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A BILL TO BE ENTITLED
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AN ACT
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relating to the purchasing and contracting authority of certain |
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governmental entities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 262.011, Local Government Code, is |
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amended by amending Subsections (f), (g), (k), (m), and (o) and |
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adding Subsection (q) to read as follows: |
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(f) A purchase made by the county purchasing agent shall be |
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paid for by an electronic transfer, check, or [a] warrant drawn by |
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the county auditor on funds in the county treasury in the manner |
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provided by law. The county auditor may not draw and the county |
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treasurer may not honor an electronic transfer, check, or [a] |
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warrant for a purchase unless the purchase is made by the county |
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purchasing agent or on competitive bid as provided by law. |
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(g) The county purchasing agent may cooperate with the |
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purchasing agent of a municipality in the county to purchase any |
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item in volume as may be necessary. The county treasurer shall |
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honor an electronic transfer, check, or [a] warrant drawn by the |
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county auditor to reimburse the municipality's purchasing agent |
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making the purchase for the county. |
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(k) The board that appoints the county purchasing agent |
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shall set the salary of the agent in an amount not less than $5,000 a |
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year, payable in equal monthly installments or by any other |
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distribution at the option of the county. The salary shall be paid |
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by an electronic transfer, check, or warrant [warrants] drawn on |
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funds in the county treasury. |
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(m) A person, including an officer, agent, or employee of a |
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county or of a subdivision or department of a county, commits an |
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offense if the person violates this section. An offense under this |
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subsection is a misdemeanor punishable by a fine of not less than |
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$10 or more than $100[, by confinement in the county jail for not
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less than 30 days or more than one year, or by both the fine and
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confinement]. Each act in violation of this section is a separate |
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offense. |
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(o) The county purchasing agent shall adopt the rules and |
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procedures necessary to implement the agent's duties under this |
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section subject to approval by the commissioners court. |
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Notwithstanding Subsection (f) or other law, rules and procedures |
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adopted under this subsection may include rules and procedures for |
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persons to use county purchasing cards to pay for county purchases |
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under the direction and supervision of the county purchasing agent. |
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Procedures for use of purchasing cards may not avoid the |
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competitive bidding requirements of this chapter or other |
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requirements of county financial law. |
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(q) An electronic transfer under this chapter must provide |
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the same level of internal controls and statutory authorizations as |
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required for a check or warrant. |
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SECTION 2. Sections 262.0115(d) and (e), Local Government |
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Code, are amended to read as follows: |
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(d) Under the supervision of the commissioners court, the |
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purchasing agent shall carry out the functions prescribed by law |
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for a purchasing agent under Section 262.011 and for any |
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administrative function of the county auditor in regard to county |
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purchases and contracts and shall administer the procedures |
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prescribed by law for notice and public bidding for county |
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purchases and contracts. |
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(e) A county that has established the position of county |
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purchasing agent under this section may abolish the position at any |
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time. On the abolition of the position, the county auditor shall |
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assume the functions previously performed by the purchasing agent |
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regarding the notice for and opening of competitive bids or |
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proposals under this chapter and Chapter 271. |
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SECTION 3. Section 262.022, Local Government Code, is |
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amended by amending Subdivisions (5) and (6) and adding |
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Subdivisions (5-a) and (5-b) to read as follows: |
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(5) "Item" means any service, equipment, good, or |
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other tangible or intangible personal property, including |
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insurance and high technology items. The term does not include |
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professional services as defined by Section 2254.002, Government |
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Code. |
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(5-a) "Lowest and best" means a bid or offer providing |
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the best value considering associated direct and indirect costs, |
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including transport, maintenance, reliability, life cycle, |
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warranties, and customer service after a sale. |
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(5-b) "Normal purchasing practice" means: |
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(A) an accepted custom, practice, or standard for |
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government procurement in the state; or |
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(B) a practice recognized by a national |
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purchasing association regarding the purchase of a particular good |
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or service. |
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(6) "Purchase" means any kind of acquisition, |
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including by a lease or revenue contract[, of an item]. |
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SECTION 4. Section 262.0225, Local Government Code, is |
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amended by adding Subsection (d) to read as follows: |
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(d) A county that complies in good faith with the |
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competitive bidding requirements of this chapter and receives no |
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responsive bids for an item may procure the item under Section |
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262.0245. |
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SECTION 5. Section 262.0245, Local Government Code, is |
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amended to read as follows: |
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Sec. 262.0245. COMPETITIVE PROCUREMENT PROCEDURES ADOPTED |
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BY COUNTY PURCHASING AGENTS OR COMMISSIONERS COURT. A county |
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purchasing agent or, in a county without a purchasing agent, the |
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commissioners court shall adopt procedures that provide for |
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competitive procurement, to the extent practicable under the |
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circumstances, for the county purchase of an item that is not |
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subject to competitive procurement or for which the county receives |
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no responsive bid. |
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SECTION 6. Section 262.025, Local Government Code, is |
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amended by amending Subsection (a) and adding Subsection (a-1) to |
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read as follows: |
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(a) A notice of a proposed purchase must be published at |
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least once a week for two consecutive weeks in a newspaper of |
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general circulation in the county, with the first day of |
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publication occurring at least 14 days before the [14th day before
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the] date of the bid opening. If there is no newspaper of general |
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circulation in the county, the notice must be posted in a prominent |
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place in the courthouse for 14 days before the date of the bid |
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opening. Notice published in a newspaper must include: |
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(1) a general statement of the proposed purchase; |
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(2) the name and telephone number of the purchasing |
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agent; and |
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(3) the county website address, if any. |
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(a-1) Subsection (a) does not require more than two notices |
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in one newspaper or limit the county from providing additional |
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notice for longer periods or in more locations. |
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SECTION 7. Section 262.0255, Local Government Code, is |
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amended by adding Subsection (c) to read as follows: |
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(c) A commissioners court purchasing personal property |
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under Section 271.083 of this code or Section 791.025, Government |
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Code, may negotiate with a vendor awarded a cooperative contract |
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under those sections an agreement for the vendor to purchase or |
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accept as trade used equipment owned by the county. |
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SECTION 8. Section 262.0256, Local Government Code, as |
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amended by Chapters 660 (H.B. 2242) and 725 (H.B. 3089), Acts of the |
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78th Legislature, Regular Session, 2003, is reenacted and amended |
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to read as follows: |
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Sec. 262.0256. PRE-BID CONFERENCE FOR CERTAIN COUNTIES OR A |
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DISTRICT GOVERNED BY THOSE COUNTIES. (a) [This section applies
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only to a county with a population of 2.8 million or more.
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[(b)] The commissioners court of the county or the governing |
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body of a district or authority created under Section 59, Article |
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XVI, Texas Constitution, if the governing body is the commissioners |
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court of the county in which the district is located, may require a |
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principal, officer, or employee of each prospective bidder to |
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attend a mandatory pre-bid conference conducted for the purpose of |
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discussing contract requirements and answering questions of |
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prospective bidders. |
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(b) [(c)] After a conference is conducted under Subsection |
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(a) [(b)], any additional required notice for the proposed purchase |
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may be sent by certified mail, return receipt requested, only to |
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prospective bidders who attended the conference. Notice under this |
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subsection is not subject to the requirements of Section 262.025. |
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SECTION 9. Section 262.026(b), Local Government Code, is |
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amended to read as follows: |
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(b) Opened bids shall be kept on file and available for |
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inspection by anyone desiring to see them until the first |
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anniversary of the date of opening. Opened bids are subject to |
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disclosure under Chapter 552, Government Code. |
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SECTION 10. Section 262.027, Local Government Code, is |
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amended by amending Subsection (c) and adding Subsections (g) and |
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(h) to read as follows: |
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(c) A contract may not be awarded to a bidder who is not the |
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lowest dollar bidder meeting specifications unless, before the |
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award, each lower bidder is given: |
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(1) notice of the proposed award; and |
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(2) [is given] an opportunity to appear before the |
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commissioners court and present previously unconsidered evidence |
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concerning the lower bid as best, which may include evidence of the |
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bidder's responsibility. |
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(g) If after the award the successful bidder fails to |
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qualify for required bonds, or is otherwise unable to meet the |
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requirements of the award, the commissioners court may award the |
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contract to the next bidder in order of ranking as lowest and best |
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bid. |
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(h) Before a contract is awarded, a bidder must give written |
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notice to the officer authorized to open bids that the bidder |
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intends to protest an award of the contract under Subsection (c). |
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This subsection does not limit the ability of a bidder to speak at a |
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public meeting of the commissioners court under rules established |
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by the court. |
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SECTION 11. Section 262.0271(b), Local Government Code, is |
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amended to read as follows: |
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(b) In purchasing items under this chapter through a |
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competitive bidding process, if a county receives one or more bids |
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from a bidder who provides reasonable [comparable] health insurance |
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coverage to its employees and requires a subcontractor the bidder |
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intends to use to provide reasonable [comparable] health insurance |
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coverage to the subcontractor's employees and whose bid is within |
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five percent of the lowest and best bid price received by the county |
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from a bidder who does not provide or require reasonable |
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[comparable] health insurance coverage, the commissioners court of |
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the county may give preference to the bidder who provides and |
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requires reasonable [comparable] health insurance coverage. |
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SECTION 12. Section 262.0276, Local Government Code, is |
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amended by amending Subsection (a) and adding Subsection (d) to |
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read as follows: |
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(a) By an order adopted and entered in the minutes of the |
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commissioners court and after notice is published in a newspaper of |
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general circulation in the county, the commissioners court may |
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adopt rules permitting the county to refuse to enter into a contract |
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or other transaction with a person who owes a debt [indebted] to the |
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county. |
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(d) In this section, "debt" includes delinquent taxes, |
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fines, fees, and delinquencies arising from written agreements with |
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the county. |
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SECTION 13. Section 262.0295(d), Local Government Code, is |
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amended to read as follows: |
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(d) Within 30 days after the date the unpriced proposals are |
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opened under Subsection (c), the county official shall present the |
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priced bids to the commissioners court. The award of the contract |
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shall be made to the responsible offeror whose bid is determined to |
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be the lowest and best evaluated offer resulting from negotiation. |
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All proposals and bids that have been submitted shall be available |
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and open for public inspection after the contract is awarded. |
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SECTION 14. Section 262.030(b), Local Government Code, is |
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amended to read as follows: |
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(b) Quotations must be solicited through a request for |
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proposals. Public notice for the request for proposals must be made |
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in the same manner as provided in the competitive bidding |
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procedure. The request for proposals must specify the relative |
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importance of price and other evaluation factors. The award of the |
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contract shall be made to the responsible offeror whose proposal is |
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determined to be the lowest and best evaluated offer resulting from |
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negotiation, taking into consideration the relative importance of |
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price and other evaluation factors set forth in the request for |
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proposals. |
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SECTION 15. Section 262.034(c), Local Government Code, is |
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amended to read as follows: |
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(c) A county officer or employee commits an offense if the |
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officer or employee intentionally or knowingly violates this |
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subchapter, other than by conduct described by Subsection (a) [or
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(b)]. An offense under this subsection is a Class C misdemeanor. |
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SECTION 16. Section 262.036(a), Local Government Code, is |
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amended to read as follows: |
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(a) Notwithstanding any other provision in this chapter, a |
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county [with a population of 800,000 or more] may select an |
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appropriately licensed insurance agent as the sole broker of record |
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to obtain proposals and coverages for insurance that provides |
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necessary coverage and adequate limits of coverage in all areas of |
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risk, including public official liability, property, casualty, |
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workers' compensation, and specific and aggregate stop-loss |
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coverage for self-funded health care. |
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SECTION 17. Subchapter C, Chapter 262, Local Government |
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Code, is amended by adding Section 262.037 to read as follows: |
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Sec. 262.037. QUALIFICATION. An officer authorized to make |
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a purchase on behalf of a county or a county department or office |
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may not make any purchase until providing to the county judge a |
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signed acknowledgment that the officer has read and understands |
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this chapter. This section does not apply in a county that has |
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appointed a purchasing agent under Subchapter B. |
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SECTION 18. Section 271.029(c), Local Government Code, is |
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amended to read as follows: |
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(c) An officer or employee of a governmental entity commits |
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an offense if the officer or employee intentionally or knowingly |
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violates this subchapter, other than by conduct described by |
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Subsection (a) [or (b)]. An offense under this subsection is a |
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Class C misdemeanor. |
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SECTION 19. Section 271.042, Local Government Code, is |
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amended to read as follows: |
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Sec. 271.042. PURPOSE; CONFLICT. (a) It is the purpose of |
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this subchapter to provide: |
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(1) a procedure for certain financing that is an |
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alternative to the more cumbersome procedure under Chapter 252 or |
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262; and |
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(2) a new class of securities to be issued and |
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delivered within the financial capabilities of an issuer on |
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compliance with the procedures prescribed by this subchapter. |
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(b) If there is a conflict between a provision of this |
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subchapter and a provision of Chapter 252 or 262, an issuer may use |
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either provision, and it is not necessary for the governing body to |
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designate the law under which action is being taken. |
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SECTION 20. Section 271.064(c), Local Government Code, is |
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amended to read as follows: |
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(c) An officer or employee of an issuer commits an offense |
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if the officer or employee intentionally or knowingly violates this |
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subchapter, other than by conduct described by Subsection (a) [or
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(b)]. An offense under this subsection is a Class C misdemeanor. |
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SECTION 21. Sections 271.181(2) and (6), Local Government |
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Code, are amended to read as follows: |
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(2) "Civil works project" means: |
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(A) roads, streets, bridges, utilities, water |
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supply projects, water plants, wastewater plants, water |
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distribution and wastewater conveyance facilities, desalination |
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projects, wharves, docks, airport runways and taxiways, storm |
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drainage and flood control projects, or transit projects; |
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(B) types of projects or facilities related to |
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those described by Paragraph (A) and associated with civil |
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engineering construction; and |
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(C) buildings or structures that are incidental |
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to projects or facilities that are described by Paragraphs (A) and |
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(B) and that are primarily civil engineering construction projects. |
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(6) "Local governmental entity" means a municipality, |
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a county, a river authority, a defense base development authority |
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established under Chapter 379B, a board of trustees under Chapter |
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54, Transportation Code, a municipally owned water utility with a |
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separate governing board appointed by the governing body of a |
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municipality, or any other special district or authority authorized |
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by law to enter into a public works contract for a civil works |
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project. The term does not include a regional tollway authority |
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created under Chapter 366, Transportation Code, a regional mobility |
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authority created under Chapter 370, Transportation Code, or a |
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water district or authority created under Section 52, Article III, |
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or Section 59, Article XVI, Texas Constitution, with a population |
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of less than 50,000. |
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SECTION 22. Section 271.182, Local Government Code, as |
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amended by Chapters 135 (S.B. 1047) and 725 (S.B. 229), Acts of the |
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81st Legislature, Regular Session, 2009, is reenacted and amended |
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to read as follows: |
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Sec. 271.182. APPLICABILITY. (a) This subchapter applies |
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to: |
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(1) a local governmental entity with a population of |
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more than 100,000 within its geographic boundaries or service area; |
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(2) a board of trustees under Chapter 54, |
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Transportation Code; and[.] |
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(3) [(c) This subchapter applies to] a municipally |
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owned combined electric, water, and wastewater utility situated in |
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an economically distressed area and located within 30 miles of the |
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Lower Texas Gulf Coast. |
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(b) For purposes of Subsection (a)(3) [this subchapter], |
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"combined" means that the utilities are managed and controlled by |
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one board whose members are appointed by the governing body of the |
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municipality and that the financing of capital improvements is |
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secured from the revenue [revenues] of all three utilities. |
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SECTION 23. Sections 271.186(a) and (b), Local Government |
|
Code, are amended to read as follows: |
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(a) During the first four years that this subchapter applies |
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to a local governmental entity under Section 271.182: |
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(1) a local governmental entity with a population of |
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500,000 or more may, under this subchapter, enter into contracts |
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for not more than three projects in any fiscal year; |
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(2) a local governmental entity with a population of |
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100,000 or more but less than 500,000 and a board of trustees under |
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Chapter 54, Transportation Code, may, under this subchapter, enter |
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into contracts for not more than two projects in any fiscal year; |
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and |
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(3) a municipally owned water utility with a separate |
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governing board appointed by the governing body of a municipality |
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with a population of 500,000 or more may: |
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(A) independently enter into a contract for not |
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more than one civil works project in any fiscal year; and |
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(B) enter into contracts for additional civil |
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works projects in any fiscal year, but not more than the number of |
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civil works projects prescribed by the limit in Subdivision (1) for |
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the municipality, provided that: |
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(i) the additional contracts for the civil |
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works projects entered into by the utility under this paragraph are |
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allocated to the number of contracts the municipality that appoints |
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the utility's governing board may enter under Subdivision (1); and |
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(ii) the governing body of the municipality |
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must approve the contracts. |
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(b) After the period described by Subsection (a): |
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(1) a local governmental entity with a population of |
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500,000 or more may, under this subchapter, enter into contracts |
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for not more than six projects in any fiscal year; |
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(2) a local governmental entity with a population of |
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100,000 or more but less than 500,000 and a board of trustees under |
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Chapter 54, Transportation Code, may, under this subchapter, enter |
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into contracts for not more than four projects in any fiscal year; |
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and |
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(3) a municipally owned water utility with a separate |
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governing board appointed by the governing body of a municipality |
|
with a population of 500,000 or more may: |
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(A) independently enter into contracts for not |
|
more than two civil works projects in any fiscal year; and |
|
(B) enter into contracts for additional civil |
|
works projects in any fiscal year, but not more than the number of |
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civil works projects prescribed by the limit in Subdivision (1) for |
|
the municipality, provided that: |
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(i) the additional contracts for the civil |
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works projects entered into by the utility under this paragraph are |
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allocated to the number of contracts the municipality that appoints |
|
the utility's governing board may enter under Subdivision (1); and |
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(ii) the governing body of the municipality |
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must approve the contracts. |
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SECTION 24. Sections 262.0271(a), 262.0295(a)(3), |
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262.034(b), 262.035, 271.029(b), 271.030, 271.064(b), and 271.065, |
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Local Government Code, are repealed. |
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SECTION 25. The changes in law made by this Act apply only |
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to purchases made or a bid deadline that occurs on or after |
|
September 1, 2011. A purchase made or a bid deadline that occurs |
|
before September 1, 2011, is governed by the law as it existed |
|
immediately before the effective date of this Act, and that law is |
|
continued in effect for that purpose. |
|
SECTION 26. (a) The changes in law made by this Act to |
|
Sections 262.034, 271.029, and 271.064, Local Government Code, |
|
apply only to an offense committed on or after the effective date of |
|
this Act. For purposes of this section, an offense is committed |
|
before the effective date of this Act if any element of the offense |
|
occurs before that date. |
|
(b) An offense committed before the effective date of this |
|
Act is covered by the law in effect immediately before the effective |
|
date of this Act, and the former law is continued in effect for that |
|
purpose. |
|
SECTION 27. To the extent of any conflict, this Act prevails |
|
over another Act of the 82nd Legislature, Regular Session, 2011, |
|
relating to nonsubstantive additions to and corrections in enacted |
|
codes. |
|
SECTION 28. This Act takes effect September 1, 2011. |
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* * * * * |