). The department
must qualify or shortlist at least two private entities to submit
detailed proposals for a project under Subsection (f) unless the
department does not receive more than one proposal or one response
to a request under Subsection (c).
(f) The department shall issue a request for detailed
proposals from all private entities qualified or shortlisted under
Subsection (e) if the department proceeds with the further
evaluation of a proposed project. A request under this subsection
may require additional information relating to:
(1) the private entity's qualifications and
demonstrated technical competence;
(2) the feasibility of developing the project as
proposed;
(3) engineering or architectural designs;
(4) the private entity's ability to meet schedules;
(5) a financial plan, including costing methodology
and cost proposals; or
(6) any other information the department considers
relevant or necessary.
(g) In issuing a request for proposals under Subsection (f),
the department may solicit input from entities qualified under
Subsection (e) or any other person. The department may also solicit
input regarding alternative technical concepts after issuing a
request under Subsection (f).
(h) The department shall evaluate each proposal based on the
criteria described in the request for detailed proposals and select
the private entity whose proposal offers the apparent best value to
the department.
(i) The department may enter into negotiations with the
private entity whose proposal offers the apparent best value for
the purpose of establishing the final terms of a comprehensive
development agreement.
(j) If at any point in negotiations under Subsection (i) it
appears to the department that the highest ranking proposal will
not provide the department with the overall best value, the
department may enter into negotiations with the private entity
submitting the next highest ranking proposal.
(k) The department may withdraw a request for competing
proposals and qualifications or a request for detailed proposals at
any time. The department may then publish a new request for
competing proposals and qualifications.
(l) The department may require that an unsolicited proposal
be accompanied by a nonrefundable fee sufficient to cover all or
part of its cost to review the proposal.
(m) The department shall pay an unsuccessful private entity
that submits a responsive proposal in response to a request for
detailed proposals under Subsection (f) a stipulated amount in
exchange for the work product contained in that proposal. The
stipulated amount must be stated in the request for proposals and
may not exceed the value of any work product contained in the
proposal that can, as determined by the department, be used by the
department in the performance of its functions. The use by the
department of any design element contained in an unsuccessful
proposal is at the sole risk and discretion of the department and
does not confer liability on the recipient of the stipulated amount
under this section. After payment of the stipulated amount:
(1) the department owns with the unsuccessful proposer
jointly the rights to, and may make use of any work product
contained in, the proposal, including the technologies,
techniques, methods, processes, ideas, and information contained
in the project design; and
(2) the use by the unsuccessful proposer of any
portion of the work product contained in the proposal is at the sole
risk of the unsuccessful proposer and does not confer liability on
the department.
(n) The department may prescribe the general form of a
comprehensive development agreement and may include any matter the
department considers advantageous to the department. The
department and the private entity shall finalize the specific terms
of a comprehensive development agreement.
(o) Subchapter A, Chapter 223, of this code and Chapter
2254, Government Code, do not apply to a comprehensive development
agreement entered into under this subchapter.
Sec. 228.304. CONFIDENTIALITY OF INFORMATION. (a) To
encourage private entities to submit proposals under this
subchapter, the following information is confidential, is not
subject to disclosure, inspection, or copying under Chapter 552,
Government Code, and is not subject to disclosure, discovery,
subpoena, or other means of legal compulsion for its release until a
final contract for a proposed project is entered into:
(1) all or part of a proposal that is submitted by a
private entity for a comprehensive development agreement, except
information provided under Sections 228.303(b)(1) and (2), unless
the private entity consents to the disclosure of the information;
(2) supplemental information or material submitted by
a private entity in connection with a proposal for a comprehensive
development agreement, unless the private entity consents to the
disclosure of the information or material; and
(3) information created or collected by the department
or its agent during consideration of a proposal for a comprehensive
development agreement.
(b) After the department completes its final ranking of
proposals under Section 228.303(h), the final rankings of each
proposal under each of the published criteria are not confidential.
Sec. 228.305. PERFORMANCE AND PAYMENT SECURITY. (a)
Notwithstanding Section 228.306 and the requirements of Subchapter
B, Chapter 2253, Government Code, the department shall require a
private entity entering into a comprehensive development agreement
under this subchapter to provide a performance and payment bond or
an alternative form of security in an amount sufficient to:
(1) ensure the proper performance of the agreement;
and
(2) protect:
(A) the department; and
(B) payment bond beneficiaries who have a direct
contractual relationship with the private entity or a subcontractor
of the private entity to supply labor or material.
(b) A performance and payment bond or alternative form of
security shall be in an amount equal to the cost of constructing or
maintaining the project.
(c) If the department determines that it is impracticable
for a private entity to provide security in the amount described by
Subsection (b), the department shall set the amount of the bonds or
the alternative forms of security.
(d) A payment or performance bond or alternative form of
security is not required for the portion of an agreement that
includes only design or planning services, the performance of
preliminary studies, or the acquisition of real property.
(e) The amount of the payment security must not be less than
the amount of the performance security.
(f) In addition to or instead of performance and payment
bonds, the department may require the following alternative forms
of security:
(1) a cashier's check drawn on a financial entity
specified by the department;
(2) a United States bond or note;
(3) an irrevocable bank letter of credit; or
(4) any other form of security determined suitable by
the department.
(g) The department by rule shall prescribe requirements for
alternative forms of security provided under this section.
Sec. 228.306. OWNERSHIP OF TOLL PROJECT. (a) A toll
project that is the subject of a comprehensive development
agreement with a private entity, including the facilities acquired
or constructed on the project, is public property and shall be owned
by the department.
(b) Notwithstanding Subsection (a), the department may
enter into an agreement that provides for the lease of
rights-of-way, the granting of easements, the issuance of
franchises, licenses, or permits, or any lawful uses to enable a
private entity to construct, operate, and maintain a toll project,
including supplemental facilities. At the termination of the
agreement, the project, including the facilities, is to be in a
state of proper maintenance as determined by the department and
shall be returned to the department in satisfactory condition at no
further cost.
(c) Notwithstanding Section 11.11, Tax Code, a private
entity that leases a toll project under a comprehensive development
agreement is exempt from taxation of or assessment on the facility.
Sec. 228.307. LIABILITY FOR PRIVATE OBLIGATIONS. The
department may not incur a financial obligation for a private
entity that designs, develops, finances, constructs, maintains, or
operates a toll project under this subchapter. The state or a
political subdivision of the state is not liable for any financial
or other obligations of a project solely because a private entity
constructs, finances, or operates any part of the project.
Sec. 228.308. TERMS OF PRIVATE PARTICIPATION. (a) The
department shall negotiate the terms of private participation under
this subchapter, including:
(1) methods to determine the applicable cost, profit,
and project distribution among the private participants and the
department;
(2) reasonable methods to determine and classify toll
rates;
(3) acceptable safety and policing standards; and
(4) other applicable professional, consulting,
construction, operation, and maintenance standards, expenses, and
costs.
(b) A comprehensive development agreement entered into
under this subchapter must include a provision authorizing the
department to purchase, under terms and conditions agreed to by the
parties, the interest of a private participant in a toll project
designed, developed, financed, constructed, operated, or
maintained under the comprehensive development agreement.
(c) The department may enter into a comprehensive
development agreement under this subchapter with a private
participant only if the project is identified in the department's
unified transportation program or is located on a transportation
corridor identified in the statewide transportation plan.
Sec. 228.309. RULES, PROCEDURES, AND GUIDELINES GOVERNING
SELECTION AND NEGOTIATING PROCESS. (a) The commission shall adopt
rules, procedures, and guidelines governing selection of a
developer for a comprehensive development agreement and
negotiations to promote fairness, obtain private participants in
projects, and promote confidence among those participants. The
rules must contain criteria relating to the qualifications of the
participants and the award of the contracts.
(b) The department shall have up-to-date procedures for
participation in negotiations under this subchapter.
(c) The department has exclusive judgment to determine the
terms of an agreement.
Sec. 228.310. IMMUNITY FROM LIABILITY. A private entity
that constructs, maintains, or operates a toll project under this
chapter that is an essential governmental function is liable for
damages only to the extent that the department would be liable if
the department were performing the function.
SECTION 33. Section 284.009, Transportation Code, as added
by Chapters 953 and 1325, Acts of the 78th Legislature, Regular
Session, 2003, is reenacted and amended to read as follows:
Sec. 284.009. CONVERSION AND TRANSFER [CONVEYANCE] OF STATE
HIGHWAY TO COUNTY [OR TOLL ROAD AUTHORITY]. (a) The commission may
transfer [convey] a nontoll state highway or a segment of a nontoll
state highway, including real property acquired to construct or
operate the highway, to [(i)] a county [or a toll road authority in
the county in which the state highway or segment is located, or (ii)
a county or toll road authority in a county adjacent to the county
in which the highway or segment is located if the county or toll
road authority in the county in which the segment or highway is
located approves the conveyance,] for the purpose of converting the
highway to a toll facility to be operated and maintained [operation
and maintenance] as a project under this chapter, if:
(1) the commission determines that the proposed
transfer [conveyance] will improve overall mobility in the region
or is the most feasible and economic means of accomplishing
necessary improvements to the highway;
(2) any funds paid by the department for the
construction, maintenance, and operation of the transferred
[conveyed] highway are repaid to the department; and
(3) the county [or toll road authority] agrees to
assume all liability and responsibility for the maintenance and
operation of the transferred [conveyed] highway on its transfer
[conveyance].
(b) A county [or toll road authority] that receives a
nontoll state highway or a segment of a nontoll state highway under
Subsection (a) may own, operate, and maintain the highway as a
pooled project under Section 284.065. [The commission may only
make a conveyance under this section if the commission determines
that the conveyance is the most feasible and economic means to
accomplish necessary expansions, extensions, or improvements of
the conveyed segment of the highway. Tolls may not be collected by
an authority from a conveyed segment of highway except to finance
the expansion, extension, operation, and maintenance of that
highway segment.]
(c) The commission shall, at the time of a transfer
[conveyance], remove the highway or segment of highway from the
state highway system. After a transfer [conveyance], the
department has no liability, responsibility, or duty for the
maintenance or operation of the highway or segment.
(d) The commission may waive all or a portion of an amount
due under Subsection (a)(2) if it finds that the transfer
[conveyance] will result in substantial net benefits to the state,
the department, and the traveling public that equal or exceed the
amount of payment waived.
(e) Before transferring [conveying] a nontoll state highway
or a segment of a nontoll state highway under this section, the
commission shall conduct a public hearing to receive comments from
interested persons concerning the proposed transfer [conveyance].
Notice of the hearing shall be published in the Texas Register and
in one or more newspapers of general circulation in any county in
which the highway or segment is located.
(f) A county [or toll road authority] may use toll revenue
collected under this section to fund a transportation project or an
air quality project.
(g) The commission shall adopt rules implementing this
section, including criteria and guidelines for approval of a
transfer [conveyance] of a highway or segment.
(h) In this section:
(1) "Air quality project" means a project or program
of a county, toll road authority, or another governmental entity
that the county or toll road authority determines will mitigate or
prevent air pollution caused by the construction, maintenance, or
use of public roads within the county.
(2) "Transportation project" means the construction,
improvement, maintenance, or operation of a transportation
facility:
(A) under the jurisdiction of a county, toll road
authority, or another governmental entity;
(B) located inside or outside the county or area
served by the toll road authority; and
(C) that the county or toll road authority
determines will improve mobility within the county or area served
by the toll road authority.
(i) Funds received by the department under this section:
(1) shall be deposited to the credit of the state
highway fund; and
(2) are exempt from the application of Section
403.095, Government Code. [This section applies only to a nontoll
state highway or a segment of a nontoll state highway that is
conveyed for purposes of creating an outer loop or connecting to an
outer loop located primarily in a county having a population of more
than three million or an adjacent county.]
SECTION 34. Section 284.061(c), Transportation Code, is
amended to read as follows:
(c) Except as provided by Section 284.0615 [361.1375], if
applicable, the county is entitled to immediate possession of
property subject to a condemnation proceeding brought by the county
after:
(1) a tender of a bond or other security in an amount
sufficient to secure the owner for damages; and
(2) the approval of the bond or security by the court.
SECTION 35. Subchapter C, Chapter 284, Transportation Code,
is amended by adding Section 284.0615 to read as follows:
Sec. 284.0615. DECLARATION OF TAKING BY CERTAIN COUNTIES.
(a) This section applies only to a county with a population of 3.3
million or more.
(b) If, in connection with a project under this chapter, a
commissioners court of the county authorizes the county to proceed
in the manner provided by Section 203.066:
(1) the county may file a declaration of taking and
proceed in the manner provided by that section on the project; and
(2) a reference to the department in that section
means the county.
SECTION 36. Section 370.035(a), Transportation Code, is
amended to read as follows:
(a) The commission by order may transfer [convert] a
nontolled segment of the [free] state highway system [to a turnpike
project and transfer that segment] to an authority for the purpose
of converting the segment to a turnpike project, or may transfer an
existing turnpike project that is part of the state highway system,
whether previously tolled or not, to an authority if:
(1) the commission determines that the proposed
transfer is an integral part of the region's overall plan to improve
mobility in the region;
(2) the commission determines that the public has a
reasonable alternative route on nontoll roads;
(3) the authority agrees to assume all liability and
responsibility for the maintenance and operation of the turnpike
project on its transfer; and
(4) the transfer is approved by the governor.
SECTION 37. Section 370.163(a), Transportation Code, is
amended to read as follows:
(a) Except as otherwise provided by this subchapter, the
governing body of an authority has the same powers and duties
relating to the condemnation and acquisition of real property for a
transportation project that the commission and the department have
under Subchapter D, Chapter 203 [361, and Section 361.233] relating
to the condemnation or purchase of real property for a turnpike
project. [Notwithstanding Section 361.135(a), the concurrence of
the commission is not a prerequisite to the exercise of the power of
condemnation by the governing body of the authority.]
SECTION 38. The following provisions of the Transportation
Code are repealed:
(1) Section 201.6061;
(2) Sections 224.155-224.158 and 224.160;
(3) Sections 227.062(c)-(g);
(4) Section 361.002;
(5) Sections 361.031 and 361.050;
(6) Sections 361.131-361.136, 361.1375, and
361.140-361.142;
(7) Sections 361.175 and 361.191;
(8) Subchapter F, Chapter 361;
(9) Section 361.251;
(10) Sections 361.302-361.306;
(11) Subchapter J, Chapter 361;
(12) Sections 362.002 and 362.008; and
(13) Section 370.163(b).
SECTION 39. The changes in law made by this Act to
Subchapter I, Chapter 361, Transportation Code, apply only to an
agreement between the Texas Department of Transportation and a
private entity entered into on or after the effective date of this
Act. An agreement entered into before the effective date of this
Act is governed by the law applicable to the agreement immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 40. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2005.