SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE — REGULAR SESSION

AUSTIN, TEXAS

PROCEEDINGS

SEVENTY-NINTH DAY

(Tuesday, May 27, 2003)

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

The roll was called and the following Senators were present:iiArmbrister, Averitt, Barrientos, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

The Presiding Officer announced that a quorum of the Senate was present.

The Right Reverend John A. McCaffrey, Saint Joseph Catholic Church, Bryan, offered the invocation as follows:

Lord, our God, we have come together in Your name to work for the good of this great State of Texas. Stay with these state Senators with Your invisible presence and pour out Your blessings on them. Make them work in a spirit of trust and love, as well as a spirit of prudence and understanding, so that they may experience an abundance of light, compassion, and peace. Let harmony reign ever among them and let them keep their eyes fixed upon You. Enable them to implement Your known will for the State of Texas, no matter what difficulty it may entail, and reward them for the good they do. Blessed are You, Lord our God, forever and ever. Amen.

Senator Whitmire moved that the reading of the Journal of the proceedings of yesterday be dispensed with and the Journal be approved as printed.

The motion prevailed without objection.

CO-AUTHOR OF SENATE RESOLUTION 976

On motion of Senator Lucio, Senator Janek will be shown as Co-author of SRi976.

SENATE RESOLUTION 877

Senator Nelson offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to recognize Gina Bullock, who has been elected youth governor of Texas for 2003-2004; and

WHEREAS, Gina is ranked first in her school class, and she has received many academic honors, including membership in the National Honor Society and the United States Achievement Academy, and she is on the National Honor Roll; and

WHEREAS, A committed volunteer, Gina has served the community as a mentor for elementary girl students and as a volunteer at the Pregnancy Crisis Center; she has also carried out public service to the homeless in New Orleans and in remote villages of Mindanao in the Philippines; and

WHEREAS, Each year, the Texas Youth and Government program of the Young Men's Christian Association in which Gina is involved provides thousands of students throughout the state an opportunity to learn firsthand how government works; and

WHEREAS, As a highly energetic and active participant in the program, Gina has authored and presented legislation, clerked and chaired a legislative committee, represented Texas at the 2002 Conference on National Affairs in North Carolina, and elected to attend the National Governors Conference in Washington, D.C., in 2003; and

WHEREAS, This exceptional young leader has demonstrated her commitment to public service, and she has brought great credit to herself, her school, and her community; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby commend Gina Bullock on her selection as youth governor of Texas and extend to her best wishes for continued success in her future endeavors; and, be it further

RESOLVED, That a copy of this Resolution be prepared for her as an expression of esteem from the Texas Senate.

The resolution was again read.

The resolution was previously adopted on Wednesday, May 14, 2003.

GUEST PRESENTED

Senator Nelson was recognized and introduced to the Senate Gina Bullock.

The Senate welcomed its guest.

SENATE RESOLUTION 942

Senator Averitt offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to recognize the Honorable Truman Blum for his many years of outstanding service to his community; and

WHEREAS, Truman Blum was born November 16, 1934, and was raised in rural Hamilton County; he graduated from Cranfills Gap High School, where he was the class valedictorian; he also earned degrees from Tarleton State College and Texas A&M University; and

WHEREAS, Truman married Carolyn Sealock on November 23, 1957, and the couple has enjoyed a long and fruitful marriage; they have been blessed with two children, Cynthia Lynn Blum and Charles Robert Blum, and two grandchildren; and

WHEREAS, He served as manager of the Energy Systems Department at Union Carbide Corporation for 31 years, from 1957 to 1988; and

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WHEREAS, Truman Blum was a member of the Clifton City Council from 1992 to 1994, and he served as mayor of the city from 1994 to 2001; and

WHEREAS, A highly respected civic leader who has played a major role in the betterment of his community, he currently serves on the Brazos G Regional Water Planning Group; he is an active member of the local chapter of the AARP and other groups; and

WHEREAS, A fierce advocate for what is right, Truman Blum has been a loud, strong, and knowledgeable voice for a small community; instrumental in ensuring the cleanup of the Bosque River, he not only put Clifton on the map but made the city the leader for water quality issues in the Bosque Watershed; and

WHEREAS, Truman Blum is an exemplary citizen, and he deserves recognition for his years of hard work and his many accomplishments on behalf of the Clifton community; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby commend the Honorable Truman Blum for his exceptional work on behalf of the public good; and, be it further

RESOLVED, That a copy of this Resolution be prepared for him as an expression of esteem from the Texas Senate.

The resolution was read and was adopted without objection.

GUESTS PRESENTED

Senator Averitt was recognized and introduced to the Senate the Honorable Truman Blum; his wife, Carolyn Blum; his daughter, Cindy Hill, and her husband, Gary; and his grandson, Nathan Hill.

The Senate welcomed its guests.

SENATE RESOLUTION 903

Senator West offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to recognize Tim Brown for his outstanding athletic achievements and philanthropic endeavors and to declare May 27, 2003, Tim Brown Day in Texas; and

WHEREAS, Tim Brown, a member of the Oakland Raiders Football Team, was born July 22, 1966, in Dallas; he graduated from Woodrow Wilson High School and earned a bachelor's degree from the University of Notre Dame; and

WHEREAS, At the University of Notre Dame, Tim won numerous honors for his exceptional talent as a football player; he was named the United Press International and the Sporting News College Player of the Year, and he was selected All-American and awarded the prestigious Heisman Trophy in 1987; and

WHEREAS, In 1988, Tim was a first-round choice of the Los Angeles Raiders, now the Oakland Raiders; a famous member of the team, he has been selected to the Pro Bowl for 10 years, and he is considered one of the best all-time wide receivers in the history of the National Football League; and

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WHEREAS, Tim Brown is dedicated to working for the betterment of the community and is especially involved in projects affecting young people; notably, he has served as the host for the Mentor Mini Football Camp for fatherless boys, as the chairman of Athletes Entertainment for Kids, and as the spokesperson for Project Pass, a program promoting student achievement; and

WHEREAS, He has established The Tim Brown Foundation/DeSoto Education Foundation Golf Tournament, the Tim Brown/Woodrow Wilson Golf Tournament, and other golf and football camps and tournaments to benefit the community; and

WHEREAS, For his many volunteer endeavors on behalf of his fellowman, Tim has been recognized with the 1990 Ed Block Courage Award, the South Dallas Business and Professional Women's Club Award of Special Recognition, and numerous other honors; and

WHEREAS, Tim Brown is a nationally renowned athlete who has given of his time and energy to support important causes that bring hope and encouragement to countless young Americans; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby pay tribute to Tim Brown, one of our nation's most incomparable athletes and a dedicated philanthropist, and extend best wishes to him on Tim Brown Day in Texas; and, be it further

RESOLVED, That a copy of this Resolution be prepared for him as an expression of esteem from the Texas Senate.

The resolution was read and was adopted without objection.

GUESTS PRESENTED

Senator West was recognized and introduced to the Senate Tim Brown, accompanied by his parents, Eugene and Josephine Brown; his wife, Sherice; his son, Taylor; and his brother, Donald Kelly.

The Senate welcomed its guests.

SENATE BILL 253 WITH HOUSE AMENDMENT

Senator Staples called SBi253 from the President's table for consideration of the House amendment to the bill.

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

Amendment

Amend SB 253 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the applicability of the Texas Youth Camp Safety and Health Act to facilities or programs operated by or on the campus of an institution of higher education.

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

SECTIONi1.iiChapter 141, Health and Safety Code, is amended by adding Section 141.0021 to read as follows:

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Sec.i141.0021.iiEXEMPTION. This chapter does not apply to a facility or program operated by or on the campus of an institution of higher education or a private or independent institution of higher education as those terms are defined by Section 61.003, Education Code, that is regularly inspected by one or more local governmental entities for compliance with health and safety standards.

SECTIONi2.iiThis 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, 2003.

The amendment was read.

Senator Staples moved to concur in the House amendment to SBi253.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 155 WITH HOUSE AMENDMENTS

Senator Zaffirini called SBi155 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 155 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the protection of public freshwater areas; providing a penalty.

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

SECTIONi1.ii(a) The legislature recognizes that the beds, bottoms, and banks of navigable rivers and navigable streams are precious and irreplaceable state resources that deserve protection.

(b)iiThe legislature also recognizes that public access to navigable rivers, navigable streams, and the beds, bottoms, and banks of navigable rivers and streams is:

(1)iia right granted to individuals under the Texas Constitution; and

(2)iian important economic and recreational resource for the people of this state.

(c)iiThe protection of public access to the beds, bottoms, and banks of navigable rivers and navigable streams, therefore, should not come at the cost of uncontrolled damage to the beds, bottoms, and banks of navigable rivers and streams or at the cost of infringing on private property rights.

SECTIONi2.iiTitle 5, Parks and Wildlife Code, is amended by adding Subtitle I to read as follows:

SUBTITLE I. PROTECTED FRESHWATER AREAS

CHAPTER 90. ACCESS TO PROTECTED FRESHWATER AREAS

Sec.i90.001.iiDEFINITIONS. In this chapter:

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(1)ii"Emergency" means a condition or circumstance in which a person reasonably believes that an individual has sustained serious bodily injury or is in imminent danger of serious bodily injury or that property has sustained significant damage or destruction or is in imminent danger of significant damage or destruction.

(2)ii"Motor vehicle" means any wheeled or tracked vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used to transport a person or thing.

(3)ii"Navigable river or stream" means a river or stream that retains an average width of 30 or more feet from the mouth or confluence up.

(4)ii"Protected freshwater area" means that portion of the bed, bottom, or bank of any navigable river or stream that lies at or below the gradient boundary of the river or stream. The term does not include that portion of a bed, bottom, or bank that lies below tidewater limits.

Sec.i90.002.iiOPERATION OF MOTOR VEHICLE IN PROTECTED FRESHWATER AREA PROHIBITED. Except as provided by Section 90.003 or 90.004, a person may not operate a motor vehicle in or on a protected freshwater area on or after January 1, 2004.

Sec.i90.003.iiEXEMPTIONS. (a) Section 90.002 does not apply to:

(1)iia state, county, or municipal road right-of-way;

(2)iia private road crossing established on or before December 31, 2003; or

(3)iioperation of a motor vehicle by:

(A)iia federal, state, or local government employee if operation of a motor vehicle is necessary for conducting official business;

(B)iia person if operation of a motor vehicle is necessary for reasonable purposes related to usual and customary agricultural activities;

(C)iia person if operation of a motor vehicle is necessary to and is authorized by a mineral lease;

(D)iia person if operation of a motor vehicle is necessary to and authorized by a crossing easement granted by the General Land Office under the Natural Resources Code;

(E)iia person if operation of a motor vehicle is necessary to an activity authorized by Chapter 86;

(F)iia person in response to an emergency;

(G)iia person if operation of a motor vehicle is necessary for the lawful construction, operation, or maintenance of equipment, facilities, or structures used for:

(i)iithe production, transportation, transmission, or distribution of electric power;

(ii)iithe provision of telecommunications services or other services delivered through a cable system;

(iii)iithe transportation of aggregates, oil, natural gas, coal, or any product of oil, natural gas, or coal;

(iv)iithe production, treatment, or transportation of water or wastewater; or

(v)iidredge material disposal placement;

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(H)iian owner of the uplands adjacent to a protected freshwater area, the owner's agent, lessee, sublessee, or the lessee or sublessee's agent, representative, licensee, invitee, or guest for reasonable purposes related to usual and customary operation of:

(i)iia camp regulated under Chapter 141, Health and Safety Code; or

(ii)iia retreat facility owned and operated by a nonprofit corporation chartered under the laws of this state before January 1, 1970; or

(I)iian owner of the adjacent uplands on both sides of a protected freshwater area and the owner's agents, employees, representatives, and lessees only for the purpose of accessing the owner's property on the opposite side of the protected freshwater area when no reasonable alternate access is available.

(b)iiThis chapter does not apply to any river with headwaters in a state other than Texas and a mouth or confluence in a state other than Texas.

(c)iiA person exempt under this section who operates a motor vehicle in or on a protected freshwater area shall do so in a manner that avoids, to the extent reasonably possible, harming or disturbing vegetation, wildlife, or wildlife habitat within the protected freshwater area. A person exempt under this section who is crossing a protected freshwater area shall cross by the most direct feasible route.

Sec.i90.004.iiLOCAL RIVER ACCESS PLAN. (a) A county, municipality, or river authority may adopt a written local plan to provide access to a protected freshwater area located within the county's geographical boundaries or the river authority's or municipality's jurisdiction.

(b)iiA local plan adopted under Subsection (a) may:

(1)iinotwithstanding Section 90.002, allow limited motor vehicle use in a protected freshwater area;

(2)iiprovide for the county, municipality, or river authority to collect a fee from a person accessing a protected freshwater area; or

(3)iiestablish other measures consistent with the policy and purposes of this chapter.

(c)iiBefore a local plan adopted under Subsection (a) may take effect, a county, municipality, or river authority must file the plan with the department. A local plan does not take effect until the plan is approved in writing by the department.

(d)iiThe department may approve, disapprove, or modify a local plan filed under Subsection (c). In determining whether to approve, disapprove, or modify a local plan, the department shall consider whether the plan:

(1)iiprotects fish, wildlife, water quality, and other natural resources;

(2)iiprotects public safety;

(3)iiprovides for adequate enforcement;

(4)iicoordinates with adjacent and overlapping jurisdictions;

(5)iiprovides for and publicizes adequate public access to a protected freshwater area;

(6)iiprovides for adequate public services relating to access to a protected freshwater area; and

(7)iiprotects private property rights.

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(e)iiThe department by rule may adopt additional criteria or procedures to govern approval of local plans. Lack of rules adopted under this section alone is not a sufficient basis for rejecting a local plan.

(f)iiThe department may conduct periodic reviews of a local plan filed under Subsection (c) to monitor the effectiveness of the plan.

(g)iiA person who has reason to believe that a local plan filed under Subsection (c) does not comply with this section may file a petition for revocation of the plan with the department.

(h)iiThe department shall revoke approval of a local plan if the department finds, as a result of a periodic review conducted under Subsection (f) or a petition for revocation filed under Subsection (g), that the plan as implemented fails to meet any of the criteria for approval established by Subsection (d).

Sec.i90.005.iiASSISTANCE FROM DEPARTMENT. (a) The department shall assist a requesting county, municipality, or river authority in developing a local plan.

(b)iiA county, municipality, or river authority implementing a local plan shall remit to the department 20 percent of the county's, municipality's, or river authority's gross receipts from fees charged under Section 90.004(b)(2) to offset the department's administrative costs associated with implementing this chapter.

Sec.i90.006.iiSTUDIES. The department may conduct studies necessary to implement this chapter.

Sec.i90.007.iiLANDOWNER RIGHTS. (a) A prescriptive easement over private property cannot be created by recreational use of a protected freshwater area, including by portage over or around barriers, scouting of obstructions, or crossing of private property to or from a protected freshwater area.

(b)iiNothing in this section shall limit the right of a person to navigate in, on, or around a protected freshwater area.

Sec.i90.008.iiPUBLIC ACCESS. (a) Except as otherwise allowed by law, a person may not restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area.

(b)iiThis section does not allow the public to use private property to gain access to a protected freshwater area without permission of the landowner.

Sec.i90.009.iiMOTOR VEHICLE RECREATION SITES. (a) The department shall establish a program to identify and to facilitate the development of motor vehicle recreation sites that are not located in or on a protected freshwater area. The department shall seek the cooperation of political subdivisions, landowners, nonprofit groups, and other interested persons in identifying and facilitating the development of motor vehicle recreation sites under this subsection.

(b)iiThe department shall seek and use funding from the federal government and other sources outside the general revenue fund to identify and facilitate the development of motor vehicle recreation sites under Subsection (a).

Sec.i90.010.iiENFORCEMENT. All peace officers of this state shall enforce the provisions of this chapter.

Sec.i90.011.iiPENALTY. (a) A person commits an offense if the person violates Section 90.002 or 90.008.

(b)iiExcept as provided by Subsection (c), an offense under Subsection (a) is a Class C misdemeanor.

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(c)iiIf it is shown on the trial of an offense under this section that the defendant was previously convicted two or more times under Section 90.002 or 90.008, on conviction the defendant shall be punished for a Class B misdemeanor.

(d)iiEach violation under this section is a separate offense.

(e)iiNotwithstanding Section 12.403 of this code, Subchapter B, Chapter 12, Penal Code, applies to punishments under this section.

SECTIONi3.iiThe Parks and Wildlife Department shall submit to the legislature a report regarding the department's identification and development of motor vehicle recreation sites under Section 90.009, Parks and Wildlife Code, as added by this Act, not later than September 1, 2004.

SECTIONi4.iiThis Act takes effect September 1, 2003.

Floor Amendment No. 1

Amend CSSB 155 in SECTION 2 of the bill, in added Section 90.004, Parks and Wildlife Code (House committee printing, page 6, between lines 19 and 20), by inserting the following:

(i)iiThe department may adopt rules necessary to implement this section and Section 90.002, including rules relating to locations from which a person may launch or retrieve a vessel by trailer from the banks of a protected freshwater area. For purposes of this subsection, "vessel" has the meaning assigned by Section 12.101.

Floor Amendment No. 2

Amend CSSB 155 in SECTION 2 of the bill, in Subsection (b), added Section 90.004, Parks and Wildlife Code, between "area" and the semicolon (House committee printing, page 5, line 10), by inserting ", the amount of which may not exceed the estimated cost that the county, municipality, or river authority incurs by allowing the limited use of motorized vehicles in protected freshwater areas within its jurisdiction".

The amendments were read.

Senator Zaffirini moved to concur in the House amendments to SBi155.

The motion prevailed by a viva voce vote.

SENATE BILL 1439 WITH HOUSE AMENDMENT

Senator Shapleigh called SBi1439 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.

Amendment

Amend SB 1439 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to federal matching funds for certain projects at military facilities in this state.

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

SECTIONi1.iiSubchapter A, Chapter 431, Government Code, is amended by adding Section 431.017 to read as follows:

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Sec.i431.017.iiMILITARY FACILITIES PROJECTS: MATCHING FEDERAL FUNDS. If the governor, after consulting with the adjutant general and the executive director of the Texas Military Facilities Commission, finds that the state is eligible for federal matching funds for projects at military facilities in this state, the governor may direct that money appropriated for the purpose be used to obtain the federal matching funds.

SECTIONi2.iiThis Act takes effect September 1, 2003.

The amendment was read.

Senator Shapleigh moved to concur in the House amendment to SBi1439.

The motion prevailed by a viva voce vote.

SENATE BILL 1565 WITH HOUSE AMENDMENTS

Senator Madla called SBi1565 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 1565 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to allowing a municipality to create a defense adjustment management authority; authorizing taxes and bonds.

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

SECTIONi1.iiChapter 375, Local Government Code, is amended by adding Subchapter O to read as follows:

SUBCHAPTERiO.iiDEFENSE ADJUSTMENT
MANAGEMENT AUTHORITY

Sec.i375.301.iiLEGISLATIVE FINDINGS; PURPOSES. (a)iiThe legislature finds that:

(1)iithe closure of certain defense bases has had a negative impact on the economic development of the areas within the former defense bases and the areas in the general vicinity of the former defense bases and that the creation of the specific type of authority provided for in this subchapter is essential to accomplish the purposes of Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution;

(2)iiit is an appropriate role for a municipality to foster economic opportunity, job generation, and capital investment by promoting a favorable business climate, preparing the workforce for productive employment, and supporting infrastructure development in areas around defense bases that are intended to be annexed by the municipality; and

(3)iithe programs designed to create a competent and qualified workforce are essential both to the economic growth and vitality of many municipalities in this state and to the elimination of unemployment and underemployment in those municipalities.

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(b)iiThe programs authorized by this subchapter are in the public interest, promote the economic welfare of this state, and serve the public purpose of developing and diversifying the economy of this state and of eliminating unemployment and underemployment in this state.

Sec.i375.302.iiCONSTRUCTION OF SUBCHAPTER. (a)iiThis subchapter shall be liberally construed in conformity with the findings and purposes stated in Section 375.301.

(b)iiExcept as provided by this subchapter, the other provisions of this chapter apply to an authority created under this subchapter.

Sec.i375.303.iiDEFINITIONS. In this subchapter:

(1)ii"Authority" means a defense adjustment management authority created under this subchapter.

(2)ii"Eligible project" means a program authorized by Section 379A.051 and a project as defined by Sections 2(11) and 4B(a)(2), Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes). Notwithstanding this definition, seeking a charter for or operating an open-enrollment charter school authorized by Subchapter D, Chapter 12, Education Code, shall not be an eligible project.

Sec.i375.304.iiELIGIBILITY FOR CREATION BY MUNICIPALITY. (a)iiThe governing body of a municipality by resolution or ordinance may create an authority in an area that is:

(1)iiin the same county as a military installation or facility that is:

(A)iiclosed or realigned under the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. Section 2687 note) and its subsequent amendments; or

(B)iia base efficiency project as defined by Section 378.001, as added by Chapter 1221, Acts of the 76th Legislature, Regular Session, 1999; and

(2)iiin the extraterritorial jurisdiction of a municipality with a population of at least 1.1 million and that has been annexed for limited purposes by the municipality under Subchapter F, Chapter 43.

(b)iiSubchapter B and Sections 375.041 and 375.042 do not apply to this subchapter.

Sec.i375.305.iiHEARING ON CREATION OF AUTHORITY. (a)iiNot earlier than the 60th day or later than the 30th day before the date the governing body of the municipality creates the authority, the governing body of the municipality shall hold two public hearings to consider the creation of the proposed authority. The municipality must publish notice of each public hearing in a newspaper of general circulation in the area of the proposed authority at least seven days before each public hearing.

(b)iiThe notice required by Subsection (a) must state:

(1)iithe date, time, and place for the public hearing;

(2)iithe boundaries of the proposed authority, including a map of the proposed authority; and

(3)iithe powers of the proposed authority, including the power to levy assessments and to impose a sales and use tax.

Sec.i375.306.iiBOARD OF DIRECTORS. (a)iiThe board consists of 15 directors.

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(b)iiThe municipality shall appoint six members of the board.

(c)iiThe county in which the municipality is primarily located shall appoint six members of the board.

(d)iiSchool districts whose boundaries overlap with an authority shall collectively appoint three members of the board.

(e)iiDirectors are appointed for terms of two years. Terms of directors may be staggered, and directors may serve successive terms.

(f)iiA vacancy on the board is filled for the unexpired term by the governing body of the entity that appointed the director who served in the vacant position.

(g)iiThe mayor of the municipality and the county judge of the county in which the authority is primarily located shall, alternately, appoint one director to serve as presiding officer, with the first appointment to be made by the mayor of the municipality. The presiding officers shall serve for a term of four years beginning on Januaryi1 of the year following the appointment. The board may elect an assistant presiding officer to preside in the absence of the presiding officer or when there is a vacancy in that office. The board may elect other officers as it considers appropriate.

(h)iiSections 375.061, 375.066, and 375.068 and the limitations of Section 375.072(c) do not apply to this subchapter.

Sec.i375.307.iiQUALIFICATIONS OF DIRECTORS. (a)iiExcept as provided by Subsection (b), a majority of the directors of an authority must meet the qualifications of Section 375.063.

(b)iiRepresentatives or agents of a school district whose boundaries overlap with an authority or of an institution of higher education that operates facilities within an authority may serve on the board.

Sec.i375.308.iiPOWERS OF THE AUTHORITY; MUNICIPALITY. (a)iiAn authority:

(1)iimay plan, design, implement, develop, construct, and finance eligible projects as defined in this subchapter; and

(2)iihas the powers of a municipality under Chapter 378, as added by Chapter 1221, Acts of the 76th Legislature, Regular Session, 1999, and Chapter 380.

(b)iiAn authority may not:

(1)iiissue bonds or notes without the prior approval of the governing body of the municipality that created the authority;

(2)iiseek a charter for or operate, within the boundaries of the authority, an open-enrollment charter school authorized by Subchapter D, Chapter 12, Education Code; or

(3)iilevy ad valorem property taxes.

(c)iiA municipality may not seek a charter for or operate an open-enrollment charter school authorized by Subchapter D, Chapter 12, Education Code, within the boundaries of the authority.

Sec.i375.309.iiMUNICIPAL ANNEXATION OF AREA IN AN AUTHORITY. (a)iiA municipality that creates an authority under this subchapter may annex all or part of the territory located in the authority under Chapter 43.

(b)iiAnnexation of territory located in the authority does not affect the operation of the authority.

(c)iiCreation of an authority does not:

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(1)iiaffect the power of the municipality to designate all or part of an area in the authority as an industrial authority;

(2)iilimit a power of the municipality conferred by Chapter 42; or

(3)iiimpose a duty on or affect the power of the municipality to provide municipal services to any area in the municipality or its extraterritorial jurisdiction that is in the authority.

Sec.i375.310.iiAUTHORITY MASTER PLAN. (a)iiAn authority may only develop or construct public improvements or eligible projects in areas designated in an authority master plan approved by the board and the governing body of the municipality that created the authority.

(b)iiThe authority master plan must include the information required for a municipal reinvestment zone under Sections 311.011(b) and (c), Tax Code, for the area of the authority. For the purposes of applying those sections, the area of the authority affected constitutes a zone.

(c)iiThe authority shall generate the authority master plan based on the economic development needs of the property owners and constituents in the authority.

(d)iiAfter approval by the board, the authority shall submit the authority master plan to the municipality for approval. Before taking action to approve or reject the authority master plan, the municipality shall make a copy of the proposed authority master plan available to the public and hold hearings and publish notice of the hearings in the manner required by Section 375.305. The notice of the public hearings must state where a copy of the proposed authority master plan is available for inspection.

(e)iiThe board may amend and submit the approved authority master plan to the governing body of the municipality for approval.

(f)iiBefore approving the authority's master plan or any amendment, the municipality shall publish notice and hold hearings as required by Subsection (d).

(g)iiUntil the authority master plan is approved by the municipality:

(1)iithe municipality that created the authority may not exercise the powers granted under Chapter 311 or 312, Tax Code; and

(2)iia county making appointments under Section 375.306 may not exercise the powers granted under Chapter 312, Tax Code.

Sec.i375.311.iiSALES AND USE TAX. (a)iiAn authority may impose a sales and use tax to support or finance public infrastructure projects and eligible projects authorized under this subchapter if the tax is authorized by a majority of the qualified voters of the authority voting at an election held for that purpose in the manner provided by Sections 375.241 and 375.242.

(b)iiIf an authority adopts the tax authorized by Subsection (a), a tax is imposed on the receipts from the sale at retail of taxable items within the authority at the rate approved by the voters. The rate must be equal to one-eighth, one-fourth, three-eighths, or one-half of one percent.

(c)iiChapter 321, Tax Code, governs the imposition, computation, administration, governance, and abolition of a tax imposed under this section.

Tuesday, May 27, 2003 SENATE JOURNAL 2477

(d)iiIf any territory in the authority is annexed by the municipality, the municipality's sales and use tax applies in the annexed area. If the authority's sales and use tax rate, when combined with any other sales and use tax applicable in the authority, exceeds two percent, the authority's sales and use tax is abolished upon annexation.

Sec.i375.312.iiZONING AND PLANNING. (a)iiAn authority created under this subchapter has the power of a municipality under Chapters 211 and 212 in an area of the authority that is in the boundaries of the municipality's limited purpose jurisdiction. On annexation of an area of the authority by a municipality, the authority's power to regulate the area under Chapter 211 or 212 expires.

(b)iiThe board may divide the authority into distinct areas as provided by Section 211.005 to accomplish the purposes of this chapter and Chapter 211.

Sec.i375.313.iiREGIONAL DEVELOPMENT AGREEMENTS. (a)iiAn authority may enter into regional development agreements with its creating municipality, other municipalities, counties, school districts, institutions of higher education, other political subdivisions, and private interests to:

(1)iipromote and advance long-term economic development in the authority; or

(2)iiachieve the purposes for the authority's creation and to implement the powers provided to the authority under this chapter.

(b)iiAn authority, a municipality, a school district whose boundary overlaps with a portion of an authority, or an institution of higher education may enter into an agreement to:

(1)iifund improvements to school facilities and teacher compensation of school districts or institutions of higher education in the authority; and

(2)iidevelop programs provided for in Section 379A.051.

(c)iiAny agreement entered into with a school district under this section shall be designed in such a way that the school district funding under Title 2, Education Code, shall be not less than the school district would have received had the school district not entered into the agreement. This provision may be waived by a school district board of trustees by specific action suspending the provisions of this subsection.

Sec.i375.314.iiDISSOLUTION OF THE AUTHORITY. (a)iiThe governing body of the municipality that created an authority under this subchapter may dissolve the authority.

(b)iiBefore dissolution, the municipality shall publish notice and hold public hearings on the proposed dissolution in the manner provided in Section 375.305.

(c)iiOn dissolution, the municipality shall assume the assets, debts, and other obligations of the authority.

(d)iiSubchapter M does not apply to this subchapter.

SECTIONi2.iiThis 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 Septemberi1, 2003.

2478 78th Legislature — Regular Session 79th Day

Floor Amendment No. 1

Amend CSSB 1565 as follows:

On page 7, line 11, by striking 11 through 17.

The amendments were read.

Senator Madla moved to concur in the House amendments to SBi1565.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

PHYSICIAN OF THE DAY

Senator Estes was recognized and presented Dr. Dale Moquist of Wichita Falls as the Physician of the Day.

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

(Senator Armbrister in Chair)

SENATE JOINT RESOLUTION 45 WITH HOUSE AMENDMENT

Senator Madla called SJRi45 from the President's table for consideration of the House amendment to the resolution.

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

Floor Amendment No. 1

Amend SJRi45 in SECTION 2 of the joint resolution (House committee report, page 1, line 9), by striking "November 4, 2003" and substituting "September 13, 2003".

The amendment was read.

Senator Madla moved to concur in the House amendment to SJRi45.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE RESOLUTION 976

Senator Lucio offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to pay tribute to Dorothy Ruth McFarland on the grand occasion of her 70th birthday; and

WHEREAS, Dorothy was born May 27, 1933, in Port Arthur; she married Archie McFarland, a minister from her hometown, in 1953, and the couple was blessed with a daughter, Glenda McFarland, and a son, Archie McFarland, Jr.; and

WHEREAS, An exemplary lady who is known for her kindness and generosity of spirit, Dorothy McFarland is a revered resident of Port Arthur and is now retired to the banks of Toledo Bend Lake; and

WHEREAS, Mrs. McFarland began studying piano at the age of 12, and she has served as a pianist in several churches throughout East Texas; for years, she and her husband opened their home to indigent families, the homeless, and abused children; and

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WHEREAS, Throughout Dorothy's long, fulfilling, and productive life, her family has remained the focus of her life; her four grandchildren and four great-grandchildren are a source of much pride and happiness; and

WHEREAS, A beloved and respected member of her community, Dorothy McFarland is noted for her courage, her compassion for others, and her enthusiasm for living each day to the fullest; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby recognize Dorothy Ruth McFarland as a treasured citizen of Port Arthur and the State of Texas and extend to her best wishes for a joyous 70th birthday celebration; and, be it further

RESOLVED, That a copy of this Resolution be prepared for her as an expression of high regard from the Texas Senate.

The resolution was read and was adopted without objection.

GUESTS PRESENTED

Senator Lucio was recognized and introduced to the Senate Dorothy Ruth McFarland; her granddaughter, Candice McFarland; and her friend, Connie Abshire.

The Senate welcomed its guests.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 27, 2003

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 266, In memory of Donald R. Lewis, M.D., of Paris, Texas.

SB 10, Relating to the creation of employer health benefit plan groups.

(Amended)

SB 16, Relating to mentoring services programs for at-risk students in public schools.

(Amended)

SB 286, Relating to the continuation and functions of the Texas Higher Education Coordinating Board.

(Committee Substitute/Amended)

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

2480 78th Legislature — Regular Session 79th Day

CONFERENCE COMMITTEE ON

SENATE BILL 716 DISCHARGED

On motion of Senator Lindsay and by unanimous consent, the Senate conferees on SBi716 were discharged.

Question — Shall the Senate concur in the House amendments to SBi716?

Senator Lindsay moved to concur in the House amendments to SBi716.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 282 WITH HOUSE AMENDMENTS

Senator Jackson called SBi282 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 282 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas State Board of Plumbing Examiners; providing penalties.

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

SECTIONi1.ii(a)iiSection 1301.002, Occupations Code, is amended by amending Subdivision (4) and adding Subdivision (1-a) to read as follows:

(1-a)ii"Executive director" means the executive director of the Texas State Board of Plumbing Examiners.

(4)ii"Plumber's apprentice" means a person other than a master plumber, journeyman plumber, or tradesman plumber-limited license holder who, as the person's principal occupation, learns about and assists in the installation of plumbing, has fulfilled the requirements of and is registered by the board, and works under the supervision of a master plumber and the direct supervision of a licensed plumber.

(b)iiIn accordance with Subsection (c), Section 311.031, Government Code, which gives effect to a substantive amendment enacted by the same legislature that codifies the amended statute, the text of Subdivision (4), Section 1301.002, Occupations Code, as set out in this section, gives effect to changes made by Section 1, Chapter 504, Acts of the 77th Legislature, Regular Session, 2001.

SECTIONi2.iiSection 1301.003, Occupations Code, is amended to read as follows:

Sec.i1301.003.iiAPPLICATION OF SUNSET ACT.iiThe Texas State Board of Plumbing Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2015 [2003].

SECTIONi3.iiSubsection (c), Section 1301.151, Occupations Code, is amended to read as follows:

(c)iiAppointments to the board shall be made without regard to the race, color, disability [creed], sex, religion, age, or national origin of the appointee.

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SECTIONi4.iiSection 1301.153, Occupations Code, is amended to read as follows:

Sec.i1301.153.iiMEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)iiA person may not be a member [or employee] of the board and may not be a board employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if:

(1)iithe person is an officer, employee, or paid consultant of a Texas trade association in the field of building construction [industry]; or

(2)iithe person's spouse [related within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to a person who] is an officer, manager [employee], or paid consultant of a Texas trade association in the field of building construction [regulated industry].

(c)i[(b)]iiA person may not be [serve as] a member of the board or act as the general counsel to the board or the agency 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 agency.

SECTIONi5.iiSection 1301.156, Occupations Code, is amended to read as follows:

Sec.i1301.156.iiGROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:

(1)iidoes not have at the time of taking office [appointment] the qualifications required by Section 1301.151 or 1301.152;

(2)iidoes not maintain during service on the board the qualifications required by Section 1301.151 or 1301.152;

(3)iiis ineligible for membership under [violates a prohibition prescribed by] Section 1301.153; [or]

(4)iicannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)iiis absent from more than [fails to attend at least] half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board.

(b)iiThe validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists.

(c)iiIf the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists.

2482 78th Legislature — Regular Session 79th Day

SECTIONi6.iiSection 1301.157, Occupations Code, is amended to read as follows:

Sec.i1301.157.iiOFFICERS. (a) The governor shall designate a member of the board as the presiding officer of the board to serve in that capacity at the pleasure of the governor.

(b)iiThe board shall elect a [presiding officer and a] secretary from its membership.

SECTIONi7.iiSubchapter C, Chapter 1301, Occupations Code, is amended by adding Section 1301.159 to read as follows:

Sec.i1301.159.iiTRAINING. (a) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section.

(b)iiThe training program must provide the person with information regarding:

(1)iithis chapter;

(2)iithe programs operated by the agency;

(3)iithe role and functions of the agency;

(4)iithe rules of the agency, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)iithe current budget for the agency;

(6)iithe results of the most recent formal audit of the agency;

(7)iithe requirements of:

(A)iithe open meetings law, Chapter 551, Government Code;

(B)iithe public information law, Chapter 552, Government Code;

(C)iithe administrative procedure law, Chapter 2001, Government Code; and

(D)iiother laws relating to public officials, including conflict-of-interest laws; and

(8)iiany applicable ethics policies adopted by the agency or the Texas Ethics Commission.

(c)iiA person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.

SECTIONi8.iiThe heading to Subchapter D, Chapter 1301, Occupations Code, is amended to read as follows:

SUBCHAPTERiD.iiEXECUTIVE DIRECTOR AND OTHER
BOARD PERSONNEL

SECTIONi9.iiSection 1301.201, Occupations Code, is amended to read as follows:

Sec.i1301.201.iiEXECUTIVE DIRECTOR AND STAFF. (a) The board shall employ an executive director as the executive head of the agency.

(b)iiThe board may employ personnel as necessary to administer this chapter. The board may determine the compensation and duties of its employees and the terms of their employment.

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SECTIONi10.iiSubsection (b), Section 1301.203, Occupations Code, is amended to read as follows:

(b)iiA field representative may:

(1)iiconduct on-site license checks to determine compliance with this chapter;

(2)iiinvestigate consumer complaints filed under Section 1301.303;

(3)iiassist municipal plumbing inspectors in enforcing this chapter; [and]

(4)iiissue citations as provided by Section 1301.502; and

(5)iiin the performance of the field representative's other duties under this chapter, check the license, registration, or endorsement of a person regulated by the Texas Department of Licensing and Regulation in accordance with the memorandum of understanding adopted under Section 1301.259 and report any noncompliance to that agency.

SECTIONi11.iiSubchapter D, Chapter 1301, Occupations Code, is amended by adding Sections 1301.205 through 1301.208 to read as follows:

Sec.i1301.205.iiEQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The executive director or the executive director'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)iiThe policy statement must include:

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

(2)iian analysis of the extent to which the composition of the agency'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)iiThe policy statement must:

(1)iibe updated annually;

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

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

Sec.i1301.206.iiEMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director's designee shall provide to agency employees information and training on the benefits and methods of participation in the state employee incentive program.

Sec.i1301.207.iiSTANDARDS OF CONDUCT. The executive director or the executive director's designee shall provide to members of the board and 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.i1301.208.iiSEPARATION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate the policy-making responsibilities of the board and the management responsibilities of the executive director and the staff of the agency.

2484 78th Legislature — Regular Session 79th Day

SECTIONi12.iiSubchapter E, Chapter 1301, Occupations Code, is amended by adding Sections 1301.258 through 1301.262 to read as follows:

Sec.i1301.258.iiBOARD COMMITTEES. (a) The board may create committees to assist the board in exercising its powers and duties.

(b)iiThe presiding officer of the board shall appoint the members of the committees. Except as provided by Subsection (c), each committee member must be a member of the board.

(c)iiThe presiding officer may appoint only members of the agency staff to an enforcement committee that reviews complaints and license registration and reviews endorsement applications submitted by applicants who have a criminal conviction history affected by Chapter 53.

Sec.i1301.259.iiMEMORANDUM OF UNDERSTANDING. (a) The board and the Texas Department of Licensing and Regulation shall enter into a memorandum of understanding to improve services and coordinate the functions of each agency.

(b)iiThe memorandum of understanding must:

(1)iirequire each agency to share:

(A)iiinformation technology to support the regulation and enforcement of occupational licenses; and

(B)iiinformation on regulatory practices for licensed occupations, including policy issues that affect the regulation of licensed occupations, standardization of complaint and enforcement techniques, and model licensing techniques;

(2)iiauthorize enforcement officers from each agency to check licenses, registrations, or endorsements held by persons practicing occupations regulated by the other agency and report noncompliance to that agency; and

(3)iistate the circumstances when a joint investigation between the board and the Texas Department of Licensing and Regulation is appropriate.

Sec.i1301.260.iiPOLICY ON TECHNOLOGICAL SOLUTIONS. The board shall develop and implement a policy requiring the executive director and agency employees to research and propose appropriate technological solutions to improve the agency's ability to perform its functions. The technological solutions must:

(1)iiensure that the public is able to easily find information about the agency on the Internet;

(2)iiensure that persons who want to use the agency's services are able to:

(A)iiinteract with the agency through the Internet; and

(B)iiaccess any service that can be provided effectively through the Internet; and

(3)iibe cost-effective and developed through the agency's planning processes.

Sec.i1301.261.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION. (a) The board shall develop and implement a policy to encourage the use of:

(1)iinegotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of agency rules; and

Tuesday, May 27, 2003 SENATE JOURNAL 2485

(2)iiappropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the agency's jurisdiction.

(b)iiThe agency's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

(c)iiThe board shall designate a trained person to:

(1)iicoordinate the implementation of the policy adopted under Subsection (a);

(2)iiserve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3)iicollect data concerning the effectiveness of those procedures, as implemented by the agency.

Sec.i1301.262.iiPLUMBING INSPECTOR CODE OF CONDUCT. The board by rule shall establish a code of conduct for licensed plumbing inspectors. The code of conduct shall require a plumbing inspector to enforce this chapter and board rules in a consistent manner across job sites.

SECTIONi13.iiSubchapter F, Chapter 1301, Occupations Code, is amended by adding Section 1301.3015 to read as follows:

Sec.i1301.3015.iiPUBLIC PARTICIPATION. The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the agency.

SECTIONi14.iiSection 1301.303, Occupations Code, is amended to read as follows:

Sec.i1301.303.iiCOMPLAINTS. (a) The board may investigate an alleged violation of this chapter by a person who:

(1)iiis licensed under this chapter; or

(2)iiperforms plumbing without holding a license under this chapter.

(b)iiThe board shall maintain a [keep an information] file on [about] each written complaint filed with the board. The file must include:

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

(2)iithe date the complaint is received by the agency;

(3)iithe subject matter of the complaint;

(4)iithe name of any municipality and the county in which the conduct that is the subject of the complaint occurred;

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

(6)iia summary of the results of the review or investigation of the complaint; and

(7)iian explanation of the reason the file was closed, if the agency closed the file without taking action other than to investigate the complaint [relating to a person licensed under this chapter].

(c)iiThe agency shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the agency's policies and procedures relating to complaint investigation and resolution.

2486 78th Legislature — Regular Session 79th Day

(d)iiThe [If a written complaint is filed with the board relating to a person licensed under this chapter, the] board, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of [parties to] the complaint of the status of the investigation [complaint] unless the notice would jeopardize an undercover investigation.

(e)iiThe board by rule shall assign priorities and prescribe investigative procedures for investigations of complaints based on:

(1)iithe severity of the conduct alleged in the complaint; and

(2)iithe degree of harm to public health, safety, or property.

(f)iiThe board shall maintain information about complaints, including source, type, and geographical area, to identify and address regulatory problem areas and focus enforcement in those areas.

SECTIONi15.iiSubchapter F, Chapter 1301, Occupations Code, is amended by adding Section 1301.304 to read as follows:

Sec.i1301.304.iiINVESTIGATION OF COMPLAINTS. (a) The enforcement committee or an employee designated by the enforcement committee may investigate an alleged violation of this chapter or a board rule that is reported to the board.

(b)iiThe enforcement committee shall determine whether a person has committed the violation and shall recommend appropriate sanctions to the board or, if the enforcement committee determines that the complaint is without merit, dismissal of the complaint.

(c)iiThe board shall conduct joint investigations with the Texas Department of Licensing and Regulation as circumstances require.

SECTIONi16.iiSection 1301.351, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c)iiA license holder who is supervising and controlling under Subsection (a)(2) the work of a person engaged in the business of plumbing in the construction of a new one-family or two-family dwelling in an unincorporated area of the state must have training and management responsibility for, and shall review and inspect, the person's work. The license holder is not required to provide continuous or uninterrupted on-the-job oversight of the person's work.

SECTIONi17.iiSubchapter G, Chapter 1301, Occupations Code, is amended by adding Sections 1301.3521 and 1301.3522 to read as follows:

Sec.i1301.3521.iiEXAMINATION FEE REFUND. (a) The board shall refund the examination fee paid by an applicant who:

(1)iiprovides advance notice of the applicant's inability to take the examination; or

(2)iiis unable to take the examination because of an emergency.

(b)iiThe board shall adopt rules that establish the required notification period and the emergency situations that warrant a refund.

Sec.i1301.3522.iiEXAMINATION REVIEW COURSE. (a) The board shall develop a review course in English and Spanish to assist license applicants in preparation for each license examination offered by the board. If the board provides the review course, the board may charge a fee to an applicant who applies to take the review course.

Tuesday, May 27, 2003 SENATE JOURNAL 2487

(b)iiThe board may provide the review course training materials to private course providers for a fee determined by the board.

SECTIONi18.iiSubchapter G, Chapter 1301, Occupations Code, is amended by adding Section 1301.3541 to read as follows:

Sec.i1301.3541.iiAPPRENTICE REGISTRATION REQUIREMENTS. The board by rule may adopt registration requirements for plumber's apprentices, including training and education requirements.

SECTIONi19.iiSection 1301.358, Occupations Code, is amended to read as follows:

Sec.i1301.358.iiOUT-OF-STATE APPLICANTS; PROVISIONAL LICENSE. (a) The board may waive any prerequisite to obtaining a license [requirement under this chapter] for an applicant after reviewing the applicant's credentials and determining that the applicant [who] holds a license issued by another jurisdiction [state] that has licensing requirements substantially equivalent to those [the requirements] of this state.

(b)iiThe board may issue a provisional license to an applicant currently licensed in another jurisdiction who seeks a license in this state and who:

(1)iihas been licensed in good standing as a plumber for at least two years in another jurisdiction, including a foreign country, that has licensing requirements substantially equivalent to the requirements of this chapter;

(2)iihas passed a national or other examination recognized by the board relating to the practice of plumbing; and

(3)iiis sponsored by a person licensed by the board under this chapter with whom the provisional license holder will practice during the time the person holds a provisional license.

(c)iiThe board may waive the requirement of Subsection (b)(3) for an applicant if the board determines that compliance with that subdivision would be a hardship to the applicant.

(d)iiA provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to the provisional license holder if:

(1)iithe provisional license holder is eligible to be licensed under Subsection (a); or

(2)iithe provisional license holder passes the part of the examination under Section 1301.352 that relates to the applicant's knowledge and understanding of the laws and rules relating to the practice of plumbing in this state and:

(A)iithe board verifies that the provisional license holder meets the academic and experience requirements for a license under this chapter; and

(B)iithe provisional license holder satisfies any other licensing requirements under this chapter.

(e)iiThe board must approve or deny a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend the 180-day period if the results of an examination have not been received by the board before the end of that period.

(f)iiThe board may establish a fee for provisional licenses in an amount reasonable and necessary to cover the cost of issuing the license.

2488 78th Legislature — Regular Session 79th Day

SECTIONi20.ii(a) Section 1301.403, Occupations Code, is amended to read as follows:

Sec.i1301.403.iiPROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license, endorsement, or registration may renew an unexpired license, endorsement, or registration by paying the required renewal fee to the agency [board] before the expiration date of the license, endorsement, or registration. A person whose license, endorsement, or registration has expired may not engage in activities that require a license, endorsement, or registration until the license, endorsement, or registration has been renewed.

(b)iiA person whose license or endorsement has been expired for 90 days or less may renew the license or endorsement by paying to the agency a renewal fee that is equal to 1-1/2 times the normally [board the] required renewal fee [and a fee equal to half of the examination fee for the license or endorsement]. A person whose registration has been expired for 90 days or less may renew the registration by paying to the board a renewal fee that is equal to 1-1/2 times the normally required renewal fee [and a fee equal to half of the registration fee].

(c)iiA person whose license or endorsement has been expired for more than 90 days but less than two years may renew the license or endorsement by paying to the agency a renewal fee that is equal to two times the normally required renewal fee [board all unpaid renewal fees and a fee that is equal to the examination fee for the license or endorsement]. A person whose registration has been expired for more than 90 days but less than two years may renew the registration by paying to the board a renewal fee that is equal to two times the normally required renewal fee [all unpaid renewal fees and a fee that is equal to the registration fee].

(d)iiA person whose license, endorsement, or registration has been expired for two years or more may not renew the license, endorsement, or registration. The person may obtain a new license, endorsement, or registration by [submitting to reexamination and] complying with the requirements and procedures, including the examination requirements, for obtaining an original license, endorsement, or registration.

(e)iiA person who held a license, endorsement, or registration in this state, moved to another state, and is currently holding a license, endorsement, or registration and has been in practice in the other state for the two years preceding the date of application may obtain a new license, endorsement, or registration without reexamination. The person must pay to the agency a fee that is equal to two times the normally required renewal fee for the license, endorsement, or registration.

(f)iiNot later than the 30th day before the date a person's license, endorsement, or registration is scheduled to expire, the agency shall send written notice of the impending expiration to the person at the person's last known address according to the records of the agency.

(b)iiIn accordance with Subsection (c), Section 311.031, Government Code, which gives effect to a substantive amendment enacted by the same legislature that codifies the amended statute, the text of Section 1301.403, Occupations Code, as set out in this section, gives effect to changes made by Section 14, Chapter 504, Acts of the 77th Legislature, Regular Session, 2001.

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SECTIONi21.ii(a)iiSection 1301.451, Occupations Code, is amended to read as follows:

Sec.i1301.451.iiDISCIPLINARY POWERS OF BOARD. (a) The board shall revoke, suspend, or refuse to renew a license, endorsement, or registration or shall reprimand a holder of a license, endorsement, or registration for a violation of this chapter or a rule of the board [On determining that a person who holds a license or endorsement or is registered under this chapter engaged in conduct for which the person is subject to disciplinary action under Section 1301.452, the board shall:

[(1)iirevoke or suspend the person's license, endorsement, or registration;

[(2)iiprobate suspension of the person's license, endorsement, or registration; or

[(3)iireprimand the person].

(b)iiA person whose license, endorsement, or registration has been revoked may not apply for a new license, endorsement, or registration before the first anniversary of the date of revocation.

(c)iiThe board may place on probation a person whose license, endorsement, or registration is suspended. If a license, endorsement, or registration suspension is probated, the board may require the person:

(1)iito report regularly to the agency on matters that are the basis of the probation;

(2)iito limit practice to the areas prescribed by the board; or

(3)iito continue or review professional education until the person attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

(d)iiThe board by rule shall:

(1)iiadopt written guidelines to ensure that probation is administered consistently; and

(2)iidevelop a system to track compliance with the probation requirements.

(b)iiIn accordance with Subsection (c), Section 311.031, Government Code, which gives effect to a substantive amendment enacted by the same legislature that codifies the amended statute, the text of Section 1301.451, Occupations Code, as set out in this section, gives effect to changes made by Section 12, Chapter 504, Acts of the 77th Legislature, Regular Session, 2001.

SECTIONi22.iiSubchapter I, Chapter 1301, Occupations Code, is amended by adding Sections 1301.4521 and 1301.4522 to read as follows:

Sec.i1301.4521.iiCONSEQUENCES OF CRIMINAL CONVICTION. (a) The board shall adopt rules in compliance with the guidelines authorized by Chapter 53 relating to criminal convictions.

(b)iiThe board shall adopt a method to review the agency's compliance with Chapter 53 and the rules adopted under this section.

Sec.i1301.4522.iiREVIEW OF APPLICATION. (a) The enforcement committee may approve, without board approval, the application for a license, endorsement, or registration of a person who has a criminal conviction if the enforcement committee finds that the criminal conviction does not directly relate to the duties and responsibilities of the business of plumbing in accordance with the rules adopted by the board under Section 1301.4521.

2490 78th Legislature — Regular Session 79th Day

(b)iiIf the enforcement committee determines that a person is ineligible for a license, endorsement, or registration based on the person's criminal conviction, the person may request a hearing before an administrative law judge of the State Office of Administrative Hearings to review the enforcement committee's determination.

(c)iiAfter receipt of the administrative law judge's proposed findings of fact and conclusions of law, the board shall determine the applicant's eligibility. The board shall provide an applicant who is denied a license a written statement containing the reasons for the board's action.

(d)iiAn applicant who has a criminal conviction may appear before the board or the enforcement committee to present information relating to the applicant's criminal conviction.

SECTIONi23.iiSection 1301.502, Occupations Code, is amended to read as follows:

Sec.i1301.502.iiCITATION. (a) A field representative, water district plumbing inspector, or, within the jurisdiction of the municipality, municipal plumbing inspector may issue a citation to a person who engages in conduct described by Section 1301.508.

(b)iiThe board shall adopt guidelines relating to the circumstances when a field representative may issue a citation. The guidelines must encourage the use of other enforcement measures, including imposition of administrative penalties, before the issuance of a citation.

SECTIONi24.iiSubchapter J, Chapter 1301, Occupations Code, is amended by adding Sections 1301.5045 and 1301.5071 to read as follows:

Sec.i1301.5045.iiCEASE AND DESIST ORDER. (a) If it appears to the board that a person is violating this chapter or a rule adopted under this chapter, the board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in the activity.

(b)iiA violation of an order under this section constitutes grounds for imposing an administrative penalty under Subchapter N.

Sec.i1301.5071.iiINFORMAL SETTLEMENT CONFERENCE; RESTITUTION. (a) The board by rule shall establish procedures under which an informal settlement conference is conducted to resolve a complaint against a person licensed under this chapter.

(b)iiSubject to Subsection (c), the board may order a person licensed under this chapter to pay restitution to a person as provided in an agreement resulting from an informal settlement conference instead of or in addition to assessing an administrative penalty under Subchapter N.

(c)iiThe amount of restitution ordered as provided by an agreement resulting from an informal settlement conference may not exceed the amount the person paid to the license holder for a service regulated by this chapter. The board may not require payment of other damages or estimate harm in a restitution order.

SECTIONi25.iiChapter 1301, Occupations Code, is amended by adding Subchapters M and N to read as follows:

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SUBCHAPTERiM.iiINTERAGENCY COOPERATION
AND REGULATION

Sec.i1301.651.iiDEFINITION. In this subchapter, "local workforce development board" means a board created under Subchapter F, Chapter 2308, Government Code.

Sec.i1301.652.iiPUBLIC EDUCATION EFFORT. (a) The board and the Texas Workforce Commission shall, through the local workforce development boards, coordinate efforts to educate the public about the plumbing profession and the resources available to employers for the recruitment and training of plumbers, including providing:

(1)iieach local workforce development board with:

(A)iiinformation about the licensing requirements for the plumbing profession; and

(B)iiavailable statistical data regarding plumbing; and

(2)iia link to each agency's Internet site and to the Internet sites of other local workforce development boards.

(b)iiThe board may, during public and industry awareness seminars, raise awareness of the career ladder in the plumbing industry and the opportunities that plumbing apprenticeships offer.

(c)iiThis section applies to the extent that the plumbing profession is designated as an occupation in demand by a local workforce development board.

SUBCHAPTERiN.iiADMINISTRATIVE PENALTY

Sec.i1301.701.iiIMPOSITION OF PENALTY. The board may impose an administrative penalty on a person who violates this chapter or a rule or order adopted under this chapter.

Sec.i1301.702.iiAMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(b)iiThe amount of the penalty shall be based on:

(1)iithe seriousness of the violation, including:

(A)iithe nature, circumstance, extent, and gravity of any prohibited act; and

(B)iithe hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2)iithe economic harm to property or the environment caused by the violation;

(3)iithe history of previous violations;

(4)iithe amount necessary to deter a future violation;

(5)iiefforts made to correct the violation; and

(6)iiany other matter that justice may require.

(c)iiThe board by rule or through procedures adopted by the board and published in the Texas Register shall develop a standardized penalty schedule based on the criteria listed in Subsection (b).

Sec.i1301.703.iiREPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the enforcement committee determines that a violation occurred, the enforcement committee may issue to the board a report stating:

(1)iithe facts on which the determination is based; and

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(2)iithe committee's recommendation on the imposition of the penalty, including a recommendation on the amount of the penalty.

(b)iiNot later than the 14th day after the date the report is issued, the enforcement committee shall give written notice of the report to the person.

(c)iiThe notice must:

(1)iiinclude a brief summary of the alleged violation;

(2)iistate the amount of the recommended penalty; and

(3)iiinform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

Sec.i1301.704.iiPENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person in writing may:

(1)iiaccept the determination and recommended penalty of the enforcement committee; or

(2)iimake a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(b)iiIf the person accepts the determination and recommended penalty of the enforcement committee, the board by order shall approve the determination and impose the recommended penalty.

Sec.i1301.705.iiHEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the enforcement committee shall set a hearing and give written notice of the hearing to the person. An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.

(b)iiThe administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

Sec.i1301.706.iiDECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may:

(1)iifind that a violation occurred and impose a penalty; or

(2)iifind that a violation did not occur.

(b)iiThe notice of the board's order given to the person must include a statement of the right of the person to judicial review of the order.

Sec.i1301.707.iiOPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not later than the 30th day after the date the board's order becomes final, the person shall:

(1)iipay the penalty; or

(2)iifile a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

Sec.i1301.708.iiSTAY OF ENFORCEMENT OF PENALTY. (a) Within the 30-day period prescribed by Section 1301.707, a person who files a petition for judicial review may:

(1)iistay enforcement of the penalty by:

(A)iipaying the penalty to the court for placement in an escrow account; or

(B)iigiving the court a supersedeas bond approved by the court that:

(i)iiis for the amount of the penalty; and

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(ii)iiis effective until all judicial review of the board's order is final; or

(2)iirequest the court to stay enforcement of the penalty by:

(A)iifiling with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)iisending a copy of the affidavit to the enforcement committee by certified mail.

(b)iiIf the enforcement committee receives a copy of an affidavit under Subsection (a)(2), the executive director may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit.

(c)iiThe court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.

Sec.i1301.709.iiDECISION BY COURT. (a) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

(b)iiIf the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

Sec.i1301.710.iiREMITTANCE OF PENALTY AND INTEREST. (a) If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person.

(b)iiThe interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(c)iiThe interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

Sec.i1301.711.iiRELEASE OF BOND. (a) If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

(b)iiIf the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

Sec.i1301.712.iiCOLLECTION OF PENALTY. (a) If the person does not pay the penalty and the enforcement of the penalty is not stayed, the penalty may be collected.

(b)iiThe attorney general may sue to collect the penalty.

Sec.i1301.713.iiADMINISTRATIVE PROCEDURE. A proceeding to impose the penalty is considered to be a contested case under Chapter 2001, Government Code.

SECTIONi26.iiSection 51.351, Occupations Code, is amended by adding Subsections (c) and (d) to read as follows:

2494 78th Legislature — Regular Session 79th Day

(c)iiA department employee may check the license, registration, or endorsement of a person regulated by the Texas State Board of Plumbing Examiners in accordance with the memorandum of understanding under Section 1301.259 and report any noncompliance to that agency.

(d)iiThe department shall conduct joint investigations with the Texas State Board of Plumbing Examiners as circumstances require.

SECTIONi27.iiSection 2308.303, Government Code, is amended by adding Subsections (e) and (f) to read as follows:

(e)iiA board shall educate the public about the plumbing profession and the resources available to employers for the recruitment and training of plumbers as provided by Section 1301.652, Occupations Code.

(f)iiThese educational efforts may be conducted to the extent that the plumbing profession is designated as an occupation in demand by a board.

SECTIONi28.ii(a) Not later than January 1, 2004, the Texas State Board of Plumbing Examiners shall adopt the rules required by Section 1301.4521, Occupations Code, as added by this Act.

(b)iiNot later than September 1, 2004, the Texas State Board of Plumbing Examiners shall:

(1)iiadopt the written guidelines required by Subsection (d), Section 1301.451, Occupations Code, as added by this Act; and

(2)iiadopt the administrative penalty schedule required by Section 1301.702, Occupations Code, as added by this Act.

(c)iiThe changes in law made by Section 1301.153, Occupations Code, as amended by this Act, and Section 1301.159, Occupations Code, as added by this Act, in the prohibitions on or qualifications of members of the Texas State Board of Plumbing Examiners do not affect the entitlement of a member serving on the Texas State Board of Plumbing Examiners immediately before September 1, 2003, to continue to serve and function as a member of the Texas State Board of Plumbing Examiners for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.

(d)iiThe change in law made by this Act to Chapter 1301, Occupations Code, relating to the investigation of a complaint applies only to a complaint filed with the Texas State Board of Plumbing Examiners on or after the effective date of this Act. A complaint filed with the board before the effective date of this Act is governed by the law as it existed immediately before that date, and the former law is continued in effect for that purpose.

SECTIONi29.iiTo the extent of any conflict, this Act prevails over another Act of the 78th Legislature, Regular Session, 2003, relating to nonsubstantive additions to and corrections in enacted codes.

SECTIONi30.iiThis Act takes effect September 1, 2003.

Floor Amendment No. 2

Amend CSSB 282 by adding the following appropriately numbered SECTIONS to the bill and renumbering the SECTIONS of the bill appropriately:

SECTIONi____.iiSection 1301.052, Occupations Code, is amended to read as follows:

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Sec.i1301.052.iiWORK INSIDE OR OUTSIDE MUNICIPALITIES. A person is not required to be licensed under this chapter to perform plumbing [on a property that is]:

(1)ii[located in a subdivision or on a tract of land that is not required to be platted under Section 232.0015, Local Government Code; or

[(2)iinot connected to a public water system and is located] outside a municipality; or

(2)iiinside a municipality with fewer than 5,000 inhabitants, unless an ordinance of the municipality requires the person to be licensed.

SECTIONi____.iiIn accordance with Section 311.031(c), Government Code, which gives effect to a substantive amendment enacted by the same legislature that codifies the amended statute, the text of Section 1301.052, Occupations Code, as set out in Section ____ of this Act, gives effect to changes made by Chapter 791, Acts of the 77th Legislature, Regular Session, 2001.

Floor Amendment No. 3

Amend Floor Amendment No. 2 to CSSB 282 by striking the text of the amendment and substituting the following:

SECTION ____. Section 1301.052, Occupations Code, is amended to read as follows:

Sec. 1301.052. WORK INSIDE OR OUTSIDE MUNICIPALITIES. A person is not required to be licensed under this chapter to perform plumbing, other than plumbing performed in conjunction with new construction, on a property that is:

(1) located in a subdivision or on a tract of land that is not required to be platted under Section 232.0015, Local Government Code; or

(2) not connected to a public water system and is located] outside a municipality; or

(3) inside a municipality with fewer than 5,000 inhabitants, unless an ordinance of the municipality requires the person to be licensed.

SECTION ____. In accordance with Section 311.031(c), Government Code, which gives effect to a substantive amendment enacted by the same legislature that codifies the amended statute, the text of Section 1301.052, Occupations Code, as set out in Section ____ of this Act, gives effect to changes made by Chapter 791, Acts of the 77th Legislature, Regular Session, 2001.

Floor Amendment No. 1 on Third Reading

Amend CSSB 282 on third reading by striking Section 1301.052, Occupations Code, Subsection 2 and replacing it with the following:

(2)iinot connected to a public water system and is located] located outside a municipality; or

Floor Amendment No. 3 on Third Reading

Amend Floor Amendment No. 1 on Third Reading to CSSB 282 on third reading by striking the text of the amendment and substituting the following:

Section 1301.052, Occupations Code, is amended to read as follows:

2496 78th Legislature — Regular Session 79th Day

Sec. 1301.052.iiWORK INSIDE OR OUTSIDE MUNICIPALITIES. A person is not required to be licensed under this chapter to perform plumbing, other than plumbing performed in conjunction with new construction, on a property that is:

(1)iilocated in a subdivision or on a tract of land that is not required to be platted under Section 232.0015, Local Government Code; or

(2)iinot connected to a public water system and is located] outside a municipality; or

(3)iilocated outside a municipality and connected to a public water system that does not require a license to perform plumbing; or

(4)iiinside a municipality with fewer than 5,000 inhabitants, unless an ordinance of the municipality requires the person to be licensed.

The amendments were read.

Senator Jackson moved to concur in the House amendments to SBi282.

The motion prevailed by a viva voce vote.

SENATE RESOLUTION 754

Senator Gallegos offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to recognize the Aldine Independent School District for its outstanding work in educating the children of Aldine; and

WHEREAS, Aldine Independent School District ranks among the state's high performing school districts according to the Texas Education Agency; beginning in 1996, the district earned Recognized ratings for six consecutive years from the Texas Education Agency; the district has also been ranked among the state's top 20 school districts in educating African American and Latino students; and

WHEREAS, Twenty schools in the district were recently named high performing schools by the Just For the Kids Foundation for sustaining high academic performance in 2000, 2001, and 2002 in various academic categories, including writing, reading, science, mathematics, social studies, and end of course exams; and

WHEREAS, The Just For the Kids Foundation, along with the National Center for Educational Accountability, has been investigating educational best practices in the State of Texas for the last three years; and

WHEREAS, The Just For the Kids Foundation is a nonprofit organization whose mission is to raise academic standards and increase student achievement in schools in Texas; the National Center for Educational Accountability is a collaborative effort of the Education Commission of the State of Texas, The University of Texas at Austin, and the Just For the Kids Foundation to improve learning through the effective use of school and student data and the identification of best practices; and

WHEREAS, The 20 schools in the Aldine Independent School District named high performing by the Just For the Kids Foundation are Aldine Senior High School, Aldine Ninth Grade School, Aldine Middle School, Drew Academy, Eisenhower Senior High School, Eisenhower Ninth Grade School, Thompson Elementary School, Gray Elementary School, Hambrick Middle School, Hoffman Middle School, MacArthur Senior High School, MacArthur Ninth Grade School, Mendel Elementary

Tuesday, May 27, 2003 SENATE JOURNAL 2497

WHEREAS, In 1998, the Aldine Independent School District Board was named the Outstanding School Board of Texas by the Texas Association of School Administrators; other awards include the Standards of Excellence Award and National Outstanding Marketing Award for its Child Nutrition Department; for three years, the district received the National Encore Award from USA Weekend, and in the 1995-1996 school year, its elementary schools were recognized by Texas Monthly as among the best in Texas;

WHEREAS, Students in the Aldine Independent School District have greatly benefited from the expertise and diligence of its administrators, faculty, and staff, and all associated with the school district deserve recognition for its excellent record; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby pay tribute to the Aldine Independent School District for its dedication to the education of the young people of Aldine and congratulate its schools for their exceptional accomplishments; and, be it further

RESOLVED, That a copy of this Resolution be prepared for the Aldine Independent School District as an expression of high regard from the Texas Senate.

The resolution was read and was adopted without objection.

GUEST PRESENTED

Senator Gallegos was recognized and introduced to the Senate Nadine Kujawa, Superintendent of Schools for the Aldine Independent School District.

The Senate welcomed its guest.

SENATE RESOLUTION 975

Senator Duncan offered the following resolution:

WHEREAS, A 50th wedding anniversary is a splendid occasion and calls for much celebration, and Dr. and Mrs. Mayes of Austin have much reason to rejoice; and

WHEREAS, Since their marriage on May 24, 1953, Dr. and Mrs. Mayes have spent 50 years together in loyalty and devotion; and

WHEREAS, The world has changed considerably during the years of their marriage, yet Dr. and Mrs. Mayes have cherished traditional family and moral values; and

WHEREAS, Over the years, their love has grown stronger as together they have experienced the joys and sorrows of everyday living; and

WHEREAS, The happy couple has been blessed with a wonderful family; their children, Lori Hartman, Mark Mayes, Lisa Mayes, and Jon Mayes, and their grandchild, Samuel Gordon Mayes, have been the source of much pride and joy; and

WHEREAS, Prior to moving to Austin, Dr. and Mrs. Mayes lived in Lubbock, where Dr. Mayes was a successful orthopedic surgeon until his retirement a few years ago; B.K. and Gordon Mayes were exemplary citizens of Lubbock, where they made many deep and lasting friendships; and

2498 78th Legislature — Regular Session 79th Day

WHEREAS, The loving relationship that B.K. and Gordon share is truly an inspiration to all who know them; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby join the family and friends of Dr. and Mrs. Mayes in extending to them best wishes and congratulations on their 50th wedding anniversary; and, be it further

RESOLVED, That a copy of this Resolution be prepared for this distinguished couple as a memento of this grand occasion.

The resolution was read and was adopted without objection.

GUESTS PRESENTED

Senator Duncan was recognized and introduced to the Senate B.iK. and Gordon Mayes of Austin.

The Senate welcomed its guests.

SENATE BILL 1326 WITH HOUSE AMENDMENT

Senator Carona called SBi1326 from the President's table for consideration of the House amendment to the bill.

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

Floor Amendment No. 1

Amend the committee report for SB 1326 on page 2, line 5 by inserting the words "roof pitch," in between the words "roofing," and "foundation fascia,".

The amendment was read.

Senator Carona moved to concur in the House amendment to SBi1326.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

HOUSE CONCURRENT RESOLUTION 261

The Presiding Officer laid before the Senate the following resolution:

HCR 261, Commemorating Memorial Day 2003.

VANiDEiPUTTE

The resolution was read.

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

SENATE BILL 1574 WITH HOUSE AMENDMENT

Senator Carona called SBi1574 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.

Amendment

Amend SB 1574 by substituting in lieu thereof the following:

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A BILL TO BE ENTITLED
AN ACT

relating to the administration and regulation of the state's workers' compensation insurance system.

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

SECTIONi1.iiSection 413.0511(b), Labor Code, is amended to read as follows:

(b)iiThe medical advisor shall make recommendations regarding the adoption of rules to:

(1)iidevelop, maintain, and review guidelines as provided by Section 413.011, including rules regarding impairment ratings;

(2)iireview compliance with those guidelines;

(3)iiregulate or perform other acts related to medical benefits as required by the commission;

(4)iiimpose sanctions or delete doctors from the commission's list of approved doctors under Section 408.023 for:

(A)iiany reason described by Section 408.0231; or

(B)iinoncompliance with commission rules;

(5)iiimpose conditions or restrictions as authorized by Section 408.0231(f);

(6)iireceive, and share with the medical quality review panel established under Section 413.0512, confidential information, and other information to which access is otherwise restricted by law, as provided by Sections 413.0512, 413.0513, and 413.0514 from the Texas State Board of Medical Examiners, the Texas Board of Chiropractic Examiners, or other occupational licensing boards regarding [disciplinary actions imposed on] a physician, chiropractor, or other type of doctor who applies for registration or is registered with the commission on the list of approved doctors; and

(7)iidetermine minimal modifications to the reimbursement methodology and model used by the Medicare system as necessary to meet occupational injury requirements.

SECTIONi2.iiSection 413.0512(d), Labor Code, is amended to read as follows:

(d)iiA person who serves on the medical quality review panel is immune from suit and from civil liability [not liable in a civil action] for an act performed, or a recommendation made, within the scope of the person's functions as a member of the panel if the person acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person. In the event of a civil action brought against a member of the panel that arises from the person's participation on the panel, the person [in good faith as a member of the panel and] is entitled to the same protections afforded a commission member under Section 402.010.

SECTIONi3.iiSection 413.0513, Labor Code, is amended to read as follows:

Sec.i413.0513.iiCONFIDENTIALITY REQUIREMENTS. (a) Information collected, assembled, or maintained by or on behalf of the commission under Section 413.0511 or 413.0512 constitutes an investigation file for purposes of Section 402.092[,] and [that is confidential under law,] may not be disclosed under Section 413.0511 or 413.0512 except as provided by that section[:

[(1)iiin a criminal proceeding;

2500 78th Legislature — Regular Session 79th Day

[(2)iiin a hearing conducted by or on behalf of the commission;

[(3)iiin a hearing conducted by another licensing or regulatory authority, as provided in the interagency agreement; or

[(4)iion a finding of good cause in an administrative or judicial proceeding involving the enforcement of this subtitle or in a disciplinary action under this subtitle].

(b)iiConfidential information, and other information to which access is restricted by law, developed by or on behalf of the commission under Section 413.0511 or 413.0512 is not subject to discovery or court subpoena in any action other than:

(1)iian action to enforce this subtitle brought by the commission, an appropriate licensing or regulatory agency, or an appropriate enforcement authority; or

(2)iia criminal proceeding.

SECTIONi4.iiSubchapter E, Chapter 413, Labor Code, is amended by adding Sections 413.0514 and 413.0515 to read as follows:

Sec.i413.0514.iiINFORMATION SHARING WITH OCCUPATIONAL LICENSING BOARDS. (a) This section applies only to information held by or for the commission, the Texas State Board of Medical Examiners, and Texas Board of Chiropractic Examiners that relates to a person who is licensed or otherwise regulated by any of those state agencies.

(b)iiThe commission and the Texas State Board of Medical Examiners on request or on its own initiative, may share with each other confidential information or information to which access is otherwise restricted by law. The commission and the Texas State Board of Medical Examiners shall cooperate with and assist each other when either agency is conducting an investigation by providing information to each other that the sending agency determines is relevant to the investigation. Except as provided by this section, confidential information that is shared under this section remains confidential under law and legal restrictions on access to the information remain in effect. Furnishing information by the Texas State Board of Medical Examiners to the commission or by the commission to the Texas State Board of Medical Examiners under this Subsection does not constitute a waiver of privilege or confidentiality as established by law.

(c)iiInformation that is received by the commission from the Texas State Board of Medical Examiners or by the Texas State Board of Medical Examiners from the commission remains confidential, may not be disclosed by the commission except as necessary to further the investigation, and shall be exempt from disclosure under Sections 402.092 and Section 413.0513.

(d)iiThe commission and the Texas Board of Chiropractic Examiners on request or on its own initiative, may share with each other confidential information or information to which access is otherwise restricted by law. The commission and the Texas Board of Chiropractic Examiners shall cooperate with and assist each other when either agency is conducting an investigation by providing information to each other that is relevant to the investigation. Except as provided by this section, confidential information that is shared under this section remains confidential under law and legal restrictions on access to the information remain in effect unless the agency sharing the information approves use of the information by the receiving agency for enforcement purposes. Furnishing information by the Texas Board of

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(e)iiInformation that is received by the commission from the Texas Board of Chiropractic Examiners or by the Texas Board of Chiropractic Examiners remains confidential and may not be disclosed by the commission except as necessary to further the investigation unless the agency sharing the information and the agency receiving the information agree to use of the information by the receiving agency for enforcement purposes.

(f)iiThe commission and the Texas State Board of Medical Examiners shall provide information to each other on all disciplinary actions taken.

(g)iiThe commission and the Texas Board of Chiropractic Examiners shall provide information to each other on all disciplinary actions taken.

Sec.i413.0515.iiREPORTS OF PHYSICIAN AND CHIROPRACTOR VIOLATIONS. (a) If the commission or the Texas State Board of Medical Examiners discovers an act or omission by a physician that may constitute a felony, a misdemeanor involving moral turpitude, a violation of state or federal narcotics or controlled substance law, an offense involving fraud or abuse under the Medicare or Medicaid program, or a violation of this subtitle, the agency shall report that act or omission to the other agency.

(b)iiIf the commission or the Texas Board of Chiropractic Examiners discovers an act or omission by a chiropractor that may constitute a felony, a misdemeanor involving moral turpitude, a violation of state or federal narcotics or controlled substance law, an offense involving fraud or abuse under the Medicare or Medicaid program, or a violation of this subtitle, the agency shall report that act or omission to the other agency.

SECTIONi5.iiSection 160.006(a), Occupations Code, is amended to read as follows:

(a)iiA record, report, or other information received and maintained by the board under this subchapter or Subchapter B, including any material received or developed by the board during an investigation or hearing and the identity of, and reports made by, a physician performing or supervising compliance monitoring for the board, is confidential. The board may disclose this information only:

(1)iiin a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;

(2)iito the physician licensing or disciplinary authority of another jurisdiction, to a local, state, or national professional medical society or association, or to a medical peer review committee located inside or outside this state that is concerned with granting, limiting, or denying a physician hospital privileges;

(3)iiunder a court order; [or]

(4)iito qualified personnel for bona fide research or educational purposes, if personally identifiable information relating to any physician or other individual is first deleted; or

(5)iito the Texas Workers' Compensation Commission as provided by Section 413.0514, Labor Code.

SECTIONi6.iiSection 408.047, Labor Code, is amended to read as follows:

2502 78th Legislature — Regular Session 79th Day

Sec.i408.047.iiSTATE AVERAGE WEEKLY WAGE. The state average weekly wage for the fiscal year beginning September 1, 2003 and ending August 31, 2004 is $537, and for the fiscal year beginning September 1, 2004 and ending August 31, 2005 is $539 [equals the annual average of the average weekly wage of manufacturing production workers in this state, as determined by the Texas Employment Commission].

SECTIONi7.iiSection 413.0512(d), Labor Code, as amended by this Act, applies to a member of the medical quality review panel regardless of whether the person is a member of the panel at the time the action is brought.

SECTIONi8.ii(a)iiThe changes in law made by this Act apply to information maintained by or on behalf of the Texas Workers' Compensation Commission, the Texas State Board of Medical Examiners, or the Texas Board of Chiropractic Examiners without regard to the date the information is collected, compiled, developed, or shared between the agencies.

(b)iiThis 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, 2003.

The amendment was read.

Senator Carona moved to concur in the House amendment to SBi1574.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 533 WITH HOUSE AMENDMENT

Senator Carona called SBi533 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.

Amendment

Amend SB 533 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to certain practices of debt collectors and credit bureaus.

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

SECTIONi1.iiSection 392.202, Finance Code, is amended to read as follows:

Sec.i392.202.iiCORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT BUREAU'S FILES. (a)iiAn individual who disputes the accuracy of an item that is in a third-party debt collector's or credit bureau's file on the individual and that relates to a debt being collected by the third-party debt collector may notify in writing the third-party debt collector [or credit bureau] of the inaccuracy. The third-party debt collector [or credit bureau] shall make a written record of the dispute. If the third-party debt collector does not report information related to the dispute to a credit bureau, the third-party debt collector shall cease collection efforts until an investigation of the dispute described by Subsections (b)-(e) determines the accurate amount of the debt, if any. If the third-party debt collector reports information related to the dispute to a credit bureau, the reporting third-party debt collector shall initiate

Tuesday, May 27, 2003 SENATE JOURNAL 2503

(b)iiNot later than the 30th day after the date a notice of inaccuracy is received, a [the] third-party debt collector who initiates an investigation [or credit bureau] shall send a written statement to the individual:

(1)iidenying the inaccuracy;

(2)iiadmitting the inaccuracy; or

(3)iistating that the third-party debt collector [or credit bureau] has not had sufficient time to complete an investigation of the inaccuracy.

(c)iiIf the third-party debt collector [or credit bureau] admits that the item is inaccurate under Subsection (b), the third-party debt collector [or credit bureau] shall:

(1)iinot later than the fifth business day after the date of the admission, correct the item in the relevant file; and

(2)iiimmediately cease collection efforts related to the portion of the debt that was found to be inaccurate and on correction of the item send, to each person who has previously received a report from the third-party debt collector [or credit bureau] containing the inaccurate information, notice of the inaccuracy and a copy of an accurate report.

(d)iiIf the third-party debt collector [or credit bureau] states that there has not been sufficient time to complete an investigation, the third-party debt collector [or credit bureau] shall immediately:

(1)iichange the item in the relevant file as requested by the individual;

(2)iisend to each person who previously received the report containing the information a notice that is equivalent to a notice under Subsection (c) and a copy of the changed report; and

(3)iicease collection efforts [if the item involves a debt].

(e)iiOn completion by the third-party debt collector [or credit bureau] of the investigation, the third-party debt collector [or credit bureau] shall inform the individual of the determination of whether the item is accurate or inaccurate. If the third-party debt collector [or credit bureau] determines that the information was accurate, the third-party debt collector [or credit bureau] may again report that information and resume collection efforts.

SECTIONi2.iiSubsection (a), Section 392.304, Finance Code, is amended to read as follows:

(a)iiExcept as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices:

(1)iiusing a name other than the:

(A)iitrue business or professional name or the true personal or legal name of the debt collector while engaged in debt collection; or

(B)iiname appearing on the face of the credit card while engaged in the collection of a credit card debt;

2504 78th Legislature — Regular Session 79th Day

(2)iifailing to maintain a list of all business or professional names known to be used or formerly used by persons collecting consumer debts or attempting to collect consumer debts for the debt collector;

(3)iirepresenting falsely that the debt collector has information or something of value for the consumer in order to solicit or discover information about the consumer;

(4)iifailing to disclose clearly in any communication with the debtor the name of the person to whom the debt has been assigned or is owed when making a demand for money;

(5)iifailing to disclose, except in a formal pleading made in connection with a legal action:

(A)ii[clearly in any communication with the debtor] that the debt collector is attempting to collect a [consumer] debt and that any information obtained will be used for that purpose, if the communication is the initial written or oral communication with [unless the communication is for the purpose of discovering the location of] the debtor; or

(B)iithat the communication is from a debt collector, if the communication is a subsequent written or oral communication with the debtor;

(6)iiusing a written communication that fails to indicate clearly the name of the debt collector and the debt collector's street address or post office box and telephone number if the written notice refers to a delinquent consumer debt;

(7)iiusing a written communication that demands a response to a place other than the debt collector's or creditor's street address or post office box;

(8)iimisrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt's status in a judicial or governmental proceeding;

(9)iirepresenting falsely that a debt collector is vouched for, bonded by, or affiliated with, or is an instrumentality, agent, or official of, this state or an agency of federal, state, or local government;

(10)iiusing, distributing, or selling a written communication that simulates or is represented falsely to be a document authorized, issued, or approved by a court, an official, a governmental agency, or any other governmental authority or that creates a false impression about the communication's source, authorization, or approval;

(11)iiusing a seal, insignia, or design that simulates that of a governmental agency;

(12)iirepresenting that a consumer debt may be increased by the addition of attorney's fees, investigation fees, service fees, or other charges if a written contract or statute does not authorize the additional fees or charges;

(13)iirepresenting that a consumer debt will definitely be increased by the addition of attorney's fees, investigation fees, service fees, or other charges if the award of the fees or charges is subject to judicial discretion;

(14)iirepresenting falsely the status or nature of the services rendered by the debt collector or the debt collector's business;

(15)iiusing a written communication that violates the United States postal laws and regulations;

(16)iiusing a communication that purports to be from an attorney or law firm if it is not;

Tuesday, May 27, 2003 SENATE JOURNAL 2505

(17)iirepresenting that a consumer debt is being collected by an attorney if it is not; or

(18)iirepresenting that a consumer debt is being collected by an independent, bona fide organization engaged in the business of collecting past due accounts when the debt is being collected by a subterfuge organization under the control and direction of the person who is owed the debt.

SECTIONi3.iiSubsection (d), Section 20.06, Business & Commerce Code, is amended to read as follows:

(d)iiIf disputed information is found to be inaccurate or cannot be verified after a reinvestigation under Subsection (a), the consumer reporting agency, unless otherwise directed by the consumer, shall promptly delete the information from the consumer's file, revise the consumer file, and provide the revised consumer report to the consumer and[, on the request of the consumer,] to each person who requested the consumer report within the preceding six months. The consumer reporting agency may not report the inaccurate or unverified information in subsequent reports.

SECTIONi4.iiThis Act takes effect September 1, 2003.

The amendment was read.

Senator Carona moved to concur in the House amendment to SBi533.

The motion prevailed by a viva voce vote.

CONCLUSION OF MORNING CALL

The Presiding Officer, Senator Armbrister in Chair, at 10:55 a.m. announced the conclusion of morning call.

HOUSE BILL 833 ON SECOND READING

On motion of Senator Janek and by unanimous consent, the regular order of business was suspended to take up for consideration HBi833 at this time on its second reading:

HB 833, Relating to certain pharmaceutical services for an injured employee receiving workers' compensation medical benefits.

The bill was read second time.

Senator Janek offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 833, in SECTION 2 of the bill, after Subsection (b) of that section, by inserting the following:

(c)iiIn adopting rules under Section 408.028(e), Labor Code, as added by this Act, the Texas Workers' Compensation Commission shall make any changes to the commission's rules under 28 T.A.C. Section 134.800 that are necessary to assist pharmacies in complying with the change in law made by this Act.

The floor amendment was read and was adopted without objection.

2506 78th Legislature — Regular Session 79th Day

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 2

Amend HB 833 by adding the following appropriately numbered SECTION and renumbering the SECTIONS of the bill accordingly:

SECTIONi____.iiSection 413.011, Labor Code, is amended by adding Subsection (b-1) to read as follows:

(b-1)iiIn establishing fee guidelines, the commission shall use conversion factors that are equal to at least the following amounts:

(1)iisurgery, 69.00;

(2)iiradiology, 63.00;

(3)iipathology, 80.00;

(4)iianesthesia, 40.00;

(5)iigeneral medicine, 47.00;

(6)iiphysical medicine, 47.00; and

(7)iievaluation and management, 47.00.

The floor amendment was read and failed of adoption by the following vote:iiYeasi14, Naysi14.

Yeas:iiBarrientos, Carona, Deuell, Ellis, Gallegos, Harris, Janek, Lucio, Madla, Shapleigh, Wentworth, West, Whitmire, Zaffirini.

Nays:iiArmbrister, Averitt, Brimer, Duncan, Estes, Fraser, Jackson, Lindsay, Nelson, Ratliff, Shapiro, Staples, VanideiPutte, Williams.

Absent:iiBivins, Hinojosa, Ogden.

Senator VanideiPutte offered the following amendment to the bill:

Floor Amendment No. 3

Amend HB 833 by adding the following appropriately numbered SECTION and renumbering the SECTIONS of the bill appropriately:

SECTIONi____.ii(a) The Texas Workers' Compensation Commission shall consider a rulemaking petition based on a study funded by collaborative efforts of workers' compensation insurance carriers and pharmacy providers. The study must be designed to determine pharmacy fees paid by other payors and administrative costs and expenses incurred by pharmacy providers to process claims and payments for prescription drugs provided to individuals under the Texas workers' compensation system relative to the costs and expenses incurred in providing the drugs to self-paying individuals or individuals for whom payment is made under insurance coverage other than workers' compensation insurance.

(b)iiThe Texas Workers' Compensation Commission shall adopt, not later than six months after the date a rulemaking petition is submitted to the commission, rules that clearly define the methodology for determining payment amounts for prescription drugs under Subtitle A, Title 5, Labor Code. The rules described by this section must take into account pharmacy fees paid by other payors and the costs and expenses that workers' compensation insurance carriers and pharmacies incur in providing prescription drugs to individuals under that subtitle and must ensure the presence of a reliable network of pharmacy providers for injured workers in this state.

Tuesday, May 27, 2003 SENATE JOURNAL 2507

(c)iiThe Texas Workers' Compensation Commission shall pursue efforts to streamline the procedures for presenting, processing, and paying claims for prescription drugs under Subtitle A, Title 5, Labor Code, through the development of a system that is more efficient than the system in place on the effective date of this Act.

(d)iiThe Texas Workers' Compensation Commission shall implement the requirements of this section in a budget-neutral manner and consider the findings of studies or other research funded by collaborative efforts of workers' compensation insurance carriers and pharmacy providers. If the studies are not funded by workers' compensation insurance carriers and pharmacy providers and this section cannot be implemented in a budget-neutral manner, this section may not be implemented.

(e)iiThis section expires December 31, 2004.

The floor amendment was read and was adopted without objection.

On motion of Senator Janek and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 833 as amended was passed to third reading without objection.

HOUSE BILL 833 ON THIRD READING

Senator Janek moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi833 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

SENATE RESOLUTION 953

Senator Harris offered the following resolution:

SR 953, In memory of Charles P. Schulze, Jr., of Irving.

The resolution was again read.

Senator Harris was recognized and introduced to the Senate Fran Bonilla, former Irving City Councilmember; Shelah-Bell Andrews, member of the Centennial Steering Committee; Herb Gears, Irving City Councilmember; and Secretary of State Gwyn Shea.

The Senate welcomed its guests and extended its sympathy.

The resolution was previously adopted on Friday, May 23, 2003.

In honor of the memory of Charles P. Schulze, Jr., of Irving, the text of SRi953 is printed at the end of today's Senate Journal.

2508 78th Legislature — Regular Session 79th Day

COMMITTEEiiSUBSTITUTE

HOUSE JOINT RESOLUTION 16 ON SECOND READING

On motion of Senator Nelson and by unanimous consent, the regular order of business was suspended to take up for consideration CSHJRi16 at this time on its second reading:

CSHJR 16, Proposing a constitutional amendment to authorize a county, a city or town, or a junior college district to establish an ad valorem tax freeze on residence homesteads of the disabled and of the elderly and their spouses.

The resolution was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE

HOUSE JOINT RESOLUTION 16 ON THIRD READING

Senator Nelson moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHJRi16 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The resolution was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 28 ON SECOND READING

On motion of Senator Whitmire and by unanimous consent, the regular order of business was suspended to take up for consideration HBi28 at this time on its second reading:

HB 28, Relating to rehabilitation programs for defendants housed in state jail felony facilities.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 28 ON THIRD READING

Senator Whitmire moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi28 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

Tuesday, May 27, 2003 SENATE JOURNAL 2509

COMMITTEEiiSUBSTITUTE
HOUSE BILL 111 ON SECOND READING

On motion of Senator Zaffirini and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi111 at this time on its second reading:

CSHB 111, Relating to responsibility for payment for transport by ambulance of a recipient of medical assistance in certain circumstances.

The bill was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 111 ON THIRD READING

Senator Zaffirini moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi111 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi29, Naysi2.

Yeas:iiArmbrister, Averitt, Barrientos, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Zaffirini.

Nays:iiJanek, Williams.

The bill was read third time and was passed by the following vote:iiYeasi29, Naysi2.ii(Same as previous roll call)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 867 ON SECOND READING

On motion of Senator Deuell and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi867 at this time on its second reading:

CSHB 867, Relating to minimum standards applicable to certain facilities.

The bill was read second time.

Senator Deuell offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 867 by striking Article 2 of the bill (page 1, line 56 through page 2, line 15, Senate committee printing) and renumbering the subsequent article accordingly.

The floor amendment was read and was adopted without objection.

On motion of Senator Deuell and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 867 as amended was passed to third reading by a viva voce vote.

2510 78th Legislature — Regular Session 79th Day

COMMITTEEiiSUBSTITUTE
HOUSE BILL 867 ON THIRD READING

Senator Deuell moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi867 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 27, 2003

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 264, Designating the Texas Music Museum the official music museum of the State of Texas.

SCR 57, Extending sincere condolences to the bereaved family of Stanley Allen Wiley.

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1218 ON SECOND READING

On motion of Senator Nelson and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1218 at this time on its second reading:

CSHB 1218, Relating to the continuation and functions of the Texas State Board of Public Accountancy; providing penalties.

The bill was read second time and was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2511

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1218 ON THIRD READING

Senator Nelson moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1218 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2261 ON SECOND READING

On motion of Senator Bivins and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2261 at this time on its second reading:

CSHB 2261, Relating to the Eighth, Ninth, and Eleventh courts of appeals districts.

The bill was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2261 ON THIRD READING

Senator Bivins moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2261 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

RECORD OF VOTE

Senator Fraser asked to be recorded as voting "Nay" on the final passage of CSHBi2261.

HOUSE JOINT RESOLUTION 21 ON SECOND READING

On motion of Senator VanideiPutte and by unanimous consent, the regular order of business was suspended to take up for consideration HJRi21 at this time on its second reading:

HJR 21, Proposing a constitutional amendment to prohibit an increase in the total amount of school district ad valorem taxes that may be imposed on the residence homestead of a disabled person.

The resolution was read second time.

Senator VanideiPutte offered the following amendment to the resolution:

Floor Amendment No. 1

Amend HJR 21 in SECTION 3 of the joint resolution (Senate committee printing, page 1, line 53), by striking "November 4" and inserting "September 13."

The floor amendment was read and was adopted by a viva voce vote.

2512 78th Legislature — Regular Session 79th Day

RECORD OF VOTE

Senator Wentworth asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 1.

On motion of Senator VanideiPutte and by unanimous consent, the caption was amended to conform to the body of the resolution as amended.

HJR 21 as amended was passed to third reading by a viva voce vote.

HOUSE JOINT RESOLUTION 21 ON THIRD READING

Senator VanideiPutte moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HJRi21 be placed on its third reading and final passage.

The motion prevailed by the following vote: iiYeasi31, Naysi0.

The resolution was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 217 ON SECOND READING

On motion of Senator VanideiPutte and by unanimous consent, the regular order of business was suspended to take up for consideration HBi217 at this time on its second reading:

HB 217, Relating to limiting the amount of school district ad valorem taxes that may be imposed on the residence homestead of a disabled person.

The bill was read second time.

Senator VanideiPutte offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 217 as follows:

(1)iiIn SECTION 2 of the bill, in added Subsection (m), Section 11.26, Tax Code (committee printing, on page 2, line 48), strike "an individual" and substitute "a disabled individual".

(2)iiIn SECTION 2 of the bill, in added Subsection (m), Section 11.26, Tax Code (committee printing, on page 2, line 49), strike "the individual" and substitute "the disabled individual".

(3)iiAdd the following appropriately numbered SECTIONS to the bill:

SECTIONi____.iiSection 11.42(c), Tax Code, is amended to read as follows:

(c)iiAn exemption authorized by Section 11.13(c) or (d) [for an individual 65 years of age or older] is effective as of January 1 of the tax year in which the person qualifies for the exemption and applies to the entire tax year.

SECTIONi____.iiSection 11.43(k), Tax Code, is amended to read as follows:

(k)iiA person who qualifies for an [the] exemption authorized by Section 11.13(c) or (d) [for an individual 65 years of age or older] must apply for the exemption no later than the first anniversary of the date the person qualified for the exemption.

SECTIONi____.iiSection 26.10(b), Tax Code, is amended to read as follows:

Tuesday, May 27, 2003 SENATE JOURNAL 2513

(b)iiIf the appraisal roll shows that a residence homestead exemption for an individual 65 years of age or older or a residence homestead exemption for a disabled individual applicable to a property on January 1 of a year terminated during the year and if the owner qualifies a different property for one of those [a] residence homestead exemptions [exemption] during the same year, the tax due against the former residence homestead is calculated by:

(1)iisubtracting:

(A)iithe amount of the taxes that otherwise would be imposed on the former residence homestead for the entire year had the individual qualified for the residence homestead exemption for the entire year; from

(B)iithe amount of the taxes that otherwise would be imposed on the former residence homestead for the entire year had the individual not qualified for the residence homestead exemption during the year;

(2)iimultiplying the remainder determined under Subdivision (1) by a fraction, the denominator of which is 365 and the numerator of which is the number of days that elapsed after the date the exemption terminated; and

(3)iiadding the product determined under Subdivision (2) and the amount described by Subdivision (1)(A).

SECTIONi____.iiSection 26.112, Tax Code, is amended to read as follows:

Sec.i26.112.iiCALCULATION OF TAXES ON RESIDENCE HOMESTEAD OF ELDERLY OR DISABLED PERSON.ii(a)iiExcept as provided by Section 26.10(b), if at any time during a tax year property is owned by an individual who qualifies for an exemption under Section 11.13(c) or (d) [for an individual 65 years of age or older], the amount of the tax due on the property for the tax year is calculated as if the person qualified for the exemption on January 1 and continued to qualify for the exemption for the remainder of the tax year.

(b)iiIf a person qualifies for an exemption under Section 11.13(c) or (d) [for an individual 65 years of age or older] with respect to the property after the amount of the tax due on the property is calculated and the effect of the qualification is to reduce the amount of the tax due on the property, the assessor for each taxing unit shall recalculate the amount of the tax due on the property and correct the tax roll. If the tax bill has been mailed and the tax on the property has not been paid, the assessor shall mail a corrected tax bill to the person in whose name the property is listed on the tax roll or to the person's authorized agent. If the tax on the property has been paid, the tax collector for the taxing unit shall refund to the person who paid the tax the amount by which the payment exceeded the tax due.

(4)iiStrike SECTION 4 of the bill (committee printing page 3, line 64 through page 4, line 2) and substitute the following appropriately numbered SECTION:

SECTION ____. (a) Except as provided by Subsection (b) of this section, this Act takes effect January 1, 2004, and applies only to an ad valorem tax year that begins on or after that date.

(b)iiThe changes in law to Section 11.26, Tax Code, and to Section 403.302, Government Code, made by this Act take effect only if the constitutional amendment proposed by the 78th Legislature, Regular Session, 2003, to prohibit an increase in the total amount of school district ad valorem taxes that may be imposed on the residence

2514 78th Legislature — Regular Session 79th Day

(5)iiRenumber the existing SECTIONS of the bill accordingly.

The floor amendment was read and was adopted without objection.

On motion of Senator VanideiPutte and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 217 as amended was passed to third reading by a viva voce vote.

HOUSE BILL 217 ON THIRD READING

Senator VanideiPutte moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi217 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2458 ON SECOND READING

On motion of Senator Bivins and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2458 at this time on its second reading:

CSHB 2458, Relating to the collection of the motor fuel taxes; providing penalties.

The bill was read second time.

Senator Bivins offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2458 (Senate committee printing) as follows:

(1)iiIn Section 162.125(c)(1), Tax Code, as added by SECTION 1 of the bill (page 26, line 22), strike "provided that a refund" and substitute "provided that a credit or refund".

(2)iiIn Section 162.125(c)(5), Tax Code, as added by SECTION 1 of the bill (page 26, line 38), strike "provided that a refund" and substitute "provided that a credit or refund".

(3)iiIn Section 162.227(c)(1), Tax Code, as added by SECTION 1 of the bill (page 43, line 38), strike "provided that a refund" and substitute "provided that a credit or refund".

(4)iiIn Section 162.227(i), Tax Code, as added by SECTION 1 of the bill (page 44, line 13), strike "provided that a refund" and substitute "provided that a credit or refund".

The floor amendment was read and was adopted without objection.

Tuesday, May 27, 2003 SENATE JOURNAL 2515

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2458 in SUBCHAPTER F, Sec. 162.501, Tax Code (page 54, line 54-55, committee printing) by inserting a new subsection (c) to read as follows:

(c) In October of each even-numbered year, the comptroller, will report to the legislature on the use of the special fund in the administration and enforcement of this chapter. The report shall be reviewed by the State Auditor and the Legislative Budget Board. The report shall include:

1)iithe total amount expended from the special fund for administration and enforcement of motor fuels taxes;

2)i any other uses of the special fund;

3)iithe amount of the unexpended portion reverted to other funds as provided by this chapter;

4)iithe methods used by the comptroller to enforce this chapter, including number of internal auditors, external auditors, and other full time employees, and;

5)iirecommendations for improving and enhancing the collection of motor fuels taxes in this state.

The floor amendment was read and was adopted without objection.

On motion of Senator Bivins and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2458 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2458 ON THIRD READING

Senator Bivins moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2458 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

MOTION TO PLACE
COMMITTEEiiSUBSTITUTE
HOUSE BILL 1204 ON SECOND READING

Senator Wentworth moved to suspend the regular order of business to take up for consideration CSHBi1204 at this time on its second reading:

CSHB 1204, Relating to the authority of municipalities and counties to regulate subdivisions and certain development in a municipality's extraterritorial jurisdiction.

2516 78th Legislature — Regular Session 79th Day

The motion was lost by the following vote:iiYeasi10, Naysi19.

Yeas:iiArmbrister, Averitt, Barrientos, Brimer, Carona, Madla, Shapleigh, VanideiPutte, Wentworth, Zaffirini.

Nays:iiBivins, Deuell, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Nelson, Ogden, Shapiro, Staples, West, Whitmire, Williams.

Absent:iiDuncan, Ratliff.

HOUSE BILL 3208 ON SECOND READING

On motion of Senator Averitt and by unanimous consent, the regular order of business was suspended to take up for consideration HBi3208 at this time on its second reading:

HB 3208, Relating to the temporary provision of lump-sum payments to certain retiring members of the Employees Retirement System of Texas.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 3208 ON THIRD READING

Senator Averitt moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi3208 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 1125 ON SECOND READING

On motion of Senator Staples and by unanimous consent, the regular order of business was suspended to take up for consideration HBi1125 at this time on its second reading:

HB 1125, Relating to the period for the redemption of a mineral interest sold for unpaid ad valorem taxes at a tax sale.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 1125 ON THIRD READING

Senator Staples moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi1125 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2517

HOUSE BILL 1296 ON THIRD READING

The Presiding Officer, Senator Armbrister in Chair, laid before the Senate HBi1296 on its third reading. The Constitutional Three-day Rule had been suspended and further consideration postponed:

HBi1296, Relating to small business development programs of navigation districts and port authorities.

Question — Shall HBi1296 be read third time?

HBi1296 was read third time.

Senator Lucio offered the following amendment to the bill:

Floor Amendment No. 1 on Third Reading

Amend HBi1296 by inserting the following new SECTIONS to read as follows and renumbering the subsequent SECTIONS accordingly:

SECTIONi____.iiThe heading to Chapter 55, Transportation Code, is amended to read as follows:

CHAPTER 55.iiFUNDING OF PORT SECURITY, PROJECTS,
AND STUDIES [TEXAS PORT TRANSPORTATION AND
ECONOMIC DEVELOPMENT FUNDING]

SECTIONi____.iiSection 55.001, Transportation Code, is amended to read as follows:

Sec.i55.001.iiDEFINITIONS.iiIn this chapter:

(1)ii"Commission" means the Texas Transportation Commission.

(2) "Committee" means the [Texas] Port Authority [Transportation and Economic Development] Advisory Committee.

(3) [(2)] "Department" means the Texas Department of Transportation [Economic Development].

(4) [(3)] "Fund" means the port access account fund.

(5) [(4)] "Port security, transportation, or facility project" means a project that is necessary or convenient for the proper operation of a port and that will improve the security, movement, and intermodal transportation of cargo or passengers in commerce and trade.

SECTIONi____.iiSection 55.002, Transportation Code, is amended to read as follows:

Sec.i55.002.ii[TEXAS] PORT [TRANSPORTATION AND ECONOMIC] DEVELOPMENT FUNDING. (a) From [Using only] money in the fund, the department shall fund:

(1)iiport security, transportation, or facility projects; and [or]

(2)iiport studies.

(b)iiThe department may not fund a port security, transportation, or facility project unless an amount at least equal to the amount provided by the department is invested in the [a] project by a port authority or navigation district.

(c)iiPort security, transportation, or facility projects eligible for funding under this chapter include:

(1)iiconstruction or improvement of transportation facilities within the jurisdiction of a port;

2518 78th Legislature — Regular Session 79th Day

(2)iithe dredging or deepening of channels, turning basins, or harbors;

(3)iithe construction or improvement of wharves, docks, structures, jetties, piers, storage facilities, cruise terminals, or any facilities necessary or useful in connection with port transportation or economic development;

(4)iithe construction or improvement of facilities necessary or useful in providing port security;

(5) the acquisition of container cranes or other mechanized equipment used in the movement of cargo or passengers in international commerce;

(6) [(5)] the acquisition of land to be used for port purposes;

(7) [(6)] the acquisition, improvement, enlargement, or extension of existing port facilities; and

(8) [(7)] environmental protection projects that:

(A)iiare required as a condition of a state, federal, or local environmental permit or other form of [state] approval;

(B)iiare necessary for the acquisition of spoil disposal sites and improvements to existing and future spoil sites; or

(C)ii[that] result from the undertaking of eligible projects.

(d)iiThe department, in consultation with the committee, shall review the list of projects recommended by the committee to evaluate the economic benefit of each project. The commission [department], after receiving recommendations from [in consultation with] the committee and from the department, shall approve projects or studies for funding based on its review.

SECTIONi____.iiSection 55.004, Transportation Code, is amended to read as follows:

Sec.i55.004.iiAUDIT. The department may subject a project that receives money under this chapter to a final audit. [The department may adopt rules and perform other acts necessary or convenient to ensure that the final audits are conducted and that any deficiency or questioned costs noted by the audit are resolved.]

SECTIONi____.iiSection 55.006, Transportation Code, is amended to read as follows:

Sec.i55.006.ii[TEXAS] PORT AUTHORITY [TRANSPORTATION AND ECONOMIC DEVELOPMENT] ADVISORY COMMITTEE. (a) The committee [Texas Port Transportation and Economic Development Advisory Committee] consists of seven members appointed by the commission. The members shall be appointed as follows:

(1)iione member from the Port of Houston Authority [a member of the governing body of each of the ports that are members of the Texas Ports Association or their designees]; [and]

(2)iithree members who represent ports on the upper Texas coast; and [as a nonvoting member, the executive director or the designee of the department]

(3)iithree members who represent ports on the lower Texas coast.

(b)iiA committee member serves at the pleasure of the commission [The committee shall develop bylaws under which it operates. The bylaws must specify the procedure by which the presiding officer of the committee is elected. A majority of voting members constitutes a quorum sufficient to conduct meetings and business of

Tuesday, May 27, 2003 SENATE JOURNAL 2519

(c)ii[The committee shall meet at the call of its presiding officer, at the request of a majority of its membership, or at times prescribed in its bylaws.] The committee must meet at least semiannually.

(d)iiA member is not entitled to compensation for service on the committee but is entitled to reimbursement for reasonable expenses the member incurs in performing committee duties.

(e)iiSection [Sections] 2110.002 [and 2110.008], Government Code, does [do] not apply to the committee.

SECTIONi____.iiSection 55.007, Transportation Code, is amended to read as follows:

Sec.i55.007.iiDUTIES OF COMMITTEE. The committee shall:

(1)iiprepare a port mission plan;

(2)iireview each project eligible to be funded under this chapter and make recommendations for approval or disapproval to the department;

(3)iimaintain trade data information that will assist ports in this state and international trade;

(4)iiannually prepare a list of projects that have been recommended by the committee, including:

(A)iithe recommended funding level for each project; and

(B)iiif staged implementation of the project is appropriate, the funding requirements for each stage; and

(5)iiadvise the commission and the department on matters relating to port authorities and, [adopt rules for evaluating projects that may be funded under this chapter, providing criteria for the evaluation of the economic benefit of the project, measured by the potential for the proposed project to increase:

[(A) cargo flow;

[(B) cruise passenger movement;

[(C) international commerce;

[(D) port revenues; and

[(E) the number of jobs for the port's local community].

(6)iiadvise on promoting small business programs adopted by port commissions or authorities.

SECTIONi____.iiSection 55.008, Transportation Code, is amended to read as follows:

Sec.i55.008.iiCAPITAL PROGRAM. (a) The committee shall prepare a two-year port capital program defining the goals and objectives of the committee concerning the development of port facilities and an intermodal transportation system. The port capital program must include projects or studies submitted to the committee by any [each] port [that is a member of the committee] and recommendations for:

(1)iithe construction of transportation facilities connecting any port to another transportation mode; and

(2)iithe efficient, cost-effective development of transportation facilities or port facilities for the purpose of:

2520 78th Legislature — Regular Session 79th Day

(A)iienhancing international trade;

(B)iienhancing security;

(C)iipromoting cargo flow;

(D) [(C)]iiincreasing cruise passenger movements;

(E) [(D)]iiincreasing port revenues; and

(F) [(E)]iiproviding economic benefits to the state.

(b)iiThe committee shall update the port capital program annually and shall submit the capital program not later than February 1 of each year to:

(1)iithe governor;

(2)iithe lieutenant governor;

(3)iithe speaker of the house of representatives; and

(4)iithe commission [department].

SECTIONi____.iiChapter 55, Transportation Code, is amended by adding Section 55.009 to read as follows:

Sec.i55.009.iiRULES. The commission shall adopt rules to implement this chapter.

SECTIONi____.iiChapter 53, Transportation Code, is repealed.

The floor amendment was read and was adopted without objection.

On motion of Senator Lindsay and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 1296 as amended was finally passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 2081 ON SECOND READING

On motion of Senator Ratliff and by unanimous consent, the regular order of business was suspended to take up for consideration HBi2081 at this time on its second reading:

HB 2081, Relating to an exemption from The Texas Engineering Practice Act for certain public works.

The bill was read second time.

Senator Ratliff offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 2081 by adding a new SECTION 2 on page 1, line 23 to read as follows and renumbering subsequent sections:

"SECTION 2. In the event of a conflict between a provision of this Act and another Act passed by the 78th Legislature, Regular Session, 2003, that becomes law, this Act prevails and controls regardless of the relative dates of enactment."

The floor amendment was read and was adopted without objection.

On motion of Senator Ratliff and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 2081 as amended was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2521

HOUSE BILL 2081 ON THIRD READING

Senator Ratliff moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi2081 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 264 ON SECOND READING

On motion of Senator Hinojosa and by unanimous consent, the regular order of business was suspended to take up for consideration HBi264 at this time on its second reading:

HB 264, Relating to supplemental contributions to the optional retirement program by institutions of higher education.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 264 ON THIRD READING

Senator Hinojosa moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi264 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 826 ON SECOND READING

On motion of Senator Carona and by unanimous consent, the regular order of business was suspended to take up for consideration HBi826 at this time on its second reading:

HB 826, Relating to the disposition of certain unclaimed wage payments.

The bill was read second time.

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 826 (Senate committee printing) as follows:

(1)iiIn SECTION 1 of the bill, in proposed Section 61.103, Labor Code (page 1, line 47), strike "An" and substitute "(a) Except as provided by Subsection (b), an".

(2)iiIn SECTION 1 of the bill, in proposed Section 61.103, Labor Code (page 1, between lines 51 and 52), insert the following:

2522 78th Legislature — Regular Session 79th Day

(b)iiAn employer or former employer who holds an unclaimed wage payment of $100 or less that is presumed to be abandoned under this subchapter is not required to dispose of the unclaimed wage payment in the manner prescribed by Chapter 74, Property Code, until the payment has been abandoned for three years after the date from which the period applicable under Section 61.101 or 61.102 is measured.

(3)iiBetween SECTIONS 3 and 4 of the bill (page 2, between lines 6 and 7), insert the following appropriately numbered SECTION and renumber subsequent SECTIONS accordingly:

SECTIONi____.iiSection 74.301(a), Property Code, is amended to read as follows:

(a)iiExcept as provided by Subsection (c), each holder who on June 30 holds property that is presumed abandoned under Chapter 72, 73, or 75 of this code or Subchapter G, Chapter 61, Labor Code, shall deliver the property to the comptroller on or before the following November 1 accompanied by the report required to be filed under Section 74.101.

The floor amendment was read and was adopted without objection.

On motion of Senator Carona and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 826 as amended was passed to third reading by a viva voce vote.

HOUSE BILL 826 ON THIRD READING

Senator Carona moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi826 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

HOUSE BILL 2593 ON SECOND READING

On motion of Senator Estes and by unanimous consent, the regular order of business was suspended to take up for consideration HBi2593 at this time on its second reading:

HB 2593, Relating to winery permits.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 2593 ON THIRD READING

Senator Estes moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi2593 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time.

Tuesday, May 27, 2003 SENATE JOURNAL 2523

Senator Estes offered the following amendment to the bill:

Floor Amendment No. 1 on Third Reading

Amend HB 2593 as follows:

(1)iiIn Section 2 of the bill, in added Section 16.011, Alcoholic Beverage Code (Senate committee printing, page 1, line 38), strike "A winery permit may be issued for premises in a dry area. A holder of a permit under this section" and substitute "(a) Except as provided by Subsection (b), the holder of a winery permit whose premises is located in a dry area".

(2)iiIn Section 2 of the bill, in added Section 16.011(a), Alcoholic Beverage Code (Senate committee printing, page 1, line 41), between "wine" and the semicolon insert "and bottle, label, and package wine manufactured on the premises".

(3)iiIn Section 2 of the bill, at the end of added Section 16.011, Alcoholic Beverage Code (Senate committee printing, page 1, between lines 52 and 53), insert the following:

(b)iiThe holder of a winery permit whose premises is located in a dry area may engage in any activity authorized under Section 16.01 if, at any time when the holder held the license, the premises was located in a wet area.

(4)iiAdd the following appropriately numbered SECTIONS to the bill and renumber the subsequent SECTIONS of the bill as appropriate:

SECTION ____.iiChapter 16, Alcoholic Beverage Code, is amended by adding Section 16.09 to read as follows:

Sec. 16.09. LOCATION OF CERTAIN PREMISES. The commission or administrator may not suspend or cancel an original or renewal winery permit or refuse to renew a winery permit on the basis that the permitted premises is located in a dry area if the permit was issued:

(1)iibefore June 1, 2003; or

(2)iiwhen the area in which the premises is located was a wet area.

SECTION ____.iiChapter 18, Alcoholic Beverage Code, is amended by adding Section 18.04 to read as follows:

Sec. 18.04. LOCATION OF CERTAIN PREMISES. The commission or administrator may not suspend or cancel an original or renewal wine bottler's permit or refuse to renew a wine bottler's permit on the basis that the permitted premises is located in a dry area if:

(1)iithe original permit was issued before June 1, 2003; and

(2)i the permit holder also holds a winery permit.

SECTION ____.iiNot later than October 1, 2003, the Texas Alcoholic Beverage Commission shall reissue a wine bottler's permit to the holder of the wine bottler's permit that also holds a winery permit that was canceled before the effective date of this Act on the basis that the permitted premises was located in a dry area.

The floor amendment was read and was adopted without objection.

2524 78th Legislature — Regular Session 79th Day

Senator Estes offered the following amendment to the bill:

Floor Amendment No. 2 on Third Reading

Amend HB 2593 in Section 1 of the bill, in amended Section 16.01(a)(3), Alcoholic Beverage Code (Senate committee printing, page 1, lines 17-19), by striking "permit holders authorized to purchase and sell wine [holders of wholesaler's permits, winery permits, and wine bottler's permits]" and substituting "or buy wine from permit holders authorized to purchase and sell wine, including holders of wholesaler's permits, winery permits, and wine bottler's permits".

The floor amendment was read and was adopted without objection.

On motion of Senator Estes and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 2593 as amended was finally passed by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1931 ON SECOND READING

On motion of Senator Williams and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1931 at this time on its second reading:

CSHB 1931, Relating to pipeline safety emergency response plans and the requirements governing notification of pipeline construction and operation.

The bill was read second time.

Senator Hinojosa offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHBi1931 (Senate committee printing) as follows:

(1)iiIn Subsection (a) of Section 2 of the bill, in proposed Section 756.102, Health and Safety Code (page 2, line 45), between "APPLICABILITY." and "This", insert "(a)".

(2)iiIn Subsection (a) of Section 2 of the bill, between proposed Sections 756.102 and 756.103, Health and Safety Code (page 2, between lines 51 and 52), insert:

(b)iiThis subchapter does not apply to:

(1)iiconstruction done by a municipality on property owned by the municipality, unless the construction is for private commercial use; or

(2)iiconstruction or repair, replacement, or maintenance of construction on property owned by a navigation district or port authority created or operating under Section 52, Article III, or Section 59, Article XVI, Texas Constitution.

(3)iiAfter Subsection (b) of Section 2 of the bill (page 3, between lines 7 and 8), insert:

(c)iiSection 756.102(b), Health and Safety Code, as added by this section, does not affect litigation that is pending on the effective date of this section and does not affect the rights or obligations of a municipality, navigation district, or port authority otherwise provided by law.

The floor amendment was read and was adopted without objection.

Tuesday, May 27, 2003 SENATE JOURNAL 2525

On motion of Senator Williams and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 1931 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1931 ON THIRD READING

Senator Williams moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1931 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiBarrientos.

The bill was read third time and was passed by the following vote:iiYeasi30, Naysi1. (Same as previous roll call)

BILLS AND RESOLUTIONS SIGNED

The Presiding Officer, Senator Armbrister in Chair, announced the signing of the following enrolled bills and resolutions in the presence of the Senate after the captions had been read:

SBi196, SBi273, SBi370, SBi407, SBi501, SBi514, SBi521, SBi566, SBi608, SBi691, SBi745, SBi774, SBi854, SBi917, SBi919, SBi1070, SBi1072, SBi1136, SBi1147, SBi1251, SBi1317, SBi1429, SBi1445, SBi1457, SBi1526, SBi1527, SBi1572, SBi1606, SBi1647, SBi1663, SBi1669, SBi1694, SBi1884, SBi1892, SCRi21, HBi21, HBi529, HBi725, HBi864, HBi917, HBi1446, HBi1459, HBi1619, HBi1699, HBi1723, HBi2130, HBi2169, HBi2295, HBi2470, HBi3152, HBi3242, HCRi9, HJRi23, HJRi59.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1541 ON SECOND READING

On motion of Senator Lindsay and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1541 at this time on its second reading:

CSHB 1541, Relating to the general powers and authority of water districts.

The bill was read second time.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHBi1541 (Senate committee printing) as follows:

(1)iiIn SECTION 3 of the bill (page 1, lines 32 and 33), strike the introductory language and substitute: "Section 43.0751, Local Government Code, is amended by amending Subsections (d), (f), and (i) and adding Subsection (q) to read as follows:".

(2)iiIn SECTION 3 of the bill, in amended Subsection (f)(1), Section 43.0751, Local Government Code (page 1, line 61), strike ":".

(3)iiIn SECTION 3 of the bill, in amended Subsection (f)(1), Section 43.0751, Local Government Code (page 1, line 62), strike "(A)".

2526 78th Legislature — Regular Session 79th Day

(4)iiIn SECTION 3 of the bill, in amended Subsection (f)(1), Section 43.0751, Local Government Code (page 1, line 63), strike "and".

(5)iiIn SECTION 3 of the bill, in amended Subsection (f)(1), Section 43.0751, Local Government Code (page 2, lines 1-2), strike Subsection (f)(1)(B).

(6)iiIn SECTION 3 of the bill, in amended Subsection (f)(2)(B), Section 43.0751, Local Government Code (page 2, lines 10-19), strike lines 10 through 19 and substitute the following:

district if:

(i)iithe provision of services is specified and agreed to in [such amendments to the timing requirements of Sections 43.123(d)(2) and 43.127(b) as may be necessary or convenient to effectuate the purposes of] the agreement;

(ii)iithe provision of services is not solely the result of a regulatory plan adopted by the municipality in connection with the limited-purpose annexation of the district; and

(iii) the district has obtained the authorization of the governmental entity currently providing the service;

(7)iiIn SECTION 3 of the bill, following amended Subsection (i), Section 43.0751, Local Government Code (page 3, between lines 20 and 21), insert the following:

(q)iiSubchapter F does not apply to a limited-purpose annexation under a strategic partnership agreement.

(8)iiIn SECTION 57 of the bill (page 15, lines 50-54), strike Subsection (a) and substitute the following:

(a)iiExcept as provided by this section, a provision of a strategic partnership agreement entered into before December 31, 2003, that does not comply with Section 43.0751(f)(2), Local Government Code, as amended by this Act, is not enforceable after December 31, 2003, to the extent of the noncompliance.

(b)iiA permit issued before December 31, 2003, by a municipality with a population of 1.9 million or more remains valid until its expiration and shall be recognized by the county.

(c)iiA municipality with a population of 1.9 million or more may not enforce, under a strategic partnership agreement, a code provision that would otherwise require a building permit from the municipality after the effective date of this Act.

(d)iiThis section does not affect the validity or enforceability of a provision of a strategic partnership agreement that requires services or imposes fees if the services or fees relate to emergency services that were specifically requested by the board of a municipal utility district or if the services or fees have been approved by a state agency or a political subdivision that is not a party to the strategic partnership agreement.

(9)iiIn SECTION 57 of the bill (page 15, line 55), strike "(b)" and substitute "SECTION 58. (a)".

(10)iiIn SECTION 57 of the bill (page 15, line 60), strike "(c)" and substitute "(b)".

(11)iiIn SECTION 57 of the bill (page 15, line 65), strike "(d)" and substitute "(c)".

(12)iiRenumber subsequent SECTIONS accordingly.

Tuesday, May 27, 2003 SENATE JOURNAL 2527

The floor amendment was read and was adopted without objection.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHBi1541 (Senate committee printing) as follows:

(1)iiIn SECTION 57 of the bill (page 15, lines 60-64), strike Subsection (c).

(2)iiIn SECTION 57 of the bill (page 15, line 65), strike "(d)" and substitute "(c)".

The floor amendment was read and was adopted without objection.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHBi1541 (Senate committee printing) in SECTION 27 of the bill, at the end of proposed Section 54.2052, Water Code (page 9, line 28), by adding "If a municipal regulation conflicts with a district regulation, the municipal regulation prevails."

The floor amendment was read and was adopted without objection.

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 1541 by adding a new section to read as follows and renumbering the following sections as appropriate:

SECTION ____.iiSection 53.029, Water Code, is amended by adding Subsection 53.029(e), to read as follows:

(e)iiA district which has duly adopted the rights, authority, privileges and functions of a road district in the manner specified by Section 53.029(c), Water Code, as amended, may, following approval of a construction contract by the district's governing body, reimburse expenditures in the manner authorized by Sections 257.003(a) and (b), Transportation Code, without any additional approvals under Section 257.003, Transportation Code.

The floor amendment was read and was adopted without objection.

Senator Estes, on behalf of Senator Armbrister, offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 1541 by adding a new Section 56 as follows and renumber Sections accordingly:

SECTION 56.iiSection 36.002, Water Code, is amended to read as follows: Sec. 36.002. OWNERSHIP OF GROUNDWATER. The ownership and rights of the owners of the land and their lessees and assigns in groundwater are hereby recognized, and nothing in this code shall be construed as depriving or divesting the owners or their lessees and assigns of the ownership or rights, except as those rights may be limited or altered by rules promulgated by a district. A rule promulgated by a district may not discriminate against owners of land or their lessees and assigns whose land is enrolled or participating in the federal conservation reserve program.

2528 78th Legislature — Regular Session 79th Day

SECTION 57. Section 36.101(a), Water Code, is amended to read as follows: (a) A district may make and enforce rules, including rules limiting groundwater production based on tract size or the spacing of wells, to provide for conserving, preserving, protecting, and recharging of the groundwater or of a groundwater reservoir or its subdivisions in order to control subsidence, prevent degradation of water quality, or prevent waste of groundwater and to carry out the powers and duties provided by this chapter. During the rulemaking process the board shall consider all groundwater uses and needs and shall develop rules that [which] are fair and impartial and do not discriminate between land in production and land enrolled or participating in the federal conservation reserve program.

SECTION 58.iiSection 36.113, Water Code, is amended by adding Subsection (h) to read as follows: (h) In issuing a permit for an existing or historic use, a district may not discriminate against land or wells on land enrolled or participating in the federal conservation reserve program. If a district adopts rules related to the protection of existing or historic use, any land in a federal conservation reserve program shall be treated as having an existing and historic use.

To the existing SECTION 57, add (e) Except as provided by Subsection (c) of this section, the change in law made by this Act to Section 36.002, Section 36.101(a), and Section 36.113, Water Code, applies to all rules adopted by a groundwater conservation district before, on or after the effective date of this Act. (f)iiThe change in law made by this Act to Section 36.002, Section 36.101(a), and Section 36.113, Water Code, does not apply to rules adopted by the Edwards Aquifer Authority.

The floor amendment was read and was adopted without objection.

VOTE RECONSIDERED

On motion of Senator Lindsay and by unanimous consent, the vote by which Floor Amendment No.i5 was adopted was reconsidered.

Question — Shall Floor Amendment No. 5 to CSHB 1541 be adopted?

Floor Amendment No.i5 was again adopted by the following vote:iiYeasi19, Naysi8.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Estes, Fraser, Gallegos, Harris, Jackson, Janek, Lindsay, Lucio, Madla, Ogden, Ratliff, Shapiro, VanideiPutte, Zaffirini.

Nays:iiBarrientos, Deuell, Ellis, Nelson, Shapleigh, Wentworth, West, Williams.

Absent:iiDuncan, Hinojosa, Staples, Whitmire.

On motion of Senator Lindsay and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 1541 as amended was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2529

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1541 ON THIRD READING

Senator Lindsay moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1541 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 3139 ON SECOND READING

On motion of Senator Lucio and by unanimous consent, the regular order of business was suspended to take up for consideration HBi3139 at this time on its second reading:

HB 3139, Relating to delivery sales of cigarettes; providing penalties.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 3139 ON THIRD READING

Senator Lucio moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi3139 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

HOUSE BILL 1887 ON SECOND READING

On motion of Senator Ratliff and by unanimous consent, the regular order of business was suspended to take up for consideration HBi1887 at this time on its second reading:

HB 1887, Relating to funds received by institutions of higher education to cover overhead expenses of conducting research.

The bill was read second time.

Senator Ratliff offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 1887 by adding the following new SECTION 3 to the bill:

SECTIONi3.iiNotwithstanding Section 2 of this Act, this Act takes effect only if H.B. 3015 or similar legislation providing for deregulation of tuition charged by institutions of higher education to resident undergraduate students is enacted.

The floor amendment was read and was adopted by a viva voce vote.

RECORD OF VOTE

Senator Barrientos asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 1.

2530 78th Legislature — Regular Session 79th Day

On motion of Senator Ratliff and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 1887 as amended was passed to third reading by a viva voce vote.

HOUSE BILL 1887 ON THIRD READING

Senator Ratliff moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi1887 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiStaples.

The bill was read third time and was passed by the following vote:iiYeasi30, Naysi1.ii(Same as previous roll call)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1457 ON SECOND READING

On motion of Senator Janek and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1457 at this time on its second reading:

CSHB 1457, Relating to the applicability and enforcement of the law governing access to public beaches.

The bill was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1457 ON THIRD READING

Senator Janek moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1457 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE JOINT RESOLUTION 51 ON SECOND READING

On motion of Senator Staples and by unanimous consent, the regular order of business was suspended to take up for consideration HJRi51 at this time on its second reading:

HJR 51, Proposing a constitutional amendment to establish a two-year period for the redemption of a mineral interest sold for unpaid ad valorem taxes at a tax sale.

The resolution was read second time.

Senator Staples offered the following amendment to the resolution:

Floor Amendment No. 1

Amend HJR 51 (Senate committee printing) page 1, lines 51-56 by striking Section 3 and insert in its place the following:

Tuesday, May 27, 2003 SENATE JOURNAL 2531

SECTIONi3.iiThis proposed constitutional amendment shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "The constitutional amendment to establish a two-year period for the redemption of a mineral interest sold for unpaid ad valorem taxes at a tax sale."

The floor amendment was read and was adopted without objection.

On motion of Senator Staples and by unanimous consent, the caption was amended to conform to the body of the resolution as amended.

HJR 51 as amended was passed to third reading by a viva voce vote.

HOUSE JOINT RESOLUTION 51 ON THIRD READING

Senator Staples moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HJRi51 be placed on its third reading and final passage.

The motion prevailed by the following vote: Yeasi31, Naysi0.

The resolution was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 1499 ON SECOND READING

On motion of Senator Barrientos and by unanimous consent, the regular order of business was suspended to take up for consideration HBi1499 at this time on its second reading:

HB 1499, Relating to the view of the state capitol.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 1499 ON THIRD READING

Senator Barrientos moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi1499 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

(Senator Brimer in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2877 ON SECOND READING

Senator Armbrister moved to suspend the regular order of business to take up for consideration CSHBi2877 at this time on its second reading:

CSHB 2877, Relating to certain permitting procedures of the Texas Commission on Environmental Quality.

The motion prevailed by a viva voce vote.

2532 78th Legislature — Regular Session 79th Day

RECORD OF VOTES

Senators Barrientos and Shapleigh asked to be recorded as voting "Nay" on the suspension of the regular order of business.

The bill was read second time.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2877 by adding four appropriately numbered sections as follows, and renumbering all other sections accordingly:

AMENDMENT SECTION 1.iiSection 382.056(r), Health and Safety Code, is amended as follows:

(r)i This section does not apply to:

(1)iithe relocation or change of location of a portable facility to a site where a portable facility [permitted by the commission is located if no portable facility] has been located at the proposed site at any time during the previous two years; [or]

(2)iia facility located temporarily in the right-of-way, or contiguous to the right-of-way, of a public works project; or

(3)iia facility described by Section 382.065(c), unless that facility is in a county with a population of 2.4 million or more or in a county adjacent to such a county.

AMENDMENT SECTIONi2.iiSection 382.056, Health and Safety Code, as added by Chapter 965, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:

Section 382.065.iiCERTAIN LOCATIONS FOR OPERATING CONCRETE CRUSHING FACILITY PROHIBITED.ii(a) The commission by rule shall prohibit the [location of or] operation of a concrete crushing facility at a location within 440 yards of a building in use [used] as a single or multifamily residence, school, or place of worship at the time the application for a permit to operate the facility at a site near the residence, school, or place of worship is filed with the commission. The measurement of distance for purposes of this subsection shall be taken from the point on the concrete crushing facility that is nearest to the residence, school, or place of worship toward the point on the residence, school, or place of worship that is nearest the concrete crushing facility.

(b)iiSubsection (a) [This section] does not apply to a [an existing] concrete crushing facility:

(1)iiat a location for which commission authorization for the operation of a concrete crushing facility was in effect on September 1, 2001; or

(2)iiat a location that satisfies the distance requirements of Subsection (a) at the time the application for the initial authorization for the operation of that facility at that location is filed with the commission, provided that the authorization is granted and maintained, regardless of whether a single or multifamily residence, school, or place of worship is subsequently built or put to use within 440 yards of the facility.

(c)iiExcept as provided by Subsection (d), Subsection (a) does not apply to a concrete crushing facility that:

Tuesday, May 27, 2003 SENATE JOURNAL 2533

(1)iiis engaged in crushing concrete and other materials produced by the demolition of a structure at the location of the structure and the concrete and other materials are being crushed primarily for use at that location;

(2)i operates at that location for not more than 180 days;

(3)i the commission determines will cause no adverse environmental or health effects by operating at that location; and

(4)iicomplies with conditions stated in commission rules, including operating conditions.

(d)iiNotwithstanding Subsection (c), Subsection (a) applies to a concrete crushing facility in a county with a population of 2.4 million or more or in a county adjacent to such a county.

AMENDMENT SECTION 3.iiThe Texas Commission on Environmental Quality shall adopt rules to implement Section 382.065, Health and Safety Code, as amended by this Act, as soon as practicable and not later than January 1, 2004.

AMENDMENT SECTION 4.iiA change in law made by this Act the effect of which is to restrict the location or operation of a concrete crushing facility does not apply to a facility for which an application for authorization to operate at a particular location is filed before the effective date of this Act.

The floor amendment was read and was adopted by a viva voce vote.

RECORD OF VOTE

Senator VanideiPutte asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 1.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2877 by adding a new SECTION 6 to read as follows and renumbering the following SECTIONS appropriately:

SECTION 6.iiSection 7.141, Water Code, is amended by adding Subdivision (2-a) to read as follows:

(2-a) "Dispose of" means to discharge, deposit, inject, dump, spill, leak, or place solid waste, hazardous waste, medical waste, used oil, low-level radioactive waste, or a lead-acid battery, whether containerized or uncontainerized, into or on land or water so that the solid waste, hazardous waste, medical waste, used oil, low-level radioactive waste, lead-acid battery, or any constituent thereof may be emitted into the air, discharged into surface water or groundwater, or introduced into the environment in any other manner. The term does not include passive migration, continuous release, seepage, or other movement that occurs:

(A)i after the substance is initially disposed of; and

(B)iiwithout human initiation or assistance.

The floor amendment was read and was adopted by a viva voce vote.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 3

Amend HB 2877 as follows:

(1)iiInsert a new SECTION of the bill to read as follows:

2534 78th Legislature — Regular Session 79th Day

SECTIONi____.iiSection 36.101, Water Code, is amended by adding Subsection (d) to read as follows:

(d)iiThe commission has principal and exclusive authority as to the control, regulation, or abatement of nonpoint source pollution of water or other regulation of water quality in terms of limiting a landowner's ability to develop or use that land in the jurisdiction of any water district or authority with management and regulatory authority over groundwater withdrawals.

(2)iiInsert a new SECTION of the bill to read as follows:

SECTIONi____.iiThis section supersedes any other provision of this Act to the extent of any conflict. Section 36.101(d), Water Code, as added by this Act, supersedes any other applicable law or action taken under that law to the extent of any conflict. Any rule or order of an applicable district or authority purporting to regulate water quality as described by the change in law made by this Act to Section 36.101, Water Code, may not be enforced regardless of whether the adoption date of the rule or order is before, on, or after the effective date of this Act.

The floor amendment was read and was adopted by a viva voce vote.

RECORD OF VOTES

Senators Shapleigh, VanideiPutte, and Wentworth asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 3.

Senator Lucio offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 2877 by adding a new Subsection (g) to Section 36.015, Water Code, to read as follows:

(g)iiNotwithstanding other law and any other applicable provisions of this chapter, the commission shall certify a petition filed under Section 36.013 and give notice and conduct a public meeting on the petition if the filings under Section 36.013(b) and (c) show that the district is comprised of 400,000 or more coterminous acres owned by a single landowner. Chapter 49, Water Code, does not apply to a district created under this subsection, except that Section 49.223, Water Code, shall apply to the district.

The floor amendment was read and was adopted by a viva voce vote.

Senator Shapleigh offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 2877 in SECTION 3 of the bill, in amended Section 7.0025, Water Code, by striking amended Subsections (b) and (c) (Senate committee printing page 2, lines 6-35) and substituting the following:

(b)iiThe commission may initiate an enforcement action on a matter under its jurisdiction under this code or the Health and Safety Code based on any credible evidence, including information the commission [it] receives from a private individual if that information, by itself or in combination with the commission's evidence, in the commission's judgment, is of sufficient value and credibility to warrant the initiation of an enforcement action.

Tuesday, May 27, 2003 SENATE JOURNAL 2535

(c)i[(b)]iiThe executive director or the executive director's designated representative may evaluate the value and credibility of information received from a private individual and the merits of any proposed enforcement action based on that information. In evaluating information under this subsection, the executive director or the executive director's designated representative shall consider the following criteria:

(1)iiwhether the individual providing the information is willing to:

(A)iisubmit a sworn affidavit attesting to the facts that constitute the alleged violation and authenticating any writings, recordings, or photographs provided by the individual; and

(B)iitestify in any enforcement proceedings regarding the alleged violation;

(2)iiwhether any physical or sampling data submitted by an individual to prove one or more elements of an enforcement case was collected or gathered in accordance with relevant commission protocols; and

(3)iiwhether the individual submitting the physical or sampling data is willing to submit a sworn affidavit that the relevant commission protocols were followed when collecting the data.

The floor amendment was read and failed of adoption by the following vote:iiYeasi14, Naysi16.

Yeas:iiArmbrister, Barrientos, Ellis, Gallegos, Hinojosa, Lindsay, Lucio, Ratliff, Shapleigh, VanideiPutte, Wentworth, West, Whitmire, Zaffirini.

Nays:iiAveritt, Bivins, Brimer, Carona, Deuell, Duncan, Estes, Fraser, Harris, Jackson, Janek, Nelson, Ogden, Shapiro, Staples, Williams.

Absent:iiMadla.

Senator Jackson offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHB 2877 as follows:

(1)iiStrike existing Section 361.122, Health and Safety Code, and replace it with the following language by adding a new SECTION and renumbering the subsequent sections accordingly:

SECTIONi____.i Section 361.122, Health and Safety Code, is amended to read as follows:

Sec. 361.122.i DENIAL OF CERTAIN LANDFILL PERMITS.ii(a) The commission may not issue a permit for a Type IV landfill if:

(1)iithe proposed site is located within 100 feet of a canal that is used as a public drinking water source or for irrigation of crops used for human or animal consumption;

(2)iithe proposed site is located in a county with a population of more than 225,000 that is located adjacent to the Gulf of Mexico; and

(3)iiprior to final consideration of the application by the commission, the commissioners of the county in which the facility is located have adopted a resolution recommending denial of the application.

2536 78th Legislature — Regular Session 79th Day

(b)iiIn addition to the restriction on the location of a Type IV landfill under Subsection (a), the commission may not issue a permit for a Type IV landfill if, on or before January 13, 2003, the proposed facility was determined by the applicable regional planning commission created under Chapter 391, Local Government Code, to be incompatible with a regional solid waste management plan adopted under Section 363.062 of this code.

The floor amendment was read.

POINT OF ORDER

Senator Wentworth raised a point of order that Floor Amendment No. 6 was in violation of House Rule 9.01.

On motion of Senator Wentworth, the point of order was withdrawn.

Question recurring on the adoption of Floor Amendment No.i6, the amendment was adopted by a viva voce vote.

RECORD OF VOTES

Senators Lindsay, Shapiro, and Wentworth asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 6.

Senator Madla offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHB 2877 as follows:

(1)iiOn page 1, line 22, strike "and (h)"

(2)iiOn page 1, line 57-61, strike subsection (h).

The floor amendment was read and was adopted by a viva voce vote.

Senator Williams offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHB 2877 by inserting a new appropriately numbered SECTION and renumbering subsequent sections accordingly.

SECTIONi____.iiTEXAS COMMISSION ON ENVIRONMENTAL QUALITY; EXPEDITED LETTER FEE.iiSection 5.701 Texas Water Code is amended by adding subsection (r) to read as follows:

r)iiThe fee for processing a request for an expedited letter from the executive director stating the total depth of surface casing needed during the drilling of wells to protect usable ground waters in the state and required for the processing of certain permits from the Railroad Commission of Texas is not to exceed $75.

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Armbrister and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2877 as amended was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2537

RECORD OF VOTES

Senators Barrientos, Shapleigh, and Zaffirini asked to be recorded as voting "Nay" on the passage of CSHBi2877 to third reading.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2877 ON THIRD READING

Senator Armbrister moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2877 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi28, Naysi3.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams.

Nays:iiBarrientos, Shapleigh, Zaffirini.

The bill was read third time and was passed by a viva voce vote.

RECORD OF VOTES

Senators Barrientos, Shapleigh, and Zaffirini asked to be recorded as voting "Nay" on the final passage of CSHB 2877.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1839 ON SECOND READING

On motion of Senator Armbrister and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1839 at this time on its second reading:

CSHB 1839, Relating to property in the custody of a pawnbroker; providing criminal penalties.

The bill was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1839 ON THIRD READING

Senator Armbrister moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1839 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

2538 78th Legislature — Regular Session 79th Day

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2004 ON SECOND READING

On motion of Senator VanideiPutte and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2004 at this time on its second reading:

CSHB 2004, Relating to allowing a commissioners court to deliberate in a closed meeting regarding business and financial considerations of a contract being negotiated.

The bill was read second time.

Senator Jackson offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2004 (committee printing) as follows:

1.iiOn page 1, line 10, by inserting "with a population of 400,000 or more" between "county" and "may"; and

2.iiOn page 1, line 22, by adding new subsection (3) as follows:

(3)iiNotwithstanding Government Code Section 551.103(a), the commissioners court must make a tape recording of the proceedings of a closed meeting to deliberate the information.

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator VanideiPutte and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2004 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2004 ON THIRD READING

Senator VanideiPutte moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2004 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE JOINT RESOLUTION 85 ON SECOND READING

On motion of Senator Estes and by unanimous consent, the regular order of business was suspended to take up for consideration HJRi85 at this time on its second reading:

HJR 85, Proposing a constitutional amendment to allow wineries in this state to manufacture, sell, and dispense certain wine.

The resolution was read second time.

Tuesday, May 27, 2003 SENATE JOURNAL 2539

Senator Estes offered the following amendment to the resolution:

Floor Amendment No. 1

Amend HJR 85 (Senate committee printing) by striking all below the resolving clause and substituting the following:

SECTION 1. Article XVI, Texas Constitution, is amended by adding Section 20a to read as follows:

Sec. 20a.ii(a)i Notwithstanding any other provision of this article, a winery licensed or permitted to operate in this state by the Texas Alcoholic Beverage Commission or its successor may continue to operate in this state regardless of whether the winery is located in an area in which the possession or sale of intoxicating liquors is restricted or prohibited if:

(1)iithe winery was licensed or permitted on January 1, 2004; or

(2)iithe winery was licensed or permitted immediately before the possession or sale of intoxicating liquors became restricted or prohibited in the area in which winery is located.

(b)i The Texas Alcoholic Beverage Commission or its successor may not suspend or cancel a winery's original or renewal license or permit or refuse to renew a winery's license or permit on the basis that the winery is located in a dry area.

(c)iiA winery located in an area in which the sale of wine has not been authorized by an election under Article XVI, Section 20(b), of this constitution, may only sell or dispense wine if the wine is manufactured in this state and at least 75 percent of its volume is derived from fermented juice of grapes or other fruit grown in this state.

SECTIONi2.iiThis proposed constitutional amendment shall be submitted to the voters at an election to be held September 13, 2003. The ballot shall be printed to permit voting for or against the proposition: "A constitutional amendment to allow wineries to continue to operate in an area of this state where the sale of wine has not been authorized and to sell Texas wine on the wineries' premises."

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Estes and by unanimous consent, the caption was amended to conform to the body of the resolution as amended.

HJR 85 as amended was passed to third reading by a viva voce vote.

HOUSE JOINT RESOLUTION 85 ON THIRD READING

Senator Estes moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HJRi85 be placed on its third reading and final passage.

The motion prevailed by the following vote: iiYeasi31, Naysi0.

The resolution was read third time and was passed by the following vote:iiYeasi31, Naysi0.

2540 78th Legislature — Regular Session 79th Day

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2044 ON SECOND READING

On motion of Senator Staples and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2044 at this time on its second reading:

CSHB 2044, Relating to the powers and duties of the General Land Office and the accounting and disposition of state-owned real property.

The bill was read second time.

Senator Ratliff offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2044 by inserting the following appropriately numbered SECTION into the bill and renumbering existing SECTIONS of the bill accordingly:

SECTION ____.ii(a) On or before Januaryi1, 2004, the School Land Board shall approve a patent to release all of the state's interest in the land described by Subsection (b) of this section, excluding mineral rights, to a person holding the land under a contract for deed with the Veterans' Land Board on Januaryi1, 1964, or an heir or assign of that person, in exchange for consideration in an amount determined by the School Land Board in consultation with the Veterans' Land Board.

(b)iiThis section applies to the tract of land described as follows:

that 35.686 acre tract in that certain Judgement under cause No. 75-49, The Veterans Land Board of the State of Texas vs. Alice Christian, in the 4th Judicial District Court of Rusk County, Texas and in that certain judgement in Cause No. 55, 765, State vs. Humble Oil, et al in the 98th District Court of Travis County, Texas; Said 117.436 acre tract is also further described in that Contract of Sale to said GRANTEE(s) dated Octoberi14, 1963, recorded in Volume 782, Page 46, Deed Records of said County, Texas.

(c)iiThe School Land Board, in determining the appropriate price for the sale of land described by this section, shall consider the title dispute and the history of the prior transactions.

(d)iiThis section expires Januaryi1, 2006.

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Staples and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2044 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2044 ON THIRD READING

Senator Staples moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2044 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

Tuesday, May 27, 2003 SENATE JOURNAL 2541

VOTE RECONSIDERED ON

HOUSE BILL 3374

On motion of Senator Lucio and by unanimous consent, the vote by which HBi3374 was finally passed on the Local and Uncontested Calendar today was reconsidered:

HB 3374, Relating to the creation, administration, powers, duties, operation, and financing of the Kenedy County Groundwater Conservation District.

Question — Shall HB 3374 be finally passed?

Senator Lucio offered the following amendment to the bill:

Floor Amendment No. 1 on Third Reading

Amend HB 3374 (Senate committee printing) as follows:

(1)iiStrike SECTION 4 of the bill and substitute the following:

SECTION 4.iiBOUNDARIES. The boundaries of the district are coextensive with Kenedy County, Texas and also include the following separate tracts:

(a)iiA tract of land known as the Laureles Ranch containing 255,026.53 acres, more or less, in Kleberg and Nueces Counties, Texas, being more particularly described in an oil, gas, and mineral lease from the Executors and Trustees under the will of Mrs. Henrietta M. King, deceased, to Humble Oil & Refining Company dated September 26, 1933, recorded in Volume 20, page 1-13, of the Oil and Gas Lease Records of Nueces County, Texas, and Volume 37, pages 183-189, of the Deed Records of Kleberg County, Texas, said tract having been described as Item First in said lease to which reference is here made for a complete description thereof;

(b)iiA tract of land known as the Santa Gertrudis Ranch containing 203,468.13 acres, more or less, in Kleberg, Jim Wells, and Brooks Counties, Texas, and composed of two parcels as follows:

(1)iiA parcel of land containing 173,028.90 acres, more or less, in Kleberg, Jim Wells, and Brooks Counties, being more particularly described in an oil, gas, and mineral lease from the Executors and Trustees under the will of Mrs. Henrietta M. King, deceased, to Humble Oil & Refining Company dated September 26, 1933, recorded in Volume 20, pages 1-13, of the Oil and Gas Lease Records of Nueces County, Texas, and Volume 37, pages 183-189, of the Deed Records of Kleberg County, Texas, said tract having been described as Item Second in said lease to which reference is here made for a complete description thereof; and

(2)iiA parcel of land containing 30,439.23 acres, more or less, in Kleberg and Jim Wells Counties, Texas, being more particularly described in an oil, gas, and mineral lease from Alice G.iK. Kleberg to Humble Oil & Refining Company dated September 26, 1933, recorded in Volume 37, page 200-206, of the Deed Records of Kleberg County, Texas, and in Volume 50, page 166-172, of the Deed Records of Jim Wells County, Texas, to which reference is here made for a complete description thereof; and

2542 78th Legislature — Regular Session 79th Day

(c)iiALL of Farm Lots Twelve (12) and Thirteen (13), in Block or Section Number Nine (9), of the Kleberg Town and Improvement Company's Subdivision in Kleberg County, Texas or 74.62 acres more or less, AND BEING the same property conveyed to John B. Armstrong and Henrietta L. Armstrong, Trustees by Deed executed by Bessie Y. Larkin, et al, dated Junei10, 1964, and filed for recorded in the Office of the County Clerk of Kleberg County, Texas, Volume 183, Pages 524-527; and

(d)iiLot 3 of Survey 283, A-124, of C.B. & C.N.G.R.R. Co. according to Mrs.iH.iM. King Second Subdivision of Rivera Farm Lands, containing 77.89 acres of land, more or less, and being the same tract of land that was conveyed to King Ranch by J.iF. McCullar by deed dated Novemberi2, 1943, recorded in Vol. 61, page 90 of the Deed Records of Kleberg County, Texas.

(e)iiThe tract of land described in Subsection (a) of this section does not include the 1999.96 acre tract of land described in Volume 1386, Pages 193-205, Nueces County Deed Records.

(f)iiThe legislature finds that the boundaries and field notes of the district form a closure.

(2)iiOn page 2, line 1 (committee printing) strike "entire district" and substitute "Santa Gertrudis Independent School District".

(3)iiOn page 2, line 1 (committee printing) strike "county" and substitute "Kenedy County".

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Lucio and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 3374 as amended was again finally passed by a viva voce vote.

SENATE RULE 5.14(a) SUSPENDED
(Intent Calendar)

On motion of Senator Whitmire and by unanimous consent, Senate Rule 5.14(a) was suspended in order to allow bills to be placed on the Intent Calendar one day before they are eligible to be heard.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3330 ON SECOND READING

Senator Estes moved to suspend the regular order of business to take up for consideration CSHBi3330 at this time on its second reading:

CSHB 3330, Relating to regulation of certain information logo signs along certain major highways.

The motion prevailed by a viva voce vote.

The bill was read second time and was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2543

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3330 ON THIRD READING

Senator Estes moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi3330 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

(President in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 730 ON SECOND READING

Senator Fraser moved to suspend the regular order of business to take up for consideration CSHBi730 at this time on its second reading:

CSHB 730, Relating to residential construction, including certain warranties, building and performance standards, and dispute resolution; providing an administrative penalty.

The motion prevailed by a viva voce vote.

The bill was read second time.

Senator Fraser offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 730 (Senate committee printing) as follows:

(1)iiIn Section 1.01 of the bill, in added Section 401.003(a)(2), Property Code (page 2, lines 18-19), strike "including the roof of an existing home" and substitute "other than an improvement solely to replace or repair a roof of an existing home".

(2)iiIn Section 1.01 of the bill, in added Section 401.003(a)(3), Property Code (page 2, line 21), strike "$10,000" and substitute "$20,000".

(3)iiIn Section 1.01 of the bill, in added Section 406.001, Property Code (page 3, lines 21-22), strike Subsection (a)(4) and substitute the following:

(4)iione member must be either a licensed architect who practices in the area of residential construction or a building inspector who meets the requirements set forth in Chapter 427 and practices in the area of residential construction.

(4)iiIn Section 1.01 of the bill, strike added Section 408.001, Property Code (page 5, lines 51-63), and substitute a new Section 408.001, Property Code, to read as follows:

Sec. 408.001. RULES. The commission shall adopt rules as necessary for the implementation of this title, including rules:

(1)iigoverning the state-sponsored inspection and dispute resolution process, including building and performance standards, administrative regulations, and the conduct of hearings under Subtitle D;

(2)iiestablishing limited statutory warranty and building and performance standards for residential construction;

(3)iiapproving third-party warranty companies; and

(4)iiapproving third-party inspectors.

2544 78th Legislature — Regular Session 79th Day

(5)iiIn Section 1.01 of the bill, in added Section 416.007, Property Code (page 7, between lines 55 and 56), insert the following new Subsection (c) at the appropriate place to read as follows:

(c)iiThe commission shall issue one certificate of registration for each business entity registered under this Chapter.

(6)iiIn Section 1.01 of the bill, in added Section 416.010, Property Code (page 8, line 27), strike "OFFICE LOCATION; CHANGE OF ADDRESS" and substitute "OFFICE LOCATION; CHANGE OF ADDRESS; ASSUMED NAMES".

(7)iiIn Section 1.01 of the bill, in added Section 416.010, Property Code (page 8, between lines 38 and 39), insert the following new Subsection (c) at the appropriate place and renumber the subsequent subsection and any cross-references appropriately:

(c)iiIf a builder operates under any name other than the name that is set forth on the builder's certificate of registration, the builder shall, within 45 days of operating under this other name, disclose this other name to the commission.

(8)iiIn Section 1.01 of the bill, in added Section 428.003, Property Code (page 13, lines 33-36) strike Subsection (a) in its entirety and replace with a new Subsection (a) as follows:

"(a)iiOn or before the 15th day after the date the commission receives a request, the commission shall appoint the next available third-party inspector from the applicable lists of third-party inspectors maintained by the commission under subsection (c)."

(9)iiIn Section 1.01 of the bill, in added Section 428.003, Property Code (page 13, between lines 40-41) add a new Subsection (c) to read as follows:

"(c)iiThe commission shall adopt rules that allow for the commission to maintain a list of available third-party inspectors for the various regions of the state, as required to satisfy the provisions of this Act."

(10)iiIn Section 1.01 of the bill, in added Section 430.002, Property Code (page 15, line 52), strike "including" and substitute "that may include".

(11)iiIn Section 1.01 of the bill, in added Section 430.009(b), Property Code (page 17, line 5), between "27.004" and "." strike "(g)".

The floor amendment was read and was adopted by a viva voce vote.

Senator Fraser offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 730 (Senate committee printing) as follows:

(1)iiIn Section 1.01 of the bill, in added Section 401.002, Property Code (page 2, between lines 12 and 13), insert the following subdivision at the appropriate place and renumber other subdivisions appropriately:

(16)ii"Warranty of habitability" means a builder's obligation to construct a home or home improvement that is in compliance with the limited statutory warranties and building and performance standards adopted by the commission under Section 430.001, and that is safe, sanitary, and fit for humans to inhabit.

(2)iiIn Section 1.01 of the bill, in added Chapter 430, Property Code (page 15, between lines 42 and 43), insert the following section at the appropriate place and renumber other sections and any cross-references appropriately:

Tuesday, May 27, 2003 SENATE JOURNAL 2545

Sec. 430.002. WARRANTY OF HABITABILITY. (a) The construction of each new home or home improvement shall include the warranty of habitability.

(b)iiFor a construction defect to be actionable as a breach of the warranty of habitability, the defect must have a direct adverse effect on the habitable areas of the home and must not have been discoverable by a reasonable prudent inspection or examination of the home or home improvement within the applicable warranty periods adopted by the commission under Section 430.001.

(3)iiIn Section 1.01 of the bill, in added Section 430.005, Property Code (page 16, line 12), strike "adopted under this chapter" and substitute "adopted under this chapter or the warranty of habitability".

(4)iiIn Section 1.01 of the bill, in added Section 430.007, Property Code (page 16, lines 35-40), strike Subsection (b) and substitute the following:

(b)iiA limitation of liability under this section is not effective unless the company providing the warranty:

(1)iiagrees to perform the builder's warranty obligations under this chapter that are covered by the warranty provided through the third-party warranty company; and

(2)iiactually pays for or corrects any construction defect covered by the warranty provided through the third-party warranty company.

(5)iiIn Section 1.01 of the bill, in added Section 430.008, Property Code (page 16, lines 59 and 60), strike "commission, but it may not reduce the limited statutory warranty and building and performance standards" and substitute "commission. A third-party warranty company may not reduce the limited statutory warranty and building and performance standards, except that a third-party warranty company shall not be required to provide a warranty of habitability".

The floor amendment was read and was adopted by a viva voce vote.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHBi730 (Senate committee printing) as follows:

(1)iiIn SECTION 1.01 of the bill, in added Subtitle C, Title 16, Property Code, insert the following chapter (page 8, between lines 59 and 60):

CHAPTER 417.iiCERTIFICATION OF RESIDENTIAL

CONSTRUCTION ARBITRATORS

Sec.i417.001.iiCERTIFICATION. (a) The commission by rule shall establish eligibility requirements and procedures for a person to be certified by the commission as a residential construction arbitrator.

(b)iiThe requirements established under this section must, at a minimum, require a certified arbitrator to:

(1)iihave at least five years' experience in conducting arbitrations between homeowners and builders involving construction defects;

(2)iibe familiar with the statutory warranties and building and performance standards established under Chapter 430 and with the provisions of Chapter 27; and

(3)iimeet continuing education requirements established by the commission.

2546 78th Legislature — Regular Session 79th Day

(c)iiNothing in the chapter prohibits an arbitrator who does not hold a certificate under this chapter from conducting an arbitration involving a residential construction defect.

Sec.i417.002.iiAPPLICATION FOR CERTIFICATION. An applicant for certification under this chapter or for renewal of that certification must submit an application on a form prescribed by the commission and include the fee required by Section 417.003.

Sec.i417.003.iiFEES. The commission shall charge and collect:

(1)iia filing fee for an application for certification under this chapter that does not exceed $100; and

(2)iia fee for renewal of a certification under this chapter that does not exceed $50.

Sec.i417.004.iiPUBLICATION AND COMMENT PERIOD; CERTIFICATION. (a) The commission shall publish notice of each applicant's original application for certification under this chapter in the Texas Register and allow public comment on the application during the 21 days after the date the notice is published. During that period, any person may contest the application in writing submitted to the commission.

(b)iiIf the commission finds that certification of the applicant is in the public interest, the commission shall certify the applicant under this chapter.

Sec.i417.005.iiDENIAL OF CERTIFICATION. The commission shall establish procedures under which a denial of a certification under this chapter may be contested by the applicant.

Sec.i417.006.iiEXPIRATION OF CERTIFICATION. The commission may issue or renew a certification under this chapter for a period that does not exceed 24 months.

Sec.i417.007.iiLIST OF CERTIFIED ARBITRATORS. The commission shall maintain an updated list of residential construction arbitrators certified under this chapter and make the list available to the public.

(2)iiIn SECTION 1.01 of the bill, in added Section 417.001(1), Property Code (page 8, lines 63 and 64), strike "certificate of registration" and substitute "registration or certification under this subtitle".

(3)iiIn SECTION 1.01 of the bill, in added Section 417.002, Property Code, strike "certificate of registration" wherever it appears and substitute "registration or certification" (page 9, lines 21-23).

(4)iiIn SECTION 1.01 of the bill, in added Section 417.002, Property Code, strike "certificate holder" and substitute "registered or certified person" (page 9, lines 24 and 25).

(5)iiIn SECTION 1.01 of the bill, in added Chapter 418, Property Code, strike "certificate holder" wherever it appears and substitute "registered or certified person" (page 9, line 46, and page 10, lines 1 and 2).

(6)iiIn ARTICLE 1 of the bill, insert the following appropriately numbered SECTION:

Tuesday, May 27, 2003 SENATE JOURNAL 2547

SECTION ____. On or before March 1, 2004, the Texas Residential Construction Commission shall begin certifying arbitrators under Chapter 417, Property Code, as added by this article.

(7)iiRenumber and reletter appropriately.

The floor amendment was read and was adopted by a viva voce vote.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 730 (Senate committee printing) as follows:

(1)iiIn SECTION 1.01, following added Subtitle D, Title 16, Property Code (page 17, between lines 8 and 9), insert:

SUBTITLE E.iiRESIDENTIAL CONSTRUCTION ARBITRATION
CHAPTER 436.iiGENERAL PROVISIONS

Sec. 436.001. DEFINITIONS. In this subtitle:

(1)ii"Arbitration" means the procedure for dispute resolution described by Section 154.027, Civil Practice and Remedies Code.

(2)ii"Arbitration services provider" means a person that holds itself out as:

(A)iimanaging, coordinating, or administering arbitrations;

(B)iiproviding the services of arbitrators;

(C)iimaking referrals or appointments to arbitrators; or

(D)iiproviding lists of arbitrators.

(3)ii"Arbitrator" means a neutral individual who hears the claims of the parties to a dispute and renders a decision and who is:

(A)iichosen by the parties to the dispute;

(B)iiappointed by a court; or

(C)iiselected by an arbitration services provider under an agreement of the parties or applicable rules.

Sec. 436.002. APPLICABILITY.ii(a) This subtitle applies only to an arbitration of a dispute between a homeowner and a builder that involves an alleged construction defect.

(b)iiThe requirements of this subtitle supplement Chapter 171, Civil Practice and Remedies Code, and the Federal Arbitration Act (9 U.S.C. Sections 1-16), as amended.

Sec. 436.003. VENUE. (a) An arbitration of a dispute involving a construction defect shall be conducted in the county in which the home alleged to contain the defect is located.

(b)iiThe requirements of this section may not be waived by contract.

Sec. 436.004. RESIDENTIAL CONSTRUCTION ARBITRATION TASK FORCE. (a) The commission shall appoint a task force to study residential arbitrators and arbitration and advise the commission with respect to residential arbitrators and arbitration.

(b)iiThe task force established under this section shall report to the 79th and 80th legislatures on the task force's recommendations and the effect of the implementation of those recommendations and of the provisions relating to arbitrators and arbitration in this subtitle. This subsection expires Septemberi1, 2007.

CHAPTER 437.iiREPORTING REQUIREMENTS

Sec. 437.001. AWARD FILING.ii(a) If an arbitration award is filed in a court of competent jurisdiction in this state, the filer shall also, not later than the 30th day after the date an award is made in a residential construction arbitration, the arbitrator who

2548 78th Legislature — Regular Session 79th Day

(1)iithe names of the parties to the dispute;

(2)iithe name of each party's attorney, if any;

(3)iithe name of the arbitrator who conducted the arbitration;

(4)iithe name of the arbitration services provider who administered the arbitration, if any;

(5)iithe fee charged to conduct the arbitration;

(6)iia general statement of each issue in dispute;

(7)iithe arbitrator's determination, including the party that prevailed in each issue in dispute and the amount of any monetary award; and

(8)iithe date of the arbitrator's award.

(b)iiThe commission shall establish rules to permit the voluntary filing of the information listed in subsection (a) by any interested party. Any agreement prohibiting the disclosure of the information listed in subsection (a) is unenforceable.

Sec. 437.002. ENFORCEMENT.ii(a) The commission by rule shall establish a fee not to exceed $100 for the late filing of an arbitration award and procedures for the collection of that fee.

(b)iiA party to an arbitration, or an attorney for a party, may report an overdue filing of an arbitration award to the commission.

CHAPTER 438.iiENFORCEABILITY OF RESIDENTIAL

CONSTRUCTION ARBITRATION AWARDS

Sec. 438.001. GROUNDS FOR VACATING AWARD. In addition to grounds for vacating an arbitration award under Section 171.088, Civil Practice and Remedies Code, on application of a party, a court shall vacate an award in a residential construction arbitration upon a showing of manifest disregard for Texas law.

(2)iiIn ARTICLE 1 of the bill, following SECTION 1.05 (page 17, between lines 41 and 42), insert the following new SECTION, numbered appropriately:

SECTION 1.____.ii(a) Section 436.003, Property Code, as added by this article, governs the venue of an arbitration initiated on or after the effective date of this Act under a residential construction contract entered into before, on, or after the effective date of this Act, unless otherwise provided by a contract entered into before the effective date of this Act.

(b)iiChapter 437, Property Code, as added by this article, applies only to an arbitration initiated on or after Januaryi1, 2004. An arbitration initiated before that date 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.

(c)iiChapter 438, Property Code, as added by this article, applies only to an arbitration initiated on or after the effective date of this Act. An arbitration initiated before that date is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

The floor amendment was read and was adopted by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2549

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 730 in ARTICLE 1, SECTION 1.01, added Section 426.008(a), Property Code (Senate committee printing) as follows:

(1)iiOn page 11, line 52, between "presumption" and "." insert the following:

"of the existence or non-existence of a construction defect or the reasonable manner of repair of the construction defect".

(2)iiOn page 11, line 53, strike "clear and convincing" and substitute "a preponderance of the".

The floor amendment was read and was adopted by a viva voce vote.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHB 730 (Senate committee printing) as follows:

(1)iiIn Section 1.01 of the bill, in newly-added Section 426.005, Property Code (page 11, lines 14-19), strike Subsection (b) and substitute the following:

"(b)iiAn action described by Subsection (a) must be filed:

(1)iion or before the expiration of any applicable statute of limitations or by the 45th day after the date the third-party inspector issues the inspector's recommendation, whichever is later; or

(2)iiif the recommendation is appealed, on or before the expiration of any applicable statute of limitations or by the 45th day after the date the commission issues its ruling on the appeal, whichever is later."

(2)iiIn Section 1.01 of the bill, in newly-added Section 428.001(h), Property Code (page 13, line 13), strike "in an action" and substitute "in any action".

(3)iiIn Section 1.01 of the bill, in newly-added Section 430.004, Property Code (page 16, lines 7-8), strike the sentence that reads "A court may not discern or declare any other implied warranty."

(4)iiIn Section 1.01 of the bill, in newly-added Section 430.007, Property Code (page 16, lines 31-34), strike new Subsection (a) and substitute the following:

(a)iiA builder may elect to provide a warranty through a third-party warranty company approved by the commission.

(5)iiIn Section 1.01 of the bill, in newly-added Section 430.007(b), Property Code (page 16, line 35), strike "limitation" and substitute "transfer".

(6)iiIn Section 1.01 of the bill, in newly-added Section 430.009, Property Code (page 16, lines 62-65), strike the sentence that reads "This subtitle provides the sole rights and obligations between a homeowner and a builder unless additional rights and obligations are provided in and express, written contract between the homeowner and the builder."

(7)iiIn Section 1.01 of the bill, in newly-added Section 430.009, Property Code (page 17, line 3), strike "subsection" and substitute "subtitle".

(8)iiIn Section 1.01 of the bill, in newly-added Section 430.009, Property Code (page 17, lines 6-8), strike Subsection (c) and substitute a new Subsection (c) as follows:

2550 78th Legislature — Regular Session 79th Day

(c)iiBreach of a limited statutory warranty adopted by the commission or breach of the statutory warranty of habitability shall not, by itself, constitute a violation of the Deceptive Trade Practice-Consumer Protection Act (Subchapter E, Chapter 17, Business and Commerce Code).

The floor amendment was read and was adopted by a viva voce vote.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHB 730 (Senate committee printing) as follows:

(1)iiIn Section 2.04 of the bill, page 21, strike lines 10 through 17, and insert the following:

(f)iiIf a contractor fails to make a reasonable offer under Subsection (b), the limitations on damages provided for in Subsection (e) shall not apply.

(2)iiIn Section 2.04 of the bill, page 22, line 32, before "SECTION 2.05" insert the following new subsection:

(q)iiIf a contractor refuses to initiate repairs under an accepted offer made under this section, the limitations on damages provided for in this section shall not apply.

(3)iiIn Section 2.05 of the bill, in newly-added Section 27.0042, Property Code (page 22, line 44) strike lines 44 through 46 and insert the following:

(b)iiA contractor may not elect to purchase the residence under Subsection (a) if:

(1)iithe residence is more than five years old at the time an action is initiated; or

(2)iithe contractor makes such an election later than the 15th day after the date of a final, unappealable determination of a dispute under Subtitle D., Title 16, if applicable.

The floor amendment was read and was adopted by a viva voce vote.

Senator VanideiPutte offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHB 730 (Senate committee printing) in SECTION 1.01 of the bill as follows:

(1)iiIn the heading of added Section 426.004, Property Code, strike "APPLICATION AND INSPECTION" (page 10, line 61).

(2)iiIn added Section 426.004, Property Code, strike Subsections (a) and (b) (page 10, line 61, through page 11, line 3), and substitute the following:

(a)iiA party who submits a request under this subtitle shall pay any amount required by the commission to cover the expense of the third-party inspector.

(b)iiThe commission shall adopt rules permitting a waiver or reduction of the inspection expenses for homeowners demonstrating a financial inability to pay the expenses.

(3)iiIn added Section 426.004(c), Property Code, strike "application fee and" (page 11, line 9).

The floor amendment was read and was adopted by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2551

Senator Lucio offered the following amendment to the bill:

Floor Amendment No. 9

Amend CSHB 730 in SECTION 1.01 of the bill, in added Chapter 430, Property Code, by inserting the following section (page 15, between lines 68 and 69) and renumbering sections and cross-references appropriately:

Sec. 430.004. ALTERNATIVE STANDARDS FOR CERTAIN CONSTRUCTION. For the purpose of this title, the only statutory warranty and building and performance standards that apply to residential construction in unincorporated areas of counties that are considered economically distressed areas as defined by Section 15.001(11) of the Water Code and located within 50 miles of an international border are the standards established for colonia housing programs administered by the Texas Department of Housing and Community Affairs, unless a county commissioners court has adopted other building and performance standards authorized by statute.

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Fraser and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 730 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 730 ON THIRD READING

Senator Fraser moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi730 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

AT EASE

Senator Armbrister at 2:45ip.m. moved that the Senate stand At Ease subject to the call of the Chair.

The motion prevailed without objection.

IN LEGISLATIVE SESSION

The President at 3:13ip.m. called the Senate to order as In Legislative Session.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1131 ON SECOND READING

On motion of Senator Carona and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi1131 at this time on its second reading:

CSHB 1131, Relating to insurer interests in certain motor vehicle repair facilities; providing a civil penalty.

The bill was read second time.

2552 78th Legislature — Regular Session 79th Day

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 1131, Senate committee printing, as follows:

(1)iiIn SECTION 1 of the bill, in added Section 2306.004(c), Occupations Code (page 2, lines 16-18), strike "offering the repair facility a reasonable opportunity to cure the alleged failure to meet the requirements of the favored facility agreement" and substitute "explaining the reason for the cancellation of the agreement".

(2)iiIn SECTION 1 of the bill, in added Section 2306.004(d), Occupations Code (page 2, line 23), strike "is guilty of fraudulent conduct in its dealings with the insurer" and substitute "is fraudulent in its dealings with the insurer or the policyholder or other beneficiaries under the insurer's policy".

(3)iiIn SECTION 1 of the bill, in added Section 2306.006(6), Occupations Code (page 2, line 55), between "logo" and the semicolon, insert "in a manner different than that allowed for any other favored facility".

(4)iiIn SECTION 1 of the bill, in added Section 2306.006, Occupations Code (page 2, line 69 through page 3, line 4), strike Subdivision (10) and substitute the following:

"(10)iirequire a policyholder or beneficiary to use a claims center located on the premises of a tied repair facility;".

The floor amendment was read and was adopted without objection.

On motion of Senator Carona and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 1131 as amended was passed to third reading without objection.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 1131 ON THIRD READING

Senator Carona moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi1131 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

HOUSE BILL 3569 ON SECOND READING

On motion of Senator Ratliff and by unanimous consent, the regular order of business was suspended to take up for consideration HBi3569 at this time on its second reading:

HB 3569, Relating to the creation, administration, powers, duties, operation, and financing of the Rusk County Groundwater Conservation District.

The bill was read second time and was passed to third reading without objection.

Tuesday, May 27, 2003 SENATE JOURNAL 2553

HOUSE BILL 3569 ON THIRD READING

Senator Ratliff moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi3569 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

HOUSE BILL 622 ON SECOND READING

Senator Deuell moved to suspend the regular order of business to take up for consideration HBi622 at this time on its second reading:

HB 622, Relating to business leave time accounts for police officer employee organizations in certain municipalities.

The motion prevailed by a viva voce vote.

RECORD OF VOTE

Senator Shapiro asked to be recorded as voting "Nay" on the suspension of the regular order of business.

The bill was read second time and was passed to third reading by a viva voce vote.

RECORD OF VOTE

Senator Shapiro asked to be recorded as voting "Nay" on the passage of HB 622 to third reading.

HOUSE BILL 622 ON THIRD READING

Senator Deuell moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi622 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiShapiro.

The bill was read third time and was passed by the following vote:iiYeasi30, Naysi1.ii(Same as previous roll call)

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 27, 2003

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:

2554 78th Legislature — Regular Session 79th Day

THE HOUSE HAS PASSED THE FOLLOWING MEASURES:

HCR 271, Honoring Second Lieutenant Cory Steele of The Woodlands for his service in Iraq.

THE HOUSE HAS ADOPTED THE FOLLOWING CONFERENCE COMMITTEE REPORTS:

SB 880 (non-record vote)

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

(Senator Fraser in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 7 ON SECOND READING

Senator Bivins moved to suspend the regular order of business to take up for consideration CSHBi7 at this time on its second reading:

CSHB 7, Relating to making supplemental appropriations and making reductions in current appropriations.

The motion prevailed by the following vote:iiYeasi29, Naysi2.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Gallegos.

The bill was read second time.

Senator Wentworth offered the following amendment to the bill:

Floor Amendment No. 1

CSHB 7 is amended in Section 16(d) of the bill by striking subsection (14) relating to the Fair Defense Account of the Office of Court Administration and renumbering all following subsections appropriately.

The floor amendment was read and failed of adoption by the following vote:iiYeasi11, Naysi20.

Yeas:iiBarrientos, Ellis, Estes, Gallegos, Lindsay, Lucio, Madla, Shapleigh, VanideiPutte, Wentworth, West.

Nays:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Fraser, Harris, Hinojosa, Jackson, Janek, Nelson, Ogden, Ratliff, Shapiro, Staples, Whitmire, Williams, Zaffirini.

CSHB 7 was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2555

COMMITTEEiiSUBSTITUTE
HOUSE BILL 7 ON THIRD READING

Senator Bivins moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi7 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi29, Naysi2.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Gallegos.

The bill was read third time and was passed by the following vote:iiYeasi29, Naysi2.ii(Same as previous roll call)

SENATE RULE 2.02 SUSPENDED

(Restrictions on Admission)

On motion of Senator Bivins and by unanimous consent, Senate Rule 2.02 was suspended to grant floor privileges to his staff members during the deliberation of CSHBi3459.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3459 ON SECOND READING

Senator Bivins moved to suspend the regular order of business to take up for consideration CSHBi3459 at this time on its second reading:

CSHB 3459, Relating to fiscal matters involving certain governmental educational entities, including public school finance, program compliance monitoring by the Texas Education Agency, amounts withheld from compensatory education allotments, the public school technology allotment, the composition of and accounting for the permanent school fund and the available school fund, health insurance coverage provided by certain educational entities, and the uses of the telecommunications infrastructure fund.

The motion prevailed by a viva voce vote.

RECORD OF VOTES

Senators Barrientos and Gallegos asked to be recorded as voting "Nay" on the suspension of the regular order of business.

The bill was read second time.

Senator Bivins offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 3459 by adding three appropriately numbered sections as follows, and renumbering all other sections accordingly:

AMENDMENT SECTION 1.iiSection 44.031(a), Education Code, is amended to read as follows:

2556 78th Legislature — Regular Session 79th Day

(a)iiExcept as provided by this subchapter, all school district contracts, except contracts for the purchase of produce or vehicle fuel, valued at $25,000 or more in the aggregate for each 12-month period shall be made by the method, of the following methods, that provides the best value for the district:

(1)iicompetitive bidding;

(2)iicompetitive sealed proposals;

(3)iia request for proposals, for services other than construction services;

(4)iia catalogue purchase as provided by Subchapter B, Chapter 2157, Government Code;

(5)iian interlocal contract;

(6)iia design/build contract;

(7)iia contract to construct, rehabilitate, alter, or repair facilities that involves using a construction manager;

(8)iia job order contract for the minor construction, repair, rehabilitation, or alteration of a facility; [or]

(9)iithe reverse auction procedure as defined by Section 2155.062(d), Government Code; or

(10)iithe formation of a political subdivision corporation under Section 304.001, Local Government Code.

AMENDMENT SECTIONi2.iiSection 304.001(a), Local Government Code, is amended to read as follows:

(a)iiIn this chapter, "political subdivision" means a county, municipality, school district, hospital district, or any other political subdivision receiving electric service from an entity that has implemented customer choice, as defined in Section 31.002, Utilities Code.

AMENDMENT SECTION 3.iiThis 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, 2003.

The floor amendment was read and was adopted by a viva voce vote.

Senator Bivins offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 3459 (Senate committee report) as follows:

(1)iiOn page 1, line 42, after the word "Subchapter" strike the letter "A".

(2)iiOn page 8, line 4, strike "39.051(a)" and add "39.031(a)".

(3)iiOn page 10, line 50, insert a new SECTION 27.

(4)iiSECTION 27.iiSection 45.201, Education Code, is amended by amending Subsection (4) to read as follows:

(4)ii"Approved securities" means:

(A)iibonds of this state or any agency or political subdivision of this state;

(B)iiall evidences of indebtedness legally issued by the board of trustees of the depositing school district;

(C)iiall debt securities that are a direct obligation of the treasury of the United States;

Tuesday, May 27, 2003 SENATE JOURNAL 2557

(D)iiother obligations, including all debt securities, except reducing principal balance securities, the principal and interest of which are unconditionally guaranteed or insured by, or backed in the event of default by the full faith and credit of, this state or the United States or their respective agencies and instrumentalities; and

(E)iithose securities provided for by Article 842, Revised Statutes, and Section 1, Chapter 160, General Laws, Acts of the 43rd Legislature, 1933 (Article 842a, Vernon's Texas Civil Statutes).

(5)iiDelete SECTION 30 on page 11, line 48 through page 12, line 9.

(6)iiOn page 12, line 21, insert a new SECTION 32.

SECTIONi32.iiSection 2257.022, Government Code, is amended to read as follows:

Sec.i2257.022.iiAMOUNT OF COLLATERAL.ii(a) Except as provided by Subsection (b), the The total value of eligible security to secure a deposit of public funds must be in an amount not less than the amount of the deposit of public funds:

(1)iiincreased by the amount of any accrued interest; and

(2)iireduced to the extent that the United States or an instrumentality of the United States insures the deposit.

(b)iiThe total value of eligible security described by Section 45.201(4)(D), Education Code, to secure a deposit of public funds of a school district must be in an amount not less than 110 percent of the amount of the deposit. The total market value of the eligible security must be reported at least once each month to the school district.

(c)iiThe value of a surety bond is its face value.

(d) (c)iiThe value of an investment security is its market value.

(7)iiRenumber Accordingly.

The floor amendment was read and was adopted by a viva voce vote.

Senator Shapiro offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHB 3459 by adding the following SECTION in the appropriate place and renumber accordingly:

(1)ii"SECTIONi____.ii(a)iiThe comptroller of public accounts shall contract with a consultant for a comprehensive audit of regional education service centers in this state. The audit must include:

(1)iia detailed analysis of all services provided by regional education service centers that identifies, for each service provided:

(A)iithe percentage of school districts receiving the service;

(B)iithe costs to the regional education service centers of providing the service;

(C)iithe charges imposed on school districts by the regional education service centers for providing the service; and

(D)iithe difference between the amount determined under Paragraph (B) of this subdivision and the amount determined under Paragraph (C) of this subdivision;

2558 78th Legislature — Regular Session 79th Day

(2)iian evaluation of whether any services provided by a regional education service center could be provided at a lower cost by an alternative service provider, as determined based on a survey of potential alternative service providers;

(3)iian analysis of the governance structures of regional education service centers;

(4)iia review of the financial condition of regional education service centers and their current funding sources to determine the adequacy of state appropriations to regional education service centers and whether those appropriations should continue to be made;

(5)iia review of the number and geographic distribution of regional education service centers;

(6)iia review of the institutional structure of regional education service centers, with consideration of whether a separate system of Texas Education Agency field offices would be appropriate or whether any regional education service center functions should be transferred to Texas Education Agency facilities; and

(7)iian analysis of the support functions of regional education service centers to determine whether support requirements could be decreased through business processes or application redesigns.

(b)iiCosts of the audit required by Subsection (a) of this section shall be paid using amounts appropriated for the fiscal biennium ending August 31, 2005, to regional education service centers or to the Texas Education Agency for the costs of services provided by regional education service centers, not to exceed a total amount of $750,000.

(c)iiNot later than December 1, 2004, the comptroller of public accounts shall submit a report to the legislature concerning the results of the audit required by Subsection (a) of this section. The report must include recommendations for a regional education service center funding mechanism under which at least 80 percent of center funds are derived from fee-for-service contracts with school districts."

The floor amendment was read and was adopted by a viva voce vote.

Senator Shapiro offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 3459 by adding the following SECTIONS in the appropriate place and renumber accordingly:

"SECTIONi____.iiSubsection (a), Section 13.005, Education Code, is amended to read as follows:

(a)iiExcept as provided by this section or by a local consolidation agreement under Section 13.158, the annexation of all or part of the territory of one district to another is effective on the first July 1 that is more than 30 days after the date of the order or ordinance accomplishing the annexation or of the declaration of the results of an election at which the transfer is approved."

"SECTIONi____.i Section 13.152, Education Code, is amended to read as follows:

Sec. 13.152.iiRESOLUTION OR PETITION.iiConsolidation is initiated in each district proposed to be consolidated by either a resolution adopted by the board of trustees of the [each] district or a petition requesting an election on the question that is

Tuesday, May 27, 2003 SENATE JOURNAL 2559

"SECTIONi____.iiSection 13.153, Education Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:

(b)iiIf no local consolidation agreement is submitted under Section 13.158, the [The] ballot in the election shall be printed to permit voting for or against the proposition: "Consolidation of (name of school districts) into a single school district."

(c)iiIf a local consolidation agreement is submitted under Section 13.158, the ballot in the election shall be printed to permit voting for or against the proposition: "Consolidation of (name of school districts) into a single school district under a local consolidation agreement.""

"SECTIONi____.iiSubsections (b) and (c), Section 13.155, Education Code, are amended to read as follows:

(b)iiExcept as provided by Subsection (c) or by a local consolidation agreement under Section 13.158, the board of trustees of the school district having the greatest membership on the last day of the school year preceding the consolidation serves as the board of trustees of the consolidated district until the next regular election of trustees, at which time the consolidated district shall elect a board of trustees.

(c)iiExcept as provided by a local consolidation agreement under Section 13.158, if [If] the membership on the last day of the school year preceding the consolidation in the district with the largest membership is more than five times that of the other district or districts consolidating with it, the trustees of the district with the largest membership continue to serve for the terms for which they have been elected and only the vacancies, as they occur, are filled from the consolidated district."

"SECTIONi____.iiSubchapter D, Chapter 13, Education Code, is amended by adding Section 13.158 to read as follows:

Sec. 13.158.iiLOCAL CONSOLIDATION AGREEMENT.ii(a)iiBefore issuing an order for an election under Section 13.153, the boards of trustees of the districts to be consolidated may draft a local consolidation agreement to be submitted to the registered voters in each district. An agreement must set out the composition and method of election of the consolidated board of trustees. The identical agreement must be submitted to the registered voters of each district.

(b)iiA local consolidation agreement may provide the following:

(1)iian effective date that is not more than one year after the date of the consolidation election;

(2)iia schedule to elect the board of trustees of the consolidated district before or after the effective date of consolidation;

(3)iithat the consolidated district educate particular grades within the boundaries of a district being consolidated;

(4)iithat the consolidated district maintain a specific campus in operation;

(5)iithat if the votes cast in some districts, but not all districts, show a majority voting in favor of the consolidation, the districts receiving a favorable vote may consolidate;

(6)iithat a majority of the votes cast in each district must be in favor of consolidation for there to be a consolidation; or

2560 78th Legislature — Regular Session 79th Day

(7)iiany other provision consistent with state and federal law.

(c)iiNot later than 30 days before a consolidation election is held, the boards of trustees of the districts to be consolidated may amend the local consolidation agreement. After a successful election to consolidate, the local consolidation agreement may not be amended for five years following the effective date of consolidation, unless a shorter period is set out in the agreement. After that time, the agreement may be amended only by unanimous vote of the board of trustees of the district.

(d)iiThe commissioner may waive a requirement under this section or Section 13.159 on application of the boards of trustees of all districts proposed for consolidation."

"SECTIONi____.iiSubchapter D, Chapter 13, Education Code, is amended by adding Section 13.159 to read as follows:

Sec. 13.159.iiPUBLIC INSPECTION AND HEARING.ii(a)iiA local consolidation agreement under Section 13.158 must be made available for public inspection during regular business hours at the central administration building of each district for at least 25 days before the consolidation election.

(b)iiEach district shall hold a public hearing to allow interested persons to present comments related to the local consolidation agreement. If the agreement is amended following a public hearing, before the consolidation election each district shall hold another public hearing to consider the amendment.

(c)i Each district shall provide notice of each public hearing to the public."

"SECTIONi____.iiSection 41.033, Education Code, is amended to read as follows:

Sec. 41.033.iiGOVERNANCE PLAN.ii(a)i The agreement among the consolidating districts may include a governance plan designed to preserve community-based and site-based decision making within the consolidated district, including the delegation of specific powers of the governing board of the district other than the power to levy taxes, including a provision authorized by Section 13.158(b).

(b)iiThe governance plan may provide for a transitional board of trustees during the first year after consolidation, but beginning with the next year the board of trustees must be elected from within the boundaries of the consolidated district [from single-member districts drawn in accordance with the procedures provided by Section 11.052]. If the consolidating districts elect trustees from single-member districts, the consolidated district must adopt a plan to elect its board of trustees from single-member districts."

"SECTIONi____.ii(a)iiThe changes in law made by this Act to Subsection (a), Section 13.005, Education Code, Subsections (b) and (c), Section 13.155, Education Code, and Section 41.033, Education Code, apply only to a school district consolidated with an effective date on or after the effective date of this Act. A school district consolidated with an effective date before the effective date of this Act is covered by the law in effect on the effective date of the district's consolidation, and the former law is continued in effect for that purpose."

The floor amendment was read and was adopted without objection.

Tuesday, May 27, 2003 SENATE JOURNAL 2561

Senator Zaffirini offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 3459 by adding appropriately numbered SECTIONS and renumbering remaining SECTIONS accordingly:

SECTIONi____.iiSection 11.164, Education Code, is amended to read as follows:

Sec.i11.164.iiRESTRICTING WRITTEN INFORMATION [REPORTS]. (a)iiThe [On an annual basis, the] board of trustees of each school district shall limit redundant requests for information and[, after soliciting recommendations from each campus-level committee and the district-level committee, consider] the number and length of written reports that a classroom teacher is [employees of the district are] required to prepare. A classroom teacher may not be required to prepare any written information other than:

(1)iiany report concerning the health, safety, or welfare of a student;

(2)iia report of a student's grade on an assignment or examination;

(3)iia report of a student's academic progress in a class or course;

(4)iia report of a student's grades at the end of each grade reporting period;

(5)iia textbook report;

(6)iia unit or weekly lesson plan that outlines, in a brief and general manner, the information to be presented during each period at the secondary level or in each subject or topic at the elementary level;

(7)iian attendance report;

(8)iiany report required for accreditation review;

(9)iiany information required by a school district that relates to a complaint, grievance, or actual or potential litigation and that requires the classroom teacher's involvement; or

(10)iiany information specifically required by law, rule, or regulation.

(b)iiThe board of trustees shall review paperwork requirements imposed on classroom teachers and shall transfer to existing noninstructional staff a reporting task that can reasonably be accomplished by that staff.

(c)iiThis section does not preclude a school district from collecting essential information, in addition to information specified under Subsection (a), from a classroom teacher on agreement between the classroom teacher and the district.

SECTIONi____.iiThis Act applies beginning with the 2003-2004 school year.

The floor amendment was read and was adopted without objection.

Senator Shapleigh offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHB 3459 by substituting the following for Sec. 42.152(u) in Section 19 of the bill on page 18, lines 16-26:

(u)iiFor the 2003-2004 and 2004-2005 school years, notwithstanding the allotments and reductions otherwise required or permitted by this section or Section 39.031, the legislature may in the General Appropriations Act reduce the total amount of funding for the compensatory education allotment by not more than the sum of all of the changes, made to programs funded through deductions to the compensatory

2562 78th Legislature — Regular Session 79th Day

(1)iireduce each district's tier one allotments in the same manner described for a reduction in allotments under Section 42.253; and

(2)iiallocate funds to each district accordingly.

This provision expires on September 1, 2005.

The floor amendment was read and was adopted without objection.

Senator Madla offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHB 3459 by adding the following new SECTION to the bill, appropriately numbered, and renumbering the subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiSection 11.159, Education Code, is amended by adding Subsections (c) and (d) to read as follows:

(c)i Each regional education service center shall annually prepare a report that names each trustee of a school district located in the service center's region who has completed the training required by the State Board of Education. The service center shall provide the report to the agency, and the agency shall publish the report on the agency website. The State Board of Education may adopt rules as necessary to implement this subsection.

(d)iiThe agency and the State Board of Education shall conduct a review of the educational training requirements for trustees, including the content of the training and the number of hours of training required for a trustee. The State Board of Education and the agency shall report the findings of the review to the legislature not later than January 1, 2005. This subsection expires February 1, 2005.

The floor amendment was read and was adopted without objection.

Senator Shapleigh offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHB 3459 by adding the following appropriately numbered SECTION to the bill and by renumbering existing SECTIONS of the bill accordingly:

SECTIONii____.iiSection 34.007(b), Education Code, is amended to read as follows:

(b)iiIn establishing and operating the transportation system, the county or school district board

(1)iishall employ school bus drivers certified in accordance with standards and qualifications adopted by the Department of Public Safety; and

(2)iimay allow a parent to designate one of the following locations [a child-care facility, as defined by Section 42.002, Human Resources Code,] instead of the child's residence as the regular location for purposes of obtaining transportation under the system to and from the child's school:

Tuesday, May 27, 2003 SENATE JOURNAL 2563

(A)iia child-care facility, as defined by Section 42.002, Human Resources Code; or

(B)iithe residence of a grandparent of the child.

SECTIONi____.iiSubsection (k), Section 42.155, Education Code, is amended to read as follows:

(k)iiNotwithstanding any other provision of this section, the commissioner may not reduce the allotment to which a district or county is entitled under this section because the district or county provides transportation for an eligible student to and from a child-care facility, as defined by Section 42.002, Human Resources Code, or a grandparent's residence instead of the student's residence, as authorized by Section 34.007, if the transportation is provided within the approved routes of the district or county for the school the student attends.

The floor amendment was read and was adopted without objection.

Floor Amendment No. 9 was not offered.

Senator Ogden offered the following amendment to the bill:

Floor Amendment No. 10

Amend CSHB 3459 by adding the following appropriately numbered SECTIONS and renumbering the other SECTIONS of the bill accordingly:

SECTIONi____.iiSection 53.02, Education Code, is amended by adding Subdivision (14) to read as follows:

(14)ii"Borrower" means any of the following entities that is the recipient of a loan made under Section 53.34:

(A)iian institution of higher education;

(B)iia nonprofit corporation incorporated by and under the exclusive control of an institution of higher education;

(C)iian accredited primary or secondary school; or

(D)iian accredited charter school.

SECTIONi____.iiSection 53.33, Education Code, is amended to read as follows:

Sec.i53.33.iiLIMITED POWER TO ACQUIRE, OWN, AND OPERATE EDUCATIONAL AND HOUSING FACILITIES[: CONSTRUCTION, ACQUISITION, ETC]. (a) An [The] authority or a nonprofit instrumentality created under Section 53.35(b) may acquire, own, hold title to, lease, or operate an educational facility or housing facility or any facility incidental, subordinate, or related to or appropriate in connection with an educational facility or housing facility, but only if:

(1)iithe facility is or will be located within the corporate limits of the city that created the authority or nonprofit instrumentality;

(2)iithe governing body of an institution of higher education officially requests the authority or nonprofit instrumentality to acquire and own the facility for the benefit of the institution of higher education;

(3)iithe institution of higher education officially agrees to accept, and has authority to receive legal title to, the facility not later than the date on which any bonds or other obligations issued to acquire the facility are paid in full; and

2564 78th Legislature — Regular Session 79th Day

(4)iithe ownership of the facility by the authority or the nonprofit instrumentality is approved by official action of the governing body of:

(A)iithe city that created the authority or nonprofit instrumentality;

(B)iithe school district in which the facility is or will be located; and

(C)iithe county in which the facility is or will be located.

(b)iiAn authority or instrumentality that exercises the powers granted by Subsection (a) may contract for the operation of the facility by public or private entities or persons on the terms and conditions set forth in a contract relating to the operation of the facility.

(c)iiThe changes in law made by the amendment of this section by the 78th Legislature at the 2003 Regular Session do not affect the acquisition, ownership, construction, or improvement of a facility, or the acquisition and ownership of land that were approved by official action of the authority or nonprofit corporate instrumentality before March 15, 2003, and the law in effect immediately before the effective date of the amendment of this section by the 78th Legislature at the 2003 Regular Session is continued in effect for that purpose [by purchase, purchase contract, or lease, may construct, or may enlarge, extend, repair, renovate, or otherwise improve educational facilities or housing facilities. It may acquire land for those purposes, furnish and equip the facilities, and provide by contract, lease, or otherwise for the operation and maintenance of the facilities. The facilities need not be located within the city limits of the city or cities].

SECTIONi____.iiSection 53.34, Education Code, is amended to read as follows:

Sec.i53.34.iiREVENUE BONDS. (a) An [The] authority or a nonprofit instrumentality created under Section 53.35(b), including an authority or nonprofit instrumentality authorized to own facilities under Section 53.33(a), may issue and execute revenue bonds or other obligations to loan or otherwise provide funds to a borrower if:

(1)iithe governing body of the borrower by official action requests the issuer of the bonds or other obligations to loan the proceeds under this subsection;

(2)iithe purpose of the loan is to enable the borrower to acquire, construct, enlarge, extend, repair, renovate, or otherwise improve an educational facility or housing facility or any facility incidental, subordinate, or related to or appropriate in connection with an educational facility or housing facility, or for acquiring land to be used for those purposes, or to create operating and debt service reserves for and to pay issuance costs related to the bonds or other obligations; and

(3)iiunder the terms of the loan, and unless a mortgage lien granted to secure the loan is in default, the ownership of the facility is required to be at all times under the exclusive control, and held for the exclusive benefit, of the borrower [for any of its purposes].

(b)iiIn issuing revenue bonds or other obligations under this chapter, the issuer of the bonds or other obligations [authority] is considered to be acting on behalf of the [any] city by which it was created.

(c)iiBonds or other obligations issued under Subsection (a) [(b)iiThe bonds] shall be payable from and secured by a pledge of the revenues, income, [all or any part of the gross or net revenue to be derived from the operation of the facility or facilities and any other revenue] or assets pledged for the purpose by the borrower. The bonds

Tuesday, May 27, 2003 SENATE JOURNAL 2565

(d)iiA facility financed with the proceeds of a loan or loans made to a borrower under Subsection (a) is not required to be located within the corporate limits of the city that created the issuer of the bonds or other obligations.

(e)iiAn authority or a nonprofit instrumentality that is authorized to acquire and own educational facilities and housing facilities under Section 53.33(a) may issue and execute revenue bonds and other obligations for the purpose of acquiring, owning, and operating the educational and housing facilities, to create operating reserves for the facilities, and to create debt service reserves for and to pay issuance costs related to the bonds or other obligations.

(f)iiBonds or other obligations issued under Subsection (e) shall be payable from and secured by a pledge of all or any part of the gross or net revenues to be derived from the operation of the educational facilities and housing facilities being acquired and any other revenues, income, or assets, including the revenues and income of the educational facilities or housing facilities previously acquired or subsequently to be acquired. The bonds or other obligations may be additionally secured by a mortgage, deed of trust, or chattel mortgage on real or personal property, or on both real and personal property, if granted by the authority or nonprofit instrumentality issuing the bonds or other obligations.

(g)iiThe changes in law made by the amendment of this section by the 78th Legislature at the 2003 Regular Session affect and apply only to transactions involving bonds or other obligations that are issued or executed under this chapter on or after March 15, 2003. Bonds or other obligations that are issued or executed under this chapter before March 15, 2003, are governed by the law in effect immediately before the amendment of this section by the 78th Legislature at the 2003 Regular Session, and that former law is continued in effect for that purpose.

SECTIONi____.iiSection 53.35(b), Education Code, is amended to read as follows:

(b)iiIn addition to or in lieu of establishing an authority under the provisions of this chapter, the governing body of a city or cities may request or order created one or more nonprofit corporations to act on its behalf and as its duly constituted authority and instrumentality to exercise the powers granted to an authority under the provisions of Sections [Section] 53.33 and 53.34[, Texas Education Code]. If a nonprofit corporation is created for such purposes or agrees to such request, the directors thereof shall thereafter be appointed and be subject to removal by the governing body of the city or cities. In addition to the powers [of lease or acquisition of facilities] granted under, and subject to the limitations provided by, Sections [Section] 53.33 and 53.34, the corporation shall have all powers granted under the Texas Non-Profit Corporation Act for the purpose of aiding institutions of higher education in providing educational facilities and housing facilities and facilities incidental, subordinate, or related thereto or appropriate in connection therewith. In addition to Sections [the provisions of Section] 53.33 and 53.34 and the Texas Non-Profit Corporation Act, as amended (Article 1396-1.01, Vernon's Texas Civil

2566 78th Legislature — Regular Session 79th Day

SECTIONi____.iiSection 53.48, Education Code, is amended to read as follows:

Sec.i53.48.iiBONDS FOR ACCREDITED PRIMARY OR SECONDARY SCHOOLS. In the same manner that a corporation may issue and execute bonds or other obligations under this chapter for an institution of higher education, a corporation created under Section 53.35(b) may issue and execute bonds or other obligations to finance or refinance educational facilities or housing facilities to be used by an accredited primary or secondary school or by an authorized charter school.

The floor amendment was read.

On motion of Senator Ogden, Floor Amendment No.i10 was withdrawn.

Senator Gallegos offered the following amendment to the bill:

Floor Amendment No. 11

Amend CSHB 3459 (Senate committee printing) by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiSection 2, Article 3.50-8, Insurance Code is amended by adding Subsection (a-1) to read as follows:

(a-1)iiNotwithstanding any other provision of this article or other law, on or after September 1, 2005, each year, the trustee shall deliver to each school district, including a school district that is ineligible for state aid under Chapter 42, Education Code, each other educational district that is a member of the Teacher Retirement System of Texas, each participating charter school, and each regional education service center state funds in an amount, as determined by the trustee, equal to the product of the number of active employees employed by the district, school, or service center multiplied by $1,000 or a greater amount as provided by the General Appropriations Act for purposes of this article.

SECTIONi____.i In the event of a conflict between a provision of Article 1 of this bill and another Act passed by the 78th Legislature, Regular Session, 2003, that becomes law, Article 1 prevails and controls, regardless of the relative dates of enactment.

The floor amendment was read and was adopted by the following vote:iiYeasi20, Naysi10.

Yeas:iiBarrientos, Brimer, Ellis, Estes, Gallegos, Harris, Hinojosa, Lindsay, Lucio, Madla, Nelson, Ratliff, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiArmbrister, Averitt, Bivins, Carona, Deuell, Duncan, Fraser, Jackson, Ogden, Shapiro.

Absent:iiJanek.

Tuesday, May 27, 2003 SENATE JOURNAL 2567

On motion of Senator Bivins and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 3459 as amended was passed to third reading by a viva voce vote.

(Senator Armbrister in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3459 ON THIRD READING

Senator Bivins moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi3459 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi29, Naysi2.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Ellis, Estes, Fraser, Gallegos, Harris, Hinojosa, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Staples.

The bill was read third time and was passed by the following vote:iiYeasi29, Naysi2.ii(Same as previous roll call)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2075 ON SECOND READING

On motion of Senator Fraser and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2075 at this time on its second reading:

CSHB 2075, Relating to regulating health and safety conditions at youth camps.

The bill was read second time and was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2075 ON THIRD READING

Senator Fraser moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2075 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

2568 78th Legislature — Regular Session 79th Day

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3306 ON SECOND READING

On motion of Senator Duncan and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi3306 at this time on its second reading:

CSHB 3306, Relating to certain appropriations made in support of the courts by the legislature to certain individuals and governmental entities, to the assignment of certain visiting judges, and to the Eighth, Ninth, and Eleventh courts of appeals districts.

The bill was read second time.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHBi3306 (committee printing) as follows:

(1)iiStrike SECTION 8 of the bill (page 2, lines 6 through 10) and substitute the following appropriately numbered SECTION:

SECTIONi____.ii Section 74.003, Government Code, is amended by amending Subsection (b) and adding Subsections (f), (g), and (h) to read as follows:

(b)iiThe chief justice of the supreme court may assign a qualified retired justice or judge of the supreme court, of the court of criminal appeals, or of a court of appeals to a court of appeals for active service regardless of whether a vacancy exists in the court to which the justice is assigned. To be eligible for assignment under this subsection, a retired justice or judge must:

(1)iihave served as an active justice or judge for at least 96 months in a district, statutory probate, statutory county, or appellate court, with at least 48 of those months in an appellate court;

(2)iinot have been removed from office;

(3)iicertify under oath to the chief justice of the supreme court, on a form prescribed by the chief justice, that:

(A)iithe justice or judge has never been publicly reprimanded or censured by the State Commission on Judicial Conduct; and

(B)iithe justice or judge:

(i)iidid not resign or retire from office after the State Commission on Judicial Conduct notified the justice or judge of the commencement of a full investigation into an allegation or appearance of misconduct or disability of the justice or judge as provided in Section 33.022 and before the final disposition of that investigation; or

(ii)iiif the justice or judge did resign from office under circumstances described by Subparagraph (i), the justice or judge was not publicly reprimanded or censured as a result of the investigation;

(4)iiannually demonstrate that the justice or judge has completed in the past state fiscal year the educational requirements for active appellate court justices or judges; and

(5)iicertify to the chief justice of the supreme court a willingness not to appear and plead as an attorney in any court in this state for a period of two years.

Tuesday, May 27, 2003 SENATE JOURNAL 2569

(f)iiFor the purposes of Subsection (b)(1), a month of service is calculated as a calendar month or a portion of a calendar month in which a justice or judge was authorized by election or appointment to preside.

(g)iiSubsection (b)(1) does not apply to a retired justice of the supreme court.

(h)iiNotwithstanding any other provision of law, an active district court judge may be assigned to hear a matter pending in an appellate court.

(2)iiAdd the following appropriately numbered SECTIONS and renumber subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiSection 74.041, Government Code, is amended by adding Subdivisions (4)-(7) to read as follows:

(4)ii"Active judge" means a person who is a current judicial officeholder.

(5)ii"Former judge" means a person who has served as an active judge in a district, statutory probate, statutory county, or appellate court, but who is not a retired judge.

(6)ii"Retired judge" means:

(A)iia retiree; or

(B)iia person who served as an active judge for at least 96 months in a statutory probate or statutory county court and has retired under the Texas County and District Retirement System.

(7)ii"Senior judge" means a retiree who has elected to be a judicial officer under Section 75.001.

SECTIONi____.ii Section 74.053, Government Code, is amended to read as follows:

Sec.i74.053.iiOBJECTION TO [ASSIGNED] JUDGE ASSIGNED TO A TRIAL COURT. (a)iiWhen a judge is assigned to a trial court under this chapter:

(1)iithe order of assignment must state whether the judge is an active, former, retired, or senior judge; and

(2)iithe presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge.

(b)iiIf a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.

(c)iiAn objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause [over which the assigned judge is to preside].

(d)iiAn assigned [A former] judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice [not a retired judge] may not sit in a case if either party objects to the judge or justice.

(e)iiAn active judge assigned under this chapter is not subject to an objection.

(f)iiFor purposes of this section, notice of an assignment may be given and an objection to an assignment may be filed by electronic mail.

2570 78th Legislature — Regular Session 79th Day

(g)iiIn this section, "party" includes multiple parties aligned in a case as determined by the presiding judge.

SECTIONi____.iiSections 74.054(a) and (b), Government Code, are amended to read as follows:

(a)iiExcept as provided by Subsections (b) and (c), the following judges may be assigned as provided by this chapter by the presiding judge of the administrative region in which the assigned judge resides:

(1)iian active [a regular] district, constitutional county, or statutory county court judge in this state;

(2)iia senior judge [a district or appellate judge who is a retiree under Subtitle D or E of Title 8,] who has consented to be subject to assignment[,] and who is on the list maintained by the presiding judge under this chapter;

(3)iia former district or appellate judge, retired or former statutory probate court judge, or retired or former statutory county court judge who certifies to the presiding judge a willingness to serve and who is on the list maintained by the presiding judge as required by this chapter;

(4)iia retiree or a former judge whose last judicial office before retirement was justice or judge of the supreme court, the court of criminal appeals, or a court of appeals and who has been assigned by the chief justice to the administrative judicial region in which the retiree or former judge resides for reassignment by the presiding judge of that region to a district or statutory county court in the region; and

(5)iian active judge or justice of the supreme court, the court of criminal appeals, or a court of appeals who has had trial court experience.

(b)iiAn active [A regular] statutory county court judge may not be assigned to hear a matter pending in a district court outside the county of the judge's residence.

SECTIONi____.ii Section 74.055, Government Code, is amended by amending Subsections (c) and (e) and adding Subsections (f) and (g) to read as follows:

(c)iiTo be eligible to be named on the list, a retired or former judge must:

(1)iihave served as an active [a] judge for at least 96 [48] months in a district, statutory probate, statutory county, or appellate court;

(2)iihave developed substantial experience in the judge's area of specialty;

(3)iinot have been removed from office;

(4)iicertify under oath to the presiding judge, on a form prescribed by the state board of regional judges, that:

(A)iithe judge has never been publicly reprimanded or censured by the State Commission on Judicial Conduct; and

(B)iithe judge:

(i)iidid not resign or retire from office after [having received notice that formal proceedings by] the State Commission on Judicial Conduct notified the judge of the commencement of a full investigation into an allegation or appearance of misconduct or disability of the judge [had been instituted] as provided in Section 33.022 and before the final disposition of that investigation; or

(ii)iiif the judge did resign from office under circumstances described by Subparagraph (i), was not publicly reprimanded or censured as a result of the investigation [the proceedings];

Tuesday, May 27, 2003 SENATE JOURNAL 2571

(5)iiannually demonstrate that the judge has completed in the past state fiscal [calendar] year the educational requirements for active district, statutory probate, and statutory county court judges; and

(6)iicertify to the presiding judge a willingness not to appear and plead as an attorney in any court in this state for a period of two years.

(e)iiFor purposes of Subsection (c)(1), a month of service is calculated as a calendar month or a portion of a calendar month in which a judge was authorized by election or appointment [by the governor] to preside.

(f)iiA former or retired judge is ineligible to be named on the list if the former or retired judge is identified in a public statement issued by the State Commission on Judicial Conduct as having resigned or retired from office in lieu of discipline.

(g)iiA former or retired judge named on the list shall immediately notify the presiding judge of a full investigation by the State Commission on Judicial Conduct into an allegation or appearance of misconduct or disability by the judge. A judge who does not notify the presiding judge of an investigation as required by this subsection is ineligible to remain on the list.

(3)iiStrike SECTION 9 of the bill (page 2, lines 11 through 34), and substitute the following appropriately numbered SECTION:

SECTIONi____.iiSection 74.061, Government Code, is amended by amending Subsections (c) and (d) and adding Subsections (j) and (k) to read as follows:

(c)iiThe salary of a retired judge or justice while assigned under this chapter shall be paid out of money appropriated from the general revenue fund for that purpose in an amount equal to the compensation received from state and county sources of the judge of the court to which he is assigned. The salary of a retired judge or justice while assigned shall be determined pro rata for the period of time that the judge or justice actually sits as the assigned judge. The salary of a retired statutory county court judge assigned under this chapter to serve in a district court [or statutory county court] shall be paid by the state in the same manner as the salary of a retired district judge assigned under this chapter to serve in a district court [or statutory county court] is paid by the state.

(d)iiFor services actually performed while assigned under this chapter, a retired or former judge or justice shall receive from county funds and money appropriated by the legislature the same amount of salary, compensation, and expenses that the regular judge is entitled to receive from the county and from the state for those services. The presiding judge of the administrative region shall certify to the county and the state the services rendered under this chapter by a retired or former judge or justice and the share to be paid by the state. The amount certified by the presiding judge as the state's share shall be paid from an item in the Judicial Section–Comptroller's Department of the General Appropriations Act for the payment of salaries of district and criminal district judges.

(j)iiA judge or justice who sits as an assigned judge for half a day or less shall be compensated in an amount that is equal to one-half of the amount to which a judge or justice is entitled for sitting as an assigned judge for a full day under this section.

(k)iiNotwithstanding any other provision of law, a former, retired, or active judge is not entitled to compensation paid by the state when the judge sits as an assigned judge for a statutory county court.

2572 78th Legislature — Regular Session 79th Day

(4)iiAdd the following appropriately numbered SECTIONS and renumber subsequent SECTIONS of the bill accordingly:

SECTIONi____.ii Section 75.551, Government Code, is amended to read as follows:

Sec.i75.551.iiOBJECTION TO JUDGE OR JUSTICE ASSIGNED TO AN APPELLATE COURT.ii(a)iiWhen a judge or justice is assigned to an appellate court under this chapter or Chapter 74:

(1)iithe order of assignment must state whether the judge or justice is an active, former, retired, or senior judge or justice; and

(2)ii[,] the person who assigns the judge or justice shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge or justice.

(b)iiA judge or justice assigned to an appellate court may not hear a civil case if a party to the case files a timely objection to the assignment of the judge or justice. Except as provided by Subsection (d), [:

[(1)]iieach party to the case is entitled to only one objection under this section for that case in the appellate court[; and

[(2)iia party to an appeal may not in the same case object in an appellate court to the assignment of a judge or justice under Section 74.053(b) and under this subsection].

(c)iiAn objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the case is submitted to the court, whichever date occurs earlier. The court may extend the time to file an objection under this section on a showing of good cause [first hearing in which the assigned judge or justice is assigned to sit].

(d)iiA [former] judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice [not a retired judge or justice] may not sit in an appellate case if either party objects to the judge or justice.

(e)iiAn active judge or justice assigned under this chapter is not subject to an objection.

(f)iiFor purposes of this section, notice of an assignment may be given and an objection to an assignment may be filed by electronic mail.

(g)iiIn this section, "party" includes multiple parties aligned in a case as determined by the appellate court.

SECTIONi____.iiSection 74.055(d), Government Code, is repealed.

SECTIONi____.ii(a)iiThe change in law made by this Act to Sections 74.053 and 75.551, Government Code, applies only to a case that is pending or commences on or after the effective date of this Act.

(b)iiExcept as provided by Subsection (c) of this section, the change in law made by this Act to Sections 74.003, 74.054, and 74.055, Government Code, applies only to the assignment of a judge or justice under Chapter 74 or 75, Government Code, made on or after the effective date of this Act. An assignment made before the effective date of this Act is governed by the law in effect at the time the assignment is made, and that law is continued in effect for that purpose.

Tuesday, May 27, 2003 SENATE JOURNAL 2573

(c)iiThe change in law made by this Act to Sections 74.003, 74.054, and 74.055, Government Code, does not apply to a person who immediately before the effective date of this Act meets the eligibility requirements to be assigned by the chief justice of the supreme court under Section 74.003(b) or Chapter 75, Government Code, or to be named on a list of retired and former judges under Section 74.055(c), Government Code, other than the certification requirement under Section 74.055(c)(6), Government Code, and the former law is continued in effect for determining that person's eligibility for those purposes.

The floor amendment was read and was adopted without objection.

On motion of Senator Duncan and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 3306 as amended was passed to third reading by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3306 ON THIRD READING

Senator Duncan moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi3306 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

HOUSE BILL 2554 ON SECOND READING

On motion of Senator Williams and by unanimous consent, the regular order of business was suspended to take up for consideration HBi2554 at this time on its second reading:

HB 2554, Relating to the application of new requirements for commercial nonhazardous industrial solid waste landfill facilities to be adopted by the Texas Commission on Environmental Quality.

The bill was read second time and was passed to third reading by a viva voce vote.

HOUSE BILL 2554 ON THIRD READING

Senator Williams moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi2554 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiZaffirini.

The bill was read third time and was passed by the following vote:iiYeasi30, Naysi1. (Same as previous roll call)

2574 78th Legislature — Regular Session 79th Day

HOUSE BILL 2892 ON SECOND READING

On motion of Senator Whitmire and by unanimous consent, the regular order of business was suspended to take up for consideration HBi2892 at this time on its second reading:

HB 2892, Relating to the illegal use of money or property derived from or intended to further certain controlled substance offenses; providing penalties.

The bill was read second time.

Senator Shapiro offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 2892 by adding the following appropriately numbered new sections:

SECTION ____.iiSubchapter D, Chapter 481, Health and Safety Code, is amended by adding Section 481.141 to read as follows:

Sec. 481.141. MANUFACTURE OR DELIVERY OF CONTROLLED SUBSTANCE CAUSING DEATH OR SERIOUS BODILY INJURY.ii(a) If at the guilt or innocence phase of the trial of an offense described by Subsection (b), the judge or jury, whichever is the trier of fact, determines beyond a reasonable doubt that a person died or suffered serious bodily injury as a result of injecting, ingesting, inhaling, or introducing into the person's body any amount of the controlled substance manufactured or delivered by the defendant, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant, the punishment for the offense is increased by one degree.

(b)iiThis section applies to an offense otherwise punishable as a state jail felony, felony of the third degree, or felony of the second degree under Section 481.112, 481.1121, 481.113, 481.114, or 481.122.

(c)iiNotwithstanding Article 42.08, Code of Criminal Procedure, if punishment for a defendant is increased under this section, the court may not order the sentence for the offense to run concurrently with any other sentence the court imposes on the defendant.

SECTION ____.iiThe change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

The floor amendment was read and was adopted without objection.

On motion of Senator Whitmire and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

HB 2892 as amended was passed to third reading by a viva voce vote.

Tuesday, May 27, 2003 SENATE JOURNAL 2575

HOUSE BILL 2892 ON THIRD READING

Senator Whitmire moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi2892 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2292 ON SECOND READING

Senator Nelson moved to suspend the regular order of business to take up for consideration CSHBi2292 at this time on its second reading:

CSHB 2292, Relating to the provision of health and human services in this state, including the powers and duties of the Health and Human Services Commission and other state agencies; providing penalties.

The motion prevailed by the following vote:iiYeasi21, Naysi10.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Estes, Fraser, Harris, Jackson, Janek, Lindsay, Madla, Nelson, Ogden, Ratliff, Shapiro, Staples, Wentworth, Williams.

Nays:iiBarrientos, Ellis, Gallegos, Hinojosa, Lucio, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.

The bill was read second time.

Senator Nelson offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2292 as follows:

In Section 2.72 adding Section 533.0354(a), Health and Safety Code, strike "provide" and substitute "ensure provision of" (Senate committee printing, page 65, line 51), and strike "engage an individual" and substitute "ensure that individuals are engaged" (Senate committee printing, page 65, line 56).

The floor amendment was read and was adopted by a viva voce vote.

Senator Nelson offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2292 as follows:

(1)iiIn SECTION 2.94, strike added subsection (g) of Section 32.026(g), Human Resources Code (Senate committee printing, page 77, lines 46-51).

(2)iiAmend the introductory language to SECTION 2.93 to read as follows:

"Section 32.025, Human Resources Code, is amended by amending Subsection (e) and adding Subsection (g) to read as follows:"

(3)iiIn SECTION 2.93, insert the following new language immediately before SECTION 2.94 (Senate committee printing, page 77, between lines 29 and 30):

2576 78th Legislature — Regular Session 79th Day

(g)iithe department shall require applicants for medical assistance for long term care programs to apply for and obtain Veteran's Administration benefits and services for which they are entitled.

The floor amendment was read and was adopted by a viva voce vote.

(President in Chair)

Senator Nelson offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHB 2292 as follows:

In SECTION 1.13 of the committee substitute, strike added Section 117.071, Human Resources Code (Senate committee printing, page 19, lines 25-30) and substitute the following:

Sec. 117.071. GENERAL POWERS AND DUTIES OF THE DEPARTMENT. The department is responsible for administering human services programs to provide early childhood intervention services and rehabilitation and related services to persons who are blind, deaf, or hard of hearing. The department is also responsible for providing and coordinating programs for the rehabilitation of persons with disabilities so that they may prepare for and engage in a gainful occupation or achieve maximum personal independence.

In the portion of SECTION 2.97 that adds Section 32.028(i)(3), Human Resources Code (Senate committee printing, page 78, line 32), strike "participation" and substitute "not participating".

In SECTION 2.30 (Senate committee printing, page 48, lines 58-59), strike subdivision (2) of Section 403.105(c), Government Code and substitute the following:

(2)iithe provision of preventive medical and dental services to children in the medical assistance program under Chapter 32, Human Resources Code.

Insert the following new SECTION, appropriately numbered, and renumber subsequent sections accordingly:

SECTION ____. Section 403.1066, Government Code, is amended to read as follows:

Sec. 403.1066. PERMANENT HOSPITAL FUND FOR CAPITAL IMPROVEMENTS AND THE TEXAS CENTER FOR INFECTIOUS DISEASE [COMMUNITY HOSPITAL CAPITAL IMPROVEMENT FUND].

(a)iiThe permanent hospital [community hospital capital improvement] fund for capital improvements and the Texas Center for Infectious Disease is a dedicated account in the general revenue fund. The fund is composed of:

(1)iimoney transferred to the fund at the direction of the legislature;

(2)iipayments of interest and principal on loans and fees collected under this section;

(3)iigifts and grants contributed to the fund; and

(4)iithe available earnings of the fund determined in accordance with Section 403.1068.

(b)iiExcept as provided by Subsections (c), (d), (e), and (i), the money in the fund may not be appropriated for any purpose.

Tuesday, May 27, 2003 SENATE JOURNAL 2577

(c)iiThe available earnings of the fund may be appropriated to the Texas Department of Health for the purpose of providing services at the Texas Center for Infectious Disease and for grants, loans, or loan guarantees to public or nonprofit community hospitals with 125 beds or fewer located in an urban area of the state.

(d)iiThe comptroller may solicit and accept gifts and grants to the fund. A gift or grant to the fund may be appropriated in the same manner as available earnings of the fund, subject to any limitation or requirement placed on the gift or grant by the donor or granting entity.

(e)iiMoney in the fund may also be appropriated to pay any amount of money that the federal government determines that the state should repay to the federal government or that the federal government should recoup from the state in the event of national legislation regarding the subject matter of the case styled The State of Texas v. The American Tobacco Co., et al., No. 5-96CV-91, in the United States District Court, Eastern District of Texas.

(f)iiThe Texas Board of Health may adopt rules governing any grant, loan, or loan guarantee program established under this section.

(g)iiA hospital eligible to receive a grant, loan, or loan guarantee under Subchapter G, Chapter 106, Health and Safety Code, is not eligible to receive a grant, loan, or loan guarantee under this section.

(h)iiSections 403.095 and 404.071 do not apply to the fund.

(i)iiThe department may direct the comptroller to temporarily transfer money appropriated under Subsection (c) to pay an obligation that the department is authorized to incur under and for which money is appropriated under Section 403.105(c), 403.1055(c), or 403.106(c) if the department determines that the transfer is necessary for cash management purposes. As soon as possible after the transfer but not later than the 90th day after the date of the transfer, the department shall direct the comptroller to transfer back the transferred amount from amounts appropriated under Section 403.105(c), 403.1055(c), or 403.106(c), as applicable, to the appropriation item for Subsection (c).

Strike Section 2.33(a) (Senate committee printing, page 49, lines 15-47) and substitute the following:

SECTION 2.33.ii(a) Effective September 1, 2003, Section 466.408(b), Government Code is amended to read as follows:

(b)iiIf a claim is not made for prize money on or before the 180th day after the date on which the winner was selected, the prize money shall be used in the following order of priority:

(1)ii$10 million in prize money each year shall be deposited to and may be appropriated from the Texas Department of Health state-owned multicategorical teaching hospital account, which is an account in the general revenue fund; and

(2)iiall prize money subject to this section in excess of $10 million each year shall be deposited in the general revenue fund and may be appropriated for any purpose as determined the legislature, including purposes specified in Chapter 61, Health and Safety Code [shall be deposited to the credit of the Texas Department of Health state-owned mulitcategorical teaching hospital account or the tertiary care facility account as follows:

2578 78th Legislature — Regular Session 79th Day

[(1)iinot more than $40 million in prize money each biennium may be deposited to or appropriated from the Texas Department of Health state-owned multicategorical teaching hospital account, which is an account in the general revenue fund; and

[(2)iiall prize money subject to this section in excess of $40 million each biennium shall be deposited in the tertiary care facility account. Money deposited in the tertiary care facility account may only be appropriated to the department for purposes specified in Chapter 46 or 61, Health and Safety Code].

Strike Sections 2.43 and 2.44 (Senate committee printing, page 52, line 59 through page 53, line 24) and substitute the following:

SECTION 2.43. Section 62.002(4), Health & Safety Code, is amended to read as follows:

(4)ii"Gross [Net] family income" means the total amount of income established for a family without consideration of any reduction for offsets [after reduction for offsets for expenses such as child care and work-related expenses, in accordance with standards applicable under the Medicaid] that may be available to the family under any other program.

SECTION 2.44. Section 62.101(b), Health & Safety Code, is amended to read as follows:

(b)iiThe commission shall establish income eligibility levels consistent with Title XXI, Social Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any other applicable law or regulations, and subject to the availability of appropriated money, so that a child who is younger than 19 years of age and whose gross [net] family income is at or below 200 percent of the federal poverty level is eligible for health benefits coverage under the program. In addition, the commission may establish eligibility standards regarding the amount and types of allowable assets for a family whose gross family income is above 150 percent of the federal poverty level.

Insert the following new SECTION, appropriately numbered, and renumber subsequent sections accordingly:

SECTION ____.ii(a) Section 31.032(d), Human Resources Code, is amended to read as follows:

(d)iiIn determining whether an applicant is eligible for assistance, the department shall exclude from the applicant's available resources:

(1)ii$1,000 [$2,000] for the applicant's household, including a household in which there is [or $3,000 if there is] a person with a disability or a person who is at least 60 years of age [in the applicant's household]; and

(2)iithe fair market value of the applicant's ownership interest in a motor vehicle, but not more than the amount determined according to the following schedule:

(A)ii$4,550 on or after Septemberi1, 1995, but before Octoberi1, 1995;

(B)ii$4,600 on or after Octoberi1, 1995, but before Octoberi1, 1996;

(C)ii$5,000 on or after Octoberi1, 1996, but before Octoberi1, 1997; and

Tuesday, May 27, 2003 SENATE JOURNAL 2579

(D)ii$5,000 plus or minus an amount to be determined annually beginning on October 1, 1997, to reflect changes in the new car component of the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics.

(b)iiSection 31.032(d), Human Resources Code, as amended by this section, applies to a person receiving financial assistance on or after the effective date of this Act, regardless of the date on which eligibility for financial assistance was determined.

Insert the following new SECTION, appropriately numbered, and renumber subsequent sections accordingly:

SECTION ____.ii(a) Section 32.024(w), Human Resources Code, is amended to read as follows:

(w)iiThe department shall set a personal needs allowance of not less than $45 [$60] a month for a resident of a convalescent or nursing home or related institution licensed under Chapter 242, Health and Safety Code, personal care facility, ICF-MR facility, or other similar long-term care facility who receives medical assistance. The department may send the personal needs allowance directly to a resident who receives Supplemental Security Income (SSI) (42 U.S.C. Section 1381 et seq.). This subsection does not apply to a resident who is participating in a medical assistance waiver program administered by the department.

(b)iiSection 32.024(w), Human Resources Code, as amended by this section, applies only to a personal needs allowance paid on or after the effective date of this Act.

(Part 7a) Amend Section 2.93 (Senate committee printing, page 77, line 27) by inserting "only" between "representative" and "if".

(Part 7b) Amend Section 2.94 by striking the portion of the bill amending Subsection (e) of Section 32.026, Human Resources Code (Senate committee printing, page 77, lines 33-45) and substituting the following:

(e)iiThe department shall permit a recertification review of the eligibility and need for medical assistance of a child under 19 years of age to be conducted by telephone or mail instead of through a personal appearance at a department office, unless the department determines that the information needed to verify eligibility cannot be obtained in that manner. The department by rule may develop procedures to determine whether there is a need for a recertification review of a child described by this subsection to be conducted through a personal interview with a department representative. Procedures developed under this subsection shall be based on objective, risk-based factors and conditions and shall focus on a targeted group of recertification reviews for which there is a high probability that eligibility will not be recertified.

The floor amendment was read and was adopted by a viva voce vote.

RECORD OF VOTES

Senators Janek and VanideiPutte asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 3.

2580 78th Legislature — Regular Session 79th Day

On motion of Senator Nelson and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2292 as amended was passed to third reading by a viva voce vote.

RECORD OF VOTES

Senators Barrientos, Ellis, Gallegos, Hinojosa, Lucio, Shapleigh, VanideiPutte, West, Whitmire, and Zaffirini asked to be recorded as voting "Nay" on the passage of CSHBi2292 to third reading.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2425 ON SECOND READING

On motion of Senator Duncan and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2425 at this time on its second reading:

CSHB 2425, Relating to state and certain local fiscal matters; making an appropriation.

The bill was read second time.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 1

CSHB 2425 is amended as follows:

On page 47, lines 51 and 52, delete the following: "In this subsection, 'place of primary use' has the meaning assigned by Section 151.061(a)(2)."

On page 49, lines 14 and 15, delete the following: "In this subsection, 'place of primary use' has the meaning assigned by Section 151.061(a)(2)."

The floor amendment was read and was adopted without objection.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2425 (Senate committee printing) as follows:

(1)iiStrike SECTION 81 of the bill (page 33, line 60 through page 34, line 16).

(2)iiIn SECTION 116 of the bill (page 50, lines 30-36), strike Subdivisions (24), (25), (26), (27), (29), and (30), and renumber the remaining Subdivisions accordingly.

(3)iiIn SECTION 119(f) of the bill (page 52, line 14), strike Subdivision (5) and renumber the remaining Subdivisions accordingly.

(4)iiStrike SECTION 119(h) of the bill (page 52, lines 22-31), and substitute the following:

(g)iiThe repeal by this Act of the following provisions takes effect Octoberi1, 2003:

(1)iiSection 151.326(c), Tax Code; and

(2)iiChapter 326, Tax Code.

The floor amendment was read and was adopted without objection.

Tuesday, May 27, 2003 SENATE JOURNAL 2581

Senator Shapleigh offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHBi2425 in SECTION 10, amending Section 403.020, Government Code, by striking amended Subsection (c) (page 8, lines 11 through 17, Senate committee printing) and substituting the following:

(c) A review of a school district may be initiated by the comptroller or by the request of the [school] district. Except as provided by Subsection (c-1), a review of a public junior college or general academic teaching institution may be initiated only at the request of:

(1)iithe governor;

(2)iithe Legislative Budget Board; or

(3)iithe governing body of the college or institution.

(c-1) A review of a general academic teaching institution may be initiated by the comptroller if the rate of graduation within six years of initial enrollment for entering freshman students of the institution for the most recent six-year period for which that information is available is less than 35 percent, as determined by the Texas Higher Education Coordinating Board.

The floor amendment was read and was adopted without objection.

Senator Bivins offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHBi2425 as follows:

(1)iiStrike SECTIONS 89-103 of the bill (Senate committee printing, page 37, line 24, through page 45, line 8).

(2)iiStrike SECTION 119(k) of the bill (Senate committee printing, page 52, lines 44-47).

(3)iiRenumber SECTIONS of the bill appropriately.

The floor amendment was read and was adopted without objection.

Senator Duncan offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 2425 by deleting SECTION 54 and SECTION 110.

The floor amendment was read and was adopted without objection.

Senator Williams offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHBi2425 as follows:

(1)iiAdd the following appropriately numbered SECTION and renumber subsequent SECTIONS of the bill appropriately:

SECTIONi___.iiSubchapter H, Chapter 151, Tax Code, is amended by adding Section 151.356 to read as follows:

Sec.i151.356.iiNONVEHICULAR FUEL CELLS. (a) The sale, use, or other consumption of nonvehicular fuel cells is exempted from the taxes imposed by this chapter.

(b)iiThis section expires January 1, 2011.

2582 78th Legislature — Regular Session 79th Day

(2)iiIn SECTION 119(e) of the bill (Senate Committee Printing, page 52, line 6), between the comma and "as" insert "and Section 151.356, Tax Code,".

The floor amendment was read.

On motion of Senator Williams, Floor Amendment No.i6 was withdrawn.

Senator Barrientos offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHB 2425 by adding appropriately numbered new SECTIONS to the bill and renumbering subsequent SECTIONS accordingly, to read as follows:

(1)iiSECTION ____.iiSection 659.260, Government Code, is amended to read as follows:

Sec. 659.260. TEMPORARY ASSIGNMENT. [(a) This section applies only to an employee whose permanent position is classified under the state's position classification plan.]

(a) [(b)] To facilitate a state agency's work during an emergency or other special circumstance, an employee may be temporarily assigned to other duties for a period not to exceed six months. The employee is entitled to receive during the period of reassignment at least the same rate of pay that the employee received immediately before the reassignment. An employee may not be temporarily assigned under this subsection to a position classified in a salary group with a lower minimum salary rate.

(b) [(c)] An employee may not be assigned temporary duties under this section for more than six months during a twelve-month period.

(c) [(d)] An employee temporarily designated to act as the administrative head of a state agency may continue to receive a salary for a classified position in an amount not to exceed the amount established by General Appropriations Act for the administrative head of the agency.

(d) [(e)] While the employee is temporarily assigned under this section, the state agency may not:

(1)iiaward a merit salary increase to the employee; or

(2)iipromote or demote the employee.

(2)iiSECTION ____. Subsection (e), Section 661.152, Government Code, is amended to read as follows:

(e)iiIn this subsection, "duty" means an employee's last physical day on the job. An employee accrues vacation leave at the applicable rate beginning on the first day of state employment and ending on the last duty day of state employment. An employee accrues and is entitled to be credited for one month's vacation leave for each month of employment with the state beginning on the first day of employment with the state and on the first calendar day of each succeeding month of state employment. An employee who is employed by the state during any part of a calendar month accrues vacation leave entitlement for the entire calendar month.

(3)iiSECTION ____.iiSubsection (b), Section 661.202, Government Code, is amended to read as follows:

(b)iiIn this subsection, "duty" means an employee's last physical day on the job. An employee accrues sick leave beginning on the first day of state employment and ending on the last duty day of state employment. An employee is entitled to be

Tuesday, May 27, 2003 SENATE JOURNAL 2583

(4)iiSECTION ____.iiSubsection (b), Section 661.206, Government Code, is amended to read as follows:

(b)iiAn employee may use up to eight hours of sick leave each fiscal [calendar] year to attend parent-teacher conference sessions for the employee's children.

(5)iiSECTION ____.iiSection 662.010, Government Code, is amended to read as follows:

Sec. 662.010.iiHOLIDAY BEFORE WORK BEGINS OR AFTER WORK ENDS. (a) An individual must be a state employee on the workday before and after a state or national holiday in order to be paid for that holiday, unless the holiday falls on the employee's first or last workday of the month [who is not a state employee on the last workday before a state or national holiday but who is a state employee on the first workday after the holiday may not be paid for the holiday if it occurs during the same month as the last workday before the holiday.]

[(b)iiAn individual who is a state employee on the last workday before a state or national holiday but who is not a state employee on the first workday after the holiday may not be paid for the holiday if it occurs before the first workday of a month and during that month.].

(b) [(c)]iiIn this section, "state employee":

(1)iiincludes an individual who uses paid leave from a state agency; and

(2)iidoes not include an individual who uses unpaid leave from a state agency.

The floor amendment was read and was adopted without objection.

Senator Deuell offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHBi2425 by adding the following appropriately numbered SECTION to the bill and renumbering the other SECTIONS of the bill accordingly:

SECTIONi____.iiSection 55.1731(a), Education Code, is amended to read as follows:

(a)iiIn addition to the other authority granted by this subchapter, the board of regents of The Texas A&M University System may issue in accordance with this subchapter and in accordance with a systemwide revenue financing program adopted by the board bonds for the following institutions not to exceed the following aggregate principal amounts to finance projects specified as follows:

(1)iiPrairie View A&M University:

(A)ii$53 million to construct or renovate engineering facilities, construct and renovate an architecture building, and carry out other campus renovations; and

(B)ii$15 million to construct a juvenile justice and psychology building;

(2)iiTarleton State University, $18.7 million for a library addition and renovation of a mathematics building;

(3)iiTexas A&M University–Commerce, $14,960,000 to construct [replace] a science building [wing];

2584 78th Legislature — Regular Session 79th Day

(4)iiTexas A&M University–Corpus Christi, $34 million to construct a classroom and laboratory facility and for construction of the Harte Research Center;

(5)iiTexas A&M International University, $21,620,000 to construct a science building (Phase IV);

(6)iiTexas A&M University at Galveston, $10,030,000 to construct an engineering building;

(7)iiTexas A&M University–Kingsville, $20,060,000 to construct facilities for a pharmacy school and to construct a student services building;

(8)iiTexas A&M University–Texarkana, $17 million to construct a health science building and for library renovation;

(9)iiWest Texas A&M University, $22,780,000 to construct a fine arts complex; and

(10)iiThe Texas A&M University Health Science Center, $14.3 million for construction of classroom and faculty office facilities for the School of Rural Public Health.

The floor amendment was read and was adopted without objection.

Senator Averitt offered the following amendment to the bill:

Floor Amendment No. 9

Amend CSHBi2425 by inserting the following new SECTIONS, appropriately numbered, and renumbering the SECTIONS of the bill accordingly:

SECTIONi____.iiArticles 4.51(2) and (13), Insurance Code, are amended to read as follows:

(2)ii"Allocation date" means the date on which the certified investors of a certified capital company are allocated premium tax credits [certified capital] by the comptroller under this subchapter.

(13)ii"State premium tax liability" means:

(A)iiany liability incurred by any person under Subchapter A of this chapter; or

(B)iiif the tax liability imposed under Subchapter A of this chapter on January 1, 2003 [2001], is eliminated or reduced, any tax liability imposed on an insurance company or other person that had premium tax liability under Subchapter A of this chapter on that date.

SECTIONi____.iiArticle 4.52, Insurance Code, is amended to read as follows:

Art.i4.52.iiDUTIES OF COMPTROLLER; RULES; IMPLEMENTATION. The comptroller shall administer this subchapter and shall [may] adopt rules and forms as necessary to implement this subchapter. The rules must provide that:

(1)iithe comptroller shall begin accepting applications for certification as a certified capital company not later than the 30th day after the date the rules are adopted; and

(2)iithe comptroller shall accept premium tax credit allocation claims on behalf of certified investors on a date not later than the 120th day after the date the rules are adopted.

SECTIONi____.iiArticle 4.65(a), Insurance Code, is amended to read as follows:

Tuesday, May 27, 2003 SENATE JOURNAL 2585

(a)iiA certified investor who makes an investment of certified capital shall in the year of investment earn a vested credit against state premium tax liability equal to 100 percent of the certified investor's investment of certified capital, subject to the limits imposed by this subchapter. Beginning with the tax report due March 1, 2009, for the 2008 tax year, a [A] certified investor may take up to 25 [10] percent of the vested premium tax credit in any taxable year of the certified investor. The credit may not be applied to estimated payments due in 2008.

SECTIONi____.iiArticle 4.66(a), Insurance Code, is amended to read as follows:

(a)iiA premium tax credit allocation claim must be prepared and executed by a certified investor on a form provided by the comptroller. The certified capital company must file the claim with the comptroller on the date on which the comptroller accepts premium tax credit allocation claims on behalf of certified investors under rules adopted under Article 4.52(2) of this code [not later than February 15, 2002]. The premium tax credit allocation claim form must include an affidavit of the certified investor under which the certified investor becomes legally bound and irrevocably committed to make an investment of certified capital in a certified capital company in the amount allocated even if the amount allocated is less than the amount of the claim, subject only to the receipt of an allocation under Article 4.68 of this code.

SECTIONi____.iiSection 4.67(b), Insurance Code, is amended to read as follows:

(b)iiThe total amount of certified capital for which premium tax credits may be allowed for all certified investors under this subchapter may not exceed the amount that would entitle all certified investors in certified capital companies to take total credits of $50 [$20] million in a year.

SECTIONi____.iiArticle 4.68(c), Insurance Code, is amended to read as follows:

(c)iiNot later than the 15th day after the date on which the comptroller accepts premium tax credit allocation claims on behalf of certified investors under rules adopted under Article 4.52(2) of this code [March 1, 2002], the comptroller shall notify each certified capital company of the amount of tax credits allocated to each certified investor. Each certified capital company shall notify each certified investor of their premium tax credit allocation.

SECTIONi____.iiArticle 4.73(a), Insurance Code, is amended to read as follows:

(a)iiThe comptroller shall prepare a biennial report with respect to results of the implementation of this subchapter. The report must include:

(1)iithe number of certified capital companies holding certified capital;

(2)iithe amount of certified capital invested in each certified capital company;

(3)iithe amount of certified capital the certified capital company has invested in qualified businesses as of January 1, 2006 [2004], and the cumulative total for each subsequent year;

(4)iithe total amount of tax credits granted under this subchapter for each year that credits have been granted;

(5)iithe performance of each certified capital company with respect to renewal and reporting requirements imposed under this subchapter;

2586 78th Legislature — Regular Session 79th Day

(6)iiwith respect to the qualified businesses in which certified capital companies have invested:

(A)iithe classification of the qualified businesses according to the industrial sector and the size of the business;

(B)iithe total number of jobs created by the investment and the average wages paid for the jobs; and

(C)iithe total number of jobs retained as a result of the investment and the average wages paid for the jobs; and

(7)iithe certified capital companies that have been decertified or that have failed to renew the certification and the reason for any decertification.

The floor amendment was read and was adopted without objection.

Senator Gallegos offered the following amendment to the bill:

Floor Amendment No. 10

Amend CSHB 2425 by adding a new SECTION 62 on page 29, line 29 and renumbering subsequent sections:

SECTION 62. Section 430.003, Local Government Code, is added to read as follows:

Section 430.003. Exemptions of State Property from Infrastructure Fees. No county, municipality or utility district may collect from a state agency or public institution of higher education any fee charged for the development or maintenance of programs or facilities for the control of excess water or storm water.

The floor amendment was read and was adopted without objection.

Senator Ogden offered the following amendment to the bill:

Floor Amendment No. 11

Amend CSHBi2425 by adding the following appropriately numbered SECTIONS and renumbering the other SECTIONS of the bill accordingly:

SECTIONi____.iiSection 53.02, Education Code, is amended by adding Subdivision (14) to read as follows:

(14)ii"Borrower" means any of the following entities that is the recipient of a loan made under Section 53.34:

(A)iian institution of higher education;

(B)iia nonprofit corporation incorporated by and under the exclusive control of an institution of higher education;

(C)iian accredited primary or secondary school; or

(D)iian accredited charter school.

SECTIONi____.iiSection 53.33, Education Code, is amended to read as follows:

Sec.i53.33.iiLIMITED POWER TO ACQUIRE, OWN, AND OPERATE EDUCATIONAL AND HOUSING FACILITIES[: CONSTRUCTION, ACQUISITION, ETC]. (a) An [The] authority or a nonprofit instrumentality created under Section 53.35(b) may acquire, own, hold title to, lease, or operate an educational facility or housing facility or any facility incidental, subordinate, or related to or appropriate in connection with an educational facility or housing facility, but only if:

Tuesday, May 27, 2003 SENATE JOURNAL 2587

(1)iithe facility is or will be located within the corporate limits of the city that created the authority or nonprofit instrumentality;

(2)iithe governing body of an institution of higher education officially requests the authority or nonprofit instrumentality to acquire and own the facility for the benefit of the institution of higher education;

(3)iithe institution of higher education officially agrees to accept, and has authority to receive legal title to, the facility not later than the date on which any bonds or other obligations issued to acquire the facility are paid in full; and

(4)iithe ownership of the facility by the authority or the nonprofit instrumentality is approved by official action of the governing body of:

(A)iithe city that created the authority or nonprofit instrumentality;

(B)iithe school district in which the facility is or will be located; and

(C)iithe county in which the facility is or will be located.

(b)iiAn authority or instrumentality that exercises the powers granted by Subsection (a) may contract for the operation of the facility by public or private entities or persons on the terms and conditions set forth in a contract relating to the operation of the facility.

(c)iiThe changes in law made by the amendment of this section by the 78th Legislature at the 2003 Regular Session do not affect the acquisition, ownership, construction, or improvement of a facility, or the acquisition and ownership of land that were approved by official action of the authority or nonprofit corporate instrumentality before March 15, 2003, and the law in effect immediately before the effective date of the amendment of this section by the 78th Legislature at the 2003 Regular Session is continued in effect for that purpose [by purchase, purchase contract, or lease, may construct, or may enlarge, extend, repair, renovate, or otherwise improve educational facilities or housing facilities. It may acquire land for those purposes, furnish and equip the facilities, and provide by contract, lease, or otherwise for the operation and maintenance of the facilities. The facilities need not be located within the city limits of the city or cities].

SECTIONi____.iiSection 53.34, Education Code, is amended to read as follows:

Sec.i53.34.iiREVENUE BONDS. (a) An [The] authority or a nonprofit instrumentality created under Section 53.35(b), including an authority or nonprofit instrumentality authorized to own facilities under Section 53.33(a), may issue and execute revenue bonds or other obligations to loan or otherwise provide funds to a borrower if:

(1)iithe governing body of the borrower by official action requests the issuer of the bonds or other obligations to loan the proceeds under this subsection;

(2)iithe purpose of the loan is to enable the borrower to acquire, construct, enlarge, extend, repair, renovate, or otherwise improve an educational facility or housing facility or any facility incidental, subordinate, or related to or appropriate in connection with an educational facility or housing facility, or for acquiring land to be used for those purposes, or to create operating and debt service reserves for and to pay issuance costs related to the bonds or other obligations; and

2588 78th Legislature — Regular Session 79th Day

(3)iiunder the terms of the loan, and unless a mortgage lien granted to secure the loan is in default, the ownership of the facility is required to be at all times under the exclusive control, and held for the exclusive benefit, of the borrower [for any of its purposes].

(b)iiIn issuing revenue bonds or other obligations under this chapter, the issuer of the bonds or other obligations [authority] is considered to be acting on behalf of the [any] city by which it was created.

(c)iiBonds or other obligations issued under Subsection (a) [(b)iiThe bonds] shall be payable from and secured by a pledge of the revenues, income, [all or any part of the gross or net revenue to be derived from the operation of the facility or facilities and any other revenue] or assets pledged for the purpose by the borrower. The bonds or other obligations may be additionally secured by a mortgage, [or] deed of trust, [on real property of the authority] or [by a] chattel mortgage on real or [its] personal property, or on [by] both real and personal property, if granted by the borrower.

(d)iiA facility financed with the proceeds of a loan or loans made to a borrower under Subsection (a) is not required to be located within the corporate limits of the city that created the issuer of the bonds or other obligations.

(e)iiAn authority or a nonprofit instrumentality that is authorized to acquire and own educational facilities and housing facilities under Section 53.33(a) may issue and execute revenue bonds and other obligations for the purpose of acquiring, owning, and operating the educational and housing facilities, to create operating reserves for the facilities, and to create debt service reserves for and to pay issuance costs related to the bonds or other obligations.

(f)iiBonds or other obligations issued under Subsection (e) shall be payable from and secured by a pledge of all or any part of the gross or net revenues to be derived from the operation of the educational facilities and housing facilities being acquired and any other revenues, income, or assets, including the revenues and income of the educational facilities or housing facilities previously acquired or subsequently to be acquired. The bonds or other obligations may be additionally secured by a mortgage, deed of trust, or chattel mortgage on real or personal property, or on both real and personal property, if granted by the authority or nonprofit instrumentality issuing the bonds or other obligations.

(g)iiThe changes in law made by the amendment of this section by the 78th Legislature at the 2003 Regular Session affect and apply only to transactions involving bonds or other obligations that are issued or executed under this chapter on or after March 15, 2003. Bonds or other obligations that are issued or executed under this chapter before March 15, 2003, are governed by the law in effect immediately before the amendment of this section by the 78th Legislature at the 2003 Regular Session, and that former law is continued in effect for that purpose.

SECTIONi____.iiSection 53.35(b), Education Code, is amended to read as follows:

(b)iiIn addition to or in lieu of establishing an authority under the provisions of this chapter, the governing body of a city or cities may request or order created one or more nonprofit corporations to act on its behalf and as its duly constituted authority and instrumentality to exercise the powers granted to an authority under the provisions of Sections [Section] 53.33 and 53.34[, Texas Education Code]. If a

Tuesday, May 27, 2003 SENATE JOURNAL 2589

SECTIONi____.iiSection 53.48, Education Code, is amended to read as follows:

Sec.i53.48.iiBONDS FOR ACCREDITED PRIMARY OR SECONDARY SCHOOLS. In the same manner that a corporation may issue and execute bonds or other obligations under this chapter for an institution of higher education, a corporation created under Section 53.35(b) may issue and execute bonds or other obligations to finance or refinance educational facilities or housing facilities to be used by an accredited primary or secondary school or by an authorized charter school.

The floor amendment was read and was adopted without objection.

Senator Barrientos offered the following amendment to the bill:

Floor Amendment No. 12

Amend CSHB 2425 by striking "and P," from Section 116(4) and adding the following new appropriately designated sections to the bill:

SECTION ____:iiSection 403.401, Government Code is amended to read as follows:

(4)ii"Office" means the office of the comptroller governor.

SECTION ____:iiSection 403.403, Government Code, is amended to read as follows:

(d)iiThe governor shall designate comptroller is the presiding officer of the board to serve in that capacity at the pleasure of the governor.

SECTION ____:iiSection 403.406, Government Code, is amended to read as follows:

(a)iiThe board shall hold regular meetings in Austin and other meetings at places and times scheduled by the board in formal sessions and called by the governor comptroller.

SECTION ____:iiSection 403.413, Government Code, is amended to read as follows:

(b)iiIn determining eligible products and small businesses, the board shall give special preference to products or businesses in the areas of semiconductors, nanotechnology, biotechnology and biomedicine that have the greatest likelihood of commercial success, job creation, and job retention in this state.

2590 78th Legislature — Regular Session 79th Day

(e)iiThe board may appoint an advisory committee of experts in the areas of semiconductors, nanotechnology, biotechnology and biomedicine to review projects and businesses seeking financing from the board.

(h)iiAny business in this state may be eligible for funding through the small business incubator fund if it is determined to have a substantial likelihood of developing and expanding the opportunities for small businesses in the semiconductor, nanotech, biotech or biomedicine industries in Texas.

SECTION ____:iiSection 403.408 Government Code, Subsection 403.403(f) Government Code and Subsection 403.413(f) Government Code are repealed.

SECTION ____:iiProceeds from bonds issued pursuant to V.T.C.A., Government Code Section 403.410 and deposited in the Product Development Fund are hereby appropriated to the Office of the Governor to be used only for purposes specified in V.T.C.A., Government Code Subchapter P: Product Development and Small Business Incubators and Section 71, Article XVI, Texas Constitution. All funds deposited in the Product Development Fund for debt service payments pursuant to contractual agreements between the Board and eligible entities receiving awards from the fund are hereby appropriated.

The floor amendment was read and was adopted without objection.

Senator Gallegos offered the following amendment to the bill:

Floor Amendment No. 13

Amend CSHB 2425 by adding the following appropriately numbered SECTIONS to the bill and renumbering existing SECTIONS of the bill appropriately:

SECTION ____.iiSection 141.008, Local Government Code, is amended by adding Subsection (a-1) to read as follows:

(a-1)iiThe governing body shall make the payroll deduction described by Subsection (a) if requested in writing by employees who are fire protection personnel as defined by Section 419.021, Government Code, if the municipality receives revenue from the State and if the municipality permits deductions for purposes other than charity, health insurance, taxes, or other purposes for which the municipality is required by law to permit a deduction.

The floor amendment was read and was adopted without objection.

On motion of Senator Duncan and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2425 as amended was passed to third reading without objection.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2425 ON THIRD READING

Senator Duncan moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2425 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by the following vote:iiYeasi31, Naysi0.

Tuesday, May 27, 2003 SENATE JOURNAL 2591

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3015 ON SECOND READING

Senator Shapiro moved to suspend the regular order of business to take up for consideration CSHBi3015 at this time on its second reading:

CSHB 3015, Relating to the tuition and fees charged to students of institutions of higher education, to financial assistance funded by tuition, and to accountability reports by institutions of higher education.

The motion prevailed by the following vote:iiYeasi22, Naysi9.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Estes, Harris, Jackson, Janek, Lindsay, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Ellis, Fraser, Gallegos, Hinojosa, Lucio, Madla, Staples, VanideiPutte.

The bill was read second time.

Senator Shapiro offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 3015 as follows:

(1)iiOn page 1, strike lines 42 through 45 and substitute the following:

"(b) In addition to the amounts authorized by Subsection (a) or other provisions of this chapter, the governing board of an institution higher education may charge a resident undergraduate student an amount designated as tuition. For the 2003-2004 and 2004-2005 academic years, the amount is limited as follows:"

(2)iiOn page 1, between lines 53 and 54, insert the following new subsections:

"(b-2)iiNotwithstanding Subsection (e), beginning with the 2005-2006 academic year, revenue from any portion of tuition charged under Subsection (b) at a rate in excess of $46 per semester credit hour is subject to Section 54.004.";

"(b-3)iiNot later than January 1, 2004, the coordinating board shall adopt performance criteria for each institution of higher education to measure satisfactory progress towards the goals provided in the master plan for higher education and Closing the Gaps by 2015. The performance criteria shall include, but are not limited to, measures such as graduation rates, retention rates, enrollment growth, educational quality, efforts to enhance minority participation, opportunities for financial aid, and an affordability report. The affordability report shall include an analysis of the criteria used by the institution for financial assistance that takes into account the mission of the institution and the purposes of higher education in the state, and that includes a comparison in terms of affordability with peer institutions inside and outside the state. An institution of higher education may not charge tuition under Subsection (b) in excess of $46 per semester credit hour unless the institution is certified by the coordinating board to have met the performance criteria in the preceding academic year."

The floor amendment was read and was adopted without objection.

2592 78th Legislature — Regular Session 79th Day

Senator West offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 3015 as follows:

(1)iiAdd the following new SECTION to the bill and renumber the subsequent sections appropriately:

SECTION ____.iiSubchapter B, Chapter 54, Education Code, is amended by adding Section 54.0515 to read as follows:

Sec. 54.0515. LEGISLATIVE OVERSIGHT COMMITTEE ON TUITION DEREGULATION. (a)iiIn this section, "committee" means the legislative oversight committee on tuition deregulation.

(b)iiThe committee is composed of ten members as follows:

(1)iifive members of the senate appointed by the lieutenant governor; and

(2)iifive members of the house of representatives appointed by the speaker of the house of representatives.

(c)iiOne member of the senate appointed by the lieutenant governor shall be designated as co-chair and one member of the house of representatives appointed by the speaker of the house of representatives shall be designated as co-chair.

(d)iiAn appointed member of the committee serves at the pleasure of the appointing official. In making appointments to the committee, the appointing officials shall attempt to appoint persons who represent the gender composition, minority populations, and geographic regions of the state.

(e)iiThe committee shall:

(1)iimeet at least annually;

(2)iimonitor the implementation of tuition deregulation; and

(3)iireceive and review information concerning the impact of tuition deregulation.

(f)iiThe committee may request reports and other information from institutions of higher education and the coordinating board as necessary to carry out this section.

(g)iiThe coordinating board shall:

(1)iireport to the committee on the development of the performance criteria adopted for each institution of higher education under Section 54.0513(b-3); and

(2)iireport to the committee each year on the certification of any institution of higher education under Section 54.0513(b-3).

(h)iiNot later than November 15 of each even-numbered year, the committee shall report to the governor, lieutenant governor, and speaker of the house of representatives on the committee's activities under Subsection (e). The report shall include:

(1)iian analysis of any problems caused by tuition deregulation; and

(2)iirecommendations of any legislative action necessary to address those problems.

(i)iiThis section expires September 1, 2007.

(2)iiOn page 2, strike lines 66 to 69, and substitute the following:

"(1)iinot less than 20 percent of the amount of tuition charged to a resident undergraduate student under Section 54.0513 in excess of $46 but less than or equal to $92 per semester credit hour;

Tuesday, May 27, 2003 SENATE JOURNAL 2593

(2)iinot less than 40 percent of the amount of tuition charged to a resident undergraduate student under Section 54.0513 in excess of $92 per semester credit hour; and

(3)iinot less than three percent of the amount of"

The floor amendment was read.

Senator West offered the following amendment to the amendment:

Floor Amendment No. 3

Amend Floor Amendment No. 2 to CSHB 3015 as follows:

On page 3, strike line 2 through line 9, and insert the following:

"(1) not less than 40 percent of the amount of tuition charged to a resident undergraduate student under Section 54.0513 in excess of $46 per semester credit hour; and

(2) not less than three percent of the amount of"

The amendment to the amendment was read and was adopted by a viva voce vote.

RECORD OF VOTES

Senators Lindsay and Ogden asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 3.

Question recurring on the adoption of Floor Amendment No.i2 as amended, the amendment as amended was adopted by a viva voce vote.

RECORD OF VOTES

Senators Lindsay and Ogden asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 2 as amended.

VOTE RECONSIDERED

On motion of Senator Shapiro and by unanimous consent, the vote by which Floor Amendment No.i1 was adopted was reconsidered.

Question — Shall Floor Amendment No. 1 to CSHBi3015 be adopted?

Senator Whitmire offered the following amendment to the amendment:

Floor Amendment No. 4

Amend Floor Amendment No. 1 to CSHB 3015 as follows:

On page 2, line 9 of the amendment add the following new subsection: "(b-4) Subsections (b-2), (b-3) and (b-4) shall expire on September 1, 2007.".

The amendment to the amendment was read and was adopted without objection.

Question recurring on the adoption of Floor Amendment No.i1 as amended, the amendment as amended was again adopted without objection.

Senator Ellis offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 3015, committee report, Section 5, Chapter 56 of the Education Code, by making the following changes:

2594 78th Legislature — Regular Session 79th Day

1)iiPage 3, line 6, strike "and"

2)iiPage 3, line 8, after "Legislature" strike "." and insert "; and"

3)iiPage 3, line 9, insert "(3)iiTEXAS Grants."

The floor amendment was read and was adopted without objection.

Senator Barrientos offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHB 3015 (Senate committee printing) by striking SECTION 3 and renumbering subsequent SECTIONS accordingly.

The floor amendment was read and failed of adoption by the following vote:iiYeasi14, Naysi17.

Yeas:iiBarrientos, Brimer, Ellis, Gallegos, Hinojosa, Jackson, Lucio, Madla, Shapleigh, VanideiPutte, Wentworth, West, Whitmire, Zaffirini.

Nays:iiArmbrister, Averitt, Bivins, Carona, Deuell, Duncan, Estes, Fraser, Harris, Janek, Lindsay, Nelson, Ogden, Ratliff, Shapiro, Staples, Williams.

Senator VanideiPutte offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHBi3015 by adding the following appropriately numbered SECTION and renumbering existing SECTIONS accordingly:

SECTIONi____.ii(a)iiSection 61.088, Education Code, as added by Chapter 795, Acts of the 77th Legislature, Regular Session, 2001, is renumbered as Section 61.0901, Education Code, and amended to read as follows:

Sec.i61.0901i[61.088].iiHIGHER EDUCATION ASSISTANCE [PILOT] PROGRAM. (a) The board shall administer and coordinate the Higher Education Assistance [Pilot] Program to:

(1)iiprovide to prospective students in [three] areas of this state with the highest number of students who do not attend institutions of higher education, as determined by the board, information related to enrollment in public or private or independent institutions of higher education, including admissions and financial aid information; and

(2)iiassist those prospective students in completing applications related to enrollment in those institutions, including admissions and financial aid applications.

(b)iiThe board shall provide the information and assistance required by this section at least twice each year at one or more appropriate locations in each area served by the [pilot] program.

(c)iiThe board may coordinate with an institution of higher education or other entity to provide the information and assistance required by this section in each area served by the [pilot] program.

Tuesday, May 27, 2003 SENATE JOURNAL 2595

(d)iiNot later than December 1 of each even-numbered year [August 31, 2003], the board shall submit to the legislature a report on the effectiveness of the [pilot] program[, including recommendations on whether to implement the program on a statewide basis]. The report must include a comparison of the number of college acceptances before and after the implementation of the program from areas served by the program.

[(e)iiThe pilot program ends and this section expires August 31, 2003.]

(b)iiNotwithstanding Sectioni___iof this Act, Subsection (a) of this section takes effect immediately if this Act receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, Subsection (a) takes effect September 1, 2003, and has the effect of reenacting, amending, and renumbering Section 61.088, Education Code, as added by Chapter 795, Acts of the 77th Legislature, Regular Session, 2001.

The floor amendment was read and was adopted by a viva voce vote.

On motion of Senator Shapiro and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 3015 as amended was passed to third reading by a viva voce vote.

RECORD OF VOTES

Senators Barrientos, Ellis, Fraser, Gallegos, and VanideiPutte asked to be recorded as voting "Nay" on the passage of CSHBi3015 to third reading.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3015 ON THIRD READING

Senator Shapiro moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi3015 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi27, Naysi4.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Estes, Fraser, Harris, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, VanideiPutte, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Ellis, Gallegos, Hinojosa.

The bill was read third time and was passed by the following vote:iiYeasi23, Naysi8.

Yeas:iiArmbrister, Averitt, Bivins, Brimer, Carona, Deuell, Duncan, Estes, Harris, Jackson, Janek, Lindsay, Nelson, Ogden, Ratliff, Shapiro, Shapleigh, Staples, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiBarrientos, Ellis, Fraser, Gallegos, Hinojosa, Lucio, Madla, VanideiPutte.

2596 78th Legislature — Regular Session 79th Day

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 27, 2003

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 270, Honoring Wendell Moore of Paris on his act of heroism in rescuing Lenore Gonzalez.

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2359 ON SECOND READING

On motion of Senator Armbrister and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi2359 at this time on its second reading:

CSHB 2359, Relating to the programs and systems administered by the Employees Retirement System of Texas.

The bill was read second time.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2359 as follows:

(1)iiAdd new SECTION 7 to read as follows and renumber the subsequent sections appropriately:

"SECTION 7. Section 615.003, Government Code, is amended to read as follows:

Sec. 615.003. APPLICABILITY. This chapter applies only to eligible survivors of the following individuals:

(1)iian individual elected, appointed, or employed as a peace officer by the state or a political subdivision of the state under Article 2.12, Code of Criminal Procedure, or other law;

(2)iia paid probation officer appointed by the director of a community supervision and corrections department who has the duties set out in Section 76.002 and the qualifications set out in Section 76.005, or who was appointed in accordance with prior law;

Tuesday, May 27, 2003 SENATE JOURNAL 2597

(3)iia parole officer employed by the pardons and paroles division of the Texas Department of Criminal Justice who has the duties set out in Section 508.001 and the qualifications set out in Section 508.113 or in prior law;

(4)iia paid jailer;

(5)iia member of an organized police reserve or auxiliary unit who regularly assists peace officers in enforcing criminal laws;

(6)iia member of the class of employees of the institutional division or the state jail division of the Texas Department of Criminal Justice formally designated as custodial personnel under Section 615.006 by the Texas Board of Criminal Justice or its predecessor in function;

(7)iia jailer or guard of a county jail who is appointed by the sheriff and who:

(A)iiperforms a security, custodial, or supervisory function over the admittance, confinement, or discharge of prisoners; and

(B)iiis certified by the Commission on Law Enforcement Officer Standards and Education;

(8)iia juvenile correctional employee of the Texas Youth Commission;

(9)iian employee of the Texas Department of Mental Health and Mental Retardation who:

(A)iiworks at the department's maximum security unit; or

(B)iiperforms on-site services for the Texas Department of Criminal Justice;

(10)iian individual who is employed by the state or a political or legal subdivision and is subject to certification by the Texas Commission on Fire Protection;

(11)iian individual employed by the state or a political or legal subdivision whose principal duties are aircraft crash and rescue fire fighting;

(12)iia member of an organized volunteer fire-fighting unit that:

(A)iirenders fire-fighting services without remuneration; and

(B)ii[consists of not fewer than 20 active members, a majority of whom are present at each meeting; and

[(C)] conducts a minimum of two drills each month, each two hours long; or

(13)iian individual who:

(A)iiperforms emergency medical services or operates an ambulance;

(B)iiis employed by a political subdivision of the state or is an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code; and

(C)iiis qualified as an emergency care attendant or at a higher level of training under Section 773.046, 773.047, 773.048, 773.049, or 773.0495, Health and Safety Code."

(2)iiAmend SECTION 42 by adding subsection (e) to read as follows:

"(e) The change in law made by this Act to Section 615.003, Government Code, relating to the death of a member of an organized volunteer fire-fighting unit applies only in relation to a death that occurs on or after the effective date of this Act. Matters regarding eligibility, payment, and benefits under Chapter 615, Government Code, in

2598 78th Legislature — Regular Session 79th Day

The floor amendment was read and was adopted without objection.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2359 by adding the following appropriately numbered section to read as follows and by renumbering existing sections accordingly:

SECTION ____.iiSubchapter G, Chapter 1551, Insurance Code, as effective Junei1, 2003, is amended by adding Section 1551.3015 to read as follows:

Sec. 1551.3015. COST ASSESSMENT FOR CERTAIN PARTICIPANTS. Notwithstanding any other provision of law, the board of trustees may impose against an employer whose employees are not paid salaries from amounts appropriated by the General Appropriations Act and whose participation in the group benefits program begins after August 31, 2003, as a condition for participation in the program, a one-time assessment of administrative costs for participation of the employees and annuitants in the program, which may include the actuarial costs of including the group in the program and a participation premium determined by the board. The board of trustees shall deposit all amounts recovered under this section in the employees life, accident, and health insurance and benefits fund.

The floor amendment was read and was adopted without objection.

On motion of Senator Armbrister and by unanimous consent, the caption was amended to conform to the body of the bill as amended.

CSHB 2359 as amended was passed to third reading without objection.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2359 ON THIRD READING

Senator Armbrister moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2359 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

The bill was read third time and was passed by a viva voce vote.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3588 ON SECOND READING

On motion of Senator Ogden and by unanimous consent, the regular order of business was suspended to take up for consideration CSHBi3588 at this time on its second reading:

CSHB 3588, Relating to the construction, acquisition, financing, maintenance, management, operation, ownership, and control of transportation facilities and the progress, improvement, policing, and safety of transportation in the state; imposing criminal penalties.

The bill was read second time.

Tuesday, May 27, 2003 SENATE JOURNAL 2599

Senator Wentworth offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHBi3588 by adding the following appropriately numbered articles and renumbering subsequent articles accordingly:

ARTICLE ____.iiDRIVER RESPONSIBILITY

SECTION ____.01. Subtitle I, Title 7, Transportation Code, is amended by adding Chapter 708 to read as follows:

CHAPTER 708.iiDRIVER RESPONSIBILITY PROGRAM

SUBCHAPTER A.iiGENERAL PROVISIONS

Sec.i708.001.iiDEFINITIONS.iiIn this chapter, "department" and "license" have the meanings assigned by Section 521.001.

Sec.i708.002.iiRULES. The department shall adopt and enforce rules to implement and enforce this chapter.

Sec.i708.003.iiFINAL CONVICTIONS.iiFor purposes of this chapter, a conviction for an offense to which this chapter applies is a final conviction, regardless of whether the sentence is probated.

[Sections 708.004-708.050 reserved for expansion]

SUBCHAPTER B.iiDRIVER'S LICENSE POINTS SURCHARGE

Sec.i708.051.iiNONAPPLICABILITY.iiThis subchapter does not apply to:

(1)iia conviction that became final before September 1, 2003; or

(2)iian offense covered by Subchapter C.

Sec.i708.052.iiASSIGNMENT OF POINTS FOR CERTAIN CONVICTIONS.ii(a) The driver's license of a person accumulates a point under this subchapter as of the date the department records a conviction of the person under Section 521.042 or other applicable law.

(b)iiFor each conviction arising out of a separate transaction, the department shall assign points to a person's license as follows:

(1)iitwo points for a moving violation of the traffic law of this state or another state that is not described by Subdivision (2); and

(2)iithree points for a moving violation of the traffic law of this state, another state, or a political subdivision of this or another state that resulted in an accident.

(c)iiThe department by rule shall designate the offenses that constitute a moving violation of the traffic law under this section.

(d)iiNotwithstanding Subsection (b), the department may not assign points to a person's driver's license if the offense of which the person was convicted is the offense of speeding and the person was at the time of the offense driving less than 10 percent faster than the posted speed limit. This subsection does not apply to an offense committed in a school crossing zone as defined by Section 541.302.

(e)iiNotwithstanding Subsection (b), the department may not assign points to a person's license if the offense committed by the person was adjudicated under Article 45.051(c-1) or 45.0511(l)(1), Code of Criminal Procedure.

Sec.i708.053.iiANNUAL SURCHARGE FOR POINTS.iiEach year, the department shall assess a surcharge on the license of a person who has accumulated six or more points under this subchapter during the preceding 36-month period.

2600 78th Legislature — Regular Session 79th Day

Sec.i708.054.iiAMOUNT OF POINTS SURCHARGE.iiThe amount of a surcharge under this chapter is $100 for the first six points and $25 for each additional point.

Sec.i708.055.iiNOTICE OF ASSIGNMENT OF FIFTH POINT.iiThe department shall notify the holder of a driver's license of the assignment of a fifth point on that license by first class mail sent to the person's most recent address as shown on the records of the department.

[Sections 708.056-708.100 reserved for expansion]

SUBCHAPTER C.iiSURCHARGES FOR CERTAIN CONVICTIONS
AND LICENSE SUSPENSIONS

Sec.i708.101.iiNONAPPLICABILITY.iiThis subchapter does not apply to a conviction that became final before September 1, 2003.

Sec.i708.102.iiSURCHARGE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES.ii(a) In this section, "offense relating to the operating of a motor vehicle while intoxicated" has the meaning assigned by Section 49.09, Penal Code.

(b)iiEach year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.

(c)iiThe amount of a surcharge under this section is $1,000 per year, except that the amount of the surcharge is:

(1)ii$1,500 per year for a second or subsequent conviction within a 36-month period; and

(2)ii$2,000 for a first or any subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.

(d)iiA surcharge under this section for the same conviction may not be assessed in more than three years.

Sec.i708.103.iiSURCHARGE FOR CONVICTION OF DRIVING WHILE LICENSE INVALID OR WITHOUT FINANCIAL RESPONSIBILITY.ii(a) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been convicted of an offense under Section 521.457, 601.191, or 601.371.

(b)iiThe amount of a surcharge under this section is $250 per year.

Sec.i708.104.iiSURCHARGE FOR CONVICTION OF DRIVING WITHOUT VALID LICENSE.ii(a) Each year the department shall assess a surcharge on the license of a person who during the preceding 36-month period has been convicted of an offense under Section 521.021.

(b)iiThe amount of a surcharge under this section is $100 per year.

(c)iiA surcharge under this section for the same conviction may not be assessed in more than three years.

Tuesday, May 27, 2003 SENATE JOURNAL 2601

[Sections 708.105-708.150 reserved for expansion]

SUBCHAPTER D.iiCOLLECTION OF SURCHARGES

Sec.i708.151.iiNOTICE OF SURCHARGE.iiThe department shall notify the holder of a driver's license of the assessment of a surcharge on that license by first class mail sent to the person's most recent address as shown on the records of the department.iiThe notice must specify the date by which the surcharge must be paid and state the consequences of a failure to pay the surcharge.

Sec.i708.152.iiFAILURE TO PAY SURCHARGE.ii(a) If before the 30th day after the date the department sends a notice under Section 708.151 the person fails to pay the amount of a surcharge on the person's license or fails to enter into an installment payment agreement with the department, the license of the person is automatically suspended.

(b)iiA license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.

Sec.i708.153.iiINSTALLMENT PAYMENT OF SURCHARGE.ii(a) The department by rule shall provide for the payment of a surcharge in installments.

(b)iiA rule under this section:

(1)iimay not permit a person to pay a surcharge:

(A)iiof less than $2,300 over a period of more than 12 consecutive months; or

(B)iiof $2,300 or more over a period of more than 24 consecutive months; and

(2)iimay provide that if the person fails to make a required installment payment, the department may declare the amount of the unpaid surcharge immediately due and payable.

Sec.i708.154.iiCREDIT CARD PAYMENT OF SURCHARGE.ii(a) The department by rule may authorize the payment of a surcharge by use of a credit card. The rules shall require the person to pay all costs incurred by the department in connection with the acceptance of the credit card.

(b)iiIf a surcharge or a related cost is paid by credit card and the amount is subsequently reversed by the issuer of the credit card, the license of the person is automatically suspended.

(c)iiA license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.

Sec.i708.155.iiCONTRACTS FOR COLLECTION OF SURCHARGES.iiThe department may enter into a contract with a private attorney or a public or private vendor for the provision of services for the collection of surcharges receivable under this chapter.

Sec.i708.156.iiREMITTANCE OF SURCHARGES COLLECTED TO COMPTROLLER.iiEach surcharge collected by the department under this chapter shall be remitted to the comptroller as required by Section 780.002, Health and Safety Code.

SECTIONi____.02.iiSubtitle B, Title 9, Health and Safety Code, is amended by adding Chapter 780 to read as follows:

2602 78th Legislature — Regular Session 79th Day

CHAPTER 780.iiTRAUMA FACILITIES AND
EMERGENCY MEDICAL SERVICES

Sec.i780.001.iiDEFINITIONS.iiIn this chapter:

(1)ii"Account" means the designated trauma facility and emergency medical services account established under Section 780.003.

(2)ii"Commissioner" means the commissioner of public health.

(3)ii"Department" means the Texas Department of Health.

Sec.i780.002.iiDEPOSITS TO ACCOUNT.ii(a) On the first Monday of each month, the Department of Public Safety shall remit the surcharges collected during the previous month under the driver responsibility program operated by that department under Chapter 708, Transportation Code, to the comptroller.

(b)iiThe comptroller shall deposit 49.5 percent of the money received under Subsection (a) to the credit of the account established under this chapter and 49.5 percent of the money to the general revenue fund. The remaining one percent of the amount of the surcharges shall be deposited to the general revenue fund and may be appropriated only to the Department of Public Safety for administration of the driver responsibility program operated by that department under Chapter 708, Transportation Code.

(c)iiNotwithstanding Subsection (b), in any state fiscal year the comptroller shall deposit 49.5 percent of the surcharges collected under Chapter 708, Transportation Code, to the credit of the general revenue fund only until the total amount of the surcharges deposited to the credit of the general revenue fund under Subsection (b), and the court costs deposited to the credit of that fund under Section 542.4031(g)(1), Transportation Code, equals $250 million for that year. If in any state fiscal year the amount received by the comptroller under those laws exceeds $250 million, the comptroller shall deposit 49.5 percent of the additional amount received under Subsection (a) to the account established under this chapter and 49.5 percent of the additional amount to the credit of the Texas mobility fund.

Sec.i780.003.iiACCOUNT.ii(a) The designated trauma facility and emergency medical services account is created as an account in the state treasury. Money in the account may be appropriated only to the department for the purposes described by Section 780.004.

(b)iiThe account is composed of money deposited to the credit of the account under Section 780.002, and the earnings of the account.

(c)iiSections 403.095 and 404.071, Government Code, do not apply to the account.

Sec.i780.004.iiPAYMENTS FROM THE ACCOUNT.ii(a) The commissioner, with advice and counsel from the chairpersons of the trauma service area regional advisory councils, shall use money appropriated from the account established under this chapter to fund designated trauma facilities, county and regional emergency medical services, and trauma care systems in accordance with this section.

(b)iiThe commissioner shall maintain a reserve of $500,000 of money appropriated from the account for extraordinary emergencies.

(c)iiIn any fiscal year, the commissioner shall use at least 96 percent of the money appropriated from the account, after any amount necessary to maintain the reserve established by Subsection (b) is deducted, to fund a portion of the

Tuesday, May 27, 2003 SENATE JOURNAL 2603

(d)iiIn any fiscal year, the commissioner shall use not more than two percent of the money appropriated from the account, after any amount necessary to maintain the reserve established by Subsection (b) is deducted, to fund, in connection with an effort to provide coordination with the appropriate trauma service area, the cost of supplies, operational expenses, education and training, equipment, vehicles, and communications systems for local emergency medical services. The money shall be distributed on behalf of eligible recipients in each county to the trauma service area regional advisory council for that county. To receive a distribution under this subsection, the regional advisory council must be incorporated as an entity that is exempt from federal income tax under Section 501(a), Internal Revenue Code of 1986, and its subsequent amendments, by being listed as an exempt organization under Section 501(c)(3) of the code. The share of the money allocated to the eligible recipients in a county's geographic area shall be based on the relative geographic size and population of the county and on the relative number of emergency or trauma care runs performed by eligible recipients in the county. Money that is not disbursed by a regional advisory council to eligible recipients for approved functions by the end of the fiscal year in which the funds were disbursed shall be returned to the department to be used in accordance with Subsection (c).

(e)iiIn any fiscal year, the commissioner may use not more than one percent of the money appropriated from the account, after any amount necessary to maintain the reserve established by Subsection (b) is deducted, for operation of the 22 trauma service areas and for equipment, communications, and education and training for the areas. Money distributed under this subsection shall be distributed on behalf of eligible recipients in each county to the trauma service area regional advisory council for that county. To receive a distribution under this subsection, the regional advisory council must be incorporated as an entity that is exempt from federal income tax under Section 501(a), Internal Revenue Code of 1986, and its subsequent amendments, by being listed as an exempt organization under Section 501(c)(3) of the code. A regional advisory council's share of money distributed under this section shall be based on the relative geographic size and population of each trauma service area and on the relative amount of trauma care provided. Money that is not disbursed by a regional advisory council to eligible recipients for approved functions by the end of the fiscal year in which the funds were disbursed shall be returned to the department to be used in accordance with Subsection (c).

(f)iiIn any fiscal year, the commissioner may use not more than one percent of money appropriated from the account, after any amount necessary to maintain the reserve established by Subsection (b) is deducted, to fund the administrative costs of the bureau of emergency management of the department associated with

2604 78th Legislature — Regular Session 79th Day

(g)iiIn a trauma service area that includes a county with a population of 3.3 million or more, a trauma service area regional advisory council may enter into an agreement with a regional council of governments to execute its responsibilities and functions under this chapter.

(h)iiFor purposes of this section "pursuit of designation" means:

(1)iisubmission of an application with the state or appropriate agency for trauma verification and designation not later than December 31, 2003;

(2)iisubmission of data to the department trauma registry, provided that only data submitted to the trauma registry on or after September 1, 2003, will qualify for consideration of reimbursement under this program;

(3)iiparticipation in trauma service area regional advisory council initiatives on or before December 31, 2003; and

(4)iicreation of a hospital trauma performance committee not later than December 31, 2003.

(i)iiIf trauma designation is not attained by an undesignated facility in active pursuit of designation on or before December 31, 2005, any funds received by the undesignated facility for unreimbursed trauma services must be returned to the state.

Sec.i780.0045.iiPAYMENT TO PHYSICIANS.ii(a) Each designated state trauma facility that receives funds under Section 780.004(c) shall distribute a portion of those funds to physicians on the medical staff of the facility to offset the costs of the uncompensated trauma care provided by the physicians.

(b)iiEach designated state trauma facility that receives funds under Section 780.004(c) shall develop, in accordance with rules adopted by the department, a physician compensation distribution plan that recognizes the other distribution plans or contracts under which physicians provide trauma care at the facility.

Sec.i780.005.iiCONTROL OF EXPENDITURES FROM THE ACCOUNT. Money distributed under Section 780.004 shall be used in compliance with Sections 780.004 and 780.0045 on the authorization of the executive committee of the trauma service area regional advisory council.

Sec.i780.006.iiLOSS OF FUNDING ELIGIBILITY.iiFor a period of not less than one year or more than three years, as determined by the commissioner, the department may not disburse money under Section 780.004 to a county, municipality, or local recipient that the commissioner finds used money in violation of that section.

SECTIONi____.03. Not later than December 1, 2004, the Texas Department of Health shall submit to the lieutenant governor and the speaker of the house of representatives a report concerning the use of money under Chapter 780, Health and Safety Code, as added by this article, and any recommended changes to law to ensure appropriate funding and coordination of services.

SECTIONi____.04. The Texas Department of Health shall adopt rules to implement Section 780.0045, Health and Safety Code, as added by this article, as soon as practicable but not later than June 1, 2004.

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ARTICLEi____.iiDISPOSITION OF DEPARTMENT OF
PUBLIC SAFETY FEES

SECTIONi____.01.iiSubchapter C, Chapter 521, Transportation Code, is amended by adding Section 521.058 to read as follows:

Sec.i521.058.iiDISPOSITION OF FEES.iiEach fee collected under this subchapter shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.02.iiSection 521.313, Transportation Code, is amended by adding Subsection (c) to read as follows:

(c)iiEach fee collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.03.iiSection 521.3466, Transportation Code, is amended by adding Subsection (e) to read as follows:

(e)iiEach fee collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.04.iiSubchapter R, Chapter 521, Transportation Code, is amended by adding Section 521.427 to read as follows:

Sec.i521.427.iiDISPOSITION OF FEES.ii(a) Except as provided by Subsections (b) and (c), each fee collected under this subchapter shall be deposited to the credit of the Texas mobility fund.

(b)iiSubsection (a) does not apply to:

(1)iithe portion of a fee collected under Section 521.421(b) or Section 521.421(f), as added by Chapter 1156, Acts of the 75th Legislature, Regular Session, 1997, that is required by Section 662.011 to be deposited to the credit of the motorcycle education fund account;

(2)iia fee collected under Section 521.421(f), as added by Chapter 510, Acts of the 75th Legislature, Regular Session, 1997;

(3)iia fee collected under Section 521.421(g); or

(4)iia fee collected under Section 521.422(b) or (c).

(c)iiThe first $90,500,254 of fees to which Subsection (a) applies that are collected during the state fiscal biennium ending August 31, 2005, shall be deposited to the credit of the general revenue fund. This subsection expires September 1, 2005.

SECTIONi____.05.iiSection 522.029, Transportation Code, is amended by adding Subsection (i) to read as follows:

(i)iiExcept as provided by Section 662.011, each fee collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.06.iiSection 524.051, Transportation Code, is amended by adding Subsection (c) to read as follows:

(c)iiEach fee collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.07.iiSubchapter H, Chapter 548, Transportation Code, is amended by adding Section 548.508 to read as follows:

Sec.i548.508.iiDISPOSITION OF FEES. Except as provided by Sections 382.037 and 382.0622, Health and Safety Code, and Section 548.5055, each fee collected by the department under this subchapter shall be deposited to the credit of the Texas mobility fund.

2606 78th Legislature — Regular Session 79th Day

SECTIONi____.08.iiSection 644.153, Transportation Code, is amended by adding Subsection (i) to read as follows:

(i)iiEach penalty collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.09.iiSection 724.046, Transportation Code, is amended by adding Subsection (c) to read as follows:

(c)iiEach fee collected under this section shall be deposited to the credit of the Texas mobility fund.

SECTIONi____.10.iiSection 521.055(d), Transportation Code, is repealed.

SECTIONi____.11.iiThis article applies only to a fee or penalty collected on or after the effective date of this Act.

ARTICLEi____.iiMISCELLANEOUS PROVISIONS

SECTIONi____.01.ii(a) Subchapter D, Chapter 542, Transportation Code, is amended by adding Section 542.4031 to read as follows:

Sec.i542.4031.iiADDITIONAL COURT COST.ii(a) In addition to other costs, including a cost under Section 542.403, a person convicted of an offense under this subtitle shall pay $30 as a court cost.

(b)iiAn officer collecting a cost due under this section in a case in municipal court shall keep separate records of the money collected and shall deposit the money in the municipal treasury.

(c)iiAn officer collecting a cost due under this section in a justice, county, or district court shall keep separate records of the money collected and shall deposit the money in the county treasury.

(d)iiEach calendar quarter, an officer collecting a cost due under this section shall submit a report to the comptroller. The report must comply with Articles 103.005(c) and (d), Code of Criminal Procedure. If no money due as a cost under this section is collected in any quarter, the report required for that quarter shall be filed in the regular manner, and the report shall state that no money due under this section was collected.

(e)iiThe custodian of money in a municipal or county treasury may deposit money collected under this section in an interest-bearing account. The custodian shall:

(1)iikeep records of the amount of money collected under this section that is on deposit in the treasury; and

(2)iinot later than the last day of the month following each calendar quarter, remit to the comptroller money collected under this section during the preceding quarter, as required by the comptroller.

(f)iiA municipality or county may retain five percent of the money collected under this section as a service fee for the collection if the municipality or county remits the funds to the comptroller within the period prescribed in Subsection (e). The municipality or county may retain any interest accrued on the money if the custodian of the money deposited in the treasury keeps records of the amount of money collected under this section that is on deposit in the treasury and remits the funds to the comptroller within the period prescribed in Subsection (e).

(g)iiOf the money received by the comptroller under this section, the comptroller shall deposit:

(1)ii67 percent to the credit of the undedicated portion of the general revenue fund; and

Tuesday, May 27, 2003 SENATE JOURNAL 2607

(2)ii33 percent to the credit of the designated trauma facility and emergency medical services account under Section 780.003, Health and Safety Code.

(h)iiNotwithstanding Subsection (g), in any state fiscal year the comptroller shall deposit court costs received under that subsection to the credit of the general revenue fund only until the total amount of the court costs deposited to the credit of the general revenue fund under that subsection and the surcharges deposited to the credit of that fund under Section 780.002(b), Health and Safety Code, equals $250 million for that year. If in any state fiscal year the amount received by the comptroller under those laws exceeds $250 million, the comptroller shall deposit the additional amount received under Subsection (g) to the credit of the Texas mobility fund.

(i)iiMoney collected under this section is subject to audit by the comptroller. Money spent is subject to audit by the state auditor.

(j)iiIn this section a person is considered to have been convicted in a case if:

(1)iia sentence is imposed;

(2)iithe person receives community supervision or deferred adjudication; or

(3)iithe court defers final disposition of the case.

(b)iiThe change in law made by this section applies only to an offense committed on or after the effective date of this section. For the purposes of this section, an offense was committed before the effective date of this section if any element of the offense occurred before that date. An offense committed before the effective date of this section is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

WENTWORTH

OGDEN

The floor amendment was read.

Senator Wentworth offered the following amendment to the amendment:

Floor Amendment No. 1A

Amend Floor Amendment No. 1 to CSHB 3588 in added Section 708.052(e), Transportation Code, between "Article" and "Code of Criminal Procedure", by striking "45.051(c-1) or 45.0511(l)(1)" and substituting "45.051 or 45.0511".

The amendment to the amendment was read and was adopted without objection.

Senator Madla offered the following amendment to the amendment:

Floor Amendment No. 1B

Amend Floor Amendment No. 1 to CSHBi3588 by striking all of Sec. 780.0045 on page 12, line 17 through page 13, line 1, PAYMENT TO PHYSICIANS.

The amendment to the amendment was read and failed of adoption by the following vote:iiYeasi11, Naysi19.

Yeas:iiAveritt, Duncan, Gallegos, Harris, Jackson, Lucio, Madla, Shapiro, Shapleigh, Staples, VanideiPutte.

Nays:iiArmbrister, Barrientos, Bivins, Brimer, Carona, Deuell, Ellis, Estes, Fraser, Hinojosa, Lindsay, Nelson, Ogden, Ratliff, Wentworth, West, Whitmire, Williams, Zaffirini.

Absent:iiJanek.

Floor Amendment No. 1C was not offered.

2608 78th Legislature — Regular Session 79th Day

Senator Whitmire offered the following amendment to the amendment:

Floor Amendment No. 1D

Amend Floor Amendment No. 1 to CSHB 3588 as follows:

On page 13 line 12 insert a new section as follows:

Sec. 780.007. This Chapter expires on September 1, 2007.

On page 19 line 1 insert a new section (k) as follows:

(k)iiThis section expires on September 1, 2007.

The amendment to the amendment was read and was adopted by a viva voce vote.

Senator West offered the following amendment to the amendment:

Floor Amendment No. 1E

Amend Floor Amendment No. 1 to CSHB 3588 as follows:

On page 6 line 23 after the "." add The collection fee charged may not exceed fifteen percent.

The amendment to the amendment was read and was adopted by a viva voce vote.

Question recurring on the adoption of Floor Amendment No.i1 as amended, the amendment as amended was adopted by a viva voce vote.

RECORD OF VOTE

Senator Jackson asked to be recorded as voting "Nay" on the adoption of Floor Amendment No. 1 as amended.

Senator Ogden offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHBi3588 (committee printing) as follows:

(1)iiIn SECTION 11.03 of the bill, in proposed Section 152.0412(e), Transportation Code (page 47, line 66), between "section" and the period, insert "for the period specified by the comptroller".

(2)iiIn ARTICLE 11 of the bill, add the following appropriately numbered section and renumber subsequent sections accordingly:

SECTION 11i____.ii(a) Not later than September 1, 2003, the Texas Department of Transportation shall:

(1)iiestablish standard presumptive values for motor vehicles as provided by Section 152.0412, Tax Code, as added by this Act;

(2)iimodify the department's vehicle registration and titling system as needed to include that information and administer that section; and

(3)iimake that information available through the system to all county tax assessor-collectors.

(b)iiThe comptroller shall certify the date on which the Texas Department of Transportation's registration and title system, as modified under Subsection (a) of this section, is in use by the 25 county tax assessor-collectors that remitted to the comptroller the largest amount of taxes imposed under Chapter 152, Tax Code, during the state fiscal year ending August 31, 2003.

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(c)iiIf the date certified by the comptroller under Subsection (b) of this section is later than September 23, 2003, the Texas Department of Transportation shall transfer $8 million from the state highway fund to the general revenue fund on the first day of each month after that date until the earlier of:

(1)iithe date the comptroller issues the certification under Subsection (b) of this section; or

(2)iithe date the total amount transferred under this subsection equals the lesser of:

(A)ii$200 million; or

(B)iithe total amount in the state highway fund that is not allocated as the result of a requirement in the Texas Constitution.

(d)iiThis section takes effect immediately if this Act receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this section takes effect September 1, 2003.