Thursday, May 24, 2001

SENATE JOURNAL

EIGHTIETH DAY

Thursday, May 24, 2001

PROCEEDINGS

The Senate met at 10:00 a.m. pursuant to adjournment and was called to order by the President.

The roll was called and the following Senators were present: Armbrister, Barrientos, Bernsen, Bivins, Brown, Cain, Carona, Duncan, Ellis, Fraser, Gallegos, Harris, Haywood, Jackson, Lindsay, Lucio, Madla, Moncrief, Nelson, Ogden, Shapiro, Shapleigh, Sibley, Staples, Truan, Van de Putte, Wentworth, West, Whitmire, Zaffirini, Mr. President.

The President announced that a quorum of the Senate was present.

The Reverend Rick Thompson, Colonial Baptist Church, Wichita Falls, offered the invocation as follows:

Almighty and eternal God, we come before You recognizing that You are a god of history. We recognize Your involvement in the lives of so many great men and women in our state who now fill the corridors of time.

We know of Your love for creation and Your desire to share Your love with all You brought into being. It is You, O God, who has provided strength and hope for all of those who have gone before us and planted their faith in Your eternal purpose.

We come to You now seeking hope for our future. Grant us wisdom, clarity, and courage. Help us to internalize that truth that he who stands for nothing falls for anything.

Help us to live in a manner that is mindful of the hurting and oppressed. Help us to be liberators as You have liberated us. Help us to be even-handed as You are a god of justice, and help us to be creative as You are the creator.

Stir within us the power of Your presence that we might grow in our ability to live and love and serve as You have demonstrated to us how to abundantly live and to freely love and to generously serve. Amen.

On motion of Senator Truan and by unanimous consent, the reading of the Journal of the proceedings of yesterday was dispensed with and the Journal was approved.

77th Legislature — Regular Session 80th Day

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 24, 2001

The Honorable President of the Senate

Senate Chamber

Austin, Texas

Mr. President:

I am directed by the House to inform the Senate that the House has taken the following action:

THE HOUSE HAS PASSED THE FOLLOWING MEASURES:

HCR 139, Memorializing congress to provide tax credits to individuals for the purchase of private health insurance.

HCR 246, Directing the State Board of Education to consider including personal finance knowledge among the essential knowledge and skills in the required public school curriculum.

HCR 247, Memorializing congress to repeal the Government Pension Offset.

SB 8, Relating to discrimination in health care rates and reimbursement; providing administrative and civil penalties.

(Amended)

SB 19, Relating to the improvement of children's health through daily physical activity in public schools and a coordinated approach by public schools to prevent obesity and certain diseases.

(Amended)

SB 51, Relating to the provision of Medicaid to certain persons making the transition from foster care to independent living.

(Amended)

SB 63, Relating to a franchise tax credit for wages paid to persons with certain disabilities.

(Amended)

SB 139, Relating to the prosecution of and punishment for the offense of harassment.

(Amended)

SB 161, Relating to authorizing transitional support services to former recipients of Temporary Assistance for Needy Families (TANF) benefits.

(Committee Substitute)

SB 173, Relating to the refund of cash to a surety in a criminal case.

(Amended)

SB 192, Relating to inclusion of certain ports of entry in state highway planning and funding.

(Committee Substitute)

Thursday, May 24, 2001

SENATE JOURNAL

SB 195, Relating to the Border Trade Advisory Committee.

(Committee Substitute)

SB 217, Relating to the application and enforcement of traffic regulations in certain private subdivisions.

(Amended)

SB 224, Relating to requiring the Texas Department of Transportation to meet with transportation officials of bordering states to discuss transportation and infrastructure issues.

(Committee Substitute)

SB 280, Relating to requiring the Texas Department of Health to prepare a request for information for storing and distributing vaccines.

(Amended)

SB 309, Relating to the application of the sunset review process to certain governmental entities.

(Committee Substitute/Amended)

SB 333, Relating to the state child health plan for certain low-income children.

(Amended)

SB 372, Relating to the reestablishment of service credit in a public retirement system participating in the proportionate retirement program.

(Amended)

SB 416, Relating to the authority of the Texas Department of Transportation in connection with the mitigation of an adverse environmental impact resulting from a state highway improvement project.

(Amended)

SB 467, Relating to dual language immersion programs in certain public schools.

(Amended)

SB 515, Relating to the establishment of an adult fatality review team and to the reporting and investigation of certain adult deaths; providing a penalty.

(Amended)

SB 527, Relating to taking regulatory action against assisted living facilities, including the imposition of administrative penalties.

(Committee Substitute/Amended)

SB 533, Relating to the regulation of certain occupations by the State Board of Dental Examiners.

(Amended)

SB 544, Relating to requiring health maintenance organizations to provide periodic health evaluations.

(Amended)

SB 581, Relating to document preparation costs related to certain mental health proceedings.

(Committee Substitute/Amended)

77th Legislature — Regular Session 80th Day

SB 638, Relating to the taking of a specimen from a person arrested for, charged with, or convicted of certain offenses for the purposes of DNA analysis; providing penalties.

(Amended)

SB 688, Relating to requirements for public notice and hearing on applications for air quality multiple plant permits.

(Amended)

SB 712, Relating to the privacy of certain information provided by consumers to insurers and other related entities; providing a civil penalty.

(Committee Substitute/Amended)

SB 736, Relating to the operation of the self-directed semi-independent agency pilot project; making an appropriation.

(Committee Substitute)

SB 749, Relating to the authority of the Texas Natural Resource Conservation Commission to participate in environmental projects in Mexico.

(Amended)

SB 791, Relating to the imposition of administrative, civil, and criminal penalties and the authorization of emergency license suspension for certain licensing programs regulated by the Texas Department of Health.

(Amended)

SB 886, Relating to motor vehicle size and weight limitations; providing penalties.

(Amended)

SB 893, Relating to evaluating drug purchasing cooperatives.

(Amended)

SB 896, Relating to funds and taxes for county roads.

(Amended)

SB 917, Relating to the aggregation of amounts involved in the offense of breach of computer security to determine punishment.

(Committee Substitute/Amended)

SB 929, Relating to a restriction on the financing of multifamily residential developments by housing authorities and housing finance corporations.

(Committee Substitute)

SB 975, Relating to electronic courses in public schools.

(Amended)

SB 985, Relating to authorizing the governing body of a municipality to enter into a tax abatement agreement with the owner of a leasehold interest in real property that is located in a reinvestment zone.

(Committee Substitute/Amended)

SB 1050, Relating to the regulation of youth camps.

(Amended)

SB 1078, Relating to the date of an independent audit of the management and business operations of the Texas Department of Transportation.

(Amended)

Thursday, May 24, 2001

SENATE JOURNAL

SB 1128, Relating to landscaping and billboards along highways; imposing a civil penalty.

(Committee Substitute)

SB 1190, Relating to technology development and transfer by institutions of higher education.

(Amended)

SB 1224, Relating to occupations regulated by the Texas Commission on Private Security.

(Amended)

SB 1296, Relating to the issuance of general obligation bonds and notes to provide financial assistance to counties for roadway projects to serve border colonias.

(Committee Substitute)

SB 1299, Relating to the creation and duties of a task force on rate-setting methodologies for the Medicaid and state child health plan programs.

(Amended)

SB 1411, Relating to dental services provided under the medical assistance program.

(Committee Substitute/Amended)

SB 1496, Relating to the reassignment of the responsibilities of the Child Care Development Board.

(Amended)

SB 1690, Relating to the taxation of insurance companies and certain insurance agents.

(Amended)

SB 1747, Relating to the offense of theft of livestock from a commission merchant.

(Amended)

SB 1778, Relating to the collection of costs in criminal cases.

(Committee Substitute/Amended)

SB 1783, Relating to enhanced availability of advanced telecommunications service.

(Committee Substitute/Amended)

SB 1815, Relating to establishing a loan program to assist communities that may be affected by federal military base closures.

(Amended)

SB 1839, Relating to certain long-term care facilities.

(Amended)

THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:

HB 154

House Conferees: Thompson - Chair/Chavez/Eiland/Ellis, Dan/Farabee

HB 900

House Conferees: Thompson - Chair/Deshotel/Garcia/Hinojosa/Solis, Jim

77th Legislature — Regular Session 80th Day

HB 1203

House Conferees: Brimer - Chair/Davis, John/Dukes/Elkins/Giddings

HB 1234

House Conferees: Naishtat - Chair/Green/Hinojosa/Kitchen/Reyna, Elvira

HB 1323

House Conferees: Shields - Chair/Dutton/Garcia/Hinojosa/Talton

HB 1739

House Conferees: Martinez Fischer - Chair/Alexander/Noriega/Pickett/Swinford

HB 1763

House Conferees: McCall - Chair/Averitt/Chisum/Gallego/Hochberg

HB 1784

House Conferees: Cook - Chair/Counts/Kolkhorst/Lewis, Ron/Walker

HB 1862

House Conferees: Eiland - Chair/Isett/Janek/Lewis, Glenn/Smithee

HB 1925

House Conferees: Haggerty - Chair/Allen/Hinojosa/Keel/Ritter

THE HOUSE HAS GRANTED THE REQUEST OF THE SENATE FOR THE APPOINTMENT OF A CONFERENCE COMMITTEE ON THE FOLLOWING MEASURES:

SB 115

House conferees: Hawley - Chair/Hardcastle/Keffer/Ramsay/Turner, Bob

SB 189

House conferees: Dutton - Chair/Hardcastle/Hochberg/Olivo/Turner, Sylvester

SB 312

House conferees: Chisum - Chair/Bosse/Counts/Geren/Walker

SB 516

House conferees: Hawley - Chair/Delisi/Hopson/McClendon/Turner, Bob

SB 536

House conferees: Dutton - Chair/Bosse/Clark/Hope/Janek

SB 730

House conferees: Thompson - Chair/Deshotel/Hinojosa/King, Phil/Talton

SB 1210

House conferees: Dunnam - Chair/Capelo/Deshotel/Goodman/Solis, Jim

THE HOUSE HAS ADOPTED THE FOLLOWING CONFERENCE COMMITTEE REPORTS:

SB 1 (141 Ayes, 3 Nays, 1 Present Not Voting)

Respectfully,

/s/Sharon Carter, Chief Clerk

House of Representatives

Thursday, May 24, 2001

SENATE JOURNAL

MESSAGE FROM THE GOVERNOR

The following Message from the Governor was read and was filed with the Secretary of the Senate:

OFFICIAL MEMORANDUM

STATE OF TEXAS

OFFICE OF THE GOVERNOR

Austin, Texas

May 24, 2001

MESSAGE

TO THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES OF THE SEVENTY-SEVENTH TEXAS LEGISLATURE, REGULAR SESSION:

Article 4, Section 14, of the Texas Constitution directs and regulates when and how the Governor can approve or disapprove any bill passed by both houses of the Legislature.

The Legislature has passed Senate Concurrent Resolution No. 69 requesting that I return Senate Bill No. 1057 by Ellis to the Senate for further consideration. In this instance, I have taken no formal action on Senate Bill No. 1057 and I am agreeing to the request of the Legislature.

While under no obligation to comply with this request and pursuant to established case law, I hereby return the enrolled copy of Senate Bill No. 1057 with this message to the Senate for further consideration.

IN TESTIMONY WHEREOF, I have signed my name officially and caused the Seal of the State to be affixed hereto at Austin, this 24th day of May, 2001.

/s/Rick Perry

Governor of Texas

ATTESTED BY:

/s/Henry Cuellar, Ph.D.

Secretary of State

CONCLUSION OF MORNING CALL

The President at 10:10 a.m. announced the conclusion of morning call.

CONFERENCE COMMITTEE REPORT ON

SENATE BILL 684 ADOPTED

Senator Madla called from the President's table the Conference Committee Report on SB 684. The Conference Committee Report was filed with the Senate on Thursday, May 17, 2001.

On motion of Senator Madla, the Conference Committee Report was adopted by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

77th Legislature — Regular Session 80th Day

SENATE BILL 45 WITH HOUSE AMENDMENT

Senator Zaffirini called SB 45 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Amendment

Amend SB 45 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to hardship exemptions from time limits under the temporary assistance for needy families program.

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

SECTION 1. Section 31.0065, Human Resources Code, is amended by adding Subsection (g) to read as follows:

(g)  Notwithstanding any other provision of this section, the department shall provide for a person younger than 20 years of age who does not have a high school diploma or high school equivalency certificate a hardship exemption from the time limits under Subsection (b) that applies while the person is participating in educational activities designed to result in receipt of a high school diploma or high school equivalency certificate. If the person attains 20 years of age and has not yet received a high school diploma or high school equivalency certificate, the department may impose a time limit on receipt of financial assistance and transitional benefits of one, two, or three years, as appropriate based on the person's educational status and work experience, computed beginning with the person's 20th birthday.

SECTION 2. Subchapter A, Chapter 31, Human Resources Code, is amended by adding Section 31.0066 to read as follows:

Sec. 31.0066.  HARDSHIP EXEMPTIONS FROM FEDERAL TIME LIMITS. (a) The department, the Texas Workforce Commission, and the Health and Human Services Commission shall jointly adopt rules prescribing circumstances that constitute a hardship for purposes of exempting a recipient of financial assistance from the application of time limits imposed by federal law on the receipt of benefits.

(b)  The rules must include a broad range of circumstances that reasonably prevent recipients of financial assistance from becoming self-supporting before expiration of the period specified by federal law.

(c)  Before adopting a rule under this section, the department, the Texas Workforce Commission, and the Health and Human Services Commission must:

(1)  submit the proposed rule to the lieutenant governor and the speaker of the house of representatives for referral to the appropriate standing committees of each house of the legislature, as provided by Section 2001.032, Government Code; and

(2)  consider any comments regarding the proposed rule that are provided by those committees in a timely manner.

SECTION 3. If before implementing any provision of this Act 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.

Thursday, May 24, 2001

SENATE JOURNAL

SECTION 4. This Act takes effect September 1, 2001, and applies to a person receiving financial assistance on or after that date regardless of the date on which the person began receiving that financial assistance.

The amendment was read.

Senator Zaffirini moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.

The motion prevailed.

The President asked if there were any motions to instruct the conference committee on SB 45 before appointment.

There were no motions offered.

The President announced the appointment of the following conferees on the part of the Senate on the bill: Senators Zaffirini, Chair; Moncrief, Nelson, Carona, and Bernsen.

CONFERENCE COMMITTEE ON HOUSE BILL 2446

Senator Madla called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HB 2446 and moved that the request be granted.

The motion prevailed.

The President asked if there were any motions to instruct the conference committee on HB 2446 before appointment.

There were no motions offered.

Accordingly, the President announced the appointment of the following conferees on the part of the Senate on the bill: Senators Madla, Chair; Gallegos, Van de Putte, Ogden, and Staples.

CONFERENCE COMMITTEE ON HOUSE BILL 787

Senator Madla called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HB 787 and moved that the request be granted.

The motion prevailed.

The President asked if there were any motions to instruct the conference committee on HB 787 before appointment.

There were no motions offered.

Accordingly, the President announced the appointment of the following conferees on the part of the Senate on the bill: Senators Madla, Chair; Lucio, Harris, Bernsen, and Gallegos.

SENATE RESOLUTION 1182

Senator Jackson offered the following resolution:

WHEREAS, Vernon Beasley, a tall, handsome young man from Hemphill, Texas, met Elizabeth Ross, a beautiful young lady from Alco, Louisiana, at Morningside Baptist Church in Shreveport, Louisiana, in February 1948; and

77th Legislature — Regular Session 80th Day

WHEREAS, He was immediately attracted to her, as she seemed less silly and more mature than most girls her age, and she found him to be very handsome, but thought he was the biggest smart alec she had ever met; and

WHEREAS, The young smart alec asked the beautiful young lady to go out with him, but money was scarce, so most dates consisted of getting together at the homes of friends or family to make fudge, taffy, popcorn, or hot cocoa; and

WHEREAS, Using his East Texas charm, the tall, handsome young man convinced the beautiful Louisiana girl to marry him, and Vernon and Elizabeth Beasley were wed December 15, 1951, in the same church where they had met two years earlier; and

WHEREAS, The Beasleys made their home in Pasadena, Texas, and had four children: Donald Beasley, born October 25, 1952; Brenda Beasley, born February 19, 1954; Barry Beasley, born February 16, 1957; and Helen Beasley, born November 2, 1958; and

WHEREAS, Though they experienced many hard times trying to make ends meet financially, Vernon and Elizabeth Beasley instilled in their children the traits of fine Texas citizens: a love for God and country, respect for others, a solid work ethic, the highest integrity, and an honor for strong family bonds; and

WHEREAS, Vernon and Elizabeth Beasley retired to Lufkin in January 1988, but stay extremely busy with gardening, making crafts, attending bluegrass festivals, and visiting their four children, eight grandchildren, and many other friends and family members; their happy marriage remains a source of joy and inspiration to all who know them; now, therefore, be it

RESOLVED, That the Senate of the 77th Texas Legislature hereby join with the children, grandchildren, and many friends and loved ones of Vernon and Elizabeth Beasley in congratulating them on their 50th wedding anniversary and extend to them sincere best wishes for continued happiness; and, be it further

RESOLVED, That an official copy of this resolution be prepared for the Beasleys as an expression of high regard by the Texas Senate.

The resolution was read.

On motion of Senator Truan and by unanimous consent, the names of the Lieutenant Governor and Senators were added to the resolution as signers thereof.

On motion of Senator Jackson, the resolution was adopted by a viva voce vote.

GUESTS PRESENTED

Senator Jackson was recognized and introduced to the Senate Vernon and Elizabeth Beasley and their children, Helen and Barry.

The Senate welcomed its guests.

SENATE BILL 766 WITH HOUSE AMENDMENT

Senator Madla called SB 766 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

Amend SB 766 by adding the following appropriately numbered SECTION and renumbering subsequent SECTIONS accordingly:

Thursday, May 24, 2001

SENATE JOURNAL

SECTION _____. Subchapter B, Chapter 433, Health and Safety Code, is amended by adding Section 433.0245 to read as follows:

Sec. 433.0245.  REQUIREMENTS FOR CERTAIN LOW-VOLUME LIVESTOCK PROCESSING ESTABLISHMENTS. (a) Except as provided by this section, the inspection and regulatory provisions of this chapter do not apply to a low-volume livestock processing establishment that is exempt from federal inspection.

(b)  A low-volume livestock processing establishment that is exempt from federal inspection shall register with the department in accordance with rules adopted by the commissioner for registration.

(c)  A low-volume livestock processing establishment that is exempt from federal inspection shall develop a sanitary operation procedures plan.

(d)  If contaminated livestock can be reasonably traced to a low-volume livestock processing establishment that is exempt from federal inspection, the commissioner may request the attorney general or the district or county attorney in the jurisdiction where the facility is located to institute a civil suit to enjoin the operation of the establishment until the commissioner determines that the establishment has been sanitized and is operating safely.

The amendment was read.

On motion of Senator Madla, the Senate concurred in the House amendment to SB 766 by a viva voce vote.

SENATE BILL 961 WITH HOUSE AMENDMENT

Senator Moncrief called SB 961 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

SB 961 is amended by adding the following language at the end of Section 1 of the bill:

(d)  The department shall not require a salary supplement as a condition for creating or maintaining a position in the region.

The amendment was read.

On motion of Senator Moncrief, the Senate concurred in the House amendment to SB 961 by a viva voce vote.

SENATE BILL 643 WITH HOUSE AMENDMENT

Senator Madla called SB 643 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

Amend SB 643 on page 3, line 26 by striking "1 " and substituting "15."

The amendment was read.

On motion of Senator Madla, the Senate concurred in the House amendment to SB 643 by a viva voce vote.

77th Legislature — Regular Session 80th Day

HOUSE BILL 236 RECOMMITTED

On motion of Senator Ellis and by unanimous consent, HB 236 was recommitted to the conference committee.

SENATE BILL 367 WITH HOUSE AMENDMENTS

Senator Zaffirini called SB 367 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Floor Amendment No. 1 on Third Reading

Amend SB 367 on third reading by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTION _____. Subchapter B, Chapter 533, Health and Safety Code, is amended by adding Section 533.048 to read as follows:

Sec. 533.048.  GUARDIANSHIP ADVISORY COMMITTEE. (a) In this section, "institution" means:

(1)  an ICF-MR; or

(2)  a state hospital, state school, or state center maintained and managed by the department.

(b)  The commissioner shall appoint a guardianship advisory committee composed of nine members, five of whom must be parents of residents of institutions.

(c)  The commissioner shall designate a member of the advisory committee to serve as presiding officer. The members of the advisory committee shall elect any other necessary officers.

(d)  The advisory committee shall meet at the call of the presiding officer.

(e)  A member of the advisory committee serves at the will of the commissioner.

(f)  A member of the advisory committee may not receive compensation for serving on the advisory committee but is entitled to reimbursement for travel expenses incurred by the member while conducting the business of the advisory committee as provided by the General Appropriations Act.

(g)  The advisory committee shall develop a plan and make specific recommendations to the department regarding methods to facilitate the appointment of relatives of residents of institutions as guardians of those residents to make decisions regarding appropriate care settings for the residents.

Floor Amendment No. 2 on Third Reading

Amend Floor Amendment No. 1 to SB 367 on third reading by adding the following appropriately numbered item to the amendment:

(__) In SECTION 1 of the bill, following proposed Section 531.0244(e), Government Code (House committee report page 3, between lines 20 and 21), insert the following subsection and reletter subsequent subsections appropriately:

(f) This section does not create a cause of action.

The amendments were read.

On motion of Senator Zaffirini, the Senate concurred in the House amendments to SB 367 by a viva voce vote.

Thursday, May 24, 2001

SENATE JOURNAL

SENATE BILL 377 WITH HOUSE AMENDMENT

Senator Shapiro called SB 377 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Floor Amendment No. 1 on Third Reading

Amend SB 377 on third reading in SECTION 1 of the bill, in amended Section 251.18(a), Alcoholic Beverage Code, by striking added Subdivision (2) (House committee printing, page 1, lines 12-20), and substituting the following:

(2) beer and wine in an incorporated city or town that does not permit beer and wine sales on September 1, 2001, and is located in:

(A) two counties:

(i) that each have a population of at least 250,000 but not more than one million; and

(ii) one of which contains a city or town with a population of 125,000 or more; or

(B) three counties:

(i) that each have a population of not more than 300,000; and

(ii) one of which contains a city or town with a population of 20,000 or more.

The amendment was read.

On motion of Senator Shapiro, the Senate concurred in the House amendment to SB 377 by a viva voce vote.

CONFERENCE COMMITTEE REPORT ON

SENATE BILL 583 ADOPTED

Senator Duncan called from the President's table the Conference Committee Report on SB 583. The Conference Committee Report was filed with the Senate on Thursday, May 17, 2001.

On motion of Senator Duncan, the Conference Committee Report was adopted by a viva voce vote.

PHYSICIAN OF THE DAY

Senator Moncrief was recognized and presented Dr. Michael McShan of Kilgore as the Physician of the Day.

The Senate welcomed Dr. McShan and thanked him for his participation in the Physician of the Day program sponsored by the Texas Academy of Family Physicians.

GUESTS PRESENTED

Senator Shapiro was recognized and introduced to the Senate Ann Wagner, Co-chair of the National Republican Party and Susan Weddington, State Chair of the Republican Party.

The Senate welcomed its guests.

77th Legislature — Regular Session 80th Day

GUESTS PRESENTED

Senator Haywood was recognized and introduced to the Senate National President of Future Farmers of America Trent McKnight of Wichita Falls.

The Senate welcomed Trent.

SENATE RESOLUTION 1169

Senator Carona offered the following resolution:

WHEREAS, Detta Haffelder, administrative director for the office of Senator John J. Carona, has manifested an exceptional level of dedication and expertise throughout her career as a legislative staff member; and

WHEREAS, Beginning as an administrative aide for Representative Libby Linebarger in 1993, she has also served as administrative secretary for Senator Bill Sims and as administrative aide for Representative Debra Danburg; and

WHEREAS, Her wide-ranging talents, her detailed knowledge of the legislature, and her ability to maintain a comprehensive view of all the business at hand have made her an invaluable asset both to the legislators for whom she has worked and to their constituents; and

WHEREAS, A native Texan, Detta has developed a deep love for the Texas Senate, and her contributions as a consummate administrative director are indeed deserving of special recognition; now, therefore, be it

RESOLVED, That the Senate of the 77th Texas Legislature hereby recognize Detta Haffelder as "Honorary Doorkeeper in the Texas Senate"—the first female doorkeeper in Senate history—in consideration of her outstanding service and her abiding commitment to this chamber; and, be it further

RESOLVED, That an official copy of this resolution be prepared for Detta as an expression of high regard by the Texas Senate.

The resolution was read.

On motion of Senator Truan and by unanimous consent, the names of the Lieutenant Governor and Senators were added to the resolution as signers thereof.

On motion of Senator Carona, the resolution was adopted by a viva voce vote.

GUEST PRESENTED

Senator Carona was recognized and introduced to the Senate Detta Haffelder.

The Senate welcomed Ms. Haffelder.

SENATE BILL 218 WITH HOUSE AMENDMENTS

Senator Shapiro called SB 218 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 218 (house committee report) as follows:

(1)  Between SECTIONS 1 and 2 of the bill (page 3, between lines 14 and 15), insert the following new SECTION 2:

Thursday, May 24, 2001

SENATE JOURNAL

SECTION 2. Section 44.008(d), Education Code, is amended to read as follows:

(d)  A copy of the annual audit report, approved by the board of trustees, shall be filed by the district with the agency not later than the 150th [120th ] day after the end of the fiscal year for which the audit was made. If the board of trustees declines or refuses to approve its auditor's report, it shall nevertheless file with the agency a copy of the audit report with its statement detailing reasons for failure to approve the report.

(2)  In existing SECTION 2 of the bill (page 3, line 15), strike "SECTION 2" and substitute "SECTION 3".

(3)  Following existing SECTION 2 of the bill (page 3, following line 22), insert the following:

(d)  Section 44.008, Education Code, as amended by this Act, applies beginning with the annual audit of school districts for the 2001-2002 school year.

Floor Amendment No. 2

Amend SB 218 (House Committee Report, 1st Printing) as follows:

Insert ", in consultation with the Comptroller," between "shall" and "develop" in Section 1 of the bill, page 1, line 14.

The amendments were read.

On motion of Senator Shapiro, the Senate concurred in the House amendments to SB 218 by a viva voce vote.

SENATE BILL 177 WITH HOUSE AMENDMENT

Senator Madla called SB 177 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Amendment

Amend SB 177 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to electronic monitoring devices in the rooms of residents of convalescent or nursing homes or related institutions; providing a criminal penalty.

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

SECTION 1.  Chapter 242, Health and Safety Code, is amended by adding Subchapter R to read as follows:

SUBCHAPTER R. ELECTRONIC

MONITORING OF RESIDENT'S ROOM

Sec. 242.841.  DEFINITIONS. In this subchapter:

(1)  "Authorized electronic monitoring" means the placement of an electronic monitoring device in the room of a resident of an institution and making tapes or recordings with the device after making a request to the institution to allow electronic monitoring.

(2)  "Electronic monitoring device":

(A)  includes:

(i)  video surveillance cameras installed in the room of a resident; and

(ii)  audio devices installed in the room of a resident designed to acquire communications or other sounds occurring in the room; and

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(B)  does not include an electronic, mechanical, or other device that is specifically used for the nonconsensual interception of wire or electronic communications.

Sec. 242.842.  CRIMINAL AND CIVIL LIABILITY. (a)  It is a defense to prosecution under Section 16.02, Penal Code, or any other statute of this state under which it is an offense to intercept a communication or disclose or use an intercepted communication, that the communication was intercepted by an electronic monitoring device placed in the room of a resident of an institution.

(b)  This subchapter does not affect whether a person may be held to be civilly liable under other law in connection with placing an electronic monitoring device in the room of a resident of an institution or in connection with using or disclosing a tape or recording made by the device except:

(1)  as specifically provided by this subchapter; or

(2)  to the extent that liability is affected by:

(A)  a consent or waiver signed under this subchapter; or

(B)  the fact that authorized electronic monitoring is required to be conducted with notice to persons who enter a resident's room.

(c)  A communication or other sound acquired by an audio electronic monitoring device installed under the provisions of this subchapter concerning authorized electronic monitoring is not considered to be:

(1)  an oral communication as defined by Section 1, Article 18.20, Code of Criminal Procedure; or

(2)  a communication as defined by Section 123.001, Civil Practice and Remedies Code.

Sec. 242.843.  COVERT USE OF ELECTRONIC MONITORING DEVICE; LIABILITY OF DEPARTMENT OR INSTITUTION. (a)  For purposes of this subchapter, the placement and use of an electronic monitoring device in the room of a resident is considered to be covert if:

(1)  the placement and use of the device is not open and obvious; and

(2)  the institution and the department are not informed about the device by the resident, by a person who placed the device in the room, or by a person who is using the device.

(b)  The department and the institution may not be held to be civilly liable in connection with the covert placement or use of an electronic monitoring device in the room of a resident.

Sec. 242.844.  REQUIRED FORM ON ADMISSION. The department by rule shall prescribe a form that must be completed and signed on a resident's admission to an institution by or on behalf of the resident. The form must state:

(1)  that a person who places an electronic monitoring device in the room of a resident or who uses or discloses a tape or other recording made by the device may be civilly liable for any unlawful violation of the privacy rights of another;

(2)  that a person who covertly places an electronic monitoring device in the room of a resident or who consents to or acquiesces in the covert placement of the device in the room of a resident has waived any privacy right the person may have had in connection with images or sounds that may be acquired by the device;

(3)  that a resident or the resident's guardian or legal representative is entitled to conduct authorized electronic monitoring under Subchapter R, Chapter 242, Health and Safety Code, and that if the institution refuses to permit the electronic monitoring

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or fails to make reasonable physical accommodations for the authorized electronic monitoring that the person should contact the Texas Department of Human Services;

(4)  the basic procedures that must be followed to request authorized electronic monitoring;

(5)  the manner in which this chapter affects the legal requirement to report abuse or neglect when electronic monitoring is being conducted; and

(6)  any other information regarding covert or authorized electronic monitoring that the department considers advisable to include on the form.

Sec. 242.845.  AUTHORIZED ELECTRONIC MONITORING: WHO MAY REQUEST. (a)  If a resident has capacity to request electronic monitoring and has not been judicially declared to lack the required capacity, only the resident may request authorized electronic monitoring under this subchapter, notwithstanding the terms of any durable power of attorney or similar instrument.

(b)  If a resident has been judicially declared to lack the capacity required for taking an action such as requesting electronic monitoring, only the guardian of the resident may request electronic monitoring under this subchapter.

(c)  If a resident does not have capacity to request electronic monitoring but has not been judicially declared to lack the required capacity, only the legal representative of the resident may request electronic monitoring under this subchapter. The department by rule shall prescribe:

(1)  guidelines that will assist institutions, family members of residents, advocates for residents, and other interested persons to determine when a resident lacks the required capacity; and

(2)  who may be considered to be a resident's legal representative for purposes of this subchapter, including:

(A)  persons who may be considered the legal representative under the terms of an instrument executed by the resident when the resident had capacity; and

(B)  persons who may become the legal representative for the limited purpose of this subchapter under a procedure prescribed by the department.

Sec. 242.846.  AUTHORIZED ELECTRONIC MONITORING: FORM OF REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a)  A resident or the guardian or legal representative of a resident who wishes to conduct authorized electronic monitoring must make the request to the institution on a form prescribed by the department.

(b)  The form prescribed by the department must require the resident or the resident's guardian or legal representative to:

(1)  release the institution from any civil liability for a violation of the resident's privacy rights in connection with the use of the electronic monitoring device;

(2)  choose, when the electronic monitoring device is a video surveillance camera, whether the camera will always be unobstructed or whether the camera should be obstructed in specified circumstances to protect the dignity of the resident; and

(3)  obtain the consent of other residents in the room, using a form prescribed for this purpose by the department, if the resident resides in a multiperson room.

(c)  Consent under Subsection (b)(3) may be given only:

(1)  by the other resident or residents in the room;

(2)  by the guardian of a person described by Subdivision (1), if the person has been judicially declared to lack the required capacity; or

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(3)  by the legal representative who under Section 242.845(c) may request electronic monitoring on behalf of a person described by Subdivision (1), if the person does not have capacity to sign the form but has not been judicially declared to lack the required capacity.

(d)  The form prescribed by the department under Subsection (b)(3) must condition the consent of another resident in the room on the other resident also releasing the institution from any civil liability for a violation of the person's privacy rights in connection with the use of the electronic monitoring device.

(e)  Another resident in the room may:

(1)  when the proposed electronic monitoring device is a video surveillance camera, condition consent on the camera being pointed away from the consenting resident; and

(2)  condition consent on the use of an audio electronic monitoring device being limited or prohibited.

(f)  If authorized electronic monitoring is being conducted in the room of a resident and another resident is moved into the room who has not yet consented to the electronic monitoring, authorized electronic monitoring must cease until the new resident has consented in accordance with this section.

(g)  The department may include other information that the department considers to be appropriate on either of the forms that the department is required to prescribe under this section.

(h)  The department may adopt rules prescribing the place or places that a form signed under this section must be maintained and the period for which it must be maintained.

(i)  Authorized electronic monitoring:

(1)  may not commence until all request and consent forms required by this section have been completed and returned to the institution; and

(2)  must be conducted in accordance with any limitation placed on the monitoring as a condition of the consent given by or on behalf of another resident in the room.

Sec. 242.847.  AUTHORIZED ELECTRONIC MONITORING: GENERAL PROVISIONS. (a)  An institution shall permit a resident or the resident's guardian or legal representative to monitor the room of the resident through the use of electronic monitoring devices.

(b)  The institution shall require a resident who conducts authorized electronic monitoring or the resident's guardian or legal representative to post and maintain a conspicuous notice at the entrance to the resident's room. The notice must state that the room is being monitored by an electronic monitoring device.

(c)  Authorized electronic monitoring conducted under this subchapter is not compulsory and may be conducted only at the request of the resident or the resident's guardian or legal representative.

(d)  An institution may not refuse to admit an individual to residency in the institution and may not remove a resident from the institution because of a request to conduct authorized electronic monitoring. An institution may not remove a resident from the institution because covert electronic monitoring is being conducted by or on behalf of a resident.

(e)  An institution shall make reasonable physical accommodation for authorized electronic monitoring, including:

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(1)  providing a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and

(2)  providing access to power sources for the video surveillance camera or other electronic monitoring device.

(f)  The resident or the resident's guardian or legal representative must pay for all costs associated with conducting electronic monitoring, other than the costs of electricity. The resident or the resident's guardian or legal representative is responsible for:

(1)  all costs associated with installation of equipment; and

(2)  maintaining the equipment.

(g)  An institution may require an electronic monitoring device to be installed in a manner that is safe for residents, employees, or visitors who may be moving about the room. The department may adopt rules regarding the safe placement of an electronic monitoring device.

(h)  If authorized electronic monitoring is conducted, the institution may require the resident or the resident's guardian or legal representative to conduct the electronic monitoring in plain view.

(i)  An institution may but is not required to place a resident in a different room to accommodate a request to conduct authorized electronic monitoring.

Sec. 242.848.  REPORTING ABUSE AND NEGLECT. (a)  For purposes of the duty to report abuse or neglect under Section 242.122 and the criminal penalty for the failure to report abuse or neglect under Section 242.131, a person who is conducting electronic monitoring on behalf of a resident under this subchapter is considered to have viewed or listened to a tape or recording made by the electronic monitoring device on or before the 14th day after the date the tape or recording is made.

(b)  If a resident who has capacity to determine that the resident has been abused or neglected and who is conducting electronic monitoring under this subchapter gives a tape or recording made by the electronic monitoring device to a person and directs the person to view or listen to the tape or recording to determine whether abuse or neglect has occurred, the person to whom the resident gives the tape or recording is considered to have viewed or listened to the tape or recording on or before the seventh day after the date the person receives the tape or recording for purposes of the duty to report abuse or neglect under Section 242.122 and of the criminal penalty for the failure to report abuse or neglect under Section 242.131.

(c)  A person is required to report abuse based on the person's viewing of or listening to a tape or recording only if the incident of abuse is acquired on the tape or recording. A person is required to report neglect based on the person's viewing of or listening to a tape or recording only if it is clear from viewing or listening to the tape or recording that neglect has occurred.

(d)  If abuse or neglect of the resident is reported to the institution and the institution requests a copy of any relevant tape or recording made by an electronic monitoring device, the person who possesses the tape or recording shall provide the institution with a copy at the institution's expense.

Sec. 242.849.  USE OF TAPE OR RECORDING BY AGENCY OR COURT. (a)  Subject to applicable rules of evidence and procedure and the requirements of this section, a tape or recording created through the use of covert or authorized electronic monitoring described by this subchapter may be admitted into evidence in a civil or criminal court action or administrative proceeding.

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(b)  A court or administrative agency may not admit into evidence a tape or recording created through the use of covert or authorized electronic monitoring or take or authorize action based on the tape or recording unless:

(1)  if the tape or recording is a video tape or recording, the tape or recording shows the time and date that the events acquired on the tape or recording occurred;

(2)  the contents of the tape or recording have not been edited or artificially enhanced; and

(3)  if the contents of the tape or recording have been transferred from the original format to another technological format, the transfer was done by a qualified professional and the contents of the tape or recording were not altered.

(c)  A person who sends more than one tape or recording to the department shall identify for the department each tape or recording on which the person believes that an incident of abuse or evidence of neglect may be found. The department may adopt rules encouraging persons who send a tape or recording to the department to identify the place on the tape or recording that an incident of abuse or evidence of neglect may be found.

Sec. 242.850.  NOTICE AT ENTRANCE TO INSTITUTION. Each institution shall post a notice at the entrance to the institution stating that the rooms of some residents may be being monitored electronically by or on behalf of the residents and that the monitoring is not necessarily open and obvious. The department by rule shall prescribe the format and the precise content of the notice.

Sec. 242.851.  ENFORCEMENT. (a)  The department may impose appropriate sanctions under this chapter on an administrator of an institution who knowingly:

(1)  refuses to permit a resident or the resident's guardian or legal representative to conduct authorized electronic monitoring;

(2)  refuses to admit an individual to residency or allows the removal of a resident from the institution because of a request to conduct authorized electronic monitoring;

(3)  allows the removal of a resident from the institution because covert electronic monitoring is being conducted by or on behalf of the resident; or

(4)  violates another provision of this subchapter.

(b)  The department may assess an administrative penalty under Section 242.066 against an institution that:

(1)  refuses to permit a resident or the resident's guardian or legal representative to conduct authorized electronic monitoring;

(2)  refuses to admit an individual to residency or allows the removal of a resident from the institution because of a request to conduct authorized electronic monitoring;

(3)  allows the removal of a resident from the institution because covert electronic monitoring is being conducted by or on behalf of the resident; or

(4)  violates another provision of this subchapter.

Sec. 242.852.  CRIMINAL OFFENSE. (a)  A person who intentionally hampers, obstructs, tampers with, or destroys an electronic monitoring device installed in a resident's room in accordance with this subchapter or a tape or recording made by the device commits an offense. An offense under this section is a Class B misdemeanor.

(b)  It is a defense to prosecution under Subsection (a) that the person took the action with the effective consent of the resident on whose behalf the electronic monitoring device was installed or the resident's guardian or legal representative.

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SECTION 2.  Subsection (a), Section 242.501, Health and Safety Code, is amended to read as follows:

(a)  The department by rule shall adopt a statement of the rights of a resident. The statement must be consistent with Chapter 102, Human Resources Code, but shall reflect the unique circumstances of a resident at an institution. At a minimum, the statement of the rights of a resident must address the resident's constitutional, civil, and legal rights and the resident's right:

(1)  to be free from abuse and exploitation;

(2)  to safe, decent, and clean conditions;

(3)  to be treated with courtesy, consideration, and respect;

(4)  to not be subjected to discrimination based on age, race, religion, sex, nationality, or disability and to practice the resident's own religious beliefs;

(5)  to place in the resident's room an electronic monitoring device that is owned and operated by the resident or provided by the resident's guardian or legal representative;

(6)  to privacy, including privacy during visits and telephone calls;

(7) [(6) ]  to complain about the institution and to organize or participate in any program that presents residents' concerns to the administrator of the institution;

(8) [(7) ]  to have information about the resident in the possession of the institution maintained as confidential;

(9) [(8) ]  to retain the services of a physician the resident chooses, at the resident's own expense or through a health care plan, and to have a physician explain to the resident, in language that the resident understands, the resident's complete medical condition, the recommended treatment, and the expected results of the treatment;

(10) [(9) ]  to participate in developing a plan of care, to refuse treatment, and to refuse to participate in experimental research;

(11) [(10) ]  to a written statement or admission agreement describing the services provided by the institution and the related charges;

(12) [(11) ]  to manage the resident's own finances or to delegate that responsibility to another person;

(13) [(12) ]  to access money and property that the resident has deposited with the institution and to an accounting of the resident's money and property that are deposited with the institution and of all financial transactions made with or on behalf of the resident;

(14) [(13) ]  to keep and use personal property, secure from theft or loss;

(15) [(14) ]  to not be relocated within the institution, except in accordance with standards adopted by the department under Section 242.403;

(16) [(15) ]  to receive visitors;

(17) [(16) ]  to receive unopened mail and to receive assistance in reading or writing correspondence;

(18) [(17) ]  to participate in activities inside and outside the institution;

(19) [(18) ]  to wear the resident's own clothes;

(20) [(19) ]  to discharge himself or herself from the institution unless the resident is an adjudicated mental incompetent;

(21) [(20) ]  to not be discharged from the institution except as provided in the standards adopted by the department under Section 242.403; and

(22) [(21) ]  to be free from any physical or chemical restraints imposed for the purposes of discipline or convenience, and not required to treat the resident's medical symptoms.

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SECTION 3.  Section 242.653, Health and Safety Code, is amended by adding Subsection (f) to read as follows:

(f)  The committee shall monitor the implementation of Subchapter R and study the impact of that law on the department, institutions, and residents.

SECTION 4.  The Texas Department of Human Services shall devise a procedure under which current residents of convalescent and nursing homes and related institutions, or, when appropriate, another person on a resident's behalf, are encouraged to sign the form that is required to be signed on admission under Section 242.844, Health and Safety Code, as added by this Act.

SECTION 5.  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, 2001.

The amendment was read.

Senator Madla moved to concur in the House amendment to SB 177.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

SENATE BILL 355 WITH HOUSE AMENDMENTS

Senator Lindsay called SB 355 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 355 as follows:

(1)  In SECTION 1 of the bill, in amended Section 242.501(a)(22), Health and Safety Code (House Committee Printing, page 3, line 17), strike "a treating physician and pharmacist" and substitute "the person prescribing the medication or that person's designee".

(2)  In SECTION 2 of the bill, in added Section 242.505(c)(2), Health and Safety Code (House Committee Printing, page 5, lines 6 and 7), strike "treating physician or a person designated by the physician" and substitute "person prescribing the medication or that person's designee".

(3)  In SECTION 2 of the bill, in added Section 242.505(c)(4), Health and Safety Code (House Committee Printing, page 5, lines 22 and 23), strike "treating physician or a person designated by the physician" and substitute "person prescribing the medication or that person's designee".

(4)  In SECTION 2 of the bill, in added Section 242.505(e), Health and Safety Code (House Committee Printing, page 6, lines 1 and 4), strike "physician" in each place it appears and substitute "person".

Floor Amendment No. 2

Amend SB 355, in SECTION 2 of the bill, in added Section 242.505, Health and Safety Code (Committee Printing, page 6, between lines 10 and 11), by inserting a new Subsection (f) to read as follows:

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(f)  A physician or a person designated by the physician is not liable for civil damages or an administrative penalty and is not subject to disciplinary action for a breach of confidentiality of medical information for a disclosure of the information provided under Subsection (c)(2) made by the resident or the person authorized by law to consent on behalf of the resident that occurs while the information is in the possession or control of the resident or the person authorized by law to consent on behalf of the resident.

The amendments were read.

Senator Lindsay moved to concur in the House amendments to SB 355.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

SENATE JOINT RESOLUTION 37 WITH HOUSE AMENDMENT

Senator Lucio called SJR 37 from the President's table for consideration of the House amendment to the resolution.

The President laid the resolution and the House amendment before the Senate.

Amendment

Amend SJR 37 by substituting in lieu thereof the following:

A JOINT RESOLUTION

proposing a constitutional amendment authorizing the issuance of general obligation bonds or notes to provide financial assistance to counties for roadway projects to serve border colonias.

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

SECTION 1. Article III, Texas Constitution, is amended by adding Section 49-l to read as follows:

Sec. 49-l. (a) To fund financial assistance to counties for roadways to serve border colonias, the legislature by general law may authorize the governor to authorize the Texas Public Finance Authority or its successor to issue general obligation bonds or notes of the State of Texas in an aggregate amount not to exceed $175 million and to enter into related credit agreements. Except as provided by Subsection (c) of this section, the proceeds from the sale of the bonds and notes may be used only to provide financial assistance to counties for projects to provide access roads to connect border colonias with public roads. Projects may include the construction of colonia access roads, the acquisition of materials used in maintaining colonia access roads, and projects related to the construction of colonia access roads, such as projects for the drainage of the roads.

(b)  The Texas Transportation Commission may, in its discretion and in consultation with the office of the governor, determine what constitutes a border colonia for purposes of selecting the counties and projects that may receive assistance under this section.

(c)  A portion of the proceeds from the sale of the bonds and notes and a portion of the interest earned on the bonds and notes may be used to pay:

(1)  the costs of administering projects authorized under this section; and

(2)  all or part of a payment owed or to be owed under a credit agreement.

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(d)  The bonds and notes authorized under this section constitute a general obligation of the state. While any of the bonds or notes or interest on the bonds or notes is outstanding and unpaid, there is appropriated out of the general revenue fund in each fiscal year an amount sufficient to pay the principal of and interest on the bonds and notes that mature or become due during the fiscal year, including an amount sufficient to make payments under a related credit agreement.

SECTION 2.  This proposed constitutional amendment shall be submitted to the voters at an election to be held November 6, 2001. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment authorizing the issuance of state general obligation bonds and notes to provide financial assistance to counties for roadway projects to serve border colonias."

The amendment was read.

Senator Lucio moved to concur in the House amendment to SJR 37.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 24, 2001

The Honorable President of the Senate

Senate Chamber

Austin, Texas

Mr. President:

I am directed by the House to inform the Senate that the House has taken the following action:

THE HOUSE HAS PASSED THE FOLLOWING MEASURES:

HCR 304, Honoring Colby Donaldson of Dallas on his award.

Respectfully,

/s/Sharon Carter, Chief Clerk

House of Representatives

SENATE BILL 697 WITH HOUSE AMENDMENTS

Senator Wentworth called SB 697 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Amendment

Amend SB 697 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of the practice of professional engineering.

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

SECTION 1. Section 8, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended by amending Subsection (c) and adding Subsection (e) to read as follows:

(c)  The Board by rule may require [recognize, prepare, or administer ] continuing education [programs ] for persons regulated by the Board under this Act. Rules adopted under this subsection:

(1)  may not require a license holder to obtain more than eight hours of continuing education in one year;

(2)  shall permit a license holder to certify at the time the license is renewed that the license holder has complied with the Board's continuing education requirements; and

(3)  shall permit a license holder to receive continuing education credit for educational, technical, ethical, or professional management activities related to the practice of engineering, including:

(A)  successfully completing or auditing a course sponsored by a college or university;

(B)  successfully completing a course certified by a professional or trade organization;

(C)  attending a seminar, tutorial, short course, correspondence course, videotaped course, or televised course;

(D)  participating in an in-house course sponsored by a corporation or other entity;

(E)  teaching a course described by Paragraphs (A)-(D) of this subdivision;

(F)  writing a published article, paper, or book;

(G)  making or attending a presentation at a meeting of a technical or engineering management society or organization or writing a paper presented at such a meeting;

(H)  participating in the activities of a professional society or association, including serving on a committee of the organization; and

(I)  engaging in self-directed study. [Participation in the programs is voluntary. ]

(e)  At the request of any person, the Board may review a proposal for the procurement of services issued by a governmental entity and issue a finding regarding whether the services are within the scope of the practice of professional engineering for purposes of Subchapter A, Chapter 2254, Government Code.

SECTION 2. Section 13, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended by adding Subsection (f) to read as follows:

(f)  The Board by rule may adopt a registration fee for a sole proprietorship that is equal to half of the registration fee for other engineering firms.

SECTION 3. Section 16.1, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 16.1.  EXPIRATION DATES OF LICENSES AND REGISTRATIONS. (a) The board by rule may adopt a system under which licenses and registrations expire on various dates during the year, and the dates for reinstatement shall be adjusted accordingly.

(b)  The board by rule may adopt a system under which the registration of a sole proprietorship expires on the same date the sole proprietor's license expires.

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SECTION 4. Section 20, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended by adding Subsection (h) to read as follows:

(h)  This Act does not:

(1)  apply to a sole proprietorship, firm, partnership, joint stock association, corporation, or other business entity or the entity's employees or contractors to the extent the entity's products or services:

(A)  are provided or sold to an agency or department of the United States government or the government of a foreign country and involve the design, development, production, sale, or provision of defense products or services;

(B)  consist of or support commercial aircraft and the entity holds a certificate issued by the Federal Aviation Administration under 14 C.F.R. Chapter 21; or

(C)  consist of space vehicles or space services that are:

(i)  subject to licensing or regulation by an agency or department of the United States government under Title 14 or 47, Code of Federal Regulations; or

(ii)  for sale or use outside the United States; or

(2)  prohibit the use of the term "engineer" or "engineering" in a job title or personnel classification by an employee or contractor described by Subdivision (1) to the extent that the use of the title or classification is related to activities described by that subdivision.

SECTION 5. Rules adopted under Section 8(c), The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), as amended by this Act, may not apply to the renewal of a license before January 1, 2004.

SECTION 6. This Act takes effect September 1, 2001.

Floor Amendment No. 1

Amend CSSB 697, house committee printing, in SECTION 4 of the bill, in added Subparagraph (i), Paragraph (C), Subdivision (1), Subsection (h), Section 20, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), (page 4, line 2), by striking "14 or 47, Code of Federal Regulations;" and substituting "14, 47, or 48, Code of Federal Regulations;".

Floor Amendment No. 3

Amend CSSB 697, page 3, line 14, by adding a new Section 4 and renumbering the subsequent sections as follows:

Section 3: Section 20. EXEMPTIONS (a) The following persons shall be exempt from the licensure provisions of this Act, however, the Board may require those practicing engineering in Texas who are exempt and not licensed to register and pay a fee not to exceed $25, provided that such persons are not directly or indirectly represented or held out to the public to be legally qualified to engage in the practice of engineering:

Floor Amendment No. 4

Amend CSSB 697, house committee printing, as follows:

(1)  Insert a new SECTION 1 of the bill (page 1, between lines 4 and 5), to read as follows:

SECTION 1. Subdivision (4), Section 2, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) is amended to read as follows:

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(4)  "Practice of engineering," or "practice of professional engineering" shall mean any service or creative work, either public or private, the adequate performance of which requires engineering education, training and experience in the application of special knowledge or judgment of the mathematical, physical, or engineering sciences to such services or creative work.

To the extent the following services or types of creative work meet this definition, the term includes consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony, engineering for testing or evaluating materials for construction and other engineering uses, performing technical research on projects fully or partially underwritten by a non-public entity, and mapping; design, conceptual design, or conceptual design coordination of engineering works and systems; development or optimization of plans and specifications for engineering works and systems; planning the use or alteration of land and water or the design or analysis of works or systems for the use or alteration of land and water; teaching advanced engineering subjects; performing engineering surveys and studies; engineering for construction, alteration, or repair of real property; engineering for preparation of operating and maintenance manuals; and engineering for review of the construction or installation of engineered works to monitor compliance with drawings and specifications.

The activities included in the practice of engineering include services, designs, analyses, or other work performed for a public or private entity in connection with utilities, structures, buildings, machines, equipment, processes, systems, works, projects, and industrial or consumer products or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature and include other professional services necessary for the planning, progress, and completion of any engineering service.

In this subdivision:

(A)  "Design coordination" includes the review and coordination of technical submissions prepared by others, including the work of other professionals working with or under the direction of an engineer with due professional regard for the abilities of all professional parties involved in a multidisciplinary effort.

(B)  "Engineering surveys" includes all survey activities required to support the sound conception, planning, design, construction, maintenance, and operation of an engineered project, but does not include the surveying of real property and other activities regulated under the Professional Land Surveying Practices Act (Article 5282c, Vernon's Texas Civil Statutes).

(2)  Renumber the subsequent SECTIONS of the bill appropriately.

Floor Amendment No. 1 on Third Reading

Amend CSSB 697 on third reading as follows:

(1)  In SECTION 3 of the bill (House Committee Printing page 2, lines 24-26) strike proposed Subsection (f), Section 13, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), and substitute the following:

(f)  The Board by rule shall adopt a registration fee for a sole proprietorship that is equal to not more than half of the registration fee for other engineering firms.

(2)  In SECTION 4 of the bill, in added Subsection (b), Section 16.1, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) (House Committee Printing page 3, line 7), strike "may" and substitute "shall".

77th Legislature — Regular Session 80th Day

Floor Amendment No. 2 on Third Reading

Amend CSSB 697 on third reading as follows:

(1)  Strike Amendment No. 4 by Callegari (second reading).

(2)  In the section of the bill amending Section 20, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), in the introductory language for that section (house committee printing page 3, line 12), strike "Subsection (h)" and substitute "Subsections (h) and (i)".

(3)  After the section of the bill adding proposed Section 20(h), The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) (house committee printing page 4, after line 9), insert the following:

(i)  The board shall develop written guidelines, in consultation with representatives of public and private institutions of higher education, consulting engineers, private industry, and the Texas Higher Education Coordinating Board, that describe a distinction between engineering research conducted by faculty at a public or private institution of higher education and other activities conducted by those faculty that constitute engineering consulting or the offering of engineering services to the public. The guidelines developed under this subsection do not affect or apply to research or consulting performed by private industry.

(4)  Renumber the sections of the bill appropriately.

The amendments were read.

On motion of Senator Wentworth, the Senate concurred in the House amendments to SB 697 by a viva voce vote.

BILLS AND RESOLUTIONS SIGNED

The President announced the signing of the following enrolled bills and resolutions in the presence of the Senate after the captions had been read:

SB 18, SB 40, SB 53, SB 159, SB 194, SB 200, SB 214, SB 252, SB 257, SB 263, SB 283, SB 332, SB 390, SB 395, SB 454, SB 456, SB 482, SB 486, SB 496, SB 497, SB 505, SB 531, SB 557, SB 586, SB 593, SB 625, SB 671, SB 691, SB 720, SB 751, SB 769, SB 799, SB 840, SB 847, SB 869, SB 903, SB 932, SB 998, SB 1001, SB 1006, SB 1016, SB 1024, SB 1036, SB 1053, SB 1064, SB 1085, SB 1160, SB 1174, SB 1176, SB 1180, SB 1214, SB 1226, SB 1235, SB 1288, SB 1293, SB 1294, SB 1302, SB 1345, SB 1353, SB 1367, SB 1390, SB 1396, SB 1417, SB 1470, SB 1581, SB 1632, SB 1659, SB 1683, SB 1713, SB 1727, SB 1732, SB 1736, SB 1758, SB 1759, SB 1781, SB 1782, SB 1784, SB 1793, SB 1796, SB 1800, SB 1807, SB 1808, SB 1818, SB 1823, SB 1831, SB 1840, SCR 1, SCR 2, SCR 21, SCR 24, SCR 35, SCR 37, SCR 51, SCR 54, SJR 32.

SENATE BILL 158 WITH HOUSE AMENDMENT

Senator Truan called SB 158 from the President's table for consideration of the House amendment to the bill.

The President laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 158, SECTION 1 of the House Committee Report (on page 1, between lines 22 and 23), by inserting new subdivision (3) as follows and renumbering accordingly:

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"(3) the disadvantages of taking courses to prepare for a high school equivalency examination relative to the benefits of taking courses leading to a high school diploma;"

The amendment was read.

Senator Truan moved to concur in the House amendment to SB 158.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

SENATE RESOLUTION 1181

Senator Jackson offered the following resolution:

WHEREAS, The academic team of the George A. Thompson Intermediate School in Pasadena has won the National Academic League Championships, and their stellar triumph warrants special legislative commendation; and

WHEREAS, On April 6, 2001, this fine group of students, led by teacher Carolyn Carmichael, defeated the Snowcrest Junior High team 42-38, ensuring themselves a place in the final four of the National Academic League Tournament; and

WHEREAS, They garnered the national championship title when they soundly defeated the Wichita, Kansas, team during the finals held at the Houston Exxon Building; and

WHEREAS, Thompson Intermediate School is under the direction of principal Gregory Jones and vice principals Bill Saxon and Steve Black; these fine administrators are undoubtedly proud of their school's exceptional academic team, which has won the national competition three times in the past eight years; and

WHEREAS, This year's outstanding team members include Christine Tran, Van Nguyen, Lam Le, Justin Lai, Ana Lopez, Courtney Grimes, Minh Bui, Vishal Patel, Henry Dao, Adrienne Ingalls, Grace Kim, Wesley Bennett, Michael Cole, Richard Quach, Rustam Abedinzadeh, Bruce Le, Tracie Thomason, Ryan Dawson, Ryan Fox, and Tiffany Lily; and

WHEREAS, These students have excelled in the face of staunch competition, and their hard work, dedicated efforts, and sterling performance are truly commendable; now, therefore, be it

RESOLVED, That the Senate of the 77th Texas Legislature hereby congratulate George A. Thompson Intermediate School's academic team and extend to its members best wishes for continued success; and, be it further

RESOLVED, That an official copy of this resolution be prepared for the team members as an expression of high regard by the Texas Senate.

The resolution was read and was adopted by a viva voce vote.

GUESTS PRESENTED

Senator Jackson was recognized and introduced to the Senate students from Thompson Intermediate School in Pasadena.

The Senate welcomed its guests.

77th Legislature — Regular Session 80th Day

SENATE BILL 272 WITH HOUSE AMENDMENTS

Senator Carona called SB 272 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 272 as follows:

(1) On page 3, line 2, strike "$1,000" and replace it with "$500".

(2) On page 3, line 6, strike "$2,500" and replace it with "$1050".

(3) On page 3, line 7, insert the following:

(3) 18 percent a year on that part of the cash advance that is more than the amount computed for Subdivision (2) but less than or equal to an amount computed under Subchapter C, Chapter 341, using the reference base amount of $2,500.

Floor Amendment No. 2

Amend SB 272 as follows:

Delete Section 8 and add the following:

SECTION 8. Section 302.001, Finance Code, is amended by adding Subsection (d) to read as follows:

(d) In addition to interest authorized by Subsection (b), a loan providing for a rate of interest that is 10 percent a year or less may provide for a delinquency charge on the amount of any payment in default for a period of not less than 10 days in an amount not to exceed the greater of five percent of the amount of the payment or $7.50. The charging of the delinquency charge does not make the loan subject to Chapter 342 or any other provision of Subtitle B.

SECTION 9. Section 342.004, Finance Code, is amended by adding Subsection (c) to read as follows:

(c) A loan described by Section 302.001(d) may provide for a delinquency charge as provided by that section without being subject to this chapter or any other provision of this subtitle.

SECTION 10. Section 342.005, Finance Code, is amended to read as follows:

Sec. 342.005. APPLICABILITY OF CHAPTER. Except as provided by Sections 302.001(d) and 342.004(c), a [A ] loan is subject to this chapter if the loan:

(1) provides for interest in excess of 10 percent a year;

(2) is extended primarily for personal, family, or household use;

(3) is made by a person engaged in the business of making, arranging, or negotiating those types of loans; and

(4) either:

(A) is not secured by a lien on real property; or

(B) is described by Section 342.001(3), 342.301, or 342.456 and is predominantly payable in monthly installments.

SECTION 11. 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, 2001.

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Floor Amendment No. 3

Amend SB 272 by inserting an appropriately numbered section and by renumbering the remaining sections appropriately:

SECTION _____. Chapter 339, Finance Code, is amended to clarify and confirm existing law by adding Section 339.005 to read as follows:

Sec. 339.005. APPLICABILITY OF CERTAIN FEDERAL LAW. This title does not override or restrict the applicability of 12 U.S.C. Section 1735f-7a.

The amendments were read.

On motion of Senator Carona, the Senate concurred in the House amendments to SB 272 by a viva voce vote.

SENATE RESOLUTION 1163

Senator Moncrief offered the following resolution:

WHEREAS, Dr. Patricia R. Cole, known throughout the legislative community as "Pat," is celebrating more than 25 years of leadership in health and human services public policy advocacy; and

WHEREAS, Dr. Cole arrived on the legislative scene as an advocate for people with speech, hearing, and learning disorders and chemical dependencies, but due to her extensive knowledge, experience, and natural powers of persuasion, she quickly emerged as a proponent for myriad causes that affect women and their families; and

WHEREAS, Appointed by former Governor Ann Richards to serve as the governor's director of health and human services policy, this esteemed woman was responsible for the oversight of 12 state agencies, including policy and program development, service delivery, funding, and interagency coordination; in that role, she aided the governor and the state legislature in such vital actions as setting appropriate funding levels and serving as a liaison with professional organizations and advocates throughout the state; and

WHEREAS, Recognizing the pervasive links between violence against women, poverty, substance and alcohol abuse, and mental illness, Dr. Cole turned her notable talents to these areas, and she represented Communities in Schools and the Texas Council on Family Violence; and

WHEREAS, Over the years, her passion for addressing the challenges facing low-income women and victims of domestic violence continued to grow, and she helped to form the National Training Center on Domestic and Sexual Violence in 1998, serving as both its associate director and public policy director; and

WHEREAS, Dr. Cole has authored numerous articles in scholarly publications, received honors from many state and national organizations, and was recently honored as a Distinguished Alumni by the college of communication at The University of Texas at Austin; and

WHEREAS, A woman whose smile and sense of humor is surpassed only by her visible commitment to her fellowman, Dr. Patricia Cole has garnered the respect and admiration of her colleagues, friends, and past and present members of the Texas Legislature; through her tireless efforts, she has raised awareness of important issues, especially those affecting the women of this state, and it is a privilege to honor her at this time; now, therefore, be it

77th Legislature — Regular Session 80th Day

RESOLVED, That the Senate of the 77th Texas Legislature hereby recognize May 25, 2001, as Pat Cole Appreciation Day in Texas and extend to her sincere best wishes for the future; and, be it further

RESOLVED, That an official copy of this resolution be prepared for Dr. Cole as an expression of highest regard by the Texas Senate.

The resolution was read.

On motion of Senator Truan and by unanimous consent, the names of the Lieutenant Governor and Senators were added to the resolution as signers thereof.

On motion of Senator Moncrief and by unanimous consent, the resolution was adopted by a rising vote of the Senate.

REMARKS ORDERED PRINTED

On motion of Senator Truan and by unanimous consent, the following remarks regarding SR 1163 were ordered reduced to writing and printed in the Senate Journal:

Senator Moncrief: Thank you Mr. President and Members. Today is Pat Cole Appreciation Day in Texas. Pat is Associate Director of the National Training Center on Domestic and Sexual Violence in Austin. She's been a tireless advocate of battered women, particularly low-income women and their children. Prior to her current position, Pat was Director of Health and Human Services Policy from 1991 to 1994 during Governor Ann Richards' administration and since then she has served as legislative liaison for the Texas Council of Family Violence, has continued her advocacy in her current position. The two of us have worked on many an issue that is near and dear to both of us and it has been both, I must say, joy and pain. Members, now that I have all of the nice stuff out of the way, let me just say that when I say working with this woman has been filled with joy and pain, and I mean both, literally. There is nobody more direct, Mr. President, than Pat Cole. When Pat has a call to action, she expects you to have an equally strong call to action, and if you don't hear that call, she will cause you pain until you improve your hearing. She expects you to do what is right, and she will dog your heels until you have done just that. In fact, in some respects Pat and Chris Harris are soulmates. I wish he was here. If they can't convince you with gentle humor and kindly persuasion, they will simply pummel you into submission. And, Members, like our colleague, if Pat thinks she has a righteous cause, then heaven help you if you get in her way. With Pat today, Ann Mauzy, Patty Dillard, Carie Dillard, Joshua English, Ellen Richards, Clark Richards, Dan Richards, Suzanne Coleman, Mary Jane Leahy, Joene Grissom, and Rhonda Jerson, as well as the many friends that you can see, Members, standing in the gallery surrounding us. This woman is a Texas treasure, and I am extremely proud to call Pat Cole my friend and fellow warrior.

Senator Zaffirini: Thank you Mr. President. Mr. President and Members, it's my very great pleasure to join Senator Moncrief and many of you in singing the praises of this great Texan, Pat Cole. Pat Cole is actually a leader in the Texas Senate, because many times it is she who comes to us with her ideas for good legislation. We are also grateful for the many, many people who support us, but I truly believe that Pat Cole leads the way in many, many ways, and so often she has wonderful ideas about legislation, legislation that often is opposed, but she not only gives birth to the idea, she

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also nurtures it. She makes sure that where there is controversy, it is resolved. She insists on finding solutions to a problem, and while there are many, many people who know how to say, no, we won't support that bill, Pat Cole is the kind of leader who will not take no for an answer. She develops the issue, she works with everyone who supports her, she works with everyone who opposes that issue until she finds that solution. Pat, it is my pleasure to call you a friend, and all of us who are Members of the Legislature, including the state Representatives who cross the hall to come over and join us in this tribute to you, appreciate your great leadership and your wonderful causes. Thank you for everything that you are.

Senator Lucio: Thank you Mr. President. I, too, rise to join my colleagues in recognition of this outstanding Texan. I'd like to read two short passages from my Bible. "And he said unto me, my grace is sufficient for thee: for my strength is made perfect in weakness. Most gladly therefore will I rather glory in my infirmities, that the power of Christ may rest upon me." That is II Corinthians, Chapter 12. Also, and I quote, "Just as the sufferings of Christ are ours in abundance, so also our comfort is abundant through Christ." (II Corinthians 1:5) In today's recognition, Members, of this beautiful godly lady, we are recognizing the fruit of her labor and tireless hours of work that Dr. Cole dedicated to her fellowman. God teaches us that he blesses those who give of themselves to others, and Pat has done it so well for so long. I pray that God blesses us with many Pat Coles in the future. Vaya con Dios.

Senator Truan: Thank you very much. I'd like to join my colleagues, Senator Moncrief and others, who have paid tribute already to Pat Cole. I've had the honor and pleasure of working with her during the years that I've been in the Legislature. I remember so well her close relationship with our departed friend, Oscar Mauzy, and I'm pleased to see Ann Mauzy here, his widow, also. There is no doubt that they are trailblazers and Pat Cole's name will stand very high among the people that have really lead the way in making sure we in this Legislature, we in these governing bodies of the House and the Senate and the other offices, that we understand the needs of people, particularly women. I want to tell you how much of a pleasure and an honor it has been for me to have worked with you all these years, and I look forward to continuing to do so. God bless.

Senator Barrientos: Mr. President and Members. I know Pat Cole. Pat Cole is my constituent. I'm a friend of Pat Cole. Over 25 years we worked together, and, Members, this gentle woman has helped thousands of our fellow Texans, especially those people who sometimes cannot help themselves, the disabled, the poor. Senator Moncrief, you talk about dogged dedication, perseverance, I know Pat Cole, because she helped me get elected. I will only say this and hope everybody remembers, for, you see, Pat Cole, no one can help everybody, but everybody can help someone. God bless you.

Senator Van de Putte: Mr. President and Members. I join with my colleagues today in honoring Pat Cole. I am amazed by your strength. The years that I have had the pleasure of working with you, before I was a legislator, in political campaigns and on causes, you seemed to draw that enthusiasm that you have, and that righteousness, and you draw everybody in. So, I want to say thanks as a legislator, but much more than that, I want to say thanks to all the women whose lives you have touched. You have shown us that you can do it all. You have made it possible to show the young women,

77th Legislature — Regular Session 80th Day

and I know so many of them are here, that they have the opportunity to become engaged in the process, that they can make a difference in their communities, and that they can make a difference in state government and in public policy. You have that wonderful ability, and I know you will continue to nurture these young women into leadership positions. As one of the young women at the time who you helped nurture through, and particularly when some of those young women, and I don't know if any of the young guys are there, but when those young women are problem children like myself, you take us under the wing, and you showed us, you've got to pick your fights, and you've got to know what hill you want to die on, and you've got to know where you want to make your stand. And for teaching all the young women that they can do it, that they know when there is a time to compromise, and when there is a time to charge forward. You've always had that wisdom, and you helped hundreds and hundreds of young women. So, Pat Cole, thank you from one of the problem children that you helped garner through on the right track. Thank you from the women. God bless you and we love you.

Senator Bivins: Thank you Mr. Chairman and Members. I, too, would like to rise in support of this resolution. Pat probably doesn't remember this, but I was a sophomore state Senator when Governor Richards was elected, and I had been used to dealing with these very serious people in Governor Clements' office, and I had a great awakening. These Richards guys laughed a lot, they had fun, and Pat was certainly one of those. While we were always able to laugh, even if we were on opposite sides of issues, we laughed and had a great personal relationship. I think that is the way that this building works at its very best. You were part of that, Pat, and I just wanted to say, I appreciate it, even if I sit on this side of the aisle. Thank you very much.

Senator Moncrief: Mr. President, before I move adoption, I think you've heard a cross section of the feelings of this body. This is a unique woman who has given much, and as a result, we are all better for it.

SENATE BILL 314 WITH HOUSE AMENDMENTS

Senator Sibley called SB 314 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Amendment

Amend SB 314 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas Department of Banking and the regulation of certain financial institutions and businesses; providing an administrative penalty.

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

SECTION 1.  Section 12.107, Finance Code, is amended to read as follows:

Sec. 12.107.  CONFLICT OF INTEREST. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state that:

(1)  is primarily designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interests; and

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(2)  includes business and professional competitors located in this state among its members.

(b)  A person may not be a department employee if:

(1)  the person is an officer, employee, or paid consultant of a Texas trade association in an industry regulated by the department; or

(2)  the person's spouse is an officer, manager, or paid consultant of a Texas trade association in an industry regulated by the department.

(c)  A person may not act as the general counsel to the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the department [An officer or employee of the department may not be:

[(1)  an officer, employee, or paid consultant of a trade association in an industry regulated by the department; or

[(2)  related within the second degree by affinity or consanguinity, as determined under Chapter 573, Government Code, to a person who is an officer, employee, or paid consultant of a trade association in an industry regulated by the department ].

(d) [(b) ]  Before the 11th day after the date on which an employee begins employment with the department, the employee shall read the conflict-of-interest statutes applicable to employees of the department and sign a notarized affidavit stating that the employee has read those statutes.

SECTION 2.  Section 12.108, Finance Code, is amended to read as follows:

Sec. 12.108.  CONSUMER INFORMATION AND COMPLAINTS. (a) The banking commissioner shall:

(1)  prepare information of consumer interest describing:

(A)  the regulatory functions of the department; and

(B)  the department's procedures by which consumer complaints are filed with and resolved by the department; and

(2)  make the information available to the public and appropriate state agencies.

(b)  The department shall maintain a file on each written complaint filed with the department. The file must include:

(1)  the name of the person who filed the complaint;

(2)  the date the complaint is received by the department;

(3)  the subject matter of the complaint;

(4)  the name of each person contacted in relation to the complaint;

(5)  a summary of the results of the review or investigation of the complaint; and

(6)  an explanation of the reason the file was closed.

(c)  The department shall provide to the person filing the complaint and to each person who is a subject of the complaint a written summary of the department's policies and procedures relating to complaint investigation and resolution [banking commissioner shall keep an information file about each complaint filed with the commissioner relating to an entity regulated by the department.

[(c)  At least quarterly until final disposition of any written complaint filed with the banking commissioner relating to an entity regulated by the department, the commissioner shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation ].

77th Legislature — Regular Session 80th Day

SECTION 3.  Section 12.109, Finance Code, is amended to read as follows:

Sec. 12.109.  SUNSET PROVISION. The office of banking commissioner is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished September 1, 2013 [2001 ].

SECTION 4. Subchapter B, Chapter 12, Finance Code, is amended by adding Sections 12.111, 12.112, and 12.113 to read as follows:

Sec. 12.111.  STANDARDS OF CONDUCT. The banking commissioner or the banking commissioner's designee shall provide to agency employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees.

Sec. 12.112.  EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The banking commissioner or the banking commissioner's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin.

(b)  The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the department to avoid the unlawful employment practices described by Chapter 21, Labor Code; and

(2)  an analysis of the extent to which the composition of the department's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law.

(c)  The policy statement must:

(1)  be updated annually;

(2)  be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1); and

(3)  be filed with the governor's office.

Sec. 12.113.  EMPLOYEE INCENTIVE PROGRAM. The banking commissioner or the banking commissioner's designee shall provide to agency employees information and training on the benefits and methods of participation in the state employee incentive program.

SECTION 5. Section 154.109, Finance Code, is amended by adding Subsection (d) to read as follows:

(d)  The commissioner may place on probation a permit holder whose permit is suspended. If a permit suspension is probated, the commissioner may require the permit holder:

(1)  to report regularly to the department on matters that are the basis of the probation; or

(2)  to limit its activities as prescribed by the commissioner.

SECTION 6. Section 154.151, Finance Code, is amended by adding Subsections (d) and (e) to read as follows:

(d)  A sales contract for prepaid funeral benefits, whether in English or Spanish, must be written in plain language designed to be easily understood by the average consumer. The contract must be printed in an easily readable font and type size. The department shall provide model contracts complying with this subsection and shall enforce this subsection.

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(e)  The Finance Commission of Texas by rule shall establish a standard disclosure that must be included in each contract to inform purchasers of the goods and services that will be provided or excluded under the contract and the circumstances under which the contract may be modified after death of the beneficiary.

SECTION 7. Subsection (d), Section 154.155, Finance Code, is amended to read as follows:

(d)  The purchaser is entitled to receive [only ] the actual amount paid by the purchaser and half of all earnings attributable to that money, less the amount permitted to be retained as provided by Section 154.252, except as provided by Subsection (e) and by Sections 154.205 and 154.254.

SECTION 8. Section 154.252, Finance Code, is amended to read as follows:

Sec. 154.252.  RETENTION OF MONEY FOR EXPENSES. The [To cover its selling expenses, service costs, and general overhead, the ] seller of a trust-funded prepaid funeral benefits contract may retain for the seller's use and benefit an amount not to exceed one-half of all money collected or paid until the seller has received an amount equal to 10 percent of the total amount the purchaser agreed to pay under the contract.

SECTION 9.  Section 154.406, Finance Code, is amended to read as follows:

Sec. 154.406.  ADMINISTRATIVE PENALTY. (a)  After notice and opportunity for hearing, the commissioner may impose an administrative penalty on a person who:

(1)  violates this chapter or a final order of the commissioner or rule of the Finance Commission of Texas [commissioner or department; ] and

[(2) ]  does not correct the violation before the 31st day after the date the person receives written notice of the violation from the department; or

(2)  engages in a pattern of violations, as determined by the commissioner.

(b)  The amount of the penalty for each violation may not exceed $1,000 for each day the violation occurs.

(c)  In determining the amount of the penalty, the commissioner shall consider the seriousness of the violation, the person's history of violations, and the person's good faith in attempting to comply with this chapter.

(d)  The imposition of a penalty under this section is subject to judicial review as a contested case under Chapter 2001, Government Code.

(e)  The commissioner may collect the penalty in the same manner that a money judgment is enforced in district court.

SECTION 10. Subchapter I, Chapter 154, Finance Code, is amended by adding Section 154.4061 to read as follows:

Sec. 154.4061.  PATTERN OF WILFUL DISREGARD. (a) If, after a hearing conducted as provided by Chapter 2001, Government Code, the trier of fact finds that a violation of this chapter or a rule of the Finance Commission of Texas establishes a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission, the trier of fact shall recommend to the commissioner that the maximum administrative penalty permitted under Section 154.406 be imposed on the person committing the violation or that the commissioner cancel or not renew the person's permit under this chapter.

(b)  For the purposes of this section, violations corrected as provided by Section 154.406 may be included in determining whether a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission exists.

SECTION 11. Subchapter A, Chapter 712, Health and Safety Code, is amended by adding Section 712.008 to read as follows:

77th Legislature — Regular Session 80th Day

Sec. 712.008.  RULES. The Finance Commission of Texas may adopt rules to enforce and administer this chapter, including rules establishing fees to defray the costs of enforcing and administering this chapter.

SECTION 12. Section 712.042, Health and Safety Code, is amended to read as follows:

Sec. 712.042.  FEES. On filing a statement of funds under Section 712.041, a corporation shall pay the commissioner a reasonable and necessary fee set by rule adopted by the Finance Commission of Texas under Section 712.008 [annually by the commissioner ] to defray the cost of administering this chapter.

SECTION 13. Section 712.044, Health and Safety Code, is amended to read as follows:

Sec. 712.044.  EXAMINATION OF [FUND ] RECORDS; EXAMINATION FEES AND EXPENSES. (a) The commissioner may examine the books and records of a corporation relating to its fund, including deposits to or withdrawals from the fund, income of the fund, and uses and expenditures of that income, [shall be examined ] annually or more [as ] often as necessary to protect the interest of plot owners. In addition, the commissioner may examine consumer complaint files relating to the fund or to discharge of the corporation's perpetual care responsibilities, minutes of the corporation's board of directors, cemetery dedication statements and plat maps, and lawn crypt construction contracts and specifications [by the commissioner. The examination shall cover the period of time from the date of the last examination of the corporation's books and records relating to its fund ].

(b)  A corporation that is examined under this section shall make the specified [its ] books and records [relating to its fund ] available for examination by the banking department upon reasonable notice to the corporation and shall pay to the commissioner for the examination a reasonable and necessary fee set by rules adopted by the Finance Commission of Texas under Section 712.008 [annually by the commissioner ] to defray the cost of administering this chapter.

SECTION 14. Subsections (a), (b), and (c), Section 712.0441, Health and Safety Code, are amended to read as follows:

(a)  After notice and opportunity for hearing, the commissioner may impose an administrative penalty on a person who:

(1)  violates this chapter or a final order of the commissioner or rule of the Finance Commission of Texas and does not correct the violation before the 31st day after the date the person receives written notice of the violation from the banking department; or

(2)  engages in a pattern of violations, as determined by the commissioner.

(b)  The amount of the penalty for each violation may not exceed $1,000 for each day the violation occurs.

(c)  In determining the amount of the penalty, the commissioner shall consider the seriousness of the violation, the person's history of violations, and the person's good faith in attempting to comply with this chapter. The imposition of a penalty under this section is subject to judicial review as a contested case under Chapter 2001, Government Code. The commissioner may collect the penalty in the same manner that a money judgment is enforced in district court. [A corporation shall be subject to a civil penalty upon the occurrence of any of the following violations:

[(1)  the corporation does not make a deposit in its fund as required by Section 712.028;

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[(2)  the corporation does not file a statement of funds as required by Section 712.041; or

[(3)  the corporation does not pay the filing fee as required by Section 712.042.

[(b)  The trustee of a fund shall be subject to a civil penalty upon the occurrence of either of the following violations:

[(1)  the trustee does not file a report required by the commissioner under Section 712.043 within 30 days after the date of the commissioner's request; or

[(2)  the fund does not comply with this chapter.

[(c)  The civil penalty that may be imposed under Subsection (a) or (b) shall not exceed $250 per violation for each day that the violation persists, provided, that the aggregate civil penalty for all violations shall not exceed $500 per day. A corporation or trustee shall have no civil penalty liability if within 30 days after receiving written notice from the commissioner of the violation the corporation or trustee corrects such violation by performing the required duty or act. Any such civil penalty may be imposed by the commissioner after notice and opportunity for hearing in accordance with the procedures for a contested case hearing under the Administrative Procedure and Texas Register Act. In determining the amount of the penalty, the commissioner shall consider the seriousness of the violation and the good faith of the corporation or trustee in its attempts to achieve compliance. The amount of such penalty may be collected by the commissioner in the same manner that money judgments are enforced in the district courts of this state. ]

SECTION 15. Subchapter C, Chapter 712, Health and Safety Code, is amended by adding Section 712.0442 to read as follows:

Sec. 712.0442.  PATTERN OF WILFUL DISREGARD. (a) If, after a hearing conducted as provided by Chapter 2001, Government Code, the trier of fact finds that a violation of this chapter or a rule of the Finance Commission of Texas establishes a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission, the trier of fact shall recommend to the commissioner that the maximum administrative penalty permitted under Section 712.0441 be imposed on the person committing the violation or that the commissioner cancel or not renew the person's permit under Chapter 154, Finance Code, if the person holds such a permit.

(b)  For the purposes of this section, violations corrected as provided by Section 712.0441 may be included in determining whether a pattern of wilful disregard for the requirements of this chapter or rules of the finance commission exists.

SECTION 16. Article 21.07-1, Insurance Code, is amended by adding Section 5B to read as follows:

Sec. 5B.  INSURANCE FUNDED PREPAID FUNERAL CONTRACT SALES. Notwithstanding any other provision of this code, a funeral home employee or other person who has a funeral prearrangement life insurance agent license or a license to sell life insurance not exceeding $15,000 and who writes only life insurance policies and fixed annuity contracts to secure the delivery of funeral services and merchandise under prepaid funeral contracts regulated by the Texas Department of Banking under Chapter 154, Finance Code, is not required to comply with any continuing education requirements in order to maintain such a license, except that the appointing insurance company must educate its appointed agents about any new products sold by the licensed agent to fund prepaid funeral contracts. Such a licensee may be appointed by more than one insurance company.

77th Legislature — Regular Session 80th Day

SECTION 17. (a) The changes in law made by this Act to Subsection (d), Section 154.155, Finance Code, do not apply to cancellation of a contract that was executed and binding on all parties before September 1, 2001. Such a cancellation is governed by the law in effect when the contract was executed, and the former law is continued in effect for that purpose.

(b)  The changes in law made by this Act to Section 154.252, Finance Code, do not apply to a contract that was executed and binding on all parties before September 1, 2001. Such a contract is governed by the law in effect when the contract was executed, and the former law is continued in effect for that purpose.

SECTION 18. This Act takes effect September 1, 2001.

Floor Amendment No. 1

Amend CSSB 314 by adding the following appropriately numbered SECTIONS to the bill and renumbering SECTIONS appropriately:

SECTION _____.  Subchapter D, Chapter 154, Finance Code, is amended by adding Section 154.1551 to read as follows:

Sec. 154.1551.  MODIFICATION AT TIME OF FUNERAL. (a) The funeral merchandise and services to be provided by the seller under a fully paid prepaid funeral benefits contract may be modified after the death of the beneficiary if the modification complies with Subsection (b) or is otherwise agreed to in a writing signed by the seller and the person charged with the disposition of the beneficiary's remains by Section 711.002(a), Health and Safety Code, except that:

(1)  if the purchaser of the contract is also the beneficiary:

(A)  the contracted funeral merchandise and services may not be modified if the contract contains a clause that prohibits modification; and

(B)  a modification may not change the type of disposition specified by the purchaser in the contract, whether by burial, cremation, or another alternative by which the purchaser's remains attain their final resting place, as provided by Section 711.002(g), Health and Safety Code; and

(2)  the value attributed to any contracted funeral merchandise or service that is surrendered or exchanged in a modification must be computed on a comparable time-price basis with the price charged for substituted funeral merchandise or service provided as part of the modification.

(b)  The person charged with the disposition of the beneficiary's remains by Section 711.002(a), Health and Safety Code, may make reasonable modifications to the funeral merchandise and services provided under a prepaid funeral contract at the time the funeral is performed, not to exceed 10 percent of the original purchase price of the contract. This subsection does not require the seller to:

(1)  refund a portion of the funds attributable to the contract if the seller grants credit for surrender or exchange as provided by Subsection (a)(2);

(2)  provide substituted or additional funeral merchandise or services in excess of credits granted under Subsection (a)(2) unless the seller receives additional compensation at current prices; or

(3)  apply a portion of the funds attributable to the contract or credits granted under Subsection (a)(2) to another contract or funeral.

(c)  The person charged with the disposition of the beneficiary's remains by Section 711.002(a), Health and Safety Code, may not modify a prepaid funeral benefits contract that has not been fully paid at the time of death of the beneficiary except as agreed to in a writing signed by the seller and the person.

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SECTION _____. Section 154.156, Finance Code, is amended to read as follows:

Sec. 154.156. WAIVER OF RIGHT OF CANCELLATION. (a) The purchaser of a prepaid funeral benefits contract may irrevocably waive the purchaser's right to cancel the contract under Section 154.155. The waiver must [may be a part of the contract or ] be in a separate writing signed by the purchaser and the seller not earlier than the 15th day after the date of the purchase of the contract. The form of the waiver must comply with the requirements for the form of a sales contract under Section 154.151.

(b)  A waiver made under this section does not affect:

(1)  a right the purchaser has under the contract to change the beneficiary of the contract;

(2)  the purchaser's right to cancel the contract under Section 154.413; [or ]

(3)  an abandonment of the money paid by the purchaser under the contract as provided by Subchapter G; or

(4)  a modification to the contract as provided by Section 154.1551.

Floor Amendment No. 2

Amend CSSB 314 by adding the following SECTIONS, appropriately numbered, and renumbering subsequent SECTIONS of the bill accordingly:

SECTION _____.  Subchapter A, Chapter 712, Health and Safety Code, is amended by adding Section 712.009 to read as follows:

Sec. 712.009.  LIMITATIONS ON BURIALS; DAMAGES. (a)  The Finance Commission of Texas shall adopt rules to administer and enforce this section.

(b)  An individual, corporation, partnership, firm, trust, or association that operates or owns a perpetual care cemetery may not inter the remains of an individual who may have caused the death of another person if:

(1)  the victim is interred in that cemetery; and

(2) the person having the right to control the disposition of the victims's remains under Section 711.002(a) gives written notice to the cemetery requesting that the individual not be interred in that cemetery if:

(A)  the individual was convicted under Section 19.02, 19.03, 19.05, or 49.08, Penal Code, for causing the death of the victim, or convicted under a similar statute of another state; or

(B)  the individual was identified as causing the death of the victim, in violation of a provision described by Paragraph (A), by the medical examiner or law enforcement agency having jurisdiction over the offense, and the individual dies before being convicted of the offense.

(c)  An individual, corporation, partnership, firm, trust, or association that violates Subsection (b) is liable to the person having the right to control the disposition of the victims's remains under Section 711.002(a) for:

(1)  any actual damages incurred;

(2)  punitive damages not to exceed $10,000; and

(3)  reasonable attorney's fees and court costs incurred in an effort to enforce compliance with Subsection (b).

(d)  Damages under Subsection (c) or a civil penalty under Section 712.0441 may not be assessed if the individual, corporation, partnership, firm, trust, or association that operates the cemetery proves by a preponderance of the evidence that:

(1)  the cemetery is the only cemetery serving the municipality or county in which the victim and individual causing the victim's death lived; and

77th Legislature — Regular Session 80th Day

(2)  the bodies of the victim and individual causing the victim's death were placed as far apart as possible in, or in different parts of, the cemetery.

(e)  An individual, corporation, partnership, firm, trust, or association operating or owning a perpetual care cemetery and barred from interring remains of an individual under this section may not be held liable for damages by a person having the right to control the disposition of the individual's remains under Section 711.002(a), including damages for failure to provide for interment under a contract executed before the delivery of the written notice under Subsection (b)(2).

(f)  A notice under Subsection (b)(2) expires seven years after the date the notice is delivered. A new notice may be delivered on the expiration of each previous notice.

SECTION 2. Section 712.0441(a), Health and Safety Code, is amended to read as follows:

(a)  A corporation shall be subject to a civil penalty upon the occurrence of any of the following violations:

(1)  the corporation does not make a deposit in its fund as required by Section 712.028;

(2)  the corporation does not file a statement of funds as required by Section 712.041; [or ]

(3)  the corporation does not pay the filing fee as required by Section 712.042; or

(4)  the corporation violates Section 712.009.

Floor Amendment No. 1 on Third Reading

Amend CSSB 314, on third reading, as follows:

(1)  In Section 712.009, Health and Safety Code, as added by the second reading Allen amendment, in Subsection (d), strike "or a civil penalty under Section 712.0441".

(2)  Strike the section of the bill that amends Section 712.0441(a), Health and Safety Code, as added by the second reading Allen amendment (adding a reference to Section 712.009, Health and Safety Code).

Floor Amendment No. 2 on Third Reading

Amend CSSB 314, on third reading, by adding the following appropriately numbered SECTION of the bill and renumbering SECTIONS appropriately:

SECTION _____. Subchapter A, Chapter 4, Business & Commerce Code, is amended by adding Section 4.112 to read as follows:

Sec. 4.112.  PAYMENT OF CHECK AT PAR. (a) Except as otherwise provided by Chapter 3 or this chapter, a payor bank shall pay a check drawn on it against an account with a sufficient balance at par without regard to whether the payee holds an account at the bank.

(b)  This section does not prohibit a bank from requiring commercially reasonable verification of the payee's identity before settlement of the check.

(c)  In addition to any remedy provided by law, the banking commissioner of Texas, in coordination with the Finance Commission of Texas, shall ensure that payor banks comply with the requirements of this section.

The amendments were read.

On motion of Senator Sibley, the Senate concurred in the House amendments to SB 314 by a viva voce vote.

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SENATE RULE 11.13 SUSPENDED

(Consideration of Bills in Committee)

On motion of Senator Bivins and by unanimous consent, Senate Rule 11.13 was suspended to grant the conference committee on HB 3343 permission to meet while the Senate was meeting today.

HOUSE CONCURRENT RESOLUTION 304

The President laid before the Senate the following resolution:

HCR 304, Honoring Colby Donaldson of Dallas on his award.

DUNCAN

The resolution was read.

On motion of Senator Duncan and by unanimous consent, the resolution was considered immediately and was adopted by a viva voce vote.

GUESTS PRESENTED

Senator Duncan was recognized and introduced to the Senate Colby Donaldson of Dallas from the television series Survivor II: The Australian Outback, accompanied by his family.

The Senate welcomed Mr. Donaldson and his family.

(Senator Brown in Chair)

SENATE RESOLUTION 1086

Senator Gallegos offered the following resolution:

WHEREAS, The Senate of the State of Texas is proud to recognize the 114 fourth grade and 90 fifth grade students from Mario M. Gallegos, Sr., Elementary School in Houston, Texas, who are visiting the State Capitol on May 24, 2001; and

WHEREAS, The distinguished group of students are traveling to Austin to learn firsthand about our state government during the legislative session and to meet with their state senator and state representatives; and

WHEREAS, By exemplifying good citizenship and demonstrating their preparedness for the Texas Assessment of Academic Skills test, these dedicated young people earned the right to make this highly informative trip; and

WHEREAS, The students of today are the citizens and leaders of tomorrow's society who will carry on with the responsibilities of our democratic heritage; and

WHEREAS, It is a special privilege for the Texas Senate to recognize these young people who have demonstrated an interest in being good citizens and in achieving their highest educational potential; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 77th Legislature, hereby commend the students of Mario M. Gallegos, Sr., Elementary School and extend to them best wishes for a most enjoyable visit to the State Capitol; and, be it further

RESOLVED, That a copy of this Resolution be prepared for them as a token of high regard from the Texas Senate.

The resolution was read.

On motion of Senator Truan and by unanimous consent, the names of the Lieutenant Governor and Senators were added to the resolution as signers thereof.

On motion of Senator Gallegos, the resolution was adopted by a viva voce vote.

77th Legislature — Regular Session 80th Day

GUESTS PRESENTED

Senator Gallegos was recognized and introduced to the Senate students from Mario M. Gallegos, Sr., Elementary School in Houston, accompanied by their teachers, parents, and principal.

The Senate welcomed its guests.

RECESS

On motion of Senator Truan, the Senate at 11:55 a.m. recessed until 1:30 p.m. today.

AFTER RECESS

The Senate met at 1:30 p.m. and was called to order by Senator Brown.

SENATE BILL 108 WITH HOUSE AMENDMENTS

Senator Lucio called SB 108 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Amendment

Amend SB 108 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the first day of instruction of a school year for public school students.

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

SECTION 1. Subchapter C, Chapter 25, Education Code, is amended by adding Section 25.0811 to read as follows:

Sec. 25.0811.  FIRST DAY OF INSTRUCTION. (a) A school district may not begin instruction for students for a school year earlier than August 21.

(b)  If a school district intends to apply under Section 7.056 for a waiver of the prohibition prescribed by Subsection (a):

(1)  at least 60 days before the date the district submits the application for the waiver, the district must publish notice in a newspaper having general circulation in the district:

(A)  stating that the district intends to apply for a waiver of the prohibition concerning the date of the first day of instruction for students; and

(B)  specifying the date on which the district intends to begin instruction for students; and

(2)  hold a public hearing concerning the date of the first day of instruction for students.

(c)  The application for a waiver of the prohibition prescribed by Subsection (a) must include a summary of the opinions expressed at the public hearing held under Subsection (b)(2), including any consensus of opinion expressed concerning the date of the first day of instruction for students.

SECTION 2. Section 25.084(a), Education Code, is amended to read as follows:

(a)  A school district may operate its schools year-round on either a single-track or a multitrack calendar. If a school district adopts a year-round system, the district may modify:

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(1)  the number of contract days of employees and the number of days of operation, including any time required for staff development, planning and preparation, and continuing education, otherwise required by law;

(2)  testing dates, data reporting, and related matters; [and ]

(3)  the date of the first day of instruction of the school year under Section 25.0811 for a school that was operating year-round for the 2000-2001 school year; and

(4)  a student's eligibility to participate in extracurricular activities when the student's calendar track is not in session.

SECTION 3. This Act applies beginning with the 2002-2003 school year.

SECTION 4. This Act takes effect September 1, 2001.

Floor Amendment No. 1

Amend CSSB 108 (house committee printing) as follows:

(1) SECTION 1, Section 25.0811, Education Code, subsection (a) (committee printing page 1, line 9), strike "earlier than August 21" and substitute "before the week in which August 21 falls."

(2) SECTION 1, Section 25.0811, Education Code, strike subsections (b) and (c) (committee printing, page 1, line 10, through page 2, line 2) and substitute the following:

"(b) For purposes of this section, Sunday is considered the first day of the week.

Floor Amendment No. 1 on Third Reading

Amend CSSB 108 on third reading as follows:

(1) In SECTION 1 of the bill, in added Subsection (a), Section 25.0811, Education Code, after the period, insert "For purposes of this subsection, Sunday is considered the first day of the week.".

(2) In SECTION 1 of the bill, strike added Subsection (b), Section 25.0811, Education Code, and substitute the following:

(b) If a school district intends to apply under Section 7.056 for a waiver of the prohibition prescribed by Subsection (a), the district must:

(1) at least 60 days before the date the district submits the application for the waiver, publish notice in a newspaper having general circulation in the district:

(A) stating that the district intends to apply for a waiver of the prohibition concerning the date of the first day of instruction for students; and

(B) specifying the date in which the district intends to begin instruction for students; and

(2) hold a public hearing concerning the date of the first day of instruction for students.

(c) The application for a waiver of the prohibition prescribed by Subsection (a) must include a summary of the opinions expressed at the public hearing held under Subsection (b)(2), including any consensus of opinion expressed concerning the date of the first day of instruction for students.

The amendments were read.

On motion of Senator Lucio, the Senate concurred in the House amendments to SB 108 by a viva voce vote.

77th Legislature — Regular Session 80th Day

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 24, 2001

The Honorable President of the Senate

Senate Chamber

Austin, Texas

Mr. President:

I am directed by the House to inform the Senate that the House has taken the following action:

THE HOUSE HAS PASSED THE FOLLOWING MEASURES:

HCR 308, Honoring Wayne Scott of Huntsville on his impending retirement as executive director of the Texas Department of Criminal Justice.

HCR 310, Congratulating L. C. Stout on his retirement as superintendent of the Prairiland Independent School District.

HCR 311, Honoring W. Carl McEachern on his retirement as superintendent of the Bonham Independent School District.

HCR 312, Honoring H. L. Milton on his retirement as superintendent of the Honey Grove Independent School District.

Respectfully,

/s/Sharon Carter, Chief Clerk

House of Representatives

SENATE BILL 484 WITH HOUSE AMENDMENTS

Senator Duncan called SB 484 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 484 as follows and renumber sections accordingly:

SECTION 4. Section 5, Article 9102, Subsection (p), Revised Statutes, is amended to read as follows:

(p) Notwithstanding other provisions of this article, the commission shall require complete compliance with the standards and specifications prescribed or referenced by Subsection (o) of this section. The department and the General Services Commission shall ensure that all buildings and facilities leased, with an annual lease expense in excess of $12,000, built by or for the state to which those standards apply comply with those standards. Notwithstanding other provisions of this article, the department shall perform an on-site inspection of all buildings and facilities to be leased by the state, with and annual lease expense in excess of $12,000, before the building or facility is occupies by the state for compliance with all accessibility standards and specifications adopted under this article. The leasing agency or the

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General Services Commission, as applicable, shall cancel the lease unless the lessor brings into compliance with all accessibility standards and specifications adopted under this article. The leasing agency or the General Services Commission, as applicable, shall cancel the lease unless the lessor brings into compliance any condition that the inspection finds not to be in compliance with all applicable standards and specifications not later than:

(1) the 60th day after the date the department delivers the results of the inspection to the lessor or the lessor's agent; or

(2) a later date established by the commission if circumstances justify a later date.

Floor Amendment No. 2

Amend SB 484 as follows:

(1) On page 1, add the following new Section 1 and renumber the subsequent sections accordingly:

SECTION 1. Section 2, Article 9102, Subsection (c) and (d), Revised Statutes, are amended to read as follows:

(c) The commission may waive or modify accessibility standards adopted under this article when:

(1) the application of the standards is considered by the commission to be irrelevant to the nature, use, or function of a building or facility covered by this article; or

(2) the owner of a building or facility that is the subject of a request for a waiver or modification of a standard under this subsection, or the owner's designated agent, presents proof to the commission that compliance with the particular standard is impracticable impractical.

(d) An owner of a building described by Subsection (a)(3) of this section or of building or facility leased or rented for use by the state through the use of federal funds, or the owner's designated agent, must present to the commission the proof required by Subsection (c)(2) of this section before the date the owner:

(1) submits a bid proposal in relation to the award of a contract for the lease or rental of the building or facility; or

(2) is awarded the contract for the lease or rental of the building or facility if the state does not advertise for bids.

Floor Amendment No. 3

Amend SB 484, in SECTION 1 of the bill, in amended Section 5, Article 9102, Revised Statutes (House Committee Printing page 1, lines 10-15) by striking amended Subsection (d) of that section and substituting the following:

(d) The commission may contract with other state agencies and[, ] political subdivisions[, nonprofit organizations, and private independent contractors ] to perform the commission's review and inspection functions. A person who holds a certificate of registration issued under Section 5A of this article may perform review functions of the commission, inspection functions of the commission, or both review and inspection functions as provided by the certificate [for facilities that are not leased by the state or a political subdivision and may terminate those contracts for cause ].

77th Legislature — Regular Session 80th Day

Floor Amendment No. 1 on Third Reading

Amend SB 484, on third reading, by striking Subsection (p), Section 5, Article 9102, Revised Statutes, as amended on second reading by Amendment No. 1 by Pitts, and substituting the following:

(q) [(p) ]  Notwithstanding other provisions of this article, the commission shall require complete compliance with the standards and specifications prescribed or referenced by Subsection (p) [(o) ] of this section. The department and the General Services Commission shall ensure that all buildings and facilities leased, with an annual lease expense in excess of $12,000, or built by or for the state to which those standards apply comply with those standards. The [Notwithstanding other provisions of this article, the ] department, an entity with whom the commission contracts under Subsection (d) of this section, or a person who holds a certificate of registration issued under Section 5A of this article shall perform an on-site inspection of each building or facility [all buildings and facilities to be ] leased by the state, with an annual lease expense in excess of $12,000, before the building or facility is occupied in whole or in part by the state for compliance with all accessibility standards and specifications adopted under this article. The leasing agency or the General Services Commission, as applicable, shall cancel the lease unless the lessor brings into compliance any condition that the inspection finds not to be in compliance with all applicable standards and specifications not later than:

(1)  the 60th day after the date the department, the entity with whom the commission contracts under Subsection (d) of this section, or the person who holds a certificate of registration issued under Section 5A of this article delivers the results of the inspection to the lessor or the lessor's agent; or

(2)  a later date established by the commission if circumstances justify a later date.

Floor Amendment No. 2 on Third Reading

Amend SB 484 on third reading as follows:

(1) In SECTION 1 of the bill, in the introductory language, between "(d)," and "(n)" (house committee printing page 1, line 8), insert "(k),".

(2) In SECTION 1 of the bill, in amended Section 5, Article 9102, Revised Statutes, between Subsections (d) and (n) (house committee printing page 1, between lines 15 and 16), insert the following:

(k) Plans and specifications that are subject to Subsection (j) of this section [related to the building or facility ] shall be submitted to the department by the architect, interior designer, landscape architect, or engineer who has overall responsibility for the design of the constructed or reconstructed building or facility. The architect, interior designer, landscape architect, or engineer shall submit the plans and specifications to the department not later than the fifth day, not including Saturdays, Sundays, and legal holidays, after the date on which the architect, interior designer, landscape architect, or engineer, as appropriate, issues the plans or specifications. If plans and specifications are issued on more than one date, the architect, interior designer, landscape architect, or engineer shall submit the plans and specifications to the department not later than the fifth day, not including Saturdays, Sundays, and legal holidays, after each date the plans and specifications are issued. The owner of the building or facility may not allow an application to be filed with a local governmental entity for a building construction permit related

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to the plans and specifications or allow construction, renovation, modification, or alteration of the building or facility to begin before the date the plans and specifications are submitted to the department [places the applicable professional seal on the plans and specifications. If there is no architect, interior designer, landscape architect, or engineer with that responsibility, the owner shall submit the plans and specifications to the department at least 30 days within the date the construction or renovation, modification, or alteration on the building or facility begins ]. On application to a local governmental entity for a building construction permit related to the plans and specifications, the owner shall submit to the entity proof that the plans and specifications have been submitted to the department under this article. A public official of a political subdivision who is legally authorized to issue building construction permits may not accept an application for a building construction permit for a building or facility subject to Subsection (j) of this section unless the official verifies that the building or facility has been registered with the department as provided by rule.

The amendments were read.

Senator Duncan moved to concur in the House amendments to SB 484.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

SENATE BILL 82 WITH HOUSE AMENDMENT

Senator Madla called SB 82 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer, Senator Brown in Chair, laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

Amend SB 82 (senate engrossment) by striking lines 8 through 12 on page 1 (in amended Section 130.008(a), Education Code) and substituting the following:

(a)  Under an agreement with a school district or, in the case of a private high school, with the organization or other person that operates the high school, a public junior college may offer a course in which a student attending a high school operated in this state by the school district, organization, or other person may enroll and for which the student may simultaneously receive both:

The amendment was read.

On motion of Senator Madla, the Senate concurred in the House amendment to SB 82 by a viva voce vote.

SENATE BILL 393 WITH HOUSE AMENDMENTS

Senator Carona called SB 393 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 393 at the end of Section 6(a) (on page 18, line 10), between "time to time" and the period by inserting the following:

77th Legislature — Regular Session 80th Day

, and specifically does not authorize the electronic delivery of any notice of the type described by Section 103(b), Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7003), as amended from time to time, including:

(1) any notice of:

(A) the cancellation or termination of utility services (including water, heat, and power);

(B) default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual;

(C) the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities); or

(D) recall of a product, or material failure of a product, that risks endangering health or safety; or

(2) any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials.

Floor Amendment No. 2

Amend SB 393 by striking Subsections (b) and (c) of SECTION 6 of the bill (house committee report, page 18, line 11, through page 19, line 3), and substituting the following:

(b)  If a federal regulatory agency under Section 104(d)(1), Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7004), exempts a specified category or type of record from the requirements relating to consent in Section 101(c), Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001), or if a federal regulatory agency under Section 103(c)(2), Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7003), removes an exception for a type of document from the application of Section 101, Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001), the regulatory agency of this state with jurisdiction over the subject matter with respect to which the federal action was taken may exempt the specified category or type of record from the application of Chapter 43, Business & Commerce Code, as added by this Act. An exemption under this subsection must be by rule or order of the state regulatory agency after notice and an opportunity for public comment.

Floor Amendment No. 4

Amend SB 393 in section 1 of the bill, following added section 43.019, Business & Commerce Code, by inserting the following:

Sec. 43.020. APPLICABILITY OF PENAL CODE. "This chapter does not authorize any activity that is prohibited by the Penal Code."

The amendments were read.

On motion of Senator Carona, the Senate concurred in the House amendments to SB 393 by a viva voce vote.

SENATE BILL 779 WITH HOUSE AMENDMENT

Senator Duncan called SB 779 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

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Amendment

Amend SB 779 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of an agricultural lien.

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

SECTION 1. Chapter 70, Property Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. AGRICULTURAL LIENS

Sec. 70.401.  DEFINITIONS. In this subchapter:

(1)  "Agricultural crop" means a plant product that is grown, produced, or harvested as a result of an agricultural producer's farm operation.

(2)  "Agricultural producer" means a person who is engaged in the business of growing, producing, or harvesting an agricultural crop.

(3)  "Buyer in ordinary course of business" has the meaning assigned by Section 1.201, Business & Commerce Code.

(4)  "Contract purchaser" means a person who, before the planting of an agricultural crop, has agreed under a written contract to purchase the crop or otherwise pay the agricultural producer for growing, producing, or harvesting the agricultural crop. The term does not include a person who, as to the transaction in question, is licensed and bonded under Chapter 14, Agriculture Code, or the United States Warehouse Act (7 U.S.C. Section 241 et seq.).

Sec. 70.402.  LIEN CREATED. (a) An agricultural producer who, under a written contract with a contract purchaser, is to receive consideration for selling an agricultural crop grown, produced, or harvested by the producer has a lien for the amount owed under the contract, or for the reasonable value of the crop on the date of transfer or delivery if there is no provision concerning the amount owed in the agreement.

(b)  A lien created under this subchapter is on every agricultural crop, either in raw or processed form, that has been transferred or delivered by the agricultural producer and is in the possession of the contract purchaser. If the agricultural crop is commingled after the crop has been transferred or delivered, a lien created under this subchapter applies only to that portion of the contract purchaser's inventory in an amount that is equal to the amount of the crop transferred or delivered by the agricultural producer.

(c)  For purposes of this subchapter, an agricultural crop or processed form of an agricultural crop deposited by a contract purchaser with a warehouse, whether or not a warehouse receipt is given as security, is considered to be in the possession of the contract purchaser and subject to the lien.

Sec. 70.403.  WHEN LIEN ATTACHES. A lien created under this subchapter attaches to the agricultural crop on the date on which physical possession of the crop is delivered or transferred by the agricultural producer to the contract purchaser or the purchaser's agent, or if there is to be a series of deliveries to the contract purchaser or purchaser's agent, on the date of the last delivery of the agricultural crop to the contract purchaser or purchaser's agent.

Sec. 70.404.  APPLICABILITY OF OTHER LAW. Chapter 9, Business & Commerce Code, including applicable filing and perfection requirements, applies to a lien created under this subchapter.

77th Legislature — Regular Session 80th Day

Sec. 70.405.  DURATION OF LIEN. A lien created under this subchapter expires on the first anniversary of the date of attachment.

Sec. 70.406.  EFFECT OF LIEN; RECOVERY. (a) A buyer in ordinary course of business of an agricultural crop, including a person who buys any portion of an agricultural crop from a contract purchaser, whether or not the agricultural crop has been commingled, takes the agricultural crop free of a lien created under this subchapter, and the lien created by this subchapter does not pass to any subsequent claimant of the agricultural crop.

(b)  An unequal pro rata recovery between agricultural producers is not prohibited under this subchapter if the inequality results from a lien on accounts receivable.

Sec. 70.407.  DISCHARGE OF LIEN. (a) A lien created under this subchapter is discharged when:

(1)  the lienholder receives full payment for the agricultural crop; or

(2)  payment is tendered by the contract purchaser and the lienholder, without coercion, defers payment.

(b)  If payment for the agricultural crop is received in the form of a negotiable instrument, full payment is received when the negotiable instrument clears all financial institutions.

Sec. 70.408.  JOINDER OF ACTIONS. Persons claiming a lien against the same agricultural crop under this subchapter may join in the same action, and if separate actions are commenced, the court may consolidate them.

Sec. 70.409.  RECOVERY OF COSTS. An agricultural producer who prevails in an action brought to enforce a lien created under this subchapter is entitled to recover:

(1)  reasonable and necessary attorney's fees and court costs; and

(2)  interest on funds subject to the lien at the judgment interest rate as provided by Chapter 304, Finance Code.

Sec. 70.410.  WAIVER OF CERTAIN RIGHTS PROHIBITED. An agricultural producer's agreement with a contract purchaser to waive the producer's right to seek a remedy provided by this subchapter is void.

SECTION 2. This Act takes effect September 1, 2001, and applies only to a contract to purchase agricultural crops entered into on or after the effective date of this Act. A contract to purchase agricultural crops entered into before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

The amendment was read.

On motion of Senator Duncan, the Senate concurred in the House amendment to SB 779 by a viva voce vote.

SENATE BILL 965 WITH HOUSE AMENDMENT

Senator Jackson called SB 965 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 965 (House committee report) in SECTION 1 of the bill as follows:

(1)  In Subsection (d), Section 16.01, Alcoholic Beverage Code, as amended by the bill (page 1, line 14), strike "or".

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(2)  In Subsection (d), Section 16.01, Alcoholic Beverage Code, as amended by the bill, between "international airport" and the period (page 1, line 20), insert the following:

"; or

(3)  in a county that:

(A)  has a population of 20,000 or more; and

(B)  has within its boundaries all or part of three or more American viticultural areas, as recognized and defined by the United States Bureau of Alcohol, Tobacco and Firearms".

The amendment was read.

On motion of Senator Jackson, the Senate concurred in the House amendment to SB 965 by a viva voce vote.

SENATE BILL 1467 WITH HOUSE AMENDMENT

Senator Moncrief called SB 1467 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 1467 (house committee printing) in SECTION 1 of the bill as follows:

(1)  In Subsection (a), Section 2, Article 21.53S, Insurance Code, as added by the bill:

(A)  After Subparagraph (iii), Paragraph (A) (page 1, between lines 24 and 25), insert the following:

(iv)  a Lloyd's plan operating under Chapter 18 of this code;

(B)  Insert "or" after the semicolon on page 2, line 16.

(C)  Strike Subdivision (3) (page 2, lines 17-21).

(D)  Renumber existing subparagraphs and subdivisions of the subsection appropriately.

(2)  In Subdivision (2), Subsection (b), Section 2, Article 21.53S, Insurance Code, as added by the bill, between "a" and "plan" (page 3, line 10), insert "small employer".

(3)  In Subsection (a), Section 3, Article 21.53S, Insurance Code, as added by the bill:

(A)  Strike "diagnostic" in each place the word appears in that subsection and substitute "screening" (page 3, line 24, and page 4, line 1).

(B)  Between "older" and "for" (page 3, line 26), insert "and at normal risk for developing colon cancer".

(4)  Strike Subsection (b), Section 3, Article 21.53S, Insurance Code, as added by the bill (page 4, lines 3 through 8), and substitute the following:

(b)  The minimum benefits provided under Subsection (a) of this section must:

(1)  include:

(A)  a fecal occult blood test performed annually; and

(B)  a flexible sigmoidoscopy performed every five years; or

(2)  include a colonoscopy performed every 10 years.

The amendment was read.

On motion of Senator Moncrief, the Senate concurred in the House amendment to SB 1467 by a viva voce vote.

77th Legislature — Regular Session 80th Day

SENATE BILL 352 WITH HOUSE AMENDMENT

Senator Truan called SB 352 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer, Senator Brown in Chair, laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 352 (House committee printing) in SECTION 1 of the bill, at the end of amended Section 364.034, Health and Safety Code (page 2, between lines 20 and 21), by adding a new Subsection (e) to read as follows:

(e)  This section does not apply to a person who provides the public or private entity, public agency, or county with written documentation that the person is receiving solid waste disposal services from another entity.

The amendment was read.

On motion of Senator Truan, the Senate concurred in the House amendment to SB 352 by a viva voce vote.

GUESTS PRESENTED

Senator Truan was recognized and introduced to the Senate seventh-grade students from Tuloso-Midway Middle School in Corpus Christi, accompanied by their teachers and parents.

The Senate welcomed its guests.

SENATE BILL 350 WITH HOUSE AMENDMENT

Senator Truan called SB 350 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 350 in SECTION 1 of the bill (House committee report, page 2, lines 17-19), by striking proposed Section 44.043(f), Education Code, and substituting the following:

(f)  A school district that requires a wage rate under this section shall specify in the call for bids for the contract and in the contract itself the wage rates required by the district.

The amendment was read.

On motion of Senator Truan, the Senate concurred in the House amendment to SB 350 by a viva voce vote.

SENATE BILL 1797 WITH HOUSE AMENDMENT

Senator Carona called SB 1797 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

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Floor Amendment No. 1

Amend SB 1797 by adding the following sections, appropriately numbered, and renumbering the sections of the bill accordingly:

SECTION 2. Section 2(4), The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended to read as follows:

(4)  "Practice of engineering," or "practice of professional engineering" shall mean any service or creative work, either public or private, the adequate performance of which requires engineering education, training and experience in the application of special knowledge or judgment of the mathematical, physical, or engineering sciences to such services or creative work.

To the extent the following services or types of creative work meet this definition, the term includes consultation, investigation, evaluation, analysis, planning, engineering for program management, providing an expert engineering opinion or testimony, engineering for testing or evaluating materials for construction and other engineering uses, and mapping; design, conceptual design, or conceptual design coordination of engineering works and systems; development or optimization of plans and specifications for engineering works and systems; planning the use or alteration of land and water or the design or analysis of works or systems for the use or alteration of land and water; [teaching advanced engineering subjects; ] performing engineering surveys and studies; engineering for construction, alteration, or repair of real property; engineering for preparation of operating and maintenance manuals; and engineering for review of the construction or installation of engineered works to monitor compliance with drawings and specifications.

The activities included in the practice of engineering include services, designs, analyses, or other work performed for a public or private entity in connection with utilities, structures, buildings, machines, equipment, processes, systems, works, projects, and industrial or consumer products or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature and include other professional services necessary for the planning, progress, and completion of any engineering service.

In this subdivision:

(A)  "Design coordination" includes the review and coordination of technical submissions prepared by others, including the work of other professionals working with or under the direction of an engineer with due professional regard for the abilities of all professional parties involved in a multidisciplinary effort.

(B)  "Engineering surveys" includes all survey activities required to support the sound conception, planning, design, construction, maintenance, and operation of an engineered project, but does not include the surveying of real property and other activities regulated under the Professional Land Surveying Practices Act (Article 5282c, Vernon's Texas Civil Statutes).

SECTION _____. Section 12(c), The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is amended to read as follows:

(c)  In considering the qualifications of applicants, [responsible charge of ] engineering teaching may not be construed as active practice in [responsible charge of ] engineering work. The mere execution, as a contractor, of work designed by a

77th Legislature — Regular Session 80th Day

professional engineer, or the supervision of the construction of such work as foreman or superintendent shall not be deemed to be active practice in engineering work.

SECTION _____. The change in law made by this Act to Section 12(c), The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes), applies only to a person who begins the teaching of engineering on or after September 1, 2001. A person who has engaged in the teaching of engineering before that date is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

The amendment was read.

Senator Carona moved to concur in the House amendment to SB 1797.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

STATEMENT OF LEGISLATIVE INTENT

Senator Carona submitted the following statement of legislative intent for SB 1797:

The purpose of SB 1797 is to provide exemption from the licensing requirements of The Texas Engineering Practice Act for faculty members at Texas public and private institutions of higher education who instruct students or perform research within the scope of their university employment. A significant number of faculty members in engineering schools are not engineers but teach content that is critical to students who will be this century's engineers. This exemption is an important step in achieving the state's goal of increasing the number of engineering graduates to address the critical shortage of personnel in Texas industry.

It is the intent of this legislation and of the Legislature that the State Board of Professional Engineers takes no actions and promulgates no rules that make it more difficult for faculty members who wish to become licensed to do so. We also intend for the Board to avoid other actions that inhibit universities' efforts to produce more engineers. This legislation and other related legislation passed by this Legislature does not imply that research conducted by engineering faculty cannot be counted as engineering experience for licensure purposes; nor does it mean that the Board has any authority to limit research performed by engineering faculty members.

CARONA

CONFERENCE COMMITTEE REPORT ON

SENATE BILL 1074 ADOPTED

Senator West called from the President's table the Conference Committee Report on SB 1074. The Conference Committee Report was filed with the Senate on Tuesday, May 22, 2001.

On motion of Senator West, the Conference Commitee Report was adopted by a viva voce vote.

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CONFERENCE COMMITTEE ON HOUSE BILL 3313

Senator Bernsen called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HB 3313 and moved that the request be granted.

The motion prevailed.

The Presiding Officer asked if there were any motions to instruct the conference committee on HB 3313 before appointment.

There were no motions offered.

Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill: Senators Bernsen, Chair; Staples, Gallegos, Van de Putte, and Bivins.

SENATE BILL 326 WITH HOUSE AMENDMENT

Senator Lucio called SB 326 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Committee Amendment No. 1

Amend SB 326 as follows:

(1)  In SECTION 1 of the bill, in added Subchapter CC, Government Code (page 4, between lines 19 and 20, senate engrossment), add a new Section 481.459 to read as follows:

Sec. 451.459.  PERFORMANCE OF FUNCTIONS OF DEPARTMENT. If another state agency or office assumes the functions of the department, that agency or office shall perform the functions of the department under this subchapter.

(2)  In SECTION 2 of the bill (page 4, line 21, senate engrossment), between "Development" and "shall" insert ", or other state agency or office that performs the functions of the Texas Department of Economic Development,".

The amendment was read.

Senator Lucio moved to concur in the House amendment to SB 326.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

(Senator Madla in Chair)

(President in Chair)

SENATE BILL 5 WITH HOUSE AMENDMENTS

Senator Brown called SB 5 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

77th Legislature — Regular Session 80th Day

Amendment

Amend SB 5 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the Texas emissions reduction plan; providing a penalty.

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

SECTION 1.  (a)  It is the intent of the legislature to give the Texas Natural Resource Conservation Commission additional tools to:

(1)  assure that the air in this state is safe to breathe and meets minimum federal standards established under the federal Clean Air Act (42 U.S.C. Section 7407);

(2)  develop multipollutant approaches to solving the state's environmental problems; and

(3)  adequately fund research and development that will make the state a leader in new technologies that can solve the state's environmental problems while creating new business and industry in the state.

(b)  Subtitle C, Title 5, Health and Safety Code, is amended by adding Chapters 386, 387, 388, and 389 to read as follows:

CHAPTER 386. TEXAS EMISSIONS REDUCTION PLAN

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 386.001.  DEFINITIONS. In this chapter:

(1)  "Advisory board" means the Texas Emissions Reduction Plan Advisory Board.

(2)  "Affected county" includes:

(A) Bastrop County;

(B) Bexar County;

(C) Caldwell County;

(D)  Comal County;

(E)  Ellis County;

(F) Gregg County;

(G) Guadalupe County;

(H) Harrison County;

(I) Hays County;

(J)  Johnson County;

(K)  Kaufman County;

(L)  Nueces County;

(M)  Parker County;

(N)  Rockwall County;

(O)  Rusk County;

(P)  San Patricio County;

(Q)  Smith County;

(R)  Travis County;

(S)  Upshur County;

(T)  Victoria County;

(U)  Williamson County; and

(V)  Wilson County.

(3)  "Commission" means the Texas Natural Resource Conservation Commission.

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(4)  "Council" means the Texas Council on Environmental Technology.

(5)  "Fund" means the Texas emissions reduction plan fund.

(6)  "Incremental cost" means the cost of an applicant's project less a baseline cost that would otherwise be incurred by an applicant in the normal course of business. Incremental costs may include added lease or fuel costs as well as additional capital costs.

(7)  "Laboratory" means the Energy Systems Laboratory at the Texas Engineering Experiment Station of The Texas A&M University System.

(8)  "Nonattainment area" means an area so designated under Section 107(d) of the federal Clean Air Act (42 U.S.C. Section 7407), as amended.

(9)  "Plan" means the Texas emissions reduction plan.

(10)  "Site" means the total of all stationary sources located on one or more contiguous or adjacent properties, which are under common control of the same person or persons under common control.

(11)  "Utility commission" means the Public Utility Commission of Texas.

Sec. 386.002.  EXPIRATION. This chapter expires August 31, 2008.

[Sections 386.003-386.050 reserved for expansion]

SUBCHAPTER B. TEXAS EMISSIONS REDUCTION PLAN

Sec. 386.051.  TEXAS EMISSIONS REDUCTION PLAN. (a) The utility commission, the commission, the comptroller, and the council shall establish and administer the Texas emissions reduction plan in accordance with this chapter.

(b)  Under the plan, the commission, the comptroller, and the council shall provide grants or other funding for:

(1)  the diesel emissions reduction incentive program established under Subchapter C, including for infrastructure projects established under that subchapter;

(2)  the motor vehicle purchase or lease incentive program established under Subchapter D; and

(3)  the new technology research and development program established under Chapter 387.

(c)  Under the plan, the utility commission shall provide grants or other funding for the energy efficiency grant program established under Subchapter E.

(d)  Equipment purchased before September 1, 2001, is not eligible for a grant or other funding under the plan.

Sec. 386.052.  COMMISSION DUTIES. (a)  In administering the plan established under this chapter and in accordance with the requirements of this chapter, the commission shall:

(1)  manage plan funds and oversee the plan;

(2)  produce guidelines, protocols, and criteria for eligible projects;

(3)  develop methodologies for evaluating project cost-effectiveness;

(4)  prepare reports regarding the progress and effectiveness of the plan; and

(5)  take all appropriate and necessary actions so that emissions reductions achieved through the plan are credited by the United States Environmental Protection Agency to the appropriate emissions reduction objectives in the state implementation plan.

(b)  Appropriate commission objectives include:

(1)  achieving maximum reductions in oxides of nitrogen to demonstrate compliance with the state implementation plan;

77th Legislature — Regular Session 80th Day

(2)  preventing areas of the state from being in violation of national ambient air quality standards; and

(3)  achieving cost-saving and multiple benefits by reducing emissions of other pollutants.

Sec. 386.053.  GUIDELINES AND CRITERIA. (a) The commission shall adopt grant guidelines and criteria consistent with the requirements of this chapter.

(b)  Guidelines must include protocols to calculate projected emissions reductions, project cost-effectiveness, and safeguards to ensure that funded projects generate emissions reductions not otherwise required by state or federal law.

(c)  The commission shall make draft guidelines and criteria available to the public and the United States Environmental Protection Agency before the 45th day preceding the date of final adoption and shall hold at least one public meeting to consider public comments on the draft guidelines and criteria before final adoption.

(d)  The commission may propose revisions to the guidelines and criteria adopted under this section as necessary to improve the ability of the plan to achieve its goals. Revisions may include, among other changes, adding additional pollutants or adjusting eligible program categories, as appropriate, to ensure that incentives established under this chapter achieve the maximum possible emissions reductions. The commission shall make a proposed revision available to the public before the 45th day preceding the date of final adoption of the revision and shall hold at least one public meeting to consider public comments on the proposed revision before final adoption.

(e)  Because the legislature finds that the current state of air quality in the state jeopardizes the state's ability to meet federal air quality requirements, the commission and the comptroller may adopt emergency rules under Section 2001.034, Government Code, with abbreviated notice, to carry out any rulemaking necessary to implement this chapter.

(f)  Except as provided by Subsection (e), the rulemaking requirements of Chapter 2001, Government Code, do not apply to the adoption or revision of guidelines and criteria under this section.

Sec. 386.054.  MONITORING PROCEDURES. (a)  The commission shall develop procedures for monitoring whether the emissions reductions projected for projects awarded grants under this chapter are actually achieved. Monitoring procedures may include project reviews and contract requirements that the grant recipient provide information annually about the project. If the commission requires an annual report, the report shall contain a minimum amount of information required from a recipient and the report format shall be simple and convenient.

(b)  Monitoring and reviewing procedures must be sufficient to enable emissions reductions generated by funded projects to be fully credited to air quality plans.

(c)  The commission may revise monitoring and review procedures from time to time as necessary or appropriate to enhance the effectiveness of the plan.

Sec. 386.055.  AVAILABILITY OF EMISSIONS REDUCTION CREDITS GENERALLY. (a) A project funded under a program established under this chapter may not be used for credit under any state or federal emissions reduction credit averaging, banking, or trading program.

(b)  An emissions reduction generated by a program established under this chapter:

(1)  may not be used as a marketable emissions reduction credit or, except as provided by Section 386.056, to offset any emissions reduction obligation; and

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(2)  may be used to demonstrate conformity with the state implementation plan.

(c)  A project involving a new emissions reduction measure that would otherwise generate marketable credits under state or federal emissions reduction credit averaging, banking, or trading programs is not eligible for funding under a program established under this chapter unless:

(1)  the project includes the transfer of the reductions that would otherwise be marketable credits to the state implementation plan or the owner or operator as provided by Section 386.056; and

(2)  the reductions are permanently retired.

Sec. 386.056.  AVAILABILITY OF EMISSIONS REDUCTIONS IN CERTAIN NONATTAINMENT AREAS. (a)  An owner or operator of a site located in the Houston-Galveston or Dallas-Fort Worth nonattainment area may use emissions reductions generated by a program established under this chapter to offset the requirements of commission rules relating to control of air pollution from oxides of nitrogen if:

(1)  the owner or operator of the site contributes to the fund $75,000 for each ton of emissions that is used, not to exceed 25 tons annually and not to exceed one-half ton per day;

(2)  the owner or operator of the site demonstrates to the commission's satisfaction that the site will be in full compliance with the commission's emissions reduction rules not later than the fifth anniversary of the date on which the emissions reductions would otherwise be required;

(3)  emissions from the site are reduced by at least 80 percent from the established baseline; and

(4)  the commission approves a petition by the owner or operator that demonstrates that it is technically infeasible to comply with the commission's emissions reduction requirements above 80 percent.

(b)  Funds collected under this section shall be used to generate emissions reductions needed to meet the commission's attainment demonstration.

(c)  The commission shall verify that emissions reductions generated from funds collected under this section occur in the same nonattainment area in which the site that purchased the emissions reductions is located.

(d)  The commission shall assure that the emissions reductions funded under the programs authorized by this subchapter used to offset commission requirements under this section benefit the community in which the site using the emissions reductions is located. If there are no eligible emissions reduction projects within the community, the commission may authorize projects in an adjacent community. In this subsection, "community" means a justice of the peace precinct.

Sec. 386.057.  REVIEW AND REPORTING REQUIREMENTS. (a) The commission, in consultation with the advisory board, annually shall review programs established under the plan, including each project funded under the plan, the amount granted for the project, the emissions reductions attributable to the project, and the cost-effectiveness of the project.

(b)  Not later than December 1, 2002, and not later than December 1 of each subsequent second year, the commission, in consultation with the advisory board, shall publish and submit to the legislature a biennial plan report. The report must include:

(1)  the information included in the annual reviews conducted under Subsection (a);

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(2)  specific information for individual projects as required by Subsection (c);

(3)  information contained in reports received under Sections 386.205, 388.003(e), and 388.006; and

(4)  a summary of the commission's activities under Section 386.052.

(c)  For projects funded as part of the infrastructure program under Subchapter C, the report must:

(1)  describe and evaluate:

(A)  the infrastructure facilities funded under that subchapter;

(B)  the degree to which the funded facilities are supporting on-road or non-road diesel projects;

(C)  the amount of fuel or electricity dispensed for each facility; and

(D)  associated emissions reductions and cost-effectiveness; and

(2)  make a finding regarding the need for additional appropriations from the fund to improve the ability of the program to achieve its goals.

(d)  The report must:

(1)  account for money received, money disbursed as grants, money reserved for grants based on project approvals, and any recommended transfer of money between allocations and must estimate future demand for grant funds under the plan;

(2)  describe the overall effectiveness of the plan in delivering the emissions reductions that may be credited to air quality plans;

(3)  evaluate the effectiveness of the plan in soliciting and evaluating project applications, providing awards in a timely manner, and monitoring project implementation;

(4)  describe adjustments made to project selection criteria and recommend any further needed changes or adjustments to the grant programs, including changes in grant award criteria, administrative procedures, or statutory provisions that would enhance the plan's effectiveness and efficiency;

(5)  describe adjustments made to the maximum cost-effectiveness amount and award amount;

(6)  evaluate the benefits of addressing additional pollutants as part of the plan; and

(7)  include legislative recommendations necessary to improve the effectiveness of the plan.

(e)  The commission shall request public comment and hold a public meeting on each draft biennial report and, in producing a final biennial report, shall consider and respond to all significant comments received.

Sec. 386.058.  TEXAS EMISSIONS REDUCTION PLAN ADVISORY BOARD. (a) The Texas Emissions Reduction Plan Advisory Board consists of 15 members appointed as provided by this section and seven ex officio members as provided by this section.

(b)  The governor shall appoint to the advisory board:

(1)  a representative of the trucking industry;

(2)  a representative of the air conditioning manufacturing industry;

(3)  a representative of the electric utility industry;

(4)  a representative of regional transportation; and

(5)  a representative of the Texas Council on Environmental Technology.

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(c)  The lieutenant governor shall appoint to the advisory board:

(1)  a representative of the engine manufacturing industry;

(2)  a representative of the air transportation industry;

(3)  a representative of the environmental community;

(4)  a representative of the fuel cell industry; and

(5)  a representative of the energy-efficient construction industry.

(d)  The speaker of the house of representatives shall appoint to the advisory board:

(1)  a representative of consumer groups;

(2)  a representative of the construction industry;

(3)  a representative of the automobile industry;

(4)  a representative of the agriculture industry; and

(5)  a representative of the fuel industry.

(e)  Appointed members of the advisory board serve staggered two-year terms. The terms of seven appointed members expire February 1 of each even-numbered year. The terms of eight appointed members expire February 1 of each odd-numbered year. An appointed member may be reappointed to a subsequent term.

(f)  Ex officio members of the advisory board are:

(1)  the presiding officer of the senate standing committee having primary jurisdiction over matters related to natural resources;

(2)  the presiding officer of the house standing committee having primary jurisdiction over matters related to environmental regulation;

(3)  a representative of the commission, designated by the executive director;

(4)  a representative of the General Land Office, designated by the Commissioner of the General Land Office;

(5)  a representative of the comptroller's office, designated by the comptroller;

(6)  a representative of the Railroad Commission of Texas, designated by the presiding officer of the agency; and

(7)  a representative of the United States Environmental Protection Agency's Region 6 office, designated by the United States Environmental Protection Agency Region 6 administrator.

(g)  The advisory board annually shall elect a presiding officer.

(h)  The advisory board shall review the plan and shall recommend to the commission changes to revenue sources or financial incentives or any legislative, regulatory, or budgetary changes needed.

(i)  The commission shall provide necessary staff support to the advisory board.

[Sections 386.059-386.100 reserved for expansion]

SUBCHAPTER C. DIESEL EMISSIONS

REDUCTION INCENTIVE PROGRAM

Sec. 386.101.  DEFINITIONS. In this subchapter:

(1)  "Cost-effectiveness" means the total dollar amount expended divided by the total number of tons of oxides of nitrogen emissions reduction attributable to that expenditure. Cost-effectiveness for the program as a whole and for particular projects under the program is calculated as provided by Sections 386.105 and 386.106.

(2)  "Fuel cell" means an electrochemical device that uses fuel and oxidant to continuously generate electricity.

(3)  "Motor vehicle" means a self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Chapter 502, Transportation Code.

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(4)  "Non-road diesel" means a vehicle or piece of equipment, excluding a motor vehicle or on-road diesel or an implement of husbandry that is used exclusively for agricultural purposes, that is powered by a non-road engine, including:

(A)  non-road nonrecreational equipment and vehicles;

(B)  construction equipment;

(C)  locomotives;

(D)  marine vessels; and

(E)  other high-emitting diesel engine categories established by the commission.

(5)  "Non-road engine" means an internal combustion engine that is:

(A)  in or on a piece of equipment that is self-propelled or that propels itself and performs another function, excluding a vehicle that is used solely for competition;

(B)  in or on a piece of equipment that is intended to be propelled while performing its function; or

(C)  designed to be and capable of being carried or moved from one location to another.

(6)  "On-road diesel" means an on-road diesel-powered motor vehicle that has a gross vehicle weight rating of 10,000 pounds or more.

(7)  "Program" means the diesel emissions reduction incentive program established under this subchapter.

(8)  "Qualifying fuel" includes any liquid or gaseous fuel or additives registered or verified by the United States Environmental Protection Agency that is ultimately dispensed into a motor vehicle or on-road or non-road diesel that provides reductions of emissions of oxides of nitrogen beyond reductions required by state or federal law.

(9)  "Repower" means to replace an old engine powering an on-road or non-road diesel with:

(A)  a new engine that emits at least 30 percent less than the oxides of nitrogen emissions standard required by federal regulation for the current model year for that engine;

(B)  an engine manufactured later than 1987 that emits at least 30 percent less than the oxides of nitrogen emissions standard emitted by a new engine certified to the baseline oxides of nitrogen emissions standard for that engine;

(C)  an engine manufactured before 1988 that emits not more than 50 percent of the oxides of nitrogen emissions standard emitted by a new engine certified to the baseline oxides of nitrogen emissions standard for that engine; or

(D)  electric motors, drives, or fuel cells.

(10)  "Retrofit" means to equip an engine and fuel system with new emissions-reducing parts or technology verified by the United States Environmental Protection Agency after manufacture of the original engine and fuel system.

Sec. 386.102.  PROGRAM. (a)  The commission shall establish and administer a diesel emissions reduction incentive program. Under the program, the commission shall provide grants for eligible projects to offset the incremental cost of projects that reduce emissions of oxides of nitrogen from high-emitting diesel sources in nonattainment areas and affected counties of the state. The commission shall determine the eligibility of projects.

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(b)  Projects that may be considered for a grant under the program include:

(1)  purchase or lease of non-road diesels;

(2)  emissions-reducing retrofit projects for on-road or non-road diesels;

(3)  emissions-reducing repower projects for on-road or non-road diesels;

(4)  purchase and use of emissions-reducing add-on equipment for on-road or non-road diesels;

(5)  development and demonstration of practical, low-emissions retrofit technologies, repower options, and advanced technologies for on-road or non-road diesels with lower emissions of oxides of nitrogen;

(6)  use of qualifying fuel; and

(7)  implementation of infrastructure projects.

(c)  A project listed in Subsection (b) is not eligible if it is required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document. This subsection does not apply to:

(1)  an otherwise qualified project, regardless of the fact that the state implementation plan assumes that the change in equipment, vehicles, or operations will occur, if on the date the grant is awarded the change is not required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document; or

(2)  the purchase of an on-road diesel or equipment required only by local law or regulation or by corporate or controlling board policy of a public or private entity.

Sec. 386.103.  APPLICATION FOR GRANT. (a) Any person as defined by Section 382.003 that owns one or more on-road or non-road diesels that operate primarily within a nonattainment area or affected county of this state or that otherwise contributes to the state inventory of emissions of oxides of nitrogen may apply for a grant under the program.

(b)  An application for a grant under this subchapter must be made on an application provided by the commission and must contain information required by the commission, including:

(1)  a detailed description of the proposed project;

(2)  information necessary for the commission to determine whether the project meets eligibility requirements for the type of project proposed, including a statement of the amounts of any other public financial assistance the project will receive; and

(3)  other information the commission may require.

Sec. 386.104.  ELIGIBILITY REQUIREMENTS. (a) The commission shall establish criteria for setting priorities for projects eligible to receive grants under this subchapter. The commission shall review and may modify the criteria and priorities as appropriate.

(b)  A proposed project as described in Section 386.102 must meet the requirements of this section to be eligible for a grant under the program.

(c)  For a proposed project as described by Section 386.102(b), other than a project involving a marine vessel or engine, not less than 75 percent of vehicle miles traveled or hours of operation projected for the five years immediately following the award of a grant must be projected to take place in a nonattainment area or affected county of this state. For a proposed project involving a marine vessel or engine, the vessel or engine must be operated in the intercoastal waterways or bays adjacent to a nonattainment area or affected county of this state for a sufficient amount of time over the lifetime of the project, as determined by the commission, to meet the cost-effectiveness requirements of Section 386.105.

77th Legislature — Regular Session 80th Day

(d)  Each proposed project must meet the cost-effectiveness requirements of Sections 386.105 and 386.106.

(e)  A proposed repower project must exceed commission requirements relating to baseline emissions levels of the engines being replaced under the project.

(f)  A proposed retrofit, repower, or add-on equipment project must document, in a manner acceptable to the commission, a reduction in emissions of oxides of nitrogen of at least 30 percent compared with the baseline emissions adopted by the commission for the relevant engine year and application. After study of available emissions reduction technologies, after public notice and comment, and after consultation with the advisory board, the commission may revise the minimum percentage reduction in emissions of oxides of nitrogen required by this subsection to improve the ability of the program to achieve its goals.

(g)  If a baseline emissions standard does not exist for on-road or non-road diesels in a particular category, the commission, for purposes of this subchapter, shall establish an appropriate baseline emissions level for comparison purposes.

(h)  The commission may approve payments to offset the incremental cost, over the expected lifetime of the motor vehicle or on-road or non-road diesel, of the use of qualifying fuel in a motor vehicle or on-road or non-road diesel if the proposed project as a whole, including the incremental fuel cost, meets the requirements of this subchapter. The commission shall develop an appropriate method for converting incremental fuel costs over the lifetime of the motor vehicle or on-road or non-road diesel into an initial cost for purposes of determining cost-effectiveness as required by Section 386.105.

Sec. 386.105.  CALCULATION OF COST-EFFECTIVENESS. (a) In calculating cost-effectiveness, one-time grants of money at the beginning of a project shall be annualized using a time value of public funds or discount rate determined for each project by the commission, taking into account the interest rate on bonds, interest earned by state funds, and other factors the commission considers appropriate.

(b)  The commission shall establish reasonable methodologies for evaluating project cost-effectiveness consistent with Subsection (a) and with accepted methods.

(c)  The commission shall develop protocols for calculating oxides of nitrogen emissions reductions not otherwise required by state or federal law in nonattainment areas and affected counties of this state from representative project types over the life of the projects.

(d)  The commission may include in cost-effectiveness determinations only reductions in oxides of nitrogen emissions that are achieved in nonattainment areas and affected counties of this state.

Sec. 386.106.  COST-EFFECTIVENESS CRITERIA; DETERMINATION OF GRANT AMOUNT. (a) Except as provided by Section 386.107, the commission may not award a grant for a proposed project the cost-effectiveness of which, calculated in accordance with Section 386.105 and criteria developed under that section, exceeds $13,000 per ton of oxides of nitrogen emissions reduced in the nonattainment area or affected county for which the project is proposed. This subsection does not restrict commission authority under other law to require emissions reductions with a cost-effectiveness that exceeds $13,000 per ton.

(b)  The commission may not award a grant that, net of taxes, provides an amount that exceeds the incremental cost of the proposed project.

(c)  The commission shall adopt guidelines for capitalizing incremental lease costs so those costs may be offset by a grant under this subchapter.

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(d)  In determining the amount of a grant under this subchapter, the commission shall reduce the incremental cost of a proposed new purchase, lease, retrofit, repower, or add-on equipment project by the value of any existing financial incentive that directly reduces the cost of the proposed project, including tax credits or deductions, other grants, or any other public financial assistance.

Sec. 386.107.  ADJUSTMENT TO MAXIMUM COST-EFFECTIVENESS AMOUNT AND AWARD AMOUNT. After study of available emissions reduction technologies and costs and after public notice and comment, the commission, in consultation with the advisory board, may change the values of the maximum grant award criteria established in Section 386.106 to account for inflation or to improve the ability of the program to achieve its goals.

Sec. 386.108.  INFRASTRUCTURE PROJECTS. (a) The commission shall provide funding under Section 386.252(a)(1) for infrastructure projects.

(b)  To implement the requirement of Subsection (a), the commission shall:

(1)  solicit applications for a balanced mix of projects involving fueling and electrification infrastructure that is linked to motor vehicle and on-road and non-road diesel projects and consistent with program goals;

(2)  coordinate infrastructure projects with motor vehicle and on-road and non-road diesel projects representing a broad range of fuels, technologies, and applications as appropriate and consistent with the goals of this chapter;

(3)  adopt guidelines and criteria for infrastructure projects to be funded under the program; and

(4)  oversee, monitor, and evaluate the use of grants awarded under this program and report on the effectiveness of this grant program in relation to the purposes and goals of this chapter.

Sec. 386.109.  ELIGIBLE INFRASTRUCTURE PROJECTS. The commission may consider for funding under Section 386.108:

(1)  the purchase and installation at a site of equipment that is designed primarily to dispense qualifying fuel, other than standard gasoline or diesel, or the purchase of on-site mobile fueling equipment;

(2)  infrastructure projects, including auxiliary power units, designed to dispense electricity to motor vehicles and on-road and non-road diesels; and

(3)  a project that involves a technology that allows a vehicle to replace with electric power, while the vehicle is parked, the power normally supplied by the vehicle's internal combustion engine.

Sec. 386.110.  APPLICATION PACKAGE FOR INFRASTRUCTURE PROJECTS. (a) The commission shall develop a simple, standardized application package for infrastructure project grants under this subchapter. The package must include:

(1)  an application form;

(2)  a brief description of:

(A)  the program;

(B)  the projects that are eligible for available funding;

(C)  the selection criteria and evaluation process; and

(D)  the required documentation;

(3)  the name of a person or office to contact for more information;

(4)  an example of the contract that an applicant will be required to execute before receiving a grant; and

77th Legislature — Regular Session 80th Day

(5)  any other information the commission considers useful to inform the applicant and expedite the application process.

(b)  The application form shall require as much information as the commission determines is necessary to properly evaluate each project but shall otherwise minimize the information required.

(c)  The commission may not require an applicant, as part of the application process, to calculate tons of emissions reduced or cost-effectiveness.

Sec. 386.111.  APPLICATION REVIEW PROCEDURES. (a) The commission shall review an application for a grant for a project authorized under this subchapter, including an application for a grant for an infrastructure project, immediately on receipt of the application. If the commission determines that an application is incomplete, the commission shall notify the applicant, not later than the 15th working day after the date on which the commission received the application, with an explanation of what is missing from the application. The commission shall record the date and time of receipt of each application the commission determines to be complete and shall evaluate the completed application according to the appropriate project criteria. Subject to available funding, the commission shall make a final determination on an application as soon as possible and not later than the 60th working day after the date the application is determined to be complete.

(b)  The commission shall make every effort to expedite the application review process and to award grants to qualified projects in a timely manner. To the extent possible, the commission shall coordinate project review and approval with any timing constraints related to project purchases or installations to be made by an applicant.

(c)  The commission may deny an application for a project that does not meet the applicable project criteria or that the commission determines is not made in good faith, is not credible, or is not in compliance with this chapter and the goals of this chapter.

(d)  Subject to availability of funds, the commission shall award a grant under this subchapter in conjunction with the execution of a contract that obligates the commission to make the grant and the recipient to perform the actions described in the recipient's grant application. The contract must incorporate provisions for recapturing grant money in proportion to any loss of emissions reductions or underachievement in dispensing qualifying fuel compared with the volume of emissions reductions or amount of fuel dispensed that was projected in awarding the grant. Grant money recaptured under the contract provision shall be deposited in the fund and reallocated for other projects under this subchapter.

(e)  An applicant may seek reimbursement for qualifying equipment installed after the effective date of this program.

Sec. 386.112.  ON-ROAD DIESEL PURCHASE OR LEASE INCENTIVE. (a) The commission shall develop a purchase or lease incentive program for new on-road diesels and shall adopt rules necessary to implement the program and to reimburse a purchaser or lessee of a new on-road diesel that is eligible for reimbursement of incremental costs under this subchapter.

(b)  The program shall authorize statewide incentives for the reimbursement of incremental costs for the purchase or lease, according to the schedule provided by Section 386.113, of new on-road diesels that are certified by the United States Environmental Protection Agency to an emissions standard provided by Section 386.113 if the purchaser or lessee of the on-road diesel agrees to register the vehicle in this state and to operate the on-road diesel in this state for not less than 75 percent of the on-road diesel's annual mileage.

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(c)  Only one incentive will be provided for each new on-road diesel. The incentive shall be provided to the purchaser if the on-road diesel is not purchased for the purpose of leasing the on-road diesel to another person, or to the lessee and not to the purchaser if the on-road diesel is purchased for the purpose of leasing the on-road diesel to another person. A lease incentive for a new on-road diesel shall be prorated based on an eight-year lease term.

Sec. 386.113.  ON-ROAD DIESEL PURCHASE OR LEASE INCENTIVE SCHEDULE. A new on-road diesel is eligible for reimbursement of incremental costs according to the following schedule:

Incentive emissions standard Reimbursement amount

(oxides of nitrogen)

Date of manufacture Date of manufacture

(2001) (10/01/02-9/30/06)

2.5 g/bhp-hr NOx 1.2 g/bhp-hr NOx up to $15,000

1.5 g/bhp-hr NOx 0.5 g/bhp-hr NOx up to $25,000

0.0 g/bhp-hr NOx 0.0 g/bhp-hr NOx up to $25,000

Sec. 386.114.  MODIFICATION OF INCENTIVE EMISSIONS STANDARDS. After evaluating new technologies and after public notice and comment, the commission, in consultation with the advisory board, may change the incentive emissions standards established by Section 386.113 to improve the ability of the program to achieve its goals.

[Sections 386.115-386.150 reserved for expansion]

SUBCHAPTER D. MOTOR VEHICLE PURCHASE

OR LEASE INCENTIVE PROGRAM

Sec. 386.151.  DEFINITIONS. In this subchapter:

(1)  "Bin" or "emissions bin" means a set of emissions standards applicable to exhaust pollutants measured on the Federal Test Procedure (FTP) according to 40 C.F.R. Section 86.1811-04.

(2)  "Light-duty motor vehicle" means a motor vehicle with a gross vehicle weight rating of less than 10,000 pounds.

(3)  "Motor vehicle" means a self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Chapter 502, Transportation Code.

Sec. 386.152.  COMPTROLLER AND COMMISSION DUTIES REGARDING LIGHT-DUTY MOTOR VEHICLE PURCHASE OR LEASE INCENTIVE PROGRAM. (a) The comptroller and the commission shall develop a purchase or lease incentive program for new light-duty motor vehicles and shall adopt rules necessary to implement the program.

(b)  The program shall authorize statewide incentives for the purchase or lease, according to the schedule provided by Section 386.153, of new light-duty motor vehicles that are certified by the United States Environmental Protection Agency to meet an emissions standard that is at least as stringent as those provided by Section 386.153 for a purchaser or lessee who agrees to register the vehicle in this state and to operate the vehicle in this state for not less than 75 percent of the vehicle's annual mileage.

(c)  Only one incentive will be provided for each new light-duty motor vehicle. The incentive shall be provided to the lessee and not to the purchaser if the motor vehicle is purchased for the purpose of leasing the vehicle to another person.

77th Legislature — Regular Session 80th Day

Sec. 386.153.  LIGHT-DUTY MOTOR VEHICLE PURCHASE OR LEASE INCENTIVE SCHEDULE. A new light-duty motor vehicle is eligible for an incentive according to the following schedule:

Incentive emissions standard and incentive amount

Model year 2003-2007

Bin 4 $1,250

Bin 3 $2,225

Bin 2 $3,750

Bin 1 $5,000

Sec. 386.154.  MODIFICATION OF INCENTIVE EMISSIONS STANDARDS. After evaluating new technologies and after public notice and comment, the commission, in consultation with the advisory board, may change the incentive emissions standards established by Section 386.153 to improve the ability of the program to achieve its goals.

Sec. 386.155.  MANUFACTURER'S REPORT. At the beginning of but not later than July 1 of each year preceding the vehicle model year, a manufacturer of motor vehicles shall provide to the commission a list of the new vehicle models that the manufacturer intends to sell in this state during that model year that meet the incentive emissions standards established by the schedules set out under Section 386.153.

Sec. 386.156.  LIST OF ELIGIBLE MOTOR VEHICLES. (a)  On August 1 each year the commission shall publish and provide to the comptroller a list of the new model motor vehicles as listed for the commission under Section 386.155.

(b)  The comptroller shall distribute the list of eligible motor vehicles to all new motor vehicle dealers and leasing agents in this state.

Sec. 386.157.  VEHICLE EMISSIONS INFORMATION LABEL. (a) To enable consumers to make informed purchase decisions based on the relative amounts of emissions produced by motor vehicles within each vehicle class, the motor vehicle manufacturer or distributor shall affix on each new light-duty motor vehicle for sale or lease in this state a clearly legible label that shows the vehicle's class rating under the United States Environmental Protection Agency's vehicle class rating system. If the United States Environmental Protection Agency develops another vehicle emissions rating system that gives consumers similar emissions information by vehicle class, the commission by rule may designate that vehicle rating system.

(b)  A new motor vehicle dealer or leasing agent shall make available to the dealer's or leasing agent's prospective purchasers or lessees a copy of the list prepared and published by the commission under Section 386.156.

Sec. 386.158.  LIGHT-DUTY MOTOR VEHICLE PURCHASE OR LEASE INCENTIVE. (a) A person who purchases or leases a new light-duty motor vehicle that has been listed under Section 386.155 is eligible for an incentive under this subchapter.

(b)  A lease incentive for a new light-duty motor vehicle shall be prorated based on a four-year lease term.

(c)  To receive money under an incentive program provided by this subchapter, the purchaser or lessee of a new light-duty motor vehicle eligible for an incentive under this subchapter shall apply for the incentive in the manner provided by law or by rule of the comptroller.

Sec. 386.159.  PUBLIC INFORMATION. (a)  The commission in cooperation with the comptroller shall develop and implement a program to inform the public and

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new motor vehicle dealers and leasing agents about the motor vehicle purchase or lease incentive program.

(b)  The Texas Department of Transportation shall insert a notice describing the light-duty motor vehicle purchase or lease incentive program with each annual vehicle registration renewal notice.

Sec. 386.160.  COMPTROLLER TO ACCOUNT FOR MOTOR VEHICLE PURCHASE OR LEASE INCENTIVES. (a)  The comptroller by rule shall develop a method to administer and account for the motor vehicle purchase or lease incentives authorized by this subchapter and to pay incentive money to the purchaser or lessee of a new motor vehicle, on application of the purchaser or lessee as provided by this subchapter.

(b)  The comptroller shall develop and publish forms and instructions for the purchaser or lessee of a new motor vehicle to use in applying to the comptroller for an incentive payment under this subchapter. The comptroller shall make the forms available to new motor vehicle dealers and leasing agents. Dealers and leasing agents shall make the forms available to their prospective purchasers or lessees.

(c)  In addition to other forms developed and published under this section, the comptroller shall develop and publish a verification form by which, with information provided by the dealer or leasing agent, the comptroller can verify the sale of a vehicle covered by this subchapter. The verification form shall include at least the name of the purchaser, the vehicle identification number of the vehicle involved, the date of the purchase, and the name of the new motor dealer or leasing agent involved in the transaction. At the time of sale or lease of a vehicle eligible for an incentive under this subchapter, the dealer or leasing agent shall complete the verification form supplied to the dealer by the comptroller. The purchaser or lessee shall include the completed verification form as part of the purchaser's application for an incentive. The dealer shall maintain a copy of the completed verification form for at least two years from the date of the transaction.

Sec. 386.161.  REPORT TO COMMISSION; SUSPENSION OF PURCHASE OR LEASE INCENTIVES. (a) The comptroller shall report to the commission annually regarding motor vehicle purchase or lease incentives.

(b)  If the balance available for motor vehicle purchase or lease incentives falls below 15 percent of the total allocated for the incentives during that fiscal year, the comptroller by order shall suspend the incentives until the date the comptroller can certify that the balance available in the fund for incentives is an amount adequate to resume the incentives or the beginning of the next fiscal year, whichever is earlier. If the comptroller suspends the incentives, the comptroller shall immediately notify the commission and all new motor vehicle dealers and leasing agents that the incentives have been suspended.

(c)  The comptroller shall establish a toll-free telephone number available to motor vehicle dealers and leasing agents for the dealers and agents to call to verify that incentives are available. The comptroller may provide for issuing verification numbers over the telephone line.

(d)  Reliance by a dealer or leasing agent on information provided by the comptroller or commission is a complete defense to an action involving or based on eligibility of a vehicle for an incentive or availability of vehicles eligible for an incentive.

77th Legislature — Regular Session 80th Day

[Sections 386.162-386.200 reserved for expansion]

SUBCHAPTER E. ENERGY EFFICIENCY

GRANT PROGRAM

Sec. 386.201.  DEFINITIONS. In this subchapter:

(1)  "Electric cooperative" has the meaning assigned by Section 11.003, Utilities Code.

(2)  "Electric utility" has the meaning assigned by Section 31.002, Utilities Code.

(3)  "Municipally owned utility" has the meaning assigned by Section 11.003, Utilities Code.

Sec. 386.202.  GRANT PROGRAM. (a) The utility commission shall develop an energy efficiency grant program using program templates that are consistent with rules of the utility commission adopted under Section 39.905, Utilities Code.

(b)  Programs approved under this subchapter must include the retirement, replacement, and recycling of materials and appliances that contribute to peak energy demand to ensure the reduction of energy demand, peak loads, and associated emissions of air contaminants.

Sec. 386.203.  ADMINISTRATION OF GRANTS. Money allocated by the utility commission under the grant program developed under this subchapter shall be administered by electric utilities, electric cooperatives, and municipally owned utilities. A participating electric utility, electric cooperative, or municipally owned utility shall be reimbursed from the fund for costs incurred by the utility in administering the energy efficiency grant program established under this subchapter. Reimbursable administrative costs of a participating entity may not exceed 10 percent of the entity's total program budget before January 1, 2003, and may not exceed five percent of the entity's total program budget on or after that date.

Sec. 386.204.  LIMITATION ON DUTY OF PARTICIPATING UTILITY. (a) This subchapter obligates an electric utility, electric cooperative, or municipally owned utility only to administer the funding allocated to the entity by the utility commission in accordance with this subchapter.

(b)  The obligation of an electric utility under this subchapter is separate and apart from, and does not affect an obligation of the electric utility under, Section 39.905, Utilities Code, or a rule adopted under that section.

(c)  Emissions reductions achieved by a program implemented under this subchapter may not be used by an electric utility, electric cooperative, or municipally owned utility to satisfy an obligation to reduce air contaminant emissions under state or federal law or a state or federal regulatory program.

Sec. 386.205.  EVALUATION OF STATE ENERGY EFFICIENCY PROGRAMS. In cooperation with the laboratory, the utility commission shall provide an annual report to the commission that, by county, quantifies the reductions of energy demand, peak loads, and associated emissions of air contaminants achieved from the programs implemented under this subchapter and from those implemented under Section 39.905, Utilities Code.

[Sections 386.206-386.250 reserved for expansion]

SUBCHAPTER F. TEXAS EMISSIONS

REDUCTION PLAN FUND

Sec. 386.251.  FUND. (a) The Texas emissions reduction plan fund is an account in the state treasury.

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(b)  The fund is administered by the comptroller for the benefit of the Texas emissions reduction plan established under this chapter.

(c)  The fund consists of money from:

(1)  fees and other amounts charged and collected under Sections 502.1675 and 548.5055, Transportation Code;

(2)  the surcharge on the sale, lease, or rental of new or used construction equipment under Section 151.0515, Tax Code; and

(3)  surcharges collected under Sections 152.0215 and 156.054, Tax Code.

Sec. 386.252.  USE OF FUND. (a) Money in the fund may be used only to implement and administer programs established under the plan and shall be allocated as follows:

(1)  for the diesel emissions reduction incentive program, 67 percent of the money in the fund, of which not more than three percent may be used for infrastructure projects and not more than 15 percent may be used for on-road diesel purchase or lease incentives;

(2)  for the motor vehicle purchase or lease incentive program, 15 percent of the money in the fund;

(3)  for the energy efficiency grant program, 7.5 percent of the money in the fund;

(4)  for the new technology research and development program, 7.5 percent of the money in the fund, of which up to $250,000 is allocated for administration, up to $200,000 is allocated for a health effects study, and $500,000 is to be deposited in the state treasury to the credit of the clean air account created under Section 382.0622 to supplement funding for air quality planning activities in affected counties; and

(5)  for administrative costs incurred by the utility commission, the commission, the comptroller, and the laboratory, three percent.

(b)  Up to 15 percent of the money allocated under Subsection (a) to a particular program and not expended under that program by March 1 of the second fiscal year of a fiscal biennium may be used for another program under the plan as determined by the commission in consultation with the advisory board.

CHAPTER 387. NEW TECHNOLOGY RESEARCH

AND DEVELOPMENT PROGRAM

Sec. 387.001.  DEFINITION. In this chapter, "program" means the new technology research and development program.

Sec. 387.002.  TEXAS COUNCIL ON ENVIRONMENTAL TECHNOLOGY. (a)  The Texas Council on Environmental Technology consists of 11 members appointed by the governor to represent the academic and nonprofit communities. The governor shall designate from the council members a presiding officer of the council. Members of the council serve six-year staggered terms, with the terms of three or four members expiring February 1 of each odd-numbered year.

(b)  The Texas Council on Environmental Technology shall work to enhance the entrepreneurial and inventive spirit of Texans to assist in developing solutions to air, water, and waste problems by:

(1)  identifying and evaluating new technologies and seeking the approval of the United States Environmental Protection Agency for and facilitating the deployment of those technologies; and

(2)  assisting the commission and the United States Environmental Protection Agency in the process of ensuring credit for new, innovative, and creative technological advancements.

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(c)  Council offices and projects shall be housed at the Center for Energy and Environmental Resources at The University of Texas at Austin.

Sec. 387.003.  NEW TECHNOLOGY RESEARCH AND DEVELOPMENT PROGRAM. (a)  The Texas Council on Environmental Technology shall establish and administer a new technology research and development program as provided by this chapter.

(b)  Under the program, the Texas Council on Environmental Technology shall provide grants to be used to support development of emissions-reducing technologies that may be used for projects eligible for awards under Chapter 386 and other new technologies that show promise for commercialization. The primary objective of this chapter is to promote the development of commercialization technologies that will support projects that may be funded under Chapter 386 and this chapter.

Sec. 387.004.  SOLICITATION OF NEW TECHNOLOGY PROPOSALS. The Texas Council on Environmental Technology from time to time shall issue specific requests for proposals (RFPs) or program opportunity notices (PONs) for technology projects to be funded under the program.

Sec. 387.005.  ELIGIBLE PROJECTS; PRIORITIES. (a)  Grants awarded under this chapter shall be directed toward a balanced mix of:

(1)  retrofit and add-on technologies to reduce emissions from the existing stock of vehicles targeted by the Texas emissions reduction plan;

(2)  advanced technologies for new engines and vehicles that produce very-low or zero emissions of oxides of nitrogen, including stationary and mobile fuel cells;

(3)  studies to improve air quality assessment and modeling;

(4)  advanced technologies that promote increased building and appliance energy performance; and

(5)  advanced technologies that reduce emissions from other significant sources.

(b)  The Texas Council on Environmental Technology shall identify and evaluate and may consider making grants for technology projects that would allow qualifying fuels to be produced from energy resources in this state. In considering projects under this subsection, the council shall give preference to projects involving otherwise unusable energy resources in this state and producing qualifying fuels at prices lower than otherwise available and low enough to make the projects to be funded under the program economically attractive to local businesses in the area for which the project is proposed.

(c)  In soliciting proposals under Section 387.004 and determining how to allocate grant money available for projects under this chapter, the Texas Council on Environmental Technology shall give special consideration to advanced technologies and retrofit or add-on projects that provide multiple benefits by reducing emissions of particulates and other air pollutants.

(d)  A project that involves publicly or privately owned vehicles or vessels is eligible for funding under this chapter if the project meets all applicable criteria.

(e)  Studies authorized under Subsection (a)(3) shall be consistent with air quality research priorities identified by the commission.

Sec. 387.006.  EVIDENCE OF COMMERCIALIZATION POTENTIAL REQUIRED. (a)  An application for a technology grant under this chapter must show clear and compelling evidence that:

(1)  the proposed technology project has a strong commercialization plan and organization; and

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(2)  the technology proposed for funding:

(A)  is likely to be offered for commercial sale in this state within five years after the date of the application for funding; and

(B)  once commercialized, will offer opportunities for projects eligible for funding under Chapter 386.

(b)  The Texas Council on Environmental Technology shall consider specifically, for each proposed technology project application:

(1)  the projected potential for reduced emissions of oxides of nitrogen and the cost-effectiveness of the technology once it has been commercialized;

(2)  the potential for the technology to contribute significantly to air quality goals; and

(3)  the strength of the commercialization plan.

Sec. 387.007.  COST-SHARING. The Texas Council on Environmental Technology may require cost-sharing for technology projects funded under this chapter but may not require repayment of grant money.

Sec. 387.008.  ENVIRONMENTAL RESEARCH FUND. (a)  The environmental research fund is an account in the general revenue fund. The fund consists of money from gifts, grants, or donations to the fund for designated or general use and from any other source designated by the legislature.

(b)  Money in the environmental research fund may be used only for the operation and projects of the Texas Council on Environmental Technology.

Sec. 387.009.  ADVISORY COMMITTEES. The Texas Council on Environmental Technology may appoint advisory committees as necessary or desirable to assist the council in performing its duties. An advisory committee may include representatives of industry, environmental groups, consumer groups, local governments, agriculture, the commission, the General Land Office, and the Railroad Commission of Texas. Any senator or representative desiring to do so may participate on any advisory committee appointed under this section. Members of an advisory committee are not entitled to compensation.

Sec. 387.010.  REPORTS. Not later than December 1, 2002, and not later than December 1 of each subsequent second year, the Texas Council on Environmental Technology shall report to the legislature on projects funded under the new technology research and development program, describing the technical objectives and accomplishments of the project and the progress of the project technology toward commercialization.

CHAPTER 388. TEXAS BUILDING ENERGY

PERFORMANCE STANDARDS

Sec. 388.001.  LEGISLATIVE FINDINGS. (a)  The legislature finds that an effective building energy code is essential to:

(1)  reducing the air pollutant emissions that are affecting the health of residents of this state;

(2)  moderating future peak electric power demand;

(3)  assuring the reliability of the electrical grid; and

(4)  controlling energy costs for residents and businesses in this state.

(b)  The legislature further finds that this state has a number of unique climate types, all of which require more energy for cooling than for heating, and that there are many cost-effective measures that can reduce peak energy use and reduce cooling and other energy costs in buildings.

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Sec. 388.002.  DEFINITIONS. In this chapter:

(1)  "Affected county" has the meaning assigned by Section 386.001.

(2)  "Building" has the meaning assigned by the International Building Code.

(3)  "Code official" means an individual employed by a local jurisdiction to review construction plans and other documents, inspect construction, or administer and enforce building standards under this chapter.

(4)  "Code-certified inspector" means an inspector who is certified by the International Code Council, the Building Officials and Code Administrators International, Inc., the International Conference of Building Officials, or the Southern Building Code Congress International to have met minimum standards for interpretation and enforcement of requirements of the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code.

(5)  "Commission" means the Texas Natural Resource Conservation Commission.

(6)  "International Residential Code" means the International Residential Code for One- and Two-Family Dwellings as adopted by the International Code Council.

(7)  "International Energy Conservation Code" means the International Energy Conservation Code as adopted by the International Code Council.

(8)  "Laboratory" means the Energy Systems Laboratory at the Texas Engineering Experiment Station of The Texas A&M University System.

(9)  "Local jurisdiction" means the authority responsible for implementation and enforcement of local building codes.

(10)  "Municipality" has the meaning assigned by Section 1.005, Local Government Code.

(11)  "Nonattainment area" has the meaning assigned by Section 386.001.

(12)  "Single-family residential" means having the character of a detached one- or two-family dwelling or a multiple single-family dwelling not more than three stories high with separate means of egress, including the accessory structures of the dwelling.

Sec. 388.003.  ADOPTION OF BUILDING ENERGY EFFICIENCY PERFORMANCE STANDARDS. (a) To achieve energy conservation in single-family residential construction, the energy efficiency chapter of the International Residential Code, as it existed on May 1, 2001, is adopted as the energy code in this state for single-family residential construction.

(b)  To achieve energy conservation in all other residential, commercial, and industrial construction, the International Energy Conservation Code as it existed on May 1, 2001, is adopted as the energy code for use in this state for all other residential, commercial, and industrial construction.

(c)  A municipality or county shall establish procedures:

(1)  for the administration and enforcement of the codes; and

(2)  to ensure that code-certified inspectors shall perform inspections and enforce the code in the inspectors' jurisdictions.

(d)  A municipality or county may establish procedures to adopt local amendments to the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code.

(e)  Local amendments may not result in less stringent energy efficiency requirements in nonattainment areas and in affected counties than the energy

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efficiency chapter of the International Residential Code or International Energy Conservation Code. Local amendments must comply with the National Appliance Energy Conservation Act of 1987 (42 U.S.C. Sections 6291-6309), as amended. The laboratory, at the request of a municipality or county, shall determine the relative impact of proposed local amendments to an energy code, including whether proposed amendments are substantially equal to or less stringent than the unamended code. For the purpose of establishing uniform requirements throughout a region, and on request of a council of governments, a county, or a municipality, the laboratory may recommend a climatically appropriate modification or a climate zone designation for a county or group of counties that is different from the climate zone designation in the unamended code. The laboratory shall:

(1)  report its findings to the council, county, or municipality, including an estimate of any energy savings potential above the base code from local amendments; and

(2)  annually submit a report to the commission:

(A)  identifying the municipalities and counties whose codes are more stringent than the unamended code, and whose codes are equally stringent or less stringent than the unamended code; and

(B)  quantifying energy savings from this program.

(f)  Each municipality and county shall periodically review and consider revisions made by the International Code Council to the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code adopted after May 1, 2001.

(g)  The laboratory shall have the authority to set and collect fees to perform certain tasks in support of the requirements in Sections 388.004, 388.007, and 388.008.

(h)  Within the boundaries of an airport operated by a joint board created under Subchapter D, Chapter 22, Transportation Code, the constituent agencies of which are populous home-rule municipalities, the powers of a municipality under this section are exclusively the powers of the joint board.

Sec. 388.004.  ENFORCEMENT OF ENERGY STANDARDS OUTSIDE OF MUNICIPALITY. For construction outside of the local jurisdiction of a municipality:

(1)  a building certified by a national, state, or local accredited energy efficiency program shall be considered in compliance;

(2)  a building with inspections from private code-certified inspectors using the energy efficiency chapter of the International Residential Code or International Energy Conservation Code shall be considered in compliance; and

(3)  a builder who does not have access to either of the above methods for a building shall certify compliance using a form provided by the laboratory, enumerating the code-compliance features of the building.

Sec. 388.005.  ENERGY EFFICIENCY PROGRAMS IN CERTAIN POLITICAL SUBDIVISIONS. (a) In this section, "political subdivision" means:

(1)  an affected county; or

(2)  any political subdivision other than a school district in a nonattainment area or in an affected county.

(b)  Each political subdivision shall implement all energy efficiency measures that meet the standards established for a contract for energy conservation measures under Section 302.004(b), Local Government Code, in order to reduce electricity consumption by the existing facilities of the political subdivision.

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(c)  Each political subdivision shall establish a goal to reduce the electric consumption by the political subdivision by five percent each year for five years, beginning January 1, 2002.

(d)  A political subdivision that does not attain the goals under Subsection (c) must include in the report required by Subsection (e) justification that the political subdivision has already implemented all available measures.

(e)  A political subdivision annually shall report to the State Energy Conservation Office, on forms provided by that office, regarding the political subdivision's efforts and progress under this section. The State Energy Conservation Office shall provide assistance and information to political subdivisions to help the political subdivisions meet the goals set under this section.

Sec. 388.006.  STATE ENERGY CONSERVATION OFFICE EVALUATION. The State Energy Conservation Office annually shall provide the commission with an evaluation of the effectiveness of state and political subdivision energy efficiency programs, including programs under this chapter.

Sec. 388.007.  DISTRIBUTION OF INFORMATION AND TECHNICAL ASSISTANCE. (a) The laboratory shall make available to builders, designers, engineers, and architects code implementation materials that explain the requirements of the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code and that describe methods of compliance acceptable to code officials.

(b)  The materials may include software tools, simplified prescriptive options, and other materials as appropriate. The simplified materials may be designed for projects in which a design professional is not involved.

(c)  The laboratory may provide local jurisdictions with technical assistance concerning implementation and enforcement of the International Energy Conservation Code and the energy efficiency chapter of the International Residential Code.

Sec. 388.008.  DEVELOPMENT OF HOME ENERGY RATINGS. (a) The laboratory shall develop a standardized report format to be used by providers of home energy ratings. The form must be designed to give potential buyers information on a structure's energy performance, including:

(1)  insulation;

(2)  types of windows;

(3)  heating and cooling equipment;

(4)  water heating equipment;

(5)  additional energy conserving features, if any;

(6)  results of performance measurements of building tightness and forced air distribution; and

(7)  an overall rating of probable energy efficiency relative to the minimum requirements of the International Energy Conservation Code or the energy efficiency chapter of the International Residential Code, as appropriate.

(b)  The laboratory shall establish a public information program to inform homeowners, sellers, buyers, and others regarding home energy ratings.

(c)  The home energy ratings program shall be implemented by September 1, 2002.

CHAPTER 389. EMISSIONS REDUCTION

RECOGNITION EFFORTS

Sec. 389.001.  DEFINITION. In this chapter, "commission" means the Texas Natural Resource Conservation Commission.

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Sec. 389.002.  USE OF CERTAIN INFORMATION FOR FEDERAL RECOGNITION OF EMISSIONS REDUCTIONS. The commission, using information derived from the reports to the commission under Sections 386.205, 388.003(e), and 388.006, shall take all appropriate and necessary actions so that emissions reductions achieved by means of activities under Chapters 386 and 388 are credited by the United States Environmental Protection Agency to the appropriate emissions reduction objectives in the state implementation plan.

SECTION 2.  Subchapter C, Chapter 151, Tax Code, is amended by adding Section 151.0515 to read as follows:

Sec. 151.0515.  TEXAS EMISSIONS REDUCTION PLAN SURCHARGE. (a) In this section, "equipment" includes all off-road, heavy-duty diesel equipment classified as construction equipment, other than implements of husbandry used solely for agricultural purposes, including:

(1)  pavers;

(2)  tampers/rammers;

(3)  plate compactors;

(4)  concrete pavers;

(5)  rollers;

(6)  scrapers;

(7)  paving equipment;

(8)  surface equipment;

(9)  signal boards/light plants;

(10)  trenchers;

(11)  bore/drill rigs;

(12)  excavators;

(13)  concrete/industrial saws;

(14)  cement and mortar mixers;

(15)  cranes;

(16)  graders;

(17)  off-highway trucks;

(18)  crushing/processing equipment;

(19)  rough terrain forklifts;

(20)  rubber tire loaders;

(21)  rubber tire tractors/dozers;

(22)  tractors/loaders/backhoes;

(23)  crawler tractors/dozers;

(24)  skid steer loaders;

(25)  off-highway tractors; and

(26)  Dumpsters/tenders.

(b)  In each county in this state, a surcharge is imposed on the retail sale, lease, or rental of new or used equipment in an amount equal to 0.5 percent of the sale price or the lease or rental amount.

(c)  The surcharge shall be collected at the same time and in the same manner and shall be administered and enforced in the same manner as the tax imposed under this subchapter. The comptroller shall adopt any additional procedures needed for the collection, administration, and enforcement of the surcharge authorized by this section and shall deposit all remitted surcharges to the credit of the Texas emissions reduction plan fund.

(d)  This section expires September 30, 2008.

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SECTION 3.  Subchapter B, Chapter 152, Tax Code, is amended by adding Section 152.0215 to read as follows:

Sec. 152.0215.  TEXAS EMISSIONS REDUCTION PLAN SURCHARGE. (a) A surcharge is imposed on every retail sale or lease of every on-road diesel motor vehicle that is over 14,000 pounds and is of a model year 1996 or earlier and that is sold or leased in this state. The amount of the surcharge is five percent of the total consideration.

(b)  The surcharge shall be collected at the same time and in the same manner and shall be administered and enforced in the same manner as the tax imposed under this chapter. The comptroller by rule shall adopt any additional procedures needed for the collection, administration, and enforcement of the surcharge authorized by this section and shall deposit all remitted surcharges to the credit of the Texas emissions reduction plan fund.

(c)  This section expires September 30, 2008.

SECTION 4. Section 153.203, Tax Code, is amended to read as follows:

Sec. 153.203.  EXCEPTIONS. (a)  The tax imposed by this subchapter does not apply to:

(1)  diesel fuel delivered by a permitted supplier to a common or contract carrier, oceangoing vessel (including ship, tanker, or boat), or barge for export from this state, if the diesel fuel is moved forthwith outside this state;

(2)  diesel fuel sold by a permitted supplier to the federal government for its exclusive use;

(3)  diesel fuel sold or delivered by a permitted supplier to another permitted supplier or to the bulk storage facility of an agricultural bonded user, or dyed diesel fuel sold or delivered by a permitted supplier to the bulk storage facility of a dyed diesel fuel bonded user, to the bulk storage facility of a diesel tax prepaid user, or to a purchaser who provides a signed statement as provided by Section 153.205 of this code, but not including a delivery of tax-free diesel fuel into the fuel supply tanks of a motor vehicle, except for a motor vehicle owned by the federal government;

(4)  diesel fuel sold or delivered by a permitted supplier into the storage facility of a permitted aviation fuel dealer, from which diesel fuel will be sold or delivered solely into the fuel supply tanks of aircraft or aircraft servicing equipment;

(5)  diesel fuel sold or delivered by a permitted supplier into fuel supply tanks of railway engines, motorboats, or refrigeration units or other stationary equipment powered by a separate motor from a separate fuel supply tank;

(6)  kerosene when delivered by a permitted supplier into a storage facility at a retail business from which all deliveries are exclusively for heating, cooking, lighting, or similar nonhighway use;

(7)  diesel fuel sold or delivered by one aviation fuel dealer to another aviation fuel dealer who will deliver the diesel fuel exclusively into the supply tanks of aircraft or aircraft servicing equipment;

(8)  diesel fuel sold by a permitted supplier to a public school district in this state for its exclusive use;

(9)  diesel fuel sold by a permitted supplier to a commercial transportation company that provides public school transportation services to a school district under Section 34.008, Education Code, and used by the company exclusively to provide those services; or

(10)  diesel fuel sold by a permitted supplier to a person, other than a political subdivision, who owns, controls, operates, or manages a commercial motor vehicle as defined by Section 548.001, Transportation Code, if the fuel:

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(A)  is delivered exclusively into the fuel supply tank of the commercial motor vehicle; and

(B)  is used exclusively to transport passengers for compensation or hire between points in this state on a fixed route or schedule.

(b)  The tax imposed by this subchapter does not apply to the volume of water that is blended together with taxable diesel fuel when the finished product sold or used is clearly identified on the retail pump, storage tank, and sales invoice as a combination of diesel fuel and water.

SECTION 5.  Subchapter B, Chapter 156, Tax Code, is amended by adding Section 156.054 to read as follows:

Sec. 156.054.  TEXAS EMISSIONS REDUCTION PLAN SURCHARGE. (a)  In this section, "nonattainment area" and "affected county" have the meanings assigned by Section 386.001, Health and Safety Code.

(b)  A person owning, operating, managing, or controlling a hotel located in a nonattainment area or an affected county shall collect a surcharge imposed by this section.

(c)  A $1 surcharge is imposed on a person for each day that the person has the right to use or possess a room in a hotel that is ordinarily used for sleeping.

(d)  Sections 156.101, 156.102, and 156.103 do not apply to the surcharge authorized by this section.

(e)  The surcharge shall be collected at the same time and in the same manner and shall be administered and enforced in the same manner as the tax imposed under this subchapter. The comptroller shall adopt any additional procedures needed for the collection, administration, and enforcement of the surcharge authorized by this section and shall deposit all remitted surcharges to the credit of the Texas emissions reduction plan fund.

(f)  This section expires September 30, 2008.

SECTION 6.  Section 224.153, Transportation Code, is amended by adding Subsection (c) to read as follows:

(c)  A motor vehicle displaying the "low-emissions vehicle" insignia authorized by Section 502.186 in an easily readable location on the back of the vehicle is entitled to travel in a preferential car pool or high occupancy vehicle lane designated under this section regardless of the number of occupants in the vehicle. This subsection expires August 31, 2008.

SECTION 7.  Section 431.073, Transportation Code, is amended by adding Subsection (d) to read as follows:

(d)  A motor vehicle displaying the "low-emissions vehicle" insignia authorized by Section 502.186 in an easily readable location on the back of the vehicle is entitled to travel in a high occupancy vehicle lane designated under this section regardless of the number of occupants in the vehicle. This subsection expires August 31, 2008.

SECTION 8.  Subchapter D, Chapter 502, Transportation Code, is amended by adding Section 502.1675 to read as follows:

Sec. 502.1675.  TEXAS EMISSIONS REDUCTION PLAN SURCHARGE. (a)  In addition to the registration fees charged under Section 502.167, a surcharge is imposed on the registration of a truck-tractor or commercial motor vehicle under that section in an amount equal to 10 percent of the total fees due for the registration of the truck-tractor or commercial motor vehicle under that section.

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(b)  The county tax assessor-collector shall remit the surcharge collected under this section to the comptroller at the time and in the manner prescribed by the comptroller for deposit in the Texas emissions reduction plan fund.

(c)  This section expires August 31, 2008.

SECTION 9.  Subchapter D, Chapter 502, Transportation Code, is amended by adding Section 502.186 to read as follows:

Sec. 502.186.  "LOW-EMISSIONS VEHICLE" INSIGNIA FOR CERTAIN MOTOR VEHICLES. (a) At the time of registration or reregistration of the motor vehicle, the department shall issue a specially designed "low-emissions vehicle" insignia for a motor vehicle that meets qualifications for the light-duty motor vehicle purchase or lease incentives under Subchapter D, Chapter 386, Health and Safety Code.

(b)  The department shall issue a "low-emissions vehicle" insignia under this section without the payment of any additional fee to a person who:

(1)  applies to the department on a form provided by the department; and

(2)  submits proof that the motor vehicle being registered is a vehicle described by Subsection (a).

(c)  This section expires August 31, 2008.

SECTION 10. Section 548.256, Transportation Code, is amended by adding Subsection (c) to read as follows:

(c)  The inspection station shall collect a fee of $60 for each inspection performed under this section and remit the fee to the department. The department shall remit all fees collected under this subsection to the comptroller for deposit in the Texas emissions reduction plan fund.

SECTION 11.  Subchapter H, Chapter 548, Transportation Code, is amended by adding Section 548.5055 to read as follows:

Sec. 548.5055.  TEXAS EMISSIONS REDUCTION PLAN FEE. (a)  In this section, "nonattainment area" and "affected county" have the meanings assigned by Section 386.001, Health and Safety Code.

(b)  In addition to other fees required by this subchapter, to fund the Texas emissions reduction plan established under Chapter 386, Health and Safety Code, the department shall collect, for every motor vehicle required to be inspected under this chapter, a fee of:

(1)  $1, if the vehicle being inspected is not registered in a nonattainment area or an affected county in this state; or

(2)  $5, if the vehicle being inspected is registered in a nonattainment area or an affected county in this state.

(c)  The department shall remit fees collected under this section to the comptroller at the time and in the manner prescribed by the comptroller for deposit in the Texas emissions reduction plan fund.

(d)  This section expires August 31, 2008.

SECTION 12.  (a)  Not later than the 45th day after the effective date of this Act, the Texas Natural Resource Conservation Commission shall adopt all necessary rules required to implement programs established under this Act.

(b)  Not later than the 45th day after the effective date of this Act, the comptroller of public accounts shall adopt all rules necessary to enable the comptroller to carry out the comptroller's duties under this Act.

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(c)  Not later than the 45th day after the effective date of this Act, the Public Utility Commission of Texas shall adopt all rules necessary to carry out its duties under this Act.

(d)  A municipality or county required to establish procedures under Section 388.003(c), Health and Safety Code, as added by this Act, shall establish the procedures not later than September 1, 2002.

SECTION 13.  (a)  Except as provided by Subsection (b) of this section, not later than August 1, 2001, if this Act takes immediate effect, or the effective date of this Act if this Act does not take immediate effect, the Texas Natural Resource Conservation Commission and the comptroller of public accounts shall adopt rules necessary to implement the diesel emissions reduction incentive program established under Subchapter C, Chapter 386, Health and Safety Code, as added by this Act.

(b)  Not later than September 1, 2001, the Texas Natural Resource Conservation Commission, as required by Section 386.103, Health and Safety Code, as added by this Act, shall adopt criteria for setting priorities for projects eligible for grants under Subchapter C, Chapter 386, Health and Safety Code, as added by this Act.

(c)  Not later than August 1, 2002, the Texas Natural Resource Conservation Commission and the comptroller of public accounts shall adopt rules necessary to implement the motor vehicle purchase or lease incentive program established under Subchapter D, Chapter 386, Health and Safety Code, as added by this Act.

(d)  Not later than August 1, 2002, the Texas Natural Resource Conservation Commission shall publish the first annual list of vehicles eligible for light-duty motor vehicle purchase or lease incentives, as required by Section 386.156, Health and Safety Code, as added by this Act.

SECTION 14.  The vehicle purchase or lease incentives authorized by Sections 386.113 and 386.153, Health and Safety Code, as added by this Act, apply only to the sale or lease of a vehicle that occurs on or after January 1, 2002.

SECTION 15. (a) The Texas Natural Resource Conservation Commission shall develop and sponsor a contest in the state's public schools to select the best student design for the "low-emissions vehicle" insignia authorized by Section 502.186, Transportation Code, as added by this Act. Not later than January 1, 2002, the commission shall provide to each public school in the state a contest packet containing rules and procedures for participating in the contest, an explanation of the criteria the commission will use in selecting the best design, and a deadline for the submission of student designs. The commission shall select and announce the winner of the contest not later than the 30th day after the contest submission deadline. The commission may publicize and otherwise promote the contest and the winning design.

(b)  The Texas Natural Resource Conservation Commission shall make the "low-emissions vehicle" insignia available to the county tax assessor-collector of each county in the state not later than the 45th day after the date on which the winning design is selected and announced. The county tax assessor-collector of each county in the state shall begin issuing the "low-emissions vehicle" insignia to persons who qualify for the insignia not later than the 10th working day after the date the insignia are available.

SECTION 16. (a) In making the initial appointments to the Texas Emissions Reduction Plan Advisory Board as created by Section 386.058, Health and Safety Code, as added by this Act, the appointing authorities, by mutual agreement, shall designate their appointees so that seven members' terms expire February 1, 2002, and eight members' terms expire February 1, 2003.

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(b)  Appointments to the advisory board shall be made not later than July 1, 2001, if this Act takes immediate effect, or not later than the effective date of this Act, if this Act does not take immediate effect.

SECTION 17.  As soon as practicable after the effective date of this Act, the governor shall appoint members to the Texas Council on Environmental Technology, as created by Section 387.002, Health and Safety Code, as added by this Act. In making the initial appointments, the governor shall designate the appointees so that three members' terms expire February 1, 2003, four members' terms expire February 1, 2005, and four members' terms expire February 1, 2007.

SECTION 18.  Not later than the 30th day after the adoption of rules governing the new technology research and development program established under Chapter 387, Health and Safety Code, as added by this Act, the Texas Council on Environmental Technology shall issue requests for proposals for projects to be funded under the new technology research and development program.

SECTION 19.  On the effective date of this Act, the Texas Natural Resource Conservation Commission shall submit to the United States Environmental Protection Agency a revision to the state implementation plan that deletes the requirements of the construction shift and the early purchase of Tier 2 and Tier 3 equipment and adds the provisions of this Act.

SECTION 20.  (a)  Notwithstanding any Act of the 77th Legislature, Regular Session, 2001, that purports to abolish all funds and accounts created or re-created in the state treasury by another Act of the 77th Legislature, Regular Session, 2001, the Texas emissions reduction plan fund created by Subchapter F, Chapter 386, Health and Safety Code, as added by this Act, and the environmental research fund created by Section 387.008, Health and Safety Code, as added by this Act, are accounts in the general revenue fund and the accounts and money deposited to the accounts are exempt from any Act of the 77th Legislature, Regular Session, 2001, that purports to abolish all funds and accounts created or re-created by another Act of the 77th Legislature, Regular Session, 2001, and to require the deposit of money that would be deposited to the credit of a special account or fund be deposited to the credit of the unobligated portion of the general revenue fund unless the fund, account, or dedication is exempted under that Act.

(b)  This section prevails over any other Act of the 77th Legislature, Regular Session, 2001, regardless of the relative dates of enactment, that purports to abolish all funds and accounts created or re-created in the state treasury by another Act of the 77th Legislature, Regular Session, 2001, and to require the deposit of money that would be deposited to the credit of a special account or fund be deposited to the credit of the unobligated portion of the general revenue fund unless the fund, account, or dedication is exempted under that Act.

SECTION 21.  Section 386.002, Health and Safety Code, as added by this Act notwithstanding, the Texas Natural Resource Conservation Commission shall submit the final biennial plan report required by Section 386.057, Health and Safety Code, as added by this Act, to the legislature not later than December 1, 2008.

SECTION 22.  The expiration of Sections 151.0515, 152.0215, and 156.054, Tax Code, as added by this Act, does not affect an obligation that was incurred, a violation that occurred, or an offense that was committed under those sections before the expiration date of those sections. An obligation incurred, a violation that occurred, or an offense committed before the expiration date of those sections is governed by the

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SENATE JOURNAL

law in effect at the time the obligation was incurred, the violation occurred, or the offense was committed, and the former law is continued in effect after the expiration date for that purpose. For purposes of this section, a violation occurs or an offense is committed before the expiration date of those sections if any element of the violation or offense occurs before that date.

SECTION 23.  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, 2001.

Floor Amendment No. 1

Amend CSSB 5 (house committee printing) as follows:

(1) In Subsection (b), Section 1 of the bill, proposed Subdivision (4), Section 386.101, Health and Safety Code, strike "or an implement of husbandry that is used exclusively for agricultural purposes" (page 14, lines 6-8).

(2) In Subsection (b), Section 1 of the bill, proposed Subsection (b), Section 386.202, Health and Safety Code, strike ", replacement, and recycling" (page 32, line 10).

(3) In Subsection (b), Section 1 of the bill, strike proposed Subsections (b) and (c), Section 386.251, Health and Safety Code (page 33, line 24, through page 34, line 7) and substitute:

(b) The fund is administered by the comptroller for the benefit of the Texas emissions reduction plan established under this chapter. The fund is exempt from the application of Section 403.095, Government Code. Interest earned on the fund shall be credited to the fund.

(c) The fund consists of:

(1) the contributions, fees, and surcharges under:

(A) Section 386.056;

(B) Sections 151.0515, 152.0215, and 156.054, Tax Code; and

(C) Sections 502.1675, 548.256(c), and 548.5055, Transportation Code; and

(2) grant money recaptured under Section 386.111(d).

(4) In Subsection (b), Section 1 of the bill, proposed Subsection (c), Section 388.003, Health and Safety Code, strike "or county" (page 42, line 14).

(5) In Subsection (b), Section 1 of the bill, proposed Subsection (f), Section 388.003, Health and Safety Code, strike "and county" and substitute ", and each county that has established procedures under Subsection (d)," (page 43, line 24).

(6) In Subsection (d), Section 12 of the bill, strike "or county" (page 56, line 4).

(7) In Section 14 of the bill, strike "January" and substitute "August" (page 57, line 8).

(8) In Section 19 of the bill, strike "On the effective date of this Act," and substitute "Not later than October 1, 2001," (page 58, line 27).

(9) At the end of Section 19 of the bill (page 59, line 5), add:

The commission shall include with the revision a report on the effectiveness of the Texas emissions reduction plan in delivering emissions reductions to the degree sufficient to replace the requirements of the construction shift and the early purchase of Tier 2 and Tier 3 equipment.

77th Legislature — Regular Session 80th Day

Amendment No. 2

Amend Floor Amendment No. 1 to CSSB 5 as follows:

(1) On page 1, line 22, of the amendment strike "and 548.5055"

(2) Add the following language to the amendment:

Strike Section 11 of CSSB 5.

Amendment No. 5

Amend Floor Amendment No. 1 to CSSB 5 as follows:

(1) On page 1, line 20, strike "and 156.054"

(2) Add the following language to the amendment:

(a) Strike Section 5 of the bill.

(b) On page 60, line 10 of the bill, strike "and 156.054,"

Floor Amendment No. 6

Amend Floor Amendment No. 1 to CSSB 5 by adding the following text to the amendment:

Amend CSSB 5 in Section 10 of the bill by striking proposed Subsection (c), Section 548.256, Transportation Code (house committee printing, page 54, lines 22-26), and substituting:

(c) The inspection station shall collect a fee of $150 for each inspection performed under this section and shall remit the fee to the department. Of each fee collected, the inspection station may retain $5 to cover administrative costs. The department shall remit all fees collected under this subsection to the comptroller for deposit in the Texas emissions reduction plan fund. This subsection expires August 31, 2008.

Floor Amendment No. 9

Amend CSSB 5 (House committee printing) as follows:

(1)  In SECTION 1(b) of the bill, at the end of proposed Section 386.155, Health and Safety Code (page 28, line 8), add "The manufacturer may supplement the list provided to the commission under this section as necessary to include additional new vehicle models the manufacturer intends to sell in this state during the model year.".

(2)  In SECTION 1(b) of the bill, at the end of proposed Section 386.156(a), Health and Safety Code (page 28, line 12), add "The commission shall publish and provide to the comptroller supplements to that list as necessary to include additional new vehicle models listed in a supplement to the original list provided by a manufacturer under Section 386.155.".

(3)  In SECTION 1(b) of the bill, in the heading to proposed Section 386.157, Health and Safety Code (page 28, line 16), strike "LABEL" and substitute "BROCHURE".

(4)  In SECTION 1(b) of the bill, in proposed Section 386.157(a), Health and Safety Code (page 28, lines 19 through 27), strike all following "manufacturer" and substitute "shall publish and make available to its dealers, for distribution to the dealers' customers, a brochure that includes the list of eligible motor vehicles prepared under Section 386.156 and the emissions and air pollution ratings, not including fuel efficiency, for each eligible motor vehicle based on data from the United States Environmental Protection Agency's Green Vehicle Guide. The brochure must also clearly present information on the emissions and air pollution ratings, not including

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SENATE JOURNAL

fuel efficiency, for each motor vehicle on the list of eligible motor vehicles prepared by the manufacturer under Section 386.155, based on the motor vehicle's BIN certification number. The brochure must indicate where the BIN certification information is located on each motor vehicle and must clearly explain how to interpret that information. The brochure must also tell the consumer how to obtain further information from the United States Environmental Protection Agency's Green Vehicle Guide. The commission by rule shall establish standards for compliance with this subsection.

(5)  In SECTION 1(b) of the bill, at the end of proposed Section 386.159(b), Health and Safety Code (page 29, line 24), add: To help a consumer to make informed new vehicle purchase decisions, the notice must also include a statement that information on eligible motor vehicles and on the emissions and air pollution ratings, not including fuel efficiency, for eligible motor vehicles may be obtained from the commission or from new motor vehicle dealers and leasing agents. The notice must state where the BIN certification information is located on each eligible motor vehicle, must clearly explain how to interpret that information, and must tell the consumer how to obtain further information from the United States Environmental Protection Agency's Green Vehicle Guide.

Floor Amendment No. 11

Amend CSSB 5 (House committee printing) in SECTION 1(b) of the bill, proposed Section 386.053(c), Health and Safety Code (page 5, line 21), after the period add "The public meeting shall be held in the affected SIP area, and if the guidelines affect more than one SIP area, a public meeting shall be held in each affected SIP area affected by the guidelines."

Floor Amendment No. 12

Amend CSSB 5 (House committee report) in SECTION 1(b) of the bill, proposed Section 386.054(a), Health and Safety Code (page 6, line 20), by striking "annually" and substituting "semi-annually".

Floor Amendment No. 15

Amend CSSB 5 as follows:

(1)  In SECTION 3 of the bill, proposed Subsection (a), Section 152.0215, Tax Code (House Committee Printing, page 49, line 17), strike "five" and substitute "2.5".

(2)  Add a new SECTION to the bill, numbered appropriately, to read as follows:

SECTION _____. Subchapter H, Chapter 548, Transportation Code, is amended by adding Section 548.5055 to read as follows:

Sec. 548.5055.  TEXAS EMISSION REDUCTION PLAN FEE. (a) In addition to other fees required by this subchapter, to fund the Texas emissions reduction plan established under Chapter 386, Health and Safety Code, the department shall collect for every commercial motor vehicle required to be inspected under Subchapter D, a fee of $10.

(b)  The department shall remit fees collected under this section to the comptroller at the time and in the manner prescribed by the comptroller for deposit in the Texas emission reduction plan fund.

(c)  This section expires August 31, 2008.

77th Legislature — Regular Session 80th Day

Floor Amendment No. 16

Amend CSSB 5 (House Committee Printing) as follows:

(1) On page 38, line 6, after 'commission' add 'and conducted in an independent and objective manner.'

Floor Amendment No. 20

Amend CSSB 5 (House committee printing) as follows:

(1) In SECTION 1(b) of the bill, at the end of proposed Section 387.007, Health and Safety Code (page 39, line 3), between "money" and the period, add ", except that the council shall require provisions for recapturing grant money for noncompliance with grant requirements. Grant money recaptured under the contract provision shall be deposited in the fund and reallocated for other projects under this subchapter".

(2) In SECTION 1(b) of the bill, at the end of proposed Section 387.010, Health and Safety Code (page 40, line 1), after the period, add "Using sound science, the report shall detail the costs and actual realized benefits of the program and of each project funded under the program.".

Floor Amendment No. 22

Amend CSSB 5 as follows:

(1) On page 52, line 1, between "water" and "that", insert a comma and "fuel ethanol, biodiesel, or mixtures thereof".

(2) On page 52, line 1, strike "is" and substitute "are".

(3) On page 52, line 4, between "water" and the period, insert a comma and "fuel ethanol, biodiesel, or mixtures thereof".

Floor Amendment No. 1 on Third Reading

Amend CSSB 5 on third reading as follows:

(1) In Section 1(b) of the bill, proposed Subdivision (1), Subsection (a), Section 386.252, Health and Safety Code, strike "67 percent" and substitute "72 percent".

(2) In Section 1(b) of the bill, proposed Subdivision (2), Subsection (a), Section 386.252, Health and Safety Code, strike "15 percent" and substitute "10 percent".

Floor Amendment No. 2 on Third Reading

Amend CSSB 5 on third reading in SECTION 2 of the bill, in added Subsection (b), Section 151.0515, Tax Code (House Committee Printing page 49, line 1), by striking "0.5" and substituting "one".

Floor Amendment No. 3 on Third Reading

Amend CSSB 5 on third reading by striking the text of 2nd reading Amendment No. 6 and substituting:

Amend CSSB 5 in Section 10 of the bill by striking proposed Subsection (c), Section 548.256, Transportation Code (house committee printing, page 54, lines 22-26), and substituting:

(c) The inspection station shall collect a fee of $225 for each inspection performed under this section and shall remit the fee to the department. Of each fee collected, the inspection station may retain $5 to cover administrative costs.

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SENATE JOURNAL

The department shall remit all fees collected under this subsection to the comptroller for deposit in the Texas emissions reduction plan fund. This subsection expires August 31, 2008.

Floor Amendment No. 4 on Third Reading

Amend Floor Amendment No. 3 on third reading to CSSB 5 on third reading by adding the following to the end of the amendment:

"The fee imposed by this subsection does not apply to an inspection performed on a vehicle owned by active-duty military personnel and their dependents."

Floor Amendment No. 5 on Third Reading

Amend CSSB 5 on third reading as follows:

(1) In SECTION 10 of the bill insert proposed subsection (d), Section 548.256, Transportation Code (As amended and passed to third reading, page 54, between line 26 and 27) to read as follows:

(d) A person who is an officer, enlisted person, selectee, or draftee of the Army, Army Reserve, Army National Guard, Air National Guard, Air Force, Air Force Reserve, Navy, Navy Reserve, Marine Corps, Marine Corps Reserve, Coast Guard, or Coast Guard Reserve of the United States, and the spouse and children of such an officer, enlisted person, selectee, or draftee is exempted from the requirements of subsection (c).

The amendments were read.

Senator Brown moved to concur in the House amendments to SB 5.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

SENATE RESOLUTION 1174

Senator Ellis offered the following resolution:

SR 1174, Resolving that Senate Rules 12.03 and 12.04 be suspended in part as provided by Senate Rule 12.08 to enable consideration of, and action on, specific matters which may be contained in the Conference Committee Report on SB 1.

The resolution was read and was adopted by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

CONFERENCE COMMITTEE REPORT ON

SENATE BILL 1 ADOPTED

Senator Ellis called from the President's table the Conference Committee Report on SB 1. The Conference Committee Report was filed with the Senate on Tuesday, May 22, 2001.

On motion of Senator Ellis, the Conference Committee Report was adopted by the following vote: Yeas 31, Nays 0.

77th Legislature — Regular Session 80th Day

(Senator Brown in Chair)

SENATE BILL 518 WITH HOUSE AMENDMENTS

Senator Lucio called SB 518 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Committee Amendment No. 1

Amend SB 518 by inserting the following new SECTION between existing SECTIONS 2 and 3 of the bill (Senate Engrossment page 2, between lines 4 and 5) and renumbering existing SECTIONS 3 and 4 of the bill as SECTIONS 4 and 5:

SECTION 3. Subsection (b), Section 33.006, Education Code, is amended to read as follows:

(b)  In addition to a school counselor's responsibility under Subsection (a), the counselor shall:

(1)  participate in planning, implementing, and evaluating a comprehensive developmental guidance program to serve all students and to address the special needs of students [who are ]:

(A)  who are at risk of dropping out of school, becoming substance abusers, participating in gang activity, or committing suicide; [or ]

(B)  who are in need of modified instructional strategies; or

(C)  who are gifted and talented, with emphasis on identifying and serving gifted and talented students who are educationally disadvantaged;

(2)  consult with a student's parent or guardian and make referrals as appropriate in consultation with the student's parent or guardian;

(3)  consult with school staff, parents, and other community members to help them increase the effectiveness of student education and promote student success;

(4)  coordinate people and resources in the school, home, and community;

(5)  with the assistance of school staff, interpret standardized test results and other assessment data that help a student make educational and career plans; and

(6)  deliver classroom guidance activities or serve as a consultant to teachers conducting lessons based on the school's guidance curriculum.

Committee Amendment No. 2

Amend SB 518 as follows:

On page 1, line 19, after the word, "potential", insert, including the student's interests and career objectives.

The amendments were read.

Senator Lucio moved to concur in the House amendments to SB 518.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

Thursday, May 24, 2001

SENATE JOURNAL

BILLS AND RESOLUTIONS SIGNED

The President announced the signing of the following enrolled bills and resolutions in the presence of the Senate after the captions had been read:

HB 5, HB 7, HB 35, HB 370, HB 374, HB 563, HB 689, HB 803, HB 910, HB 1071, HB 1209, HB 1377, HB 1495, HB 1537, HB 1575, HB 1621, HB 1639, HB 1676, HB 1723, HB 1748, HB 1813, HB 1820, HB 1948, HB 2028, HB 2046, HB 2065, HB 2097, HB 2134, HB 2144, HB 2156, HB 2249, HB 2270, HB 2273, HB 2388, HB 2574, HB 2588, HB 2673, HB 2681, HB 2687, HB 2718, HB 2719, HB 2728, HB 2751, HB 2786, HB 2798, HB 2881, HB 2888, HB 2987, HB 2989, HB 2994, HB 2997, HB 3040, HB 3071, HB 3162, HB 3543, HB 3589, HB 3613, HB 3634, HB 3687, HB 3691, HB 3694, HB 3698, HCR 144, HCR 209, HCR 260, HCR 269, HCR 282, HCR 300, HCR 301, HCR 302, HCR 303, HCR 305, HJR 44, HB 78, HB 83, HB 612, HB 627, HB 674, HB 694, HB 715, HB 779, HB 842, HB 1072, HB 1137, HB 1194, HB 1276, HB 1316, HB 1387, HB 1426, HB 1440, HB 1592, HB 1612, HB 1614, HB 2331, HB 2347, HB 2382, HB 2391, HB 2400, HB 2405, HB 2408, HB 2413, HB 2415, HB 2419, HB 2492, HB 2558, HB 2559, HB 2579, HB 2806, HB 3001, HB 3161, HB 3333, HB 3349, HB 3351, HB 3359, HB 3364, HB 3378, HB 3387, HB 3465, HB 3504, HB 3526, HB 3627, HB 3628, HB 3629, HB 3630, HB 3633, HB 3635, HB 3643, HB 3646, HCR 41, HCR 102, HCR 109, HCR 118, HCR 174, HCR 177, HCR 200, HCR 214, HCR 223, HCR 226, HCR 227, HCR 236, HCR 245, HCR 248, HCR 250, HCR 254, HCR 255, HCR 256, HCR 296, HB 15, HB 31, HB 99, HB 119, HB 195, HB 218, HB 249, HB 280, HB 298, HB 407, HB 412, HB 434, HB 451, HB 456, HB 468, HB 485, HB 489, HB 497, HB 539, HB 567, HB 691, HB 1268, HB 1599, HB 1610, HB 1823, HB 1880, HB 2247, HB 2265, HB 2279, HB 2327, HB 2334, HB 2423, HB 2475, HB 2482, HB 2488, HB 2529, HB 2587, HB 2593, HB 2638, HB 2650, HB 2658, HB 2682, HB 2706, HB 2731, HB 2756, HB 2758, HB 2760, HB 2761, HB 2763, HB 2767, HB 2769, HB 2780, HB 2782, HB 2784, HB 2788, HB 2811, HB 2812, HB 2813, HB 3153, HB 3498, HB 3603, HB 3663, HB 3664, HB 3670, HB 3671, HB 3676, HB 3677, HB 3693, HB 3695, HCR 267.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 24, 2001

The Honorable President of the Senate

Senate Chamber

Austin, Texas

Mr. President:

I am directed by the House to inform the Senate that the House has taken the following action:

THE HOUSE HAS PASSED THE FOLLOWING MEASURES:

HCR 206, Granting Darcie R. Barclay permission to sue the state and The University of Texas Medical Branch, et. al.

77th Legislature — Regular Session 80th Day

HCR 211, Granting H. C. "Bud" Gibson permission to sue the state and the Texas Natural Resource Conservation Commission.

HCR 221, Granting MICA Corporation permission to sue the state and the Texas Department of Transportation.

HCR 294, Instructing the enrolling clerk of the house to make technical corrections to House Bill No. 217.

THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:

HB 152

House Conferees: Brown, Fred - Chair/Morrison/Rangel/Uher/West, George "Buddy"

HB 259

House Conferees: Lewis, Glenn - Chair/Chavez/Davis, Yvonne/McClendon/Thompson

HB 328

House Conferees: Gallego - Chair/Raymond/Sadler/Swinford/Walker

THE HOUSE HAS GRANTED THE REQUEST OF THE SENATE FOR THE APPOINTMENT OF A CONFERENCE COMMITTEE ON THE FOLLOWING MEASURES:

SB 2

House conferees: Lewis, Ron - Chair/Cook/Counts/King, Tracy/Puente

SB 450

House conferees: Gallego - Chair/Chisum/Hochberg/Sadler/Walker

SB 732

House conferees: Farabee - Chair/Hilderbran/Homer/Lewis, Glenn/Ramsay

SB 1156

House conferees: Coleman - Chair/Eiland/Gray/Janek/Keffer

THE HOUSE HAS ADOPTED THE FOLLOWING CONFERENCE COMMITTEE REPORTS:

HB 1166 (viva-voce vote)

HJR 97 (141 Ayes, 0 Nays, 1 Present Not Voting)

SB 65 (viva-voce vote)

SB 303 (viva-voce vote)

SB 304 (viva-voce vote)

SB 577 (121 Ayes, 13 Nays, 1 Present Not Voting)

SB 583 (viva-voce vote)

SB 684 (141 Ayes, 0 Nays, 1 Present Not Voting)

SB 846 (viva-voce vote)

SB 1074 (viva-voce vote)

SB 1472 (141 Ayes, 0 Nays, 1 Present Not Voting)

SB 1596 (139 Ayes, 0 Nays, 1 Present Not Voting)

Thursday, May 24, 2001

SENATE JOURNAL

THE HOUSE HAS RECOMMITTED THE FOLLOWING MEASURES TO CONFERENCE COMMITTEE:

HB 236 (viva-voce vote)

Respectfully,

/s/Sharon Carter, Chief Clerk

House of Representatives

CONFERENCE COMMITTEE ON HOUSE BILL 328

Senator Madla called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HB 328 and moved that the request be granted.

The motion prevailed.

The Presiding Officer asked if there were any motions to instruct the conference committee on HB 328 before appointment.

There were no motions offered.

Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill: Senators Madla, Chair; Staples, Bivins, Lucio, and Fraser.

CONFERENCE COMMITTEE REPORT ON

SENATE BILL 846 ADOPTED

Senator Cain called from the President's table the Conference Committee Report on SB 846. The Conference Committee Report was filed with the Senate on Friday, May 18, 2001.

On motion of Senator Cain, the Conference Committee Report was adopted by a viva voce vote.

SENATE BILL 654 WITH HOUSE AMENDMENT

Senator Staples called SB 654 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 654 as follows:

(1) In SECTION 1 of the bill, in amended Subsection (b), Article 62.02, Code of Criminal Procedure (house committee report, page 1, line 15), strike "a photograph of the person" and substitute "a recent color photograph or, if possible, electronic digital image of the person".

(2) Strike SECTION 3 of the bill (house committee report, page 3, lines 7-19) and substitute the following:

SECTION 3. The requirements under Subsection (b), Article 62.02, Code of Criminal Procedure, as amended by this Act, regarding the offender's photograph or digital image and the offender's licensing information apply to the initial registration form for an offender who first registers on or after the effective date

77th Legislature — Regular Session 80th Day

of this Act. For an offender who first registers before the effective date of this Act, the requirements apply to the registration form as modified when the offender first verifies registration on or after the effective date. Regardless of the date of a sex offender's initial registration, all registration forms modified on verification of registration on or after the effective date of this Act must contain the offender's photograph or digital image and licensing information as required by Subsection (b), Article 62.02, Code of Criminal Procedure, as amended by this Act.

The amendment was read.

On motion of Senator Staples, the Senate concurred in the House amendment to SB 654 by a viva voce vote.

SENATE BILL 437 WITH HOUSE AMENDMENTS

Senator Staples called SB 437 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 437 (house committee printing) by adding an appropriately numbered SECTION to read as follows and by renumbering existing SECTIONS accordingly:

SECTION _____. Section 31.04, Penal Code, is amended by adding Subsection (g) to read as follows:

(g)  It is a defense to prosecution under this section that:

(1)  the defendant secured the performance of the service by giving a post-dated check or similar sight order to the person performing the service; and

(2)  the person performing the service or any other person presented the check or sight order for payment before the date on the check or sight order.

Floor Amendment No. 2

Amend SB 437 (house committee printing) as follows:

SECTION _____. Section 32.32(c), Penal Code, is amended to read as follows:

(c)  An offense under this section is:

(1)  a Class C misdemeanor if the value of the property or the amount of credit is less than $50;

(2)  a Class B misdemeanor if the value of the property or the amount of credit is $50 or more but less than $500;

(3)  a Class A misdemeanor if the value of the property or the amount of credit is $500 or more but less than $1,500;

(4)  a state jail felony if the value of the property or the amount of credit is $1,500 or more but less than $20,000;

(5)  a felony of the third degree if the value of the property or the amount of credit is $20,000 or more but less than $100,000;

(6)  a felony of the second degree if the value of the property or the amount of credit is $100,000 or more but less than $200,000; or

(7)  a felony of the first degree if the value of the property or the amount of credit is $200,000 or more.

The amendments were read.

On motion of Senator Staples, the Senate concurred in the House amendments to SB 437 by a viva voce vote.

Thursday, May 24, 2001

SENATE JOURNAL

SENATE BILL 1536 WITH HOUSE AMENDMENTS

Senator Madla called SB 1536 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 1536 by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS of the bill accordingly:

SECTION _____. Subchapter B, Chapter 531, Government Code, is amended by adding Sections 531.02171 and 531.02172 to read as follows:

Sec. 531.02171.  TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES PILOT PROGRAMS. (a)  In this section:

(1)  "Health professional" means:

(A)  a physician;

(B)  an individual who is licensed or certified in this state to perform health care services and who is authorized to assist a physician in providing telemedicine medical services that are delegated and supervised by the physician; or

(C)  a licensed or certified health professional acting within the scope of the license or certification who does not perform a telemedicine medical service.

(2)  "Physician" means a person licensed to practice medicine in this state under Subtitle B, Title 3, Occupations Code.

(3)  "Telehealth service" has the meaning assigned by Section 57.042, Utilities Code.

(4)  "Telemedicine medical service" has the meaning assigned by Section 57.042, Utilities Code.

(b)  The commission shall establish pilot programs in designated areas of this state under which the commission, in administering government-funded health programs, may reimburse a health care professional participating in the pilot program for telemedicine medical services or telehealth services authorized under the licensing law applicable to the health care professional. Each pilot program established before January 1, 2003, must provide services in areas of this state that are not more than 150 miles from the border between this state and the United Mexican States.

(c)  In developing and operating a pilot program under this section, the commission shall:

(1)  solicit and obtain support for the program from local officials and the medical community;

(2)  focus on enhancing health outcomes in the area served by the pilot program through increased access to medical or health care services, including:

(A)  health screenings;

(B)  prenatal care;

(C)  medical or surgical follow-up visits;

(D)  periodic consultation with specialists regarding chronic disorders;

(E)  triage and pretransfer arrangements; and

(F)  transmission of diagnostic images or data;

(3)  establish quantifiable measures and expected health outcomes for each authorized telemedicine medical service or telehealth service;

77th Legislature — Regular Session 80th Day

(4)  consider condition-specific applications of telemedicine medical services or telehealth services, including applications for:

(A)  pregnancy;

(B)  diabetes;

(C)  heart disease; and

(D)  cancer; and

(5)  demonstrate that the provision of services authorized as telemedicine medical services or telehealth services will not adversely affect the delivery of traditional medical services or other health care services within the area served by the pilot program.

Sec. 531.02172.  TELEMEDICINE ADVISORY COMMITTEE. (a)  The commissioner shall establish an advisory committee to assist the commission in:

(1)  evaluating policies for telemedical consultations under Section 531.0217;

(2)  evaluating policies for telemedicine medical service or telehealth service pilot programs established under Section 531.02171;

(3)  ensuring the efficient and consistent development and use of telecommunication technology for telemedical consultations and telemedicine medical services or telehealth services reimbursed under government-funded health programs;

(4)  monitoring the type of programs receiving reimbursement under Sections 531.0217 and 531.02171; and

(5)  coordinating the activities of state agencies concerned with the use of telemedical consultations and telemedicine medical services or telehealth services.

(b)  The advisory committee must include:

(1)  representatives of health and human services agencies and other state agencies concerned with the use of telemedical consultations in the Medicaid program and the state child health plan program, including representatives of:

(A)  the commission;

(B)  the Texas Department of Health;

(C)  the Center for Rural Health Initiatives;

(D)  the Telecommunications Infrastructure Fund Board;

(E)  the Texas Department of Insurance;

(F)  the Texas State Board of Medical Examiners;

(G)  the Board of Nurse Examiners; and

(H)  the Texas State Board of Pharmacy;

(2)  representatives of health science centers in this state;

(3)  experts on telemedicine, telemedical consultation, and telemedicine medical services; and

(4)  representatives of consumers of health services provided through telemedical consultations and telemedicine medical services.

(c)  A member of the advisory committee serves at the will of the commissioner.

SECTION ____. Section 57.042, Utilities Code, is amended by amending Subdivision (11) and adding Subdivision (12) to read as follows:

(11)  "Telehealth service" means a health service, other than a telemedicine medical service, delivered by a licensed or certified health professional acting within the scope of the health professional's license or certification who does not perform a telemedicine medical service that requires the use of advanced telecommunications technology, other than by telephone or facsimile, including:

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(A)  compressed digital interactive video, audio, or data transmission;

(B)  clinical data transmission using computer imaging by way of still-image capture and store and forward; and

(C)  other technology that facilitates access to health care services or medical specialty expertise.

(12)  "Telemedicine medical service" means a health care service initiated by a physician or provided by a health professional acting under physician delegation and supervision, for purposes of patient assessment by a health professional, diagnosis or consultation by a physician, treatment, or the transfer of medical data, that requires the use of advanced telecommunications technology, other than by telephone or facimile, including:

(A)  compressed digital interactive video, audio, or data transmission;

(B)  clinical data transmission using computer imaging by way of still-image capture and store and forward; and

(C)  other technology that facilitates access to health care services or medical specialty expertise[:

[(A)  means medical services delivered by telecommunications technologies to rural or underserved public not-for-profit health care facilities or primary health care facilities in collaboration with an academic health center and an associated teaching hospital or tertiary center or with another public not-for-profit health care facility; and

[(B)  includes consultive services, diagnostic services, interactive video consultation, teleradiology, telepathology, and distance education for working health care professionals ].

SECTION ____. Subsections (a) and (b), Section 57.047, Utilities Code, are amended to read as follows:

(a)  The board may award a grant to a project or proposal that:

(1)  provides equipment and infrastructure necessary for:

(A)  distance learning;

(B)  an information sharing program of a library; [or ]

(C)  telemedicine medical services; or

(D)  telehealth services;

(2)  develops and implements the initial or prototypical delivery of a course or other distance learning material;

(3)  trains teachers, faculty, librarians, or technicians in the use of distance learning or information sharing materials and equipment;

(4)  develops a curriculum or instructional material specially suited for telecommunications delivery;

(5)  provides electronic information; or

(6)  establishes or carries out an information sharing program.

(b)  The board may award a loan to a project or proposal to acquire equipment needed for distance learning and telemedicine medical service projects.

SECTION ____. Subchapter C, Chapter 57, Utilities Code, is amended by adding Section 57.0471 to read as follows:

Sec. 57.0471.  GRANTS TO CERTAIN HEALTH CARE FACILITIES. A physician, health care professional, or health care facility providing telemedicine medical services or telehealth services and participating in a pilot program under Section 531.02171, Government Code, is eligible to receive a grant under Section 57.047.

77th Legislature — Regular Session 80th Day

SECTION ____. Subsection (h), Section 531.0217, Government Code, is repealed.

SECTION ____. (a)  Not later than December 31, 2001, the commissioner of health and human services shall establish the telemedicine advisory committee as required by Section 531.02172, Government Code, as added by this Act.

(b)  Not later than September 1, 2003, the telemedicine advisory committee established under Section 531.02172, Government Code, as added by this Act, shall prepare a report relating to the implementation of the pilot programs established under Section 531.02171, Government Code, as added by this Act, and shall provide the report to the governor, lieutenant governor, speaker of the house of representatives, and appropriate standing committees of the senate and house of representatives.

SECTION ____. The advisory committee established under Subsection (h), Section 531.0217, Government Code, is abolished on the effective date of this Act.

Floor Amendment No. 2

Amend SB 1536 (House Committee Printing) following proposed Subsection (b) of Section 531.055, Government Code (page 1, between lines 17 and 18), by inserting the following:

(c)  Notwithstanding an eligibility requirement prescribed by any other law or rule, the commission may establish requirements for a person to receive services provided through a pilot project under this section.

(d)  Receipt of services provided through a pilot project under this section does not entitle the recipient to other services under a government-funded health program.

(e)  The commission may set a maximum enrollment limit for a pilot project established under this section.

Floor Amendment No. 3

Amend SB 1536 (House Committee Printing) in Section 531.055(b), Government Code, as added by SECTION 1 of the bill (page 1, line 14), by striking "must" and substituting "may".

Floor Amendment No. 1 on Third Reading

Amend SB 1536 on third reading by amending the House floor amendment No. 1 by Puente as follows:

(1) Create subsection with existing Puente amendment language by inserting "(a)" between "FACILITIES." and "A" on page 6 line 15 of the amendment.

(2) Insert new subsection between lines 20 and 21 of page 6 of the amendment as follows:

"(b) The physician, health care professional, or health care facility providing telemedicine medical services or telehealth services and participating in a pilot program under Section 531.02171, Government Code, is not eligible to receive private network services under Section 58.253(a), except with respect to a project that would have been eligible to be funded by the telecommunications infrastructure fund under this subchapter as it existed on January 1, 2000."

Floor Amendment No. 2 on Third Reading

Amend SB 1536 on third reading by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS of the bill accordingly:

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SECTION __. Chapter 35, Health and Safety Code, is amended by adding Section 35.0041 to read as follows:

Sec. 35.0041.  PARTICIPATION AND REIMBURSEMENT OF TELEMEDICINE MEDICAL SERVICE PROVIDERS. (a)  The department by rule shall develop and implement policies permitting reimbursement of a provider for services under the program performed using telemedicine medical services.

(b)  The policies must provide for reimbursement of:

(1)  providers using telemedicine medical services and telehealth services in a cost-effective manner that ensures the availability to a child with special health care needs of services appropriately performed using telemedicine medical services and telehealth services that are comparable to the same types of services available to that child without use of medical services and telehealth services;

(2)  a provider for a service performed using telemedicine medical services and telehealth services at an amount equal to the amount paid to a provider for performing the same service without using telemedicine medical services and telehealth services;

(3)  multiple providers of different services who participate in a single telemedicine medical services or telehealth services session for a child with special health care needs, if the department determines that reimbursing each provider for the session is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services and telehealth services, including the costs of transportation and lodging and other direct costs; and

(4) Providers using telemedicine medical services and telehealth services included in the school health and related services program.

(c)  In developing and implementing the policies required by this section, the department shall consult with:

(1)  The University of Texas Medical Branch at Galveston;

(2) Texas Tech University Health Sciences Center;

(3)  the Health and Human Services Commission, including the state Medicaid office;

(4)  providers of telemedicine medical services and telehealth services hub sites in this state;

(5)  providers of services to children with special health care needs; and

(6)  representatives of consumer or disability groups affected by changes to services for children with special health care needs.

(d)  This section applies to services for which coverage is provided under the health benefits plan established under Section 35.0031.

SECTION 5. Subchapter D, Chapter 62, Health and Safety Code, is amended by adding Section 62.157 to read as follows:

Sec. 62.157.  TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES FOR CHILDREN WITH SPECIAL HEALTH CARE NEEDS. (a) In providing covered benefits to a child with special health care needs, a health plan provider must permit benefits to be provided through telemedicine medical services and telehealth services in accordance with policies developed by the commission.

(b)  The policies must provide for:

(1)  the availability of covered benefits appropriately provided through telemedicine medical services and telehealth services that are comparable to the same types of covered benefits provided without the use of telemedicine medical services and telehealth services; and

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(2)  the availability of covered benefits for different services performed by multiple health care providers during a single telemedicine medical services and telehealth services session, if the commission determines that delivery of the covered benefits in that manner is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services and telehealth services, including the costs of transportation and lodging and other direct costs.

(c)  In developing the policies required by Subsection (a), the commission shall consult with:

(1)  The University of Texas Medical Branch at Galveston;

(2)  Texas Tech University Health Sciences Center;

(3)  the Texas Department of Health;

(4)  providers of telemedicine hub sites in this state;

(5)  providers of services to children with special health care needs; and

(6)  representatives of consumer or disability groups affected by changes to services for children with special health care needs.

SECTION __.  Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.02161 to read as follows:

Sec. 531.02161.  MEDICAID SERVICES PROVIDED THROUGH TELEMEDICINE MEDICAL SERVICES AND TELEHEALTH SERVICES TO CHILDREN WITH SPECIAL HEALTH CARE NEEDS. (a) In this section, "Child with special health care needs" has the meaning assigned by Section 35.0022, Health and Safety Code.

(b)  The commission by rule shall establish policies that permit reimbursement under the state Medicaid and Children's Health Insurance program for services provided through telemedicine medical services and telehealth services to children with special health care needs.

(c)  The policies required under this section must:

(1)  be designed to:

(A)  prevent unnecessary travel and encourage efficient use of telemedicine medical services and telehealth services for children with special health care needs in all suitable circumstances; and

(B)  ensure in a cost-effective manner the availability to a child with special health care needs of services appropriately performed using telemedicine medical services and telehealth services that are comparable to the same types of services available to that child without the use of telemedicine medical services and telehealth services; and

(2)  provide for reimbursement of multiple providers of different services who participate in a single telemedicine medical services and telehealth services session for a child with special health care needs, if the commission determines that reimbursing each provider for the session is cost-effective in comparison to the costs that would be involved in obtaining the services from providers without the use of telemedicine medical services and telehealth services, including the costs of transportation and lodging and other direct costs.

SECTION __. The Health and Human Services Commission and the Texas Department of Health shall develop and implement policies required by Sections 35.0041 and 62.157, Health and Safety Code, as added by this Act, not later than December 31, 2001.

SECTION __. Not later than December 1 of each even-numbered year, the commission shall report to the Speaker of the House of Representatives, the Lieutenant

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Governor, and the Governor on the effects of telemedicine medical services on the Medicaid and Childrens Health Insurance programs in the state, including the number of physicians and health professionals using telemedicine medical services, the geographic and demographic dispositions of the physicians and health professionals, the number of patients receiving telemedicine medical services, the types of services being provided, and the cost of utilization of telemedicine medical services to the program.

Section _____. Section 58.253(a), Utilities Code, is amended to read as follows: (a) On customer request, an electing company shall provide private network services to: (1) an educational institution; (2) a library; (3) a nonprofit telemedicine center; (4) a public or not-for-profit hospital; (5) a project that would have been eligible to be funded by the telecommunications infrastructure fund under Subchapter C, Chapter 57, as that subchapter existed on January 1, 2001; or (6) a legally constituted consortium or group of entities listed in this subsection.

The amendments were read.

Senator Madla moved to concur in the House amendments to SB 1536.

The motion prevailed by the following vote: Yeas 30, Nays 0, Present-not voting 1.

Present-not voting: Mr. President.

(President in Chair)

SENATE BILL 7 WITH HOUSE AMENDMENTS

Senator Ellis called SB 7 from the President's table for consideration of the House amendments to the bill.

The President laid the bill and the House amendments before the Senate.

Amendment

Amend SB 7 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the period during which a person arrested is required to be taken before a magistrate and to the appointment and compensation of counsel to represent indigent persons accused of crime.

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

SECTION 1.  This Act may be known as the Texas Fair Defense Act.

SECTION 2.  Article 1.051, Code of Criminal Procedure, is amended by amending Subsection (c) and adding Subsections (i) and (j) to read as follows:

(c)  An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation. Except as otherwise provided by this subsection, if [If ] an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a [the ] court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county shall appoint counsel [to represent the defendant ] as soon as possible, but not later than the end of the third working day after the date on which the court or the courts' designee receives the defendant's request for

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appointment of counsel. In a county with a population of 250,000 or more, the court or the courts' designee shall appoint counsel as required by this subsection as soon as possible, but not later than the end of the first working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel.

(i)  Except as otherwise provided by this subsection, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have not been initiated against the defendant, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county shall appoint counsel immediately following the expiration of three working days after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel. In a county with a population of 250,000 or more, the court or the courts' designee shall appoint counsel as required by this subsection immediately following the expiration of one working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel.

(j)  A court or the courts' designee may without unnecessary delay appoint new counsel to represent an indigent defendant for whom counsel is appointed under Subsection (c) or (i) if:

(1)  the defendant is subsequently charged in the case with an offense different from the offense with which the defendant was initially charged; and

(2)  good cause to appoint new counsel is stated on the record as required by Article 26.04(j)(2).

SECTION 3.  Article 14.06(a), Code of Criminal Procedure, is amended to read as follows:

(a)  Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, if necessary to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

SECTION 4.  Article 15.17, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsections (e) and (f) to read as follows:

(a)  In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, if necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made. The arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate. The magistrate shall inform in clear language the person arrested, either in person or by closed circuit television, of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys

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representing the state, of his right to terminate the interview at any time, [of his right to request the appointment of counsel if he is indigent and cannot afford counsel, ] and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel in a manner understood by the person. If the person does not speak and understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as appropriate. The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051. If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, transmit, or cause to be transmitted to the court or to the courts' designee authorized under Article 26.04 to appoint counsel in the county, the forms requesting the appointment of counsel. The magistrate [He ] shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law. A closed circuit television system may not be used under this subsection unless the system provides for a two-way communication of image and sound between the arrested person and the magistrate. A recording of the communication between the arrested person and the magistrate shall be made. The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearing ends; or (2) the 91st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120th day after the date on which the recording is made if the person is charged with a felony. The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction.

(e)  In each case in which a person arrested is taken before a magistrate as required by Subsection (a), a record shall be made of:

(1)  the magistrate informing the person of the person's right to request appointment of counsel;

(2)  the magistrate asking the person whether the person wants to request appointment of counsel; and

(3)  whether the person requested appointment of counsel.

(f)  A record required under Subsection (e) may consist of written forms, electronic recordings, or other documentation as authorized by procedures adopted in the county under Article 26.04(a).

SECTION 5.  Article 26.04, Code of Criminal Procedure, is amended to read as follows:

Art. 26.04.  PROCEDURES FOR APPOINTING [COURT SHALL APPOINT ] COUNSEL. (a) The judges of the county courts, statutory county courts, and district courts trying criminal cases in each county, by local rule, shall adopt and publish written countywide procedures for timely and fairly appointing counsel for an indigent defendant in the county arrested for or charged with a misdemeanor punishable by

77th Legislature — Regular Session 80th Day

confinement or a felony. The procedures must be consistent with this article and Articles 1.051, 15.17, 26.05, and 26.052. A court shall appoint an attorney from a public appointment list using a system of rotation, unless the court appoints an attorney under Subsection (f), (h), or (i). The court shall appoint attorneys from among the next five names on the appointment list in the order in which the attorneys' names appear on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. An attorney who is not appointed in the order in which the attorney's name appears on the list shall remain next in order on the list.

(b)  Procedures adopted under Subsection (a) shall:

(1)  authorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county;

(2)  apply to each appointment of counsel made by a judge or the judges' designee in the county;

(3)  ensure that each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings;

(4)  require appointments for defendants in capital cases in which the death penalty is sought to comply with the requirements under Article 26.052; and

(5)  ensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, the requirements of this code, and applicable rules of ethics.

(c)  Whenever a [the ] court or the courts' designee authorized under Subsection (b) to appoint counsel for indigent defendants in the county determines that a defendant charged with a felony or a misdemeanor punishable by confinement [imprisonment ] is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court or the courts' designee shall appoint one or more practicing attorneys to defend the defendant in accordance with the procedures adopted under Subsection (a) [him ].

(d)  A public appointment list from which an attorney is appointed as required by Subsection (a) shall contain the names of qualified attorneys, each of whom:

(1)  applies to be included on the list;

(2)  meets the objective qualifications specified by the judges under Subsection (e);

(3)  meets any applicable qualifications specified by the Task Force on Indigent Defense; and

(4)  is approved by a majority of the judges who established the appointment list under Subsection (e).

(e)  In a county in which a court is required under Subsection (a) to appoint an attorney from a public appointment list:

(1)  the judges of the county courts and statutory county courts trying misdemeanor cases in the county, by formal action:

(A)  shall:

(i)  establish a public appointment list of attorneys qualified to provide representation in the county in misdemeanor cases punishable by confinement; and

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(ii)  specify the objective qualifications necessary for an attorney to be included on the list; and

(B)  may establish, if determined by the judges to be appropriate, more than one appointment list graduated according to the degree of seriousness of the offense and the attorneys' qualifications; and

(2)  the judges of the district courts trying felony cases in the county, by formal action:

(A)  shall:

(i)  establish a public appointment list of attorneys qualified to provide representation in felony cases in the county; and

(ii)  specify the objective qualifications necessary for an attorney to be included on the list; and

(B)  may establish, if determined by the judges to be appropriate, more than one appointment list graduated according to the degree of seriousness of the offense and the attorneys' qualifications.

(f)  In a county in which a public defender is appointed under Article 26.044, the court or the courts' designee may appoint the public defender to represent the defendant in accordance with guidelines established for the public defender.

(g)  A countywide alternative program for appointing counsel for indigent defendants in criminal cases is established by a formal action in which two-thirds of the judges of the courts designated under this subsection vote to establish the alternative program. An alternative program for appointing counsel in misdemeanor and felony cases may be established in the manner provided by this subsection by the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county. An alternative program for appointing counsel in misdemeanor cases may be established in the manner provided by this subsection by the judges of the county courts and statutory county courts trying criminal cases in the county. An alternative program for appointing counsel in felony cases may be established in the manner provided by this subsection by the judges of the district courts trying criminal cases in the county. In a county in which an alternative program is established:

(1)  the alternative program may:

(A)  use a single method for appointing counsel or a combination of methods; and

(B)  use a multicounty appointment list using a system of rotation; and

(2)  the procedures adopted under Subsection (a) must ensure that:

(A)  attorneys appointed using the alternative program to represent defendants in misdemeanor cases punishable by confinement:

(i)  meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in misdemeanor cases punishable by confinement; and

(ii)  are approved by a majority of the judges of the county courts and statutory county courts trying misdemeanor cases in the county;

(B)  attorneys appointed using the alternative program to represent defendants in felony cases:

(i)  meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in felony cases; and

(ii)  are approved by a majority of the judges of the district courts trying felony cases in the county;

77th Legislature — Regular Session 80th Day

(C)  appointments for defendants in capital cases in which the death penalty is sought comply with the requirements of Article 26.052; and

(D)  appointments are reasonably and impartially allocated among qualified attorneys.

(h)  In a county in which an alternative program for appointing counsel is established as provided by Subsection (g) and is approved by the presiding judge of the administrative judicial region, a court or the courts' designee may appoint an attorney to represent an indigent defendant by using the alternative program. In establishing an alternative program under Subsection (g), the judges of the courts establishing the program may not, without the approval of the commissioners court, obligate the county by contract or by the creation of new positions that cause an increase in expenditure of county funds.

(i)  A court or the courts' designee required under Subsection (c) to appoint an attorney to represent a defendant accused of a felony may appoint an attorney from any county located in the court's administrative judicial region.

(j)  An attorney appointed under this article [subsection ] shall:

(1)  make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed; and

(2)  represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record.

(k)  A court may replace an attorney who violates Subsection (j)(1) with other counsel. A majority of the judges of the county courts and statutory county courts or the district courts, as appropriate, trying criminal cases in the county may remove from consideration for appointment an attorney who intentionally or repeatedly violates Subsection (j)(1).

(l)  Procedures adopted under Subsection (a) must include procedures and financial standards for determining whether a defendant is indigent. The procedures and standards shall apply to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail.

(m) [(b) ]  In determining whether a defendant is indigent, the court or the courts' designee may [shall ] consider [such factors as ] the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, spousal income that is available to the defendant, and the defendant's ability to obtain a loan[, and whether the defendant has posted or is capable of posting bail ]. The court or the courts' designee may not consider whether [deny appointed counsel to a defendant solely because ] the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant's financial circumstances as measured by the considerations listed in this subsection.

(n) [(c) ]  A defendant who requests a determination of indigency and appointment of counsel shall:

(1)  complete under oath a questionnaire concerning his financial resources;

(2)  respond under oath to an examination regarding his financial resources by the judge or magistrate responsible for determining whether the defendant is indigent; or

(3)  complete the questionnaire and respond to examination by the judge or magistrate.

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(o) [(d) ]  Before making a determination of whether a defendant is indigent, the court shall request the defendant to sign under oath a statement substantially in the following form:

"On this ________ day of ____________, 20 [19 ]___, I have been advised by the (name of the court) Court of my right to representation by counsel in the trial of the charge pending against me. I certify that I am without means to employ counsel of my own choosing and I hereby request the court to appoint counsel for me. (signature of the defendant)"

(p)  A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. [(e) ]  If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination.

(q) [(f) ]  A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant's indigency or to impeach the direct testimony of the defendant. This subsection does not prohibit prosecution of the defendant under Chapter 37, Penal Code.

SECTION 6.  Article 26.044, Code of Criminal Procedure, is amended to read as follows:

Art. 26.044.  PUBLIC DEFENDER [IN COUNTY WITH FOUR COUNTY COURTS AND FOUR DISTRICT COURTS ]. (a) In this chapter, "public defender" means a governmental entity or nonprofit corporation:

(1)  operating under a written agreement with a governmental entity, other than an individual judge or court;

(2)  using public funds; and

(3)  providing legal representation and services to indigent defendants accused of a crime or juvenile offense, as those terms are defined by Section 71.001, Government Code.

(b)  The commissioners court of any county, on written approval of a judge of a county court, statutory county court, or district court trying criminal cases in the county, [having four county courts and four district courts ] may appoint a governmental entity or nonprofit corporation [one or more attorneys ] to serve as a public defender. The commissioners courts of two or more counties may enter into a written agreement to jointly appoint and fund a regional [A ] public defender [serves at the pleasure of the commissioners court ]. In appointing a public defender under this subsection, the commissioners court shall specify or the commissioners courts shall jointly specify, if appointing a regional public defender:

(1)  the duties of the public defender;

(2)  the types of cases to which the public defender may be appointed under Article 26.04(f) and the courts in which the public defender may be required to appear;

(3)  whether the public defender is appointed to serve a term or serve at the pleasure of the commissioners court or the commissioners courts; and

(4)  if the public defender is appointed to serve a term, the term of appointment and the procedures for removing the public defender.

(c)  Before appointing a public defender under Subsection (b), the commissioners court or commissioners courts shall solicit proposals for the public defender. A proposal must include:

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(1)  a budget for the public defender, including salaries;

(2)  a description of each personnel position, including the chief public defender position;

(3)  the maximum allowable caseloads for each attorney employed by the proponent;

(4)  provisions for personnel training;

(5)  a description of anticipated overhead costs for the public defender; and

(6)  policies regarding the use of licensed investigators and expert witnesses by the proponent.

(d)  After considering each proposal for the public defender submitted by a governmental entity or nonprofit corporation, the commissioners court or commissioners courts shall select a proposal that reasonably demonstrates that the proponent will provide adequate quality representation for indigent defendants in the county or counties.

(e)  The total cost of the proposal may not be the sole consideration in selecting a proposal.

(f) [(b) ]  To be eligible for appointment as a public defender, the governmental entity or nonprofit corporation [a person ] must be directed by a chief public defender who:

(1)  is [be ] a member of the State Bar of Texas;

(2)  has [have ] practiced law for at least three years [one year ]; and

(3)  has substantial [have ] experience in the practice of criminal law.

(g)  A [(c)  The ] public defender is entitled to receive funds for personnel costs and expenses incurred in operating as a public defender in amounts [an annual salary in an amount ] fixed by the commissioners court and paid out of the appropriate county fund, or jointly fixed by the commissioners courts and proportionately paid out of each appropriate county fund if the public defender serves more than one county.

(h)  A public defender may employ attorneys, licensed investigators, and other personnel necessary to perform the duties of the public defender as specified by the commissioners court or commissioners courts under Subsection (b)(1).

(i) [(d) ]  Except as authorized by this article, the chief [a ] public defender or an attorney employed by a public defender may not:

(1)  engage in the private practice of criminal law; or

(2)  accept anything of value not authorized by this article for services rendered under this article.

(j)  A public defender may refuse an appointment under Article 26.04(f) if:

(1)  a conflict of interest exists;

(2)  the public defender has insufficient resources to provide adequate representation for the defendant;

(3)  the public defender is incapable of providing representation for the defendant in accordance with the rules of professional conduct; or

(4)  the public defender shows other good cause for refusing the appointment.

(k) [(e) ]  The judge may remove a public defender who violates a provision of Subsection (i) [(d) of this article ].

(l) [(f)  A public defender or an attorney appointed by a court of competent jurisdiction shall represent each indigent person who is charged with a criminal offense in a county having at least four county courts and at least four district courts and each indigent minor who is a party to a juvenile delinquency proceeding in the county.

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[(g) ]  A public defender may investigate the financial condition of any person the public defender is appointed to represent. The defender shall report the results of the investigation to the appointing judge. The judge may hold a hearing to determine if the person is indigent and entitled to representation under this article.

(m) [(h) ]  If it is necessary that an attorney other than a public defender be [is ] appointed, the attorney is entitled to the compensation provided by Article 26.05 of this code.

[(i)  At any stage of the proceeding, including appeal or other postconviction proceedings, the judge may appoint another attorney to represent the person. The substitute attorney is entitled to the compensation provided by Article 26.05 of this code.

[(j)  Except for the provisions relating to daily appearance fees, Article 26.05 of this code applies to a public defender appointed under this article. ]

SECTION 7.  Article 26.05, Code of Criminal Procedure, is amended to read as follows:

Art. 26.05.  COMPENSATION OF COUNSEL APPOINTED TO DEFEND. (a) A counsel, other than an attorney with a public defender [defender's office ], appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be [reimbursed for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony and shall be ] paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel:

(1)  time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and [or ] time spent in a proceeding in which sworn oral testimony is elicited;

(2)  reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires; [and ]

(3)  preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and

(4)  preparation of a motion for rehearing.

(b)  All payments made under this article shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in [county and district criminal court judges within ] each county[, except that in a county with only one judge with criminal jurisdiction the schedule will be adopted by the administrative judge for that judicial district ].

(c)  Each fee schedule adopted shall state reasonable [will include a ] fixed rates or [rate, ] minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and customary rates charged for similar legal services in the community, [and daily rates ] and shall [will ] provide a form for the appointed counsel to itemize [reporting ] the types of services performed [in each one ]. No payment shall be made under this article [section ] until the form for itemizing [reporting ] the services performed is submitted to the judge presiding over the proceedings and the judge approves the payment. If the judge disapproves the requested amount of payment, the judge shall make written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount. An attorney whose request for payment is disapproved may appeal the

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disapproval by filing a motion with the presiding judge of the administrative judicial region. On the filing of a motion, the presiding judge of the administrative judicial region shall review the disapproval of payment and determine the appropriate amount of payment. In reviewing the disapproval, the presiding judge of the administrative judicial region may conduct a hearing. Not later than the 45th day after the date an application for payment of a fee is submitted under this article, the commissioners court shall pay to the appointed counsel the amount that is approved by the presiding judge of the administrative judicial region [and approved by the court ] and that is in accordance with the fee schedule for that county.

(d)  A counsel in a noncapital case, other than an attorney with a public defender, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).

(e)  A majority of the judges of the county courts and statutory county courts or the district courts, as appropriate, trying criminal cases in the county may remove an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney.

(f)  All payments made under this article shall be paid from the general fund of the county in which the prosecution was instituted or habeas corpus hearing held and may be included as costs of court.

(g) [(e) ]  If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

(h) [(f) ]  Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, [the Private Investigators and Private Security Agencies Act (Article 4413(29bb), Vernon's Texas Civil Statutes) ] or to an expert witness in the manner designated by appointed counsel and approved by the court.

SECTION 8.  Article 26.052, Code of Criminal Procedure, is amended by amending Subsections (d) and (e) and adding Subsection (m) to read as follows:

(d)(1)  The committee shall adopt standards for the qualification of attorneys to be appointed to represent indigent defendants in capital cases in which the death penalty is sought [for appointment to death penalty cases ].

(2)  The standards must require that an attorney appointed to a death penalty case:

(A)  be a member of the State Bar of Texas;

(B)  exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;

(C)  have at least five years of experience in criminal litigation;

(D)  have tried to a verdict as lead defense counsel a significant number of felony cases, including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies;

(E)  have trial experience in:

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(i)  the use of and challenges to mental health or forensic expert witnesses; and

(ii)  investigating and presenting mitigating evidence at the penalty phase of a death penalty trial; and

(F)  have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases.

(3)  The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment.

(4)  Not later than the second anniversary of the date an attorney is placed on the list of attorneys qualified for appointment in death penalty cases and each year following the second anniversary, the attorney must present proof to the committee that the attorney has successfully completed the minimum continuing legal education requirements of the state bar, including a course or other form of training relating to the defense of death penalty cases. The committee shall remove the attorney's name from the list of qualified attorneys if the attorney fails to provide the committee with proof of completion of the continuing legal education requirements.

(e)  The presiding judge of the district court in which a capital felony case is filed shall appoint two attorneys, at least one of whom must be qualified under this chapter, [counsel ] to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives notice in writing that the state will not seek the death penalty [if the death penalty is sought in the case. The judge shall appoint lead trial counsel from the list of attorneys qualified for appointment. The judge shall appoint a second counsel to assist in the defense of the defendant, unless reasons against the appointment of two counsel are stated in the record ].

(m)  The local selection committee shall annually review the list of attorneys posted under Subsection (d) to ensure that each listed attorney satisfies the requirements under this chapter.

SECTION 9.  Article 102.075(h), Code of Criminal Procedure, is amended to read as follows:

(h)  The comptroller shall deposit money received under this article to the credit of the following accounts in the general revenue fund according to the specified percentages:

NAME OF ACCOUNT PERCENTAGE

abused children's counseling 0.02%

crime stoppers assistance 0.6%

breath alcohol testing 1.28%

Bill Blackwood Law Enforcement Management Institute 5.04%

law enforcement officers standards and education 11.63%

comprehensive rehabilitation 12.37%

operator's and chauffeur's license 25.9%

criminal justice planning 29.18%

fair defense account 13.98%

SECTION 10.  Chapter 51, Family Code, is amended by adding Section 51.101 to read as follows:

Sec. 51.101.  APPOINTMENT OF COUNSEL PLAN. (a) The judges trying juvenile cases in each county shall adopt a plan that:

(1)  specifies the qualifications necessary for an attorney to be included on an appointment list from which attorneys are appointed to represent children in proceedings under this title; and

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(2)  establishes procedures for:

(A)  including attorneys on the appointment list and removing attorneys from the list; and

(B)  appointing attorneys from the appointment list to individual cases.

(b)  A plan adopted under Subsection (a) must:

(1)  to the extent practicable, comply with the requirements of Article 26.04, Code of Criminal Procedure, except that:

(A)  the income and assets of the child's parent or other person responsible for the child's support must be used in determining whether the child is indigent; and

(B)  any alternative plan for appointing counsel is established by the judges trying juvenile cases in the county; and

(2)  recognize the differences in qualifications and experience necessary for appointments to cases in which:

(A)  the allegation is:

(i)  conduct indicating a need for supervision;

(ii)  delinquent conduct, and commitment to the Texas Youth Commission is not an authorized disposition; or

(iii)  delinquent conduct, and commitment to the Texas Youth Commission without a determinate sentence is an authorized disposition;

(B)  determinate sentence proceedings have been initiated; or

(C)  proceedings for discretionary transfer to criminal court have been initiated.

SECTION 11.  Section 71.001, Government Code, is amended to read as follows:

Sec. 71.001.  DEFINITIONS. In this chapter:

(1)  "Ad hoc assigned counsel program" means a system under which private attorneys, acting as independent contractors and compensated with public funds, are individually appointed to provide legal representation and services to a particular indigent defendant accused of a crime or juvenile offense.

(2)  "Chair" means the chair of the council.

(3)  "Contract defender program" means a system under which private attorneys, acting as independent contractors and compensated with public funds, are engaged to provide legal representation and services to a group of unspecified indigent defendants who appear before a particular court or group of courts.

(4) [(2) ]  "Council" means the Texas Judicial Council.

(5)  "Crime" means:

(A)  a misdemeanor punishable by confinement; or

(B)  a felony.

(6)  "Defendant" means a person accused of a crime or a juvenile offense.

(7)  "Indigent defense support services" means criminal defense services that:

(A)  are provided by licensed investigators, experts, or other similar specialists, including forensic experts and mental health experts; and

(B)  are reasonable and necessary for appointed counsel to provide adequate representation to indigent defendants.

(8)  "Juvenile offense" means conduct committed by a person while younger than 17 years of age that constitutes:

(A)  a misdemeanor punishable by confinement; or

(B)  a felony.

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(9)  "Public defender" has the meaning assigned by Article 26.044(a), Code of Criminal Procedure.

SECTION 12.  Subchapter C, Chapter 71, Government Code, is amended by adding Section 71.0351 to read as follows:

Sec. 71.0351.  INDIGENT DEFENSE INFORMATION. (a)  Not later than January 1 of each year, in each county, a copy of all formal and informal rules and forms that describe the procedures used in the county to provide indigent defendants with counsel in accordance with the Code of Criminal Procedure, including the schedule of fees required under Article 26.05 of that code, shall be prepared and sent to the Office of Court Administration of the Texas Judicial System in the form and manner prescribed by the office. Except as provided by Subsection (b), the local administrative district judge in each county, or the person designated by the judge, shall prepare and send to the office of court administration a copy of all rules and forms adopted by the judges of the district courts trying felony cases in the county. Except as provided by Subsection (b), the local administrative statutory county court judge in each county, or the person designated by the judge, shall prepare and send to the office of court administration a copy of all rules and forms adopted by the judges of the county courts and statutory county courts trying misdemeanor cases in the county.

(b)  If the judges of two or more levels of courts adopt the same formal and informal rules and forms as described by Subsection (a), the local administrative judge serving the courts having jurisdiction over offenses with the highest classification of punishment, or the person designated by the judge, shall prepare and send to the office of court administration a copy of the rules and forms.

(c)  In each county, the county auditor, or the person designated by the commissioners court if the county does not have a county auditor, shall prepare and send to the office of court administration in the form and manner prescribed by the office and on a monthly, quarterly, or annual basis, with respect to legal services provided in the county to indigent defendants during each fiscal year, information showing the total amount expended by the county to provide indigent defense services and an analysis of the amount expended by the county:

(1)  in each district, county, statutory county, and appellate court;

(2)  in cases for which a private attorney is appointed for an indigent defendant;

(3)  in cases for which a public defender is appointed for an indigent defendant;

(4)  in cases for which counsel is appointed for an indigent juvenile under Section 51.10(f), Family Code; and

(5)  for investigation expenses, expert witness expenses, or other litigation expenses.

(d)  As a duty of office, each district and county clerk shall cooperate with the county auditor or the person designated by the commissioners court and the commissioners court in retrieving information required to be sent to the office of court administration under this section and under a reporting plan developed by the Task Force on Indigent Defense under Section 71.061(a).

(e)  On receipt of information required under this section, the office of court administration shall forward the information to the Task Force on Indigent Defense.

SECTION 13.  Chapter 71, Government Code, is amended by adding Subchapter D to read as follows:

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SUBCHAPTER D. TASK FORCE ON INDIGENT DEFENSE

Sec. 71.051.  ESTABLISHMENT OF TASK FORCE; COMPOSITION. The Task Force on Indigent Defense is established as a standing committee of the council and is composed of eight ex officio members and four appointive members.

Sec. 71.052.  EX OFFICIO MEMBERS. The ex officio members are:

(1)  the following six members of the council:

(A)  the chief justice of the supreme court;

(B)  the presiding judge of the court of criminal appeals;

(C)  the member of the senate appointed by the lieutenant governor;

(D)  the member of the house of representatives appointed by the speaker of the house;

(E)  one of the courts of appeals justices serving on the council who is designated by the governor to serve on the task force; and

(F)  one of the county court or statutory county court judges serving on the council who is designated by the governor to serve on the task force or, if a county court or statutory county court judge is not serving on the council, one of the statutory probate court judges serving on the council who is designated by the governor to serve on the task force;

(2)  the chair of the Senate Criminal Justice Committee; and

(3)  the chair of the House Criminal Jurisprudence Committee.

Sec. 71.053.  APPOINTMENTS. (a) The governor shall appoint with the advice and consent of the senate four members of the task force as follows:

(1)  one member who is an active district judge serving as a presiding judge of an administrative judicial region;

(2)  one member who is a judge of a constitutional county court or who is a county commissioner;

(3)  one member who is a practicing criminal defense attorney; and

(4)  one member who is a public defender or who is employed by a public defender.

(b)  The members serve staggered terms of two years, with two members' terms expiring February 1 of each odd-numbered year and two members' terms expiring February 1 of each even-numbered year.

(c)  In making appointments to the task force, the governor shall attempt to reflect the geographic and demographic diversity of the state.

(d)  A person may not be appointed to the task force if the person is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of the task force or the council.

Sec. 71.054.  VACANCIES. A vacancy on the task force must be filled for the unexpired term in the same manner as the original appointment. An appointment to fill a vacancy shall be made not later than the 90th day after the date the vacancy occurs.

Sec. 71.055.  MEETINGS; QUORUM; VOTING. (a) The task force shall meet at least quarterly and at such other times as it deems necessary or convenient to perform its duties.

(b)  Six members of the task force constitute a quorum for purposes of transacting task force business. The task force may act only on the concurrence of five task force members or a majority of the task force members present, whichever number is

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greater. The task force may develop policies and standards under Section 71.060 only on the concurrence of seven task force members.

(c)  A task force member is entitled to vote on any matter before the task force, except as otherwise provided by rules adopted by the task force and ratified by the council.

Sec. 71.056.  COMPENSATION. A task force member may not receive compensation for services on the task force but is entitled to be reimbursed for actual and necessary expenses incurred in discharging the member's duties as a task force member. The expenses are paid from funds appropriated to the task force.

Sec. 71.057.  BUDGET. (a) The task force's budget shall be a part of the budget for the council. In preparing a budget and presenting the budget to the legislature, the task force shall consult with the executive director of the Office of Court Administration of the Texas Judicial System.

(b)  The task force's budget may include funds for personnel who are employees of the council but who are assigned to assist the task force in performing its duties.

(c)  The executive director of the office of court administration may not reduce or modify the task force's budget or use funds appropriated to the task force without the approval of the task force.

Sec. 71.058.  FAIR DEFENSE ACCOUNT. The fair defense account is an account in the general revenue fund that may be appropriated only to the task force for the purpose of implementing this subchapter.

Sec. 71.059.  ACCEPTANCE OF GIFTS, GRANTS, AND OTHER FUNDS. The task force may accept gifts, grants, and other funds from any public or private source to pay expenses incurred in performing its duties under this subchapter.

Sec. 71.060.  POLICIES AND STANDARDS. (a) The task force shall develop policies and standards for providing legal representation and other defense services to indigent defendants at trial, on appeal, and in postconviction proceedings. The policies and standards may include:

(1)  performance standards for counsel appointed to represent indigent defendants;

(2)  qualification standards under which attorneys may qualify for appointment to represent indigent defendants, including:

(A)  qualifications commensurate with the seriousness of the nature of the proceeding;

(B)  qualifications appropriate for representation of mentally ill defendants and noncitizen defendants;

(C)  successful completion of relevant continuing legal education programs approved by the council; and

(D)  testing and certification standards;

(3)  standards for ensuring appropriate appointed caseloads for counsel appointed to represent indigent defendants;

(4)  standards for determining whether a person accused of a crime or juvenile offense is indigent;

(5)  policies and standards governing the organization and operation of an ad hoc assigned counsel program;

(6)  policies and standards governing the organization and operation of a public defender consistent with recognized national policies and standards;

(7)  standards for providing indigent defense services under a contract defender program consistent with recognized national policies and standards;

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(8)  standards governing the reasonable compensation of counsel appointed to represent indigent defendants;

(9)  standards governing the availability and reasonable compensation of providers of indigent defense support services for counsel appointed to represent indigent defendants;

(10)  standards governing the operation of a legal clinic or program that provides legal services to indigent defendants and is sponsored by a law school approved by the supreme court;

(11)  policies and standards governing the appointment of attorneys to represent children in proceedings under Title 3, Family Code; and

(12)  other policies and standards for providing indigent defense services as determined by the task force to be appropriate.

(b)  The task force shall submit policies and standards developed under Subsection (a) to the council for ratification.

(c)  Any qualification standards adopted by the task force under Subsection (a) that relate to the appointment of counsel in a death penalty case must be consistent with the standards specified under Article 26.052(d), Code of Criminal Procedure. An attorney who is identified by the task force as not satisfying performance or qualification standards adopted by the task force under Subsection (a) may not accept an appointment in a capital case.

Sec. 71.061.  COUNTY REPORTING PLAN; TASK FORCE REPORTS. (a) The task force shall develop a plan that establishes statewide requirements for counties relating to reporting indigent defense information. The plan must include provisions designed to reduce redundant reporting by counties and provisions that take into consideration the costs to counties of implementing the plan statewide. The task force shall use the information reported by a county to monitor the effectiveness of the county's indigent defense policies, standards, and procedures and to ensure compliance by the county with the requirements of state law relating to indigent defense. The task force may revise the plan as necessary to improve monitoring of indigent defense policies, standards, and procedures in this state.

(b)  The task force shall annually submit to the governor, lieutenant governor, speaker of the house of representatives, and council and shall publish in written and electronic form a report:

(1)  containing the information forwarded to the task force from the Office of Court Administration of the Texas Judicial System under Section 71.0351(e); and

(2)  regarding:

(A)  the quality of legal representation provided by counsel appointed to represent indigent defendants;

(B)  current indigent defense practices in the state as compared to state and national standards;

(C)  efforts made by the task force to improve indigent defense practices in the state; and

(D)  recommendations made by the task force for improving indigent defense practices in the state.

(c)  The task force shall annually submit to the Legislative Budget Board and council and shall publish in written and electronic form a detailed report of all expenditures made under this subchapter, including distributions under Section 71.062.

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(d)  The task force may issue other reports relating to indigent defense as determined to be appropriate by the task force.

Sec. 71.062.  TECHNICAL SUPPORT; GRANTS. (a) The task force shall:

(1)  provide technical support to:

(A)  assist counties in improving their indigent defense systems; and

(B)  promote compliance by counties with the requirements of state law relating to indigent defense;

(2)  direct the comptroller to distribute funds, including grants, to counties to provide indigent defense services in the county; and

(3)  monitor each county that receives a grant and enforce compliance by the county with the conditions of the grant, including enforcement by directing the comptroller to:

(A)  withdraw grant funds; or

(B)  require reimbursement of grant funds by the county.

(b)  The task force shall direct the comptroller to distribute funds as required by Subsection (a)(2) based on a county's compliance with standards developed by the task force and the county's demonstrated commitment to compliance with the requirements of state law relating to indigent defense.

(c)  The task force shall develop policies to ensure that funds under Subsection (a)(2) are allocated and distributed to counties in a fair manner.

(d)  A county may not reduce the amount of funds provided for indigent defense services in the county because of funds provided by the task force under this section.

SECTION 14.  Sections 26.041, 26.042, 26.043, 26.045, 26.046, 26.047, 26.048, 26.049, 26.050, and 26.058, Code of Criminal Procedure, are repealed.

SECTION 15.  The change in law made by this Act applies only to a person arrested for or charged with an offense committed or, for purposes of Title 3, Family Code, a child taken into custody for conduct or alleged to have engaged in conduct that occurs on or after the effective date of this Act and to the appointment of counsel for that person or child. A person arrested for or charged with an offense committed or a child taken into custody for conduct or alleged to have engaged in conduct that occurs before the effective date of this Act is covered by the law in effect when the offense was committed or the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 16.  A county having established a public defender under a statute repealed or amended by this Act may continue the existence and operation of the public defender under the terms of the repealed or amended statute as that statute existed immediately before the effective date of this Act if the public defender is a governmental entity or nonprofit corporation described by Article 26.044(a), Code of Criminal Procedure, as amended by this Act. The change in law made by this Act to Article 26.044, Code of Criminal Procedure, applies only to a public defender appointed on or after the effective date of this Act.

SECTION 17. A local administrative judge or other person designated under Subsection (a) or (b), Section 71.0351, Government Code, as added by this Act, shall begin sending to the Office of Court Administration of the Texas Judicial System the information required to be sent by that section on or before January 1, 2002. A county auditor or other person designated under Subsection (c), Section 71.0351, Government Code, as added by this Act, shall begin sending to the Office of Court Administration of the Texas Judicial System the information required by that section on or before September 1, 2002.

77th Legislature — Regular Session 80th Day

SECTION 18.  The governor shall make appointments to the Task Force on Indigent Defense as soon as practicable after the effective date of this Act. In appointing the initial members of the task force, the governor shall appoint the member who is an active district judge serving as a presiding judge of an administrative judicial region and the member who is a practicing criminal defense attorney for terms expiring February 1, 2003, and the member who is a judge of a constitutional county court or who is a county commissioner and the member who is a public defender or who is employed by a public defender for terms expiring February 1, 2004.

SECTION 19.  A local selection committee shall amend standards previously adopted by the committee to conform with the requirements of Article 26.052(d), Code of Criminal Procedure, as amended by this Act, not later than April 1, 2002. An attorney appointed on or after April 1, 2002, to a death penalty case must meet the standards adopted in conformity with the amended Article 26.052(d). An attorney appointed before April 1, 2002, to a death penalty case is covered by the law in effect when the attorney was appointed, and the former law is continued in effect for that purpose.

SECTION 20.  Article 102.075(h), Code of Criminal Procedure, as amended by this Act, applies only to a court cost collected under that article on or after the effective date of this Act. A court cost collected under Article 102.075, Code of Criminal Procedure, before the effective date of this Act is governed by the law in effect when the court cost was collected, and the former law is continued in effect for that purpose.

SECTION 21.  This Act takes effect January 1, 2002.

Floor Amendment No. 1

Amend CSSB 7, in SECTION 4 of the bill, in amended Article 15.17(a), Code of Criminal Procedure (house committee report, page 4, line 15), by striking "in a manner understood by the person".

Floor Amendment No. 2

Amend CSSB 7, in SECTION 5 of the bill, as follows:

(1)  In added Article 26.04(b)(4), Code of Criminal Procedure (house committee report, page 7, line 13), after "Article 26.052;", strike "and".

(2)  In added Article 26.04(b)(5), Code of Criminal Procedure (house committee report, page 7, line 18), strike "rules of ethics." and substitute the following:

rules of ethics; and

(6)  ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.

Floor Amendment No. 3

Amend CSSB 7 in SECTION 5 of the bill as follows:

(1)  In amended Article 26.04(c), Code of Criminal Procedure (house committee report, page 7, line 26), between "with" and "the", insert "this subsection and".

(2)  In amended Article 26.04(c), Code of Criminal Procedure (house committee report, page 7, line 27), after the period, insert:

If the court or the court's designee determines that the defendant does not speak and understand the English language or that the defendant is deaf, the court or the court's designee shall make an effort to appoint an attorney who is capable of communicating in a language understood by the defendant.

Thursday, May 24, 2001

SENATE JOURNAL

Floor Amendment No. 4

Amend CSSB 7, in SECTION 5 of the bill, in amended Article 26.04(m), Code of Criminal Procedure (house committee report, page 12, lines 22 and 23), by striking "spousal income that is available to the defendant, and the defendant's ability to obtain a loan" and substituting "and spousal income that is available to the defendant".

Floor Amendment No. 5

Amend CSSB 7, in SECTION 5 of the bill, in amended Article 26.04, Code of Criminal Procedure (house committee report, page 14, between lines 7 and 8), by inserting the following:

(r)  A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel.

Floor Amendment No. 6

Amend CSSB 7, in SECTION 7 of the bill, in amended Article 26.05(b), Code of Criminal Procedure (house committee report, page 19, line 17), after the period, by inserting "On adoption of a schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the commissioners court of the county."

Floor Amendment No. 7

Amend CSSB 7, in SECTION 7 of the bill, in amended Article 26.05(c), Code of Criminal Procedure (house committee report, page 19, lines 21-22), by striking "customary rates charged for similar legal services in the community" and substituting "the availability of qualified attorneys willing to accept the stated rates".

Floor Amendment No. 8

Amend CSSB 7 as follows:

(1)  In SECTION 13 of the bill, in the heading to added Section 71.059, Government Code (House committee report, page 32, line 13), between "FUNDS" and the period, insert "; STATE GRANTS TEAM".

(2)  In SECTION 13 of the bill, after the heading to added Section 71.059, Government Code (House committee report, page 32, line 13), add "(a)".

(3)  In SECTION 13 of the bill, at the end of added Section 71.059, Government Code (House committee report, page 32, between lines 16 and 17), add the following subsection:

(b)  The State Grants Team of the Governor's Office of Budget and Planning may assist the task force in identifying grants and other resources available for use by the task force in performing its duties under this subchapter.