By: Nichols, Shapiro, Watson  S.B. No. 19
         (In the Senate - Filed February 16, 2011; February 17, 2011,
  read first time and referred to Committee on Transportation and
  Homeland Security; March 21, 2011, reported adversely, with
  favorable Committee Substitute by the following vote:  Yeas 7, Nays
  0; March 21, 2011, sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 19 By:  Williams
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the development, financing, construction, and
  operation of certain toll projects.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle G, Title 6, Transportation Code, is
  amended by adding Chapter 373 to read as follows:
  CHAPTER 373. TOLL PROJECTS LOCATED IN TERRITORY OF LOCAL TOLL
  PROJECT ENTITY
  SUBCHAPTER A. GENERAL PROVISIONS
         Sec. 373.001.  DEFINITIONS. In this chapter:
               (1)  "Local toll project entity" means an entity, other
  than the department, that is authorized by law to acquire, design,
  construct, finance, operate, and maintain a toll project,
  including:
                     (A)  a regional tollway authority under Chapter
  366;
                     (B)  a regional mobility authority under Chapter
  370; or
                     (C)  a county acting under Chapter 284.
               (2)  "Toll project" means a toll project described by
  Section 201.001(b), regardless of whether the toll project is:
                     (A)  a part of the state highway system; or
                     (B)  subject to the jurisdiction of the
  department.
         Sec. 373.002.  APPLICABILITY.  This chapter does not apply
  to:
               (1)  a toll project described in Section 228.011;
               (2)  Phase 4 extension of the Dallas North Tollway in
  Collin and Denton Counties from U.S. 380 to the Grayson County line
  to be developed by North Texas Tollway Authority; or
               (3)  the North Tarrant Express project in Tarrant and
  Dallas Counties (Interstate Highway 820 and State Highway 121/State
  Highway 183 from Interstate Highway 35 West to State Highway 161,
  Interstate Highway 820 East from State Highway 121/State Highway
  183 to Randol Mill Road, and Interstate Highway 35 West from
  Interstate Highway 30 to State Highway 170).
         Sec. 373.003.  PROJECT OWNED IN PERPETUITY. Unless a toll
  project is leased, sold, conveyed, or otherwise transferred to
  another governmental entity in accordance with applicable law,
  including Sections 228.151, 284.011, 366.036, 366.172, and
  370.171, a toll project procured by the department or a local toll
  project entity determined by the process under Subchapter B is
  owned by that entity in perpetuity.
         Sec. 373.004.  GOVERNMENTAL AND NOT COMMERCIAL
  TRANSACTIONS.  A transaction involving a local toll project entity
  under Section 228.011 or this chapter is not primarily commercial
  in nature but is an inherently governmental transaction whose
  purpose is to determine governmental jurisdiction, ownership,
  control, or other responsibilities with respect to a project.
         Sec. 373.005.  LEGAL CHALLENGES CONCLUDED. For the purposes
  of this chapter, all legal challenges to development of a toll
  project are considered concluded when a judgment or order of a court
  with jurisdiction over the challenge becomes final and
  unappealable.
         Sec. 373.006.  TOLL PROJECT AGREEMENT. (a)  Before
  initiating the primacy determination process under Subchapter B for
  a toll project, the department and the local toll project entity may
  enter into a toll project agreement that:
               (1)  identifies the responsibilities of each party for
  project-related activities, which may include the performance of
  environmental work and traffic and revenue studies; and
               (2)  includes an agreement that the primacy
  determination process under Subchapter B may be initiated earlier
  than as provided by Section 373.051.
         (b)  A toll project agreement may provide an alternative to
  the primacy determination process under Subchapter B for toll
  project development, including an alternative timeline for the
  development of toll project phases.
         Sec. 373.007.  EXERCISE OF PRIMACY FOR TOLL PROJECT PHASES.
  Unless otherwise provided by a toll project agreement under Section
  373.006 or other agreement, an exercise of primacy under Subchapter
  B over a phase of a toll project is an exercise of primacy over the
  entire project, with additional phases to be developed as the
  entity determines the phases financially feasible.
  [Sections 373.008-373.050 reserved for expansion]
  SUBCHAPTER B. PROCESS TO DETERMINE ENTITY TO DEVELOP, FINANCE,
  CONSTRUCT, AND OPERATE TOLL PROJECT
         Sec. 373.051.  INITIATION OF PROCESS. (a)  At any time
  after a metropolitan planning organization approves the inclusion
  in the metropolitan transportation improvement program of a toll
  project to be located in the territory of a local toll project
  entity, the local toll project entity may notify the department in
  writing of the local toll project entity's intent to initiate the
  process described in this subchapter.
         (b)  The department may notify the local toll project entity
  in writing of the department's intent to initiate the process
  described in this subchapter at any time after a metropolitan
  planning organization has approved the inclusion in the
  metropolitan transportation improvement program of a toll project
  to be located in the territory of a local toll project entity and:
               (1)  the department has issued a finding of no
  significant impact for the project, or for a project for which an
  environmental impact statement is prepared, the department has
  approved the final environmental impact statement for the project;
  or
               (2)  for a project subject to environmental review
  requirements under federal law, the United States Department of
  Transportation Federal Highway Administration has issued a finding
  of no significant impact, or for a project for which an
  environmental impact statement is prepared, the department has
  submitted a final environmental impact statement to the Federal
  Highway Administration for approval.
         Sec. 373.052.  LOCAL TOLL PROJECT ENTITY OPTION.  (a)  The
  local toll project entity has the first option to develop, finance,
  construct, and operate a toll project.  The local toll project
  entity must exercise its option not later than the later of:
               (1)  the 180th day after the date on which notification
  under Section 373.051(a) is provided or notification under Section
  373.051(b) is received; or
               (2)  if the United States Department of Transportation
  Federal Highway Administration issues a record of decision for an
  environmental impact statement submitted by the department under
  Section 373.051(b)(2) more than 60 days after the date the
  department provides notice under Section 373.051(b), the 120th day
  after the date the record of decision is issued.
         (b)  The option period under Subsection (a) may be extended
  an additional 90 days by agreement of the department and the local
  toll project entity.
         (c)  If the local toll project entity exercises the option
  under Subsection (a), the local toll project entity after
  exercising the option must:
               (1)  within 180 days after the later of the date of
  exercising its option or the date on which all environmental
  approvals necessary for the development of the toll project are
  secured and all legal challenges to development are concluded,
  advertise for the initial procurement of required services,
  including, at a minimum, design services, for the project; and
               (2)  within two years after the later of the date of
  exercising its option or the date on which all environmental
  approvals necessary for the development are secured and all legal
  challenges to development are concluded, enter into a contract for
  the construction of the toll project.
         Sec. 373.053.  DEPARTMENT OPTION.  (a)  If the local toll
  project entity fails or declines to exercise the option to develop,
  finance, construct, and operate a toll project under Section
  373.052(a), or fails or declines to advertise for procurement or
  enter into a construction contract as required by Section
  373.052(c), the department has the option to develop, finance,
  construct, and operate the toll project. The department has not
  more than 60 days after the date the local toll project entity fails
  or declines to exercise its option under Section 373.052(a) or
  fails or declines to advertise for procurement or enter into a
  construction contract as required by Section 373.052(c) to exercise
  its option.
         (b)  If the department exercises its option under Subsection
  (a), the department after exercising the option must:
               (1)  within 180 days after the later of the date of
  exercising its option or the date on which all environmental
  approvals necessary for the development of the toll project are
  secured and all legal challenges to development are concluded,
  advertise for the initial procurement of required services,
  including, at a minimum, design services, for the project; and
               (2)  within two years after the later of the date of
  exercising its option or the date on which all environmental
  approvals necessary for the development are secured and all legal
  challenges to development are concluded, enter into a contract for
  the construction of the toll project.
         Sec. 373.054.  REINITIATION OF PROCESS. If the process
  described by Sections 373.051, 373.052, and 373.053 concludes
  without the local toll project entity or the department entering
  into a contract for the construction of the toll project, either
  entity may reinitiate the process under this subchapter by
  submitting notice to the other entity in the manner provided by
  Section 373.051.
         Sec. 373.055.  WAIVER OF OPTION; ALTERATION OF STEPS OR TIME
  LIMITS.  (a)  The department or the local toll project entity may at
  any time before or during the process established by this
  subchapter waive or decline to exercise any option, step, or other
  right under this subchapter that solely benefits that entity by
  notifying the other entity of its decision in writing.
         (b)  The department and the local toll project entity may, by
  written agreement, alter any other step or time limit under this
  subchapter, including the timing of or conditions for initiating
  the process under Section 373.051.
         Sec. 373.056.  SHARING OF PROJECT-RELATED INFORMATION.
  (a)  In this section, "project-related information" includes 
  traffic estimates, revenue estimates, plans, specifications,
  surveys, appraisals, environmental studies, and other work product
  developed for a toll project.
         (b)  On initiation of the process under Section 373.051, the
  department shall make its project-related information available to
  the local toll project entity.
         (c)  If the local toll project entity fails or declines to
  exercise an option or fails or declines to advertise for
  procurement or enter into a construction contract under Section
  373.052, the local toll project entity shall make its
  project-related information available to the department.
         (d)  On entering into a contract for the construction of the
  toll project, the department or the local toll project entity, as
  applicable, shall reimburse the other entity for shared
  project-related information that it uses.
         (e)  Use by an entity of project-related information
  received by the entity under this section is at the sole risk of the
  receiving entity and does not confer liability on the entity that
  furnished the information.
         Sec. 373.057.  PROGRESS REPORTS. After the department or
  the local toll project entity exercises an option under this
  subchapter, the department or the local toll project entity, as
  applicable, shall issue a semiannual report on the progress of the
  development of the toll project. The report shall be made available
  to the public.
         Sec. 373.058.  ENVIRONMENTAL REVIEW. (a)  The department or
  the local toll project entity may begin any environmental review
  process that may be required for a proposed toll project before
  initiating the process under this subchapter.
         (b)  If the local toll project entity initiates the process
  for development of a toll project under Section 373.051(a) and has
  not begun the environmental review of the project, the local toll
  project entity shall begin the environmental review within 180 days
  of exercising the option.
         (c)  The department or the local toll project entity may
  begin development of a toll project before the project receives
  environmental clearance but may not begin construction of the
  project before the project receives that clearance.
         Sec. 373.059.  PROJECT LOCATED IN TERRITORY OF MORE THAN ONE
  LOCAL TOLL PROJECT ENTITY.  If a toll project is in the territory of
  more than one local toll project entity, only the local toll project
  entity that first constructed toll projects may exercise the
  options and other rights under this subchapter.  The local toll
  project entity exercising an option or other right under this
  section:
               (1)  may do so only with respect to the portion of the
  project located in the territory of that local toll project entity; and
               (2)  shall do so on behalf of another local toll project
  entity in whose territory the project will be located if requested
  by the other entity after the original entity declines to exercise
  its option.
  [Sections 373.060-373.100 reserved for expansion]
  SUBCHAPTER C. USE OF RIGHT-OF-WAY BY LOCAL TOLL PROJECT ENTITY
         Sec. 373.101.  USE OF STATE HIGHWAY RIGHT-OF-WAY.  
  (a)  Consistent with federal law, the commission and the department
  shall assist a local toll project entity in the development,
  financing, construction, and operation of a toll project for which
  the local toll project entity has exercised its option to develop,
  finance, construct, and operate the project under Subchapter B by
  allowing the local toll project entity to use state highway
  right-of-way and to access the state highway system as necessary to
  construct and operate the toll project.
         (b)  Notwithstanding any other law, a local toll project
  entity and the commission may agree to remove the toll project from
  the state highway system and transfer ownership to the local toll
  project entity.
         Sec. 373.102.  REIMBURSEMENT FOR USE OF RIGHT-OF-WAY.  
  (a)  The commission or the department may not require a local toll
  project entity to pay for the use of state highway right-of-way or
  access, except:
               (1)  to reimburse the department for actual costs
  incurred by the department that are owed to a third party, including
  the federal government, as a result of that use by the local toll
  project entity; and
               (2)  as required under Subsection (b).
         (b)  A local toll project entity shall reimburse the
  department for the department's actual costs to acquire a
  right-of-way transferred to the local toll project entity.  If the
  department is not able to determine that amount, the reimbursement
  must be in an amount equal to the average actual historical
  right-of-way acquisition values for comparable right-of-way
  located in proximity to the project on the date of original
  acquisition of the right-of-way.
         (c)  In lieu of reimbursement, and at the local toll project
  entity's sole option, the local toll project entity may agree to pay
  to the department a portion of the revenues of the project, in the
  amount and for the period of time agreed to by the local toll
  project entity and the department.
         (d)  Money received by the department under this section
  shall be deposited in the state highway fund and, except for
  reimbursement for costs owed to a third party, used to fund
  additional projects in the department district in which the toll
  project is located.
         (e)  The department shall reimburse a local toll project
  entity for any cost of right-of-way acquired by the entity for a
  toll project that will be developed, financed, constructed, and
  operated by the department.
         (f)  The commission or department or the local toll project
  entity may waive the requirement of reimbursement under this
  section.
         Sec. 373.103.  AGREEMENT FOR USE OF RIGHT-OF-WAY.  A local
  toll project entity and the department shall enter into an
  agreement for any toll project for which the entity has exercised
  its option to develop, finance, construct, and operate the project
  under Subchapter B and for which the entity intends to use state
  highway right-of-way.  The agreement must contain provisions
  necessary to:
               (1)  ensure that the local toll project entity's
  construction, maintenance, and operation of the project complies
  with the requirements of applicable state and federal law; and
               (2)  protect the interests of the commission and the
  department in the use of right-of-way for operations of the
  department, including public safety and congestion mitigation on
  the right-of-way.
         Sec. 373.104.  LIABILITY FOR DAMAGES.  (a)  Notwithstanding
  any other law, the commission and the department are not liable for
  any damages that result from a local toll project entity's use of
  state highway right-of-way or access to the state highway system
  under this subchapter, regardless of the legal theory, statute, or
  cause of action under which liability is asserted.
         (b)  An agreement entered into by a local toll project entity
  and the department in connection with a toll project that is
  developed, financed, constructed, or operated by the local toll
  project entity and that is on or directly connected to a highway in
  the state highway system does not create a joint enterprise for
  liability purposes.
         Sec. 373.105.  COMPLIANCE WITH FEDERAL LAW.  Notwithstanding
  an action taken by a local toll project entity under this
  subchapter, the commission or department may take any action that
  in its reasonable judgment is necessary to comply with any federal
  requirement to enable this state to receive federal-aid highway
  funds.
         SECTION 2.  Section 228.006, Transportation Code, is amended
  by amending Subsection (a) and adding Subsection (a-1) to read as
  follows:
         (a)  The commission shall authorize the use of surplus
  revenue of a toll project or system to pay the costs of a
  transportation project, highway project, or air quality project
  within a region [department district] in which any part of the toll
  project is located.
         (a-1)  The department shall allocate the distribution of the
  surplus toll revenue to department districts in the region that are
  located in the boundaries of the metropolitan planning organization
  in which the toll project or system producing the surplus revenue is
  located based on the percentage of toll revenue from users in each
  department district of the project or system. To assist the
  department in determining the allocation, each entity responsible
  for collecting tolls for a project or system shall calculate on an
  annual basis the percentage of toll revenue from users of the
  project or system in each department district based on the number of
  recorded electronic toll collections.
         SECTION 3.  Subsection (a), Section 228.011, Transportation
  Code, is amended to read as follows:
         (a)  This section applies only to a county acting under
  Chapter 284 for:
               (1)  the widening, expansion, reconstruction, and
  continued operation of existing toll projects of the county; or
               (2)  [and] the development, construction, and
  operation of all or a portion of any of the following toll projects,
  a component of that project, or the functional equivalent of that
  project:
                     (A) [(1)]  Beltway 8 Tollway East, between US 59
  North and US 90 East;
                     (B) [(2)]  Hardy Downtown Connector, consisting
  of the proposed direct connection from the Hardy Toll Road southern
  terminus at Loop 610 to downtown Houston;
                     (C) [(3)]  State Highway 288, between US 59 and
  Grand Parkway South (State Highway 99);
                     (D) [(4)]  US 290 Toll Lanes, between IH 610 West
  and the Grand Parkway Northwest (State Highway 99);
                     (E) [(5)]  Fairmont Parkway East, between Beltway
  8 East and Grand Parkway East (State Highway 99);
                     (F) [(6)]  South Post Oak Road Extension, between
  IH 610 South and near the intersection of Beltway 8 and Hillcroft in
  the vicinity of the Fort Bend Parkway Tollway;
                     (G) [(7)]  Westpark Toll Road Phase II, between
  Grand Parkway (State Highway 99) and FM 1463;
                     (H) [(8)]  Fort Bend Parkway, between State
  Highway 6 and the Brazos River; and
                     (I) [(9)]  Montgomery County Parkway, between
  State Highway 242 and the Grand Parkway (State Highway 99), and if
  the Grand Parkway project has not begun construction, a nontolled
  extension of the Montgomery County Parkway to allow a connection to
  Interstate Highway 45.
         SECTION 4.  Section 228.012, Transportation Code, is amended
  to read as follows:
         Sec. 228.012.  PROJECT SUBACCOUNTS. (a)  The department
  shall create a separate account in the state highway fund to hold
  payments received by the department under a comprehensive
  development agreement and[,] the surplus revenue of a toll project
  or system[, and payments received under Sections 228.0111(g)(2) and
  (i)(2)].  The department shall create subaccounts in the account
  for each project, system, or region.  Interest earned on money in a
  subaccount shall be deposited to the credit of that subaccount.
         (b)  The department shall hold money in a subaccount in trust
  for the benefit of the region in which a project or system is
  located and may assign the responsibility for allocating money in a
  subaccount to a metropolitan planning organization in which the
  region is located.  Money [Except as provided by Subsection (c),
  money] shall be allocated to projects authorized by Section
  228.0055 or Section 228.006, as applicable.
         (c)  [Money in a subaccount received from a county or the
  department under Section 228.0111 in connection with a project for
  which a county acting under Chapter 284 has the first option shall
  be allocated to transportation projects located in the county and
  the counties contiguous to that county.
         [(d)]  Not later than January 1 of each odd-numbered year,
  the department shall submit to the Legislative Budget Board, in the
  format prescribed by the Legislative Budget Board, a report on cash
  balances in the subaccounts created under this section and
  expenditures made with money in those subaccounts.
         (d) [(e)]  The commission or the department may not:
               (1)  revise the formula as provided in the department's
  unified transportation program or a successor document in a manner
  that results in a decrease of a department district's allocation
  because of the deposit of a payment into a project subaccount [or a
  commitment to undertake an additional transportation project under
  Section 228.0111]; or
               (2)  take any other action that would reduce funding
  allocated to a department district because of the deposit of a
  payment [received from the department or local toll project entity]
  into a project subaccount [or a commitment to undertake an
  additional transportation project under Section 228.0111].
         SECTION 5.  Subsection (b), Section 284.004, Transportation
  Code, is amended to read as follows:
         (b)  In addition to authority granted by other law, a county
  may use state highway right-of-way and may access state highway
  right-of-way in accordance with Sections 228.011, 373.101, and
  373.102 [228.0111].
         SECTION 6.  Subsection (d), Section 284.061, Transportation
  Code, is amended to read as follows:
         (d)  Subject to the reimbursement requirements of Section
  373.102, a [A] county has full easements and rights-of-way through,
  across, under, and over any property owned by this state that are
  necessary or convenient to construct, acquire, or efficiently
  operate a project under this chapter.
         SECTION 7.  Subsection (c), Section 366.170, Transportation
  Code, is amended to read as follows:
         (c)  An authority has full easements and rights-of-way
  through, across, under, and over any property owned by the state or
  any local governmental entity that are necessary or convenient to
  construct, acquire, or efficiently operate a turnpike project or
  system under this chapter. This subsection does not affect the
  obligation of the authority under other state law, including
  Section 373.102, to compensate or reimburse the state for the use or
  acquisition of an easement or right-of-way on property owned by or
  on behalf of the state. An authority's use of property owned by or
  on behalf of the state is subject to any covenants, conditions,
  restrictions, or limitations affecting that property.
         SECTION 8.  Subsection (c), Section 370.169, Transportation
  Code, is amended to read as follows:
         (c)  An authority has full easements and rights-of-way
  through, across, under, and over any property owned by the state or
  any local government that are necessary or convenient to construct,
  acquire, or efficiently operate a transportation project or system
  under this chapter. This subsection does not affect the obligation
  of the authority under other law, including Section 373.102, to
  compensate or reimburse this state for the use or acquisition of an
  easement or right-of-way on property owned by or on behalf of this
  state. An authority's use of property owned by or on behalf of this
  state is subject to any covenants, conditions, restrictions, or
  limitations affecting that property.
         SECTION 9.  Subchapter A, Chapter 371, Transportation Code,
  is amended by adding Section 371.003 to read as follows:
         Sec. 371.003.  VALUATION DETERMINATION.  Any determination
  of value, including best value, under applicable federal or state
  law for a comprehensive development agreement or other
  public-private partnership arrangement involving a toll project
  must take into consideration any factors the toll project entity
  determines appropriate, including factors related to:
               (1)  oversight of the toll project;
               (2)  maintenance and operations costs of the toll
  project;
               (3)  the structure and rates of tolls;
               (4)  economic development impacts of the toll project;
  and
               (5)  social and environmental benefits and impacts of
  the toll project.
         SECTION 10.  The heading to Section 371.052, Transportation
  Code, is amended to read as follows:
         Sec. 371.052.  NOTIFICATION TO LEGISLATIVE BUDGET BOARD [AND
  STATE AUDITOR].
         SECTION 11.  Section 228.0111 and Subsection (c), Section
  371.052, Transportation Code, are repealed.
         SECTION 12.  Section 228.012, Transportation Code, as
  amended by this Act, applies only to payments received by the Texas
  Department of Transportation under that section on or after the
  effective date of this Act. Payments received by the department
  under Section 228.012, Transportation Code, before the effective
  date of this Act are governed by the law in effect immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         SECTION 13.  The repeal of Section 228.0111, Transportation
  Code, by this Act does not affect any project agreement, agreement
  regarding a negotiated value, market value agreement, market
  valuation waiver agreement, memorandum of understanding regarding
  market valuation, letter agreement regarding market valuation
  analysis, advance funding agreement, or other agreement entered
  into between the Texas Department of Transportation and a local
  toll project entity, or any resolution or minute order adopted by
  the department or a local toll project entity, under that repealed
  section.  If a waiver of market valuation or waiver of first option
  to develop, finance, construct, or operate a toll project is
  withdrawn or terminated subsequent to the effective date of this
  Act, the department and the local toll project entity have the
  rights regarding the applicable project as exist under Chapter 373,
  Transportation Code, as added by this Act.
         SECTION 14.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2011.
 
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