81R1732 MTB-F

By: Isett H.B. No. 1815

A BILL TO BE ENTITLED

AN ACT

relating to the creation of a state agency to facilitate public-private partnerships to plan and take action regarding governmental projects.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle F, Title 10, Government Code, is amended by adding Chapter 2267 to read as follows:

CHAPTER 2267. GOVERNMENTAL PROJECTS AND INFRASTRUCTURE: TEXAS

PARTNERSHIPS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 2267.001. DEFINITIONS. In this chapter:

(1) "Agency" means Texas Partnerships.

(2) "Arbitrator" means a person appointed by the governor under Section 2267.055.

(3) "Board" means the board of directors of Texas Partnerships.

(4) "Governmental entity" means:

(A) a board, commission, department, or other agency of the state, including an institution of higher education as defined by Section 61.003, Education Code; and

(B) a political subdivision of the state, including a municipality, a county, or any kind of district.

(5) "Infrastructure" includes a road, bridge, tunnel, overpass, ferry, airport, mass transit facility, vehicle parking facility, port facility, fuel supply facility, oil or gas pipeline, transmission system, distribution system, water supply facility, public work, waste treatment facility, telecommunications facility, hospital, school, medical or nursing care facility, public building, or other similar facility currently available, or to be made available, to a governmental entity or for public use, together with any structures, parking areas, appurtenances, and other property required to operate such a structure or facility.

(6) "Project" includes:

(A) the planning, procurement, operation, maintenance, rehabilitation, management, or other activities connected with taking action regarding infrastructure by or on behalf of a governmental entity;

(B) the delivery of a service to the public or to a governmental entity; or

(C) the delivery of new systems required in conjunction with or in support of an infrastructure or service delivery project.

(7) "Public-private partnership" means an arrangement between a governmental entity and a person that facilitates, provides for, or contemplates the undertaking of a project by the person on the basis that the governmental entity will identify the performance requirements necessary to achieve the desired outcome and the person will achieve that outcome.

Sec. 2267.002. AGENCY. Texas Partnerships is an agency of the state governed by the board.

Sec. 2267.003. APPLICATION OF SUNSET, OPEN MEETINGS, AND ADMINISTRATIVE PROCEDURES LAWS. (a) The agency is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the agency is abolished and this chapter expires September 1, 2021.

(b) The agency is subject to the open meetings law, Chapter 551, and the administrative procedure law, Chapter 2001.

Sec. 2267.004. APPLICATION OF OTHER LAW. The provisions of this chapter relating to projects are in addition to other procedures for planning or undertaking projects under this title or other law.

[Sections 2267.005-2267.050 reserved for expansion]

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 2267.051. COMPOSITION OF BOARD. (a) The board is composed of seven members appointed by the governor with the advice and consent of the senate. Members serve for staggered terms of six years, with the terms of one-third, or as close to one-third as possible, of the members expiring February 1 of each odd-numbered year.

(b) Each member of the board must have knowledge, experience, and expertise relevant to the business and affairs of the agency.

Sec. 2267.052. PRESIDING OFFICER. The governor shall designate a member of the board as the presiding officer of the board to serve in that capacity at the pleasure of the governor.

Sec. 2267.053. DUTIES OF MEMBERS. Each member of the board shall, in exercising the member's powers or performing the member's duties:

(1) act honestly and in good faith in the best interests of the agency; and

(2) exercise the care, diligence, and skill that a reasonably prudent person would in comparable circumstances.

Sec. 2267.054. PERSONNEL. (a) The agency shall employ an executive director.

(b) The executive director is the chief executive officer of the agency and is charged with the general direction, supervision, and control of the business of the agency and may exercise other powers conferred on the executive director by rule of the board.

(c) The executive director may employ personnel necessary to implement this chapter.

Sec. 2267.055. ARBITRATORS. The governor shall appoint one or two persons as arbitrators. Arbitrators serve for a term of two years.

Sec. 2267.056. IMMUNITY AND INDEMNITY OF EMPLOYEES AND OTHERS; REIMBURSEMENT FOR EXPENSES. (a) A civil action to impose liability for damages may not be commenced against a board member or employee of the agency for:

(1) any act done or purported to be done in carrying out the duties of the agency under this chapter if the act was done in good faith in the exercise or performance or intended exercise or performance of a power or duty under this chapter; or

(2) any neglect or default arising out of any act, omission, decision, or determination made or arising out of or in the course of the exercise or performance in good faith of any power or duty under this chapter.

(b) Every member of the board or employee of the agency and their heirs, executors, and estates shall be indemnified and held harmless by the agency with respect to all costs, charges, and expenses that the individual incurs in relation to any action or other proceeding brought or prosecuted against the individual in connection with the performance by the individual of the individual's duties as a member of the board or employee of the agency, except costs, charges, and expenses that are occasioned by the individual's wilful neglect or wilful default.

(c) A member of the board or employee of the agency is entitled to reimbursement for all other costs, charges, and expenses the individual incurs in connection with the performance of the individual's duties as a member or employee.

Sec. 2267.057. RULES. The board shall adopt rules to implement this chapter.

[Sections 2267.058-2267.070 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES

Sec. 2267.071. GENERAL DUTIES. The agency shall:

(1) assist with and support and advise governmental entities on the use of public-private partnerships for planning, procurement, implementation, undertaking, financing, delivery, operation, maintenance, management, or rehabilitation of projects, including infrastructure projects;

(2) study, develop, formulate, establish, and communicate to governmental entities policies and procedures for the use of public-private partnerships for planning, procurement, implementation, undertaking, financing, delivery, operation, maintenance, management, or rehabilitation of projects, including infrastructure projects;

(3) develop policies, procedures, protocols, and methodology to assess and evaluate how projects should be financed and otherwise undertaken through the use of public-private partnerships so as to achieve optimum value for financial, social, or economic benefit;

(4) provide services to governmental entities in relation to the use of public-private partnerships for projects, assess the feasibility of the use of public-private partnerships for projects for governmental entities, or plan, procure, implement, undertake, finance, develop, operate, maintain, manage, or rehabilitate projects, including infrastructure projects, through the use of public-private partnerships on behalf of governmental entities;

(5) plan, procure, implement, undertake, finance, deliver, operate, manage, maintain, rehabilitate, or otherwise take action regarding projects, including infrastructure projects, through the use of public-private partnerships as the governor may direct;

(6) establish, update, and continually promote consistent standards for the undertaking of projects through the use of public-private partnerships within this state;

(7) contract with governmental entities to provide service, advice, assistance, and direction in relation to the undertaking of projects through the use of public-private partnerships or the procurement, constructing, management, maintenance, and rehabilitation of infrastructure through the use of public-private partnerships;

(8) through the use of public-private partnerships, acquire, hold, own, use, lease, license, sell, plan, design, finance, refinance, develop, construct, improve, operate, manage, maintain, repair, replace, alter, extend, expand, rehabilitate, dispose of, or otherwise take action regarding infrastructure;

(9) through the use of public-private partnerships, acquire, hold, own, use, lease, license, sell, dispose of, or otherwise take action regarding land in conjunction with the undertaking of a project or otherwise; and

(10) through the use of public-private partnerships, carry out other activities or duties authorized by this chapter or at the direction of the governor.

Sec. 2267.072. GENERAL POWERS. The agency may:

(1) through the use of public-private partnerships, acquire, hold, lease, license, sell, encumber, mortgage, charge, dispose of, or otherwise take action regarding land;

(2) through the use of public-private partnerships, plan, procure, implement, undertake, finance, deliver, operate, manage, maintain, rehabilitate, or otherwise take action regarding projects, including infrastructure projects;

(3) enter into and amend an agreement with a governmental entity;

(4) raise revenues through access fees, usage fees, tolls, license fees, franchise fees, right-of-way charges, or the lease or sale of commercial rights with respect to infrastructure and other similar charges, in each case imposed through the use of public-private partnerships in relation to projects, including infrastructure projects or any infrastructure that is itself owned, administered, or controlled by the agency;

(5) issue revenue bonds to pay for projects;

(6) charge fees to governmental entities with whom the agency contracts or provides assistance, support, or advice in relation to projects, including infrastructure projects;

(7) perform other activities as authorized by this chapter or as incidental to or necessary for carrying out the agency's duties; and

(8) perform other activities or duties as the governor may direct.

Sec. 2267.073. UNDERTAKING OR EVALUATING PROJECTS. The agency, in undertaking or evaluating a project through the use of public-private partnerships on behalf of a governmental entity, shall ensure that the project:

(1) provides optimal value for financial, social, or economic benefits to this state; and

(2) enhances the economic and social well-being of this state.

Sec. 2267.074. FINANCIAL REPORT. The agency shall, not later than the 180th day after the end of the state fiscal year, submit to the governor a report, in the form required by the governor, on the operations of the agency during that fiscal year.

Sec. 2267.075. BONDS. The agency and the Texas Public Finance Authority shall enter into a memorandum of understanding that allocates the responsibility for issuing and selling bonds to finance the acquisition or construction of buildings for which the agency and the Texas Public Finance Authority, under Section 1232.102, each has authority.

[Sections 2267.076-2267.100 reserved for expansion]

SUBCHAPTER D. ARBITRATION

Sec. 2267.101. APPEAL. (a) A person who disputes liability for a fee, usage fee, toll, license fee, franchise fee, right-of-way charge, or other similar charge imposed in relation to a project, including infrastructure that is itself owned, administered, or controlled by the agency, may appeal that liability to an arbitrator in accordance with the appeal procedure.

(b) The board by rule shall prescribe the appeal procedure.

Sec. 2267.102. ORDERS. On an appeal under this subchapter, the arbitrator may make any order the arbitrator considers appropriate, including:

(1) an order that the person who appealed pay none, some, or all of the fee or charge; and

(2) an order that the person be repaid some or all of the fee or charge.

SECTION 2. As soon as possible after the effective date of this Act, the governor shall make the appointments required by Chapter 2267, Government Code, as added by this Act.

SECTION 3. This Act takes effect September 1, 2009.