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79R18672 E
By: Ogden S.B. No. 1863
Substitute the following for S.B. No. 1863:
By: Pitts C.S.S.B. No. 1863
A BILL TO BE ENTITLED
AN ACT
relating to certain fiscal matters affecting governmental
entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. REGISTRATION FEE FOR CERTAIN LOBBYISTS
SECTION 1.01. Subsection (c), Section 305.005, Government
Code, is amended to read as follows:
(c) The registration fee and registration renewal fee are:
(1) $100 for a registrant employed by an organization
exempt from federal income tax under Section 501(c)(3) or
501(c)(4), Internal Revenue Code of 1986; or
(2) $1,000 [$300] for any other registrant.
SECTION 1.02. This article takes effect December 1, 2005.
ARTICLE 2. FEES FOR CERTAIN INSPECTIONS CONDUCTED
BY THE COMMISSION ON JAIL STANDARDS
SECTION 2.01. Section 511.0091, Government Code, is amended
by adding Subsection (c-1) and amending Subsection (d) to read as
follows:
(c-1) In addition to the other fees authorized by this
section, the commission may set and collect a reasonable fee to
cover the cost of performing any reinspection of a municipal or
county jail that is conducted by the commission:
(1) following a determination by the commission that
the jail is not in compliance with minimum standards;
(2) in response to a request by the operator of the
jail; and
(3) before the operator of the jail has taken actions
as necessary to ensure that the jail is in compliance with minimum
standards.
(d) All money paid to the commission under this chapter is
subject to Subchapter F, Chapter 404. Fees collected under
Subsection (c-1) shall be deposited to the credit of a special
account in the general revenue fund to be appropriated only to pay
costs incurred by the commission in performing services under this
section.
SECTION 2.02. This article takes effect September 1, 2005.
ARTICLE 3. CERTAIN AUDITS OF STATE AGENCY EXPENDITURES
SECTION 3.01. Subtitle C, Title 10, Government Code, is
amended by adding Chapter 2115 to read as follows:
CHAPTER 2115. RECOVERY OF CERTAIN STATE AGENCY OVERPAYMENTS
Sec. 2115.001. DEFINITIONS. In this chapter:
(1) "Overpayment" includes a duplicate payment made to
a vendor for a single invoice and a payment made to a vendor:
(A) when an available discount from the vendor
was not applied;
(B) for a late payment penalty that was
improperly applied by the vendor;
(C) for shipping costs that were computed
incorrectly or incorrectly included in an invoice;
(D) for state sales tax; or
(E) for a good or service the vendor did not
provide.
(2) "State agency" means a department, commission,
board, office, or other agency, including a university system or an
institution of higher education other than a public junior college,
that:
(A) is in the executive branch of state
government;
(B) is created by statute; and
(C) does not have statutory geographical
boundaries limited to a part of the state.
Sec. 2115.002. CONTRACT CONSULTANTS FOR RECOVERY AUDITS FOR
CERTAIN OVERPAYMENTS. (a) The comptroller shall contract with one
or more consultants to conduct recovery audits of payments made by
state agencies to vendors. The audits must be designed to detect
and recover overpayments to the vendors and to recommend improved
state agency accounting operations.
(b) A contract under this section:
(1) may provide for reasonable compensation for
services provided under the contract, including compensation
determined by the application of a specified percentage of the
total amount recovered because of the consultant's audit activities
or recommendations as a fee for services;
(2) may permit or require the consultant to pursue a
judicial action in a court inside or outside this state to recover
an overpaid amount; and
(3) to allow time for the performance of existing
state payment auditing procedures, may not allow a recovery audit
of a payment during the 180-day period after the date the payment
was made.
(c) The comptroller or a state agency whose payments are
being audited may provide a person acting under a contract
authorized by this section with any confidential information in the
custody of the comptroller or state agency that is necessary for the
performance of the audit or the recovery of an overpayment, to the
extent the comptroller and state agency are not prohibited from
sharing the information under an agreement with another state or
the federal government. A person acting under a contract
authorized by this section, and each employee or agent of the
person, is subject to all prohibitions against the disclosure of
confidential information obtained from the state in connection with
the contract that apply to the comptroller or applicable state
agency or an employee of the comptroller or applicable state
agency. A person acting under a contract authorized by this section
or an employee or agent of the person who discloses confidential
information in violation of a prohibition made applicable to the
person under this subsection is subject to the same sanctions and
penalties that would apply to the comptroller or applicable state
agency or an employee of the comptroller or applicable state agency
for that disclosure.
Sec. 2115.003. STATE AGENCIES SUBJECT TO MANDATORY RECOVERY
AUDITS. (a) The comptroller shall require that recovery audits be
performed on the payments to vendors made by each state agency that
has total expenditures during a state fiscal biennium in an amount
that exceeds $100 million. Each state agency described by this
subsection shall provide the recovery audit consultant with all
information necessary for the audit.
(b) The comptroller may exempt from the mandatory recovery
audit process a state agency that has a low proportion of its
expenditures made to vendors, according to criteria the comptroller
adopts by rule after consideration of the likely costs and benefits
of performing recovery audits for agencies that make relatively few
or small payments to vendors.
Sec. 2115.004. PAYMENT TO CONTRACTORS. (a) A state agency
shall pay, from recovered money appropriated for the purpose, the
recovery audit consultant responsible for obtaining for the agency
a reimbursement from a vendor.
(b) A state agency shall expend or return to the federal
government any federal money that is recovered through a recovery
audit conducted under this chapter. The state agency shall expend
or return the federal money in accordance with the rules of the
federal program through which the agency received the federal
money.
Sec. 2115.005. FORWARDING REPORTS. (a) The comptroller
shall provide copies, including electronic form copies, of any
reports received from a consultant contracting under Section
2115.002 to:
(1) the governor;
(2) the state auditor's office; and
(3) the Legislative Budget Board.
(b) The comptroller shall provide the copies required by
Subsection (a) not later than the seventh day after the date the
comptroller receives the consultant's report.
(c) Not later than January 1 of each odd-numbered year, the
comptroller shall issue a report to the legislature summarizing the
contents of all reports received under this chapter during the
state fiscal biennium ending August 31 of the previous year.
SECTION 3.02. The comptroller of public accounts shall
adopt rules under Chapter 2115, Government Code, as added by this
article, in a timely manner so that the comptroller may begin
contracting with a consultant under that chapter not later than
January 1, 2006.
ARTICLE 4. COLLECTION OF MOTOR FUELS TAXES
SECTION 4.01. Subdivisions (20) and (43), Section 162.001,
Tax Code, are amended to read as follows:
(20) "Distributor" means a person who acquires motor
fuel from a licensed supplier, permissive supplier, or another
licensed distributor and who makes sales at wholesale and whose
activities may also include sales at retail. The term includes a
person engaged in the tax-free sale of dyed diesel fuel to marine
vessels.
(43) "Motor fuel transporter" means a person who
transports gasoline, diesel fuel, or gasoline blended fuel for hire
outside the bulk transfer/terminal system by means of a transport
vehicle, a railroad tank car, or a marine vessel.
SECTION 4.02. Subsection (b), Section 162.004, Tax Code, is
amended to read as follows:
(b) The shipping document issued by the terminal operator or
operator of a bulk plant shall contain the following information
and any other information required by the comptroller:
(1) the terminal control number of the terminal or
physical address of the bulk plant from which the motor fuel was
received;
(2) the name [and license number] of the purchaser;
(3) the date the motor fuel was loaded;
(4) the net gallons loaded, or the gross gallons
loaded if the fuel was purchased from a bulk plant;
(5) the destination state of the motor fuel, as
represented by the purchaser of the motor fuel or the purchaser's
agent; and
(6) a description of the product being transported.
SECTION 4.03. Subsection (a), Section 162.016, Tax Code, is
amended to read as follows:
(a) A person may not import motor fuel to a destination in
this state or export motor fuel to a destination outside this state
by any means unless the person possesses a shipping document for
that fuel created by the terminal or bulk plant at which the fuel
was received. The shipping document must include:
(1) the name and physical address of the terminal or
bulk plant from which the motor fuel was received for import or
export;
(2) the name [and federal employer identification
number, or the social security number if the employer
identification number is not available,] of the carrier
transporting the motor fuel;
(3) the date the motor fuel was loaded;
(4) the type of motor fuel;
(5) the number of gallons:
(A) in temperature-adjusted gallons if purchased
from a terminal for export or import; or
(B) in temperature-adjusted gallons or in gross
gallons if purchased from a bulk plant;
(6) the destination of the motor fuel as represented
by the purchaser of the motor fuel and the number of gallons of the
fuel to be delivered, if delivery is to only one state;
(7) the name[, federal employer identification
number, license number, and physical address] of the purchaser of
the motor fuel;
(8) the name of the person responsible for paying the
tax imposed by this chapter, as given to the terminal by the
purchaser if different from the licensed supplier or distributor;
and
(9) any other information that, in the opinion of the
comptroller, is necessary for the proper administration of this
chapter.
SECTION 4.04. Subsection (d), Section 162.113, Tax Code, is
amended to read as follows:
(d) The supplier or permissive supplier shall [has the
right], after notifying the comptroller of the licensed
distributor's or licensed importer's failure to remit taxes under
this section, [to] terminate the ability of the licensed
distributor or licensed importer to defer the payment of gasoline
tax. The supplier or permissive supplier shall reinstate without
delay the right of the licensed distributor or licensed importer to
defer the payment of gasoline tax after the comptroller provides to
the supplier or permissive supplier notice that the licensed
distributor or licensed importer is in good standing with the
comptroller for the purposes of the gasoline tax imposed under this
subchapter.
SECTION 4.05. Section 162.115, Tax Code, is amended by
adding Subsection (m-1) to read as follows:
(m-1) In addition to the records specifically required by
this section, a license holder shall keep any other record required
by the comptroller.
SECTION 4.06. Subsections (a) and (d), Section 162.116, Tax
Code, are amended to read as follows:
(a) The monthly return and supplements of each supplier and
permissive supplier shall contain for the period covered by the
return:
(1) [the number of net gallons of gasoline received by
the supplier or permissive supplier during the month, sorted by
product code, seller, point of origin, destination state, carrier,
and receipt date;
[(2)] the number of net gallons of gasoline removed at
a terminal rack during the month from the account of the supplier,
sorted by product code, person receiving the gasoline, terminal
code, and carrier;
(2) [(3)] the number of net gallons of gasoline
removed during the month for export, sorted by product code, person
receiving the gasoline, terminal code, destination state, and
carrier;
(3) [(4)] the number of net gallons of gasoline
removed during the month from a terminal located in another state
for conveyance to this state, as indicated on the shipping document
for the gasoline, sorted by product code, person receiving the
gasoline, terminal code, and carrier;
(4) [(5)] the number of net gallons of gasoline the
supplier or permissive supplier sold during the month in
transactions exempt under Section 162.104, sorted by [product code,
carrier,] purchaser[, and terminal code;
[(6) the number of net gallons of gasoline sold in the
bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license]; and
(5) [(7)] any other information required by the
comptroller.
(d) For purposes of Subsection (c), all payments or credits
in reduction of a customer's account must be applied ratably
between motor fuels and other goods sold to the customer, and the
credit allowed will be the tax on the number of gallons represented
by the motor fuel portion of the credit. The comptroller may not
require a supplier or permissive supplier to remit from a payment or
credit in reduction of a customer's account any tax for which the
supplier or permissive supplier was allowed to take a credit.
SECTION 4.07. Section 162.118, Tax Code, is amended to read
as follows:
Sec. 162.118. INFORMATION REQUIRED ON DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain for the period covered by the return:
(1) the number of net gallons of gasoline received by
the distributor during the month, sorted by product code and[,]
seller[, point of origin, destination state, carrier, and receipt
date];
(2) the number of net gallons of gasoline removed at a
terminal rack by the distributor during the month, sorted by
product code, seller, and terminal code[, and carrier];
(3) the number of net gallons of gasoline removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of gasoline removed by
the distributor during the month from a terminal located in another
state for conveyance to this state, as indicated on the shipping
document for the gasoline, sorted by product code, seller, terminal
code, bulk plant address, and carrier;
(5) the number of net gallons of gasoline the
distributor sold during the month in transactions exempt under
Section 162.104, sorted by product code and purchaser; and
(6) any other information required by the comptroller.
SECTION 4.08. Section 162.123, Tax Code, is amended to read
as follows:
Sec. 162.123. INFORMATION REQUIRED ON BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
for the period covered by the return:
(1) [the number of net gallons of gasoline received by
the blender during the month, sorted by product code, seller, point
of origin, carrier, and receipt date;
[(2)] the number of net gallons of product blended
with gasoline during the month, sorted by product code, type of
blending agent if no product code exists, seller, and carrier;
[(3) the number of net gallons of blended gasoline
sold during the month and the license number or name and address of
the entity receiving the blended gasoline;] and
(2) [(4)] any other information required by the
comptroller.
SECTION 4.09. Section 162.127, Tax Code, is amended by
adding Subsection (g) to read as follows:
(g) The comptroller shall issue a refund warrant to a
distributor not later than the 60th day after the date the
comptroller receives a valid refund claim from the distributor. If
the comptroller does not issue the refund warrant by that date, the
amount of the refund draws interest at the rate provided by Section
111.060 beginning on the 61st day after the date the comptroller
receives the valid refund claim and ending on the date the
comptroller issues the refund warrant.
SECTION 4.10. Section 162.206, Tax Code, is amended by
amending Subsection (c) and adding Subsections (c-1) and (h-1) to
read as follows:
(c) A person may not make a tax-free purchase and a licensed
supplier or distributor may not make a tax-free sale to a purchaser
of any dyed diesel fuel under this section using a signed
statement[:
[(1) for the purchase or the sale of more than 7,400
gallons of dyed diesel fuel in a single delivery; or
[(2)] in a calendar month in which the person has
previously purchased from all sources or in which the licensed
supplier has previously sold to that purchaser more than:
(1) [(A)] 10,000 gallons of dyed diesel fuel;
(2) [(B)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in the original production of, or
to increase the production of, oil or gas and furnishes the supplier
with a letter of exception issued by the comptroller; or
(3) [(C)] 25,000 gallons of dyed diesel fuel if the
purchaser stipulates in the signed statement that all of the fuel
will be consumed by the purchaser in agricultural off-highway
equipment.
(c-1) The monthly limitations prescribed by Subsection (c)
apply regardless of whether the dyed diesel fuel is purchased in a
single transaction during that month or in multiple transactions
during that month.
(h-1) For purposes of this section, the purchaser is
considered to have furnished the signed statement to the licensed
supplier or distributor if the supplier or distributor verifies
that the purchaser has an end user number issued by the comptroller.
The licensed supplier or distributor shall use the comptroller's
Internet website or other materials provided or produced by the
comptroller to verify this information.
SECTION 4.11. Subsection (d), Section 162.214, Tax Code, is
amended to read as follows:
(d) The supplier or permissive supplier shall [has the
right], after notifying the comptroller of the licensed
distributor's or licensed importer's failure to remit taxes under
this section, [to] terminate the ability of the licensed
distributor or licensed importer to defer the payment of diesel
fuel tax. The supplier or permissive supplier shall reinstate
without delay the right of the licensed distributor or licensed
importer to defer the payment of diesel fuel tax after the
comptroller provides to the supplier or permissive supplier notice
that the licensed distributor or licensed importer is in good
standing with the comptroller for the purposes of diesel fuel tax
imposed under this subchapter.
SECTION 4.12. Section 162.216, Tax Code, is amended by
adding Subsection (m-1) to read as follows:
(m-1) In addition to the records specifically required by
this section, a license holder shall keep any other record required
by the comptroller.
SECTION 4.13. Subsections (a) and (d), Section 162.217, Tax
Code, are amended to read as follows:
(a) The monthly return and supplements of each supplier and
permissive supplier shall contain for the period covered by the
return:
(1) [the number of net gallons of diesel fuel received
by the supplier or permissive supplier during the month, sorted by
product code, seller, point of origin, destination state, carrier,
and receipt date;
[(2)] the number of net gallons of diesel fuel removed
at a terminal rack during the month from the account of the
supplier, sorted by product code, person receiving the diesel fuel,
terminal code, and carrier;
(2) [(3)] the number of net gallons of diesel fuel
removed during the month for export, sorted by product code, person
receiving the diesel fuel, terminal code, destination state, and
carrier;
(3) [(4)] the number of net gallons of diesel fuel
removed during the month from a terminal located in another state
for conveyance to this state, as indicated on the shipping document
for the diesel fuel, sorted by product code, person receiving the
diesel fuel, terminal code, and carrier;
(4) [(5)] the number of net gallons of diesel fuel the
supplier or permissive supplier sold during the month in
transactions exempt under Section 162.204, sorted by [product code,
carrier,] purchaser[, and terminal code;
[(6) the number of net gallons of diesel fuel sold in
the bulk transfer/terminal system in this state to any person not
holding a supplier's or permissive supplier's license]; and
(5) [(7)] any other information required by the
comptroller.
(d) For the purpose of Subsection (c), all payments or
credits in reduction of a customer's account must be applied
ratably between motor fuels and other goods sold to the customer,
and the credit allowed will be the tax on the number of gallons
represented by the motor fuel portion of the credit. The
comptroller may not require a supplier or permissive supplier to
remit from a payment or credit in reduction of a customer's account
any tax for which the supplier or permissive supplier was allowed to
take a credit.
SECTION 4.14. Section 162.219, Tax Code, is amended to read
as follows:
Sec. 162.219. INFORMATION REQUIRED ON DISTRIBUTOR'S
RETURN. The monthly return and supplements of each distributor
shall contain for the period covered by the return:
(1) the number of net gallons of diesel fuel received
by the distributor during the month, sorted by product code and[,]
seller[, point of origin, destination state, carrier, and receipt
date];
(2) the number of net gallons of diesel fuel removed at
a terminal rack by the distributor during the month, sorted by
product code, seller, and terminal code[, and carrier];
(3) the number of net gallons of diesel fuel removed by
the distributor during the month for export, sorted by product
code, terminal code, bulk plant address, destination state, and
carrier;
(4) the number of net gallons of diesel fuel removed by
the distributor during the month from a terminal located in another
state for conveyance to this state, as indicated on the shipping
document for the diesel fuel, sorted by product code, seller,
terminal code, bulk plant address, and carrier;
(5) the number of net gallons of diesel fuel the
distributor sold during the month in transactions exempt under
Section 162.204, sorted by product code and by the entity receiving
the diesel fuel;
(6) the number of net gallons of[,] dyed diesel fuel
sold to a purchaser under a signed statement[,] or dyed diesel fuel
sold to a dyed diesel fuel bonded user, sorted by product code and
by the entity receiving the diesel fuel; and
(7) [(6)] any other information required by the
comptroller.
SECTION 4.15. Section 162.224, Tax Code, is amended to read
as follows:
Sec. 162.224. INFORMATION REQUIRED ON BLENDER'S RETURN.
The monthly return and supplements of each blender shall contain
for the period covered by the return:
(1) [the number of net gallons of diesel fuel received
by the blender during the month, sorted by product code, seller,
point of origin, carrier, and receipt date;
[(2)] the number of net gallons of product blended
with diesel fuel during the month, sorted by product code, type of
blending agent if no product code exists, seller, and carrier;
[(3) the number of net gallons of blended diesel fuel
sold during the month and the license number or name and address of
the entity receiving the blended diesel fuel;] and
(2) [(4)] any other information required by the
comptroller.
SECTION 4.16. Section 162.227, Tax Code, is amended by
adding Subsection (c-1) to read as follows:
(c-1) A license holder may take a credit on a return for the
period in which the purchase occurred, and a person who does not
hold a license may file a refund claim with the comptroller, if the
license holder or person paid tax on diesel fuel and the diesel fuel
is used in this state:
(1) as a feedstock or other component in the further
manufacturing of tangible personal property for resale not as a
motor fuel; or
(2) in the original production of oil or gas or to
increase the production of oil or gas.
SECTION 4.17. Section 162.229, Tax Code, is amended by
adding Subsection (g) to read as follows:
(g) The comptroller shall issue a refund warrant to a
distributor not later than the 60th day after the date the
comptroller receives a valid refund claim from the distributor. If
the comptroller does not issue the refund warrant by that date, the
amount of the refund draws interest at the rate provided by Section
111.060 beginning on the 61st day after the date the comptroller
receives the valid refund claim and ending on the date the
comptroller issues the refund warrant.
SECTION 4.18. Subsection (d), Section 162.230, Tax Code, is
amended to read as follows:
(d) A supplier, [or] permissive supplier, or distributor
that determines taxes were erroneously reported and remitted or
that paid more taxes than were due to this state because of a
mistake of fact or law may take a credit on the monthly tax report on
which the error has occurred and tax payment made to the
comptroller. The credit must be taken before the expiration of the
applicable period of limitation as provided by Chapter 111.
SECTION 4.19. Subsections (c) and (d), Section 162.404, Tax
Code, are amended to read as follows:
(c) The prohibition under Section 162.403(32) does not
apply to the tax-free sale or distribution of diesel fuel
authorized by Section 162.204(a)(1) [162.204(1)], (2), or (3).
(d) The prohibition under Section 162.403(33) does not
apply to the tax-free sale or distribution of gasoline under
Section 162.104(a)(1) [162.104(1)], (2), or (3).
SECTION 4.20. Subsection (h), Section 162.016, Tax Code, is
repealed.
SECTION 4.21. This article applies only to taxes imposed on
or after the effective date of this article. Taxes imposed before
the effective date of this article are governed by the law in effect
on the date the taxes were imposed, and that law is continued in
effect for that purpose.
SECTION 4.22. This article takes effect September 1, 2005.
ARTICLE 5. COLLECTION OF CERTAIN STATE TAXES
PART A. MOTOR VEHICLE SALES AND USE TAX
SECTION 5A.01. Section 152.002, Tax Code, is amended by
adding Subsection (f) to read as follows:
(f) Notwithstanding Subsection (a), the total consideration
of a used motor vehicle is the amount on which the tax is computed as
provided by Section 152.0412.
SECTION 5A.02. Subsection (a), Section 152.041, Tax Code,
is amended to read as follows:
(a) The tax assessor-collector of the county in which an
application for registration or for a Texas certificate of title is
made shall collect taxes imposed by this chapter, subject to
Section 152.0412, unless another person is required by this chapter
to collect the taxes.
SECTION 5A.03. Subchapter C, Chapter 152, Tax Code, is
amended by adding Section 152.0412 to read as follows:
Sec. 152.0412. STANDARD PRESUMPTIVE VALUE; USE BY TAX
ASSESSOR-COLLECTOR. (a) In this section, "standard presumptive
value" means the average retail value of a motor vehicle as
determined by the Texas Department of Transportation, based on a
nationally recognized motor vehicle industry reporting service.
(b) If the amount paid for a motor vehicle subject to the tax
imposed by this chapter is equal to or greater than the standard
presumptive value of the vehicle, a county tax assessor-collector
shall compute the tax on the amount paid.
(c) If the amount paid for a motor vehicle subject to the tax
imposed by this chapter is less than the standard presumptive value
of the vehicle, a county tax assessor-collector shall compute the
tax on the standard presumptive value unless the purchaser
establishes the retail value of the vehicle as provided by
Subsection (d).
(d) A county tax assessor-collector shall compute the tax
imposed by this chapter on the retail value of a motor vehicle if:
(1) the retail value is shown on an appraisal
certified by an adjuster licensed under Chapter 4101, Insurance
Code, or by a motor vehicle dealer operating under Subchapter B,
Chapter 503, Transportation Code;
(2) the appraisal is on a form prescribed by the
comptroller for that purpose; and
(3) the purchaser of the vehicle obtains the appraisal
not later than the 20th day after the date of purchase.
(e) On request, a motor vehicle dealer operating under
Subchapter B, Chapter 503, Transportation Code, shall provide a
certified appraisal of the retail value of a motor vehicle. The
comptroller by rule shall establish a fee that a dealer may charge
for providing the certified appraisal. The county tax
assessor-collector shall retain a copy of a certified appraisal
received under this section for a period prescribed by the
comptroller.
(f) The Texas Department of Transportation shall maintain
information on the standard presumptive values of motor vehicles as
part of the department's registration and title system. The
department shall update the information at least quarterly each
calendar year.
(g) This section does not apply to a transaction described
by Section 152.024 or 152.025.
SECTION 5A.04. Not later than October 1, 2005, the Texas
Department of Transportation shall:
(1) establish standard presumptive values for motor
vehicles as provided by Section 152.0412, Tax Code, as added by this
part;
(2) modify the department's registration and title
system as needed to include that information and administer that
section; and
(3) make that information available through the system
to all county tax assessor-collectors.
SECTION 5A.05. (a) Except as provided by this part and
Subsection (b) of this section, this part takes effect July 1, 2005,
if this Act receives a vote of two-thirds of all the members elected
to each house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary for
effect on that date, this part takes effect September 1, 2005.
(b) Section 152.0412, Tax Code, as added by this part, takes
effect October 1, 2005.
PART B. MOTOR FUELS TAX
SECTION 5B.01. Section 162.503, Tax Code, is amended to
read as follows:
Sec. 162.503. ALLOCATION OF GASOLINE TAX. (a) Except as
provided by Subsection (b), on [On] or before the fifth workday
after the end of each month, the comptroller, after making all
deductions for refund purposes and for the amounts allocated under
Sections 162.502 and 162.5025, shall allocate the net remainder of
the taxes collected under Subchapter B as follows:
(1) one-fourth of the tax shall be deposited to the
credit of the available school fund;
(2) one-half of the tax shall be deposited to the
credit of the state highway fund for the construction and
maintenance of the state road system under existing law; and
(3) from the remaining one-fourth of the tax the
comptroller shall:
(A) deposit to the credit of the county and road
district highway fund all the remaining tax receipts until a total
of $7,300,000 has been credited to the fund each fiscal year; and
(B) after the amount required to be deposited to
the county and road district highway fund has been deposited,
deposit to the credit of the state highway fund the remainder of the
one-fourth of the tax, the amount to be provided on the basis of
allocations made each month of the fiscal year, which sum shall be
used by the Texas Department of Transportation for the
construction, improvement, and maintenance of farm-to-market
roads.
(b) During the months of June, July, and August of each
odd-numbered year, the comptroller may not make the allocations to
the state highway fund and county and road district highway fund
otherwise required by Subsections (a)(2) and (3). After September
5 and before September 11 of that year, the comptroller shall
allocate and deposit to the state highway fund the total amount of
revenue that would have been otherwise allocated and deposited to
that fund during those months.
SECTION 5B.02. Section 162.504, Tax Code, is amended to
read as follows:
Sec. 162.504. ALLOCATION OF DIESEL FUEL TAX. (a) Except as
provided by Subsection (b), on [On] or before the fifth workday
after the end of each month, the comptroller, after making
deductions for refund purposes, for the administration and
enforcement of this chapter, and for the amounts allocated under
Section 162.5025, shall allocate the remainder of the taxes
collected under Subchapter C as follows:
(1) one-fourth of the taxes shall be deposited to the
credit of the available school fund; and
(2) three-fourths of the taxes shall be deposited to
the credit of the state highway fund.
(b) During the months of June, July, and August of each
odd-numbered year, the comptroller may not make the allocation to
the state highway fund otherwise required by Subsection (a)(2).
After September 5 and before September 11 of that year, the
comptroller shall allocate and deposit to the state highway fund
the total amount of revenue that would have been otherwise
allocated to that fund during those months.
SECTION 5B.03. Section 162.505, Tax Code, is amended to
read as follows:
Sec. 162.505. ALLOCATION OF LIQUEFIED GAS TAX. (a) Except
as provided by Subsection (b), on [On] or before the fifth workday
after the end of each month, the comptroller, after making
deductions for refund purposes and for the administration and
enforcement of this chapter, shall allocate the remainder of the
taxes collected under Subchapter D as follows:
(1) one-fourth of the taxes shall be deposited to the
credit of the available school fund; and
(2) three-fourths of the taxes shall be deposited to
the credit of the state highway fund.
(b) During the months of June, July, and August of each
odd-numbered year, the comptroller may not make the allocation to
the state highway fund otherwise required by Subsection (a)(2).
After September 5 and before September 11 of that year, the
comptroller shall allocate and deposit to the state highway fund
the total amount of revenue that would have been otherwise
allocated to that fund during those months.
SECTION 5B.04. This part takes effect July 1, 2005, if this
Act receives a vote of two–thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this part takes effect September 1, 2005.
PART C. HOTEL OCCUPANCY TAXES
SECTION 5C.01. Section 156.001, Tax Code, is amended to
read as follows:
Sec. 156.001. DEFINITION. In this chapter, "hotel" means a
building in which members of the public obtain sleeping
accommodations for consideration. The term includes a hotel,
motel, tourist home, tourist house, tourist court, lodging house,
inn, rooming house, or bed and breakfast. The term does not
include:
(1) a hospital, sanitarium, or nursing home; [or]
(2) a dormitory or other housing facility owned or
leased and operated by an institution of higher education or a
private or independent institution of higher education as those
terms are defined by Section 61.003, Education Code, used by the
institution for the purpose of providing sleeping accommodations
for persons engaged in an educational program or activity at the
institution; or
(3) that part of an apartment or condominium building
that consists of unfurnished dwelling units that are leased to
tenants, as defined by Section 92.001, Property Code.
SECTION 5C.02. Subsection (c), Section 351.002, Tax Code,
is amended to read as follows:
(c) The tax does not apply to a person who has the right to
use or possess a room in a hotel for at least 30 consecutive days, so
long as there is no interruption of payment for that period [is a
permanent resident under Section 156.101 of this code].
SECTION 5C.03. Subdivision (1), Section 352.001, Tax Code,
is amended to read as follows:
(1) "Hotel" has the meaning assigned by Section
156.001 [156.001(1)].
SECTION 5C.04. Subsection (c), Section 352.002, Tax Code,
is amended to read as follows:
(c) The tax does not apply to a person who has the right to
use or possess a room in a hotel for at least 30 consecutive days, so
long as there is no interruption of payment for that period [is a
permanent resident under Section 156.101 of this code].
SECTION 5C.05. Section 156.101, Tax Code, is repealed.
SECTION 5C.06. This part takes effect July 1, 2005, if this
Act receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this part takes effect October 1, 2005.
ARTICLE 6. ELIGIBILITY FOR MEDICAL ASSISTANCE
AND CHILDREN'S HEALTH INSURANCE PROGRAMS
SECTION 6.01. Section 62.102, Health and Safety Code, is
amended to read as follows:
Sec. 62.102. CONTINUOUS COVERAGE. [(a)] The commission
shall provide that an individual who is determined to be eligible
for coverage under the child health plan remains eligible for those
benefits until the earlier of:
(1) the end of the six-month [a] period[, not to exceed
12 months,] following the date of the eligibility determination; or
(2) the individual's 19th birthday.
[(b) The period of continuous eligibility may be established
at an interval of 6 months beginning immediately upon passage of
this Act and ending September 1, 2005, at which time an interval of
12 months of continuous eligibility will be re-established.]
SECTION 6.02. Section 32.0261, Human Resources Code, is
amended to read as follows:
Sec. 32.0261. CONTINUOUS ELIGIBILITY. The department shall
adopt rules in accordance with 42 U.S.C. Section 1396a(e)(12), as
amended, to provide for a period of continuous eligibility for a
child under 19 years of age who is determined to be eligible for
medical assistance under this chapter. The rules shall provide
that the child remains eligible for medical assistance, without
additional review by the department and regardless of changes in
the child's resources or income, until the earlier of:
(1) the end of the six-month period following [first
anniversary of] the date on which the child's eligibility was
determined; or
(2) the child's 19th birthday.
SECTION 6.03. If before implementing any provision of this
article a state agency determines that a waiver or authorization
from a federal agency is necessary for implementation of that
provision, the agency affected by the provision shall request the
waiver or authorization and may delay implementing that provision
until the waiver or authorization is granted.
ARTICLE 7. MEDICAL ASSISTANCE PROGRAM
SECTION 7.01. Subchapter A, Chapter 531, Government Code,
is amended by adding Section 531.0081 to read as follows:
Sec. 531.0081. OFFICE OF MEDICAL TECHNOLOGY. (a) In this
section, "office" means the office of medical technology.
(b) The commission shall establish the office of medical
technology within the commission. The office shall explore and
evaluate new developments in medical technology and propose
implementing the technology in the medical assistance program under
Chapter 32, Human Resources Code, if appropriate and
cost-effective.
(c) Office staff must have skills and experience in research
regarding health care technology.
SECTION 7.02. Section 531.021, Government Code, is amended
by adding Subsections (f) and (g) to read as follows:
(f) In adopting rates for medical assistance payments under
Subsection (b)(2), the executive commissioner may adopt
reimbursement rates for appropriate nursing services provided to
recipients with certain health conditions if those services are
determined to provide a cost-effective alternative to
hospitalization. A physician must certify that the nursing
services are medically appropriate for the recipient for those
services to qualify for reimbursement under this subsection.
(g) In adopting rates for medical assistance payments under
Subsection (b)(2), the executive commissioner may adopt
cost-effective reimbursement rates for group appointments with
medical assistance providers for certain diseases and medical
conditions specified by rules of the executive commissioner.
SECTION 7.03. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.02175 to read as follows:
Sec. 531.02175. REIMBURSEMENT FOR ONLINE MEDICAL
CONSULTATIONS. (a) In this section, "physician" means a person
licensed to practice medicine in this state under Subtitle B, Title
3, Occupations Code.
(b) Subject to the requirements of this subsection, the
executive commissioner by rule may require the commission and each
health and human services agency that administers a part of the
Medicaid program to provide Medicaid reimbursement for a medical
consultation that is provided by a physician or other health care
professional using the Internet as a cost-effective alternative to
an in-person consultation. The executive commissioner may require
the commission or a health and human services agency to provide the
reimbursement described by this subsection only if the Centers for
Medicare and Medicaid Services develop an appropriate Current
Procedural Terminology code for medical services provided using the
Internet.
(c) The executive commissioner may develop and implement a
pilot program in one or more sites chosen by the executive
commissioner under which Medicaid reimbursements are paid for
medical consultations provided by physicians or other health care
professionals using the Internet. The pilot program must be
designed to test whether an Internet medical consultation is a
cost-effective alternative to an in-person consultation under the
Medicaid program. The executive commissioner may modify the pilot
program as necessary throughout its implementation to maximize the
potential cost-effectiveness of Internet medical consultations.
If the executive commissioner determines from the pilot program
that Internet medical consultations are cost-effective, the
executive commissioner may expand the pilot program to additional
sites or may implement Medicaid reimbursements for Internet medical
consultations statewide.
(d) The executive commissioner is not required to implement
the pilot program authorized under Subsection (c) as a prerequisite
to providing Medicaid reimbursement authorized by Subsection (b) on
a statewide basis.
SECTION 7.04. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.083 to read as follows:
Sec. 531.083. HOSPITAL EMERGENCY ROOM USE REDUCTION
INITIATIVES. The commission shall develop and implement a
comprehensive plan to reduce the use of hospital emergency room
services by recipients under the medical assistance program. The
plan may include:
(1) a pilot program designed to facilitate program
participants in accessing an appropriate level of health care,
which may include as components:
(A) providing program participants access to
bilingual health services providers; and
(B) giving program participants information on
how to access primary care physicians, advanced practice nurses,
and local health clinics;
(2) a pilot program under which health care providers,
other than hospitals, are given financial incentives for treating
recipients outside of normal business hours to divert those
recipients from hospital emergency rooms;
(3) payment of a nominal referral fee to hospital
emergency rooms that perform an initial medical evaluation of a
recipient and subsequently refer the recipient, if medically
stable, to an appropriate level of health care, such as care
provided by a primary care physician, advanced practice nurse, or
local clinic;
(4) a program under which the commission or a managed
care organization that enters into a contract with the commission
under Chapter 533 contacts, by telephone or mail, a recipient who
accesses a hospital emergency room three times during a six-month
period and provides the recipient with information on ways the
recipient may secure a medical home to avoid unnecessary treatment
at hospital emergency rooms;
(5) a health care literacy program under which the
commission develops partnerships with other state agencies and
private entities to:
(A) assist the commission in developing
materials that:
(i) contain basic health care information
for parents of young children who are recipients under the medical
assistance program and who are participating in public or private
child-care or prekindergarten programs, including federal Head
Start programs; and
(ii) are written in a language
understandable to those parents and specifically tailored to be
applicable to the needs of those parents;
(B) distribute the materials developed under
Paragraph (A) to those parents; and
(C) otherwise teach those parents about the
health care needs of their children and ways to address those needs;
and
(6) other initiatives developed and implemented in
other states that have shown success in reducing the incidence of
unnecessary treatment in hospital emergency rooms.
(b) The Health and Human Services Commission may develop the
health care literacy component of the comprehensive plan to reduce
the use of hospital emergency room services required by Section
531.083(5), Government Code, as added by this section, so that the
health care literacy component operates in a manner similar to the
manner in which the Johnson & Johnson/UCLA Health Care Institute
operates its health care training program that is designed to teach
parents to better address the health care needs of their children.
SECTION 7.05. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.084 to read as follows:
Sec. 531.084. PERFORMANCE BONUS PILOT PROGRAM. (a) The
commission shall develop a proposal for providing higher
reimbursement rates to primary care case management providers under
the Medicaid program who treat program recipients with chronic
health conditions in accordance with evidence-based, nationally
accepted best practices and standards of care.
(b) The commission shall define the parameters of the
proposed program, including:
(1) the types of chronic health conditions the program
would target;
(2) the best practices and standards of care that must
be followed for a provider to obtain a higher reimbursement rate
under the proposed program; and
(3) the types of providers to whom the higher
reimbursement rate would be offered under the proposed program.
(c) Not later than December 1, 2006, the Health and Human
Services Commission shall report to the standing committees of the
senate and the house of representatives having primary jurisdiction
over welfare programs regarding the proposed program under this
section. The report must include:
(1) the anticipated effect of the higher reimbursement
rates to be offered under the program on the quality of care
provided and the health outcomes for program recipients;
(2) a determination of whether the program would be
cost-effective; and
(3) a recommendation regarding implementation of the
program.
(d) This section expires September 1, 2007.
SECTION 7.06. Section 562.1085, Occupations Code, is
amended by amending Subsection (a) and adding Subsection (f) to
read as follows:
(a) A pharmacist who practices in or serves as a consultant
for a health care facility in this state may return to a pharmacy
certain unused drugs, other than a controlled substance as defined
by Chapter 481, Health and Safety Code, purchased from the pharmacy
as provided by board rule. The unused drugs must:
(1) be approved by the federal Food and Drug
Administration and be:
(A) sealed in [the manufacturer's original]
unopened tamper-evident packaging and either individually packaged
or packaged in unit-dose packaging;
(B) oral or parenteral medication in sealed
single-dose containers approved by the federal Food and Drug
Administration;
(C) topical or inhalant drugs in sealed
units-of-use containers approved by the federal Food and Drug
Administration; or
(D) parenteral medications in sealed
multiple-dose containers approved by the federal Food and Drug
Administration from which doses have not been withdrawn; and
(2) not be the subject of a mandatory recall by a state
or federal agency or a voluntary recall by a drug seller or
manufacturer.
(f) The tamper-evident packaging required under Subsection
(a)(1) for the return of unused drugs is not required to be the
manufacturer's original packaging unless that packaging is
required by federal law.
SECTION 7.07. MEDICAID COVERAGE FOR HEALTH INSURANCE
PREMIUMS AND LONG-TERM CARE NEEDS. (a) The Health and Human
Services Commission shall explore the commission's authority under
federal law to offer, and the cost and feasibility of offering:
(1) a stipend paid by the Medicaid program to a person
to cover the cost of a private health insurance plan as an
alternative to providing traditional Medicaid services for the
person;
(2) premium payment assistance through the Medicaid
program for long-term care insurance for a person with a health
condition that increases the likelihood that the person will need
long-term care in the future; and
(3) a long-term care partnership between the Medicaid
program and a person under which the person pays the premiums for
long-term care insurance and the Medicaid program provides
continued coverage after benefits under that insurance are
exhausted.
(b) In exploring the feasibility of the options described by
Subsection (a) of this section, the Health and Human Services
Commission shall consider whether other state incentives that could
encourage persons to purchase health insurance plans or long-term
care insurance are feasible. The incentives may include offering
tax credits to businesses to increase the availability of
affordable insurance.
(c) If the Health and Human Services Commission determines
that any of the options described by Subsection (a) of this section
are feasible and cost-effective, the commission shall make efforts
to implement those options to the extent they are authorized by
federal law. The commission shall request any necessary waivers
from the Centers for Medicare and Medicaid Services as soon as
possible after determining that an option is feasible and
cost-effective. If the commission determines that legislative
changes are necessary to implement an option, the commission shall
report to the 80th Legislature and specify the changes that are
needed.
SECTION 7.08. If before implementing any provision of this
article a state agency determines that a waiver or authorization
from a federal agency is necessary for implementation of that
provision, the agency affected by the provision shall request the
waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.
ARTICLE 8. QUALITY ASSURANCE FEES
SECTION 8.01. Chapter 242, Health and Safety Code, is
amended by adding Subchapter P to read as follows:
SUBCHAPTER P. QUALITY ASSURANCE FEE
Sec. 242.801. DEFINITIONS. In this subchapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Department" means the Department of Aging and
Disability Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Gross receipts" means money paid as compensation
for services provided to residents, including client
participation. The term does not include charitable contributions
to an institution.
Sec. 242.802. APPLICABILITY. This subchapter does not
apply to:
(1) a state-owned veterans' nursing facility; or
(2) an entity that provides on a single campus a
continuum of services, including independent living services,
licensed assisted living services, and licensed nursing facility
care services, and that:
(A) operates under a continuing care retirement
community certificate of authority issued by the Texas Department
of Insurance; or
(B) over a 12-month period, provides a greater
number of combined patient days of service to independent living
and assisted living residents, not including services provided to
persons in licensed nursing facility beds, than the patient days of
service provided to nursing facility residents.
Sec. 242.803. COMPUTING QUALITY ASSURANCE FEE. (a) A
quality assurance fee is imposed on each institution subject to
this subchapter for which a license fee must be paid under Section
242.034. The quality assurance fee payment:
(1) is an amount established under Subsection (b)
multiplied by the number of patient days as determined in
accordance with Section 242.804;
(2) is payable monthly; and
(3) is in addition to other fees imposed under this
chapter.
(b) The commission shall establish a quality assurance fee
for each patient day so that the fee does not produce annual
revenues greater than six percent of the total annual gross
receipts in this state. The fee is subject to adjustment as
necessary. The amount of the quality assurance fee may vary
according to the number of patient days provided by an institution
as necessary to obtain a waiver under federal regulations at 42
C.F.R. Section 433.68(e).
(c) The amount of the quality assurance fee must be
determined using patient days and gross receipts:
(1) reported to the commission or to the department at
the direction of the commission; and
(2) covering a period of at least six months.
(d) The quality assurance fee is an allowable cost for
reimbursement under the state Medicaid program.
(e) A nursing facility may not list the quality assurance
fee as a separate charge on a patient's or resident's billing
statement or otherwise directly or indirectly attempt to charge the
quality assurance fee to a patient or resident.
Sec. 242.804. PATIENT DAYS. For each calendar day, an
institution shall determine the number of patient days by adding
the following:
(1) the number of patients occupying an institution
bed immediately before midnight of that day plus the number of
patients admitted that day less the number of patients discharged
that day, except that a patient is included in the count under this
subdivision if:
(A) the patient is admitted and discharged on the
same day; or
(B) the patient is discharged that day because of
the patient's death; and
(2) the number of beds that are on hold that day and
that have been placed on hold for a period not to exceed three
consecutive calendar days during which a patient is:
(A) in the hospital; or
(B) on therapeutic home leave.
Sec. 242.805. REPORTING AND COLLECTION. (a) The
commission or the department as directed by the executive
commissioner shall collect the quality assurance fee.
(b) Each institution shall, not later than the 25th day
after the last day of a month:
(1) file with the commission a report stating the
total patient days for the month; and
(2) pay the quality assurance fee.
Sec. 242.806. RULES; ADMINISTRATIVE PENALTY. (a) The
executive commissioner shall adopt rules for the administration of
this subchapter, including rules related to the imposition and
collection of the quality assurance fee.
(b) The executive commissioner may adopt rules granting
exceptions from the quality assurance fee, including an exception
for units of service reimbursed through Medicare Part A, if the
commission obtains all waivers necessary under federal law,
including 42 C.F.R. Section 433.68(e).
(c) An administrative penalty assessed under this
subchapter in accordance with Section 242.066 may not exceed
one-half of the amount of the outstanding quality assurance fee or
$20,000, whichever is greater.
Sec. 242.807. NURSING HOME QUALITY ASSURANCE FEE ACCOUNT.
(a) The nursing home quality assurance fee account is a dedicated
account in the general revenue fund. Interest earned on money in
the account shall be credited to the account.
(b) The comptroller shall deposit money collected under
this subchapter to the credit of the account.
(c) Subject to legislative appropriation and this
subchapter, money in the account together with federal matching
money shall be used to support or maintain an increase in Medicaid
reimbursement for institutions.
Sec. 242.808. REIMBURSEMENT OF INSTITUTIONS. (a) Subject
to legislative appropriation, the commission may use money in the
nursing home quality assurance fee account, together with any
federal money available to match that money, to:
(1) offset allowable expenses under the state Medicaid
program; or
(2) increase reimbursement rates paid under the
Medicaid program to institutions.
(b) The commission shall devise the formula by which amounts
received under this subchapter increase the reimbursement rates
paid to institutions under the state Medicaid program.
Sec. 242.809. INVALIDITY; FEDERAL FUNDS. If any portion of
this subchapter is held invalid by a final order of a court that is
not subject to appeal, or if the commission determines that the
imposition of the fee and the expenditure as prescribed by this
subchapter of amounts collected will not entitle the state to
receive additional federal funds under the Medicaid program, the
commission shall stop collection of the quality assurance fee and,
not later than the 30th day after the date collection is stopped,
shall return to the institutions that paid the fees, in proportion
to the total amount paid by those institutions, any money deposited
to the credit of the nursing home quality assurance fee account but
not spent.
Sec. 242.810. REVISION IN CASE OF DISAPPROVAL. If the
Centers for Medicare and Medicaid Services disapproves the quality
assurance fee plan established under this subchapter, the
commission shall revise the associated state plan amendments and
waiver requests as necessary to comply with federal regulations
provided by 42 C.F.R. Section 433.68(e). The revisions must be
completed as soon as practicable after the date the commission
receives notice of the disapproval.
Sec. 242.811. AUTHORITY TO ACCOMPLISH PURPOSES OF
SUBCHAPTER. The executive commissioner by rule may adopt a
definition, a method of computation, or a rate that differs from
those expressly provided by or expressly authorized by this
subchapter to the extent the difference is necessary to accomplish
the purposes of this subchapter.
SECTION 8.02. Subchapter B, Chapter 531, Government Code,
is amended by adding Sections 531.078 through 531.081 to read as
follows:
Sec. 531.078. QUALITY ASSURANCE FEES ON CERTAIN WAIVER
PROGRAM SERVICES. (a) In this section, "gross receipts" means
money received as compensation for services under a home and
community services waiver or a community living assistance and
support services waiver. The term does not include a charitable
contribution, revenues received for services or goods other than
waivers, or any money received from consumers or their families as
reimbursement for services or goods normally not covered by the
waivers.
(b) The executive commissioner by rule shall establish a
quality assurance fee program as provided by this section and
impose a quality assurance fee on persons providing services under
a home and community services waiver or a community living
assistance and support services waiver.
(c) The executive commissioner shall establish the fee at an
amount that will produce annual revenues of not more than six
percent of the gross receipts of a person from services the person
provides under the waiver.
(d) The executive commissioner shall adopt rules governing:
(1) the reporting required to compute and collect the
fee and the manner and times of collecting the fee; and
(2) the administration of the fee, including the
imposition of penalties for a violation of the rules.
(e) Fees collected under this section shall be deposited in
the waiver program quality assurance fee account.
Sec. 531.079. WAIVER PROGRAM QUALITY ASSURANCE FEE ACCOUNT.
(a) The waiver program quality assurance fee account is a dedicated
account in the general revenue fund. The account is exempt from the
application of Section 403.095. Interest earned on money in the
account shall be credited to the account.
(b) The account consists of fees collected under Section
531.078 and interest earned on money in the account.
(c) Subject to legislative appropriation and state and
federal law, money in the account may be appropriated only to the
commission to increase reimbursement rates paid under the home and
community services waiver program or the community living
assistance and support services waiver program or to offset
allowable expenses under the state Medicaid program.
Sec. 531.080. REIMBURSEMENT OF WAIVER PROGRAMS. Subject to
legislative appropriation and state and federal law, the commission
shall use money from the waiver program quality assurance fee
account, together with any federal money available to match money
from the account, to increase reimbursement rates paid under the
home and community services waiver program or the community living
assistance and support services waiver program.
Sec. 531.081. INVALIDITY; FEDERAL FUNDS. If any portion of
Sections 531.078-531.080 is held invalid by a final order of a court
that is not subject to appeal, or if the commission determines that
the imposition of the quality assurance fee and the expenditure of
the money collected as provided by those sections will not entitle
this state to receive additional federal money under the Medicaid
program, the commission shall:
(1) stop collection of the quality assurance fee; and
(2) not later than the 30th day after the date the
collection of the quality assurance fee is stopped, return any
money collected under Section 531.078, but not spent under Section
531.080, to the persons who paid the fees in proportion to the total
amount paid by those persons.
SECTION 8.03. Subsection (b), Section 252.202, Health and
Safety Code, is amended to read as follows:
(b) The Health and Human Services Commission or the
department at the direction of the commission shall set the quality
assurance fee for each day in an [the] amount that will produce
[necessary to produce] annual revenues of [equal to an amount that
is] not more than six percent of the [facility's] total annual gross
receipts in this state. The fee is subject to a prospective
adjustment as necessary.
SECTION 8.04. Section 252.209, Health and Safety Code, is
repealed.
SECTION 8.05. (a) Notwithstanding Section 242.803, Health
and Safety Code, as added by this article, the executive
commissioner of the Health and Human Services Commission shall
establish the initial quality assurance fee imposed under
Subchapter P, Chapter 242, Health and Safety Code, as added by this
article, based on available revenue and patient day information.
The initial quality assurance fee established under this section
remains in effect until the Health and Human Services Commission
obtains the information necessary to set the fee under Section
242.803, Health and Safety Code, as added by this article.
(b) As soon as practicable after the effective date of this
Act, the executive commissioner of the Health and Human Services
Commission shall adopt rules as necessary to implement Subchapter
P, Chapter 242, Health and Safety Code, and Section 531.078,
Government Code, as added by this article.
(c) If before implementing any provision of this article a
state agency determines a waiver or authorization from a federal
agency is necessary for implementation of that provision, the
agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
ARTICLE 9. WAIVER OF AND SUPPLEMENTAL HEALTH COVERAGE
FOR STATE EMPLOYEES
SECTION 9.01. Subsection (a), Section 1551.104, Insurance
Code, is amended to read as follows:
(a) Subject to Sections 1551.101 and 1551.102, each
full-time employee is covered automatically by the basic coverage
plan for employees and each annuitant is covered by the basic
coverage plan for annuitants unless:
(1) participation is specifically waived as provided
by Section 1551.1045;
(2) the employee or annuitant is expelled from the
program under Section 1551.351; or
(3) eligibility is otherwise limited by this chapter.
SECTION 9.02. Subchapter C, Chapter 1551, Insurance Code,
is amended by adding Section 1551.1045 to read as follows:
Sec. 1551.1045. WAIVER. (a) Subject to Subsections (b) and
(c), an employee or annuitant may waive in writing any coverage
provided under this chapter.
(b) To waive coverage under the basic coverage plan for
employees, a full-time employee must demonstrate, in the manner
required by the board of trustees, that the employee is:
(1) covered by another health benefit plan that
provides substantially equivalent coverage, as determined by the
board of trustees, to the coverage provided to employees by the
basic coverage plan; or
(2) eligible for benefits under the TRICARE Military
Health System.
(c) To waive coverage under the basic coverage plan for
annuitants for the purpose of eligibility for an incentive payment
under Section 1551.222, an annuitant must demonstrate, in the
manner required by the board of trustees, that the annuitant is:
(1) covered by another health benefit plan that
provides substantially equivalent coverage, as determined by the
board of trustees, to the coverage provided to annuitants by the
basic coverage plan; or
(2) eligible for benefits under the TRICARE Military
Health System.
SECTION 9.03. Subchapter E, Chapter 1551, Insurance Code,
is amended by adding Sections 1551.221 and 1551.222 to read as
follows:
Sec. 1551.221. OPTIONAL SUPPLEMENTAL HEALTH COVERAGE FOR
INDIVIDUALS ELIGIBLE UNDER TRICARE MILITARY HEALTH SYSTEM. (a)
The board of trustees shall offer, as an optional coverage under the
group benefits program, a supplemental health coverage program.
(b) Under the supplemental health coverage program, an
employee or annuitant who is eligible to participate in the group
benefits program and who is also eligible for benefits under the
TRICARE Military Health System may elect to receive primary
coverage under the TRICARE Military Health System. An employee or
annuitant participating in the supplemental health coverage
program must waive basic coverage through the group benefits
program, but receives supplemental health coverage under this
section.
(c) The cost of supplemental health coverage provided under
this section may be paid in the same manner as the cost of other
optional coverage is paid under Subchapter G.
(d) The board of trustees shall contract to purchase the
supplemental health coverage in accordance with Sections
1551.213-1551.216.
(e) The board of trustees may adopt rules to implement this
section.
Sec. 1551.222. INCENTIVE PAYMENTS. (a) The board of
trustees may allow an incentive payment under this section to an
employee or annuitant who elects to waive coverage under the basic
coverage plan for employees or annuitants as provided by Section
1551.1045(b) or (c).
(b) The incentive payment authorized by this section is in
the amount authorized by the General Appropriations Act and may be
used by the employee or annuitant, in the manner prescribed by the
board of trustees, only to pay for other group coverage plans
provided under the group benefits program, including the
supplemental health coverage offered under Section 1551.221.
(c) The board of trustees, at the time of initial enrollment
in the group benefits program and during subsequent open-enrollment
periods, shall inform employees and annuitants that they may make
an election described by Subsection (a), if eligible, and receive
any authorized incentive payment.
SECTION 9.04. Subchapter G, Chapter 1551, Insurance Code,
is amended by adding Section 1551.324 to read as follows:
Sec. 1551.324. REDUCTION IN CONTRIBUTION FOR CERTAIN ACTIVE
EMPLOYEES AND ANNUITANTS; INCENTIVE PAYMENTS. (a) Notwithstanding
any other provision of this subchapter, the state contribution for
an employee's coverage or an annuitant's coverage under this
chapter may be reduced, as provided in the General Appropriations
Act, to reflect the reduced cost of coverage for an employee or
annuitant who elects to waive basic coverage as provided by Section
1551.1045(b) or (c).
(b) Instead of the full state contribution for an employee
or annuitant who makes an election described by Subsection (a), the
state may contribute, as specified by the General Appropriations
Act, an amount for the incentive payment authorized by Section
1551.222.
ARTICLE 10. MISCELLANEOUS FEES AND FUNDS
PART A. TEXAS MOBILITY FUND
SECTION 10A.01. Subchapter M, Chapter 201, Transportation
Code, is amended by adding Section 201.9471 to read as follows:
Sec. 201.9471. TEMPORARY DISPOSITION OF MONEY ALLOCATED TO
FUND. (a) Notwithstanding Sections 521.058, 521.313, 521.3466,
521.427, 522.029, 524.051, and 724.046, to the extent that those
sections allocate money to the Texas mobility fund, in state fiscal
year 2006 the comptroller shall deposit that money to the credit of
the general revenue fund instead of to the credit of the Texas
mobility fund.
(b) Notwithstanding Sections 521.313, 521.3466, 521.427,
522.029, 524.051, and 724.046, to the extent that those sections
allocate money to the Texas mobility fund, in state fiscal year 2007
the comptroller shall deposit that money to the credit of the
general revenue fund instead of to the credit of the Texas mobility
fund.
(c) This section expires January 1, 2008.
SECTION 10A.02. This part takes effect September 1, 2005.
PART B. TELECOMMUNICATIONS INFRASTRUCTURE FUND
SECTION 10B.01. Section 57.048, Utilities Code, is amended
by adding Subsections (f) through (i) to read as follows:
(f) Notwithstanding any other provision of this title, a
certificated telecommunications utility may recover from the
utility's customers an assessment imposed on the utility under this
subchapter after the total amount deposited to the credit of the
fund, excluding interest and loan repayments, is equal to $1.5
billion, as determined by the comptroller. A certificated
telecommunications utility may recover only the amount of the
assessment imposed after the total amount deposited to the credit
of the fund, excluding interest and loan repayments, is equal to
$1.5 billion, as determined by the comptroller. The utility may
recover the assessment through a monthly billing process.
(g) The comptroller shall publish in the Texas Register the
date on which the total amount deposited to the credit of the fund,
excluding interest and loan repayments, is equal to $1.5 billion.
(h) Not later than February 15 of each year, a certificated
telecommunications utility that wants to recover the assessment
under Subsection (f) shall file with the commission an affidavit or
affirmation stating the amount that the utility paid to the
comptroller under this section during the previous calendar year
and the amount the utility recovered from its customers in
cumulative payments during that year.
(i) The commission shall maintain the confidentiality of
information the commission receives under this section that is
claimed to be confidential for competitive purposes. The
confidential information is exempt from disclosure under Chapter
552, Government Code.
SECTION 10B.02. Section 57.0485, Utilities Code, is amended
to read as follows:
Sec. 57.0485. ALLOCATION OF REVENUE [ACCOUNTS]. [(a)] The
comptroller shall deposit [50 percent of] the money collected by
the comptroller under Section 57.048 to the credit of the general
revenue fund [public schools account in the fund. The comptroller
shall deposit the remainder of the money collected by the
comptroller under Section 57.048 to the credit of the qualifying
entities account in the fund.
[(b) Interest earned on money in an account shall be
deposited to the credit of that account].
SECTION 10B.03. Section 57.051, Utilities Code, is amended
to read as follows:
Sec. 57.051. SUNSET PROVISION. The Telecommunications
Infrastructure Fund [Board] is subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, [the board is abolished and] this subchapter
expires September 1, 2011 [2005].
SECTION 10B.04. Section 57.043 and Subsections (c) and (d),
Section 57.048, Utilities Code, are repealed.
SECTION 10B.05. If, on the day before the effective date of
this part, the assessment prescribed by Section 57.048, Utilities
Code, is imposed at a rate of less than 1.25 percent, the
comptroller shall, on the effective date of this part, reset the
rate of the assessment to 1.25 percent.
SECTION 10B.06. This part takes effect July 1, 2005, if this
Act receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for effect on that
date, this part takes effect September 1, 2005.
ARTICLE 11. POWERS AND DUTIES OF COMPTROLLER AND PROVISIONS
RELATED TO TAXES COLLECTED BY COMPTROLLER OR LOCAL ENTITIES
SECTION 11.01. Section 442.015, Government Code, is amended
by adding Subsection (h) to read as follows:
(h) The comptroller may manage the assets of the Texas
preservation trust fund account in the same manner as the
comptroller may manage the assets of certain permanent funds under
Section 403.1068.
SECTION 11.02. Section 552.025(c), Government Code, is
amended to read as follows:
(c) Subchapter C does not authorize withholding from the
public or limiting the availability to the public of a written
determination letter, technical advice memorandum, or ruling that
concerns a tax matter and that is issued by a governmental body with
taxing authority, provided that, to preserve taxpayer
confidentiality, a governmental body with taxing authority shall
remove any information that identifies a taxpayer from the letter,
memorandum, or ruling.
SECTION 11.03. Section 285.063, Health and Safety Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
SECTION 11.04. Section 775.0753, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
SECTION 11.05. Section 776.0753, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held as provided by
this subchapter.
SECTION 11.06. Article 1.16(b), Insurance Code, is amended
to read as follows:
(b) Assessments for the expenses of such domestic
examination which shall be sufficient to meet all the expenses and
disbursements necessary to comply with the provisions of the laws
of Texas relating to the examination of insurance companies and to
comply with the provisions of this Article and Articles 1.17 and
1.18 of this Code, shall be made by the State Board of Insurance
upon the corporations or associations to be examined taking into
consideration annual premium receipts, and/or admitted assets that
are not attributable to 90 percent of pension plan contracts as
defined in Section 818(a) of the Internal Revenue Code of 1986 (26
U.S.C. Section 818(a)), and/or insurance in force; provided such
assessments shall be made and collected as follows: (1) expenses
attributable directly to a specific examination including
employees' salaries and expenses and expenses provided by Section
803.007 [Article 1.28] of this Code shall be collected at the time
of examination; (2) assessments calculated annually for each
corporation or association which take into consideration annual
premium receipts, and/or admitted assets that are not attributable
to 90 percent of pension plan contracts as defined in Section 818(a)
of the Internal Revenue Code of 1986 (26 U.S.C. Section 818(a)),
and/or insurance in force shall be assessed annually for each such
corporation or association. In computing the assessments, the
board may not consider insurance premiums for insurance contracted
for by a state or federal governmental entity to provide welfare
benefits to designated welfare recipients or contracted for in
accordance with or in furtherance of Title 2, Human Resources Code,
or the federal Social Security Act (42 U.S.C. Section 301 et seq.).
The amount of all examination and evaluation fees paid in each
taxable year to the State of Texas by an insurance carrier shall be
allowed as a credit on the amount of premium taxes due [under this
article]. The limitations provided by Sections 803.007(1) and
(2)(B) of this code for domestic insurance companies apply to
foreign insurance companies.
SECTION 11.07. Section 222.002(b), Insurance Code, is
amended to read as follows:
(b) Except as otherwise provided by this section, in
determining an insurer's taxable gross premiums or a health
maintenance organization's taxable gross revenues, the insurer or
health maintenance organization shall include the total gross
amounts of premiums, membership fees, assessments, dues, revenues,
and other considerations received by the insurer or health
maintenance organization in a calendar year from any kind of health
maintenance organization certificate or contract or insurance
policy or contract covering risks on individuals or groups [a
person] located in this state and arising from the business of a
health maintenance organization or the business of life insurance,
accident insurance, health insurance, life and accident insurance,
life and health insurance, health and accident insurance, life,
health, and accident insurance, including variable life insurance,
credit life insurance, and credit accident and health insurance for
profit or otherwise or for mutual benefit or protection.
SECTION 11.08. Section 223.003(a), Insurance Code, is
amended to read as follows:
(a) An annual tax is imposed on all [each title insurance
company that receives] premiums from the business of title
insurance. The rate of the tax is 1.35 percent of [the] title
insurance [company's] taxable premiums for a calendar year,
including any premiums retained by a title insurance agent as
provided by Section 223.005. For purposes of this chapter, a person
engages in the business of title insurance if the person engages in
an activity described by Section 2501.005.
SECTION 11.09. Section 252.003, Insurance Code, is amended
to read as follows:
Sec. 252.003. PREMIUMS SUBJECT TO TAXATION. An insurer
shall pay maintenance taxes under this chapter on the correctly
reported gross premiums [collected] from writing insurance in this
state against loss or damage by:
(1) bombardment;
(2) civil war or commotion;
(3) cyclone;
(4) earthquake;
(5) excess or deficiency of moisture;
(6) explosion as defined by Article 5.52;
(7) fire;
(8) flood;
(9) frost and freeze;
(10) hail;
(11) insurrection;
(12) invasion;
(13) lightning;
(14) military or usurped power;
(15) an order of a civil authority made to prevent the
spread of a conflagration, epidemic, or catastrophe;
(16) rain;
(17) riot;
(18) the rising of the waters of the ocean or its
tributaries;
(19) smoke or smudge;
(20) strike or lockout;
(21) tornado;
(22) vandalism or malicious mischief;
(23) volcanic eruption;
(24) water or other fluid or substance resulting from
the breakage or leakage of sprinklers, pumps, or other apparatus
erected for extinguishing fires, water pipes, or other conduits or
containers;
(25) weather or climatic conditions; [or]
(26) windstorm;
(27) an event covered under a home warranty insurance
policy; or
(28) an event covered under an inland marine insurance
policy.
SECTION 11.10. Section 271.002(a), Insurance Code, is
amended to read as follows:
(a) A maintenance fee is imposed on all [each insurer with
gross] premiums subject to assessment under Section 271.006.
SECTION 11.11. Section 1502.053, Insurance Code, is amended
to read as follows:
Sec. 1502.053. EXEMPTION FROM CERTAIN TAXES. (a) The
issuer of a [A] children's health benefit plan approved under
Section 1502.051 [issuer] is not subject to the premium tax or the
tax on revenues imposed under Chapter 222 with respect to money
received for coverage provided under that plan.
(b) The issuer of a children's health benefit plan is not
subject to the retaliatory tax imposed under Chapter 281 with
respect to money received for coverage provided under that plan.
SECTION 11.12. Section 383.101, Local Government Code, is
amended by adding Subsection (d) to read as follows:
(d) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
subchapter.
SECTION 11.13. Section 387.012, Local Government Code, is
amended to read as follows:
Sec. 387.012. EFFECTIVE DATE OF TAX. (a) The adoption of
the tax, the change of the tax rate, or the repeal of the tax takes
effect on the first day of the first calendar quarter occurring
after the expiration of the first complete quarter occurring after
the date the comptroller receives a notice of the results of the
election adopting, changing, or repealing the tax.
(b) The district shall submit to the comptroller a
description of the boundaries of the district and a map of the
district clearly showing the district's boundaries at the same time
the district submits the results of the election held under this
chapter.
SECTION 11.14. Section 111.009, Tax Code, is amended by
amending Subsection (a) and adding Subsections (e) and (f) to read
as follows:
(a) A person having a direct interest in a determination may
petition the comptroller for a redetermination and may assert legal
and factual grounds to challenge the assessment.
(e) The person filing the petition may assert credits or
claim a refund for the same tax type and same period. The assertion
for the credits or the claim for the refund must be included in the
petition or must be filed within the applicable limitations period,
except as otherwise provided by this section. The comptroller
shall adopt procedural rules that ensure that redetermination
proceedings are expeditiously finalized and that provide that all
parties receive equal time to prepare and submit their positions
before the hearing.
(f) A credit or refund for the same tax type and same period
may be asserted or claimed in the redetermination proceeding for
all issues if the credit is asserted or the refund is claimed not
later than the second anniversary of the date the petition for
redetermination is filed. This subsection does not authorize a
filing for a separate credit or refund that is not authorized under
Section 111.107(b).
SECTION 11.15. Section 111.016, Tax Code, is amended by
adding Subsections (e) and (f) to read as follows:
(e) The comptroller may assess the responsible individual
liable under Subsection (b) at any time before the first
anniversary of the later of:
(1) the date the tax liability of the corporation,
association, limited liability company, limited partnership, or
other legal entity becomes final; or
(2) the date the bankruptcy proceeding is closed or
dismissed.
(f) An individual that the comptroller asserts is liable for
the payment of tax or other money under this section as a
responsible individual is entitled to:
(1) reasonable notice from the comptroller that
specifies the basis for that assertion and the amount of tax or
money for which the comptroller asserts the individual is liable;
and
(2) contest that assertion in a manner consistent with
the remedies available to taxpayers under this title.
SECTION 11.16. Subchapter B, Chapter 111, Tax Code, is
amended by adding Section 111.0515 to read as follows:
Sec. 111.0515. RESTRICTED OR CONDITIONAL PAYMENTS OF TAXES,
PENALTIES, AND INTEREST PROHIBITED. Unless the restriction or
condition is authorized by this title, a restriction or condition
placed on a check in payment of taxes by the maker of the check that
purports to limit the amount of taxes owed to an amount less than
that stated in the comptroller's records, or a restriction or
condition placed on a check in payment of penalties and interest on
delinquent taxes by the maker that purports to limit the amount of
the penalties and interest to an amount less than the amount of
penalties and interest accrued on the delinquent taxes, is void.
SECTION 11.17. Subchapter B, Chapter 111, Tax Code, is
amended by adding Section 111.065 to read as follows:
Sec. 111.065. EXPEDITIOUS ASSISTANCE FOR TAXPAYERS. (a)
As expeditiously as possible, the comptroller shall:
(1) refund or credit any amount of tax overpaid by a
person; and
(2) correct any erroneous assessment.
(b) The comptroller shall amend any audit or the records of
any audit period as expeditiously as possible if necessary to
comply with Subsection (a).
SECTION 11.18. Section 111.107, Tax Code, is amended to
read as follows:
Sec. 111.107. WHEN REFUND OR CREDIT IS PERMITTED. (a)
Except as otherwise expressly provided, a person may request a
refund or a credit or the comptroller may make a refund or issue a
credit for the overpayment of a tax imposed by this title at any
time before the expiration of the period during which the
comptroller may assess a deficiency for the tax and not thereafter
unless the refund or credit is requested:
(1) under Subchapter B of Chapter 112 and the refund is
made or the credit is issued under a court order;
(2) under the provision of Section 111.104(c)(3)
applicable to a refund claim filed after a jeopardy or deficiency
determination becomes final; or
(3) under Chapter 162 [153], except Section
162.126(f), 162.128(d), 162.228(f), or 162.230(d) [153.1195(e),
153.121(d), 153.2225(e), or 153.224(d)].
(b) A person may not refile a refund claim for the same
transaction or item, tax type, period, and ground or reason that was
previously denied by the comptroller in a refund hearing.
SECTION 11.19. Section 151.006, Tax Code, is amended to
read as follows:
Sec. 151.006. "SALE FOR RESALE". "Sale for resale" means a
sale of:
(1) tangible personal property or a taxable service to
a purchaser who acquires the property or service for the purpose of
reselling it in the United States of America or a possession or
territory of the United States of America or in the United Mexican
States in the normal course of business in the form or condition in
which it is acquired or as an attachment to or integral part of
other tangible personal property or taxable service;
(2) tangible personal property to a purchaser for the
sole purpose of the purchaser's leasing or renting it in the United
States of America or a possession or territory of the United States
of America or in the United Mexican States in the normal course of
business to another person, but not if incidental to the leasing or
renting of real estate;
(3) tangible personal property to a purchaser who
acquires the property for the purpose of transferring it in the
United States of America or a possession or territory of the United
States of America or in the United Mexican States as an integral
part of a taxable service; or
(4) a taxable service performed on tangible personal
property that is held for sale by the purchaser of the taxable
service.
SECTION 11.20. Section 151.011(a), Tax Code, is amended to
read as follows:
(a) Except as provided by Subsection (c) [of this section],
"use" means the exercise of a right or power incidental to the
ownership of tangible personal property over tangible personal
property, including tangible personal property other than printing
[printed] material that has been processed, fabricated, or
manufactured into other property or attached to or incorporated
into other property transported into this state, and, except as
provided by Section 151.056(b) [of this code], includes the
incorporation of tangible personal property into real estate or
into improvements of real estate whether or not the real estate is
subsequently sold.
SECTION 11.21. Section 151.3111(b), Tax Code, is amended to
read as follows:
(b) Subsection (a) does not apply to the performance of a
service on:
(1) tangible personal property that would be exempted
solely because of the exempt status of the seller of the property;
(2) tangible personal property that is exempted solely
because of the application of Section 151.303, 151.304, or 151.306;
(3) motor vehicles, trailers, or semitrailers as
defined, taxed, or exempted by Chapter 152; [or]
(4) a taxable boat or motor as defined by Section
160.001;
(5) tangible [. (6) Tangible] personal property
exempt under Section 151.326; or
(6) through December 31, 2007, tangible personal
property that is exempted solely because of the application of
Section 151.3162.
SECTION 11.22. Sections 151.3162(d) and (e), Tax Code, are
amended to read as follows:
(d) The exemption provided by Subsection (b) takes effect
January 1, 2008. Until that date, a person is entitled to an
exemption [a credit or refund] of a portion of the taxes paid under
this chapter on an item that after January 1, 2008, will be exempted
from the taxes imposed by this chapter under Subsection (b). The
amount of the exemption [credit or refund] is determined as
follows:
(1) for an item for which the taxable event occurs on
or after October 1, 2001, and before January 1, 2004, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 33 percent of the tax paid on the item;
(2) for an item for which the taxable event occurs on
or after January 1, 2004, and before January 1, 2006, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 50 percent of the tax paid on the item; and
(3) for an item for which the taxable event occurs on
or after January 1, 2006, and before January 1, 2008, the taxpayer
is entitled to an exemption [a refund or credit] in an amount equal
to 75 percent of the tax paid on the item.
(e) A taxpayer entitled to a credit or refund under
Subsection (d), as that subsection existed on September 30, 2005,
may elect to receive either a credit or a refund. A taxpayer who
elects to receive a credit must claim the credit on the return for a
period that ends not later than the first anniversary of the date on
which the taxable event occurred. A taxpayer who elects to receive
a refund must apply to the comptroller for the refund before or
during the calendar year following the year in which the tax on the
item was paid.
SECTION 11.23. Section 151.419(b), Tax Code, is amended to
read as follows:
(b) The application must be accompanied with:
(1) an agreement that is signed by the applicant or a
responsible officer of an applicant corporation, that is in a form
prescribed by the comptroller, and that provides that the applicant
agrees to:
(A) accrue and pay all taxes imposed by
Subchapter D [of this chapter] on the storage and use of all taxable
items sold to or leased or rented by the permit holder unless the
items are exempted from the taxes imposed by this chapter; and
(B) pay the imposed taxes monthly on or before
the 20th day of the month following the end of each calendar month;
[and
[(C) waive the discount permitted by Section
151.423 of this code on the payment of all taxes under the direct
payment permit only;]
(2) a description, in the amount of detail that the
comptroller requires, of the accounting method by which the
applicant proposes to differentiate between taxable and exempt
transactions; and
(3) records establishing that the applicant is a
responsible person who annually purchases taxable items that have a
value when purchased of $800,000 or more excluding the value of
taxable items for which resale certificates were or could have been
given.
SECTION 11.24. Sections 151.424(a) and (c), Tax Code, are
amended to read as follows:
(a) A taxpayer who prepays the taxpayer's tax liability on
the basis of a reasonable estimate of the tax liability for a
quarter in which a prepayment is made or for a month in which a
prepayment is made may deduct and withhold 1.25 percent of the
amount of the prepayment [in addition to the amount permitted to be
deducted and withheld under Section 151.423 of this code]. A
reasonable estimate of the tax liability must be at least 90 percent
of the tax ultimately due or the amount of tax paid in the same
quarter, or month, if a monthly prepayer, in the last preceding
year. Failure to prepay a reasonable estimate of the tax will
result in the loss of the entire prepayment discount.
(c) A taxpayer who prepays the tax liability as permitted by
this section must file a report when due as provided by this
chapter. The amount of a prepayment made by a taxpayer under this
section shall be credited against the amount of actual tax
liability of the taxpayer as shown on the tax report of the
taxpayer. If there is a tax liability owed by the taxpayer in
excess of the prepayment credit, the taxpayer shall send to the
comptroller the remaining tax liability at the time of filing the
quarterly or monthly report. [The taxpayer is entitled to the
deduction permitted under Section 151.423 of this code on the
amount of the remaining tax liability.]
SECTION 11.25. Section 151.425, Tax Code, is amended to
read as follows:
Sec. 151.425. FORFEITURE OF DISCOUNT OR REIMBURSEMENT. If
a taxpayer fails to file a report required by this chapter when due
or to pay the tax when due, the taxpayer forfeits any claim to a
[deduction or] discount allowed under [Section 151.423 or] Section
151.424 [of this code].
SECTION 11.26. Section 151.428(c), Tax Code, is amended to
read as follows:
(c) The reporting, collection, refund, and penalty
provisions of this chapter and Subtitle B [of this title] apply to
the payments required by this section, except that Section
[Sections 151.423 and] 151.424 does [of this code do] not apply to
this section.
SECTION 11.27. Section 152.047(a), Tax Code, is amended to
read as follows:
(a) Except as inconsistent with this chapter and rules
adopted under this chapter, the seller of a motor vehicle shall
report and pay the tax imposed on a seller-financed sale to the
comptroller on the seller's receipts from seller-financed sales in
the same manner as the sales tax is reported and paid by a retailer
under Sections 151.401, 151.402, 151.405, 151.406, 151.409,
[151.423,] 151.424, and 151.425.
SECTION 11.28. Section 152.123(b), Tax Code, is amended to
read as follows:
(b) The county shall retain the following percentage of the
amounts calculated under Subsection (a) during each of the
following fiscal years:
(1) [in fiscal year 2006, 10 percent;
[(2) in fiscal year 2007, 20 percent;
[(3)] in fiscal year 2008, 30 percent;
(2) [(4)] in fiscal year 2009, 40 percent;
(3) [(5)] in fiscal year 2010, 50 percent;
(4) [(6)] in fiscal year 2011, 60 percent;
(5) [(7)] in fiscal year 2012, 70 percent;
(6) [(8)] in fiscal year 2013, 80 percent;
(7) [(9)] in fiscal year 2014, 90 percent; and
(8) [(10)] in fiscal year 2015 and succeeding years,
100 percent.
SECTION 11.29. Section 171.109(g), Tax Code, as amended by
Chapters 801 and 1198, Acts of the 71st Legislature, Regular
Session, 1989, is reenacted and amended to read as follows:
(g) All oil and gas exploration and production activities by
a corporation which is required to or elects to use generally
accepted accounting principles to compute surplus must be reported
according to the successful efforts or the full cost method of
accounting. Notwithstanding the method of accounting, the
corporation may elect to depreciate the corporation's oil and gas
properties using any alternative method of depreciation recognized
under generally accepted accounting principles. The useful lives
of intangible assets shall be similar to the useful lives of
tangible assets.
SECTION 11.30. Section 171.110, Tax Code, is amended by
adding Subsection (m) to read as follows:
(m) Except as otherwise provided by this section, in
computing taxable earned surplus, a corporation is considered to
have made an election to use the same methods used in filing its
federal income tax return.
SECTION 11.31. Section 171.1121(b), Tax Code, is amended to
read as follows:
(b) Except as otherwise provided by this section, a
corporation shall use the same accounting methods to apportion
taxable earned surplus as the corporation used to compute taxable
earned surplus [in computing reportable federal taxable income].
SECTION 11.32. Section 171.801(2), Tax Code, is amended to
read as follows:
(2) "Qualified capital investment" means tangible
personal property, as defined by 26 C.F.R. Section 1.1245-3(b)(1),
that is first placed in service in a strategic investment area, or
first placed in service in a county with a population of less than
50,000 by a corporation primarily engaged in agricultural
processing, and that is described as Section 1245 property by [in]
Section 1245(a), Internal Revenue Code, such as engines, machinery,
tools, and implements used in a trade or business or held for
investment and subject to an allowance for depreciation, cost
recovery under the accelerated cost recovery system, or
amortization. The term does not include land [real property] or
buildings and their structural components. Property that is leased
under a capitalized lease is considered a "qualified capital
investment," but property that is leased under an operating lease
is not considered a "qualified capital investment." Property
expensed under Section 179, Internal Revenue Code, is not
considered a "qualified capital investment."
SECTION 11.33. Section 183.053(b), Tax Code, is amended to
read as follows:
(b) The total of bonds, certificates of deposit, letters of
credit, or other security determined to be sufficient by the
comptroller of a permittee subject to the tax imposed by this
chapter shall be in an amount that the comptroller determines to be
sufficient to protect the fiscal interests of the state. The
comptroller may not set the amount of security at less than $1,000
or more than the greater of $100,000 or four times the amount of the
permittee's average monthly tax liability [$50,000].
SECTION 11.34. Section 201.058(b), Tax Code, is amended to
read as follows:
(b) Operators increasing production by marketing gas from a
well [an oil well or lease] that has been released into the air for
six [12] months or more pursuant to the rules of the Railroad
Commission of Texas [commission] shall be entitled to an exemption
from the tax imposed by this chapter on the production resulting
from the marketing of such gas for the life of the well [or lease].
SECTION 11.35. Section 201.102, Tax Code, is amended to
read as follows:
Sec. 201.102. CASH SALES. If gas is sold for cash only, the
tax shall be computed on the producer's gross cash receipts.
Payments from a purchaser of gas to a producer for the purpose of
reimbursing the producer for taxes due under this chapter are not
part of the gross cash receipts [unless the reimbursement amount
for taxes due under this chapter is separately stated in the sales
contract].
SECTION 11.36. Subchapter B, Chapter 202, Tax Code, is
amended by adding Section 202.060 to read as follows:
Sec. 202.060. TAX CREDIT FOR ENHANCED EFFICIENCY EQUIPMENT.
(a) In this section, "enhanced efficiency equipment" means
equipment used in the production of oil that reduces the energy used
to produce a barrel of fluid by 10 percent or more when compared to
commonly available alternative equipment. The term does not
include a motor or downhole pump. Equipment does not qualify as
enhanced efficiency equipment unless an institution of higher
education approved by the comptroller that is located in this state
and that has an accredited petroleum engineering program evaluated
the equipment and determined that the equipment does produce the
required energy reduction.
(b) The taxpayer responsible for the payment of severance
taxes on the production from a well in this state on which enhanced
efficiency equipment is installed and used is entitled to a credit
in an amount equal to 20 percent of the cost of the equipment,
provided that:
(1) the cumulative total of all severance tax credits
authorized by this section may not exceed $2,000 for any well;
(2) the enhanced efficiency equipment installed in a
qualifying well must have been purchased and installed not earlier
than September 1, 2005, or later than September 1, 2009;
(3) the taxpayer must file an application with the
comptroller for the credit and must demonstrate to the comptroller
that the enhanced efficiency equipment has been purchased and
installed in the well within the period prescribed by Subdivision
(2);
(4) the number of applications the comptroller may
approve each state fiscal year may not exceed a number equal to two
percent of the producing wells in this state on September 1 of that
state fiscal year, as determined by the comptroller; and
(5) the manufacturer of the enhanced efficiency
equipment must obtain an evaluation of the product under Subsection
(a).
(c) The taxpayer may carry any unused credit forward until
the credit is used.
SECTION 11.37. Sections 313.021(1) and (2), Tax Code, are
amended to read as follows:
(1) "Qualified investment" means:
(A) tangible personal property, as defined by 26
C.F.R. Section 1.1245-3(b)(1), that is first placed in service in
this state during the applicable qualifying time period that begins
on or after January 1, 2002, and is described as Section 1245
property by Section 1245(a), Internal Revenue Code of 1986;
(B) tangible personal property that is first
placed in service in this state during the applicable qualifying
time period that begins on or after January 1, 2002, without regard
to whether the property is affixed to or incorporated into real
property, and that is used in connection with the manufacturing,
processing, or fabrication in a cleanroom environment of a
semiconductor product, without regard to whether the property is
actually located in the cleanroom environment, including:
(i) integrated systems, fixtures, and
piping;
(ii) all property necessary or adapted to
reduce contamination or to control airflow, temperature, humidity,
chemical purity, or other environmental conditions or
manufacturing tolerances; and
(iii) production equipment and machinery,
moveable cleanroom partitions, and cleanroom lighting; or
(C) a building or a permanent, nonremovable
component of a building that is built or constructed during the
applicable qualifying time period that begins on or after January
1, 2002, and that houses tangible personal property described by
Paragraph (A) or (B).
(2) "Qualified property" means:
(A) land:
(i) that is located in an area designated as
a reinvestment zone under Chapter 311 or 312 or as an enterprise
zone under Chapter 2303, Government Code;
(ii) on which a person proposes to
construct a new building or erect or affix a new improvement that
does not exist before the date the owner applies for a limitation on
appraised value under this subchapter;
(iii) that is not subject to a tax abatement
agreement entered into by a school district under Chapter 312; and
(iv) on which, in connection with the new
building or new improvement described by Subparagraph (ii), the
owner of the land, or the owner of a leasehold interest in the land,
proposes to:
(a) make a qualified investment in an
amount equal to at least the minimum amount required by Section
313.023; and
(b) create at least 25 new jobs;
(B) the new building or other new improvement
described by Paragraph (A)(ii); and
(C) tangible personal property that:
(i) is not subject to a tax abatement
agreement entered into by a school district under Chapter 312; and
(ii) except for new equipment described in
Section 151.318(q) or (q-1), is first placed in service in the new
building or in or on the new improvement described by Paragraph
(A)(ii), or on the land on which that new building or new
improvement is located, if the personal property is ancillary and
necessary to the business conducted in that new building or in or on
that new improvement.
SECTION 11.38. Section 321.203, Tax Code, is amended by
amending Subsections (b)-(e) and adding Subsection (n) to read as
follows:
(b) If a retailer has only one place of business in this
state, all of the retailer's retail sales of taxable items
[tangible personal property] are consummated at that place of
business except as provided by Subsection (e).
(c) If a retailer has more than one place of business in this
state, a sale of a taxable item [tangible personal property] by the
retailer is consummated at the retailer's place of business:
(1) from which the retailer ships or delivers the item
[property], if the retailer ships or delivers the item [property]
to a point designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item [property], if the purchaser or lessee takes
possession of and removes the item [property] from a place of
business of the retailer.
(d) If neither the possession of a taxable item [tangible
personal property] is taken at nor shipment or delivery of the item
[property] is made from the retailer's place of business in this
state, the sale is consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
salesman who took the order operates.
(e) A sale of a taxable item [tangible personal property] is
consummated at the location in this state to which the item
[property] is shipped or delivered or at which possession is taken
by the customer if transfer of possession of the item [property]
occurs at, or shipment or delivery of the item [property]
originates from, a location in this state other than a place of
business of the retailer and if:
(1) the retailer is an itinerant vendor who has no
place of business;
(2) the retailer's place of business where the
purchase order is initially received or from which the retailer's
salesman who took the order operates is outside this state; or
(3) the purchaser places the order directly with the
retailer's supplier and the item [property] is shipped or delivered
directly to the purchaser by the supplier.
(n) A sale of a service described by Section 151.0047 to
remodel, repair, or restore nonresidential real property is
consummated at the location of the job site. However, if the job
site includes areas in multiple municipalities, the sale is
consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent who took the order operates.
SECTION 11.39. Section 321.302, Tax Code, is amended by
adding Subsection (c-1) to read as follows:
(c-1) For purposes of Subsection (c)(3), "full amount of the
tax due" means the amount of municipal tax to be allocated that can
be determined without a comptroller's audit of the person's
records.
SECTION 11.40. Section 321.503, Tax Code, is amended to
read as follows:
Sec. 321.503. STATE'S SHARE. Before sending any money to a
municipality under this subchapter the comptroller shall deduct two
percent of the amount of the taxes collected within the
municipality during the period for which a distribution is made as
the state's charge for its services under this chapter and shall[,
subject to premiums payments under Section 321.501(c),] credit the
money deducted to the general revenue fund.
SECTION 11.41. Section 323.102(c), Tax Code, is amended to
read as follows:
(c) A tax imposed under Section 323.105 of this code or
Chapter 326 or 383, Local Government Code, takes effect on the first
day of the first calendar quarter after the expiration of the first
complete calendar quarter occurring after the date on which the
comptroller receives a notice of the action as required by Section
323.405(b).
SECTION 11.42. Section 323.203, Tax Code, is amended by
amending Subsections (b)-(e) and adding Subsection (m) to read as
follows:
(b) If a retailer has only one place of business in this
state, all of the retailer's retail sales of taxable items
[tangible personal property] are consummated at that place of
business except as provided by Subsection (e).
(c) If a retailer has more than one place of business in this
state, a sale of a taxable item [tangible personal property] by the
retailer is consummated at the retailer's place of business:
(1) from which the retailer ships or delivers the item
[property], if the retailer ships or delivers the item [property]
to a point designated by the purchaser or lessee; or
(2) where the purchaser or lessee takes possession of
and removes the item [property], if the purchaser or lessee takes
possession of and removes the item [property] from a place of
business of the retailer.
(d) If neither the possession of a taxable item [tangible
personal property] is taken at nor shipment or delivery of the item
[property] is made from the retailer's place of business in this
state, the sale is consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
salesman who took the order operates.
(e) A sale of a taxable item [tangible personal property] is
consummated at the location in this state to which the item
[property] is shipped or delivered or at which possession is taken
by the customer if transfer of possession of the item [property]
occurs at, or shipment or delivery of the item [property]
originates from, a location in this state other than a place of
business of the retailer and if:
(1) the retailer is an itinerant vendor who has no
place of business;
(2) the retailer's place of business where the
purchase order is initially received or from which the retailer's
salesman who took the order operates is outside this state; or
(3) the purchaser places the order directly with the
retailer's supplier and the item [property] is shipped or delivered
directly to the purchaser by the supplier.
(m) A sale of a service described by Section 151.0047 to
remodel, repair, or restore nonresidential real property is
consummated at the location of the job site. However, if the job
site includes areas in multiple municipalities, the sale is
consummated at:
(1) the retailer's place of business in this state
where the order is received; or
(2) if the order is not received at a place of business
of the retailer, the place of business from which the retailer's
agent who took the order operates.
SECTION 11.43. Section 323.503, Tax Code, is amended to
read as follows:
Sec. 323.503. STATE'S SHARE. Before sending any money to a
county under this subchapter the comptroller shall deduct two
percent of the amount of the taxes collected within the county
during the period for which a distribution is made as the state's
charge for its services under this chapter and shall[, subject to
premiums payments under Section 323.501(c),] credit the money
deducted to the general revenue fund.
SECTION 11.44. Section 502.1025(b), Transportation Code,
is amended to read as follows:
(b) A county tax assessor-collector shall retain under
Section 502.102(b) fees based on the following percentage of the
amounts calculated under Subsection [subsection] (a) during each of
the following fiscal years:
(1) in fiscal year 2006, 100 [90] percent;
(2) in fiscal year 2007, 100 [80] percent;
(3) in fiscal year 2008, 70 percent;
(4) in fiscal year 2009, 60 percent;
(5) in fiscal year 2010, 50 percent;
(6) in fiscal year 2011, 40 percent;
(7) in fiscal year 2012, 30 percent;
(8) in fiscal year 2013, 20 percent;
(9) in fiscal year 2014, 10 percent; and
(10) in fiscal year 2015 and succeeding years, 0
percent.
SECTION 11.45. The heading to Subchapter A, Chapter 16,
Utilities Code, is amended to read as follows:
SUBCHAPTER A. ASSESSMENT ON UTILITY GROSS RECEIPTS [PUBLIC
UTILITIES]
SECTION 11.46. The heading to Section 16.001, Utilities
Code, is amended to read as follows:
Sec. 16.001. ASSESSMENT ON UTILITY GROSS RECEIPTS [PUBLIC
UTILITIES].
SECTION 11.47. Sections 16.001(a) and (b), Utilities Code,
are amended to read as follows:
(a) To defray the expenses incurred in the administration of
this title, an assessment is imposed on each telecommunications
utility, electric [public] utility, retail electric provider, and
electric cooperative within the jurisdiction of the commission that
serves the ultimate consumer, including each interexchange
telecommunications carrier.
(b) An assessment under this section is equal to one-sixth
of one percent of the telecommunications utility's, electric
[public] utility's, retail electric provider's, or electric
cooperative's gross receipts from rates charged to the ultimate
consumer in this state.
SECTION 11.48. Section 16.002(b), Utilities Code, is
amended to read as follows:
(b) A telecommunications utility, electric [public]
utility, retail electric provider, or electric cooperative may
instead make quarterly payments due August 15, November 15,
February 15, and May 15.
SECTION 11.49. The following sections of the Tax Code are
repealed:
(1) Section 151.103(d);
(2) Section 151.202(c);
(3) Section 151.423;
(4) Section 321.203(l), as added by Chapter 1310, Acts
of the 78th Legislature, Regular Session, 2003; and
(5) Section 323.203(l).
SECTION 11.50. The changes in law made by this article to
Section 201.102, Tax Code, apply to a refund claim or determination
under Chapter 111, Tax Code, made in relation to a tax that is due on
or after the effective date of this article. A refund claim or
determination that is made in relation to a tax that is due before
the effective date of this article is governed by the law in effect
on the date the tax is due, and that law is continued in effect for
that purpose.
SECTION 11.51. The changes in law made by this article to
Section 111.009, Tax Code, apply to a petition for redetermination
for which the comptroller has not issued a final order or decision
on or before the effective date of this article, regardless of the
date on which the petition is filed.
SECTION 11.52. The changes in law made by this article to
Section 151.006, Tax Code, do not affect any matter that is the
subject of litigation pending on the effective date of this
article.
SECTION 11.53. The change in law made to Section
171.109(g), Tax Code, by this article is a clarification of
existing law and does not imply that existing law may be construed
as inconsistent with the law as amended by this article.
SECTION 11.54. If a change in law made to Section 16.001 or
16.002, Utilities Code, by this article conflicts with another bill
enacted by the 79th Legislature, Regular Session, 2005, that amends
Section 16.001 or 16.002, Utilities Code, including H.B. No. 1779,
that other bill controls.
SECTION 11.55. This article takes effect October 1, 2005.
ARTICLE 12. SALE OF CIGARETTES AND TOBACCO PRODUCTS
SECTION 12.01. Subchapter H, Chapter 161, Health and Safety
Code, is amended by adding Section 161.0821 to read as follows:
Sec. 161.0821. PURCHASE OF CIGARETTES OR TOBACCO PRODUCTS
BY PERSONS YOUNGER THAN 18 YEARS OF AGE PROHIBITED. (a) A person
who is younger than 18 years of age commits an offense if the person
purchases or attempts to purchase cigarettes or tobacco products.
(b) It is an exception to the application of this section
that the person younger than 18 years of age is participating in an
investigation or compliance inspection in accordance with Section
161.088 on behalf of the comptroller or a local law enforcement
agency.
(c) If conduct constituting an offense under this section
also constitutes an offense under another section of this code or
another provision of law, the actor may be prosecuted under either
this section or the other section or provision.
(d) For purposes of this section, a person attempts to
purchase cigarettes or tobacco products if the person commits an
act amounting to more than mere preparation that tends, but fails,
to effect the purchase.
(e) An offense under this section is a Class C misdemeanor.
SECTION 12.02. (a) Chapter 161, Health and Safety Code, is
amended by adding Subchapter V to read as follows:
SUBCHAPTER V. INTERNET OR MAIL-ORDER SALES OF
CIGARETTES AND TOBACCO PRODUCTS
Sec. 161.651. DEFINITIONS. (a) In this subchapter:
(1) "Cigarette" has the meaning assigned by Section
154.001, Tax Code.
(2) "Tobacco product" has the meaning assigned by
Sections 155.001(15)(C)-(E), Tax Code.
(b) In this subchapter, "common carrier," "consumer,"
"distributor," "importer," "manufacturer," "permit holder,"
"retailer," and "wholesaler" have the meanings assigned by Section
154.001 or 155.001, Tax Code, as applicable.
Sec. 161.652. APPLICABILITY OF SUBCHAPTER TO INDIAN TRIBES.
This subchapter does not apply to cigarette or tobacco product
sales by an Indian tribe, as defined by 25 U.S.C. Section 450b(e),
or by members of the Indian tribe, to a consumer in this state if the
consumer is a verified adult member of that Indian tribe and the
buyer and seller are each located on land over which the tribe
exercises governmental power and that is owned or occupied by that
tribe.
Sec. 161.653. CERTAIN DELIVERIES OF CIGARETTES AND TOBACCO
PRODUCTS PROHIBITED. (a) A distributor, importer, manufacturer,
retailer, wholesaler, or other person engaged in the business of
manufacturing, distributing, or selling cigarettes or tobacco
products, including selling cigarettes or tobacco products over the
Internet or through mail-order sales, may not sell, offer for sale,
deliver, or cause to be delivered any cigarettes or tobacco
products to a person in this state except in a face-to-face
transaction at the time of purchase unless the cigarettes or
tobacco products are in a container or wrapping plainly and visibly
marked on the exterior in a manner that indicates that there are
cigarettes or tobacco products inside and the sale or delivery is
made to one of the following persons for purposes other than
personal consumption by the recipient:
(1) a permit holder, including the holder's employees
or agents;
(2) a manufacturer or importer of tobacco products or
an export warehouse proprietor with a federal permit under 26
U.S.C. Section 5712 or an operator of a federally designated
customs bonded warehouse under 19 U.S.C. Section 1311 or 1555; or
(3) a person who is an officer, employee, or agent of
the United States government, this state, or a department, agency,
instrumentality, or political subdivision of the United States or
this state acting within the scope of the person's official duties.
(b) A person within the jurisdiction of this state's laws,
including a common carrier or commercial delivery service, may not
knowingly transport cigarettes or tobacco products on behalf of
another person for commercial or business purposes for delivery to
a person in this state other than a person described by Subsection
(a)(1), (2), or (3).
(c) Except as specifically provided by Subsection (b), this
section does not apply to a common carrier or other delivery service
operating within the scope of its business as a common carrier or
delivery service.
Sec. 161.654. PERMIT HOLDER LIST. The comptroller shall
compile and make available on the comptroller's Internet website
and by other means a list of all persons who hold a permit under
Subchapter D, Chapter 154, or Subchapter C, Chapter 155, Tax Code.
The comptroller shall periodically update the list of persons
holding a permit under those subchapters.
Sec. 161.655. VIOLATOR'S LIST. (a) The comptroller shall
maintain a list of persons the comptroller determines have violated
Section 161.653(a) or are violating or offering to violate that
subsection.
(b) The comptroller shall provide to the United States
Postal Service, each common carrier and commercial delivery service
operating in this state, and any other person who delivers
cigarettes or tobacco products into or within this state a copy of
this subchapter and the list maintained under Subsection (a). The
comptroller shall provide updated copies of the list as the
comptroller determines is appropriate.
(c) Before adding a person to the list maintained under
Subsection (a), the comptroller shall provide 10 days' written
notice and an opportunity to be heard to that person. The notice
must include the text of this subchapter. The notice may be made by
an electronic communication.
(d) The list maintained under Subsection (a) is
confidential and not subject to disclosure under Chapter 552,
Government Code. The comptroller and each person who receives a
copy of the list from the comptroller under this section must
maintain the list as confidential and may use the list only to
comply with this subchapter.
Sec. 161.656. CARRIER AND DELIVERY SERVICE
RESPONSIBILITIES. (a) A person who is a common carrier or
commercial delivery service within the jurisdiction of this state's
laws who receives a copy of a list maintained under Section 161.655
may not make any deliveries in this state on behalf of a person
identified in the list unless:
(1) the person making the delivery knows or
affirmatively believes in good faith that the package does not
contain cigarettes or tobacco products; or
(2) the delivery is made to a person described by
Section 161.653(a)(1), (2), or (3).
(b) A person who delivers cigarettes or tobacco products and
receives a copy of a list maintained under Section 161.155:
(1) is not required to:
(A) inspect a package being delivered to
determine whether the package contains cigarettes or tobacco
products;
(B) determine whether the list is complete,
accurate, and up to date; or
(C) determine whether any person ordering or
requesting a delivery is in compliance with this subchapter;
(2) is not subject to any penalty for:
(A) failing to make a specific delivery on behalf
of a person on the list; or
(B) establishing and following a policy of not
making deliveries:
(i) in this state on behalf of a person on
the list;
(ii) of cigarettes or tobacco products in
this state; or
(iii) of cigarettes or tobacco products in
this state for any person that is not a distributor, manufacturer,
retailer, or wholesaler;
(3) is not subject to criminal penalties for a
violation of this subchapter unless the person knowingly violates
this subchapter for the specific purpose of:
(A) assisting a person engaged in the business of
manufacturing, distributing, or selling cigarettes or tobacco
products to violate this subchapter; or
(B) profiting from the violation of this
subchapter by another person; and
(4) may collect an additional fee from the person's
customers who order deliveries of cigarettes or tobacco products to
recover any costs incurred by the person related to complying with
this subchapter.
(c) An employee of a common carrier or commercial delivery
service or of any other person making deliveries for a carrier or
delivery service is not subject to criminal or civil penalties for
violating this subchapter unless the employee knowingly violates
this subchapter for the specific purpose of assisting a person
engaged in the business of manufacturing, distributing, or selling
cigarettes or tobacco products in violation of this subchapter.
Sec. 161.657. CIVIL PENALTIES. (a) Except as provided in
Section 161.656(c), a person who violates this subchapter is
subject to a civil penalty for each violation in an amount:
(1) of at least $500 and not more than the greater of
$5,000 or five times the value of the cigarettes or tobacco products
at issue; and
(2) equal to any profits, gain, gross receipts, or
other benefits received from the violation.
(b) A person who violates Section 161.653(a) must reimburse
this state and the applicable political subdivisions of this state
for all unpaid taxes that would otherwise have been imposed by this
state and those political subdivisions on the cigarettes and
tobacco products in question, plus interest, and for any other
damages incurred by the state or the political subdivision as a
result of the violation.
Sec. 161.658. CRIMINAL PENALTIES. Except as provided by
Sections 161.656(b)(3) and (c), a person who knowingly violates
Section 161.653 or 161.656(a) commits an offense. An offense under
this subsection is a Class A misdemeanor, except that if it is shown
on the trial of the offense that the person has a previous
conviction under this subsection, the offense is a state jail
felony.
Sec. 161.659. COSTS. (a) The comptroller shall deposit an
amount equal to 50 percent of the civil penalties recovered by this
state under this subchapter to be appropriated only to the
comptroller, department, attorney general, and other state
agencies to enforce this subchapter or make related investigations
or to enforce other state laws relating to contraband cigarettes
and tobacco products, the collection of taxes on cigarettes and
tobacco products, and the prohibition of cigarette and tobacco
product sales to minors.
(b) In a civil action brought to enforce this subchapter,
the state is entitled to recover the costs of investigation, costs
of the action, and reasonable attorney's fees, plus interest.
Sec. 161.660. ENFORCEMENT. (a) The attorney general may
bring an action in the appropriate court in this state to enforce
this subchapter, seek civil penalties and related damages, and
equitable relief, or to prevent or restrain actions by a person or a
person controlling the person that violate this subchapter or
assist or encourage a violation of this subchapter.
(b) On providing at least 15 days' notice to the attorney
general, enforcement officials of a political subdivision of this
state may bring an action in the appropriate court in this state, or
join an action being brought by the attorney general, to seek
damages and equitable relief or to prevent or restrain actions by a
person or a person controlling the person that violate this
subchapter or assist or encourage a violation of this subchapter.
(c) On providing at least 15 days' notice to the attorney
general, a person who holds a valid permit under 26 U.S.C. Section
5712 may bring an action in the appropriate court in this state, or
join an action being brought by the attorney general, to prevent or
restrain actions by a person or a person controlling the person that
violate this subchapter or assist or encourage a violation of this
subchapter.
(d) On receiving notice from another person of the person's
intent to bring an action under this subchapter in the appropriate
court in this state, the attorney general may choose to join in the
other person's action or bring an action by this state in its stead
and shall inform the person providing notice of how the attorney
general will proceed not later than the 15th day after receiving the
notice.
(e) The attorney general shall make public, by posting on
the Internet and other means, a list of all actions taken to enforce
this subchapter and a list of all persons found to have violated
this subchapter, including the persons' names, addresses, and any
other information the attorney general believes may be useful to
other jurisdictions enforcing laws prohibiting or restricting
cigarette or tobacco product sales for personal consumption in
which the seller and buyer do not initiate and complete the entire
transaction in each other's physical presence.
(b) Effective September 1, 2006, Subchapter R, Chapter 161,
Health and Safety Code, as added by Chapter 730, Acts of the 78th
Legislature, Regular Session, 2003, is repealed.
(c) Not later than January 1, 2006, the comptroller shall
post the list of persons who hold permits under Subchapter D,
Chapter 154, Tax Code, or Subchapter C, Chapter 155, Tax Code, as
required by Section 161.654, Health and Safety Code, as added by
this section.
(d) Not later than June 1, 2006, the comptroller shall
create and distribute the list as required by Section 161.655,
Health and Safety Code, as added by this section.
(e) Notwithstanding Subchapter V, Chapter 161, Health and
Safety Code, as added by this section, a person is not subject to a
penalty for a violation of that subchapter before September 1,
2006.
(f) The change in law made by this section applies only to an
offense committed on or after September 1, 2006. An offense
committed before September 1, 2006, is covered by the law in effect
when the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this subsection, an
offense was committed before September 1, 2006, if any element of
the offense was committed before that date.
(g) This section takes effect September 1, 2005, except that
Sections 161.657-161.660, Health and Safety Code, as added by this
section, take effect September 1, 2006.
SECTION 12.03. (a) Article 59.01(2), Code of Criminal
Procedure, as amended by Section 2.141, Chapter 198, Section 17,
Chapter 257, and Section 3, Chapter 649, Acts of the 78th
Legislature, Regular Session, 2003, is reenacted and amended to
read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, 31, 32,
33, 33A, or 35, Penal Code; or
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes);
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code; [or]
(vii) any felony under Chapter 31, 32, or
37, Penal Code, that involves the state Medicaid program, or any
felony under Chapter 36, Human Resources Code;
(viii) a Class A misdemeanor or state jail
felony under Subchapter U, Chapter 161, Health and Safety Code; or
(ix) [(vii)] a Class B misdemeanor under
Section 35.58, Business & Commerce Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(ix) [(B)(vii)] of this
subdivision, or a crime of violence; or
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(ix) [(B)(vii)]
of this subdivision, or a crime of violence.
(b) The change in law made by this section applies only to an
offense committed on or after September 1, 2006. An offense
committed before September 1, 2006, is covered by the law in effect
when the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this subsection, an
offense was committed before September 1, 2006, if any element of
the offense was committed before that date.
(c) This section takes effect September 1, 2006.
ARTICLE 13. COMMERCIAL DRIVER'S LICENSES
SECTION 13.01. Section 522.021(a), Transportation Code, is
amended to read as follows:
(a) An application for a commercial driver's license or
commercial driver learner's permit must include:
(1) the full name and current residence and mailing
address of the applicant;
(2) a physical description of the applicant, including
sex, height, and eye color;
(3) the applicant's date of birth;
(4) the applicant's social security number, unless the
application is for a nonresident commercial driver's license and
the applicant is a resident of a foreign jurisdiction;
(5) certifications, including those required by 49
C.F.R. Section 383.71(a); [and]
(6) if the application is for a nonresident commercial
driver's license and the applicant is a resident of a foreign
jurisdiction, a copy of:
(A) a social security card; or
(B) a passport issued to the applicant by the
country of which the applicant is a resident and a visa, each
containing an identification number and an expiration date; and
(7) any other information required by the department.
SECTION 13.02. Section 522.029, Transportation Code, is
amended by amending Subsection (a) and adding Subsection (j) to
read as follows:
(a) The fee for a commercial driver's license or commercial
driver learner's permit issued by the department is $60, except as
provided by Subsections (f), [and] (h), and (j).
(j) The fee for a nonresident commercial driver's license is
$100.
SECTION 13.03. Section 522.051, Transportation Code, is
amended by amending Subsection (a) and adding Subsection (f) to
read as follows:
(a) Except as provided by Subsection (f) and Section
522.033, an original commercial driver's license or commercial
driver learner's permit expires six years after the applicant's
next birthday.
(f) A nonresident commercial driver's license issued to an
applicant described by Section 522.021(a)(6)(B) who submitted a
copy of a visa expires on the date the person's visa expires.
ARTICLE 14. EFFECTIVE DATE
SECTION 14.01. Except as otherwise provided by this Act,
this Act takes effect immediately if it receives a vote of
two-thirds of all the members elected to each house, as provided by
Section 39, Article III, Texas Constitution. If this Act does not
receive the vote necessary for immediate effect, except as
otherwise provided by this Act, this Act takes effect on the 91st
day after the last day of the legislative session.